RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0877-19
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.A.,
Defendant-Appellant,
and
S.M., J.B., and A.W.,
Defendants, _________________________
IN THE MATTER OF S.J.B., J.A. and N.A., minors. _________________________
Argued September 29, 2021 – Decided October 26, 2021
Before Judges Whipple, Geiger and Susswein. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-0201-18.
Deric Wu, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Deric Wu, of counsel and on the briefs).
Mary L. Harpster, Deputy Attorney General, argued the cause for respondent (Andrew J. Bruck, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mary L. Harpster, on the brief).
Nancy P. Fratz, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; Nancy P. Fratz, of counsel and on the brief).
PER CURIAM
Defendant J.A. (Jared) 1 appeals from a Family Part's June 25, 2018 order
finding that he abused and neglected S.J.B. (Sarah) within the meaning of
N.J.S.A. 9:6-8.21(c)(1) and (4)(b), and a September 13, 2019 order terminating
the litigation. We affirm.
1 We use initials and pseudonyms to protect the privacy of the children and parties and to preserve the confidentiality of these proceedings. R. 1:38- 3(d)(12). A-0877-19 2 S.M. (Sylvia) is the biological mother of Sarah, who was born on April
18, 2013, and J.A. (Joseph), who was born on August 6, 2017. J.B. (Jack) is
Sarah's father, and Jared is Joseph's father. A.W. (Anita) is Jared's mother, and
Joseph's paternal grandmother. At the time of the incident, Jared was Sylvia's
boyfriend and lived with her, as did Anita.
Judge David B. Katz conducted a fact-finding hearing on five non-
consecutive days in June 2018, at which plaintiff Division of Child Protection
and Permanency (Division) presented the testimony of Division Investigator
Danielle Howell and Gladibel Medina, M.D. The Law Guardian presented the
testimony of Steven Kairys, M.D. Jared presented the testimony of Joseph
Scheller, M.D. and Jack Levenbrown, M.D. Defendants did not testify at the
hearing. The Division did not intend to move Sarah's forensic interview into
evidence, Jared offered it in evidence. The parties consented to its admission.
Sarah's hospital records, imaging studies, an ophthalmologist's consult
report, the Division's Investigation Summary, and all of the experts' reports and
curriculum vitae were admitted into evidence.
Because the finding of abuse and neglect hinges upon the testimony of the
witnesses, Sarah's forensic interview, and the reports admitted into evidence, we
summarize them.
A-0877-19 3 Investigator Howell's Testimony and Reports
On November 18, 2017, the Division received a referral of alleged
physical abuse of then four-year-old Sarah, who was being transported by
ambulance to the hospital with suspected head trauma. The police reported
Sarah had been home with her mother's boyfriend, Jared, who stated she hit her
head in the bathtub.
That same day, Division Special Protective Response worker Edith
Quainoo responded to the hospital but was unable to speak with Sarah, who was
in a medically induced coma. Quainoo spoke to Jared at the hospital. Jared
indicated that he returned home at about 4:00 p.m. on November 17, at which
time Sylvia left for work. Jared fed his two sons and Sarah. Anita arrived home
at about 6:00 p.m. and took Jared's two sons into her bedroom. Sarah went into
Sylvia and Jared's bedroom to lie down.
According to Jared, Sarah vomited on her pillow and then went into the
bathroom because she was nauseous. When she returned to the bedroom, Jared
told her to return to the bathroom to clean herself up. Jared said he took some
items to Sarah and then returned to the bedroom to lie down. When Sarah
returned to the bedroom, she told him she fell in the bathtub and hit her head,
but she was neither crying nor complaining of pain. They both fell asleep.
A-0877-19 4 Jared was later awoken by Sarah screaming. Her arms were stiff, and she
was not speaking. Anita entered the bedroom and called for an ambulance.
Jared then called Sylvia. Jared told Quainoo he had not heard or seen Sarah fall
in the bathtub and he did not know if Sarah suffered any other recent injuries.
Quainoo also interviewed Anita, who stated she woke up at about 9:00
p.m. when Jared entered her bedroom hysterical. Anita went to see Sarah, whose
hands were "pulled out" and legs were "frozen." Thinking that Sarah was having
a seizure, Anita called 911.
Quainoo then interviewed Sylvia, who spent the previous day at home
with her children before leaving for work at 4:00 p.m. When Jared called her at
about 8:00 p.m., she could hear Sarah screaming. During a video call set up by
Jared, Sarah appeared stiff and nonresponsive. The ambulance was there by the
time Sylvia arrived home.
Sylvia indicated Sarah had behaved normally during the past week and
she had no concerns about her. Sarah reported that she had been punched in the
stomach by two classmates earlier that week but did not complain of any pain.
On November 20, 2017, Investigator Howell went to the hospital, but
Sarah was still in a coma. She observed bruising on Sarah's knee, arm, and
A-0877-19 5 behind Sarah's ear, a healing burn on Sarah's back, and an older burn on her face.
A skeletal survey revealed a healing rib fracture.
Howell spoke with Sylvia at the hospital. Sylvia confirmed that Sarah
required assistance turning on the bath water, and when Sylvia was not home,
Jared turned on the water for Sarah and checked on her during her bath. Sylvia
denied that Sarah had ever previously fallen in the bathtub. Sylvia said she had
not observed any bruises on Sarah's body, and she had not complained of any
pain or injury earlier that week. Sarah also did not report any pain from being
punched in the stomach by two classmates. Sylvia also said Sarah had displayed
no changes in behavior or unusual demeanor during the past week. Sylvia could
not explain Sarah's injuries.
On November 21, 2017, Howell spoke with Jared about the July 17th
incident. Jared reiterated that Sarah had spit up on her pillow and went into the
bathroom to clean up. Jared stated he saw additional vomit on the bathroom
floor and toilet, placed clean clothing for Sarah on the sink, and returned to the
bedroom to lie down. He did not otherwise assist or monitor Sarah. Jared
claimed that when Sarah exited the bathroom, she told him she had fallen and
hit her head but felt fine. She then fell asleep. Jared said he was awakened by
Sarah screaming.
A-0877-19 6 Jared told Howell that he typically left Sarah alone in the bathroom when
bathing. Jared could not explain how Sarah sustained her new injuries but
claimed she was clumsy and often fell and hurt herself. He confirmed that he
and Sylvia were Sarah's primary caretakers.
On November 28, 2017, Howell met with Sarah's teacher, who denied
Sarah was clumsy. The teacher stated that Sarah had not complained of any pain
from being punched in the stomach.
By December 4, 2017, Sarah was removed from the respirator and was
interviewed three days later. Sarah said her mother told her that she was in the
hospital because she fell but Sarah did not remember falling. Sarah reported
that Jared hit her on the shoulder and leg, shook her with both hands, and told
her: "Stop talking, no talking, go to bed." Sarah was unable to demonstrate how
Jared had shaken her because she was unable to use her injured left arm.
Sarah underwent a forensic interview the next day. Sarah reported that
Anita told her what to say about the incident.
Dr. Medina's Report and Testimony
Without objection, Dr. Medina, who is Board-certified in pediatrics and
child abuse pediatrics, was qualified as an expert in those fields. He reviewed
A-0877-19 7 Sarah's medical records and issued a report diagnosing her with abusive head
trauma, abdominal trauma, and physical child abuse.
To render a diagnosis of abusive head trauma, Dr. Medina reviewed the
child's medical findings and prior history, caretaker statements about the
incident, and the timing of any neurological symptoms. Sarah exhibited
neurological symptoms of brain tissue injury. Dr. Medina found no other
historical or medical explanation for Sarah's traumatic brain injury and
diagnosed abusive head trauma.
A CT scan of Sarah's head performed immediately after her arrival at the
hospital showed new subdural bleeding on the left and right sides of Sarah's
head. It was caused by Sarah's brain moving within her head. The CT scan also
revealed blood inside Sarah's brain in areas where no blood should be present,
which was indicative of injury. The CT scan did not show any soft tissue injuries
to Sarah's scalp or a skull fracture.
An MRI of Sarah's head performed two days later showed the region of
Sarah's brain that controlled her left side had either been injured or affected by
a seizure. Dr. Medina ruled out a seizure because a seizure would not have
damaged her motor neurons.
A-0877-19 8 A Magnetic Resonance Angiogram (MRA) was normal and showed no
vascular abnormality that would explain the bleeding in Sarah's brain. Blood
studies, including a coagulation profile, were also normal except for elevated
liver enzymes detected on admission. Her elevated liver enzymes quickly fell
back to normal levels, which supported a finding of trauma as this would not
have occurred if caused by disease or infection.
Dr. Medina noted that a physical exam revealed bruising on her thigh that
was consistent with Jared hitting her legs. A CT scan of Sarah's abdomen
revealed a healing rib fracture and possible spleen abnormality. Radiologists
concluded that Sarah's spleen had likely sustained a small laceration. A skeletal
study also revealed the rib fracture.
Dr. Medina opined that injury to Sarah's internal organs would cause pain,
make her irritable, and could cause vomiting and loss of appetite. Sarah did not
exhibit any of these symptoms after being punched by classmates or when Sylvia
left for work on November 17th. Consequently, Dr. Medina opined that Sarah
sustained the injuries after Sylvia left for work.
An ophthalmologist consultation was ordered. The ophthalmologist's
report was admitted into evidence. He found Sarah had multi-layer retinal
hemorrhages in the rear and periphery of her eyes. This pattern of the
A-0877-19 9 hemorrhages results from vitreoretinal traction caused by sudden acceleration
and deceleration of the head with hyperextension and hyperflexion. In children
the occurrence of this injury requires repetitive, significant force.
In contrast, large subarachnoid bleeding in adults is known as Terson's
syndrome, resulting in vitreous bleeding with a characteristic pattern. The
ophthalmologist ruled out Terson's syndrome as a cause and determined the
hemorrhage pattern was typical of abusive head trauma.
Dr. Medina opined that a shaking event, involving rapid onset, repetitive
hyperextension and hyperflexion, would cause the brain to move inside the skull
and strike the sides of the skull, causing contusions like Sarah had sustained.
The same mechanism would cause the axonal injury depicted on the MRI,
leading to inflammation or permanent brain injury. Picking a child up and
throwing her on a bed could also cause the brain to move within the skull and
result in these injuries.
Dr. Medina further opined that if Sarah's injuries had been caused by a
fall in the bathtub, she would have immediately shown symptoms and been in
pain. She would not have appeared normal or said she was fine. Dr. Medina
stated that Jared's description of Sarah after her reported fall was "inconsistent
with a severe injury to her head happening in the bathtub." On the other hand,
A-0877-19 10 Sarah's description of the event—being hit on the shoulder and leg, shaken with
two hands, and being told to be quiet and go to sleep—would explain all of her
injuries. A finding that her injuries were accidental would require the caretakers
to give a plausible explanation, which they had not. Even without Sarah's
statements, Dr. Medina would still have diagnosed physical child abuse, based
on Sarah's condition and the absence of a plausible explanation from Jared and
Sylvia.
Dr. Kairys's Report and Testimony
Without objection, Dr. Kairys, who is Board-certified in pediatrics and
child abuse, was qualified as an expert in those fields. He testified that Sarah
had bilateral acute subdural bleeding, a brain contusion, and blood deep in the
ventricles of her brain. She also had bilateral multi-layered retinal hemorrhages
and elevated liver and pancreas enzymes. Sarah also had an old fracture of her
ninth rib.
Dr. Kairys opined that accidental causation of those injuries would have
required an event equivalent to a motor vehicle accident, a fall out of a second
story window, or a fall down a flight of stairs. Sarah's injuries required an
impact of significant force or a combination of shaking and impact. This would
A-0877-19 11 not necessarily cause external injury but would cause bilateral bleeding in the
brain from the brain vibrating back and forth within the skull.
Dr. Kairys further opined that while a short fall in a bathtub could produce
a small skull fracture and bleeding just beneath the skull, it would not cause
Sarah's injuries because it would not create the necessary vibration of the brain
that would result in bleeding on both sides of the brain and deep ventricular
bleeding. Dr. Kairys noted that bleeding in the head is extremely painful; the
injuries Sarah suffered would have caused her immediate severe pain.
Dr. Kairys opined that Sarah's brain and retinal injuries resulted from the
same incident. Her multi-layered retinal hemorrhages that extended to the
periphery of the eye were "shaking impact injuries" that occur with child abuse
or major accidents. He explained that the back-and-forth motion of the brain
with rotation causes shearing, which produces the hemorrhages. Going by the
history that Sarah was fine until the evening of November 17 meant that
something happened to her that evening.
Sarah's elevated liver and pancreatic enzymes were a sign of
inflammation. Because levels fell rapidly after Sarah arrived at the hospital,
whatever caused the inflammation probably occurred within twenty-four hours
A-0877-19 12 of her arrival. Dr. Kairys opined that a preschool child punching Sarah in the
stomach area would not generate enough force to injure the pancreas.
Dr. Kairys noted that the location of Sarah's rib fracture was not
commonly associated with a fall and was most likely caused by compression.
The fracture would have been painful, so if it happened at school, there should
be some history of her reporting it to the teacher.
Based on "the history, the physical exam, the various radiological studies
and the laboratory tests," Dr. Kairys concluded that the most plausible
explanation for Sarah's injuries was "major inflicted trauma" "and all (save for
the rib fracture) occurred the day of hospitalization."
Dr. Scheller's Testimony
Dr. Scheller, was qualified as an expert in pediatrics, radiology, and
pediatric radiology. He conceded that he had always been retained as a defense
expert.
Dr. Scheller confirmed the CT scan and chest x-ray revealed Sarah's rib
fracture "happened weeks to months prior to November 17th" but she did not
have a skull fracture. The CT scan and MRI showed swelling on the right side
of Sarah's scalp, evidencing trauma to the right scalp. He noted that the CT scan
and MRI of Sarah's neck showed no injuries.
A-0877-19 13 In his initial report, Dr. Scheller acknowledged that multi-layered retinal
hemorrhages were associated with child abuse. In the addendum to his report,
he confirmed Sarah had "multiple, multi-layered" retinal hemorrhages. This did
not alter his conclusion that Sarah had not suffered eye trauma. He opined that
the hemorrhages were a sign of Terson's syndrome. Yet on cross-examination,
he acknowledged there were no other medical conditions that Sarah was
diagnosed with that could have caused the retinal hemorrhages.
The CT scan further revealed that Sarah had "a small amount of" "fresh"
blood in the ventricles of her brain on November 17th. Dr. Scheller also noted
a "slight amount of blood at the top right, in between the brain, and inside of the
scalp." Her brain otherwise looked "fine."
Dr. Scheller further acknowledged that the bleeding in Sarah's ventricles
and between the brain and skull were "synonymous with a traumatic head injury"
from either accidental or intentional impact trauma. He agreed that Sarah would
have been in distress and "whining" from the injuries she sustained, and she
would have informed Jared about it.
Dr. Levenbrown's Testimony
Dr. Levenbrown was qualified as an expert in pediatrics and pediatric
radiology. Dr. Levenbrown limited his report to Sarah's abdominal and chest
A-0877-19 14 injuries, which did not address her head injuries. He confirmed Sarah had a non-
displaced fracture of her left ninth rib that occurred approximately five days
before her hospitalization. Dr. Levenbrown opined that the elevated pancreatic
and liver enzymes were due to minor trauma to the liver and pancreas that could
have been caused by a fall onto the abdomen or being punched there.
During cross-examination, Dr. Levenbrown acknowledged "there was
subdural bleeding" and it was "very, very clear" that retinal hemorrhages "are a
marker for shaking" and other trauma "or the presence of blood in the brain from
other reasons . . . ."
The Law Guardian's Position
The Law Guardian joined in the Division's argument that the Division
proved that Jared and Anita abused and neglected Sarah.
The Judge's Findings and Conclusions
At the conclusion of the hearing, Judge Katz made detailed credibility
findings. He found Investigator Howell credible. "She presented as a neutral
caring caseworker. She answered all questions, she was not impeached, and she
acknowledged certain facts that indicate her balance."
The judge found Dr. Medina "highly credible," noting that "[s]he fully
explained her role and . . . medical concepts in clear and understandable terms,"
A-0877-19 15 "was careful and deliberative as a witness," and provided detailed explanations
of the medical findings. The judge found Dr. Kairys "highly credible" and a
"most impressive witness."
Although he found Dr. Scheller "highly credentialed," the judge "had
difficulty with some of his testimony." He noted that Dr. Scheller "limited his
analysis of this child to traditional shaking." The judge stated Dr. Scheller
seemed "almost to minimize the amount of . . . blood" in areas of Sarah's brain
"where there should be no blood at all," by describing it as "a teaspoon," a "small
amount," or a "little bit of bleeding." The judge noted that the bleeding in
Sarah's brain meant she "suffered horribly" and her "left side was impaired for
weeks from blood in the brain."
The judge found Dr. Scheller's discussion of the frequency of retinal
hemorrhaging during childbirth to be irrelevant. He also found that Dr.
Scheller's opinion that Sarah's elevated enzyme were due to self-infliction or a
prior school event "made no sense, because the enzyme levels came down almost
immediately after the impact," indicating that "the trauma was acute.'' The judge
rejected Dr. Scheller's opinion that Sarah "fell in the tub, hit her head and then
her abdomen against a raised portion of the tub . . . ." "In any event, regardless
A-0877-19 16 of how this happened, it's clear, also according to Dr. Scheller, that [Sarah]
would have been in extreme pain and whining."
As to Dr. Levenbrown, the judge stated he could not credit his report and
found some of his testimony "extremely speculative." During cross-
examination, he "gave an opinion without looking at the entirety of the injuries"
despite recognizing that it was "important to look at the whole picture."
Regarding the elevated liver and pancreas enzymes levels dropping
rapidly, the judge noted Dr. Levenbrown "couldn't answer if it happened
recently" or whether the child would have been in pain. Dr. Levenbrown's
inability to discuss the effect this would have had on Sarah caused the judge "to
question his analysis."
The judge's findings as to how Sarah's injuries occurred, the mechanism
of those injuries, and the nature and extent of her injuries, were largely based on
the testimony and reports of Investigator Howell, Dr. Medina, and Dr. Scheller,
which he found credible and were supported by the imaging studies, test results,
investigation results, patient history, and statements. As part of his
comprehensive findings, the judge recounted the most significant evidence. We
need not repeat it here.
A-0877-19 17 The judge emphasized that the location of the bruising, the bleeding on
both sides of Sarah's brain, the brain contusion, the blood in the ventricles deep
inside the brain, the left side motor decrease, the healing burn, and the multi-
layered retinal hemorrhaging to the rear and periphery of the eyes,
"demonstrated abusive head trauma in the context of a shaking event, that is an
acceleration or a deceleration," according to Dr. Medina. Consistent with this
causation opinion, Sarah manifested "loss of consciousness, altered mental
status, and vomiting . . . ." As indicated by Dr. Medina, "children do not suffer
these symptoms normally without abuse." "A fall in a tub would not cause
bilateral and deep brain injury." The judge noted that all the experts agreed that
no one would get out of the tub with these injuries and be fine.
As to the abdominal injury, the judge noted it would have been manifested
by vomiting and not eating, neither of which occurred leading up to November
17. On the contrary, Sarah "was fine after the schoolyard incident."
The judge found Jared was taking care of Sarah and was her guardian at
the time of the incident within the meaning of Title Nine. Jared did not dispute
that finding.
Ultimately, Judge Katz found, by a preponderance of the credible
evidence, that Jared abused or neglected Sarah under N.J.S.A. 9:6-8.21(c)(1)
A-0877-19 18 and (4)(b) and entered a June 25, 2018 order reflecting his findings. A
September 13, 2019 order terminated the litigation. This appeal followed .
Jared raises the following points for our consideration:
I. THE EXPERTS FOR DCPP AND THE LAW GUARDIAN PROVIDED OPINIONS THAT EXTENDED BEYOND THEIR EXPERTISE, LACKED A SCIENTIFIC FOUNDATION, AND CONTRADICTED EACH OTHER.
A. Dr. Kairys's Conclusions Were Not Grounded in Science, the Record or Even His Own Expertise.
B. Dr. Medina's Apparent Expertise was Betrayed by Her Unfamiliarity with [Sarah's] Medical History and Her Selective Use of Medical Evidence.
II. THE COURT'S FAILURE TO RECONCILE THE CONFLICTING OPINIONS OF DR. SCHELLER AND DR. KAIRYS LEAVES UNRESOLVED THE QUESTION OF HOW [SARAH] ACQUIRED HER INJURIES AND WHAT WAS RESPONSIBLE FOR THE INJURIES.
"Abuse and neglect cases 'are fact-sensitive.'" N.J. Div. of Child Prot. &
Permanency v. E.D.-O., 223 N.J. 166, 180 (2015) (quoting N.J. Div. of Youth
& Family Servs. v. T.B., 207 N.J. 294, 309 (2011)). "The Division bears the
burden of proof at a fact-finding hearing and must prove . . . harm . . . by a
preponderance of the evidence." N.J. Div. of Youth & Fam. Servs. v. A.L., 213
A-0877-19 19 N.J. 1, 22 (2013) (citing N.J.S.A. 9:6-8.46(b)). The Division must sustain that
burden "through the admission of 'competent, material and relevant evidence.'"
N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting
N.J.S.A. 9:6-8.46(b)). In determining whether a child was abused and neglected,
"the trial court must base its decision on the totality of the circumstances." N.J.
Div. of Youth & Fam. Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011).
To prevail in a Title Nine proceeding, DCPP must show by a
preponderance of the competent, material, and relevant evidence that the parent
or guardian abused or neglected the affected child. N.J.S.A. 9:6-8.46(b). There
must be "proof of actual harm or, in the absence of actual harm," through
"competent evidence adequate to establish [the child was] presently in imminent
danger of being impaired physically, mentally or emotionally." N.J. Div. of
Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 158 (App. Div. 2014)
(citation omitted).
Our review of a trial court's finding of abuse or neglect is guided by well -
established principles. "[W]e accord substantial deference and defer to the
factual findings of the Family Part if they are sustained by 'adequate, substantial,
and credible evidence' in the record." N.J. Div. of Child Prot. & Permanency v.
N.B., 452 N.J. Super. 513, 521 (App. Div. 2017) (quoting N.J. Div. of Youth &
A-0877-19 20 Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014)). We ordinarily accord such
deference because of the Family Part's "special jurisdiction and expertise," N.J.
Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting
Cesare v. Cesare, 154 N.J. 394, 413 (1998)), and its "opportunity to make first-
hand credibility judgments about the witnesses who appear on the stand . . .
[and] has a 'feel of the case' that can never be realized by a review of the cold
record," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)
(quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
"Nevertheless, if the trial court's conclusions are 'clearly mistaken or wide
of the mark[,]' an appellate court must intervene to ensure the fairness of the
proceeding." N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210, 227 (2010)
(alteration in original) (quoting E.P., 196 N.J. at 104). We owe no deference to
the trial court's legal conclusions, which we review de novo. N.J. Div. of Youth
& Fam. Servs. v. A.B., 231 N.J. 354, 369 (2017) (citation omitted).
Applying that limited scope of review, we affirm the trial judge's finding
of abuse and neglect, substantially for the sound reasons expressed in Judge
Katz's oral opinion. We add the following comments.
Title Nine governs abuse and neglect proceedings. N.J.S.A. 9:6-8.21(c)
provides in pertinent part:
A-0877-19 21 "Abused or neglected child" means a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; . . . (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court . . . .
"Parent or guardian" includes "any person[] who has assumed
responsibility for the care, custody, or control of a child or upon whom there is
a legal duty for such care." N.J.S.A. 9:6-8.21(a). By any measure, Jared had
assumed care and control of Sarah at the time of the incident.
Title Nine's "primary concern is the protection of the children, not the
culpability of parental conduct." G.S. v. N.J. Div. of Youth & Family Servs.,
157 N.J. 161, 177 (1999) (citing State v. Demarest, 252 N.J. Super. 323, 330
A-0877-19 22 (App. Div. 1991)). Accord A.L., 213 N.J. at 18. "The focus in abuse and neglect
matters . . . is on promptly protecting a child who has suffered harm or faces
imminent danger." A.L., 213 N.J. at 18 (citing N.J.S.A. 9:6-8.21(c)(4)).
"[P]revious statements made by the child relating to any allegations of
abuse or neglect" are admissible, and not considered hearsay, as long as they are
not the sole basis for the court's finding of abuse or neglect. N.J.S.A. 9:6 -
8.46(a)(4); accord N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17,
33 (2011). A Family Part's determination that evidence is admissible "is
reviewed under an abuse of discretion standard. N.J. Div. of Child Prot. &
Permanency v. A.D., 455 N.J. Super. 144, 156 (App. Div. 2018) (quoting N.J.
Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 571 (App. Div.
2010)). Judge Katz admitted Sarah's out-of-court statements, finding them
sufficiently corroborated. The record supports that finding. We discern no
abuse of discretion.
Proof of injuries sustained by the child that are "of such a nature as would
ordinarily not . . . exist except by reason of the acts or omissions of the parent
or guardian" is prima facie evidence of abuse or neglect. N.J.S.A. 9:6-
8.46(a)(2). The Division proved that the injuries Sarah sustained were not
accidental and were caused by Jared.
A-0877-19 23 Jared attacks the testimony of the Division's and Law Guardian's experts.
The factfinder is free to "accept some of the expert's testimony and reject the
rest." State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004); see also In re
Civ. Commitment of R.F., 217 N.J. 152, 174-77 (2014) (same). Moreover, "a
factfinder is not bound to accept the testimony of an expert witness, even if it is
unrebutted by any other evidence." Torres v. Scripps, Inc., 342 N.J. Super. 419,
431 (App. Div. 2001) (citing Johnson v. Am. Homestead Mortg. Corp., 306 N.J.
Super. 429, 438 (App. Div. 1997)).
The factfinder determines the weight accorded to expert testimony. N.J.
Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 74 (App. Div. 2010).
"[T]he weight to which an expert opinion is entitled can rise no higher than the
facts and reasoning upon which that opinion is predicated." State v. Jenewicz,
193 N.J. 440, 466 (2008) (quoting Johnson v. Salem Corp., 97 N.J. 78, 91
(1984)). "This is particularly true when, as here, the factfinder is confronted
with directly divergent opinions expressed by the experts." M.J.K., 369 N.J.
Super. at 549.
Applying our deferential standard of review, we discern no basis to disturb
the credibility determinations made by Judge Katz and the weight he accorded
to the testimony and reports of the expert witnesses. The judge did not abuse
A-0877-19 24 his discretion in rejecting or giving less weight to the opinions expressed by
Jared's experts. The record amply supports Judge Katz's credibility findings and
conclusions that flowed from those findings.
Jared contends that Dr. Kairys's theory of causation cannot be reconciled
with the evidence. In addition, Jared claims that Dr. Kairys failed to account
for Sarah's use of the prescription medicine Griseofulvin 2 and its possible side
effects. Jared notes that Sarah experienced symptoms consistent with the
hazards associated with the use of Griseofulvin, such as peripheral neuropathy,
elevated liver enzymes, vomiting, mental impairment, and lupus-like symptoms.
As for Dr. Medina, Jared claims that she was unfamiliar with Sarah's
medical history and used selective medical and scientific evidence to support
her conclusions. Jared similarly argues that Dr. Medina failed to consider that
Sarah's use of Griseofulvin. In addition, Jared argues that Dr. Medina used
Sarah's unreliable interview to support her theory of causation.
Jared further argues that the opinions of Dr. Kairys and Dr. Medina
"extended beyond their expertise, lacked a scientific foundation and
2 Griseofulvin is an anti-fungal medication. In his report, Dr. Kairys noted that Sarah had been taking Griseofulvin for a tinea capitis infection that was causing "some hair loss" on her scalp. A-0877-19 25 contradicted each other." Jared's arguments lack sufficient merit to warrant
extended discussion. R. 2:11-3(e)(1)(E).
"[A] witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise."
N.J.R.E. 702. Pertinent to this appeal, in order for expert testimony to be
admissible," the field testified to must be at a state of the art that an expert's
testimony could be sufficiently reliable" and "the witness must have sufficient
expertise to offer the intended testimony." State v. Townsend, 186 N.J. 473,
491 (2006) (quoting State v. Torres, 183 N.J. 554, 567-68 (2005)). "Courts can
accept scientific theories as reliable when they are based on a sound
methodology that involves 'data and information of the type reasonably relied
on by experts in the scientific field.'" A.L., 213 N.J. at 28 (quoting State v.
Moore, 188 N.J. 182, 206 (2006)).
An expert's opinion must be "based on 'facts or data derived from (1) the
expert's personal observations, or (2) evidence admitted at the trial, or (3) data
relied upon by the expert which is not necessarily admissible in evidence, but
which is the type of data normally relied upon by experts in forming opinions
on the same subject.'" Townsend, 186 N.J. at 494 (quoting Biunno, N.J. Rules
of Evidence 896 (2005)). Here, the Division investigation report, hospital
A-0877-19 26 records, ophthalmic consultation report, and imaging studies relied upon by Drs.
Medina and Kairys were admitted in evidence.
Dr. Kairys was qualified as an expert in pediatrics and child abuse,
allowing him to testify about his review of Sarah's records. The court found Dr.
Kairys "highly credible." Contrary to Jared's argument, Dr, Kairys was familiar
with Sarah's medical history.
As for Dr. Medina, the court qualified her as an expert in pediatrics and
child abuse pediatrics, and she testified extensively about her review of Sarah's
medical records. The court also found her "highly credible." Notably, Jared's
experts did not opine that Griseofulvin's possible side effects caused Sarah's
symptoms or injuries.
Despite Jared's attempts to question the legitimacy of Dr. Medina's
designation as a Child Abuse Specialist, it is a Board-certified specialty
recognized by the American Board of Pediatrics that requires initial
certification, testing every seven years, and ongoing training. Dr. Kairys also
holds this certification.
As for the use of Sarah's forensic interview, Jared offered it into evidence,
not the Division. Sarah's statements that Jared grabbed her leg and shoulder and
A-0877-19 27 shook her were sufficiently corroborated and were supported by the expert
testimony and medical findings.
Regarding Jared's claim that the judge failed to resolve material conflicts
in the opinions of Dr. Kairys and Dr. Medina, there is substantial, credible
evidence to support the trial court's conclusion that Jared abused or neglected
Sarah within the meaning of N.J.S.A. 9:6-8.21(c)(1) and (4)(b). Drs. Kairys,
Medina, and Scheller consistently dated the brain injuries as occurring on
November 17, 2017. Examination, imaging studies, and testing revealed she
suffered brain tissue and nerve cell damage, subdural bleeding, multi-layer
retinal hemorrhages, trauma to her spleen, liver, and pancreas, and bruising to
her thigh. Both Dr. Medina and Dr. Kairys determined that these injuries were
non-accidental and occurred when Jared was acting as Sarah's sole caretaker on
the evening of her hospitalization.
In addition, after Sarah awoke from her medically induced coma, she told
the Division that she did not remember falling in the bathtub but recalled instead
Jared hitting her, shaking her, and telling her to stop talking. Jared's recollection
of events was inconsistent with the injuries Sarah experienced, and he provided
no plausible non-accidental explanation for Sarah's injuries.
A-0877-19 28 Moreover, whether Sarah's injuries stemmed from "shaking with impact"
or just shaking does not refute the fact that the abusive head trauma was caused
by Jared while he was Sarah's sole caretaker the night of her hospitalization.
Although Dr. Medina found no evidence of bruising or sub-tissue swelling to
indicate an impact against a solid surface, she explained that children can sustain
head injuries without external physical evidence by impacting "a bed, pillow,
[or] something harder that's not solid."
In addition, Jared takes issue with the court's assessment of Dr. Scheller's
testimony. Jared emphasizes that Dr. Kairys has extensive experience in
pediatrics but none in neurology—unlike Dr. Scheller, who has been a pediatric
neurologist for decades. We defer to the judge's detailed credibility finding as
he heard and saw Dr. Scheller's testimony and thus "ha[d] the opportunity to
make first-hand credibility judgments" about him. E.P., 196 N.J. at 104.
In sum, we discern no basis to disturb the determination that Jared abused
and neglected Sarah within the meaning of N.J.S.A. 9:6-8.21(c)(1) and 4(b).
Our careful review of the record reveals that Judge Katz's factual findings and
credibility determinations are amply supported by substantial, competent,
credible evidence in the record, and his conclusions are consonant with
applicable legal standards.
A-0877-19 29 Affirmed.
A-0877-19 30