holding there was no excessive corporal punishment where the child sustained bruises that did not require medical intervention
How later courts described this case
- holding there was no excessive corporal punishment where the child sustained bruises that did not require medical intervention
Written by the judges who cited it.
The opinion
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NOT FOR PUBLICATION WITHOUT THE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-3891-23
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.C.1 and J.A.,
Defendants,
and
E.G.,
Defendant-Appellant.
_________________________
IN THE MATTER OF J.C.,
a minor.
_________________________
Submitted January 6, 2026 – Decided January 15, 2026
Before Judges Gilson, Firko, and Perez Friscia.
1
We use initials and pseudonyms to protect the identity of the family. R. 1:38-
3(d)(12).
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FN-02-0097-23.
Jennifer N. Sellitti, Public Defender, attorney for
appellant (Laura M. Kalik, Designated Counsel, on the
briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent (Donna Arons, Assistant Attorney General,
of counsel; Julie B. Colonna, Deputy Attorney General,
on the brief).
Jennifer N. Sellitti, Public Defender, Law Guardian,
attorney for minor J.C. (Meredith A. Pollock, Deputy
Public Defender, of counsel; Daniel L. J. Adamek,
Assistant Deputy Public Defender, of counsel and on
the brief).
PER CURIAM
In this Title 9 action brought by the Division of Child Protection and
Permanency (Division), defendant E.G. (Earl), the former live-in boyfriend of
defendant S.C. (Sara), the biological mother of J.C. (Justine), appeals from the
Family Part's June 25, 2024 order. The judge found Earl had abused Justine in
violation of N.J.S.A. 9:6-8.21(c)(1) by slapping her on multiple occasions while
Justine was under his care and supervision. We affirm.
I.
The pertinent facts were developed in depth at a five-day fact-finding
hearing conducted over non-consecutive days in March, April, and May 2024.
A-3891-23
2
The Division presented expert testimony from medical doctors, who have
expertise in pediatrics and pediatric radiology, an advanced nurse practitioner,
and two fact witnesses. Earl testified and presented experts in pediatrics,
radiology, and pediatric radiology, and Sara as a fact witness. The Division did
not substantiate that Sara had committed abuse or neglect, and she is not
participating in this appeal. Defendant J.A. is Justine's biological father and is
deceased.
In 2023, Sara, Earl, and Justine were living together. On May 11, 2023,
Sara and Earl brought then eleven-month-old Justine to Holy Name Medical
Center (HNMC) in Teaneck because she had a fever and was experiencing
respiratory issues for several days. That day, HNMC staff notified the Division
regarding concerns about Justine. The Division's special response unit initiated
an investigation and assigned caseworker Arianex Peguero to meet with Dr.
Joanne Kambolis-Vratsanos, the attending emergency room physican at HNMC.
The Division also notified the Bergen County Prosecutor's Office (BCPO).
Dr. Kambolis-Vratsanos advised Peguero that she was "taken aback"
when she saw Justine's face in the examination room. The doctor reported Sara
was "very defensive and short" when questioned about what happened to
Justine's face and responded she was "not here for that" but was "here because
A-3891-23
3
[Justine] has a fever." Sara told Dr. Kambolis-Vratsanos that Earl watched
Justine earlier in the day while Sara was at work, and the infant had fallen "off
her crib." Earl left the hospital during the investigation.
Based on her observations, Dr. Kambolis-Vratsanos found Justine had
"multiple linear marks of erythema, bruising, and abrasions to bilateral cheeks"
and a faded bruise to her right thigh. The doctor opined the marks were "slap
marks to the cheeks and possibly a grab or pinch mark to the thigh." According
to Dr. Kambolis-Vratsanos, some of the marks looked like red "finger marks," a
"thumb" print, and "old bruising," which she stated were "textbook signs of
abuse." Justine was diagnosed with parainfluenza and discharged.
Peguero then interviewed Sara, who explained Earl watched Justine on the
day in question because her main caregiver, R.C., the maternal grandmother,
was unavailable. Sara explained that she worked full time Monday through
Friday and attended school Monday through Thursday in the evenings. On the
day in question, Sara had come home from work during her lunch break and
observed Justine was running a fever. Sara stated Earl told her that Justine had
tried standing in her crib, caught her foot in the crib's bumper, "fumbled," and
hit her face on the crib's railing. Sara expressed no concerns about Earl caring
A-3891-23
4
for Justine and stated she was learning how to stand and walk, and therefore,
"falls down a lot."
Peguero spoke to Detective Michael Venezia of the BCPO, who asked her
to bring Sara, Justine, and R.C. to the BCPO to be interviewed. Division
caseworker Halszka Oczkos observed the interviews. Sara told the detective
Earl left HNMC abruptly that day because he had a curfew due to his parole.
During R.C.'s interview, she denied that Justine frequently falls.
The following day, Detective Venezia interviewed Earl, who advised he
watched Justine on May 7, 2023. He stated, "you could tell [she] hit her face on
the crib" and that the left side of Justine's face was swollen and sensitive to the
touch. Earl explained Justine had fallen out of her crib and onto the hardwood
floor. He also acknowledged he was Justine's sole caretaker on May 11, 2023,
the day she was taken to HNMC. According to Earl, he heard Justine drop her
bottle, and after entering her room, saw her "standing in the crib and was trying
to balance herself but she can't." Earl claimed he saw Justine fall in the crib and
hit the right side of her face "on the corner" of the crib's railing and on a toy
inside the crib. He explained he left HNMC that day "to get gas." Earl denied
harming Justine in any way.
A-3891-23
5
On May 12, 2023, Justine was taken to Hackensack University Medical
Center (HUMC) accompanied by caseworker Oczkos due to concerns R.C.
raised regarding the infant's right leg. Oczkos observed Justine was not bearing
weight on the leg and appeared sensitive to the touch. Diagnostic tests were
ordered, and the results were negative for any trauma.
On May 15, 2023, advanced nurse practitioner MaryBeth Mariano from
the Audrey Hepburn Children's House (AHCH), a diagnostic and treatment
center for child abuse and neglect, evaluated Justine in R.C.'s presence. After
being provided with Justine's history from Sara and Earl, Mariano recommended
Justine undergo a skeletal survey. That day, the Division implemented a safety
protection plan requiring Sara and Earl to have supervised contact with Justine.
Sara moved in with her mother, R.C., who supervised Sara's contact with
Justine.
At a follow-up visit on May 22, 2023, Mariano concluded Justine's facial
bruises reflect slap marks "and are therefore consistent with non-accidental
injury" or child abuse.
On June 23, 2023, the Division filed a verified complaint for care and
supervision of Justine. The matter evolved into an order to show cause seeking
care and supervision of Justine under Title 9. On July 7, 2023, Mariano issued
A-3891-23
6
an addendum to her report based on the skeletal survey performed, which
indicated a healing fracture in Justine's right tibia. Mariano opined this kind of
fracture was a "non-specific finding" likely resulting from a "non-accidental
injury, such as a grab, or from [an] accidental injury, such as a fall."
On August 23, 2023, Earl was criminally charged with child
endangerment and simple assault. Sara was also charged with child
endangerment.2 A no contact order was issued between Sara and Justine as well
as between Earl, Sara, and Justine.
During the hearing, the Division called caseworkers Elsa Lozano and
Oczkos, Dr. Kambolis-Vratsanos, Mariano, and pediatric radiologist Dr. Aaron
Hodes as witnesses. Lozano testified that she was the initial Division worker
assigned to the case and authenticated the Division's records as its custodian of
records.
Oczkos testified about what Sara said during the BCPO interview. Earl
objected on hearsay grounds, but the judge overruled the objection , reasoning
that Sara is a named defendant in the matter despite no substantiation by the
Division, and she was available to rebut the testimony. Oczkos testified about
2
The status of the criminal charges against Earl and Sara is not contained in the
record.
A-3891-23
7
R.C.'s concerns about Justine's right leg, and R.C.'s belief the infant was in pain
when her leg was touched. Oczkos testified that her report confirmed Justine's
injuries were not accidental and were instead caused by abuse. Oczkos stated
she was aware of Earl's past criminal history and criminal charges related to this
case, but that did not influence the Division's decision to substantiate him.
Oczkos testified that Earl denied causing any injury to Justine.
The judge found Dr. Kambolis-Vratsanos qualified as an expert in the
fields of general pediatric and emergency medicine. Dr. Kambolis-Vratsanos
testified that Justine's marks on her face led the doctor "to believe that it was not
just one offense" of suspected child abuse. The doctor opined the scratches to
Justine's cheeks were "fresh" and likely occurred within hours and no longer
than a day before she went to HNMC. However, the doctor testified the mark
on Justine's nose was older because it was "scabbed over." Dr. Kambolis-
Vratsanos concluded that Justine's marks followed a pattern of linear marks with
"erythema and bruising."
Mariano was qualified as an expert in pediatric nursing and in conducting
medical examinations in child abuse and neglect cases. Mariano testified as to
the "red, linear bruising" on the left side of Justine's face and pointed out the
marks on her cheeks were different from those typically present when children
A-3891-23
8
fall due to "cruising or walking." Mariano explained that "just the presence of
bruising alone in [Justine's] young age, and the location of it on the face, is a
concern." Mariano further testified that "typically when children fall, especially
toddlers or babies," they usually hit the "bony prominence," "like the forehead"
or the "back of the head." Mariano explained it would be "very rare" that a child
would hit his or her cheeks. Mariano further stated Justine's linear bruising
indicated a "pattern injury," which "always raises concern for a non-accidental
event" because an "object" is unusually involved:
[i]n this case, it was concerning that [it]. . . reflected the
outline of a hand, because that's when you get slapped.
With a hand, the typical presentation of that is parallel
linear bruising with central sparing, meaning an area in
between those two parallel linear bruises that doesn't
have any bruising.
Mariano concluded the linear bruising was "non-accidental and from a
slap mark." As to whether Justine's parainfluenza could have caused redness to
her face, she agreed, but stated it could not have caused "bruising of the skin."
Instead, it would have showed "widespread redness," or look more like a "rash,"
which would probably be on "both cheeks," and "the same kind of color."
Mariano stated Justine herself could not have caused the injuries herself because
"she would [not] be capable of [in]flicting it with that speed and intensity," at
her young age, "because it takes a pretty intense slap to be able" to "cause that
A-3891-23
9
kind of a bruise." In Mariano's opinion, Justine was the victim of child abuse.
Regarding her addendum, Mariano testified that Justine's leg fracture was a
"non-specific injury," but "concerning still, because of the fact that she was [not]
walking."
On cross-examination, when asked whether the toy train could have
caused Justine's injuries, Mariano responded "you could lay down on top of the
train, but [it is] not going to result in that kind of bruising," or in "three patterns
like that." Instead, it would have caused a generalized bruise as opposed to
linear.
Dr. Hodes was qualified as an expert in medicine and pediatric radiology.
Based on the skeletal survey performed on Justine, he opined she had a "healing
right tibial fracture," and the injury most likely occurred within ten days of May
12, 2023. Dr. Hodes testified it was "possible" the fracture had a non-accidental
cause.
Dr. Levenbrown was qualified as an expert in pediatrics, radiology, and
pediatric radiology. He never examined Justine. Based on his review of the
records from the Division, BCPO, and AHCH, Dr. Levenbrown concluded
Justine's facial bruising could have been caused by the first fall out of the crib.
Dr. Levenbrown testified that Justine's falling onto the toy train could have
A-3891-23
10
caused "a bruise at the point of impact" and indicated the bruising was "non -
specific." He "really wonder[ed] if some of the redness on the face could have
been due to the viral infection that [Justine] had."
Dr. Levenbrown opined the May 7, 2023 fall out of the crib "may well
have been the cause of the hairline fracture in the upper right tibia," which could
have occurred "up to seven days prior to May 12[, 2023]." According to Dr.
Levenbrown, the height of the mattress "absolutely" provided an
"unquestionable" risk of falling out of the crib for Justine, who might have tried
to pull herself up. As to the abrasion on Justine's nose, Dr. Levenbrown
suggested it could have been caused by her long fingernails. Dr. Levenbrown
concluded Justine's fall out of the crib and resulting injuries were "accidental"
in nature.
Sara testified on Earl's behalf solely to authenticate a photograph of a toy
train that had been in Justine's crib on May 11, 2023.
Earl testified he witnessed Justine hit the right side of her face on the
corner of the crib's railing. According to Earl, she then slid and hit her face
again, but this time on the toy train. On cross-examination, Earl refused to
explain whether the toy train also inflicted injury to the left side of Justine's face.
Earl's counsel asked him whether he was invoking his Fifth Amendment right
A-3891-23
11
against incrimination. The judge noted "[t]his is not a criminal case" and
concluded Earl refused to answer whether Justine hit the left side of her face.
At the hearing's conclusion, the judge found Earl abused Justine within
the meaning of N.J.S.A. 9:6-8.21(c). In her comprehensive oral opinion, the
judge found the Division's witnesses credible, specifically noting Dr. Kambolis-
Vratsanos and Mariano's testimony as "very persuasive." In contrast, the judge
determined Earl was "clearly being evasive when confronted about the child's
injuries by refusing to answer counsel's questions," and that he "clearly lacked
veracity." The judge reasoned Earl had a "very poor demeanor . . . making faces,
mocking, and even laughing at the various witnesses [the Division] presented."
The judge was not persuaded by Dr. Levenbrown's testimony and
characterized it as "generalized and speculative," emphasizing he "did not
personally examine" Justine. This appeal followed.
Before us, Earl makes four primary arguments: (1) there was insufficient
evidence to support the judge's legal conclusion that he abused or neglected
Justine; (2) the judge improperly relied on incompetent hearsay; (3) the
proceedings violated his due process rights and principles of fundamental
fairness; and (4) the judge erred in drawing a negative inference from Earl's
A-3891-23
12
invocation of his Fifth Amendment right against self-incrimination. Justine's
Law Guardian joins with the Division in opposing this appeal.
II.
It is well settled that the scope of appellate review in this non-jury Title 9
setting is narrow. Appellate review of the Family Part's abuse or neglect finding
is limited. N.J. Div. of Youth & Fam. Servs. v. S.H., 439 N.J. Super. 137, 144
(App. Div. 2015) (citing Cesare v. Cesare, 154 N.J. 394, 411 (1998)). The court
must determine whether the decision "is supported by '"substantial and credible
evidence" in the record.'" N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J.
420, 448 (2012) (quoting N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J.
261, 279 (2007)).
"Because of the family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court factfinding."
Cesare, 154 N.J. at 413; see also N.J. Div. of Youth & Fam. Servs. v. M.C. III,
201 N.J. 328, 343 (2010). In that vein, appellate courts should "defer to the
factual findings of the trial court because it has the opportunity to make first -
hand credibility judgments about the witnesses who appear on the stand; it has
a 'feel of the case' that can never be realized by a review of the cold record."
N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting
A-3891-23
13
M.M., 189 N.J. at 293). A family court's decision should not be overturned
unless it went "so 'wide of the mark'" that reversal is needed "to correct an
injustice." F.M., 211 N.J. at 448 (quoting N.J. Div. of Youth & Fam. Servs. v.
G.L., 191 N.J. 596, 605 (2007)).
"Title 9 controls the adjudication of abuse and neglect cases." M.C. III,
201 N.J. at 343 (citing N.J.S.A. 9:6-8.21 to -8.73). "The focus of Title 9 'is not
the "culpability of parental conduct" but rather "the protection of children."'"
N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 368 (2017)
(quoting Dep't of Child. & Fams., Div. of Child Prot. & Permanency v. E.D.-O.,
223 N.J. 166, 178 (2015)).
Title 9 defines an "abused or neglected child" as one under the age of
eighteen whose:
physical, mental, or emotional condition has been
impaired or is in imminent danger of becoming
impaired as the result of the failure of [their] parent or
guardian . . . 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[.]
[N.J.S.A. 9:6-8.21(c)(4).]
A-3891-23
14
The Division "must prove that the child is 'abused or neglected' by a
preponderance of the evidence, and only 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)). Each case of alleged
abuse is "generally fact sensitive." Id. at 33. The proofs must be evaluated
based on the totality of the circumstances. Id. at 39.
Once, as here, abuse has been substantiated, the offender's conduct must
be logged in the child abuse registry as "the repository of all information
regarding child abuse or neglect that is accessible to the public pursuant to State
and federal law." N.J.S.A. 9:6-8.11. The agency has no discretion under the
statute to withhold or remove an offender's name from the registry once the
Division has substantiated the allegations of abuse. See, e.g., N.J. Dep't. of
Child & Fams. v. L.O., 460 N.J. Super. 1, 12 (App. Div. 2019).
Applying these well-established standards of review, we affirm the judge's
determination of Earl's abuse of Justine, substantially for the sound reasons set
forth in the judge's detailed oral decision. We comment here on Earl's specific
arguments, none of which have merit.
A-3891-23
15
III.
First, Earl argues that the judge's factual findings were not based upon a
preponderance of adequate, substantial, credible evidence as required by N.J.
Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552-53 (2014). As a
threshold matter, Earl contends the judge did not indicate which subsection of
N.J.S.A. 9:6-8.21(c), she applied to her findings, in violation of Rule 1:7-4(a).3
Accordingly, Earl contends the judgment inhibits meaningful appellate review,
and the decision should be reversed. Earl maintains there was insufficient
competent evidence to support the judge's conclusion that he physically abused
Justine within the meaning of N.J.S.A. 9:6-8.21(c)(1), which provides:
[an] [a]bused or neglected child means a child less than
[eighteen] 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[.]
[N.J.S.A. 9:6-8.21(c)(1) (emphasis added).]
3
"The court shall, by an opinion or memorandum decision, either written or
oral, find the facts and state its conclusions of law thereon in all actions tried
without a jury, on every motion decided by a written order that is appealable as
of right. . . ." R. 1:7-4(a).
A-3891-23
16
Further, Earl alleges that, because the Division's complaint states the
action was brought under N.J.S.A. 9:6-8.21(c)(4), the judge should have
required the Division to amend its complaint. Earl contends the failure to do so
resulted in his statutory and constitutional rights being violated, citing N.J. Div.
of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 401 (2009). N.J.S.A. 9:6-
8.21(c)(4) states:
[an] [a]bused or neglected child means a child less than
[eighteen] years of age whose parent or guardian, as
herein defined:
....
(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
[or her] parent or guardian, as herein defined, to
exercise a minimum degree of care . . . . (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[.]
[N.J.S.A. 9:6-8.21(c)(4) (emphasis added).]
Here, although the judge did not specify on the record what subsection of
Title 9 applied, she did designate the relevant subsection in her June 26, 2024
A-3891-23
17
order. N.J.S.A. 9:6-8.21(c)(1). In her oral opinion, the judge defined an abused
child as:
a child who has been abused or neglected by his or her
parent, guardian, or caregiver when that individual
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
emotional or bodily injury.
We therefore conclude the Division demonstrated, by a preponderance of
the evidence, that Earl abused Justine under both subsections of the statutes.
First, we analyze how the Division met its burden under N.J.S.A. 9:6-8.21(c)(1).
Earl contends the injuries Justine sustained were not physical injuries that
caused "serious or protracted impairment" of physical or emotional health, as
required by N.J.S.A. 9:6-8.21(c)(1). He argues there was no finding by the judge
under this subsection, and the evidence failed to show either the severity or long-
term effects of Justine's injuries. Earl maintains that an affirmance by this court
would result in a finding of abuse premised on "insignificant, temporary
markings on a child's face."
Further, Earl urges that the marks and bruises on Justine did not constitute
"serious or protracted impairment" because they did not warrant any medical
attention, "not even a band aid," and resolved quickly. Earl cites to Dr.
Kambolis-Vratsanos's testimony that they were "superficial injuries." Earl
A-3891-23
18
contends the doctor merely diagnosed Justine with a simple viral infection and
that her diagnosis of "suspected child abuse" was coded as a secondary diagnosis
in the medical records. Earl maintains the doctor's suspicions of child abuse
were "clearly not raised enough" because she did not prescribe additional testing
or diagnostic imaging during Justine's initial hospital visit. Instead, the only
treatment Dr. Kambolis-Vratsanos prescribed was over-the-counter medication
to lower Justine's fever and treat any pain, and the doctor's only follow-up
recommendation was for an evaluation by her pediatrician.
Earl also contends Mariano's testimony supports his position Justine did
not suffer "serious or protracted" impairment under N.J.S.A. 9:6-8.21(c)(1).
Earl claims Mariano described Justine during her May 15, 2023 evaluation as
"smiling and playful and in no acute distress." Further, at Justine's follow-up
evaluation, Mariano confirmed the bruising on Justine's face was resolved and
healed. Thus, Earl contends Justine's injuries do not constitute a sufficiently
egregious finding to warrant a per se finding of abuse or neglect under Title 9,
citing Dep't. of Child. & Fams., Div. of Youth & Family Servs. v. K.A., 413 N.J.
Super. 504, 511-12 (App. Div. 2010) (holding there was no excessive corporal
punishment where the child sustained bruises that did not require medical
intervention).
A-3891-23
19
Applying our limited scope of review and the standards to the matter
before us, we are satisfied there was competent, credible evidence in the record
to support the judge's finding that Earl abused or neglected Justine. Earl's
argument is further weakened by the fact that the Division only had to prove that
he caused a created a risk of protracted impairment of physical or emotional
health, even if the prior sustained injuries did not cause that in and of itself.
Moreover, Title 9 was implemented to safeguard children from further injury
and possible death. N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J.
165, 178 (2014). The judge found Justine "presented with linear bruising in
different stages of healing," which led the judge to properly conclude the child
had been "slapped on different occasions," and thus finding Earl caused physical
injury on more than one occasion. The excessive slapping of an infant can
impair the child's physical or mental health.
The judge emphasized Mariano's credible testimony, opining "the linear
pattern reflected the outline of a handprint, which is typical . . . of a high velocity
slap to the face." We are unpersuaded by Earl's argument that the above injuries
were not serious enough to cause disfigurement because the ongoing nature of
Justine's injuries were sufficient to cause a substantial risk of future injury future
as defined by Title 9.
A-3891-23
20
Equally unavailing is Earl's argument that Justine's marks fail to satisfy
the definition of an impairment of emotional health. Although Justine was
"smiling" during Mariano's evaluation, the record also shows Dr. Kambolis -
Vratsanos testified that a nurse requested she examine Justine at HNMC because
"the baby was crying inconsolably."
Second, Earl contends the Division failed to satisfy the second element of
N.J.S.A. 9:6-8.21(c)(1), which requires proof that a parent or guardian inflicted
upon a child "physical injury by other than accidental means." He urges the
record demonstrates that Justine's marks were the result of her accidentally
falling out of her crib onto a hardwood floor and another instance of falling onto
a toy train in her crib. Earl argues it was undisputed that Justine's crib mattress
was too high and posed a significant risk of injury, as Dr. Kambolis-Vratsanos
and Mariano testified that Justine was exposed to a fall risk.
Earl relies on Dr. Levenbrown's testimony opining there were multiple
explanations for the markings on Justine's face, and his testimony that her facial
bruising was consistent with the two reported falls.
However, the judge did not find Dr. Levenbrown credible. Importantly,
the judge highlighted that she gave more weight to Dr. Kambolis-Vratsanos's
and Mariano's testimony because they both personally examined Justine, and Dr.
A-3891-23
21
Levenbrown did not. Further, the judge relied on photographs in evidence
depicting the linear marks and bruises on Justine's face. The judge found the
Division's experts' opinions, that "dispelled the notion" the facial marks were
caused by a fall, "credible" as they explained Justine would have presented with
different injuries, such as hematomas to her head.
Further, the judge found Earl was not credible in asserting Justine's
injuries were accidental and rejected his testimony that her facial injuries were
caused by a toy train in her crib. In conclusion, there was substantial credible
evidence in the record to support the judge's finding that the Division met i ts
evidentiary burden under N.J.S.A. 9:6-8.21(1)(c)(2).
IV.
We reject Earl's argument that the judge relied on incompetent hearsay.
Earl argues the judge improperly relied on hearsay contained in the Division's
video interviews from the BCPO, which were not moved into evidence. Earl
also challenges the judge's reliance on embedded hearsay contained in the
Division's investigation summary and screening referral relating to Earl's and
Sara's interviews with the BCPO, as conveyed through Oczkos.
A-3891-23
22
Title 9 authorizes the admission of certain types of evidence at an abuse
or-neglect fact-finding hearing. For instance, N.J.S.A. 9:6-8.46(a)(3) provides,
in relevant part, that in a Title 9 hearing:
any writing, record or photograph, whether in the form
of an entry in a book or otherwise, made as a
memorandum or record of any condition, act,
transaction, occurrence or event relating to a child in an
abuse or neglect proceeding of any hospital or any other
public or private institution or agency shall be
admissible in evidence in proof of that condition, act,
transaction, occurrence or event, if the judge finds that
it was made in the regular course of the business of any
hospital or any other public or private institution or
agency, and that it was in the regular course of such
business to make it, at the time of the condition, act,
transaction, occurrence or event, or within a reasonable
time thereafter, shall be prima facie evidence of the
facts contained in such certification.
[N.J.S.A. 9:6-8.46(a)(3) (emphasis added).]
A writing or record satisfies the regular-course-of-business requirement
of N.J.S.A. 9:6-8.46(a)(3) if it satisfies the business-records exception, N.J.R.E.
803(c)(6), to the hearsay rule, N.J.R.E. 802. N.J. Div. of Child Prot. &
Permanency v. N.T., 445 N.J. Super. 478, 494 (App. Div. 2016). N.J.R.E.
803(c)(6) states:
A-3891-23
23
A statement contained in a writing or other record of
acts, events, conditions, and, subject to [N.J.R.E.] 808, 4
opinions or diagnoses, made at or near the time of
observation by a person with actual knowledge or from
information supplied by such a person, if the writing or
other record was made in the regular course of business
and it was the regular practice of that business to make
such writing or other record.
"This exception does not apply if the sources of information or the method,
purpose or circumstances of preparation indicate that it is not trustworthy." Ibid.
Here, the Division's investigative summary and screening referral were
admissible under N.J.S.A. 9:6-8.46(a)(3) because they are writings made as a
record of a condition or event relating to Justine. Moreover, the records were
made within a short time—the same day—of the events described therein. The
investigative summary and screening referral were also admissible under
N.J.R.E. 803(c)(6) because they were records made in the regular course of
business, and it was the regular practice of the Division to make such a writing
or other record. These records were trustworthy as Lozano testified to their
reliability. Further, Earl fails to specifically articulate how any embedded
hearsay was improperly relied upon by the judge. Nonetheless, various
4
"Expert opinion that is included in an admissible hearsay statement shall be
excluded if the declarant has not been produced as a witness unless the court
finds that the circumstances involved in rendering the opinion tend to establish
its trustworthiness. . . ." N.J.R.E. 808.
A-3891-23
24
statements within the documents fall under the following hearsay exceptions.
See N.J.R.E. 805.5
Within the screening referral, statements made by Dr. Kambolis-
Vratsanos to Sara and vice versa pertaining to Justine's care fall under hearsay
exception N.J.R.E. 803(c)(4), 6 as they were "made in good faith for purposes of,
and [were] reasonably pertinent to, [Justine's] medical diagnosis or treatment."
N.J.R.E. 803(c)(4)(A). The statements "described [Justine's] medical history;
past or present symptoms or sensations; their inception; or their general cause."
N.J.R.E. 803(c)(4)(B). Further, any statements made by Dr. Kambolis-
Vratsanos and Mariano that qualify as expert opinions were admissible under
N.J.R.E. 808, as "the declarant[s] [were] produced as . . . witness[es]."
Within the investigative summary, Earl's statements to Detective Venezia
during the first and second BCPO interviews are admissible under hearsay
exception N.J.R.E. 803(b)(1), a statement by party-opponent. N.J.R.E.
5
"Hearsay within hearsay is not excluded by the rule against hearsay if each
part of the combined statements conforms with an exception to the rule."
N.J.R.E. 805.
6
"A statement that: (A) is made in good faith for purposes of, and is reasonably
pertinent to, medical diagnosis or treatment; and (B) describes medical history;
past or present symptoms or sensations; their inception; or their general cause."
N.J.R.E 803(c)(4).
A-3891-23
25
803(b)(1) requires "the statement [to be] offered against a party-opponent" and
is "the party-opponent's own statement, made either in an individual or in a
representative capacity." Ibid. Applying N.J.R.E. 803(b)(1) here, the Division
offered the statements against its opponent—Earl—and they were made by him
in his individual capacity. We therefore conclude the judge did not abuse her
discretion in admitting the investigative summary and screening referral.
V.
Next, Earl argues the Division repeatedly failed to comply with discovery
orders and delayed access to its file in this matter. Earl asserts the Division was
ordered to provide his counsel with "all medical collateral and BCPO records
upon receipt" but delayed in doing so. Earl concedes most of the documents
were produced prior to trial, but his attorney was "stymied" when the parties
discovered in the midst of Mariano's testimony that there were additional
photographs and a report from AHCH, which had not been produced. As a
result, Earl maintains he was "severely prejudiced" in his ability to formulate
his defense and was denied due process and fundamental fairness. Citing
Matthews v. Elridge, 424 U.S. 319, 335 (1976), Earl argues he was denied a
meaningful opportunity to representation and to be heard. We disagree.
A-3891-23
26
Here, the judge clearly recognized the potential prejudice to Earl due to
the Division's delay in providing discovery. For instance, the judge rescheduled
the factfinding hearing twice and extended discovery deadlines three times to
afford Earl's counsel with sufficient time to review discovery and prepare for
the hearing. The record also shows Earl received the Division's investigative
summary six months prior to the commencement of trial and confirmed on
February 15, 2024, that the Division had produced all documents it was ordered
to supply. During the hearing, the judge even permitted Mariano to be recalled
as a witness after Earl's counsel obtained the photographs included in her report
not provided by the Division during discovery. We are satisfied Rule 5:12-37
was complied with.
VI.
Finally, Earl argues the judge incorrectly drew a negative inference from
his refusal to answer counsel's questions about the injuries to the left side of
Justine's face. "Pursuant to N.J.S.A. 2A:84A-19, and its equivalent, N.J.R.E.
7
"All relevant reports of [the Division] and other reports of experts or other
documents upon which the Division intends to rely shall be provided to the court
and to counsel for all parties on the first return date of the order to show cause,
if then available, or as soon as practicable after they become available. The
Division's case file shall also be available for inspection to the attorneys for the
parties without court order. All other discovery by any party shall be permitted
only by leave of court for good cause shown." R. 5:12-3.
A-3891-23
27
503, every person in New Jersey 'has a right to refuse to disclose in an action
. . . any matter that will incriminate him or expose him to penalty . . . .'" E.S. v.
H.A., 451 N.J. Super. 374, 384 (App. Div. 2017). The privilege includes the
right "not to answer official questions put to him [or her] in any . . . proceeding,
civil or criminal, formal or informal, where the answers might incriminate him
[or her] in future criminal proceedings." Allen v. Illinois, 478 U.S. 364, 368
(1986) (quoting Minnesota v. Murphy, 465 U.S. 420, 426 (1984)).
"When a party in a civil matter asserts the privilege against self-
incrimination, the fact-finder may draw an adverse inference of guilt." N.J. Div.
of Child Prot. & Permanency v. S.K., 456 N.J. Super. 245, 266 (App. Div. 2018)
(citing Attor v. Attor, 384 N.J. Super. 154, 165-66 (App. Div. 2006)). However,
such an adverse inference is improper in the context of a Title 9 abuse and
neglect fact-finding hearing, when there are related criminal charges pending
against the defendant, and the defendant refuses to testify. Id. at 271.
Here, the judge improvidently drew an impermissible negative inference
against Earl. However, we conclude the error was harmless given the
overwhelming evidence supporting the judge's findings that Earl abused and
neglected Justine.
A-3891-23
28
To the extent that we have not addressed them, all other arguments raised
by Earl lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3891-23
29