                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0712-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANANCY,

          Plaintiff-Respondent,

v.

G.P.,

          Defendant-Appellant.


IN THE MATTER OF T.P.,

          a Minor.


                   Argued March 4, 2019 – Decided March 28, 2019

                   Before Judges Messano and Rose.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Passaic County,
                   Docket No. FN-16-0128-16.

                   Amy E. Vasquez, Designated Counsel, argued the cause
                   for appellant (Joseph E. Krakora, Public Defender,
                   attorney; Amy E. Vasquez, on the briefs).
            Peter D. Alvino, Deputy Attorney General, argued the
            cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Jason W. Rockwell, Assistant
            Attorney General, of counsel; Sara M. Gregory, Deputy
            Attorney General, on the brief).

            Danielle Ruiz, Designated Counsel, argued the cause
            for minor (Joseph E. Krakora, Public Defender, Law
            Guardian, attorney; Meredith A. Pollock, Deputy
            Public Defender, of counsel; Danielle Ruiz, on the
            brief).

PER CURIAM

      Defendant G.P. and his paramour, S.S., are the biological parents of one

child: T.P., born in January 2016.      In March 2016, the Division of Child

Protection and Permanency (Division) filed a complaint for custody, care and

supervision of T.P.

      This appeal has its genesis in defendant's stipulation to a finding of abuse

or neglect of T.P., following the conclusion of evidence presented by the

Division at a fact-finding hearing. Thereafter, a Family Part judge denied

defendant's applications to withdraw his stipulation. Defendant now appeals

from a June 28, 2016 stipulation order and an August 30, 2017 order terminating

litigation.1 He claims the judge failed to make the requisite findings of abuse or



1
  Following entry of defendant's stipulation, the Division amended its finding
against S.S. from substantiated to unfounded. S.S. is not part of this appeal.
                                                                          A-0712-17T4
                                        2
neglect; the factual basis provided for his stipulation did not establish a finding

of abuse or neglect; and the judge abused his discretion in denying defendant's

motion to withdraw his stipulation. We affirm.

                                        I.

      We derive the salient facts from the evidence presented by the Division at

the first day of the hearing on June 27, 2016. That evidence included the

testimony of three witnesses: Dr. Medesa Espana, who qualified as an expert in

pediatric emergency medicine and child abuse and neglect; Passaic County

Prosecutor's Office (PCPO) Detective Tabitha Thompson, who interviewed

defendant; and Division caseworker Carmela Pappa. The Division also entered

into evidence, without objection, several documents, including its summary

reports, photographs, and T.P.'s medical records. Defendant and S.S. appeared

at the hearing and were represented by separate counsel.

      The precipitating event that led to the Division's involvement with the

family occurred on March 4, 2016, when T.P. was admitted to the hospital with

"severe head trauma." T.P. presented with a visible "linear red mark" on his

upper eyelid and "a broken blood vessel on the surface of the globe of the eye."

T.P.'s treating physicians diagnosed the child with brain and retinal

hemorrhaging. They reported to the Division that both parents denied T.P. had


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                                         3
suffered a recent fall or trauma, and the retinal hemorrhaging indicated T.P. had

been "shaken." T.P. remained on life support for approximately one week until

he was able to breathe on his own.

      Dr. Espana detailed T.P.'s injuries and testified they were consistent with

Shaken Baby Syndrome (SBS), which results from "a forceful acceleration,

deceleration movement of the eyeball . . . in its socket." According to Dr.

Espana, "the presentation of the clinical manifestations indicate[d] that an injury

that occurred within a [twenty-four to forty-eight] hour time frame." Dr. Espana

specifically refuted any suggestion that T.P.'s injuries could have been caused

by a prenatal condition contracted from S.S., or trauma during childbirth. T.P.'s

lack of neck and spinal injuries had no impact on Dr. Espana's opinion that T.P.'s

brain and retinal hemorrhaging resulted from SBS.

      The Division introduced a segment of Thompson's video-recorded

interview of defendant. Among other things, defendant acknowledged T.P. was

in his sole care the day before the child was admitted to the hospital. Thompson

presented defendant with an anatomically-correct doll and asked him to

demonstrate the manner in which he played with his son. Defendant "toss[ed]"

the doll in the air with "his hands . . . removed from the [doll]'s body, and then

he grasped the baby again once the baby came down[.]" Thompson "would [not]


                                                                           A-0712-17T4
                                         4
describe [the toss] as gentle, . . . bear[ing] in mind the baby was [two-]and[-]a

[-]half months with an unsupported neck, and [as such Thompson could not]

. . . judge how gentle that toss would have been for a baby that age." Defendant

tossed the doll "just over his head . . . several times."

       Significantly, Thompson testified she filed her report and the PCPO was

preparing the matter for presentation to a grand jury. At the time of the hearing,

no formal complaints had yet been filed.

       Pappa's investigation confirmed no one else resided with the family.

T.P.'s maternal grandmother had cared for the child during the week of February

21, 2016, and T.P.'s great maternal grandmother had cared for him three days

prior to his hospitalization. Notably, Pappa was not asked whether she or anyone

on behalf of the Division told the parents criminal charges would not be pursued.

       At the conclusion of the Division's case, the judge determined Dr. Espana

was a "highly credible witness" and based on her testimony, T.P.'s injuries were

"not spontaneous injuries[,]" but rather "the result of severe trauma," occurring

twenty-four to forty-eight hours before they were inflicted. Citing N.J.S.A. 9:6-

8.46(a)(2),2 the judge determined the Division presented prima facie evidence


2
    Pursuant to N.J.S.A. 9:6-8.46(a)(2):



                                                                          A-0712-17T4
                                           5
that T.P. suffered non-accidental injuries, and defendant and S.S. were "the only

two [people] who had access to the child" during the twenty-four to forty-eight

hour period prior to infliction of his injuries. On that basis, the judge determined

the Division satisfied its burden of production, thereby shifting the burden of

proof to the parents to prove non-culpability. See In re D.T., 229 N.J. Super.

509, 517 (App. Div. 1988) (recognizing where, as here, there is limited access

to a child in a Title Nine litigation, especially an infant, the burden shifts to

those with access to prove non-culpability); see also N.J. Div. of Youth &

Family Servs. v. S.S., 275 N.J. Super. 173, 179 (App Div. 1994).

       The next day, in lieu of presenting evidence to demonstrate he was not

responsible for T.P.'s injuries, defendant submitted to the court a "voluntary

stipulation[/]admission to child abuse or neglect" form, which he signed after

reviewing the form with counsel. 3 After extensive colloquy with defendant to

ensure he understood the nature and import of his decision, defendant admitted




              [P]roof of injuries sustained by a child or of the
              condition of a child of such a nature as would ordinarily
              not be sustained or exist except by reason of the acts or
              omissions of the parent or guardian shall be prima facie
              evidence that a child of, or who is the responsibility of
              such person is an abused or neglected child[.]
3
    Defendant did not include the form in his appendix.
                                                                            A-0712-17T4
                                         6
he "engaged in acts that resulted in injuries to [his] son that constituted abus e or

neglect[.]" Following the testimony, the judge held defendant's conduct was

sufficient to sustain a finding of abuse or neglect under N.J.S.A. 9:6-

8.21(c)(4)(b). A stipulation order consistent with the judge's findings was

entered that day.

       In February 2017, defendant filed a motion to vacate the stipulation.

Because the motion failed to include an "affidavit[] made on personal

knowledge" pursuant to Rule 1:6-6, the judge denied the motion without

prejudice by order entered on March 6, 2017. In doing so, however, the judge

also found the record supported the factual basis for defendant's stipulation.

Noting the Division presented extensive testimony the day before defendant

entered his stipulation, the court recognized T.P.'s injuries were "fresh i n

everyone's mind" when G.P. "stipulate[d] that he handled the child in such a way

as he caused injury to the child."

       On March 24, 2017, defendant filed a second motion to vacate his

stipulation, which was supported by his affidavit. 4 During the permanency

hearing conducted that date, defense counsel informed the court that he had

"learned two days [prior] that [defendant] was indicted [by a] Passaic County


4
    Defendant did not include the affidavit in his appendix.
                                                                             A-0712-17T4
                                         7
[grand jury] for two counts of cruelty and neglect of children." Apparently, the

indictment had been returned in January 2017. Defense counsel told the judge

he would not have permitted defendant to stipulate to a finding of abuse or

neglect had he known defendant was facing criminal charges.            He further

claimed the Division misled defendant to believe criminal charges would not be

pursued. On the return date for the motion, the judge rejected defendant's

argument, citing Thompson's testimony, which clearly indicated the PCPO was

preparing the case for presentation to a grand jury. An order was entered on

July 14, 2017.

      On August 30, 2017, the judge denied defendant's ensuing motion for

reconsideration, recognizing defendant's motions to withdraw his stipulation

were motivated by his criminal charges, and his factual basis was legally

sufficient. The court also terminated the litigation, and the family was reunified.

This appeal followed.

                                        II.

      Our standard of review is well settled. We are bound by the family court's

factual findings if supported by sufficient credible evidence. N.J. Div. of Youth

& Family Servs. v. I.H.C., 415 N.J. Super. 551, 577-78 (App. Div. 2010). We

accord particular deference to the family court's fact-finding because of the


                                                                           A-0712-17T4
                                        8
court's "special expertise" in family matters, its "feel of the case," and its

opportunity to assess credibility based on witnesses' demeanor. N.J. Div. of

Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154

N.J. 394, 412-13 (1998).

      Pursuant to N.J.S.A. 9:6-8.21(c)(4), an abused or neglected child includes:

            [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 . . . 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[.]

      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 & Family Servs. v. P.W.R.,

205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). The statute requires a

court to consider harm or risk of harm to the child, as opposed to the intent of

the abuser, because "[t]he main goal of Title [Nine] is to protect children 'from

acts or conditions which threaten their welfare.'" G.S. v. Dep't of Human Servs.,

157 N.J. 161, 176 (1999) (citation omitted). Further, the phrase "minimum

degree of care," as used in N.J.S.A. 9:6-8.21(c)(4)(b), means conduct that is not

"grossly or wantonly negligent." Id. at 178. Therefore, to show a failure to


                                                                          A-0712-17T4
                                        9
exercise a minimum degree of care, negligence is not sufficient, but intentional

behavior is not essential. Id. at 178-79.

      In New Jersey Division of Youth & Family Services v. J.Y., 352 N.J.

Super. 245, 265-66 (App. Div. 2002), we held that a

            stipulation must be definite and certain in its terms and
            the consent of the parties to be bound by it must be
            clearly established. A factual stipulation in an abuse or
            neglect case must conform to these same standards.
            That is, the judge must be satisfied that there is a factual
            basis from which to conclude that defendants have
            committed some specific act or acts which constitute
            abuse or neglect as defined in N.J.S.A. 9:6-8.21(c) and
            that the parents willingly, knowingly and voluntarily
            agree that they have committed these acts.

            [(Citations omitted).]

      In considering defendant's contentions in light of the controlling authority,

we begin with a review of the process by which his stipulation was obtained. At

the onset of the June 28, 2016 proceeding, defendant advised the judge he

wished to enter a stipulation in lieu of presenting evidence to rebut the

presumption that T.P. only could have been injured while in his custody. At that

point in the proceedings, the Division had presented all of its evidence.

      Prior to accepting defendant's stipulation, the judge engaged in extensive

questioning and explanatory discussions with defendant, ensuring he understood

the nature of his decision to stipulate. At the conclusion of the judge's inquiry,
                                                                            A-0712-17T4
                                       10
defendant acknowledged he was "prepared to provide the [c]ourt with [a] factual

basis for [his] admission of abuse or neglect." Clearly, at that point in the

proceedings, defendant was well aware of the Division's complaint alleging

abuse or neglect for the injuries sustained by T.P. in March 2016, which led to

the child's hospitalization.   Having heard the testimony of Dr. Espana the

previous day, defendant was fully aware of the extent of T.P.'s injuries.

Defendant also had the opportunity to view his video-recorded statement and

hear Thompson's testimony concerning his incredible demonstration.

      Against that factual and procedural backdrop, defendant admitted he

"engaged in acts that resulted in injuries to [his] son that constituted abuse or

neglect." While defendant correctly notes the stipulation does not reference the

date, time, location or specific act, there can be no doubt that his stipulation

refers to the one incident referenced in his complaint, about which substantial

testimony was adduced at the hearing the previous day. Cf. State v. Mitchell,

126 N.J. 565, 581 (1992) (where the Court recognized when considering a guilty

plea in a criminal case, trial courts are permitted to consider the "surrounding

circumstances").

      Immediately after defendant acknowledged he abused or neglected T.P.,

the judge set forth his findings. In particular, the judge found defendant's


                                                                         A-0712-17T4
                                      11
stipulation was made knowingly, willingly, and voluntarily.                 The judge

elaborated:

                     [Defendant] understands that there is no promise
              that has been made to him in exchange for the
              stipulation that he [i]s offering[; t]hat he understands
              his right to a fact finding. In fact, he was here. We spent
              several hours going through the process of fact finding.
              The Division . . . put[] on witnesses[, whom c]ounsel
              cross-examined. In fact, we came to the close of the
              [Division]'s case where I announced my belief that
              there had been at least a prima facie showing sufficient
              to shift the burden to the parents to come forward with
              exculpatory evidence.

The judge ultimately determined defendant's stipulation acknowledged his

"conduct caused injury" which "constitutes abuse [or] neglect" under N.J.S.A.

9:6-8.21(c)(4)(b).

      Nonetheless, defendant claims J.Y. supports his argument that the judge

failed "to make any specific factual findings" and "relied instead on an

amorphous stipulation by the parties . . . ." 352 N.J. Super. at 263. This case,

however, is unlike J.Y., where the court in an abuse or neglect fact-finding

hearing relied on the attorneys' factual representations outside their personal

knowledge, heard from unsworn witnesses not subject to cross-examination, and

relied on vague and unsupported stipulations of the parties. Id. at 264. Instead,

having heard the sworn testimony of the Division's witnesses, who were subject


                                                                               A-0712-17T4
                                         12
to cross-examination the day before he entered his stipulation, defendant

admitted he "engaged in acts that resulted in injuries" to T.P. "that constituted

abuse or neglect" regarding one incident alleged in the Division's verified

complaint.

      Moreover, the record contains substantial credible evidence to support the

judge's finding of abuse or neglect. N.J. Div. of Youth & Family Servs. v. L.L.,

201 N.J. 210, 226 (2010); see also N.J. Div. of Child Prot. & Permanency v.

Y.A., 437 N.J. Super. 541, 546 (App. Div. 2014). Indeed, the judge summarized

the evidence at the conclusion of the Division's case-in-chief, finding Dr. Espana

was "highly credible." Accordingly, he found persuasive her testimony that

T.P.'s "injuries occurred, within [twenty-four] to [forty-eight] hours" of his

hospitalization. Further,

             The parents indicated to everyone with whom they
             spoke, whether it was the P[CPO], the Division worker,
             . . . the hospital personnel, Dr. Espana, that in that
             critical [twenty-four] to [forty-eight] . . . hour time
             period, the two of them were the only two who had
             access to the child, that provided care and supervision
             for the child. . . .

                   Here we have that limited number of caretakers,
             in a very defined period of time, who were the only
             caretakers for the child.

                    So, these injuries . . . are not spontaneous
             injuries. . . . These are injuries that [Dr. Espana]

                                                                          A-0712-17T4
                                       13
              believes are inflicted, or are non-accidental. That is to
              say, the result of severe trauma, acceleration and
              deceleration trauma.

      At the very least, this evidence supports a finding that defendant abused

or neglected T.P. by failing "to exercise a minimum degree of care . . . in

providing the child with proper supervision or guardianship, by unreasonably

inflicting or allowing to be inflicted harm" on the child.           N.J.S.A. 9:6-

8.21(c)(4)(b). We therefore see no reason to disturb the judge's finding that

defendant's conduct constituted a finding of abuse or neglect under N.J.S.A. 9:6-

8.21(c)(4)(b).

      We conclude the judge complied with the controlling decisional law that

addresses stipulations in Title Nine abuse or neglect proceedings. From our

review of the record, defendant established a factual basis for his stipulation,

and the surrounding circumstances underscored the judge's conclusion that

defendant committed an act which constituted abuse or neglect.

      We have considered defendant's remaining arguments and conclude they

lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-

3(e)(1)(E).

      Affirmed.




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                                        14
