RECORD IMPOUNDED

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.

NOT FOR PUBLICATION WITHOUT THE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.
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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)1appeals 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). 
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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 nonconsecutive 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. 
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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. 
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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 
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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. 
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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 
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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. 
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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 
10 A-0877-19

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, 
11 A-0877-19

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 
12 A-0877-19

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 
13 A-0877-19

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. 
14 A-0877-19

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 
15 A-0877-19

injuries, which did not address her head injuries. He confirmed Sarah had a nondisplaced 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," 
16 A-0877-19

"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 
17 A-0877-19

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 crossexamination, 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. 
18 A-0877-19

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 multilayered 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) 
19 A-0877-19

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 
20 A-0877-19

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 wellestablished 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 & 
21 A-0877-19

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 firsthand 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: 
22 A-0877-19

"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 
23 A-0877-19

(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. 
24 A-0877-19

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 
25 A-0877-19

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 Griseofulvin2and 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. 
26 A-0877-19

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 
27 A-0877-19

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 
28 A-0877-19

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. 
29 A-0877-19

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. 
30 A-0877-19

Affirmed.