New Jersey Division of Child Protection & Permanency v. B.O., 438 N.J. Super. 373 (App. Div. 2014). Very few appeals are based on the argument that the finder of fact erred in assessing the credibility of witnesses. That is because “[o]ur trial system is built on the premise that fact-finders are able to view a witness, watch direct and cross-examination, and decide whether the witness was truthful when making those statements that are crucial to the decision-making,” as Judge Koblitz wrote in this opinion. Appellate courts, who review only a cold record and do not see the witnesses, are very reluctant to second-guess the factfinder. This opinion s a reminder that the principle of deference to a factfinder’s credibility determinations remains an important one.
In this child abuse/neglect case, defendants “Betty” and “Ted” are the parents of “Timmy,” who was seven weeks old at the time of the key events. The parents brought Timmy to the hospital, saying that after putting him into his bassinet for a nap in the morning, they found him in the afternoon not breathing, with blue lips, and with a blanket covering his face. A houseguest, “Jay,” told a different story of how Timmy came to be in that dreadful condition. Jay told the police that Betty and Ted had both taken oxycodone the night before Timmy was taken to the hospital, and that Betty had gone to sleep with Timmy in her bed. Ted slept in a different room and did not prevent Betty from sleeping in the same bed with Timmy. The next afternoon, Jay banged on Betty’s door to wake her up, and when he entered the bedroom, he saw Betty “roll off the baby.” Timmy’s “head was a dark bluish color and his lips were purple,” Jay said. Timmy was then taken to the hospital. He had sustained serious brain damage. The Division charged Betty and Ted with child abuse and neglect.
At the trial on those charges, Jay’s story changed. Among other things, he admitted that he had lied when he said that he had seen Betty roll off Timmy. It also developed that he had been arrested for burglary for stealing things from Betty and Ted’s apartment. A doctor who was a child abuse specialist with thirty years of experience, and who saw Timmy every day, testified that Jay’s original version of events was “much more consistent as a plausible cause” of the resulting neurological damage to Timmy. But the doctor conceded that without Jay’s statement, the doctor would have deemed the cause of Timmy’s respiratory failure to be unclear. He rejected, however, Betty’s story of having found Timmy with a blanket over his head because a child that young lacked the motor skills to pull a blanket over his head, and even if the blanket were over Timmy’s head, he would still have gotten enough air to avoid suffocation.
The Division found Betty and Ted guilty of abuse and neglect (Betty, for “co-sleeping” with Timmy while she was impaired by drugs, and Ted, for his failure to prevent what happened). They appealed, but the Appellate Division affirmed, noting that the Division’s burden was only to show abuse or neglect by a preponderance of the evidence, and to demonstrate that it was “more likely than not” that defendants had abused Timmy. There was no need to show intent, but only “grossly and wantonly negligent” conduct.
Betty and Ted argued that because the doctor’s opinion was based on Jay’s original story, and because Jay was so unworthy of belief, the Division had not proven its case. Judge Koblitz disagreed. Jay’s testimony might have been disbelieved by the trial judge. But defendants did not testify, and Judge Koblitz, noting that the trial judge had spelled out reasons why he believed Jay’s version, noted that Jay’s testimony was not so incredible that it had to be rejected. She also distinguished this abuse/neglect context from a criminal case. “When the welfare of a defenseless baby is at stake, and the burden of proof is more probable than not, different considerations apply. A neglectful parent is a serious danger to an infant. We must be particularly vigilant not to improperly interfere with the credibility determinations of the trial judge where the danger to an innocent party of an incorrect determination is so severe. We owe great deference to the assessment of the trial judge, particularly in light of the expertise of the family court.”
Betty and Ted also raised some evidentiary objections. Judge Koblitz rebuffed those arguments too. The standard of review was “abuse of discretion resulting in a manifest error or injustice.” The panel did not find that here.