DCPP VS. J.A., S.M., J.B., AND A.W., IN THE MATTER OF S.J.B., J.A. AND N.A. (FN-07-0201-18, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0877-19

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

J.A.,

Defendant-Appellant,

and

S.M., J.B., and A.W.,

Defendants,
_________________________

IN THE MATTER OF S.J.B.,
J.A. and N.A., minors.
_________________________

Argued September 29, 2021 – Decided October 26, 2021

Before Judges Whipple, Geiger and Susswein.
 On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-0201-18.

Deric Wu, Assistant Deputy Public Defender, argued
the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Deric Wu, of counsel and on the
briefs).

Mary L. Harpster, Deputy Attorney General, argued the
cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Mary L.
Harpster, on the brief).

Nancy P. Fratz, Assistant Deputy Public Defender,
argued the cause for minors (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Nancy P.
Fratz, of counsel and on the brief).

PER CURIAM

Defendant J.A. (Jared) 1 appeals from a Family Part's June 25, 2018 order

finding that he abused and neglected S.J.B. (Sarah) within the meaning of

N.J.S.A. 9:6-8.21(c)(1) and (4)(b), and a September 13, 2019 order terminating

the litigation. We affirm.

1
We use initials and pseudonyms to protect the privacy of the children and
parties and to preserve the confidentiality of these proceedings. R. 1:38-
3(d)(12).
A-0877-19
2
 S.M. (Sylvia) is the biological mother of Sarah, who was born on April

18, 2013, and J.A. (Joseph), who was born on August 6, 2017. J.B. (Jack) is

Sarah's father, and Jared is Joseph's father. A.W. (Anita) is Jared's mother, and

Joseph's paternal grandmother. At the time of the incident, Jared was Sylvia's

boyfriend and lived with her, as did Anita.

Judge David B. Katz conducted a fact-finding hearing on five non-

consecutive days in June 2018, at which plaintiff Division of Child Protection

and Permanency (Division) presented the testimony of Division Investigator

Danielle Howell and Gladibel Medina, M.D. The Law Guardian presented the

testimony of Steven Kairys, M.D. Jared presented the testimony of Joseph

Scheller, M.D. and Jack Levenbrown, M.D. Defendants did not testify at the

hearing. The Division did not intend to move Sarah's forensic interview into

evidence, Jared offered it in evidence. The parties consented to its admission.

Sarah's hospital records, imaging studies, an ophthalmologist's consult

report, the Division's Investigation Summary, and all of the experts' reports and

curriculum vitae were admitted into evidence.

Because the finding of abuse and neglect hinges upon the testimony of the

witnesses, Sarah's forensic interview, and the reports admitted into evidence, we

summarize them.

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3
 Investigator Howell's Testimony and Reports

On November 18, 2017, the Division received a referral of alleged

physical abuse of then four-year-old Sarah, who was being transported by

ambulance to the hospital with suspected head trauma. The police reported

Sarah had been home with her mother's boyfriend, Jared, who stated she hit her

head in the bathtub.

That same day, Division Special Protective Response worker Edith

Quainoo responded to the hospital but was unable to speak with Sarah, who was

in a medically induced coma. Quainoo spoke to Jared at the hospital. Jared

indicated that he returned home at about 4:00 p.m. on November 17, at which

time Sylvia left for work. Jared fed his two sons and Sarah. Anita arrived home

at about 6:00 p.m. and took Jared's two sons into her bedroom. Sarah went into

Sylvia and Jared's bedroom to lie down.

According to Jared, Sarah vomited on her pillow and then went into the

bathroom because she was nauseous. When she returned to the bedroom, Jared

told her to return to the bathroom to clean herself up. Jared said he took some

items to Sarah and then returned to the bedroom to lie down. When Sarah

returned to the bedroom, she told him she fell in the bathtub and hit her head,

but she was neither crying nor complaining of pain. They both fell asleep.

A-0877-19
4
 Jared was later awoken by Sarah screaming. Her arms were stiff, and she

was not speaking. Anita entered the bedroom and called for an ambulance.

Jared then called Sylvia. Jared told Quainoo he had not heard or seen Sarah fall

in the bathtub and he did not know if Sarah suffered any other recent injuries.

Quainoo also interviewed Anita, who stated she woke up at about 9:00

p.m. when Jared entered her bedroom hysterical. Anita went to see Sarah, whose

hands were "pulled out" and legs were "frozen." Thinking that Sarah was having

a seizure, Anita called 911.

Quainoo then interviewed Sylvia, who spent the previous day at home

with her children before leaving for work at 4:00 p.m. When Jared called her at

about 8:00 p.m., she could hear Sarah screaming. During a video call set up by

Jared, Sarah appeared stiff and nonresponsive. The ambulance was there by the

time Sylvia arrived home.

Sylvia indicated Sarah had behaved normally during the past week and

she had no concerns about her. Sarah reported that she had been punched in the

stomach by two classmates earlier that week but did not complain of any pain.

On November 20, 2017, Investigator Howell went to the hospital, but

Sarah was still in a coma. She observed bruising on Sarah's knee, arm, and

A-0877-19
5
behind Sarah's ear, a healing burn on Sarah's back, and an older burn on her face.

A skeletal survey revealed a healing rib fracture.

Howell spoke with Sylvia at the hospital. Sylvia confirmed that Sarah

required assistance turning on the bath water, and when Sylvia was not home,

Jared turned on the water for Sarah and checked on her during her bath. Sylvia

denied that Sarah had ever previously fallen in the bathtub. Sylvia said she had

not observed any bruises on Sarah's body, and she had not complained of any

pain or injury earlier that week. Sarah also did not report any pain from being

punched in the stomach by two classmates. Sylvia also said Sarah had displayed

no changes in behavior or unusual demeanor during the past week. Sylvia could

not explain Sarah's injuries.

On November 21, 2017, Howell spoke with Jared about the July 17th

incident. Jared reiterated that Sarah had spit up on her pillow and went into the

bathroom to clean up. Jared stated he saw additional vomit on the bathroom

floor and toilet, placed clean clothing for Sarah on the sink, and returned to the

bedroom to lie down. He did not otherwise assist or monitor Sarah. Jared

claimed that when Sarah exited the bathroom, she told him she had fallen and

hit her head but felt fine. She then fell asleep. Jared said he was awakened by

Sarah screaming.

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6
 Jared told Howell that he typically left Sarah alone in the bathroom when

bathing. Jared could not explain how Sarah sustained her new injuries but

claimed she was clumsy and often fell and hurt herself. He confirmed that he

and Sylvia were Sarah's primary caretakers.

On November 28, 2017, Howell met with Sarah's teacher, who denied

Sarah was clumsy. The teacher stated that Sarah had not complained of any pain

from being punched in the stomach.

By December 4, 2017, Sarah was removed from the respirator and was

interviewed three days later. Sarah said her mother told her that she was in the

hospital because she fell but Sarah did not remember falling. Sarah reported

that Jared hit her on the shoulder and leg, shook her with both hands, and told

her: "Stop talking, no talking, go to bed." Sarah was unable to demonstrate how

Jared had shaken her because she was unable to use her injured left arm.

Sarah underwent a forensic interview the next day. Sarah reported that

Anita told her what to say about the incident.

Dr. Medina's Report and Testimony

Without objection, Dr. Medina, who is Board-certified in pediatrics and

child abuse pediatrics, was qualified as an expert in those fields. He reviewed

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7
Sarah's medical records and issued a report diagnosing her with abusive head

trauma, abdominal trauma, and physical child abuse.

To render a diagnosis of abusive head trauma, Dr. Medina reviewed the

child's medical findings and prior history, caretaker statements about the

incident, and the timing of any neurological symptoms. Sarah exhibited

neurological symptoms of brain tissue injury. Dr. Medina found no other

historical or medical explanation for Sarah's traumatic brain injury and

diagnosed abusive head trauma.

A CT scan of Sarah's head performed immediately after her arrival at the

hospital showed new subdural bleeding on the left and right sides of Sarah's

head. It was caused by Sarah's brain moving within her head. The CT scan also

revealed blood inside Sarah's brain in areas where no blood should be present,

which was indicative of injury. The CT scan did not show any soft tissue injuries

to Sarah's scalp or a skull fracture.

An MRI of Sarah's head performed two days later showed the region of

Sarah's brain that controlled her left side had either been injured or affected by

a seizure. Dr. Medina ruled out a seizure because a seizure would not have

damaged her motor neurons.

A-0877-19
8
 A Magnetic Resonance Angiogram (MRA) was normal and showed no

vascular abnormality that would explain the bleeding in Sarah's brain. Blood

studies, including a coagulation profile, were also normal except for elevated

liver enzymes detected on admission. Her elevated liver enzymes quickly fell

back to normal levels, which supported a finding of trauma as this would not

have occurred if caused by disease or infection.

Dr. Medina noted that a physical exam revealed bruising on her thigh that

was consistent with Jared hitting her legs. A CT scan of Sarah's abdomen

revealed a healing rib fracture and possible spleen abnormality. Radiologists

concluded that Sarah's spleen had likely sustained a small laceration. A skeletal

study also revealed the rib fracture.

Dr. Medina opined that injury to Sarah's internal organs would cause pain,

make her irritable, and could cause vomiting and loss of appetite. Sarah did not

exhibit any of these symptoms after being punched by classmates or when Sylvia

left for work on November 17th. Consequently, Dr. Medina opined that Sarah

sustained the injuries after Sylvia left for work.

An ophthalmologist consultation was ordered. The ophthalmologist's

report was admitted into evidence. He found Sarah had multi-layer retinal

hemorrhages in the rear and periphery of her eyes. This pattern of the

A-0877-19
9
hemorrhages results from vitreoretinal traction caused by sudden acceleration

and deceleration of the head with hyperextension and hyperflexion. In children

the occurrence of this injury requires repetitive, significant force.

In contrast, large subarachnoid bleeding in adults is known as Terson's

syndrome, resulting in vitreous bleeding with a characteristic pattern. The

ophthalmologist ruled out Terson's syndrome as a cause and determined the

hemorrhage pattern was typical of abusive head trauma.

Dr. Medina opined that a shaking event, involving rapid onset, repetitive

hyperextension and hyperflexion, would cause the brain to move inside the skull

and strike the sides of the skull, causing contusions like Sarah had sustained.

The same mechanism would cause the axonal injury depicted on the MRI,

leading to inflammation or permanent brain injury. Picking a child up and

throwing her on a bed could also cause the brain to move within the skull and

result in these injuries.

Dr. Medina further opined that if Sarah's injuries had been caused by a

fall in the bathtub, she would have immediately shown symptoms and been in

pain. She would not have appeared normal or said she was fine. Dr. Medina

stated that Jared's description of Sarah after her reported fall was "inconsistent

with a severe injury to her head happening in the bathtub." On the other hand,

A-0877-19
10
Sarah's description of the event—being hit on the shoulder and leg, shaken with

two hands, and being told to be quiet and go to sleep—would explain all of her

injuries. A finding that her injuries were accidental would require the caretakers

to give a plausible explanation, which they had not. Even without Sarah's

statements, Dr. Medina would still have diagnosed physical child abuse, based

on Sarah's condition and the absence of a plausible explanation from Jared and

Sylvia.

Dr. Kairys's Report and Testimony

Without objection, Dr. Kairys, who is Board-certified in pediatrics and

child abuse, was qualified as an expert in those fields. He testified that Sarah

had bilateral acute subdural bleeding, a brain contusion, and blood deep in the

ventricles of her brain. She also had bilateral multi-layered retinal hemorrhages

and elevated liver and pancreas enzymes. Sarah also had an old fracture of her

ninth rib.

Dr. Kairys opined that accidental causation of those injuries would have

required an event equivalent to a motor vehicle accident, a fall out of a second

story window, or a fall down a flight of stairs. Sarah's injuries required an

impact of significant force or a combination of shaking and impact. This would

A-0877-19
11
not necessarily cause external injury but would cause bilateral bleeding in the

brain from the brain vibrating back and forth within the skull.

Dr. Kairys further opined that while a short fall in a bathtub could produce

a small skull fracture and bleeding just beneath the skull, it would not cause

Sarah's injuries because it would not create the necessary vibration of the brain

that would result in bleeding on both sides of the brain and deep ventricular

bleeding. Dr. Kairys noted that bleeding in the head is extremely painful; the

injuries Sarah suffered would have caused her immediate severe pain.

Dr. Kairys opined that Sarah's brain and retinal injuries resulted from the

same incident. Her multi-layered retinal hemorrhages that extended to the

periphery of the eye were "shaking impact injuries" that occur with child abuse

or major accidents. He explained that the back-and-forth motion of the brain

with rotation causes shearing, which produces the hemorrhages. Going by the

history that Sarah was fine until the evening of November 17 meant that

something happened to her that evening.

Sarah's elevated liver and pancreatic enzymes were a sign of

inflammation. Because levels fell rapidly after Sarah arrived at the hospital,

whatever caused the inflammation probably occurred within twenty-four hours

A-0877-19
12
of her arrival. Dr. Kairys opined that a preschool child punching Sarah in the

stomach area would not generate enough force to injure the pancreas.

Dr. Kairys noted that the location of Sarah's rib fracture was not

commonly associated with a fall and was most likely caused by compression.

The fracture would have been painful, so if it happened at school, there should

be some history of her reporting it to the teacher.

Based on "the history, the physical exam, the various radiological studies

and the laboratory tests," Dr. Kairys concluded that the most plausible

explanation for Sarah's injuries was "major inflicted trauma" "and all (save for

the rib fracture) occurred the day of hospitalization."

Dr. Scheller's Testimony

Dr. Scheller, was qualified as an expert in pediatrics, radiology, and

pediatric radiology. He conceded that he had always been retained as a defense

expert.

Dr. Scheller confirmed the CT scan and chest x-ray revealed Sarah's rib

fracture "happened weeks to months prior to November 17th" but she did not

have a skull fracture. The CT scan and MRI showed swelling on the right side

of Sarah's scalp, evidencing trauma to the right scalp. He noted that the CT scan

and MRI of Sarah's neck showed no injuries.

A-0877-19
13
 In his initial report, Dr. Scheller acknowledged that multi-layered retinal

hemorrhages were associated with child abuse. In the addendum to his report,

he confirmed Sarah had "multiple, multi-layered" retinal hemorrhages. This did

not alter his conclusion that Sarah had not suffered eye trauma. He opined that

the hemorrhages were a sign of Terson's syndrome. Yet on cross-examination,

he acknowledged there were no other medical conditions that Sarah was

diagnosed with that could have caused the retinal hemorrhages.

The CT scan further revealed that Sarah had "a small amount of" "fresh"

blood in the ventricles of her brain on November 17th. Dr. Scheller also noted

a "slight amount of blood at the top right, in between the brain, and inside of the

scalp." Her brain otherwise looked "fine."

Dr. Scheller further acknowledged that the bleeding in Sarah's ventricles

and between the brain and skull were "synonymous with a traumatic head injury"

from either accidental or intentional impact trauma. He agreed that Sarah would

have been in distress and "whining" from the injuries she sustained, and she

would have informed Jared about it.

Dr. Levenbrown's Testimony

Dr. Levenbrown was qualified as an expert in pediatrics and pediatric

radiology. Dr. Levenbrown limited his report to Sarah's abdominal and chest

A-0877-19
14
injuries, which did not address her head injuries. He confirmed Sarah had a non-

displaced fracture of her left ninth rib that occurred approximately five days

before her hospitalization. Dr. Levenbrown opined that the elevated pancreatic

and liver enzymes were due to minor trauma to the liver and pancreas that could

have been caused by a fall onto the abdomen or being punched there.

During cross-examination, Dr. Levenbrown acknowledged "there was

subdural bleeding" and it was "very, very clear" that retinal hemorrhages "are a

marker for shaking" and other trauma "or the presence of blood in the brain from

other reasons . . . ."

The Law Guardian's Position

The Law Guardian joined in the Division's argument that the Division

proved that Jared and Anita abused and neglected Sarah.

The Judge's Findings and Conclusions

At the conclusion of the hearing, Judge Katz made detailed credibility

findings. He found Investigator Howell credible. "She presented as a neutral

caring caseworker. She answered all questions, she was not impeached, and she

acknowledged certain facts that indicate her balance."

The judge found Dr. Medina "highly credible," noting that "[s]he fully

explained her role and . . . medical concepts in clear and understandable terms,"

A-0877-19
15
"was careful and deliberative as a witness," and provided detailed explanations

of the medical findings. The judge found Dr. Kairys "highly credible" and a

"most impressive witness."

Although he found Dr. Scheller "highly credentialed," the judge "had

difficulty with some of his testimony." He noted that Dr. Scheller "limited his

analysis of this child to traditional shaking." The judge stated Dr. Scheller

seemed "almost to minimize the amount of . . . blood" in areas of Sarah's brain

"where there should be no blood at all," by describing it as "a teaspoon," a "small

amount," or a "little bit of bleeding." The judge noted that the bleeding in

Sarah's brain meant she "suffered horribly" and her "left side was impaired for

weeks from blood in the brain."

The judge found Dr. Scheller's discussion of the frequency of retinal

hemorrhaging during childbirth to be irrelevant. He also found that Dr.

Scheller's opinion that Sarah's elevated enzyme were due to self-infliction or a

prior school event "made no sense, because the enzyme levels came down almost

immediately after the impact," indicating that "the trauma was acute.'' The judge

rejected Dr. Scheller's opinion that Sarah "fell in the tub, hit her head and then

her abdomen against a raised portion of the tub . . . ." "In any event, regardless

A-0877-19
16
of how this happened, it's clear, also according to Dr. Scheller, that [Sarah]

would have been in extreme pain and whining."

As to Dr. Levenbrown, the judge stated he could not credit his report and

found some of his testimony "extremely speculative." During cross-

examination, he "gave an opinion without looking at the entirety of the injuries"

despite recognizing that it was "important to look at the whole picture."

Regarding the elevated liver and pancreas enzymes levels dropping

rapidly, the judge noted Dr. Levenbrown "couldn't answer if it happened

recently" or whether the child would have been in pain. Dr. Levenbrown's

inability to discuss the effect this would have had on Sarah caused the judge "to

question his analysis."

The judge's findings as to how Sarah's injuries occurred, the mechanism

of those injuries, and the nature and extent of her injuries, were largely based on

the testimony and reports of Investigator Howell, Dr. Medina, and Dr. Scheller,

which he found credible and were supported by the imaging studies, test results,

investigation results, patient history, and statements. As part of his

comprehensive findings, the judge recounted the most significant evidence. We

need not repeat it here.

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17
 The judge emphasized that the location of the bruising, the bleeding on

both sides of Sarah's brain, the brain contusion, the blood in the ventricles deep

inside the brain, the left side motor decrease, the healing burn, and the multi-

layered retinal hemorrhaging to the rear and periphery of the eyes,

"demonstrated abusive head trauma in the context of a shaking event, that is an

acceleration or a deceleration," according to Dr. Medina. Consistent with this

causation opinion, Sarah manifested "loss of consciousness, altered mental

status, and vomiting . . . ." As indicated by Dr. Medina, "children do not suffer

these symptoms normally without abuse." "A fall in a tub would not cause

bilateral and deep brain injury." The judge noted that all the experts agreed that

no one would get out of the tub with these injuries and be fine.

As to the abdominal injury, the judge noted it would have been manifested

by vomiting and not eating, neither of which occurred leading up to November

17. On the contrary, Sarah "was fine after the schoolyard incident."

The judge found Jared was taking care of Sarah and was her guardian at

the time of the incident within the meaning of Title Nine. Jared did not dispute

that finding.

Ultimately, Judge Katz found, by a preponderance of the credible

evidence, that Jared abused or neglected Sarah under N.J.S.A. 9:6-8.21(c)(1)

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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

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19
N.J. 1, 22 (2013) (citing N.J.S.A. 9:6-8.46(b)). The Division must sustain that

burden "through the admission of 'competent, material and relevant evidence.'"

N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting

N.J.S.A. 9:6-8.46(b)). In determining whether a child was abused and neglected,

"the trial court must base its decision on the totality of the circumstances." N.J.

Div. of Youth & Fam. Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011).

To prevail in a Title Nine proceeding, DCPP must show by a

preponderance of the competent, material, and relevant evidence that the parent

or guardian abused or neglected the affected child. N.J.S.A. 9:6-8.46(b). There

must be "proof of actual harm or, in the absence of actual harm," through

"competent evidence adequate to establish [the child was] presently in imminent

danger of being impaired physically, mentally or emotionally." N.J. Div. of

Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 158 (App. Div. 2014)

(citation omitted).

Our review of a trial court's finding of abuse or neglect is guided by well -

established principles. "[W]e accord substantial deference and defer to the

factual findings of the Family Part if they are sustained by 'adequate, substantial,

and credible evidence' in the record." N.J. Div. of Child Prot. & Permanency v.

N.B., 452 N.J. Super. 513, 521 (App. Div. 2017) (quoting N.J. Div. of Youth &

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20
Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014)). We ordinarily accord such

deference because of the Family Part's "special jurisdiction and expertise," N.J.

Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting

Cesare v. Cesare, 154 N.J. 394, 413 (1998)), and its "opportunity to make first-

hand credibility judgments about the witnesses who appear on the stand . . .

[and] has a 'feel of the case' that can never be realized by a review of the cold

record," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)

(quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).

"Nevertheless, if the trial court's conclusions are 'clearly mistaken or wide

of the mark[,]' an appellate court must intervene to ensure the fairness of the

proceeding." N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210, 227 (2010)

(alteration in original) (quoting E.P., 196 N.J. at 104). We owe no deference to

the trial court's legal conclusions, which we review de novo. N.J. Div. of Youth

& Fam. Servs. v. A.B., 231 N.J. 354, 369 (2017) (citation omitted).

Applying that limited scope of review, we affirm the trial judge's finding

of abuse and neglect, substantially for the sound reasons expressed in Judge

Katz's oral opinion. We add the following comments.

Title Nine governs abuse and neglect proceedings. N.J.S.A. 9:6-8.21(c)

provides in pertinent part:

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 "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

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22
(App. Div. 1991)). Accord A.L., 213 N.J. at 18. "The focus in abuse and neglect

matters . . . is on promptly protecting a child who has suffered harm or faces

imminent danger." A.L., 213 N.J. at 18 (citing N.J.S.A. 9:6-8.21(c)(4)).

"[P]revious statements made by the child relating to any allegations of

abuse or neglect" are admissible, and not considered hearsay, as long as they are

not the sole basis for the court's finding of abuse or neglect. N.J.S.A. 9:6 -

8.46(a)(4); accord N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17,

33 (2011). A Family Part's determination that evidence is admissible "is

reviewed under an abuse of discretion standard. N.J. Div. of Child Prot. &

Permanency v. A.D., 455 N.J. Super. 144, 156 (App. Div. 2018) (quoting N.J.

Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 571 (App. Div.

2010)). Judge Katz admitted Sarah's out-of-court statements, finding them

sufficiently corroborated. The record supports that finding. We discern no

abuse of discretion.

Proof of injuries sustained by the child that are "of such a nature as would

ordinarily not . . . exist except by reason of the acts or omissions of the parent

or guardian" is prima facie evidence of abuse or neglect. N.J.S.A. 9:6-

8.46(a)(2). The Division proved that the injuries Sarah sustained were not

accidental and were caused by Jared.

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 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

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his discretion in rejecting or giving less weight to the opinions expressed by

Jared's experts. The record amply supports Judge Katz's credibility findings and

conclusions that flowed from those findings.

Jared contends that Dr. Kairys's theory of causation cannot be reconciled

with the evidence. In addition, Jared claims that Dr. Kairys failed to account

for Sarah's use of the prescription medicine Griseofulvin 2 and its possible side

effects. Jared notes that Sarah experienced symptoms consistent with the

hazards associated with the use of Griseofulvin, such as peripheral neuropathy,

elevated liver enzymes, vomiting, mental impairment, and lupus-like symptoms.

As for Dr. Medina, Jared claims that she was unfamiliar with Sarah's

medical history and used selective medical and scientific evidence to support

her conclusions. Jared similarly argues that Dr. Medina failed to consider that

Sarah's use of Griseofulvin. In addition, Jared argues that Dr. Medina used

Sarah's unreliable interview to support her theory of causation.

Jared further argues that the opinions of Dr. Kairys and Dr. Medina

"extended beyond their expertise, lacked a scientific foundation and

2
Griseofulvin is an anti-fungal medication. In his report, Dr. Kairys noted that
Sarah had been taking Griseofulvin for a tinea capitis infection that was causing
"some hair loss" on her scalp.
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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

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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

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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.

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 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.

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Affirmed.

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