OF YOUTH AND FAMILY SERVICES v. M.D IN THE MATTER OF C.S.-D

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4155-10T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.D.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF C.S.-D.,

a minor.

___________________________________

March 21, 2012

 

Submitted March 7, 2012 - Decided

 

Before Judges Fuentes, J. N. Harris, and Haas.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-0010-09.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John W. Tolleris, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

This is an appeal from a Title Nine1 protective services proceeding. Defendant Martin D. appeals the November 20, 2008 order of the Family Part finding that he abused and neglected his two-month old biological daughter Chloe.2 Martin does not appeal the court's March 3, 2011 order terminating litigation. We affirm.

I.

Chloe was born in late May 2008. On July 25, 2008, the New Jersey Division of Youth and Family Services (the Division) received a referral from a New Brunswick hospital that Chloe was admitted to its pediatric intensive care unit for treatment of severe and unexplained injuries. Two days earlier, Chloe had been transported to an emergency room suffering cardiac arrest.

While in the pediatric intensive care unit Chloe experienced seizures and periods of not breathing. Once her condition stabilized, she was fully assessed. It was discovered that she suffered, among other things, multiple skull fractures; bilateral subdural hematoma, subarachnoid hemorrhaging, interventricular hemorrhaging; and multiple pre-retinal and intra-retinal hemorrhages.

The Division discovered that Chloe had been seen by a pediatrician on the morning of July 23, 2008, for a well visit. The physician reported from memory that the "child was doing fine and he had no concerns at that time. He did not observe any injuries to [Chloe] and no signs of distress."

Martin asserted that Chloe was not dropped or mistreated in any way. He attributed his daughter's injuries and medical condition to the immunization shot that she received on the morning of July 23, 2010, during the well visit.

On July 29, 2010, the Division filed this Title Nine action against Chloe's parents, after executing an emergency removal of Chloe and her two-year old sister a day earlier. A fact-finding hearing was conducted on November 20, 2010, at which time Martin who had just obtained a substitute attorney neither sought an adjournment nor objected to the matter proceeding. This assent stood in contrast to the request for an adjournment made by Chloe's mother Yvette.

The Division's investigator testified to the background of the Division's involvement, and produced the parties' statements and the child's hospital records. The evidence included Martin's admission that only he and Yvette cared for Chloe in the several days immediately prior to her being taken to the emergency room. No other witnesses testified at the hearing.

After considering the medical evidence together with the concession that Chloe's parents were her only caretakers, the Family Part made the following findings:

At this point the burden would shift to the defendants, since the child was in their exclusive custody and control, to explain how this accident happened since it's not one that ordinarily happens by other than non-accidental means as referenced in the hospital records and the nurse evaluation.

 

Neither defendant has come forward with any evidence to explain how the injury occurred. And, therefore, they have not rebutted the presumption that, in fact, it has occurred by other than non-accidental means while the child was in their exclusive custody and care. And, therefore, this Court would be able to enter a fact-finding today that these injuries did or were occasioned by them in a non-accidental way, and as such constitutes an act of abuse and/or neglect, giving this Court jurisdiction over the family, the defendants, and the children in question.

The court memorialized its conclusions in a November 20, 2008 order. After the litigation was terminated in March 2011, this appeal ensued.3

II.

Martin challenges the Family Part's finding of abuse and neglect as (1) unsupported by "competent admissible evidence" and (2) the product of ineffective assistance of counsel. We disagree with these arguments.

Findings and orders rendered by the Family Part are generally entitled to deference due to "'the family courts' special expertise in family matters.'" N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011) (quoting N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009)); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998). "[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand" and "it 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). Consequently, in reviewing a trial judge's factual findings and conclusions, an appellate court must "accord deference to the [trial] court's credibility determination . . . based upon . . . [the] opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 616 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007)).

The purpose of a Title Nine fact-finding hearing is to determine whether a child is an abused or neglected child pursuant to N.J.S.A. 9:6-8.44, not to assign guilt to a defendant. See N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 581 (App. Div. 2010). Under this statutory framework, "the safety of the child shall be of paramount concern." N.J.S.A. 9:6-8.28(a), -8.31(a), -8.32, -8.49. At the fact-finding hearing, the Division must prove, by a preponderance of the evidence, that there has been an act of abuse or neglect committed by the parent or other person charged with a legal duty of care for the minor child. N.J.S.A. 9:6-8.46. If the facts are sufficient to sustain the complaint, the court enters an order finding that the child is abused or neglected and sets forth the grounds for such a finding. See N.J.S.A. 9:6-8.50(a). The judge "must articulate, with particularity, the facts upon which a determination of abuse and neglect is made" and "clearly identify all documentary exhibits relied upon in reaching his or her decision." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). We conclude that the fact-finding judge made the necessary articulation.

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

[i]n any hearing under this act, . . . proof 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.

 

In explaining this provision of the statute, we have stated,

[t]he establishment of a prima facie case [of child abuse] does not require the court to find that the parents were culpable; it merely establishes a rebuttable presumption of parental culpability which the court may or may not accept based upon all the evidence in the record. Before relying upon its provisions, the court should consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support of it, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretaker's explanation in light of all the circumstances. In weighing the caretaker's explanation, the court may consider the inferences reasonably drawn from his or her actions upon learning of the injury. Certainly, the caretaker's failure to offer any explanation for the child's injuries, to treat the child, or to show how future injury could be prevented are factors to be considered by the court, for they reflect not only the caretaker's fault and competence but also the strength of the caretaker's rebuttal evidence. This traditional res ipsa loquitur approach represents the correct interpretation of N.J.S.A. 9:6-8.46(a)(2) as applied . . . where . . . [a] child [is] exposed to a number of unidentified individuals over a period of time, and where the timing of the injuries is uncertain, [and where the parents] may not ever be able to prove how the injuries occurred.

 

[N.J. Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 471-72 (App. Div. 2008) (citations omitted).]

In the present case, the judge fully considered all of the evidence and testimony presented. It was proper to apply the statute and shift the burden to Martin (or Yvette) to rebut the presumption to prove nonculpability. N.J. Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 179 (App. Div. 1994).

Upon our review of the record, we are satisfied that the fact-finding court fully assessed the reliability and competency of the testimony heard, and properly weighed the documentary evidence presented, in finding that abuse and neglect as defined in Title Nine occurred.

Martin further contends that he received ineffective assistance of counsel throughout the proceedings. This claim is without merit. Rule 2:9-1(c) provides that Martin must establish that "a genuine issue of material fact on the issue of the representation provided by . . . counsel" exists. Rule 2:10-6 requires Martin's brief to "set forth the factual basis for asserting that trial counsel's performance was deficient and explain why the result would have been different had the lawyer's performance not been deficient." Martin does not satisfy either requirement.4

Martin's sole claim of ineffective assistance of counsel relates to the Family Part's denial of Yvette's request to adjourn the fact-finding hearing. Although Martin's attorney was new to the case, he did not, unlike Yvette's attorney, seek a continuance or give a reason to delay the matter. Although the Family Part was insistent that the fact-finding hearing would proceed, there is not even a whisper of evidence to support Martin's appellate argument that his "counsel [who had] just been retained, [did] not [have] the opportunity to review the discovery, [did] not [have] the opportunity to adequately consult with defendant, and [did] not [have] the opportunity to investigate and develop[] a possible defense to the Division's allegations." Not only does Martin not make a complete and proper argument for ineffective assistance of counsel but he overlooks the fact that his counsel participated fully in the fact-finding hearing.

In New Jersey Division of Youth and Family Services v. B.R., 192 N.J. 301, 307 (2007), the Court set forth the following two-factor test for appellate review of an ineffective assistance of counsel claim:

(1) Counsel's performance must be objectively deficient; i.e., it must fall outside the broad range of professionally acceptable performance; (2) counsel's deficient performance must prejudice the defense; i.e., there must be a reasonable probability that but for counsel's unprofessional errors, the result of the proceedings would have been different.

Our review of the record reveals that Martin's counsel sufficiently advocated for him and there is no evidence that the result of the fact-finding proceeding would have been different if an adjournment had been granted on Yvette's application. Consequently, there is no basis to remand this case for further fact-finding concerning Martin's counsel's performance.

III.

In summary, we affirm the Family Part's order finding abuse and neglect. The fact-finding court's conclusions were based on the record and its legal determinations were soundly tethered to the applicable statutory and decisional law. The ultimate outcome of this matter did not result from any ineffective assistance of counsel.

Affirmed.

1 N.J.S.A. 9:6-8.21 to -8.73.

 

2 We elect to use fictitious names for the family members.

3 The final order provided that Yvette was given sole legal and physical custody of Chloe upon the child's "discharge from the Children's Specialized Hospital."

4 These rules expressly apply only to Title Thirty proceedings. However, the correlative rule, Rule 5:12-7, does not contain such limiting language.