NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. O.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3503-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

O.C.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF A.W.-C.,

a minor.

_______________________________________________

March 18, 2013

Submitted March 4, 2013 - Decided

Before Judges Graves and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-187-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Rhonda J. Panken, Designated Counsel, on the briefs).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia L. Parker, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.W.-C. (Jeffrey R. Jablonski, Designated Counsel, on the brief).

PER CURIAM

An order was entered finding that defendant O.C. and E.W. (Ellen)2 abused or neglected Ellen's son, A.W.-C. (Adam) pursuant to N.J.S.A. 9:6-8.21(c)(4)(b). Defendant appeals from that finding; Ellen does not. We affirm.

Adam was born on July 13, 2011. Just five weeks later, on August 18, 2011, Ellen brought Adam to the hospital at approximately 4:00 p.m. He had swelling around his eyes, bruising above his nose and on the inside of his upper lip, dried blood in his nose and scratches on his elbow. A CT scan and x-rays revealed two skull fractures and a fracture in his left femur. The injuries were reported to the Division of Youth and Family Services (the Division).

Defendant does not dispute that Adam was an abused or neglected child as defined in N.J.S.A. 9:6-8.21(c)(4)(b), i.e., a child under the age of eighteen

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 . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment[.]

Defendant also does not dispute that he qualifies as a "parent or guardian" under N.J.S.A. 9:6-8.21(a)3 or that the Division successfully established a prima facie case of abuse under N.J.S.A. 9:6-8.46(a)(2). Rather, he argues that the trial court improperly shifted the burden of proof to him to prove his non-culpability once the Division established a prima facie case of abuse.

The Division always bears the burden of establishing a prima facie case of abuse or neglect under N.J.S.A. 9:6-8.46(a)(2), which, defendant concedes, was established here. Thereafter, if the injured child has been "exposed to a number of unidentified individuals over a period of time, and it is unclear as to exactly where and when" the injuries occurred, the burden of production shifts to the parents "to come forward with evidence to rebut the presumption of abuse or neglect." N.J. Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 470 (App. Div. 2008). However, the burden of persuasion never shifts from the Division. Ibid.

Here, the trial court employed a burden-shifting analysis, referred to as "conditional res ipsa loquitur," which was described in J.L. as follows:

[Where] a limited number of persons, each having access or custody of a baby during the time frame when [abuse or neglect] concededly occurred, no one else having such contact and the baby being then and now helpless to identify her abuser, . . . [t]he burden would then be shifted, and such defendants would be required to come forward and give their evidence to establish non-culpability.

[Id. at 468 (alterations in original) (quoting In re D.T., 229 N.J. Super. 509, 517 (App. Div. 1988)).]

We explained that the criteria for application of conditional res ipsa loquitur is "that a defined number of people have access to the child at the time the abuse definitively occurred." Id. at 469. In such circumstances, the burden of persuasion shifts to the defendants after the Division establishes a prima facie case of abuse, and requires them to present "evidence to establish non-culpability" by a preponderance of the evidence. Id. at 468 (quoting D.T., supra, 229 N.J. at 517). The central issue in this appeal is whether the trial court erred in finding that the criteria for the application of conditional res ipsa loquitur were met.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court[,]" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters[.]" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104. See also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision of the Family Part judge.

Three experts testified at the fact-finding hearing. Elizabeth Hodgson, M.D., testified on behalf of the Division as an expert in the field of child abuse. Maria McColgan, M.D., testified on behalf of the Law Guardian as an expert in pediatrics and pediatric child abuse. Steven Kairys, M.D., M.P.H., testified on behalf of Ellen as an expert in pediatrics and child abuse and neglect pediatrics. The trial court found the testimony of each of the experts "highly credible." All the experts agreed that Adam's injuries were acute and had been inflicted upon him.

The experts also agreed on a limited timeframe in which Adam was injured. Dr. Hodgson noted that while skull fractures cannot be "exactly dated in their timing[,]" there was "pretty clear evidence that the facial trauma that had happened to this child was quite acute or within the last 24 hours." Dr. McColgan stated that it was "most likely" that these injuries occurred within forty-eight hours of the baby being presented to the hospital, and that although she could not "definitive[ly]" state that they were inflicted within just twenty-four hours prior to his admittance, it was a "likely" timeframe. Dr. Kairys testified that the injuries were "acute" and that they could have occurred any time from "five minutes before to 24 to 36 hours before" they were examined in the hospital.

Neither defendant nor Ellen testified at the fact-finding hearing. However, Division investigators John Green and Jameelah Austin testified and recounted the statements defendant and Ellen had given to them.

Green testified that Ellen told him she and defendant had been the sole caregivers of the child for the twenty-four to forty-eight-hour period prior to the child's admission to the hospital. She told Green that she woke up at approximately 7:00 a.m. on the morning of August 18, 2011. After taking a shower and dressing herself, she woke the baby, fed and changed him. She then put the baby back to sleep in his bassinet, and left him with defendant, who was awake and watching television in the living room, at 8:30 a.m. When she arrived home at approximately 2:30 p.m., she stated, "[t]he first thing she wanted to do was check on her child because she felt like something was wrong with [him,]" so "she went to the bassinet and [] picked him up and looked at him, and she saw [swelling] and bruising[.]" She then questioned defendant and her sister, K.W. (Karen), who had arrived at the apartment during Ellen's absence, about what happened to the child and neither had an explanation. She and defendant then agreed that it would be "in the best interest of the child" for him to go to the hospital.

Green also interviewed defendant, who told him

he didn't cause any injury to the child. He said that the baby was crying at one point while he was watching the baby and he went to feed the child. After he fed the child the child went to sleep and [then he] went to sleep with the baby on the couch for some time . . . .

Defendant told Green that "the baby didn't start hysterically crying until . . . [Karen] came home and slammed the door." He further stated that he thought the child's eyes were swollen because he had been crying "and from exposure to chlamydia at birth." There was no discussion as to the bruises or scratches on the child.

Green also interviewed Karen, who told him that when she arrived at the house at approximately 1:00 p.m. that afternoon, the child was with defendant and "screaming [at] the top of [his] lungs[.]" Karen said she had never heard Adam crying in the manner that he was crying in, so she took him from defendant. Karen fed and soothed the baby and then put him to sleep. She did not tell Green that she observed any scratches on the child or anything other than "puffy eyes" when she encountered the child with defendant. Green also interviewed the child's maternal grandmother, but since she had not been in the home in the forty-eight to seventy-two hours before Ellen brought Adam to the hospital, the interview was "brief."

Ellen told Austin that "when she came home she found the baby in a room laying on the bed and she smelled the aroma of marijuana . . . ." She stated she first noticed swelling on the baby's face when she was inside the apartment, and then noticed bruising when she took the child outside, where the lighting was better. Austin testified that defendant did not offer any explanation for Adam's injuries. He merely stated that he had been caring for the baby until Karen arrived at the apartment, and that Karen then "took over due to [Adam] crying and [not] taking the feeding that he was trying to give the baby at the time."

Austin then contacted Detective Powell at the East Orange Police Department, who had also interviewed Ellen and defendant. Ellen told Powell that the baby fell off the bed and, on another occasion, he hit his head on a table while being burped. Austin then re-interviewed Ellen, who stated that the baby "fell off the couch about four days prior to her taking him to the hospital." When Austin asked her about the baby hitting his head on the table, she said that she could not recall when that happened. Austin testified that defendant told Detective Powell "he was upset that something bad happened to the baby while the baby was in his care" but that he did not know what caused the injuries and felt he had nothing to do with it.

The unrefuted evidence thus shows that, as Ellen told Green, she and defendant were the sole caregivers of the child for the twenty-four to forty-eight-hour period prior to the child's admission to the hospital. Although Ellen's sister was in Adam's presence during that period, defendant was present during her visit and retained the responsibility of overseeing Adam's care and safety. We are therefore satisfied that the criteria for conditional res ipsa loquitur, "that a defined number of people have access to the child at the time the abuse definitively occurred[,]" J.L., supra, 400 N.J. Super. at 469, were met here. Since defendant provided no explanation for the injuries inflicted upon Adam, the trial court correctly concluded that a finding of abuse or neglect should be entered against defendant.

Defendant also argues that there is no value to placing his name on the central registry because he does not pose a risk to the general public or other children. Because the trial court properly found that defendant abused Adam in violation of N.J.S.A. 9:6-8.21(c)(4)(b), his inclusion in the child abuse registry maintained by the Division is statutorily required. N.J.S.A. 9:6-8.11.

A

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 Fictitious names are used to protect the privacy of the child.

3 N.J.S.A. 9:6-8.21(a) defines "parent or guardian" as:

any natural parent, adoptive parent, resource family parent, stepparent, paramour of a parent, or 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.