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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-5818-11T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

D.C. and K.J.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF A.C. AND S.C., minors.

 

___________________________________

December 18, 2013

 

Submitted October 30, 2013 - Decided

 

Before Judges Fuentes, Fasciale and Haas.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County, Docket No. FN-07-222-12.

 

Joseph E. Krakora, Public Defender, attorney for appellant D.C. (Philip Lago, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant K.J. (Theodore J. Baker, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Natalie Behm, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.C. and S.C. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

Defendants D.C. (fictitiously named here as "Donald") and K.J. (fictitiously named here as "Karen") are the biological parents of A.C., a two-month old infant boy who suffered a fractured left humerus2 while under his parents' exclusive care and control. Utilizing the burden-shifting paradigm we endorsed in Div. of Youth and Family Servs. v. S.S., 275 N.J. Super. 173, 179-81 (App. Div. 1994) and Div. of Youth and Family Servs. v. D.T., 229 N.J. Super. 509, 517 (App. Div. 1988), the Family Part found: (1) the Division of Youth and Family Services (Division) established a prima facie case of abuse and neglect against defendants, as defined in N.J.S.A. 9:6-8.21c(1); and (2) defendants failed to present competent evidence to rebut the presumption of abuse and neglect created by the circumstances of how A.C. was injured as well as the nature of his injury.

Each parent in these consolidated appeals are represented by separate counsel and have filed separate briefs in support of their respective legal positions. Consolidation is appropriate, however, because defendants have raised similar arguments attacking the trial court's factual findings and ultimate legal conclusion. Specifically, defendants argue the Division failed to make out a prima facie case that they abused or neglected their infant son.

Defendants also maintain that they presented at trial a plausible alternative explanation for the child's injuries, thereby rebutting the presumption of abuse and neglect under S.S. and D.T. and shifting the burden of proof to the Division to establish, by a preponderance of the competent evidence, that they abused and/or neglected their son. Defendants argue the trial court committed reversible error when it failed to hold the Division to this burden of proof. As an adjunct to these primary arguments, defendants argue the trial court erred when it rejected as not credible defendants' plausible hypothesis for how A.C. may have been injured.

In response, the Division urges us to uphold the trial court's ultimate judgment of abuse and neglect against defendants because the factual findings underpinning this legal conclusion are supported by a preponderance of the competent evidence presented at trial. Stated differently, the Division maintains it presented sufficient evidence to establish that A.C.: (1) suffered a serious injury; (2) caused by other than accidental means; (3) while he was under his parents' exclusive care and control. We agree with the Division and affirm.

We derive the following facts from the record developed before the Family Part.

I

On September 15, 2011, at approximately 3:30 a.m., defendants brought their two-month old son to the emergency room of Newark Beth Israel Medical Center. Dr. Stephen Amaefuna was the attending physician who first examined the child. He immediately noticed swelling in the upper part of the infant's left arm; diagnostic tests revealed the child had a fractured left humerus. When questioned by the medical staff as to the cause of the injury, defendants claimed the child had fallen from their bed the previous night. Dr. Amaefuna referred the matter to the Division because the parents' account of how their son fractured his left arm was inconsistent with the mechanics of the injury.

This was the first time the Division had received any complaints about this family. The Division dispatched a caseworker assigned to the Special Response Unit who initially interviewed defendants and the medical staff who treated the child and interacted with the parents. According to defendants, on the day of the accident, Donald cared for A.C. from 2:30 p.m. until approximately 8:00 p.m., when Karen arrived home.3 A.C. appeared fine when Karen first saw him and did not have any visible bruises. Although he had a bassinet, she laid him down for a nap on her bed because the mattress on the bassinet was too thin and hard. She left A.C. alone in her bed for a brief moment while she cooked dinner in the kitchen. Although she checked on him periodically, she could not see the bed from where she was standing in the kitchen.

At approximately nine that evening, Karen heard a "thump," followed by the sound of A.C. crying. She admitted to the Division caseworker that she did not place pillows or other barriers to prevent A.C. from rolling off the bed; given his tender age, she assumed he was not capable of moving from the center of the bed. When she walked into the bedroom, she claimed A.C. was laying on his back on the hardwood floor. He appeared uninjured; she picked him up from the floor and the evening proceeded from this point without further incident. A.C. remained awake and alert until the family went to bed at approximately eleven o'clock that night.

Karen told the Division caseworker that she decided to sleep with her infant son that night. She shared her queen-size bed with A.C., while Donald slept on the couch in the living room. According to Karen, A.C. woke up crying at around one o'clock in the morning; he appeared in pain and refused to take the pacifier. Defendants claimed that this was the first time they noticed that his arm was swollen and hung limp by his side. Defendants emphasized to the Division caseworker that no one else had cared for A.C. at the time of the accident.

In addition to A.C., defendants have a three-year-old daughter (identified here as S.C.). In addition to their two young children, defendants shared their apartment in Newark with Donald's mother, his brother, his brother's girlfriend, and Donald's five-year old niece. Before living in Newark, defendants shared an apartment in the Township of Orange with Karen's parents; they were forced to move from this apartment after A.C. was born because the electricity service was terminated.

The Division caseworker personally inspected defendants' home and interviewed some of the family members who resided therein. The caseworker found the residence clean, well-furnished, and without any apparent safety hazards. Defendants' older daughter, three-year-old S.C, also appeared "well cared for and was appropriately dressed in a pink shirt and brown paints, with her hair braided with beads." Donald's brother told the caseworker that he was not at home at the time A.C. was injured.

The caseworker interviewed Karen again the day after the incident to determine whether Karen could have inadvertently rolled over A.C. while sharing her bed with him. According to the caseworker, Karen did not remember "rolling over him" and believed she would know if she had done so. Although the Division did not have a specific policy or directive prohibiting a parent from sharing a bed with their infant child, the caseworker informed Karen the Division was willing to provide the family with a crib.

The Division presented Dr. Elizabeth Susan Hodgson as its expert witness. She is a physician affiliated with the Children's Hospital of New Jersey at Newark Beth Israel Medical Center. Dr. Hodgson submitted a report of her interview with defendants conducted at the Hospital's emergency room the day A.C. was admitted. Defendants were in the emergency room by "the baby's bedside" when Dr. Hodgson conducted her interview. They consented to answer Dr. Hodgson's questions after they were apprised that "her medical findings would be sent to the Division . . . and that [they] could share in this consultation report through a family engagement meeting."

Defendants reaffirmed to Dr. Hodgson their account of how A.C. may have been injured. Karen in particular told Dr. Hodgson that A.C. was using his arm normally when she returned home with her daughter on the day of the incident. Defendants indicated that, as a general rule, three-year-old S.C. was not permitted unsupervised access to her baby brother because "she played rough;" they also emphasized that S.C. did not play or interact with A.C. on the day of the incident. No other adults cared for S.C. the day he was injured or were in the home at the time of the fall. Karen also told Dr. Hodgson that she did not remember rolling onto A.C. while the two shared a bed that night; she also did not think A.C. changed positions during the night. According to Karen, the first time she and Donald noticed A.C. was not using his left arm was after he woke up screaming at around one o'clock in the morning.

On September 15, 2011, the Division executed an emergent removal of both A.C. and S.C. pursuant to N.J.S.A. 9:6-8.29, and assumed temporary legal custody. The children were placed with their maternal aunt pending further order of the Family Part. On September 21, 2011, the Division received a report indicating A.C. had been readmitted to the University Medical Center complaining of pain. The foster parents (maternal aunt and her husband) had taken A.C. on a follow-up visit to the Hospital in connection with his initial treatment for the spiral fracture of his left arm. According to Division records, Dr. Hodgson decided to readmit A.C. overnight to control his pain and to determine whether "he may have another fracture in the same arm that may not have been found before."

Division records thereafter indicate that the radiologist reported that x-rays discovered A.C. had two additional "buckle fractures" on his left hand, "located on [the] 3rd and 4th metacarpals." The radiologist who reviewed the x-rays opined that the type of fractures were usually caused by non-accidental "twist or squeezing." Given the formation of callus around the point of injury, the treating pediatrician opined that the fracture was "older than a week or about 10 days old." The Division investigator informed defendants of these additional injuries. Neither defendant could account for or explain how A.C. sustained these additional fractures.

II

The Division filed a formal verified complaint and order to show cause against defendants on September 19, 2011, seeking legal and physical custody of both children. The complaint alleged defendants abused or neglected A.C. by causing the injuries to his left arm and wrist. The Division relied on the medical opinion of Dr. Hodgson who rejected defendants' explanation of how A.C. suffered the injuries to his left arm and wrist as "inconsistent with [the child's] injury." In Dr. Hodgson's view, "the type of fracture that [A.C.] has would have to have been caused by pressure to the bone rather than a fall." In Dr. Hodgson's opinion, "a more credible explanation of how the injury could have possibly been caused by co-sleeping and someone rolling over on the baby's arm."

Dr. Hodgson's treatment and examination report was attached to and submitted in support of the Verified Complaint. In this report Dr. Hodgson reached the following conclusion:

A transverse fracture of the humerus (or long bone) is a worrisome injury to find in any not-yet-mobile infant. This is an unusual type of fracture to find if it resulted from a simple fall from a bed. At two months of age, an infant who has a short fall, such as a fall from a bed, might be expected to have some soft tissue injury to the head or possibly a small linear skull fracture, neither of which [A.C.] has. A traverse fracture of the arm could result from either a direct blow to the arm, a yank on the arm, or from the arm being entrapped. At present no history has been given to account for this fracture. A full home safety assessment and further history from his caregivers and other family members are needed.

 

The matter came before the Family Part on the return date of the order to show cause. Defendants were present and were represented by counsel. After hearing the arguments and considering the evidence presented up to that point, the trial judge granted the Division's application for temporary custody of both children, finding "the allegations contained in the complaint, if proven," were sufficient to support the removal. As the following comments illustrate, even at this early stage of the case the judge expressed reservations about defendants' proffered explanation of how A.C. may have been injured, and how defendants' position affected his thinking on how to address a possible resolution in this case.

I mean, quite frankly, it might be negligent to sleep in the same bed with an infant, and maybe somebody rolled over on the child. But that s not the same as, you know, if the -- quite frankly, I think if the parties had come forward and said that s what happened it might be purely a negligence. It might be a supervision case, and there wouldn t be removal. But when you get into issues and stories that are not consistent with the type of injury the Division concerned that there is, you know, abuse going on. And rightfully so. I don t know whether they re going to be able to prove it or not, and what the doctor might testify to it at a fact finding hearing, but there are some concerns that have been raised in the compliant [sic] that I think would be contrary to the welfare to return the child or the children to the parents at this point pending a completion of that investigation, obtaining the full records.

 

The court conducted a fact-finding hearing on January 11, 2012. Dr. Hodgson and the Division investigator testified for the Division. Dr. Hodgson testified as both a fact witness concerning the treatment provided to A.C., and as a medical expert specializing in pediatric medicine who opined as to the mechanics of the injuries sustained by A.C., as compared to defendants' account of how the child may have been injured. Dr. Hodgson first described the child's condition when he was first treated in the emergency room:

He certainly was a very alert and awake baby. He was somewhat distressed when he was -- if his left arm was moved or if he was lying anywhere near on the left arm side. He had no other external injuries bruising, cuts, abrasions on his body. The left arm had been X-rayed and a soft splint was in place. He could move his left fingers normally and his left hand was warm and the fingers were pink when we checked to make sure that there was good blood flow to the hand.

Concerning what could have caused the type of injury sustained by A.C., Dr. Hodgson opined that it must have involved "some sort of a direct impact to the bone, or the arm itself being extended in a position where, then, it had pressure against it that made it snap directly across. Or if the arm had gotten entrapped something like that could have caused this pattern of a bone injury." She then contrasted this scenario with the type of injury ordinarily associated with a fall from a bed:

Little infants such as [A.C. s] age when they fall out of bed at two months of age he doesn t have what we call a parachute reflex yet, which is what all of us do when we trip and fall. We put our hands out to break the fall. A two month old doesn t have that. So what happens when a two month old falls off of a bed or rolls off of a couch what s going to hit first? The heaviest and biggest part of the body, the head.

 

Dr. Hodgson testified that she could not conclude with medical certainty that the upper arm and buckle fractures suffered by A.C. here occurred by accidental or non-accidental means.

The Division caseworker who investigated this incident did not find any evidence of dysfunctional behavior by either defendant. Donald was gentle with his child. In fact, both defendants interacted appropriately with their infant son. The caseworker characterized Donald's attitude and overall demeanor as forthcoming and calm. He was eager to discover what had occurred with his son and "get down to the bottom of things." Although more emotional than Donald, the caseworker found Karen became equally as forthcoming as the events of the infant's first day in the hospital transpired.

The trial court extended the fact-finding hearing by one more day for a second round of testimony. On cross-examination by Karen's counsel, Dr. Hodgson denied she suggested to Karen the possibility that she caused the injury sustained by A.C. by inadvertently rolling on top of him while she shared the bed with him. Dr. Hodgson testified:

Q. And during your interview with [Karen] she indicated to you that she didn't remember rolling onto [A.C.], is that correct?

 

A. That is correct.

 

Q. However, she wasn't adamant that that did not occur?

 

A. She never changed -- she was consistent in the history she gave me. She could not recall and that's what she told me.

 

Q. Okay. Do you recall asking her whether or not it was a possibility -- I mean whether nor not she actually rolled over on him?

 

A. On the 16th when I went back to talk to her once again I re-reviewed with her the sleep arrangements and her recollection of those. I did not offer her the mechanism of injury. We just talked about what had happened one more time.

 

When asked about whether A.C.'s injury was a result of abuse, Dr. Hodgson testified:

Q. Okay. And can transverse fractures occur absent abuse?

 

A. There are accidental mechanisms that can cause transverse fractures, yes.

 

Q. And they don t always necessarily mean that there was abuse involved?

 

A. Correct.

 

Q. And you never made a determination in this case whether or not [A.C.'s] injuries were caused by abuse, did you?

 

A. I called them, particularly the transverse fracture of the humerus a very worrisome kind of injury to find in a child, particularly, when there is no history that accounts for that injury.

 

. . . .

 

A. This infant suffered some sort of inflicted injury. And that is worrisome in a baby of this age.

 

Q. Okay.

 

A. Worrisome for supervision. These kinds of injuries certainly can happen as non accidental [sic] abusive injuries. But as I said there are accidental mechanisms that can cause transverse fractures. We have no history here to account for this very significant fracture or constellation of fractures that this infant has. That's worrisome for his safety. (Emphasis added.)

 

Karen testified in her own defense. She reaffirmed the statements she made during the early stages of the Division's investigation. As the following excerpt from her testimony on direct examination shows, Karen equivocated for the first time on the question of the possibility that she may have injured A.C. by rolling over him while sharing a bed.

Q. Okay. Now, as you have listened to the testimony of the caseworker and both the Doctor do you believe that it's possible that you rolled over on the baby?

 

A. I don't remember doing it, but I do believe it's possible now after talking to them.

 

Q. Okay. And at no point did you say that it didn't happen, you just said you didn't recall it happening?

 

A. Yes.

 

Karen also testified reneging her earlier statement concerning the placement of pillows or other barriers to prevent A.C. from rolling off the bed. Although the trial judge used these inconsistencies to gauge Karen's overall credibility, her testimony in this respect was ultimately irrelevant in determining the central issue of abuse in this case. The thesis of the Division's case was established by Dr. Hodgson's testimony concerning the mechanics of this infant's injury.

Judge Joseph S. Conte, J.S.C., announced his factual findings and conclusions of law in an oral opinion delivered from the bench on February 6, 2012. As a matter of credibility, and based on the mechanics of the injury as explained by Dr. Hodgson, Judge Conte rejected Karen's account of how A.C. may have fractured his left arm and seriously fractured his left wrist. Judge Conte also questioned Karen's credibility concerning her equivocation as to whether she could have rolled over A.C. while sharing her bed with him. Judge Conte ultimately reached the following conclusion:

I think what she said originally is true. I think if you roll over on a child you're going to know you rolled over on the child, especially if you hurt the child you rolled over and broke a bone causing the child to screen [sic], you're going to obviously wake up as mom woke up here. . . . It's, again, inconsistent for her now to say that she possibly rolled over with no explanation as to why now she said she rolled over when she was consistent beginning -- throughout indicating that she doesn't think she rolled over on the child. . . . [I]t's inconceivable to me that one would not know that. Especially because it's done with such alleged force to cause an injury and to break bones. I don't see how one could roll over on a child and not know it.

 

With these findings as a backdrop, and as a matter of anatomy and physics as explained by Dr. Hodgson, Judge Conte concluded that

these injuries are of such a nature that would not ordinarily be sustained or exist by reasons of the acts or omissions of a parent or guardian. Therefore, that it is prima facie situation [sic]. These breaks in the metacarpals and the traverse [sic] break of the arm as the doctor noted was inflicted upon the child.

 

Judge Conte found the Division established a prima facie case of abuse, shifting the burden to the parents to proffer a plausible scenario in which these injuries could have occurred accidentally. Given the evidence presented, Judge Conte found defendants did not meet their burden. Finding no plausible explanation for the injury, Judge Conte found defendants abused or neglected their son.

The children continued to reside with their foster parents until March 20, 2012, the date selected by the trial court for the family to reunite. On June 13, 2012, the court entered an order terminating litigation. The children have been residing with their parents without incident since the family was reunited.

III

On appeal, defendants argue that the trial court erred in finding their son's injury was caused by other than accidental means, thus constituting abuse or neglect on their part. We disagree.

Our role in reviewing the factual findings of the Family Part is limited. We are bound to uphold the findings that are supported by competent evidence in the record. Cesare v. Cesare, 154 N.J. 394, 413 (1998). A court's findings as to the credibility of a witness are "entitled to deferential respect by the reviewing court." N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Our legal ability to intervene is limited to those cases in which the trial judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction[,]'" making reversal appropriate. State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

The criteria for sustaining or dismissing a complaint of abuse or neglect are delineated in N.J.S.A. 9:6-8.50. An abused or neglected child may be one whose parent:

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[.]

 

[N.J.S.A. 9:6-8.21c(1)(emphasis added).]

 

The Supreme Court has construed the term "other than accidental means" as referring to situations where the parent "can or should foresee that his conduct is likely to result in injury[.]" G.S. v. Dept. of Human Servs. Div. of Youth and Family Servs., 157 N.J. 161, 175 (1999).

To sustain its threshold burden of proof, the Division must show by a "preponderance of the competent, material and relevant evidence the probability of present or future harm" to the child. S.S., supra, 372 N.J. Super. at 24 (citations omitted). To establish a preponderance of the evidence, the party must "demonstrate[] the offered hypothesis as a rational inference, that is to say, a presumption grounded in a preponderance of the probabilities according to the common experience of mankind." Joseph v. Passaic Hosp. Ass'n, 26 N.J. 557, 575 (1958).

The Division must establish a prima facie case of abuse or neglect. N.J.S.A. 9:6-8.46. N.J.S.A. 9:6-8.46a (2) provides:

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[.]

 

[N.J.S.A. 9:6-8.46a(2).]

 

We first contemplated applying the so-called "conditional res ipsa loquitor" burden-shifting paradigm in Div. of Youth and Family Servs. v. D.T., supra. In that case, the Division filed an abuse and neglect case "after the physician of four month old D.T. reported, and subsequent examination confirmed, that she had been sexually abused." 229 N.J. Super. at 511. The baby was examined by a doctor "who found bruising on the left side of the labia majora, reddish purple bruising on the labia minor, deep red bruising on the clitoris, and bruising around the hymen. She diagnosed sexual abuse." Id. at 512. Subsequent test results were positive for Chlamydia, a sexually transmitted bacteria. "The evidence does not show how long it takes for that infection to develop, but it can be transmitted at birth." Ibid. Both parents tested negative for this infection. Ibid.

Against this evidence, the trial judge in D.T. dismissed the Division's complaint against the parents. Id. at 514. In reversing the trial court's decision, a divided appellate panel4 adopted the burden-shifting approach endorsed by the Court in Anderson v. Somberg, 67 N.J. 291, 298-299 (1975), cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975). D.T., supra, 229 N.J. Super. at 517. As the majority explained, given (1) the limited number of persons who had access to the infant during the critical timeframe in which the sexual abuse concededly occurred and (2) the baby's inability to identify her abuser due to her tender years, the burden shifted to the parents in D.T. to establish, by a preponderance of the evidence, that "they neither improperly allowed nor committed the sexual abuse." Id. at 518.

In S.S., supra, the defendant challenged the burden-shifting paradigm we announced in D.T. as a violation of her "privilege against self-incrimination as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution[.]" 275 N.J. Super. at 178. The material facts in S.S. are strikingly similar to those we confront here. The mother in S.S. had two daughters, N.S., age four, and D.S., age six. Id. at 175. N.S. suffered "from Turner's Syndrome, a congenital abnormality, and also ha[d] a fragment of an extra chromosome in her genes. As a result, she [could not] stand, walk or speak and spen[t] most of her time lying on the floor or in her crib." Ibid.

The mother was separated from the girls' biological father and had moved in with her boyfriend. Ibid. In November 1991, the mother took N.S. to the pediatrician after allegedly discovering one of her knees was red and swollen. Ibid. X-rays ordered by the pediatrician revealed N.S. had fractured her right femur and right and left tibias. Id. at 176. She was placed into a full hip cast and the Division was notified. Ibid. At the time the Division investigator spoke to the mother and boyfriend about this incident, neither one of them had an explanation for how N.S. was injured. Ibid.

The maternal grandfather reported that both girls were at his house the week before the injuries were discovered. The older, able-bodied child, D.S., had tripped over her sister and fallen on top of her. Ibid. Because N.S. appeared only slightly injured at the time, the grandfather did not say anything about this incident until after N.S.'s fractures were discovered. Ibid. The grandfather's account was the only explanation the child's family offered to the Division concerning N.S.'s injuries. Ibid.

N.S. was rushed to the hospital in March 1992, almost five months after the first incident, allegedly due to respiratory failure. Ibid. An examination revealed

a fractured right clavicle with the surrounding area . . . visibly swollen; a partially-healed and previously unreported fracture to her right tibia; a partially-healed contusion on her brain; swelling and bruises about her forehead and nose and excoriations around her mouth. In addition, N.S. had vaginal lacerations and rectal tearing.

 

[Id. at 176.]

 

The child's caregivers, the mother and boyfriend, told the Division investigator that "except for the week before when she hurt her shoulder and sustained a black eye after falling out of bed[,]" N.S. had not been recently injured. Ibid. They decided to wrap her arm in an ice bandage in lieu of seeking medical attention. Ibid. The mother's boyfriend first realized the child "had a serious problem early that morning when he noticed that her eyes were glazed and unresponsive and her heartbeat faint." Ibid. When N.S. began to turn blue, the boyfriend immediately summoned the mother. Id. at 177. The two of them attempted to resuscitate N.S. "before transporting her to the emergency room." Ibid. The boyfriend "had no explanation for N.S.'s numerous other injuries." Ibid. The mother corroborated her paramour's version of these events. Ibid. She was also unable to explain the cause of her daughter's injuries. Ibid.

The Division filed a verified complaint charging both the mother and her paramour with abuse or neglect of N.S. and seeking the custody of her older sister. Ibid. The trial court applied our holding in D.T. to find the Division had made out a prima facie case against both of the defendants. Id. at 178. We rejected the defendants' argument attacking the trial court's application of the burden-shifting paradigm in D.T. We canvassed the decisions of courts in other jurisdictions that had examined the question and quoted approvingly the holding of the New York Family Court in In re S., 322 N.Y.S.2d 170 (Fam. Ct. 1971):

There is no violation of respondents' rights of privilege against self-incrimination. He is not required to take the stand and testify in child abuse or neglect proceedings. However, once the petitioner . . . is deemed to have established a prima facie case and the burden of going forward with the proofs shifts, . . . respondents . . . are then required to offer [a] satisfactory explanation concerning [the] injuries.

 

If the respondents do not wish to assume this burden, this fact by itself does not make the presumption unconstitutional. There is no mandatory requirement that they take the stand and testify. That would be unconstitutional. The constraint upon respondent to give testimony arises here simply from the force of circumstances and not from any form of compulsion forbidden by the Constitution. . . .

 

It may be a difficult decision for the respondents and their attorneys. [But] it is a question of procedure and legal options for the defense, not one of the constitutionality of incrimination. . . .

 

The respondents here have a right to stand mute. If they do so, however, in this type of case, they run the great risk of having the prima facie case . . . stand against them with finality. . . .

 

[S.S., supra,, 275 N.J. Super. at 180.]

 

We upheld the constitutionality of the burden-shifting approach in D.T. because it was predicated on the reality of the nature of child abuse in situations in which the child is seriously injured or molested while under the exclusive custody and control of adults and, by virtue of extreme youth or disability is incapable of identifying her abusers. Once the Division establishes a prima facie case of abuse or neglect under these circumstances, by showing the likelihood that the injuries or trauma was caused by non-accidental means, the right against self-incrimination is not offended or jeopardized by shifting the burden to the custodial adult and caregiver to come forward with a plausible explanation that the harm sustained by the child occurred accidentally. S.S., supra, 275 N.J. Super. at 181.

In Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 469 (App. Div. 2008), we again explained that this burden-shifting paradigm, known as "conditional res ipsa loquitor," applies where the abuse definitively occurred during a time frame when only a definite number of persons were caring for the child. If multiple caregivers are responsible for the child during the period when the alleged abuse took place, traditional res ipsa loquitor applies, and the burden shifts to the parents to "come forward with evidence to rebut the presumption of abuse or neglect." Id. at 470. "The burden of proof will not shift to the parents to prove their non-culpability by a preponderance of the evidence. The burden of proof will remain on the Division." Ibid.

The record developed here supports the trial court's decision to employ the burden-shifting approach we endorsed in D.T. and S.S. A.C. was seriously injured while in the exclusive care of his parents. Dr. Hodgson's testimony established that the nature of the injuries suggested the incident could not have occurred by accidental means, and certainly not by a fall from Karen's bed. The trial judge was entitled to reject Karen's belated attempt at justifying the injuries by suggesting they may have occurred when she rolled over her infant son while sharing her bed with him. We need not, and specifically do not, reach the Law Guardian's alternative argument predicated on Karen's alleged gross negligence in rolling over A.C. See Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538 (App. Div. 2011).

Affirmed.

 

 

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

2 The "humerus" is the "long bone of the upper arm or forelimb extending from the shoulder to the elbow." Humerus, Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/humerus (last visited Dec. 9, 2013).

3 Karen was on maternity leave at the time of the incident. At the time of trial, Donald worked at a temp agency, and Karen worked full time doing data-entry.

4 The defendants in D.T. did not exercise their right to mandatory Supreme Court review pursuant to Rule 2:2-1(a).