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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

N.C.,

Defendant-Appellant,

and

E.M., R.U., and F.S.,

Defendants.

_________________________________

IN THE MATTER OF D.U., E.M., J.M.,

I.M. and M.S., minors.

_________________________________

January 30, 2014

 

Submitted December 2, 2013 Decided

 

Before Judges Harris, Kennedy and Guadagno.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-218-08.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief).

 

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

 

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

PER CURIAM

Defendant appeals from a September 23, 2008 order finding that she and her husband, F.S. (Frank),2 abused or neglected her one-year old child, D.U. (Donna), in December 2007. She also appeals from a July 6, 2010 order denying her motion to re-open the fact-finding hearing to present new evidence, and an order of January 5, 2012 order denying reconsideration. Defendant argues that the trial court misapplied the burden of proof and erred in refusing to re-open the fact-finding hearing. Defendant also argues that she was denied the effective assistance of counsel. We disagree and affirm.

I.

The facts are taken from the trial record. On December 18, 2007, defendant arranged for an ambulance to take her then one-year-old daughter, Donna, to the emergency room at the Hoboken University Medical Center (HUMC). Records from the hospital reveal that defendant said the child was learning to walk, and would not put pressure on her left foot. Donna's left ankle was found to be slightly swollen, and hospital personnel applied an ace bandage and told defendant not to allow the child to walk for five days. An x-ray of the ankle was negative and the discharge diagnosis was "ankle sprain."

On December 20, 2007, defendant returned to the HUMC with Donna, after noting that the child's left leg was extremely swollen and bruised. At the emergency room, Donna presented with significant bruises on her face and head, and x-rays revealed she had sustained spiral fractures of the left tibia and fibula and a transverse fracture of the left femur. Defendant reported that Donna was learning to walk, and had fallen down two days earlier while trying to hold onto some furniture. Donna was transferred to the St. Joseph Medical Center because of the serious nature of her injuries, and personnel at the HUMC made a referral to the Division because defendant's explanation was inconsistent with the significant injuries Donna had suffered.

Upon receiving the referral, a Division caseworker interviewed some of defendant's other children. A three-year-old step-brother reported that Donna fell in the living room, but later stated he did not see the fall. Donna's six-year-old step-brother said she fell in her crib, and that he "shook" her leg. At the time, she was wearing an ace bandage.

Frank told an investigator from the Hudson County Prosecutor's Office that defendant told him that Donna fell on the morning of December 18, 2007, and that she arranged to have the child taken to the emergency room the same day. The child was acting normally after she returned from the hospital and was put into her crib to prevent her from putting pressure on her foot.

Defendant was also interviewed by the prosecutor's office and told the investigator that Donna was just starting to walk. She said that on the morning of December 18, 2007, Donna was trying to walk and, as defendant watched, Donna's ankle "g[a]ve out and her whole leg went to rubber." Donna was then taken to the emergency room, where she was diagnosed with a sprained ankle and an ace bandage was applied.

On December 19, defendant removed Donna's ace bandage because she thought the bandage had been applied too tightly, causing her leg to swell. She took the child to the hospital the next day because Donna's leg was extremely swollen and bruised. Defendant could offer no explanation for the bruising on Donna's face, but stated that a mark on the child's nose resulted from Donna pushing her face against the crib rails. Further, she testified at the fact-finding hearing that she and Frank were Donna's only caretakers between December 18 and 20; that Frank was never alone with the child; that she was watching Donna and the other children at all times and saw none of the children hit or hurt Donna.

On December 24, 2007, the Division filed a verified complaint charging defendant and Frank with abuse and neglect.3 At the initial hearing, defendant was represented by private counsel. Frank did not appear at the initial hearing.

A fact-finding hearing was held over the course of three days between June 20, 2008 and September 23, 2008. Defendant was represented throughout the hearings by a second privately retained counsel. The Division presented two witnesses: the investigative caseworker; and Dr. David Kroning, M.D., the Director of the Pediatric Emergency Room and the Child Protection Safety Center at St. Joseph's Medical Center. Defendant testified on her own behalf. In addition, the court reviewed medical records from HUMC and St. Joseph's, as well as the Division's records.

Dr. Kroning conducted a physical examination of Donna at St. Joseph's Medical Center, on December 20, 2007, where he took her medical history and examined x-rays that were taken at the hospital. During his physical examination of Donna, Dr. Kroning observed a one-half inch bruise on Donna's cheek, and a bruise on the bridge of her nose, as well as "gross swelling" of her left leg, from thigh to foot.

Upon reviewing Donna's x-rays, Dr. Kroning concluded that she had sustained a "transverse fracture," meaning the bone was broken straight across, of her "[left] distal femur[,]" which is the "large leg bone on the top[]" of the leg, at the "closest part to the knee." In addition, Donna had sustained spiral fractures of her left tibia and fibula. Her tibia fracture "spiraled up to the mid shaft," and the fibula fracture spiraled to the mid-shaft, as well.

Based on his physical examination of Donna, and his review of her x-rays, Dr. Kroning opined that Donna's injuries could not have occurred without trauma. He explained that a spiral fracture can occur in a number of ways: "[i]t could happen to somebody that s old enough to really walk around whose foot gets fixed in a position and their body rotates[;]" or "it could be caused by grabbing a child's foot and twisting, or by pulling a child towards you." Alternatively, in a child over two years of age, a spiral fracture could occur if the child jumped off a chair onto the ground.

Dr. Kroning opined that the transverse fracture of Donna s femur could only have been caused by exerting enough force, such as a "lateral blow to the leg[,]" in order for the bone to bend enough that it "cracks directly in half." Dr. Kroning could not determine if the fractures occurred at the same time. He only viewed the x-rays taken on December 20, 2007, and did not have the x-rays taken two days earlier.

Defendant told Dr. Kroning "[t]hat the child was . . . walking on the sofa[,]" when she "heard a loud pop sound[,] [a]nd the child fell at that point." Dr. Kroning opined that the child's injuries were not consistent with defendant's explanation as "a walking action like that should not have caused the significant injury."

Dr. Kroning opined to a reasonable degree of medical certainty that based on defendant's account of the injury, the medical evidence he reviewed, and his physical examination of Donna, the cause of her injuries was "non-accidental trauma." The Division also presented an expert report from Dr. Jennifer Ibrahim, a medical geneticist at St. Joseph's Medical Center. Dr. Ibrahim reported that after examining Donna and reviewing her developmental and birth history, genetic testing for Osteogensis Imperfecta (brittle bone disease) was not warranted, as there was no indication that the child suffered from this disorder.

On the final day of the hearing, defendant's counsel advised that he had consulted with Donna's pediatrician, Jose Fragoso, M.D., and was not calling the doctor as a witness. He added that the doctor was reluctant to testify and could offer no helpful testimony.

After the hearing, the trial judge made findings of fact and conclusions of law in an oral opinion from the bench, which she later expanded into a written decision. She explained from the bench, in part:

According to [defendant's] testimony the child fell while holding onto a couch in the living room. This testimony was consistent with the explanation she gave the case worker at the time of the investigation. However, the case worker testified, the Division was concerned due to the conflicting explanations given by the mother and the two children, especially E.M. [w]ho initially stated, [Donna] fell in the crib. Subsequently, the child tells the prosecutor's investigator that he had pulled the child's leg and heard a crack. When confronted with the issue that were concerns as to how the child sustained her injuries in the way the mother claimed, [defendant] told the case worker, she didn't know anything else except that on Tuesday, she fell and was treated for a sprained ankle and then woke up in this condition.

 

Today, [defendant] stated that she had her eyes on all the children on the day that -- of the initial injury and gave no further explanation as to how the other two older children may have had different explanations for the cause of the injury.

 

. . . .

 

Although the [c]ourt notes these various explanations for the cause of the child's injury, the [c]ourt's not giving much weight to either of the children's stories[.]

 

Most importantly, [there] is the medical evidence. The medical opinions repeatedly stated in the medical reports that the injuries of the child were inconsistent with the mother's explanation, the child fell in the living room.

 

. . . .

 

Doctor Kroning stated he had no way of knowing whether the injuries were intentionally inflicted. He testified to a reasonable degree of certainty that they were non-accidental.

 

. . . .

 

It's well established that once the Division establishes a prim[a] [facie] case of abuse or neglect under N.J.S.A. 9:6-8.4 46(A)2, the burden will shift to the parents to come forward with the evidence to rebut the presumption of abuse and neglect. And I'm quoting from - - In the Matter of D.T. which is at 229 N.J. S[uper.] 509, it's an Appellate Division case and it's a 1988 case. The absence of objective evidence establishing a medical explanation for the injuries, coupled with the parents implausibility of the explanation as to how these injuries occurred, and the cessation of further trauma after the child was removed from her parent, lead to the conclusion the injuries resulted from abuse or neglect while in the care of the parent.

 

Here the mother offered no medical testimony that the child's injury occurred through accidental means or due to a genetic defect.

 

Thus, the [c]ourt finds by a preponderance of the evidence that the child was an abused or neglected child pursuant to N.J.S.A. 9:6-8.[21]. This will be attached to the order.

 

Thereafter, the trial judge issued a written order finding abuse and neglect.

Approximately a year later, defendant's third counsel moved to vacate the fact-finding. The motion was denied without prejudice on January 29, 2010. Later, counsel for defendant again moved to vacate the fact-finding and submitted a letter from Dr. Mark Finkelstein, a physician who never examined Donna, but had reviewed the medical records. Dr. Finkelstein stated that the December 18, 2007 x-ray of Donna's left tibia showed a "fine hairline 'toddler's fracture'" and speculated that the serious fractures shown on the December 20 x-rays may have been caused by an undocumented "second fall." A second Family Part judge denied the motion, holding, in part, that Dr. Finkelstein's letter was a net opinion. The judge based this conclusion on Dr. Finkelstein's "jump" from an untreated toddler s fracture, to the undocumented assertion "there must have been a second fall" which caused the other fractures.

Subsequently, defendant moved several times, unsuccessfully, to re-open the fact-finding hearing. The last motion was denied on January 5, 2012, at which time the judge explained that motions to reconsider are governed by Rule 4:49-2, and are committed to the sound discretion of the court. Having determined that no new evidence was offered, and no legal authority was over-looked, the motion was denied.

This appeal followed.

II.

We begin by reviewing the legal principles which govern our review on appeal. Our role in reviewing the factual findings of the Family Part is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). We are bound to uphold the findings that are supported by competent evidence in the record. Cesare v. Cesare, 154 N.J. 394 (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)). Appellate intervention is limited to those cases in which the trial judge's factual findings are so wholly unsupportable that the interests of justice demand intervention and correction making reversal appropriate. In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993); see State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

An abused or neglected child is 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. 9:6-8.21(c)(1)(emphasis added).]

 

The Supreme Court has construed the term "other than accidental means" to mean circumstances where the parent "can or should foresee that his conduct is likely to result in injury[.]" G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 175 (1999).

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

 

To sustain its 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. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). 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).

On appeal, defendant argues that the trial court misapplied the burden of proof. In making her argument, defendant concedes in her brief that "the Division presented a prima facie case of abuse in accordance with N.J.S.A. 9:6-8.46a(2)." Defendant argues, however, there were "multiple individuals in the home, who . . . provided differ[ent] versions of the events[.]" Defendant here refers to Donna's two step-brothers, as well as "hospital staff members" who handled the child during various procedures at the hospital. We disagree with defendant's argument that the trial judge improperly shifted the burden of proof to her and Frank.

We first applied the "conditional res ipsa loquitur" burden-shifting paradigm in Div. of Youth & Family Servs. v. D.T., 229 N.J. Super. 509 (App. Div. 1988). In that case, the Division filed an abuse and neglect case after the physician of a four month old reported, and subsequent examination confirmed, that "she had been sexually abused." Id. 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.

Despite 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 panel adopted the burden-shifting approach of 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 constitutional privilege against self-incrimination. 275 N.J. Super. at 178. In considering the defendant's argument, we reviewed cases from other jurisdictions and quoted approvingly the holding of the New York Family Court in In re S., 322 N.Y.S.2d 170 (N.Y. 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 explained that burden-shifting was grounded on the obvious fact that, in many cases, a 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 injury 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 loquitur," 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. Donna was seriously injured while concededly in the care of defendant and Frank. Dr. Kroning'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 as described. The trial judge was entitled to reject defendant's testimony and explanation.

Next, we briefly address defendant's argument that she was denied the effective assistance of counsel because her privately retained attorney represented both her and Frank at trial, and had not secured a timely medical report to support her defense. In making this argument, defendant alleges that defendant and Frank were the "only two adult caregivers within the home on the date or dates the injuries . . . occurred" and that "it was abundantly clear from the outset of the proceedings that one or the other would be found responsible." Defendant also alleges that her third privately retained attorney was ineffective by "lacking the required familiarity with this case necessary to succeed in persuading the trial court to consider Dr. Finkelstein's testimony."

Accepting that the standard set by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), applies in an abuse and neglect case, see N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301 (2006)(applying the Strickland test in a parental rights termination case), we discern no basis here to disturb the Family Part's rejection of the claim. First, Dr. Finkeltein's speculation that there must have been a second accidental injury to the child is not supported in the record. Defendant testified that she had her eyes on Donna at the relevant times and did not observe the child suffer a second "accident." Also, the trial judge explicitly did not credit the children's vague and inconclusive assertions about the accident, a credibility determination which we cannot and do not overrule. Accordingly, Dr. Finkelstein's net opinion was properly rejected by the court and thus it cannot be "ineffective" to have failed to have proffered it earlier.

Second, we discern no conflict in the positions of Frank and defendant which would have necessitated separate counsel. Their factual positions were the same: i.e., that defendant saw the child fall while holding onto a couch in an effort to walk. No one suggests that such an inconsequential circumstance would explain Donna's double spiral fractures and her transverse facture of the femur. While it may have been wiser to have had separate attorneys throughout the proceedings, counsel's representation of both Frank and defendant at trial does not rise to "ineffective assistance" under these circumstances. See New Jersey Div. of Youth & Family Servs. v. V.K., 236 N.J. Super. 243 (App. Div. 1989)(holding that in a guardianship proceeding, counsel's joint representation of husband and wife revealed no conflict where their interests were not divergent, as both denied sexually abusing their children).

The remainder of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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 We use fictitious names for the individuals.

3 In addition to defendant and Frank, E.M., the father of three of defendant's minor children, and R.U., Donna's father, were named as defendants. E.M. and R.U. are not parties to this appeal, and no finding of abuse or neglect was made as to them. Frank has not appealed.