NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. Y.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-3507-11T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

Y.M. and S.P.,

Defendants-Appellants.

_________________________________________

IN THE MATTER OF P.P.,

S.P., O.P., and R.P.,

Minors.

__________________________________________

January 15, 2014

 

Submitted December 10, 2013 Decided

 

Before Judges Fisher, Espinosa and Koblitz.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-172-10.

Joseph E. Krakora, Public Defender, attorney for appellant Y.M. (Cheryl Gammone, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant S.P. (Anthony J. Vecchio, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

In these consolidated appeals, defendants Y.M. and S.P., the parents of four young children, argue the trial judge erred in making a finding of abuse or neglect based on the chief contention that R.P. (hereafter Richard, a fictitious name), their three-month-old child, sustained skull and rib injuries at three different times over the course of a two-week period. Defendants mainly argue the trial judge erred in shifting the burden of persuasion and in denying them an opportunity to provide expert testimony. Because Richard was exposed to a limited number of individuals during the time the injuries were sustained, we conclude the judge properly shifted the burden of persuasion, but we reverse and remand for further proceedings because the trial judge mistakenly precluded defendants from presenting expert testimony.

I

To explain our disposition of these appeals, we briefly review: (a) the evidence and initial trial court proceedings, (b) our earlier intervention on leave to appeal, and (c) the proceedings following our earlier remand.

A

At trial, the Division offered evidence that, on Thursday, April 15, 2010, the children's father, defendant S.P. (Steven), was caring for the children1 at the family's Pleasantville home while defendant Y.M. (Yasmine), the children's mother, was at work. According to Steven, late that afternoon he had taken the three older children downstairs, leaving Richard alone in the living room, seated in a bowl-shaped, knee-high "bouncy chair" positioned in front of a wooden entertainment center. Steven had placed a pillow underneath Richard for comfort; the chair was equipped with safety straps that Steven had not buckled. Upon returning to the living room, Steven found Richard lying on the carpeted floor crying, ostensibly as a result of falling and striking his head on an entertainment center.

The next day, Steven asked his sister Sarah (also a fictitious name) to watch Richard. That night, Sarah telephoned Steven to say she wanted to return Richard because he would not stop crying. In fact, although it was intended Sarah would watch Richard all weekend, she returned him the morning of Sunday, April 18, 2010.

Steven noticed a lump on Richard's head on Tuesday, April 20, 2010. He mentioned this to Yasmine later that day, and Yasmine called a pediatrician the day after for an appointment. The pediatrician was told Richard had fallen out of a bouncy chair. He directed defendants to take the child to the emergency room of a nearby hospital.

Richard was diagnosed at the hospital with a skull fracture, as well as rib fractures, which had already begun healing. The hospital referred the matter to the Division of Youth and Family Services, now known as the Division of Child Protection and Permanency (the Division), which conducted an emergency removal of the children from defendants' care.

Upon further investigation, the Division learned from the other children that Steven utilized corporal punishment, namely, by hitting the children in the chest, shoulder or head with a closed fist. One of the children also told the Division caseworker that Yasmine had once struck her on the legs with a belt.

At trial, the Division presented the testimony of Stephanie Lanese, M.D., who provided medical opinions regarding the nature and timing of Richard's injuries. Dr. Lanese testified that when she examined Richard at the hospital she noted swelling on the front, right side of his head measuring approximately four to six centimeters. X-rays revealed a hematoma, which suggested a possible skull fracture likely more than twenty-four hours old, as well as "healing calloused fractures of the anterior lateral or front and side third and fourth left ribs, and . . . fractures of the posterior right tenth and ninth ribs on the right" side. Dr. Lanese testified that the callous formations suggested the injuries occurred at different times. She opined that the posterior left rib fractures were less than seven to ten days old and would have been caused by a direct impact to that location, or a "fulcrum" squeeze to the side of the rib cage, that would not have been caused by a fall from the baby chair.

After the Division rested, Steven's attorney expressed a desire to obtain an expert witness to rebut Dr. Lanese's testimony. Because this was the first suggestion that either defendant was desirous of offering expert testimony, the trial judge sustained the Division's objection that the request was too late. After a two-week hiatus in the trial, the Law Guardian and defendants rested without calling any witnesses. On November 5, 2010, the trial judge rendered an oral decision, concluding the Division did not provide sufficient evidence to establish abuse or neglect and directing that the children be returned to their parents' care.

B

The Division sought a stay, which the trial judge denied. The judge, however, stayed the order long enough to allow the Division to request emergent relief in this court.

On November 16, 2010, we granted leave to appeal and summarily remanded for the trial judge's consideration of N.J.S.A. 9:6-8.46(a)(2), which mandates that "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 . . . shall be prima facie evidence that a child . . . is an abused or neglected child." We directed the trial judge to "issue a statement of reasons addressing the statutory presumption." We also held that if the judge found the Division's proofs were sufficient to establish a prima facie case of abuse and neglect pursuant to the statutory presumption, the judge should then proceed in accordance with N.J. Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 470 (App. Div. 2008) (holding that the burden of persuasion in such instances shifts to the alleged abusers).

C

The trial judge began the remand proceedings on November 24, 2010. At that time, the judge determined there was sufficient evidence to support application of the statutory presumption and the burden of persuasion therefore shifted to defendants. In light of that ruling, both defendants testified, denying the allegations of corporal punishment and asserting the injuries sustained by Richard were either the result of the child's fall from his bouncy chair on April 15, 2010, or caused by the older children perhaps playing too roughly with Richard.

Steven's attorney again sought an opportunity to call an expert witness. This time, the trial judge granted the request. But, on December 15, 2010, the Division moved for reconsideration and, on January 7, 2011, the judge granted the Division's motion and barred defendants from offering expert testimony.

On January 21, 2011, the trial judge rendered an oral opinion in which she concluded that both defendants abused or neglected all four children because they had not persuasively explained that Richard's injuries were caused by reasons other than accidental means.

Defendants moved for reconsideration, in part seeking again the opportunity to provide expert testimony. By way of a written decision denying the motion, the judge noted that defendants had provided an expert report authored by Dr. Janice J. Ophoven board certified in Minnesota in forensic pathology and anatomic pathology since 1981 who suggested a number of causes for rib fractures in an infant that would not suggest neglect or abuse, including but not limited to rough play with the other children or as a consequence of a vitamin deficiency. In ruling on the motion, the judge stated she "did not and has not read Dr. Ophoven's report."2

Both defendants appeal.

II

In these consolidated appeals, defendants collectively argue the trial judge mistakenly applied res ipsa loquitur principles in shifting the burden of persuasion to them and, also, that the judge abused her discretion in refusing to permit defendants to offer expert testimony to rebut Dr. Lanese's testimony.3 We agree with the Division that the judge properly shifted the burden of persuasion, but we also agree with defendants that the judge mistakenly exercised her discretion in refusing to permit defendants' expert testimony.

A

Whether res ipsa loquitur principles should be applied in a Title Nine action starts with an understanding of the facts. And our review of those facts begins with an understanding that a reviewing court must afford great deference to a family judge's factual findings. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); N.J. Div. Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). Appellate courts will not second guess such findings as long as they are based on adequate, substantial and credible evidence, N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993), particularly when the findings are based on the trial judge's ability to observe the witnesses and assess their credibility, Cesare, supra, 154 N.J. at 412; 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), which "can never be realized by a review of [a] cold record," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). Where, however, the issue in dispute is "'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." M.M., supra, 189 N.J. at 279 (quoting J.T., supra, 269 N.J. Super. at 188-89). Despite an expanded review in those instances, a trial judge's findings will be upheld unless "so wide of the mark that a mistake must have been made." Ibid. (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).

Like any other Title Nine case, the Division was required to prove abuse or neglect by a preponderance of the evidence. N.J. Div. Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235 (App. Div.), certif. denied, 201 N.J. 272 (2009), cert. denied, __ U.S. __, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). Here, the judge credited and relied on the medical testimony offered by the Division in determining that the nature of Richard's injuries permitted application of the statutory presumption of abuse contained in N.J.S.A. 9:6-8.46(a)(2). The judge also determined, based on the Division's evidence she found credible, that only a small group of individuals, including defendants, cared for Richard during the approximate two-week period during which, according to Dr. Lanese's testimony, the skull and rib injuries occurred.

In such circumstances, we have held that the burden of persuasion may shift to defendants, requiring that they "come forward and give their evidence to establish non-culpability." Matter of D.T., 229 N.J. Super. 509, 517 (App. Div. 1988); see also N.J. Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 181 (App. Div. 1994). In this case, the judge concluded it was appropriate to shift the burden to defendants. The judge properly utilized this standard because of the small class of potential abusers and the brief period of time during which the abuse occurred.

We continue to adhere to a robust application of res ipsa loquitur in these circumstances for the reasons explained by the majority in D.T.:

Were this a tort suit brought against a limited number of persons, each having access or custody of a baby during the time frame when a sexual abuse concededly occurred, no one else having such contact and the baby being then and now helpless to identify her abuser, would we not recognize an occasion for invocation of the Anderson v. Somberg[4] doctrine? The burden would then be shifted, and such defendants would be required to come forward and give their evidence to establish non-culpability.

 

[D.T., supra, 229 N.J. Super. at 517.]

 

Title Nine was enacted "to provide for the protection of children . . . who have had serious injury inflicted upon them by other than accidental means." N.J.S.A. 9:6-8.8. As explained in Title Nine itself, this legislation was intended "to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected." Ibid. See G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999). We, thus, continue to adhere to D.T., and, as a result, affirm the trial judge's application of its holding. If the application of this standard seems harsh, we must not forget the goal is the protection of children not abusers.

B

We reverse the order under review, however, because the trial judge did not accede to defendants' late request for the opportunity to provide expert testimony.

We initially observe that defendants were extremely tardy in advising the trial court and their adversaries of a desire to retain an expert to rebut Dr. Lanese's testimony. As recounted above, this subject was first broached at trial at the conclusion of the Division's proofs. We have no hesitancy in concluding that, if the matter had ended there, there would be no reason to question the judge's exercise of discretion and control over the proceedings in the fashion chosen. See, e.g., Bitsko v. Main Pharmacy, Inc., 289 N.J. Super. 267, 284 (App. Div. 1996); N.J.R.E. 611(a). But things changed, and those changes strongly suggested an alteration in the matter's course.

The obligation of a party to give notice of the identity of experts and their opinions is important in ensuring fairness in legal proceedings. Maurio v. Mereck Constr. Co., Inc., 162 N.J. Super. 566, 569 (App. Div. 1978). The trial judge's discretion to preclude expert testimony is governed not only by the potential for a delay in the proceedings but also by notions of fundamental fairness. See Ratner v. General Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990). When, at the close of the Division's case, defendants first advised of their intention to retain an expert and sought to offer that expert's testimony to rebut Dr. Lanese, the trial judge quite properly denied the untimely request. But, with our subsequent intervention, the compelling reason for denying defendants' initial application had evaporated. Our remand, and the judge's disposition of the burden-shifting question in favor of the Division, reopened the proofs. At that point, there was no compelling reason to withhold relief. There is nothing in the record to suggest that the final disposition of this matter would have been unduly delayed had the judge permitted testimony from the defense expert. The interests of justice were then better served by permitting the inclusion of defendants' expert testimony, leading us to conclude that the trial judge did not appropriately exercise her discretion.

As mentioned earlier, Title Nine proceedings are governed by the overriding societal interest in protecting children. See N.J.S.A. 9:6-8.8. By the same token, courts must be mindful of the potential that such proceedings may result in unfairly labeling parents as abusers. As a result, suits concerning the safety of children are best decided when all relevant and material evidence is considered, even when defense counsel has neglected to take proper and timely steps to present that evidence. As a result, although the judge's earlier denial of relief was appropriate at that particular time, once our earlier remand set the stage for a reopening and expansion of the proofs, the ground for denying defendants the opportunity to provide expert testimony vanished.

III

We are mindful that the trial judge is no longer available to complete the proceedings for which we now again remand. We leave to the judge yet to be assigned the discretion to determine whether any of the prior witnesses need to be called to again present their testimony or whether some or all of the testimony previously taken may be considered by resort to existing transcripts.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1Defendants' other three children were five years, four years and two years old at the time of the filing of the complaint on April 26, 2010.

2The expert report was not included in the record on appeal. After submission of this appeal for disposition on its merits, we requested a copy of the report and, in reviewing it, recognize that had Dr. Ophoven testified she would have presented genuine issues of material fact.

3Steven also contends he was deprived of the effective assistance of counsel because his attorney failed to take steps necessary to present expert testimony. Because of our disposition of this appeal, we need not reach the effective-assistance-of-counsel argument or the question of whether such arguments have any bearing in Title Nine matters.

4Anderson v. Somberg, 67 N.J. 291, 298 (1975) (holding, in the medical malpractice setting, that "where an unconscious or helpless patient suffers an admitted mishap not reasonably foreseeable and unrelated to the scope of the surgery . . ., those who had custody of the patient, and who owed him a duty of care as to medical treatment, . . . must prove their nonculpability, or else risk liability for the injuries suffered"), cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975).