DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05400-14T1

A-2840-15T1

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.L.,

Defendant-Appellant,

and

F.C.,

Defendant.

IN THE MATTER OF V.C. and X.C.,

Minors.

___________________________________________

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Appellant,

v.

M.L. and F.C.,

Defendants-Respondents,

_____________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

V.C. and X.C.,

Minors.

_____________________________________________________

November 15, 2016

Argued October 6, 2016 Decided

Before Judges Fisher, Leone and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket Nos. FN-81-14-14 and FG-14-26-15.

John A. Albright, Designated Counsel, argued the cause for appellant M.L. in A-5400-14 and respondent M.L. in A-2840-15 (Joseph E. Krakora, Public Defender, attorney; Mr. Albright, on the brief).

Susan J. Saraiva, Deputy Attorney General, argued the cause for respondent in A-5400-14 (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Saraiva, on the brief.

Ashley Kolata-Guzik, Deputy Attorney General, argued the cause for appellant in A-2840-15 (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Kolata-Guzik, on the brief).

Kylie A. Cohen, Assistant Deputy Public Defender, argued the cause for respondent F.C. in A-2840-15 (Joseph E. Krakora, Public Defender, attorney; Ms. Cohen, on the brief).

Maria Emilia Borges, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, attorney; Ms. Borges, on the brief).

PER CURIAM

In these back-to-back appeals, which we decide by a single opinion, we consider the argument of defendant M.L. (Myra)1 that the judge erred by applying a res ipsa loquitur theory in finding she abused or neglected her two children, and we examine the Division of Child Protection and Permanency's argument that the judge erred in finding the evidence insufficient to permit termination of the parental rights of Myra and the children's father, defendant F.C. (Fred).2 We affirm.

I

These proceedings started when, on January 31, 2014, the Division effected a Dodd removal3 of defendants' two children V.C. (Vicki) and X.C. (Xena), who were then ages six years and thirteen months, respectively. At that time, the Division received a referral from a hospital where Xena had been taken because she had not been using her left arm the previous two days and cried when being dressed. The hospital social worker reported that x-rays of the child revealed a transverse fracture of the left radius, as well as "multiple old fractures . . . to both femurs and an old fracture" of the left arm. The social worker also reported that an examining doctor was skeptical of the parents' report that the arm fracture occurred on January 23, 2014, when Xena fell off a bed and onto the floor.

The Division commenced a Title Nine abuse/neglect action against both parents, and eventually a fact-finding hearing was conducted on July 16 and 17, 2014. Both parents were represented by the same attorney at the hearing and other preliminary matters. By way of her September 10, 2014 oral decision, the trial judge applied the presumption set forth in N.J.S.A. 9:6-8.46(a)(2), and concluded the child was abused or neglected by both parents within the meaning of N.J.S.A. 9:6-8.21(c).

Permanency hearings took place in January, March and April 2015; the parents were represented by separate counsel at those hearings. On the last of these occasions, the judge approved a plan of termination of parental rights followed by adoption.

The Division filed its guardianship action on May 6, 2015,4 and the action was tried over the course of six days in late 2015. By way of her oral decision, the judge applied the four-prong standard set forth in N.J.S.A. 30:4C-15.1(a) and determined that the Division failed to demonstrate by clear and convincing evidence that all prongs as to both defendants favored termination of their parental rights.

The Division filed a notice of appeal.

II

In her appeal concerning the finding of abuse or neglect, Myra argues: she should have been represented by her own attorney during the fact-finding hearing and not the attorney who also represented Fred; the judge erred in conducting a dispositional hearing as to Vicki in the absence of a finding Myra personally abused her and at a time when Myra was unrepresented by counsel; the judge erred in refusing to return Vicki to her custody at the conclusion of the dispositional hearing; the judge erred in the manner in which she applied res ipsa principles; and the finding of abuse or neglect was not supported by a preponderance of the credible evidence.

Myra's arguments concerning the dispositional hearing are either moot in light of the commencement and results of the guardianship action or are of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We reject her arguments regarding (a) dual representation and (b) the judge's finding of abuse or neglect that was derived from application of res ipsa principles, for the following reasons.

A

Myra contends she was denied the effective assistance of counsel in the abuse/neglect action, claiming counsel's dual representation deprived her of her attorney's undivided loyalty in those proceedings; she relies on case law regarding dual representation in criminal matters. See State v. Cottle, 194 N.J. 449, 467 (2008); State v. Belluci, 81 N.J. 531, 543 (1980). The Supreme Court, however, has not held that the special stricturesdeveloped in the criminal context, or Rule 3:8-2, which limits dual representation in criminal cases -- where "[t]he stakes are high" and "the client's freedom often hang[s] in the balance," Cottle, supra, 194 N.J. at 463 -- apply with equal vigor in civil abuse/neglect proceedings. And Myra has not persuaded us that we should adopt those criminal limitations on dual representation in abuse/neglect actions. Accordingly, we consider the likelihood of prejudice caused by dual representation. See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007) (quoting from Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984), in holding, in the context of a guardianship action, that the claimant show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). Myra failed to make such a showing.

Both Fred and Myra chose to testify and argue at the fact-finding hearing -- and also at the guardianship trial when Myra was independently represented -- that no harm to the child was caused by either her or Fred. She and Fred claimed at all stages in both proceedings that the child's January 2014 fracture was caused by an accidental fall and that neither her alleged acts or omissions, nor Fred's, caused the child any injury.

The prejudice that would result from dual representation -- such as foregoing the presentation of evidence that would fault the other party represented by the same attorney -- is absent here. Once Myra was independently represented, she never sought to defend her own parental rights by providing evidence that Fred was the abuser. We, thus, reject Myra's arguments regarding counsel's dual representation in the abuse/neglect action.

B

We also find no merit in Myra's argument that the trial judge either erred by applying res ipsa principles at all, or that, if applicable, the judge erroneously utilized res ipsa principles in finding abuse or neglect of Xena.

In such an action, the Division is obligated to prove abuse or neglect by a preponderance of the evidence. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235 (App. Div.), certif. denied, 201 N.J. 272 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). The Division is often also entitled to the presumption of abuse contained in N.J.S.A. 9:6-8.46(a)(2), which declares that "proof of injuries sustained by a child or 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."

The Division presented expert testimony that the January 2014 arm fracture, and the past fractures, would not ordinarily be sustained by a non-ambulatory child of such age absent abuse or neglect. The judge credited this expert testimony regarding the most recent and the past fractures. These credibility determinations were based on the judge's ability to observe the witnesses and, therefore, command our deference. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). The Division also presented evidence of a limited class of adults who had responsibility for the child with regard to the January 2014 fracture.5 Consequently, the Division was entitled to a statutory presumption that the January 2014 injury would not have occurred but for abuse or neglect at the hands of either parent and therefore presented a prima facie case.

Once the Division established this prima facie case, the burden to come forward with rebuttal evidence fell upon the targets of the Division's case -- the child's parents. See N.J. Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 457, 468-72 (App. Div. 2008). They called an expert to testify about the child's injuries. The judge found the defense expert credible but, in weighing his testimony against that marshaled by the Division, the judge concluded the defense expert's testimony did not adequately rebut the presumption of abuse. That is, the defense expert disagreed with the Division experts about the number of past fractures, and could provide no cause for the past fractures except, as the judge noted, "the possibility of a nutritional abnormality." The judge found more compelling the Division's experts, who ruled out genetic mutations, bone diseases, lactose intolerances, and all conceivable possibilities except parental abuse or neglect. As observed, the defense expert offered no explanation at all as to the cause of past fractures and expressed puzzlement as to what the available x-rays revealed.

In addition, the judge heard the testimony of Fred and Myra. They provided no explanation for the earlier fractures and no adequate explanation for the January 2014 arm fracture, causing the judge to conclude that Fred and Myra were

grossly and wantonly negligent in their care of [Xena]. They left [Xena] unattended, dropped her on at least one occasion, failed to take her to the doctor on the night of the fall on January 23rd, [2014], and failed to provide any history that would explain five prior fractures that occurred on different occasions.

We recognize that Fred and Myra were not the only adults who cared for the child during the time frame within which the January 2014 fracture occurred.6 A babysitter they employed also cared for the child in and around that time, but the Division investigated the babysitter and was satisfied she bore no responsibility. We reject Myra's argument regarding the significance of the Division's decision not to join the babysitter as a party; Myra and Fred were free to implead the babysitter if they believed she was the abuser.

We are satisfied the judge properly applied the statutory presumption and res ipsa principles to the January 23, 2014 injury. Obviously, the child was unable to identify her abusers. The Legislature recognized this when it enacted the presumption contained in N.J.S.A. 9:6-8.46(a)(2), and we recognized that the identification of the abuser may be ascertained through the procedure described in J.L., supra, 400 N.J. Super. at 468-72. Even if we were to agree the passage of time and the possibility of other adults causing the injury negated the presumption imposed by N.J.S.A. 9:6-8.46(a)(2) for the other fractures, an inference that the January 23, 2014 injury occurred while the child was in the care of her parents was not explained away by Fred or Myra to the factfinder's satisfaction. This was sufficient to support the finding that the child was abused or neglected by defendants within the meaning of N.J.S.A. 9:6-8.21(c).

In the final analysis, we must not lose sight of Title Nine's goal: "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." N.J.S.A. 9:6-8.8(a). If J.L.'s application or the application of the statutory presumption of abuse may be thought to be harsh, we must not forget we are considering the protection of children, not abusers.

To the extent Myra has posed other grounds for reversal, we find them insufficient to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

III

In its appeal from the judgment in the guardianship action, the Division argues there was clear and convincing evidence to warrant the termination of the parental rights of both Fred and Myra and claims the judge strayed wide of the mark when she concluded otherwise.

We start with the premise that parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' and 'rights far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, a parent's interest must yield to the State's obligation to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate these concerns, the Legislature created a test for determining when a parent's rights must be terminated in a child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence the following four prongs

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm . . .;

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

See also A.W., supra, 103 N.J. at 604-11.

A judge's findings on these prongs, when supported by evidence found credible, are entitled to our deference. F.M., supra, 211 N.J. at 448-49; Cesare, supra, 154 N.J. at 413. That is, we defer to a judge's factual findings because of the judge's "opportunity to make first-hand credibility judgments about the witnesses" and the judge's feel of the case "that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Id. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). In addition, we give special deference because of the "special expertise" family judges have "in the field of domestic relations." Cesare, supra, 154 N.J. at 412; see also N.J. Div. of Youth & Family Servs. v. J.A., 436 N.J. Super. 61, 67 n.2 (App. Div. 2014).

Here, we have the unusual circumstance of considering a judge's negative finding -- that the Division's evidence was not sufficiently clear and convincing as to all prongs to warrant termination7 -- and are asked to conclude the judge should have found the evidence to be clear and convincing and, therefore, her findings are not deserving of our deference. Clear and convincing evidence has been defined as evidence which "should produce in the mind of the trier of fact 'a firm belief or conviction as to the truth of the allegations sought to be established.'" Biunno, Current N.J. Rules of Evidence comment 6 on N.J.R.E. 101(b)(1)(6) at 40 (2016) (quoting In re Purrazzella, 134 N.J. 228, 240 (1993)).

This standard, as the Supreme Court has recognized, "clearly favors keeping children with their natural parents and resolving care and custody problems within the family." J.C., supra, 129 N.J. at 7-8; see also N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165 (2010). Its utilization in such matters stems from a parent's "constitutionally-protected, fundamental liberty interest in raising their biological children." J.C., supra, 129 N.J. at 9. Consequently, it is not enough for the Division to argue there was evidence in the record to support its position; the Division must be put to the burden of demonstrating to us that the evidence which favored termination was clear and convincing and the judge was clearly mistaken when she failed to recognize this. In other words, to reverse we would have to conclude, from our own review of a cold record, that the judge, who alone had the opportunity to make first-hand credibility judgments about the witnesses, should have "come to a clear conviction, without hesitancy, of the truth of the precise facts in issue" because the evidence was "so clear, direct and weighty and convincing." In re Seaman, 133 N.J. 67, 74 (1993) (quoting Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960)). The mere statement of this issue demonstrates the Herculean task facing the Division on appeal.

As we have observed, the finding in the Title Nine action of abuse at the hands of both parents was based upon the statutory presumption contained in N.J.S.A. 9:6-8.46(a)(2), and the application of J.L.'s res ipsa principles. The presumption in N.J.S.A. 9:6-8.46(a)(2), however, applies "[i]n any hearing under this act," namely Title Nine, so it does not apply in Title 30 guardianship actions. Moreover, the judge's findings there, however, were weighed by application of the preponderance standard; it does not necessarily follow that the same presumptions and inferences could sustain the clear and convincing standard applicable in the guardianship action. Indeed, with the presentation of additional proofs during the guardianship trial, the judge found further reason to question the cause of Xena's earlier fractures. The judge, for example, found the babysitter's testimony to be "alarming" in light of "the number of people who came and exited the home while [Xena] was there and the amount of time [Xena] was left without direct supervision on a regular basis while in the babysitter's home."8 Although the judge did not construe this to mean "the babysitter caused any injury, accidental or intentional," she acknowledged that "we may never know what caused the five fractures to [Xena] in the first eleven months of her life." Due to these uncertainties and the fact that the Title Nine finding was based on inferences and a lesser standard of proof than applicable in the Title Thirty action -- the judge found that the Division failed to prove the first prong, insofar as it applied to Myra, by clear and convincing evidence.

The judge also found the Division failed to establish prong two -- that the parent is unwilling or unable to eliminate the harm -- in its case against Myra, explaining

It is undisputed that [Myra] has done everything asked of her by the Division and the [c]ourt. She has unfailingly attended visitation and complied with individual counselling. According to the Division's testimony the only concern it has is that she has not admitted that either she or [Fred] has physically abused [Xena]. The Division posits that without that admission [Xena's] future risk of harm is too uncertain. However, that is not the burden the Division must meet. The Division has not proven that [Myra] is unwilling or unable to ameliorate the harm.

Additionally, the Division posits that because [Myra] continues to insist that there must be a medical reason for the fractures, in spite of the evidence to the contrary, she must be in denial as to the true circumstances and thus poses a continuing threat of harm to the two girls.

However, [Myra's] continued insistence that there must be some other reasonable explanation for the fractures is consistent with a person who is not responsible for not having caused the injuries and is seeking an explanation.

The judge's view of the evidence -- to which we owe deference -- is not unreasonable or wide of the mark.9 Our standard of review does not permit reversal absent our ability to conclude that the evidence required the judge to reach "a clear conviction, without hesitancy," Aiello, supra, 64 N.J. Super. at 162, that Myra was unable or unwilling to alleviate the harm to the child. For this court to reverse on this point would simply constitute a supplanting of the factfinder's view of the evidence with our own.

The judge found the evidence presented on prong three, as to both parents, was clear and convincing and that the Division had made reasonable efforts and pursued alternatives to the termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). Among other things, the judge found no evidence to support Fred's claims of bias generated by his and Myra's Hispanic heritage and she observed that the potential for misunderstandings between the Division and the parents was avoided because the Division provided Spanish-speaking caseworkers at all times.

The fourth and last prong in the analysis "functions as a 'fail-safe' to guard against the unwise termination" of parental rights. G.L., supra, 191 N.J. at 609; see also N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 92 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014). The Division was required to show by clear and convincing evidence that termination of parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). This inquiry focuses on "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355.

This analysis does not require a showing that "no harm" will result from severing parental rights; it requires instead a balancing of the interests involved and possible harm to the child by either maintaining or terminating the parental relationship. Ibid. Often, when, as here, a child has been in foster care, a court must consider the relative strength or weakness of the bond with the foster parents and the natural parents. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007); J.C., supra, 129 N.J. at 19.

The judge found that all the parties' experts agreed that Fred and Myra could "adequately parent and present[ed] no tendencies in the psychological testing to suggest child abuse." The trial judge observed that although the Division's expert found Vicki had a profound attachment to her parents, the prevailing issue for that expert was the uncertainty about the cause of Xena's injuries, not the attachment or bonding of the children. The judge also noted the testimony of the Law Guardian's expert, who ultimately could not support reunification of the children with their parents, recognized that Xena's bond with her parents was of a "'different quality, but not of concern' and that her bond was 'positive, not ambivalent, but not as strong' as the bond with her resource parent." The judge found from the testimony of the Law Guardian's expert that Myra "would be protective of her children and that she was even able to supervise [Fred's] contact with them." And the judge observed that Myra's expert and Fred's expert concluded that Vicki and Xena had bonds with their parents and, consequently, would suffer harm if removed from their care. After weighing the competing expert testimony, the judge concluded that the fear of uncertainty about the situation that guided the views of the Division and Law Guardian's experts did not outweigh the opinions, expressed by all experts, that Fred and Myra were capable of parenting. Ultimately, the judge found that the Division had not demonstrated the termination of parental rights would not do more harm than good. We cannot conclude from the competing expert testimony that the judge was off the mark in failing to come to a clear conviction, without hesitancy, to the opposite conclusion.

The judge concluded, with regard to Myra, on the basis of the uncertainties regarding the cause of the injury, the evidence regarding Myra's willingness and ability to care for the children and protect them from harm, and the conflicting testimony from the experts, that termination would do more harm than good and that the Division failed to sustain its considerable burden, on three of the four prongs of the statutory test. The case against Fred presented a closer call. The judge found that the Division had sustained its burden on the first three prongs in the case against Fred but that, in the final analysis, the "fail-safe" of the fourth prong had not been proven to her satisfaction by clear and convincing evidence. We reiterate that our standard of review precludes intervention absent our ability to say with confidence that the judge should have reached a firm and definite conclusion, without hesitancy, in favor of the Division. Having carefully considered the Division's forceful contentions, we have been presented with no principled ground for second-guessing the trial judge's findings, particularly since those findings were derived from competing expert testimony the weight and persuasiveness of which the trial judge alone was responsible for assessing.

We affirm the orders under review in both appeals.10

1 The names of defendants and their children used in this opinion are fictitious.

2 Fred did not appeal the abuse/neglect finding.

3 The removal of a child from the custody of a parent without a court order. N.J.S.A. 9:6-8.29.

4 The following month, the Title Nine action was terminated, and Myra filed an appeal of the order that memorialized the abuse/neglect finding.

5 Because the evidence supported an abuse/neglect finding regarding the January 2014 fracture, we need not consider whether res ipsa principles were properly applied with regard to the older fractures.

6 As noted earlier, we need not reach the question of whether res ipsa was properly applied as to the pre-January 2014 fractures.

7 With respect to Fred, the judge found the Division sustained its burden on the first three prongs but not the fourth. As to Myra, the judge found only that the third prong was proven by clear and convincing evidence.

8 The judge expressed additional uncertainty as to the application of prong one to Myra in light of evidence that Xena's older sister disclosed on three occasions that Fred dropped Xena.

9 Again, the judge found the Division sustained its burden on this prong in its claim against Fred, citing his "minimal[] complian[ce]" with services, his "sporadic[]" visitation with the children, and his "anger and other personality traits." We also note that the judge credited Myra's testimony that she had separated from Fred.

10 The stay previously entered is dissolved.