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

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1029-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

L.O. and I.C.,

Defendants-Appellants.

____________________________________

IN THE MATTER OF

P.O., R.V. and C.V.,

Minors-Respondents.

_____________________________________________________

Argued April 16, 2013 Decided May 2, 2013

 

Before Judges Fisher, Waugh and Leone.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-252-11.

 

Chanima K. Odoms, Designated Counsel, argued the cause for appellant L.O. (Joseph E. Krakora, Public Defender, attorney; Ms. Odoms, on the brief).

 

Gregory K. Byrd, Designated Counsel, argued the cause for appellant I.C. (Joseph E. Krakora, Public Defender, attorney; Mr. Byrd, on the brief).

 

Jessica M. Steinglass, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tara L. Kenney, Deputy Attorney General, on the brief).

 

Charles Ouslander, Designated Counsel, argued the cause for minors-respondents P.O., R.V. and C.V. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Ouslander, on the brief).

PER CURIAM

In this appeal, we consider whether the trial judge appropriately applied the doctrine of res ipsa loquitur in finding defendants L.O. and I.C. (hereafter "defendants") guilty of abuse or neglect regarding T.I., an eight-month-old child L.O. frequently babysat during the day. In rejecting defendants' arguments, we express our continued adherence to the manner in which res ipsa principles were applied in In re D.T., 229 N.J. Super. 509 (App. Div. 1988).

The evidence adduced during the Division's Title Nine action revealed that, on Friday, November 19, 2010, T.I.'s mother brought the child to the hospital with a swollen right leg. Defendant L.O. had cared for T.I. between the hours of

11:00 a.m. and 6:00 p.m. on the immediately preceding Monday, Tuesday and Wednesday. The child was in the mother's care all day Thursday. The mother first became concerned when she saw that T.I. was not standing in her crib or jumping up and down as usual at 5:00 a.m., Friday morning. Upon noticing the child's swollen leg, she sought medical attention, which led to a diagnosis of femoral fractures of both legs.

The trial judge also heard evidence that when the mother picked the child up on Wednesday, defendant L.O. told the mother the child had fallen while pushing a toy cart. L.O. repeated this story to a Division representative but, when reminded of the importance of being honest, L.O. stated that, at approximately 1:00 p.m. on Wednesday, the child had fallen from her bed.2 The child later that Wednesday exhibited some discomfort when placed in her walker and struggled until removed, but allegedly otherwise behaved normally. Fearing the mother's reaction to the true story, L.O. concocted the story of the child's fall while pushing a cart. L.O.'s ten-year old son told a Division representative a similar story.

In addition, the Division presented expert medical testimony that the judge found credible and persuasive. Based

on this unrebutted expert testimony, the judge found that T.I. sustained the injuries within five days of her initial medical examination the morning of Friday, November 19, and the injury would not have occurred but for abuse or neglect.

Defendants did not testify, nor did the child's mother or the mother's boyfriend, who were named as defendants in a Title Nine action, which was consolidated and tried with this action. The trial judge applied the statutory presumption of abuse3 and, relying on D.T., found the "burden of proof" shifted to all four defendants, all of whom, in his view, failed to sustain that burden because they neither testified nor provided other evidence. Consequently, the judge concluded all four had abused or neglected T.I. and, in defendants' case, their own child.4

Defendants filed separate appeals,5 which we consolidated. In her appeal, defendant L.O. argues:

I. THE TRIAL COURT ERRED IN SHIFTING THE BURDEN OF PROOF TO THE DEFENDANTS . . . TO EXCULPATE THEMSELVES AS THE PERIOD OF ABUSE TO T.I. WAS NOT CONCEDED TO NOR DETERMINED WITH ANY DEGREE OF MEDICAL CERTAINTY.

 

II. THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANTS . . . FAILED TO EXCULPATE THEMSELVES REGARDING THE ABUSE TO T.I.

 

In his appeal, I.C. argues:

I. THE TRIAL COURT'S DECISION TO SHIFT THE BURDEN OF PROOF TO DEFENDANTS . . . MUST BE REVERSED BECAUSE [DEFENDANTS] DID NOT HAVE ACCESS TO OR CUSTODY OF T.I. WHEN SHE SUSTAINED HER INJURIES.

 

II. THE TRIAL COURT'S DECISION MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED IN FINDING THAT [DEFENDANTS] DID NOT EXCULPATE THEMSELVES BY A PREPONDERANCE OF THE EVIDENCE.

 

III. THE APPELLATE DIVISION SHOULD REFOR-MULATE THE BURDEN-SHIFTING STANDARD ARTICU-LATED IN D.T., S.S.[6] AND J.L.[7] TO REQUIRE THE DIVISION TO PROVE EACH ELEMENT BY A PREPONDERANCE OF THE EVIDENCE BEFORE THE BURDEN MAY SHIFT.

 

We find insufficient merit in any of these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.

In approaching defendants' arguments, we first observe 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 judge's ability to observe the witnesses and make credibility determinations, Cesare, supra, 154 N.J. at 411-13; 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, the trial court'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 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 unrebutted medical testimony offered by the Division in determining that T.I. sustained injuries during a five-day period and that the nature of those injuries permitted application of the statutory presumption of abuse contained in N.J.S.A. 9:6-8.46(a)(2). The judge also found, based on the Division's unrebutted evidence, that the only individuals who cared for the child during that five-day period were defendants and the child's mother and her boyfriend. We find no merit in defendants' inconsistent arguments that the judge's finding regarding the time during which the injury occurred was either too short or too long.8

Although their criticism of the scope of the five-day window might have had some appeal for a factfinder, our task is to determine whether there was credible evidence to support the judge's finding that the injury could have occurred while in defendants' care, and the simple answer to that question is yes. As a result, the judge's finding of fact on this point commands our deference.

This, however, does not end the inquiry. The evidence relied upon by the judge suggests it is highly unlikely that all four defendants caused the child's injuries. Because of the child's age, she was unable to identify her abuser, and the Division did not have access to information as to the identity of the abuser other than what might have been provided by defendants and the child's mother and the mother's paramour. In these circumstances, we have held that "[t]he 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; see also S.S., supra, 275 N.J. Super. at 181. Consequently, we turn to the application of res ipsa loquitur in this case.

The judge concluded that it was appropriate to shift the burden to defendants and the child's mother and her paramour "to come forward with an explanation by a preponderance of the

evidence to exculpate themselves or to give . . . a factual basis as to how these injuries happened." We interpret this statement as saddling all four defendants with the burden of persuading the court that they were not abusers in accordance with D.T., and not merely with the burden of introducing evidence applied in J.L. We conclude that the judge properly utilized the D.T. standard because of the small class of potential abusers and the brief period of time during which the abuse occurred.9 And, because no defendant offered evidence of exoneration, the judge rightfully found defendants, as well as the child's mother and her paramour to have engaged in abuse or neglect.

In so holding, we reject defendants' argument that D.T. should be reconsidered or "reformulated." To the contrary, we continue to adhere to D.T., which provides the appropriate

standard for this and other similar cases. Indeed, we can add nothing to the forceful explanation of the majority opinion in D.T., which rhetorically disposed of the contention that the burden of persuasion should not shift in these circumstances:

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[10] 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]

 

We decline the invitation to adopt a different approach, which might provide for child abusers a primer on how to avoid a finding of abuse or neglect through silence or obfuscation. Any other approach would be contrary to the intent of Title Nine, which 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.11

Affirmed.

1The Division of Youth and Family Services was renamed the Division of Child Protection and Permanency, effective June 29, 2012. L. 2012, c. 16.

2The bed consisted of two mattresses with no box spring, the top surface of the upper mattress being approximately seventeen inches from the underlying linoleum floor.

3"[P]roof 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. 9:6-8.46(a)(2).

4That is, because the judge found defendants had not exonerated themselves, the finding regarding T.I. demonstrated that their own child was an "abused or neglected child" within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b).

5T.I.'s mother and her paramour have not appealed.

6N.J. Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173 (App. Div. 1994).

7N.J. Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454 (App. Div. 2008).

8Because defendants only had access to the child on the Monday, Tuesday and Wednesday before the Friday on which the injury was medically diagnosed, defendants self-servingly seek to avoid a finding of abuse or neglect by inconsistently arguing, without offering supporting evidence, that the injuries either occurred before Monday or after Wednesday.

9We are mindful that in J.L., the D.T. standard was deemed inapplicable because the child's injuries "occurred at three different times over a period of several weeks" during which the parents were not the only individuals with access to the child; during the time frame, two grandmothers, other relatives and friends, and medical personnel had access to the child. J.L., supra, 400 N.J. Super. at 469. In those circumstances, we held that the burden-shifting paradigm described in D.T. was inapplicable, and that only the burden of introducing evidence shifted to the parents, with the burden of persuasion remaining with the Division. Id. at 469-70. The facts here, however, are quite different from J.L., in that the evidence presents only a small class of potential abusers and a short time frame during which the injuries occurred.

10Anderson v. Somberg, 67 N.J. 291 (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).

11We would lastly note that D.T. was decided twenty-five years ago, and the Legislature has not acted to create a different standard, suggesting its agreement with our interpretation of Title Nine's application in such circumstances. See Mani v. Mani, 183 N.J. 70, 88 (2005); Mass. Mut. Life Ins. Co. v. Manzo, 122 N.J. 104, 116 (1991).

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