DIVISION OF YOUTH AND FAMILY SERVICES v. S.C. and H.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2971-06T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Appellant,

v.

S.C. and H.W.,

Defendants-Respondents,

and

C.L.,

Defendant.

__________________________________

IN THE MATTER OF

M.L., a minor.

__________________________________

 

Submitted November 5, 2007 - Decided:

Before Judges A. A. Rodr guez, Collester and C. L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FN-07-81-07.

Anne Milgram, Attorney General, attorney for appellant (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor Armstrong, Deputy Attorney General, on the brief).

Melville D. Miller, Jr., President of Legal Services of New Jersey, attorney for respondent S.C. (Diana Dunker, on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent H.W. (Robert H. McGuigan, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for M.L., a minor (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

The Division of Youth and Family Services (DYFS) filed a verified complaint and order to show cause regarding injuries received by M.L., a four-year-old boy. The complaint, as amended, sought to place M.L. in the care, custody and supervision of DYFS and named the child's biological parents, C.L. and S.C., as well as S.C.'s live-in boyfriend, H.W., as defendants. Physical custody of M.L. remained with his mother and H.W. Following a fact-finding hearing, the judge entered an order on December 2, 2006, dismissing the complaint, because DYFS "did not prove its case by a preponderance of evidence. The court [does] not find that abuse and neglect existed." We reverse and remand for a new hearing.

M.L. lived with his mother S.C. and H.W. S.C. and H.W. had been in a relationship for three years and have lived together for two. M.L. considers H.W. to be his dad. According to S.C., there is no history of violence or illness when M.L. is left in the sole care of H.W. DYFS produced no evidence suggesting otherwise.

On August 15, 2006, M.L. suffered severe injuries which kept him in the hospital until September 25, 2006. The origin of these injuries is disputed.

At the fact-finding hearing, DYFS Investigator Cheryl Smith, testified that St. Barnabus Hospital contacted DYFS to report M.L.'s injuries on August 16, 2006, and she went to the hospital to investigate. At the hospital, Smith interviewed S.C. and H.W. Both were very cooperative. They told Smith that M.L. said he had been playing with or racing a cat when the cat scratched him and he fell, sustaining scratches to his face.

Smith interviewed M.L. at the hospital two weeks after the incident. M.L. told her that he had been playing outside by himself and that when he fell, H.W. was in the house playing a racing video game. For some reason, Smith was not sworn in at the hearing, although she told the judge the facts that she investigated.

S.C testified that when she arrived home from shopping, M.L. told her he had been outside racing a cat when he fell and scratched his nose. When S.C. asked M.L. where H.W. was at the time of the fall, M.L. made exercising motions with his arms, as if going up and down on an exercise machine. S.C. took this to mean outside, that H.W. was exercising in the yard. According to S.C., on two separate occasions after the incident, M.L. told her the same story.

S.C. testified that H.W. always takes excellent care of M.L. and it would have been totally out of character for H.W. to allow M.L. to play outside unattended. C.L. also told Smith that M.L. had told him on the date of the incident that H.W. was outside with M.L. when he sustained his injuries.

H.W. testified that he was outside doing pull-ups while M.L. was running around playing. It was around 6:30 p.m. and still light out. When H.W. was doing pull-ups, he could not see M.L., but testified that he was never more than twelve feet away from where M.L. was playing. H.W. had done pull-ups outside and watched M.L. on a number of previous occasions.

During his eighth pull-up in a set of twenty, H.W. heard M.L. crying and saying "daddy," and ran to him immediately. H.W. saw scrapes on M.L.'s nose, elbow and knees, "like he fell." He also testified that it would have been "impossible" for M.L. to have injured himself near or under H.W.'s car, which was parked in the driveway. Although M.L. told H.W. that he was playing with a cat, H.W. said he never saw a cat.

H.W. called S.C., who was out shopping, to apprise her of the situation. She told H.W. to clean him up with peroxide. H.W. cleaned M.L.'s face with peroxide and then wiped it with a warm rag. M.L. told Smith that H.W. took him to the bathroom where H.W. wiped his face with a rag and warm liquid, but M.L. could not say whether the liquid was water or something else. S.C. testified that when she saw the rag later it was a blue Martha Stewart wash cloth and that upon ringing it out, the dye seeped from the rag.

Smith continued her investigation by visiting the scene of M.L.'s injury. In her opinion, H.W. could not have seen M.L. fall from where he said he was doing pull-ups. Smith testified that, in her estimation, H.W.'s conduct constituted inadequate supervision.

At the fact-finding, the parties stipulated to the fact that M.L. had been injured and had to go to the emergency room. Smith indicated that, according to the report of Dr. Raksha Gajarawala, one of DYFS's consulting physicians, M.L. suffered from second-degree burns to the face, head and neck. His report also notes that the burns covered 16% of M.L.'s total body. The report concludes with the doctor's opinion that the explanation offered by S.C. and H.W. was inconsistent with M.L.'s injuries.

As part of her investigation, Smith also interviewed and read the report of Dr. Michael Marano, a burn specialist at St. Barnabus Hospital. It was his opinion M.L.'s burns were caused by hot liquid (with or without a chemical component) that dripped onto his neck and ran down over his face, known as "gravity drainage." An example Dr. Marano gave in his report of how a child could receive such an injury would be if a child was playing under a car and hot liquid dripped down, first hitting him in the back of the neck. Dr. Marano also opined that the liquid which burned M.L. had to be at least 140 degrees Fahrenheit. He also ruled out the possibility that peroxide caused M.L.'s injury.

DYFS's position was that M.L. sustained his injuries while in the care of H.W., but the agency could not explain exactly what happened. Following the testimony of all witnesses, DYFS's counsel admitted that nothing intentional or sinister was done by either S.C. or H.W., but whatever happened to M.L. was "not an accident because we don't know what the cause of the injury was."

The judge first determined that he would admit the statements made by M.L. to S.C., C.L. and H.W. (that M.L. said H.W. was outside when he fell) and that he would not admit the statement made to Smith (that M.L. said H.W. was inside playing a video game when he fell). The judge, however, found this ruling non-dispositive. The judge found that DYFS did not show, by a preponderance of the evidence, that either S.C or H.W. abused and/or neglected M.L. He went on to say that "[t]he best case for [DYFS] is [H.W.] was a trifle - he - he did not see the child for about 40 seconds. . . . It may be as much as 50 . . . ." The judge concluded that "keeping your eye off a 3-year old, who is 25 feet from the street, for 35 to 40 seconds is . . . [not] sufficient to constitute abuse or neglect." The judge dismissed the complaint. This appeal followed.

DYFS contends that the judge committed reversible error by concluding that M.L. was not an abused or neglected child. DYFS argues specifically that the judge: failed to apply the burden-shifting doctrine; erred by excluding M.L.'s statement to Smith; and erred by accepting H.W.'s version and finding him credible. We conclude that, because H.W. was not sworn as a witness, his version of events cannot be considered "credible." This warrants a vacation of the order dismissing the complaint because the judge based his decision in part on H.W.'s believability.

S.C. points out in her brief that neither Smith, DYFS's only witness, nor H.W. swore or affirmed to tell the truth before they testified. Because the fact-finding is a "critical element of the abuse and neglect process[,]" and "[t]estimonial evidence must be presented through witnesses who are under oath, N.J.R.E. 603," the court below essentially abdicated its duty to run the fact-finding in accordance with procedural rules. N.J. Div. of Youth & Family Servs v. J.Y., 352 N.J. Super. 245, 264-65 (App. Div. 2002). "[T]his critically important part of the business of the Family Part demands meticulous adherence to the rule of law." Ibid.

An oath or affirmation is not an empty gesture. State v. Caraballo, 330 N.J. Super. 545, 555 (App. Div. 2000). A trial court violates a criminal defendant's right to a fair trial when it allows accusing witnesses who neither swear nor affirm to tell the truth to testify against the accused. Ibid. In the context of civil commitment hearings, failure to swear or affirm the witnesses violates procedural due process. In re Commitment of B.L., 346 N.J. Super. 285, 307 (App. Div. 2002). The concern is equally important here, where the fate of a child and the rights of his parents are in serious jeopardy. J.Y., supra, 352 N.J. Super. at 265. "Without swearing in the witnesses, there are no proofs presented at the hearing. Due process requires that a court must have proofs, which lead to the decision." B.L., supra, 346 N.J. Super. at 307 (quoting Callen v. Gill, 7 N.J. 312, 319 (1951)).

Because Smith and H.W. did not swear or affirm to tell the truth, there were no proofs presented at the hearing upon which the trial court could make a decision. Therefore, the fact-finding hearing must be conducted anew. In order to keep the fact-finding process pristine and unaffected by Smith's or H.W.'s statements, we order that a different judge should conduct the hearing on remand. For the guidance of the new trial judge, we reiterate the principles governing the burden-shifting doctrine. N.J.S.A. 9:6-8.46a(2) provides:

In any hearing under this Act . . . (2) 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 a abused or neglected child . . . shall be sufficient to make a fact finding of abuse or neglect.

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

Therefore, an injury to the child can constitute a prima facie evidence case of abuse or neglect. Ibid. The burden shifts to the child's caregiver. Ibid. New Jersey Div. of Youth and Fam. Servs. v. S.S., 275 N.J. Super. 173, 179 (App. Div. 1994). See New Jersey Div. of Youth and Fam. Servs. v. F.H., et al., 389 N.J. Super. 576, 612 (App. Div. 2007), cross-petitions for cert. denied, 192 N.J. 68 (2007) (finding absence of objective evidence establishing a medical explanation for the injuries and the implausibility of the parents' explanation as to the result of abuse or neglect by the parents).

 
The December 21, 2006 order is vacated. The matter is remanded to the Presiding Judge of the Chancery Division, Family Part, Essex County to assign a new judge to conduct a fact-finding hearing. We do not retain jurisdiction.

Smith did not testify under oath or affirmation. See Discussion, Issue I, infra.

The judge determined this time frame based on an in-court experiment in which H.W. pretended to do pull-ups and the judge timed him.

(continued)

(continued)

10

A-2971-06T4

RECORD IMPOUNDED

December 7, 2007