NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0080-11T2

A-0505-11T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.R. and S.T.,

Defendants-Appellants.

_______________________________

IN THE MATTER OF

G.R. and H.S.R.,

Minors.

_____________________________________________________

December 7, 2012

Submitted October 23, 2012 - Decided

Before Judges Fisher, Alvarez and St. John.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-173-09.

Joseph E. Krakora, Public Defender, attorney for appellant R.R. (Dianne Glenn, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney forappellant S.T.(Cecilia M.E. Lindenfelser, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorneyfor respondent(Lewis A. Scheindlin, Assistant Attorney General, of counsel; James P. Gentile, Deputy Attorney General, on the brief).

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

PER CURIAM

In these consolidated appeals, both parents of G.R., who was born on February 5, 2009, argue that the evidence was insufficient to support a finding of abuse and neglect, and that the finding was based on a mistaken application of the doctrine of res ipsa loquitur. We find no error and affirm.

The proofs adduced by the Division of Youth and Family Services (the Division)1 at a fact-finding hearing revealed the following.

Defendants S.T. and R.R. are the biological parents of G.R.2 Both defendants were employed in the Atlantic City casino industry. On March 27, 2009, the Division received a referral from Kathleen Brown, a nurse at AltantiCare Regional Medical Center in Pomona. An investigation concluded that the seven-week old child was sleeping on defendant S.T.'s chest when her child fell off onto the floor. The mother picked up the child, who was awake but not crying, and noticed the child's eye had begun to swell and a knot formed on her forehead; there was also a little blood on the child's nose. The child soon began crying non-stop. Hysterical and panicky, the mother called R.R., the child s father, at work so they could take the infant to the emergency room.

Medical personnel at the hospital determined that the infant suffered a right parietal skull fracture; the attending doctor felt the injuries were consistent with the mother's account of events. Mother and child were flown by helicopter to Children's Hospital of Philadelphia, where the treating physician advised that the child suffered a subconjunctival hemorrhage to her left eye. The child remained hospitalized until April 2, 2009.

On March 30, 2009, a Division caseworker spoke with the child's attending nurse, who informed her that the mother had acted appropriately with the child, cared for her daily at the hospital, and was bonded with the child. The caseworker, however, also learned of evidence that the child had healing rib fractures. On April 1, 2009, Dr. Sarah Frioux, of Children's Hospital, advised the Division that x-rays revealed eleven healing rib fractures and all fractures were more than two but less than eight weeks old.

On April 2, 2009, while the child remained hospitalized, the Division filed this action. The parties consented to the Division's request for custody, and the child was placed with her paternal grandparents upon her release from the hospital.

At a fact-finding hearing held on April 28 and 29, 2010, the Division called Dr. Frioux as an expert witness. Dr. Frioux testified that it would be impossible for a child to fracture the back side of her head, as the child had, simply by falling onto her face, as reported; according to Dr. Frioux, the Scan Unit of Children s Hospital suspected that on some other occasion the child had received an impact to the back of her head. Dr. Frioux further opined that the ruptured blood vessel the child sustained to her left eye was not consistent with a fall to the floor; that, for such an injury to occur, pressure would need to be put on the eye itself, and it was difficult to comprehend how a flat floor would have produced that result.

Because the child suffered a right skull fracture and injuries to her left eye, Dr. Frioux surmised there must have been two separate impacts. After speaking with the child s parents, Dr. Frioux learned of a second fall several weeks earlier in which the child had fallen off the mother's chest much like the March 27, 2009 incident. Dr. Frioux testified it was possible the skull fracture resulted from this earlier fall and acknowledged there was no way to determine the age of the prior injury. She noted that while it may be common for infants to be dropped or roll off beds, it is uncommon to see a skull fracture resulting from such a fall.

Dr. Frioux also testified about the two sets of rib injuries, which she found could have occurred as early as March 13 or as late as April 1, 2009. Dr. Frioux concluded that the injuries did not occur during birth -- because the child was born by caesarian section -- and were not a result of a vitamin D deficiency. She noted that the injuries to the tenth rib likely occurred after the eleven other rib fractures and acknowledged that the fracture to the tenth rib could have but was unlikely to have occurred while the child was at a patient at Children's Hospital. Dr. Frioux further testified that after sustaining such injuries, an infant would be irritable, but that might only last as little as a day. In this regard, Dr. Frioux testified that the parents explained they did remember the child being irritable during the time frame of the injury; however, it could not be known whether that irritability resulted from the fractures or from a reflux condition.

On cross-examination, Dr. Frioux conceded that the child's eye injury could have resulted from an impact with an object on the floor or the leg of the nearby crib. In addition, while it was Dr. Frioux's opinion that blunt force trauma caused the head-injury, she acknowledged that she could not determine "whether her head hit something hard or something was used to hit her in the head." Dr. Frioux agreed it was possible for the head injury to have resulted from an occasion when the child struck her head in the bathtub.

The child s father was the only witness to testify on either his or his wife's behalf. In an attempt to deflect blame to others, he testified that his parents watched the child once a week while he and the child s mother did laundry, and that the child was also cared for by her maternal grandmother and another relative a few times approximately one month after she was born. He also testified that the child fell for the first time in early March, and that when he picked her up she cried but had no bruises or marks. The child's father also testified about a doctor's visit a few days after that fall and that the child s mother informed either the doctor or the nurse about that fall. In addition, he testified that since birth the child had been to all of her routine checkups and no doctor ever mentioned any bumps or bruises on the child's body.

The child s mother did not testify. And defendants did not call as witnesses any of the relatives or other individuals who may have cared for the child during the relevant time period.

At the conclusion of the hearing, the trial judge rendered an oral opinion in which he found Dr. Frioux's testimony to not only be uncontradicted but also credible. Based on her expert testimony, the judge found the Division made a prima facie showing that the child "was subjected to child abuse on . . . at least two occasions." The judge concluded, in finding the mother had not exercised the minimal degree of care required by law, that "[o]ne would logically think that if you place a child on your chest and then you fall asleep and a child falls off, particularly a child that's less than two months old, you wouldn't do it a second time." Because the child s mother made this same mistake a second time, the judge was convinced "there was a clear lack of understanding by [the mother] in how to handle a child of such a tender age." The judge recognized that it was not clear how the child sustained her injuries, noting in part that the mother had not testified and the father testified that he did not know how the injuries occurred. As to what the child s father did testify, the judge found him lacking in credibility. The judge also drew an adverse inference against defendants based on the mother s failure to testify and defendants failure to call others who cared for the child during the time frame in question:

[t]his [c]ourt does not -- could not find it credible or logical that these parents would not know that their child had been abused on various occasions that resulted in a skull fracture and thirteen rib fractures. Whether they themselves caused the problem or various relatives, I am satisfied that under the doctrine of conditional res ipsa loquitur that the defendants had the burden of going forward to explain the injuries. This [c]ourt finds that [the child s father] failed in that burden, that [the father] is covering up either for his wife, himself or another relative.

. . . .

I find that [defendants] did not carry their burden going forward to explain the prior injuries. I find and I am satisfied clearly by a preponderance of the evidence that they knew about the prior injuries, that they had to know about the prior injuries based upon [Dr. Frioux's] testimony as to how the child would react and they failed to get medical care for the skull fracture and the prior rib injuries that were in a healing process.

Defendants appeal, arguing that the evidence was insufficient to support a finding of abuse or neglect, and that the trial judge misapplied the doctrine of res ipsa loquitur. We reject these arguments.

In approaching these issues, 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). We will not second guess a family judge's findings so long as they were 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." Id. 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.

In this case, it was the Division s burden 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). N.J.S.A. 9:6-8.21(c)(4) provides that a child is abused or neglected when, the child's

physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including . . . any . . . acts of a . . . serious nature requiring the aid of the court.

In applying these standards, we observe that the judge found Dr. Frioux to be credible and persuasive, and he found the testimony of the child's father to be unworthy of belief. We are obligated to defer to those findings, which produced the judge's conclusions that the child was subjected to intentional abuse or was otherwise injured as the result of the parents' failure to exercise a minimum degree of care. The judge also found that the facts required a determination that the parents failed "to get proper medical care [for the child] at the time these injuries occurred." That is, although the judge found that the parents immediately sought medical attention when the child was alleged to have fallen from the mother's chest on March 27, 2009, the evidence also revealed that the child sustained other injuries3 and no medical care was sought on those prior occasions.

We also find no error in the judge's application of res ipsa loquitur principles, which were utilized because the judge found that the circumstances precluded the Division from proving precisely how and when the injuries occurred. In such instances, both Title 94 and common law principles5 provide an inference that the child was abused at defendants' hands. As we explained in J.L., once the Division establishes -- as it did here -- that the child sustained injures "of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent," N.J.S.A. 9:6-8.46(a)(2), "the burden will shift to the parents to come forward with evidence to rebut the presumption of abuse or neglect," J.L., supra, 400 N.J. Super. at 470. Because only the child's father testified for the defense, and because the judge found his testimony unworthy of being credited, the presumption of abuse was not rebutted. Ibid.

In addition, we discern from the judge's decision that he also found defendants failed to introduce evidence to support a contention that the child was injured while in the care of others as a means of avoiding the inference that either or both of them abused the child. In weighing Dr. Frioux's testimony, the judge concluded that none of the rib fractures occurred during the child's hospitalization. The judge also drew the inference that the abuse occurred at the hands of defendants because they did not come forward with evidence that others were culpable. Such an application of the res ipsa principles discussed in In re D.T., 229 N.J. Super. 509 (App. Div. 1988), was appropriate in these circumstances.

Certainly, in light of her age, the child was unable to identify her abusers, and whether other persons cared for the child was a matter within defendants' knowledge. The child's mother offered no explanation, and the child's father did not credibly provide evidence that others may have caused the injuries. In the similar circumstances of D.T., we 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." 229 N.J. Super. at 517; see also N.J. Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 181 (App. Div. 1994). The judge's application of res ipsa principles was consistent with that holding.

We are mindful that, in J.L., the D.T. standard was deemed inapplicable where 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 of the injuries considered in J.L., two grandmothers, other relatives and friends, and medical personnel had access to the child. 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.

We need not determine whether this case is more like J.L. than D.T. because even the former holding, which is less onerous on defendants than D.T.'s holding, leads to the same conclusion. That is, the judge's credibility findings reveal that he did not find the father's testimony, which included his suggestion that the child was perhaps injured while in the physical custody of others, to be worthy of belief, and, again, the mother did not provide an explanation. In that instance, the decision under review may be viewed as one in which the parents did not come forward with credible evidence of either their non-culpability or to rebut the presumption of abuse or neglect, leaving the Division's proofs unrebutted. Indeed, a fair reading of the trial judge's decision does not suggest that the judge shifted the burden of persuasion to defendants, only the burden of introducing evidence. Thus, the judge's decision appears to have adhered to a standard less draconian on defendants than the D.T. holding.

We lastly observe that both defendants have argued they were denied the effective assistance of counsel, citing N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301 (2007). We find insufficient merit in those arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

A

1The Division was recently renamed the Division of Child Protection and Permanency. L. 2012, c. 16 (eff. June 29, 2012).

2Their second child, H.R., was born on February 17, 2011. She was released to her parents' custody after they agreed with the Division to an in-home safety protection plan.

3As the experienced judge said in his oral decision, "this child was subjected to child abuse on numerous occasions. Dr. Frio[ux] testified it had to occur on at least two occasions. Very well could have been more."

4N.J.S.A. 9:6-8.46(a)(2) declares that in child abuse or neglect matters, "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 . . . ."

5See, e.g., N.J. Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454 (App. Div. 2008).