NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1025-11T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

C.H.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF D.J., Y.M. and D.M., minors.

___________________________________

December 3, 2012

Submitted September 20, 2012 - Decided

Before Judges Fuentes, Grall, and Ashrafi.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Camden County, Docket No. FN-04-523-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Angela N. Domen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.J., Y.M., and D.M. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

C.H. appeals a finding that she abused or neglected a baby who had multiple, non-accidental and untreated rib fractures sustained at different times during the first year of her life. From the time the baby was born until her injuries were detected, C.H. lived with the baby, the baby's half brother and D.M., the mother of these two children. C.H. and D.M. were the baby's only caregivers.

The finding against C.H. is one aspect of litigation the Division of Youth and Family Services (Division) commenced to protect D.M.'s children, in accordance with N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. The Division named C.H. as a codefendant in the third amended complaint it filed in the action. Following the fact-finding hearing, the trial judge found both C.H. and D.M. responsible for the baby being abused or neglected. Because C.H. and D.M. were no longer living together and C.H. no longer had any role in caring for any of D.M.'s children, the trial judge dismissed C.H. from the dispositional phase of the proceedings. See N.J.S.A. 9:6-8.45 to -8.58a. Accordingly, the other aspects of the litigation are irrelevant to the issues raised on this appeal.

C.H. contends that the Division's evidence was inadequate to establish that she abused or neglected D.M.'s baby and that the trial judge erroneously shifted the burden of disproving that the baby was abused or neglected. Finding no legal error and adequate support for the trial judge's determinations in the record, we affirm.

I

At the fact-finding hearing, the Division introduced its investigation report, which included summaries of statements D.M. and C.H. gave to a caseworker; a report prepared by Dr. Kathryn McCans, M.D., the child-abuse pediatrician for the hospital where the baby was treated who reviewed the baby's medical records and interviewed D.M.; and Dr. McCans' expert testimony. The Division's documentary evidence was admitted without objection, and both D.M. and C.H. declined the Division's offer to have the authors of the investigation report available for cross-examination. Neither defendant presented any evidence.

The Division's evidence established that D.M. and C.H., along with D.M.'s son D.J., made a home together soon after the women met in 2009. D.M. gave birth to this baby in May 2010. Although D.M. was involved in a motor vehicle accident while she was expecting the baby, she was not injured.

Following the baby's birth, D.M. and C.H. were her only caregivers. As C.H. explained, the baby was never left with anyone else. According to D.M., the baby would not go to anyone but them. Whenever the baby awoke in the middle of the night, she slept with either D.M. or C.H. The baby's brother D.J., who was six years old, sometimes wrapped his arms around the baby and picked her up. None of the fathers of D.M.'s children lived with D.M. after the baby was born, and none of them was ever with the baby unless C.H. or D.M. was present.

On May 25, 2011, the baby was having trouble breathing. Consequently, D.M. and C.H. called 911 and she was taken to the hospital. The baby was in respiratory distress and was treated for fever and wheezing. Her condition improved with medication. Accordingly, the attending doctor wrote prescriptions and discharged her.

The following day, a pediatric radiologist reviewed the results of the baby's chest radiograph and detected multiple rib fractures in various stages of healing. There were seven rib fractures to the right ninth and lateral right eighth posterior ribs and to the lateral left second, fifth, sixth, seventh and tenth anterior ribs. Additionally, the left eighth, ninth and tenth ribs had an "abnormal curvature" suggesting, but not establishing, additional fractures there.

Based on the number and distribution of the fractures, the radiologist believed they did not occur on a single occasion, were chronic and "very suspicious for non-accidental trauma." Accordingly, D.M. was asked to return to the hospital with the baby.

When D.M. complied, the baby was again in respiratory distress and feverish; neither D.M. nor C.H. had filled the baby's prescriptions. Because of her condition, the baby was admitted to the hospital and received a regimen of steroid and nebulizer treatments.

A caseworker from the Division interviewed D.M. and C.H., and both women provided information about the baby. Both women reported that the baby was active. Sometimes she threw herself away from D.M. while she was holding her. When the baby did that D.M. grabbed her around the ribs, "not tightly," to prevent her from falling. The baby also fell frequently while she was learning to walk, and she had a small cut on her head due to one of those falls. D.M. stressed, however, that the baby had never fallen down a flight of stairs or off a bed.

D.M. also reported that the baby sometimes squeezed herself between a night stand and a freezer and hid herself in small cabinets. She also recalled that her son D.J. occasionally put his arms around the baby's ribs to pick her up. Both women denied hitting the baby or being aware of anyone else hitting the baby. Neither had observed any behavior indicating that the baby was in pain.

In Dr. McCans' opinion, the fractures were not accidentally caused and resulted from incidents that occurred at various times, all weeks before the fractures were detected. Dr. McCans discussed and explained why the medical evidence supported her opinion on the nature of the causative trauma.

First, a single trauma was ruled out because of the scattered location and the varying amounts of callusing at the several fracture sites. The difference in the calluses indicated that some had less time to heal than others.

Second, the fractures were not the result of the baby having fragile bones because none of the "stigmata" of a condition causing bone fragility was found during examination or in the results of a battery of diagnostic tests that included two bone scans, a complete blood count, urinalysis, a liver function test and others. Moreover, in young children, even those who have bone fragility, rib fractures are uncommon.

Dr. McCans further explained that because the ribs of young children are very "pliant," a rib fracture requires a "very severe mechanism." From that premise, she addressed the events of the baby's life as described by D.M. and C.H. and found nothing that would explain them as accidental.

In her opinion, D.M.'s grabbing the baby to prevent her from falling from her arms was not sufficiently severe to cause a rib fracture; a forceful grasping, like that involved when a baby is shaken, would be required.

Dr. McCans ruled out other possibilities suggested by the statements D.M. and C.H. had made. In her opinion, the fractures were not caused by a sleeping adult rolling onto the baby because that event involves "slow compression" and fractures generally are not found when that occurs, even when a child dies from "overlying." She concluded that no six-year-old child, even one big for his age, could have fractured the baby's ribs by picking her up. And she rejected the possibility that the fractures were caused prior to birth, because that would not happen unless D.M. sustained serious injuries, which had not happened. There was no medical evidence suggesting that the baby's ribs could have been fractured during delivery.

Finding Dr. McCans' testimony credible, the trial judge accepted it and relied upon it. The judge found, by a preponderance of the evidence, that the injuries were not accidental and not caused by D.J. The judge then concluded:

The burden then has shifted over to the defendants to exclude one of them in light of the fact that both of them have said that this child has only been in the care of the two of them. So, we know it was a non-accidental injury. The question is, who did it?

This court is is not clear as to who has done it, because neither defendant has chosen to take the stand. One of them must know that they did it, and one of them must know that they did not do it. I don't know which is which, this Court does not have any information pertaining to it. So, therefore, this Court is left with no choice but to determine that this is an abused child by either one of the defendants.

II

C.H. raises three issues on appeal:

I. THE TRIAL COURT FAILED TO APPLY THE

CORRECT RES IPSA LOQUITUR STANDARD.

A. The Traditional Res Ipsa Loquitur Standard Should Have Been Applied in this Matter Which Would Have Required the Division to Prove its Case by a Preponderance of the Evidence; The Division Failed to Meet its Burden.

B. The Trial Court Erroneously applied the Conditional Res Ipsa Loquitur Standard and Thus Improperly Shifted the Burden of Proof to [C.H.].

II. THE TRIAL COURT'S FINDING AGAINST

[C.H.] IS NOT SUPPORTED BY A PREPONDERANCE OF CREDIBLE EVIDENCE AND MUST BE REVERSED.

III. THE PUBLIC POLICY UNDERLYING THE LAW GOVERNING THIS MATTER SUPPORTS A FINDING THAT [C.H.] DID NOT ABUSE OR NEGLECT THE MINOR CHILD.

The question a judge must determine at a fact-finding hearing is whether the child is abused or neglected as defined in N.J.S.A. 9:6-8.21(c). N.J.S.A. 9:6-8.44. A child "whose parent or guardian . . . inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates . . . protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ" is an abused or neglected child. N.J.S.A. 9:6-8.21(c). A person "who has assumed responsibility for the care, custody or control of a child" is a "parent or guardian." N.J.S.A. 9:6-8.21a. Pursuant to N.J.S.A. 9:6-8.46a(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 . . . is an abused or neglected child.

In effect, the prima facie case defined in N.J.S.A. 9:6-8.46a requires the defendant to produce evidence rebutting an inference that his or her acts or omissions contributed to the harm. See N.J. Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 180-81 (App. Div. 1994) (discussing and quoting In re S., 322 N.Y.S.2d 170 (Fam. Ct. 1971), and In re Roman, 405 N.Y.S.2d 899, 904 (Fam. Ct. 1978)); N.J. Div. of Youth & Family Servs. v. A.C., 389 N.J. Super. 97, 108-09 (Ch. Div. 2006). If the Division has established the predicate facts injuries of a sort that generally would not be caused except by reason of the acts or omissions of persons responsible for the child's care then, the judge, considering the entirety of the evidence, determines whether the Division has established that the child is abused or neglected by a preponderance of the evidence.

C.H. argues, and we agree, that the practical effect is a shift of the burden of production that allows the parent or guardian to decide whether or not to offer additional evidence or rely on weakness of the State's evidence of the predicate facts. Given the effect of the statute, we reject C.H.'s claim that the evidence was inadequate to support the judge's determination that she abused or neglected the baby. Dr. McCans' testimony was more than adequate to establish that the baby would not have sustained her numerous rib fractures but for the acts or omissions of C.H. The inference that C.H. either inflicted them or allowed them to be inflicted was clearly available from the evidence. C.H. and D.M. shared responsibility for the baby's care. Thus, the one who did not utilize the mechanism sufficiently severe to cause the fractures on multiple occasions allowed that abuse to continue.

We turn to consider C.H.'s first point that the judge should not have applied a form of res ipsa loquitur that shifts the burden of persuasion as well as the burden of production. This court has held that both the burden of persuasion and the burden of production may be properly shifted to a defendant in a Title Nine action where the defendant is "one of a limited number of people in control of" a child when the child sustains such injuries. S.S., supra, 275 N.J. Super. at 181; cf. N.J. Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 469 (App. Div. 2008) (refusing to shift the burden where the parents were not the only individuals with control over the child). The rationale behind this burden-shifting paradigm is as follows:

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 doctrine? The burden would then be shifted, and such defendants would be required to come forward and give their evidence to establish non-culpability. See Anderson v. Somberg, 67 N.J. 291, 298-99 (1975), cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975).

Shifting of the burden is no less appropriate here, particularly as neither punitive relief nor damages are sought, but only continued limited DYFS monitorship of an admittedly abused child.

[In re D.T., 229 N.J. Super. 509, 517 (App. Div. 1988) (footnote omitted).]

To the extent C.H. contends that the evidence did not permit application of D.T.'s rule, her argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). On this record, the only other person that could have been responsible for inflicting the injuries was the baby's six-year-old half brother, and there was no evidence supporting an inference that he had caused them. Moreover, by C.H.'s own account, no one other than she and D.M. cared for the baby and she was never left with anyone else.

C.H. suggests that shifting the burden of persuasion is improper. In this case, the distinction between a shift in the burden of production and persuasion has no import because the judge's determination that either D.M. or C.H. inflicted the injuries rests on factual findings that are adequately supported by the record. As noted above, the evidence and available inferences permitted a finding that one of the women repeatedly inflicted the rib fractures and that the other allowed the conduct to continue. Because of their shared responsibility for the care of the child, identification of their respective contribution to the harm was not critical.

In her third and final point, C.H. presents an argument based on the consequences that accompany a finding of abuse or neglect, which includes listing in the Division's registry. She relies on an opinion in which we discussed the significance of being listed in the registry in a case where the trial court found that the mother abused or neglected her child by her "failing to appreciate the continuing risk of harm posed by the actions of her husband." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 15 (App. Div. 2004). The action of the husband in that case, however, was an attack against the mother, not the child. Id. at 21-22. There is no question that the Legislature intended that an adult who has assumed responsibility for the care of a child, as C.H. did, be held responsible for a child's abuse or neglect if he or she allows another to inflict serious injuries. Whether observers should or should not be included in the Division's registry, as N.J.S.A. 9:6-8.11, -8.21, and -8.44 collectively require, is a question for the Legislature, not the courts. Nothing in the opinion on which C.H. relies suggests that courts are free to refrain from finding abuse or neglect that is established by the evidence because it believes the consequences are harsh.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families. The reorganization includes the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012. For clarity, and to maintain consistency with the record, the Division is referred to herein under its previous title and the acronym DYFS.