DIVISION OF CHILD PROTECTION AND PERMANENCY v. N.C IN THE MATTER OF C.N-C and K.C-N., minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

N.C.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF C.N-C. and

K.C-N., minors.

__________________________________

October 1, 2015

Submitted September 16, 2015 Decided

Before Judges Sabatino and O'Connor.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-420-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne M. Kalosieh, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michael A. Antenucci, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (James J. Gross, Designated Counsel, on the brief).

PER CURIAM

Defendant N.C. ("father") appeals the October 18, 2013 order finding that in or about April 2013 he abused or neglected his six-month-old daughter, K.C-N. ("Kristina" or "the baby"),1 by physically injuring and failing to obtain medical treatment for her.2 The father principally argues the trial court erred by shifting, without advance notice, the burden of persuasion from the Division of Child Protection and Permanency ("Division") to him to prove that he did not harm Kristina. After reviewing the record in light of the contentions advanced on appeal, we vacate the trial court s order and remand for further proceedings.

I

On May 1, 2013, the Division conducted a Dodd removal3 of Kristina and her four-year-old brother, C.N-C. ("Charlie"), from their parents custody after the medical staff at the University of Medicine and Dentistry of New Jersey ("UMDNJ") informed the Division that Kristina had sustained a fractured skull and a subdural hematoma, and that the parents were unable to explain how she had been injured. Two days later, the Division filed a verified complaint seeking the care, custody, and supervision of both children pursuant to N.J.S.A. 9:6-8.21 to -8.106 and N.J.S.A. 30:4C-12. The court ordered that the children continue in the Division's custody.

Before the fact-finding hearing to determine if Kristina had been abused or neglected, see N.J.S.A. 9:6-8.44, one of her treating pediatricians, Raksha Gajarawala, M.D., authored a report summarizing her findings and conclusions. The report, which was admitted without objection during the hearing, disclosed the following. Kristina presented to the emergency room on May 1, 2013, after she stopped breathing for a brief period and had what appeared to be a seizure. The mother, who brought the baby to the emergency room, also reported Kristina had been vomiting since the previous evening. When in the emergency room, the medical staff noted Kristina was pale and listless.

A CT scan of Kristina s head revealed the child had a fractured skull, and an acute and sub-acute subdural hematoma. There was no soft tissue swelling in the area of the fracture, indicating the injury had occurred at least a few days before the baby's admission to the emergency room. An eye examination revealed multiple retinal hemorrhages. Kristina was placed in the pediatric intensive care unit and was eventually released from the hospital on May 17, 2013.

According to the doctor's report, the mother told the hospital staff that both parents and a babysitter intermittently cared for the baby. However, the parents were unable to account for what the doctor characterized as a "significant" skull fracture, subdural hematomas, and retinal hemorrhaging. The doctor noted that the skull fracture was of a type that is typically caused by an "impact injury" to the head. Further, the two subdural hematomas were not the same "age," suggesting there were two separate injuries, and the retinal hemorrhaging indicated there might have been a "rotational injury." The doctor concluded the injuries were "highly suggestive of non-accidental trauma."

Before the fact-finding hearing commenced in October 2013, the Division advised defendants that, because the injuries the baby sustained were of a kind that would not have ordinarily occurred but for the acts or omissions of the child's parent or guardian, see N.J.S.A. 9:6-8.46(a)(2), the Division intended to ask the court to shift the burden of persuasion to the parents. At the outset of the hearing, the mother's counsel raised the issue of the burden of persuasion before the court. Counsel pointed out the babysitter also cared for the child around the time she was injured; and therefore argued that it would be unfair to place the burden of persuasion on the parents when a third party was potentially culpable. At the conclusion of that pretrial argument the judge indicated he was reserving his decision, stating: "I think we have to see how the case pans out."

At the hearing, the Division called Dr. Gajarawala as a witness, whose testimony was consistent with the contents of her report. Among other things, she clarified the retinal hemorrhages and subdural hematomas were caused by a rotational injury and that the skull fracture was caused by a severe impact to the head. Although there was no swelling or other visible signs of injury to the head when the child was admitted to the emergency room, between the time of impact and the child's admission to the emergency room there would have been visible swelling in the area of the fracture that should have been noticed by anyone caring for the child.

After the Division rested, defendants announced they were not going to introduce any evidence. At no point during the hearing did counsel address or the court clarify which party was bearing the burden of persuasion. Defense counsel mentioned the burden of persuasion in passing during their summations, but did so in a context that indicated they believed the Division retained that burden. Notably, the court did not interject and advise the parties that it had determined that the burden had shifted to defendants. The court did not inform the parties of its determination concerning the burden shift until it was rendering its final decision.

The court s post-hearing findings were as follows. First, it found Dr. Gajarawala credible and, apparently relying upon her opinion, concluded the injuries "were not naturally occurring incidents [but were] . . . clearly . . . incidents of abuse and neglect. That's the only explanation." The court further found the babysitter, who also testified, credible when she disavowed hurting the baby. The court proceeded to conclude that

[w]e are left with no alternative because the only other caretakers . . . I mean, the parents basically were the caretakers. They didn't [say] anyone else regularly watched the child and they were the primary caretakers regardless of how little time the father spent [with the child]. . .

And I even if it was an accident in rolling off the bed, why wasn't a fracture with a a large bump on the head, why wasn't some medical treatment why wouldn't that be known to them? Why wouldn't they take some steps?

It's either abuse or neglect, but the multiple incidents makes it less likely that any of these incidents were accidental. And in my mind, as the Division has pointed out, we have the situation where we have unrefuted medical testimony that this was not [an] accident, non-accidental injuries. We have two parents that have basically provided no credible explanation as to how this occurred. And these are the type of incidents that would [indicate] abuse and neglect. I am satisfied the burden shifts at that point.

And neither . . . has defendant come forward with any reasonable explanation as to how it happened, why they aren't potentially involved or why they didn't know about it or take some medical steps, why they wouldn't have been involved with this. And I am satisfied that the Division met its burden of proof. The prima facie case was clearly there. And without the defendants coming forward to provide some explanation and the burden shifting to them, I find the Division met its burden by a preponderance of the evidence that this child did suffer from abuse and neglect at the hands of the defendant.

On appeal, the father contends the evidence shows that he rarely took care of the baby, a responsibility that was borne by the baby s mother or the babysitter. Because the court failed to advise the parties of its decision to shift the burden of persuasion to defendants at the end of the Division's case, he had assumed the burden remained with the Division.

The father claims that had he known the burden shifted to defendants, he would have testified that he rarely handled his daughter and, more important, had not physically hurt Kristina. Further, he would have also testified that because he had not tended to the child, he did not have the opportunity to see any evidence of head trauma; therefore, he could not be faulted for failing to obtain medical treatment for the baby. However, because he assumed the burden of persuasion remained with the Division and there was no evidence he hurt or was aware the child had been injured, he declined to testify.

II

Under N.J.S.A. 9:6-8.21(c)(1), an abused or neglected child is defined as

a child less than 18 years of age whose parent or guardian . . . inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ.

In an action against a parent or guardian for abuse or neglect, the court must conduct a fact-finding hearing "to determine whether the child is an abused or neglected child." N.J.S.A. 9:6-8.44. Generally, the Division is required to prove abuse or neglect by a preponderance of the 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, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). However, that burden of persuasion may shift to the parent or guardian when the

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 . . .

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

When the burden of persuasion shifts to a defendant under such circumstances, he or she must "come forward and give [his or her] evidence to establish non-culpability." Matter of D.T., 229 N.J. Super. 509, 517 (App. Div. 1988); see also N.J. Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 181 (App. Div. 1994).

Here, after hearing the Division s case in chief, the court excluded the babysitter as a culpable abuser, which limited the class of potential abusers to defendants. Given the Division s proofs and the nature of Kristina s injuries, the court shifted the burden of persuasion to defendants pursuant to N.J.S.A. 9:6-8.46(a)(2). However, after the court announced at the outset of the hearing that it was deferring its decision to see how the case developed and understandably the court could not have made a decision until the Division rested - the court neglected to inform the parties of its burden-shift at the conclusion of the Division's case. Thus, defendants were left in the dark until after they already had rested.

While it would have been the better practice for the defense attorneys to have inquired of the court of its burden allocation at the end of the Division's case, we are satisfied that by unfortunately not announcing its burden shift in a timely manner, the court erred and substantially prejudiced the father. To remedy that prejudice, we must vacate the court s ultimate merits finding that the father physically injured his child and a remand for a new hearing.

It behooved the court to immediately advise defendants of its burden shift at the conclusion of the Division s case, so that defendants could properly assess at that point how they should proceed. The father reasonably interpreted the court's silence to mean the burden of persuasion remained with the Division. Relying upon that assumption and aware of the limited evidence against him, he concluded that he did not need to testify. However, because the burden of persuasion had in fact shifted, it was inevitable the father was going to be found culpable by remaining silent.

The father also claims that even if the burden of persuasion had properly shifted to him and had been timely disclosed, there was no credible evidence he personally hurt the baby. We disagree. The evidence indicates that although the father typically relinquished care of the baby to her mother or the babysitter, he did care for the baby at times. That limited contact with the baby placed him into a class of potential abusers. Once the burden shifted to him, he was going to be found culpable unless he could prove he did not harm the baby. See D.T., supra, 229 N.J. Super. at 517.

The father further argues that the infrequency with which he cared for the baby eliminated the opportunity for him to observe any sign of head trauma and, therefore, he should not have been found to have medically neglected Kristina. We find this reasoning flawed, given there was evidence the father did in fact care for the child on occasion.

Finally, we note that based on the record developed at the October 2013 hearing - without the father's testimony or any other defense proofs - the record was sufficient for the court to have found that the father had abused or neglected the baby. However, we do not foreclose the possibility that the weight of the evidence as to the father may support a different conclusion depending upon what proofs are added on remand.

1 The names of any children in this opinion are pseudonyms in order to keep their identity private.

2 The court also found that Kristina s mother, F.N-H., abused and neglected her. The mother is not appealing that decision.

3

"A 'Dodd removal' refers to the emergency removal of a child without a court order, pursuant to the Dodd Act," N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. P.M., 205 N.J. 17, 26 n.11 (2011).