NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-03411-14T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

T.D.,

Defendant-Appellant,

and

D.J., SR. and L.C.,

Defendants.

_______________________________

IN THE MATTER OF D.J., JR.,

a minor.

_______________________________

October 28, 2016

Submitted October 5, 2016 Decided

Before Judges Reisner and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-77-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Christine Olexa Saginor, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Ashley Davidow, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

T.D.,1 the mother of D.J., Jr., appeals from a February 4, 2015 fact-finding determination that she had abused or neglected her four-year-old special-needs son by providing inadequate supervision, allowing him to suffer first- and second-degree burns and remain untreated for hours. The Law Guardian on behalf of the child urges us to affirm. We affirm substantially for the reasons set forth by Judge Jeffrey J. Waldman in his thorough written decision attached to the February 4 order.

T.D. argues that the Family Part improperly shifted the burden of proof to defendants2 to establish that they did not abuse or neglect D.J., Jr. She also argues that no credible evidence supported the judge's finding of abuse or neglect. T.D. had exclusive control of the child during the period when the injury occurred. Judge Waldman considered ample credible evidence that T.D. abused or neglected her son.

On September 25, 2013, the Division of Child Protection and Permanency (Division) received a referral stating that D.J., Jr., had been admitted to AtlantiCare Regional Medical Center (ARMC) with first- and second-degree burns on his "right hamstring and right quad area" that appeared to be "multiple splash marks" from a hot liquid. The Division's report stated that D.J., Jr. was non-verbal and may be on the "autistic spectrum." Further, the child's mother had given hospital staff two different stories as to how the injuries occurred. D.J., Jr. remained at ARMC until October 1, 2013, when the Division executed a Dodd removal rather than return the child to his mother.3

On September 4, 2014, the Family Part began the contested fact-finding hearing.4 The Division advised that it was proceeding under theories of res ipsa loquitor, and called Dr. Monique Higginbotham, a pediatrician qualified as an expert in the area of child abuse and neglect. Dr. Higginbotham testified that she worked for Child Abuse Research Education and Services (CARES), which she described as "an evaluation and treatment center for children who have experienced various types of neglect or abuse." Dr. Higginbotham evaluated D.J., Jr. on October 1, 2013. She also reviewed D.J., Jr.'s medical records for both the recent burns and a May 2013 fractured arm. She testified that the explanation provided for the earlier May 2013 injury, that the little boy injured his wrist lifting a heavy bag of workout equipment, was unreasonable; an arm fracture would not occur from a child simply lifting a heavy object. Dr. Higginbotham explained that she had considered this injury because it might indicate "a pattern of mistreatment."

Dr. Higginbotham explained that D.J., Jr. had no verbal ability, and could only vocalize using grunting noises and shouts or moans. Dr. Higginbotham conducted a physical examination of the child, including an examination of his burn wounds. The photographs of the burns were admitted into evidence, and Dr. Higginbotham explained the nature of the wounds. Dr. Higginbotham provided a medical assessment that D.J., Jr. suffered a partial thickness burn to his right thigh likely caused by a hot liquid, and that she was concerned about child neglect based upon the absence of a history to explain the burns. She opined that D.J., Jr. suffered a scald burn, which is extremely painful, and that a child who suffered that type of burn "would be crying and in a lot of distress." She also opined that the burns suffered by D.J., Jr. were consistent with abuse or neglect.

The Division next called Kris Diaz, a Division caseworker, who testified that the day after D.J., Jr. was admitted to the hospital, T.D. denied knowing how her son suffered the injury, and guessed that he must have awoken at some point while she was sleeping and knocked a pot of boiling water on himself. According to Diaz, T.D. denied hearing D.J., Jr. cry out at any point during the night.

Diaz explained that after arriving at ARMC, T.D. asked L.C. to return to the apartment and see if the stove was on. L.C. checked and advised her that only the oven had been left on. Diaz also interviewed L.C., who also denied knowing how the injury occurred. Diaz testified that L.C. stated that D.J., Jr. was not injured at the time he left for work at 11:00 p.m. on September 24, 2013. L.C. first observed the injury after returning home at 8:30 a.m. the next morning. Diaz also testified that she took photographs of the apartment, and noted that the distance from where T.D. was in the bedroom to the couch where D.J., Jr. slept was only about twenty-five feet. Diaz further related that, at the CARES evaluation, when D.J., Jr.'s dressing was removed from his wounds, he screamed and cried, evidencing that the child would make loud sounds when in pain.

At the conclusion of its case, the Division argued that it had established a prima facie case that T.D. and L.C. provided inadequate supervision to D.J., Jr. and moved to shift the burden to T.D. and L.C. to establish that they had not abused or neglected D.J., Jr. Judge Waldman determined that the Division had met its burden, its witnesses were credible, and the burden would shift to defendants. As neither defendant was present, both defendants' counsel sought an adjournment, which was denied. The judge stated that he had provided the date for the hearing at the previous court date when both defendants were present.

Our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). The factual findings of the trial court should not be disturbed unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Additionally, because of "the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

Abuse or neglect proceedings are brought pursuant to Title Nine of the New Jersey Statutes, N.J.S.A. 9:6-8.21 to -8.73. Pursuant to Title Nine, "the safety of the child shall be of paramount concern." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 328 (App. Div. 2011) (quoting N.J.S.A. 9:6-8.28(a)). Thus, in enacting the statute, the Legislature held that the purpose of the act is "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." N.J.S.A. 9:6-8.8(a).

The State has the burden of proof of demonstrating "by a preponderance of the competent, material and relevant evidence the probability of present or future harm." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 87 (App. Div. 2008) (quoting N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005)).

Pursuant to N.J.S.A. 9:6-8.21(c)(4), an abused or neglected child is a minor child "whose 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, as herein defined, to exercise a minimum degree of care." (Emphasis added).

Our Supreme Court defined failure to exercise a "minimum degree of care" as "conduct that is grossly or wantonly negligent, but not necessarily intentional." Dep't of Children & Families, Div. of Child Prot. and Permanency v. E.D.-O., 223 N.J. 166, 179 (2015) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999)). Further, willful or wanton conduct is defined as conduct "done with the knowledge that injury is likely to, or probably will, result." Ibid. (quoting G.S., supra, 157 N.J. at 178). Whether a parent "has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." G.S., supra, 157 N.J. at 181-82. The determination "is fact-sensitive and must be resolved on a case-by-case basis." E.D.-O., supra, 223 N.J. at 192.

Importantly, while the Division is required to establish abuse or neglect by a preponderance of the evidence, the burden of persuasion may shift to a parent 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." In re 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).

Judge Waldman cogently explained how the unrebutted credible evidence supported his conclusion that T.D. failed to exercise a minimum degree of care over her special-needs son.

Affirmed.

1 Records relating to child abuse cases are excluded from public access. R. 1:38-3(d)(12). We use initials throughout this opinion to protect the confidentiality of the persons involved in this appeal.

2 L.C., who was living with T.D., was also found to have committed abuse or neglect, but did not appeal.

3 "Pursuant to N.J.S.A. 9:6-8.29, legislation sponsored by Senator Dodd, the Division is authorized to take custody of a child on an emergency basis in order to protect the child's safety." N.J. Div. of Child Prot. & Permanency v. K.G., 445 N.J. Super. 324, 329 n.3 (App. Div. 2016).

4 D.J., Sr., D.J., Jr.'s father, was in prison in Pennsylvania.