OFCHILD PROTECTION AND PERMANENCY v. M.L IN THE MATTER OF P.P., III

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                        NOT FOR PUBLICATION WITHOUT THE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-3559-16T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

M.L.,

     Defendant-Appellant.
______________________________

IN THE MATTER OF P.P., III,

        Minor.


              Submitted January 29, 2018 - Decided February 28, 2018

              Before Judges Ostrer and Rose.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Warren County,
              Docket No. FN-21-0143-16.

              Joseph Krakora, Public Defender, attorney for
              appellant     (Stephania      Saienni-Albert,
              Designated Counsel, on the briefs).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Jason W. Rockwell, Assistant
              Attorney General, of counsel; Amy McKinsey,
              Deputy Attorney General, on the brief).
           Joseph E. Krakora, Public Defender, Law
           Guardian, attorney for minor (Linda Vele
           Alexander, Designated Counsel, on the brief).

PER CURIAM

     Defendant M.L.1 appeals from an October 21, 2016 order of the

Family Part finding defendant abused or neglected her son by

actively using heroin while caring for him.          We affirm.

                                      I.

     We derive the salient facts from the record developed at the

fact-finding hearing.      Defendant, and her husband P.P.,2 are the

biological parents of Paul, born in October 2015.            The family had

no history with the Division of Child Protection and Permanency

("Division").      At the time of the incident, defendant, P.P., and

Paul resided with P.P.'s mother, D.S., and P.P.'s stepfather, J.S.

     On February 22, 2016, the Division received a referral from

a physician that Paul had been admitted to the hospital with a

left femur spiral fracture.       The reporter indicated the parents

brought four-month-old Paul to the emergency room because he was

unable to move his left leg and was crying. The physician reported

further   Paul's    injuries   were   inconsistent    with    the   parents'



1
   We use initials, and a pseudonym for the child, to protect the
privacy of the parties. See R. 1:38-3(d)(12).
2
  P.P. does not appeal from the October 21, 2016 order that
determined he also abused or neglected Paul.

                                      2                              A-3559-16T1
account that the child caught his leg in a blanket when rolling

over in bed.

     The Division referred the investigation to the Warren County

Prosecutor's Office.    Detectives interviewed both parents at the

hospital.    Defendant claimed she and the baby went to sleep around

midnight.     Defendant awoke at 9:00 a.m. to the sound of Paul

screaming.

     P.P. stated Paul began to cry at 9:00 a.m.        P.P. gave the

infant a bottle and sat next to him.          The blankets were "all

bunched up" and defendant was sleeping facing the wall and away

from Paul.    P.P. heard a "pop" when the infant rolled over.       P.P.

then attempted to wake defendant and inform her that there was

something wrong with Paul, to which defendant replied, "why, he's

not crying?"

     The Division requested urine tests from both parents to be

administered the following day. Defendant's drug test was positive

for marijuana and opiates, but she denied drug use before and

after she received the results.    P.P. tested positive for opiates,

and also denied drug use.    During the pendency of the Family Part

proceedings, both parents failed to adhere to random urine screens.

     A   hospital   pediatrician   advised   the   Division   and    the

detectives that, in addition to the spiral femur fracture, Paul

also had a healing rib fracture.       According to the doctor, these

                                   3                           A-3559-16T1
injuries    were   consistent     with     child   abuse.      Paul   remained

hospitalized   for    two   days.     Following     his     release   from    the

hospital, the Division executed an emergency Dodd removal3 of Paul

and placed him in a non-relative resource home.

     In addition to the testimony of two caseworkers adduced at

the three-day fact-finding hearing, the Division presented the

testimony of Dr. Gladibel Medina, who was qualified by the court

as an expert in pediatrics and child abuse.                 The Division also

played   the   video-recorded       statements     of    defendant    and    P.P.

Defendant testified and presented the testimony of D.S. and M.B.,

Paul's maternal grandmother.         The law guardian and P.P. did not

call any witnesses.

     Dr.    Medina    testified     that    a   spiral    fracture    involves

"torsional forces." She opined that a four-month old infant cannot

generate sufficient force to cause a spiral fracture while in a

prone position.      Rolling over, as contended by P.P., cannot cause

this type of injury.        Paul's injury was less than seven to ten

days old.




3
  A Dodd removal is an emergent removal of a minor without a court
order pursuant to 
N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd
Act. N.J. Div. of Youth & Family Servs. v. P.W.R., 
205 N.J. 17,
26 n.11 (2011).


                                      4                                 A-3559-16T1
       Dr. Medina testified further Paul suffered a rib injury,

which appeared to be healing.    Dr. Medina could not pinpoint the

specific cause of this injury. However, she opined "in the absence

of an accidental mechanism[,]" inflicted trauma should strongly

be considered as the cause of Paul's injuries.    In sum, Paul was

incapable of inflicting either of the two unexplained injuries

upon himself.

       Defendant testified she was sleeping the morning Paul was

injured.   However, she was aware Paul was on the bed, and P.P. was

taking care of him.     Defendant did not turn around and observe

Paul nor P.P. until the infant was screaming.     Defendant did not

observe Paul sustain the injury to his femur.     Defendant claimed

her recollection of the events are based on what she was told by

P.P.

       Further, defendant admitted at the time of the incident, she

was using one to two bags of heroin every two to three days.     She

ingested heroin in the bathroom while her son was in the bedroom.

Defendant claimed she was not under the influence of drugs the day

of the incident.    She had no reason to believe P.P. used heroin

or was under the influence of any drugs on the day of the incident.

However, defendant acknowledged both she and P.P. lied about the

use of illicit substances to avoid culpability.



                                  5                         A-3559-16T1
     Finding    Paul's   injuries   to   be   "indisputable,"   and   that

defendant and P.P. were home alone with Paul when he sustained the

spiral femur fracture, Judge Kimarie Rahill determined defendant

and P.P. abused or neglected Paul.            The court agreed with the

uncontroverted testimony of the Division's medical expert that

"such a fracture involves a direct, twisting force applied to the

site of the injury . . . . [and] given [Paul's] age, the limits

in the child's mobility, and the implausible explanation given by

the parents for the injury, the injury was indicative of trauma

or abuse."     In so doing, the court did not find credible P.P.'s

testimony about the cause of Paul's femur fracture.             Further,

Judge Rahill found defendant and P.P. admitted to using heroin

while caring for Paul; the parents' tested positive for opiates

on February 23, 2016; and they continued to fail to adhere to

random urine screens throughout the Family Part proceedings.

     In assessing defendant's credibility, the trial judge found

implausible defendant's version of Paul's femur fracture.                In

rejecting defendant's account, the trial court cited defendant's

"pattern of dishonest conduct [and] her positive urine screen the

day after the injury, along with her contradictory testimony about

the sequence of events of the morning of the injury."

     The trial court did not find defendant or P.P. responsible

for Paul's rib injury.     Although the court found the "rib injury

                                    6                             A-3559-16T1
was indicative of abuse," it concluded the Division failed to

establish the specific timing of the injury and that the parents

had exclusive care of Paul when the rib injury occurred.

     The court concluded the Division proved by a preponderance

of the evidence the injury to Paul's leg was "a result of inflicted

trauma"; P.P. has a heroin problem and was "likely using while in

a caretaking role of [Paul]"; defendant abused or neglected Paul

"by actively using heroin while in a caretaking role of [Paul]";

and, defendant "was more likely than not under the influence during

the period of time where [Paul] sustained the femur injury."

     On appeal, defendant contends there was insufficient evidence

to support the trial court's finding she abused or neglected Paul.

Specifically,   because   the   court   concluded   P.P.   caused    Paul's

injury, the court erred in finding defendant abused or neglected

her son.   Defendant argues the trial court improperly shifted the

burden to defendant to prove she was not culpable, pursuant to our

decision in In re D.T., 
229 N.J. Super. 509 (App. Div. 1988).

Defendant claims further her substance abuse fails to support an

abuse or neglect finding.       The Division and law guardian urge us

to affirm the court's order.      After reviewing the record in light

of the contentions advanced on appeal, we affirm.




                                    7                               A-3559-16T1
                               II.

     We begin with a review of the applicable legal principles

that guide our analysis in abuse or neglect matters, as set forth

by our Supreme Court:

          [A]ppellate courts defer to the factual
          findings of the trial court because it has the
          opportunity to make first-hand credibility
          judgments about the witnesses who appear on
          the stand; it has a feel of the case that can
          never be realized by a review of the cold
          record. Indeed, we recognize that [b]ecause
          of the family courts' special jurisdiction and
          expertise in family matters, appellate courts
          should accord deference to family court fact
          [-]finding.

          [N.J. Div. of Youth & Family Servs. v. M.C.
          III, 
201 N.J. 328, 342-43 (2010) (second
          alteration   in   the   original)   (internal
          quotation marks and citations omitted).]

     "[I]f there is substantial credible evidence in the record

to support the trial court's findings, we will not disturb those

findings."   N.J. Div. of Youth & Family Servs. v. L.L., 
201 N.J.
 210, 226 (2010).   However, "if the trial court's conclusions are

'clearly mistaken or wide of the mark[,]' an appellate court must

intervene to ensure the fairness of the proceeding."     Id. at 227

(alteration in original) (quoting N.J. Div. of Youth & Family

Servs. v. E.P., 
196 N.J. 88, 104 (2008)).   We also owe no deference

to the trial court's legal conclusions, which we review de novo.

State v. Smith, 
212 N.J. 365, 387 (2012).


                                8                            A-3559-16T1
                                    A.

     Like any other Title Nine case, the Division was required to

prove abuse or neglect by a preponderance of evidence.           N.J. Div.

of Youth & Family Servs. v. V.M., 
408 N.J. Super. 222, 235 (App.

Div. 2009).      Here, the judge credited and relied on medical

testimony that the injuries were caused by physical abuse.                 The

circumstances permitted application of 
N.J.S.A. 9:6-8.46(a)(2),

which states,

           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 [the] child . . . is an abused
           or neglected child.

     Paul is an infant, incapable of identifying who may have

harmed him, or describing the cause of his injuries, and the

Division did not otherwise have access to information as to the

identity of the culpable person other than what might have been

provided by defendant and P.P.          In these circumstances, we have

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."        D.T., 
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).         We conclude Judge Rahill properly

utilized   the   D.T.   standard   because   of   the   nature   of    Paul's

                                    9                                 A-3559-16T1
injuries, the small class of potential responsible parties, and

the brief period during which the injuries occurred.

     Once     the    burden      shifted,    defendant    was   required          to

demonstrate    her   non-culpability.         Defendant    claims,    however,

because P.P. admitted wrongdoing, the court should not have applied

the D.T. burden-shifting standard to her. To support her position,

defendant relies heavily on our decision in N.J. Div. of Child

Prot. & Permanency v. K.F., 
444 N.J. Super. 191 (App. Div. 2016).

     In K.F., however, the mother acknowledged full responsibility

for injuries to her child.          K.F., 
444 N.J. Super. at 200.            Thus,

we held because no reason existed to suspect the father of abuse

or neglect, and the mother always claimed responsibility for the

incident, applying the burden-shifting paradigm would be a mistake

of law.     Id. at 203.

     Conversely, here, P.P. never claimed responsibility for the

injuries    sustained     by    Paul.    Rather,   P.P.   claims     the     child

inflicted the spiral fracture on himself.            Secondly, unlike the

parents in K.F., both defendant and P.P. were in the same room,

within reach of Paul.           Moreover, Judge Rahill found defendant's

testimony incredible.          Thus, the trial court appropriately shifted

the burden to both defendant and P.P. in this matter.                Any other

approach would be contrary to the intent of Title Nine, which was

enacted "to provide for the protection of children . . . who have

                                        10                                 A-3559-16T1
had serious injury inflicted upon them by other than accidental

means."    
N.J.S.A. 9:6-8.8(a).   As explained in Title Nine itself,

this legislation was intended "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."    Ibid.; see G.S. v. Dep't of Human Servs., 
157 N.J. 161, 171 (1999).

                                   B.

     Further, our courts have recognized a parent’s use of drugs

while caring for an infant places the infant at risk at "the

slightest parental misstep."      N.J. Div. of Youth & Family Servs.

v. V.T., 
423 N.J. Super. 320, 331 (App. Div. 2011).             However,

proof of a parent’s drug use itself was not sufficient to sustain

a finding of abuse or neglect on the facts in V.T., where a parent

used drugs prior to his visits with an eleven-year-old child.

Ibid.

     Similarly, we reversed a finding of abuse and neglect based

solely on a mother’s use of marijuana, on one occasion, while the

child was in her care, in N.J. Div. of Child Prot. & Permanency

v. R.W., 
438 N.J. Super. 462, 468-70 (App. Div. 2014).          In R.W.,

we noted the absence of detailed proof regarding the "circumstances

of [the mother’s] ingestion" of drugs, whether "the baby was solely



                                  11                              A-3559-16T1
in her mother’s care when she was intoxicated," and "the magnitude,

duration, or impact" of the intoxication.                Id. at 470.

     Unlike the parent in V.T., defendant used heroin while caring

for Paul on multiple occasions.                 Further, based on the urine

screening and defendant’s description of her drug use, the trial

judge concluded "it was more likely than not [defendant] was under

the influence" the day Paul was injured.              The facts of the instant

matter are also distinguishable from R.W.                Here, unlike in R.W.,

proof   was    presented     with   respect     to   defendant’s    intoxication

through the results of a urine screening; defendant testified as

to the frequency of her drug use; and it was undisputed that Paul

was solely in P.P. and defendant’s care when he was injured.                      In

addition to the presence of heroin in defendant's system, Judge

Rahill found defendant's drug use was "pervasive and done while

caring for her vulnerable, infant child."

     Further, the trial court did not find defendant abused or

neglected her infant son based solely on the fact that she used

illicit    substances.        Rather,     the   trial    court    considered    the

totality      of    the   circumstances      surrounding    the    incident;    the

severity      and   potential   cause     of    Paul’s   injury;    Dr.   Medina's

unrefuted      expert     testimony;    the     testimony    of    the    Division

caseworkers; and the incredible testimony of defendant.



                                        12                                 A-3559-16T1
    We conclude, therefore, Judge Rahill's findings of abuse or

neglect are supported by substantial credible evidence and the

totality of the circumstances.    Her assessment of the weight and

credibility of the evidence commands our deference.

     Affirmed.




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