DCPP VS. A.Z., J.C.B., AND J.S., IN THE MATTER OF C.B. AND C.Z. (FN-07-0463-16, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 10, 2020
• Docket: A-4740-17T4
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4740-17T4

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.Z.,

Defendant-Appellant,

and

J.C.B. and J.S.,

Defendants. ___________________________

IN THE MATTER OF C.B. and C.Z., minors. ___________________________

Submitted December 2, 2019 – Decided September 10, 2020

Before Judges Ostrer and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-0463-16.

Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel; Beth Anne Hahn, Designated Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent (Jason Wade Rockwell, Assistant Attorney General, of counsel; Amanda L. Helms, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Neha Gogate, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant A.Z. (Alma1) appeals from a January 27, 2017 Family Part

order finding she abused or neglected her then seven-month-old daughter, C.B.

(Carla). She argues the trial judge improperly shifted the burden to her to

disprove culpability, and that the judge's abuse or neglect finding was based on

insufficient evidence. We disagree and affirm.

The Division received a referral conveying concerns that Carla was

abused, after Alma brought her to the hospital. According to hospital notes,

1 In accord with Rule 1:38-3 and for the reader's convenience, we use pseudonyms for the parties. A-4740-17T4 2 Alma had noticed bruising on Carla's right arm that morning, and by the

afternoon, swelling appeared. Alma initially could not explain what caused the

injury.2 X-rays revealed Carla had a displaced transcondylar fracture in her right

elbow. She underwent surgery the following day.

In an interview with the Division's Special Response Unit (SPRU)

caseworker the day of the surgery, Alma admitted she was Carla's primary

caretaker, and that her boyfriend, with whom she lived, had no contact with the

child the previous day. He worked until 11:00 p.m. Alma told the caseworker

she gave Carla a bath at 9:00 p.m. the previous night and put her to bed. She

observed nothing unusual then, or when she woke to feed Carla overnight.

At Carla's 10:00 a.m. bath, Alma noticed that the child's right arm was

bruised. The left arm was bruised too. When she raised the child's right arm to

wash, Carla cried in pain. Alma first took Carla to her pediatrician, but they

were turned away because they did not have an appointment. After the arm

worsened during the day, she brought the child to Overlook. She told the

caseworker Carla was with her all that day and the day before. She denied Carla

fell or was harmed. Based on the interviews, the Division determined that an

2 Alma does not speak English and communicated with the hospital staff and Division caseworkers with the assistance of Spanish-speaking staff members. A-4740-17T4 3 emergency removal was necessary because Alma could not plausibly explain

how C.B. suffered the injury.

At the subsequent fact-finding hearing, the Division presented testimony

from SPRU caseworker Santiago Gonzalez; permanency supervisor Inez Perez-

Nin; and pediatric care expert Dr. Raksha Gajarawala. Gonzalez recounted

aspects of the Division's investigation. The court admitted the Division's

investigation summary into evidence.

Perez-Nin testified that during an interview about two weeks after the

incident, and in a family team meeting with Alma and her boyfriend almost a

month after the removal, Alma said that a bed bug must have caused Carla's

injury. Perez-Nin testified that after several more months and other meetings,

Alma first suggested other possible causes for Carla's injury. Alma recalled that

the day before she discovered the injury, she left Carla alone with a seven-year-

old neighbor for five minutes, so that Alma could prepare a bottle. Alma alleged

Carla was crying when she returned. Alma also said her boyfriend's brother —

the "uncle" — was alone with Carla for thirty minutes the evening before Alma

discovered the injury.

The Division had interviewed the uncle the day of Carla's surgery.

According to his hearsay statement to the Division's investigator, which the

A-4740-17T4 4 court considered over the Division's objection, he watched the child for thirty

minutes, at around 9:30 p.m., while Alma went to the store. 3 He said the baby

seemed fine.

Dr. Gajarawala testified that x-rays revealed Carla had three calcific

densities on her right arm, one of which resulted from trauma. She explained

that "twisting" or "extreme pulling force" caused Carla's transcondylar humerus

fracture. The expert explained that children as young as Carla usually cannot

generate the force needed to cause this type of injury to themselves. Dr.

Gajarawala opined the injury resulted from non-accidental abuse. She said the

symptoms of the fracture would include crying, swelling (within five to eight

hours at most), bruising, and inability to move the joint. The pain would occur

"right away."

On cross-examination, Dr. Gajarawala doubted that hospital staff

worsened Carla's injury by moving and manipulating her arm. She also opined

that had Alma grabbed Carla's arm to prevent her from falling off the bed — an

alternative means of injury explored at the hearing — Carla's pain would have

been immediate and obvious.

3 Asked when he watched the child, he said "it was after he returned home from work so it had to be around 9:30 p.m." However, in the same interview, the uncle said he worked from 8:00 a.m. to 8:00 p.m. A-4740-17T4 5 Alma did not testify. Her expert in pediatrics and pediatric radiology, Dr.

Jack Levenbrown, agreed that Carla suffered a fracture caused by twisting, and

the child did not do it to herself. He opined that swelling would become evident

within twelve hours of injury. However, comparing the x-rays taken at each

facility that treated Carla, Dr. Levenbrown opined that the fracture worsened as

a result of manipulation and movement by medical providers. He opined that

the injury may have been minor when it first occurred, so that Alma would not

have noticed it immediately. He also opined that the type of fracture Carla

suffered was not associated with abuse, based on his personal experience and

his familiarity with abuse literature.

Dr. Levenbrown also suggested other explanations for Carla's injury. He

said Alma may have injured Carla by pulling her arm to prevent her from falling

off the bed while being changed. Alternatively, the seven-year-old neighbor, or

the uncle may have injured the child. Dr. Levenbrown found the latter

possibility most likely.

In a cogent written opinion, Judge David B. Katz found the Division

proved, by a preponderance of the evidence, that Alma abused or neglected Carla

under N.J.S.A. 9:6-8.46(a)(2). The judge recounted the facts we have

summarized. He found both lay witnesses and experts credible, although the

A-4740-17T4 6 judge rejected Dr. Levenbrown's conclusions. Critically, the court found that

Carla's elbow likely did not become swollen until the afternoon. The judge

relied on Alma's statement to a Division worker, that after she could not get in

to the see the pediatrician and returned home, she began to worry "as the elbow

began to become swollen." The judge also relied on a hospital triage note,

stating that Alma reported that "by afternoon, the right arm is [sic] swollen." 4

The court noted that absent direct proof, prima facie evidence of abuse or

neglect may be presented by "proof of injuries sustained by a child . . . of such

a nature as would ordinarily not be sustained or exist except by reason of the

acts of omissions of the parent or guardian," citing N.J.S.A. 9:6-8.46(2). The

court concluded the Division presented such proof. The court noted that both

experts agreed that the injury "had to occur with force and by some mechanism,"

and he credited Dr. Gajarawala's opinion the injury was caused by abuse. Carla

could not have injured herself.

Since swelling appears within at most twelve hours after injury, and the

swelling appeared in the afternoon, the judge concluded that only Alma had

contact with the child when she was injured. Based on that conclusion, Judge

4 We recognize that there was also evidence in the record that Alma noticed swelling as early as 10:00 a.m. A-4740-17T4 7 Katz explicitly declined to shift the burden of persuasion to Alma as permitted

by In re D.T., 229 N.J. Super. 509 (App. Div. 1988), in cases involving multiple

caregivers during the period an injury occurred.

The judge nevertheless considered and rejected the three theories Dr.

Levenbrown advanced to refute the Division's prima facie case. The judge

rejected the suggestion that Alma accidentally injured Carla by grabbing her arm

while changing her diaper, which occurred two days before Alma discovered the

injury. The judge noted the absence of details about how that occurred; Alma's

failure to mention the incident during multiple interviews over many months;

and the fact that Carla exhibited no evidence she experienced pain until two days

later.

The judge also rejected the scenarios that the seven-year-old neighbor or

the paternal uncle injured Carla. The court highlighted the lack of details to

support Dr. Levenbrown's opinion that either person injured the child. The judge

noted that Alma admitted when she gave Carla her night-time bath before putting

her to bed, Carla did not appear to be in pain, nor was any bruising or swelling

evident. Alma also delayed alleging Carla was left with others until long after

the incident.

A-4740-17T4 8 The judge concluded "that the Division has satisfied its burden of proof

that [Carla] was abused or neglected due to the transcondylar fracture suffered

by the child between 9:00 p.m. on May 12 when the child was bathed by [Alma]

without incident and without there being any indications of pain or other

symptoms, and May 13 when [Alma] reported the bruising, pain and swelling,

with the x-rays on that date confirming the fracture."

On appeal, Alma contends the abuse and neglect finding against her must

be reversed because the trial judge improperly shifted the burden of proof to her

under the doctrine of conditional res ipsa loquitur. She also argues the judge 's

finding of abuse and neglect was based on insufficient evidence. Having

reviewed the record and governing legal principles, we reject her arguments.

We generally defer to the Family Court's fact-finding because of the

court's "special expertise" in family matters and the court's "superior ability to

gauge the credibility of the witnesses who testify before it." N.J. Div. of Youth

& Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We will not disturb a trial

court's fact-finding "when supported by adequate, substantial, credible

evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). "Only when the trial

court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an

appellate court intervene and make its own findings to ensure that there is not a

A-4740-17T4 9 denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104

(2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605

(2007)). However, we scrutinize more closely a "trial judge's evaluation of the

underlying facts and the implications to be drawn therefrom," N.J. Div. of Youth

& Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations

omitted), and we review issues of law de novo, Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In a fact-finding hearing under Title 9, "(1) any determination that the

child is an abused or neglected child must be based on a preponderance of the

evidence and (2) only competent, material and relevant evidence may be

admitted." N.J.S.A. 9:6-8.46(b). In this case, under its theory of abuse and

neglect, the Division was required to prove that Alma

[i]nflict[ed] or allow[ed] to be inflicted upon [Carla] . . . 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.

[N.J.S.A. § 9:6-8.21(c)(1).]

Oftentimes "[i]t is difficult to marshal direct evidence of parental abuse

and neglect because of the closed environment in which the abuse most often

A-4740-17T4 10 occurs and the limited ability of the abused child to inculpate the abuser." N.J.

Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 179 (App. Div.

1994). Consequently, at a fact-finding hearing, "proof of injuries sustained by

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[.]" N.J.S.A. 9:6-

8.46(a)(2).

In N.J. Division of Youth & Family Services v. J.L., 400 N.J. Super. 454,

470 (App. Div. 2008), we applied traditional res ipsa loquitur principles "where

the child [was] exposed to a number of unidentified individuals over a period of

time, and it [was] unclear as to exactly where and when the child's injuries took

place[.]" Thus, "once the Division establishes a prima facie case of abuse or

neglect under N.J.S.A. 9:6-8.46[(a)](2), the burden will shift to the [defendant]

to come forward with evidence to rebut the presumption of abuse or neglect,"

but the burden of persuasion remains with the Division. Ibid.

In J.L., the child suffered fractures and "extended family, including the

two grandmothers or other relatives and friends . . . visited" and the child was

"in the custody of medical personnel on various occasions and subjected to

various procedures, . . . which required physical restraint." Id. at 469. Under

A-4740-17T4 11 those circumstances, we held, "parents are not obligated to present evidence.

They may choose to rest and allow the court to decide the case on the strength

of the Division's evidence." Id. at 472.

However, where a "defined number of people ha[d] access to the child at

the time the abuse definitively occurred," we have shifted the burden of

persuasion to the parents under a paradigm known as "conditional res ipsa

loquitur." Id. at 468-69 (discussing In re D.T., 229 N.J. Super. at 517). 5 In In

re D.T., we held that where,

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, . . . [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 (citing Anderson v. Somberg, 67 N.J. 291, 298-99 (1975)).]

5 In J.L., we noted that the conditional res ipsa loquitur paradigm was applied in S.S. 400 N.J. Super. at 469. In that case, the defendant was "one of a limited number of people in control of [the child] when she was injured." 275 N.J. Super. at 181. But we distinguished the case on the ground that the defendant did not dispute whether the facts triggered the burden-shifting paradigm, but challenged the doctrine on constitutional grounds. J.L., 400 N.J. Super. at 469. A-4740-17T4 12 Alma contends that traditional res ipsa loquitur principles apply, as under

J.L., and that the court inappropriately shifted the burden of persuasion to her,

as under In re D.T. We agree as to the first point, but not as to the second.

Rather, Judge Katz correctly applied traditional res ipsa loquitur principles. The

court never shifted the burden of persuasion to Alma. Instead, the court found

that the Division established a prima facie case of abuse or neglect under

N.J.S.A. 9:6-8.46(a)(2) by presenting evidence that the child's injuries were "of

such a nature as would ordinarily not be sustained or exist except by reason of

the acts or omission of the parent or guardian." The court relied on the expert

testimony that someone must have twisted or exerted great force on Carla's arm

in order to cause her fracture; and her injuries were not self-inflicted.

The only burden imposed on Alma was the burden of production — to

present evidence to rebut the prima facie case. She presented such evidence —

in the form of Dr. Levenbrown's opinion that the uncle, the seven-year-old

neighbor, or even Alma, while changing the baby two days earlier, may have

injured Carla. But, the court found those scenarios implausible and rejected

them. The judge concluded, with adequate record support, that Alma must have

caused the fracture because she was the only person in contact with Carla when

the injury must have occurred. We are obliged to defer to the fact finding.

A-4740-17T4 13 We find no merit in Alma's argument challenging the sufficiency of the

evidence. The court gave significant weight to Dr. Gajarawala's testimony that

Carla's injury was caused by a twisting or pulling force and could not have been

caused by Carla herself. The court highlighted that only Alma had access to

Carla during the time the injury took place.

The court found Dr. Levenbrown's theories about other persons who may

have caused Carla's injury to be speculative and factually inaccurate. Alma

argues that Dr. Gajarawala's radiologic experience was limited, but she does not

appeal from the court's decision to admit her as an expert, although the court did

so over her objection. In any event, an expert's qualifications "are generally

addressed to the discretionary determination of the trial judge." Correa v.

Maggiore, 196 N.J. Super. 273, 282 (App. Div. 1984).

Alma also argues that Dr. Levenbrown's analysis was grounded in deeper

experience in pediatric radiology. But, we will not disturb the court's decision

to credit one expert over the other. See In re Guardianship of DMH, 161 N.J.

365, 382 (1999) (stating "we rely on the trial court's acceptance of the credibility

of the expert's testimony").

We recognize that Alma's recollection that she bathed Carla at 9:00 p.m.

and then put her to bed did not comport with the uncle's recollection that he

A-4740-17T4 14 watched the child for about thirty minutes, around 9:30. However, that

discrepancy does not undermine the trial court's ultimate finding, for three

reasons. First, the court was not obliged to resolve that timing discrepancy in

order to credit a statement in the Division records that Alma put Carla to bed

after the bath. The uncle may have been mistaken that he watched the child at

9:30 p.m., or the Division worker may have reported the time in error. The

uncle's only explanation for surmising he watched the child at around 9:30 p.m.

was that he did so after returning from work; but he said he worked until 8:00

p.m., which gave him ample time to watch the child before 9:00 p.m., when

Alma said she bathed Carla.

Second, regardless of what time the uncle watched the child, had he

injured Carla's arm, she would have expressed some pain or discomfort,

accepting Dr. Gajarawala's testimony that the injury was of the sort that would

trigger a pain response.

Third, one may infer the injury occurred after the uncle watched the child,

because the swelling did not first appear until the afternoon the next day. The

court found, based on competent evidence in the record, that the swelling arose

in the afternoon. Working backward twelve hours — the outside limit by which

swelling would arise after the fracture according to Dr. Levenbrown — Carla

A-4740-17T4 15 must have suffered the injury after midnight, at the earliest. At that point, only

Alma cared for Carla. Alma resorts to mere speculation that her boyfriend, or

the grandfather may have interacted with Carla during that period and caused

her injury. Although they were both in the home overnight, Alma stated that

only she cared for the child, bathing her, putting her to bed, feeding her about

3:00 a.m. in the early morning, and then bathing her again at around 10:00 a.m.

In sum, as the trial court's findings were not "wide of the mark," we will

not disturb them.

Affirmed.

A-4740-17T4 16