DCPP VS. C.D. AND R.F. IN THE MATTER OF A.D.(FN-07-288-13, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 22, 2017
• Docket: A-0213-15T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0213-15T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

C.D.,

Defendant,

and

R.F.,

Defendant-Appellant. ________________________________

IN THE MATTER OF A.D.,

Minor. ________________________________

Submitted February 16, 2017 – Decided March 22, 2017

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-288-13. Joseph E. Krakora, Public Defender, attorney for appellant (Laura M. Kalik, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Thomas Ercolano, III, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Danielle Ruiz, Designated Counsel, on the brief).

PER CURIAM

Defendant father, R.F., appeals from a May 3, 2013 Family

Part order finding he abused or neglected his child. Having

considered R.F.'s arguments in light of the record and applicable

legal standards, we affirm.

R.F. and C.D. are the parents of A.D. On January 13, 2013,

the Division of Child Protection and Permanency (the Division)

received a referral from the Newark Police Department because

A.D., then five years old, had what appeared to be a slap mark on

her face. That night, R.F. went to the 17th Street police station

to report C.D. had jumped on and was banging on his car when he

picked A.D. up from C.D.'s home. R.F. left A.D. in the car with

his sister when he went into the 17th Street station. When the

officer declined to do anything about the incident, R.F. left and

went to the Clinton Street police station.

2 A-0213-15T3 At the police station, he brought A.D. inside with him to

continue his complaint about C.D. When he removed the child's

hat, R.F. showed the officer a mark on A.D.'s face. The mark

consisted of red scratches that were five inches in length and two

inches in width. The officers referred R.F. back to the 17th

Street station, and the police called the Division. The police

also called C.D., who came to the 17th Street station. A Division

Special Response Unit (SPRU) worker responded to the station at

around 2:15 a.m. and spoke with C.D., who recounted she and R.F.

argued when R.F. arrived at her home to take her to work. A.D.

was in the car while R.F. and C.D. argued. C.D. refused to get

into R.F.'s car because R.F.'s sister was in the front seat. C.D.

decided to walk to catch a bus to work, but realized she would not

be able to get there in time, so she called R.F. to come back to

get her. When she was about to get in the car, R.F. pulled away.

C.D. reported she was dragged before R.F. stopped the car. The

SPRU worker noted C.D.'s jeans were dirty with black skid marks

along the front. C.D. informed the police of the incident.

The SPRU worker examined A.D. and observed red linear marks

on the upper left side of A.D.'s face, which resembled a hand.

The left side of her face was slightly swollen, giving the

appearance the mark was fresh. A.D.'s left eye was slightly

bloodshot. With the assistance of C.D., the SPRU worker observed

3 A-0213-15T3 A.D.'s body in the bathroom. She noticed a small scratch on her

left thigh, but A.D. said she scratched herself. When asked how

she got the mark on her face, A.D. shrugged her shoulders. When

asked if she knew what happened, A.D. shook her head yes.

The SPRU worker spoke with R.F., who recounted he was out of

state earlier in the day and had called C.D. to tell her he would

not be back in time for her to take the bus, so he would drive her

to work. According to R.F., he arrived at C.D.'s home around 10

p.m., and C.D. began "tweaking." R.F. left because C.D. yelled

at him for "bringing people to her house," but C.D. kept phoning

him. R.F. went back to pick her up but, when C.D. kept arguing,

he left. R.F. went back for a third time, but after C.D. began

yelling again, he drove off. R.F. claimed when he was stopped at

a light, C.D. jumped on his car and began hitting it and "faked a

fall." R.F. told the SPRU worker A.D. stated C.D. hit her;

however, no one heard A.D. say who hit her.

According to another SPRU worker who interviewed A.D. that

night, A.D. stated "the monster" hit her. The worker asked A.D.

again about the mark, but A.D. refused to disclose who caused the

injury. R.F. denied hitting his daughter and stated he believed

C.D. hit A.D.

The SPRU worker informed both parents the Division would be

executing an emergency removal and would take custody of A.D., as

4 A-0213-15T3 there was an unexplained mark on her face. The Division's

investigation summary listed C.D. as the alleged perpetrator, but

the findings were deemed "substantiated-perp unknown." R.F. was

not listed as an alleged perpetrator.

The Division filed an order to show cause and a verified

complaint for custody against R.F. and C.D. on January 15, 2013.

The complaint contained no specific allegations against R.F., but

references were made to "parent(s) or guardian(s)." R.F. and C.D.

both appeared at the hearing and were represented by counsel. The

trial judge was satisfied the Division established the child had

suffered such injuries as ordinarily would not be sustained but

for the acts or omissions of parents or guardians. The judge also

noted no one, besides R.F. and C.D., was with A.D., and she did

not identify her abuser; thus, the burden shifted to defendants

to come forward with evidence to establish non-culpability. The

trial judge ordered the child placed in the immediate custody,

care, and supervision of the Division.

The fact-finding hearing took place on May 3, 2013, at which

the SPRU worker and C.D. testified. The worker testified about

the January 13, 2013 referral, when R.F. brought A.D. into the

police station because of what appeared to be a slap mark on her

face. The worker recounted her interviews both C.D. and R.F.

Specifically, C.D. told the worker she had been caring for A.D.

5 A-0213-15T3 on Friday and Saturday until 10:00 p.m., when R.F. was supposed

to come pick her up but was late. C.D. told the worker no one

else was caring for A.D. at that time. The worker described her

observations of A.D.'s face and how it "resembled like a hand mark

as if she was slap[ped]," and A.D.'s left eye was bloodshot. The

worker testified both C.D. and R.F. denied causing the mark.

C.D. testified she dressed A.D. prior to R.F. coming to pick

her up and observed no mark on her face. C.D. had the opportunity

to see A.D.'s face because C.D. put a hat on A.D.'s head, put her

coat on, and zipped it up. R.F. placed A.D. in her car seat.

R.F. presented no witnesses and did not testify. During

R.F.'s closing arguments, his counsel noted the Division made no

allegations against R.F. The trial judge asked R.F.'s counsel,

"If the Court determines he engaged in abuse and neglect, am I

bound by the Division - by the Division's determination?" R.F.'s

counsel conceded, "No, you're not . . . you have discretion."

Counsel for C.D. argued the court should make a finding of abuse

and neglect against R.F. because there is no evidence C.D. injured

their child. The law guardian argued a finding should be made

against "both or either."1

1 When pressed further, the law guardian stated based upon the evidence, she would lean toward finding against the mother but believed res ipsa loquitur should apply in this case.

6 A-0213-15T3 The Division noted C.D. was entitled to a review of the

Division's finding of substantiated abuse and neglect of A.D.

However, when pressed by the trial judge for due process concerns

regarding the absence of a finding of substantiation against R.F.,

the Deputy Attorney General acknowledged, "There's not a due

process concern due to the fact . . . the [c]ourts are charged

with an independent ability and duty to make findings of abuse and

neglect, whether or not the Division has entered a substantiation.

That would require the Division then to amend their findings."

The trial judge found the pictures of A.D.'s face clearly

demonstrated the child suffered injuries satisfying N.J.S.A. 9:6-

8.46(a)(2) and based upon the evidence in the record, found the

injuries occurred while A.D. was in either the custody of C.D. or

R.F. The trial judge found a limited number of persons could have

caused the injury to the child and noted the burden had shifted

to the defendants to present evidence to establish non-

culpability. Based upon C.D.'s testimony, which the judge found

credible, there was no bruising while A.D. was in her custody.

Therefore, the trial judge found C.D. satisfied her burden of

showing she did not abuse or neglect A.D. In contrast, the trial

judge found R.F.'s account to the Division about A.D.'s injury was

not credible, specifically the judge stated R.F.'s version

"defie[d] common sense" and was "hard to believe." The trial

7 A-0213-15T3 judge found R.F. had not satisfied his burden and made a finding

he had abused and neglected A.D. The litigation was terminated

on July 28, 2015. This appeal followed.

On appeal, R.F. requests we reverse the finding he abused or

neglected A.D., arguing there is insufficient evidence to support

this finding and the trial judge improperly shifted the burden of

proof to him. We disagree.

Appellate courts "have a strictly limited standard of review

from the fact-findings of the Family Part judge." N.J. Div. of

Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App.

Div. 2010) (citing Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)).

We "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." N.J.

Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43

(2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196

N.J. 88, 104 (2008)). Moreover, "[b]ecause of the family courts'

special jurisdiction and expertise in family matters, appellate

courts should accord deference to family court factfinding."

Cesare, supra, 154 N.J. at 413.

"Parents have a constitutionally protected right to maintain

a relationship with their children." N.J. Div. of Youth & Family

8 A-0213-15T3 Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship

of K.H.O., 161 N.J. 337, 346 (1999)). A parent's right is not

absolute; it must be balanced against the "State's parens patriae

responsibility to protect the welfare of children." In re

Guardianship of J.C., 129 N.J. 1, 10 (1992).

We consider the totality of the circumstances in abuse and

neglect proceedings. N.J. Div. of Youth & Family Servs. v. P.W.R.,

205 N.J. 17, 39 (2011). The standard in deciding whether a

guardian has failed to exercise a minimum degree of care is one

of gross negligence. G.S. v. Dep't of Human Servs., 157 N.J. 161,

178-79 (1999). The failure to exercise such a degree of care is

"analyzed in light of the dangers and risks associated with the

situation." N.J. Dep't of Children & Families v. R.R., 436 N.J.

Super. 53, 58 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at

181-82). There must also be proof the "parent 'unreasonably'

inflicted harm." N.J. Div. of Child Prot. & Permanency v. Y.N.,

220 N.J. 165, 180 (2014).

The Division bears the burden of establishing a prima facie

case of abuse and neglect. Id. at 178-79. Additionally,

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

9 A-0213-15T3 responsibility of such person is an abused or neglected child.

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

When the Division establishes a child has sustained an injury

that would not have occurred but for the act or omission of a

parent or guardian, but the Division cannot show not who caused

the injury, we apply either conditional res ipsa loquitur or

traditional res ipsa loquitur. In In re D.T., 229 N.J. Super. 509

(App. Div. 1988), we applied the conditional res ipsa loquitor

rule of Anderson.2 We held:

[where] a limited number of persons, each having access or custody of a [child] during the time frame when a[n] [] abuse concededly occurred, no one else having such contact and the [child] being then and now helpless to identify her abuser . . . the burden would then be shifted, and such defendants would be required to come forward and give their evidence to establish non-culpability.

[D.T., supra, 229 N.J. Super. at 517.]

In the present case, there is no dispute A.D. suffered an

injury. Based upon testimony and the pictures of A.D., the trial

judge found she suffered an injury that would not have occurred

absent an act or omission of her parents or guardian. See N.J.S.A.

9:6-8.46(a)(2). The testimony of the Division workers who observed

2 Anderson v. Somberg, 67 N.J. 291 (1975), certif. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975).

10 A-0213-15T3 the child's injuries and the pictures are competent, material, and

relevant evidence of A.D.'s abuse or neglect.

Because the injury occurred while A.D. was either in the

custody of R.F. or C.D., the trial judge correctly shifted the

burden to the parents under conditional res ispa loquitur pursuant

to In re D.T. A.D. was in the custody of only C.D. or R.F., and

A.D. did not name her abuser. C.D. and R.F. each bore the burden

to come forward with evidence to rebut the Division's presumption

of abuse and neglect. C.D. rebutted the presumption, but R.F. did

not.

R.F. argues he did not know he needed to present testimony

and was unaware of the burden shifting. He claims his due process

rights were violated because the court failed to inform the parties

the burden of proof might shift. However, the trial judge

specifically advised at the order to show cause hearing both

defendants would have to come forward with evidence to establish

non-culpability. R.F. was on notice of the potential for burden

shifting in advance of the fact-finding.

R.F. argues his due process rights were violated because the

complaint did not allege any specific claims against him, and he

was not given any notice the Division intended to prosecute a

finding against him.

11 A-0213-15T3 Due process requires a parent charged with abuse and neglect

"have . . . adequate notice and opportunity to prepare and

respond." N.J. Div. of Youth & Family Servs. v. T.S., 429 N.J.

Super. 202, 213 (App. Div. 2013) (citing N.J. Div. of Youth &

Family Servs. v. B.M., 413 N.J. Super. 118, 126-27 (App. Div.

2010)). Notice must "reasonably apprise the party of the charges."

B.M., 413 N.J. Super. at 127 (quoting H.E.S. v. J.S.C., 175 N.J.

309, 321-22 (2003)). Because of the significant liberty interests

at stake, the fact-finding hearing "must be conducted 'with

scrupulous adherence to procedural safeguards.'" N.J. Div. of

Youth & Family Servs. v. G.M., 198 N.J. 382, 401 (2009) (quoting

N.J. Div. of Youth & Family Serv. v. A.R.G., 179 N.J. 264, 286

(2004)).

R.F. asserts he was denied vital procedural protections

because the issues litigated at the fact-finding hearing were

substantially different from what was in the complaint. However,

the complaint lists R.F. as the father of A.D. and includes the

alleged perpetrator of A.D.'s abuse as "parent(s) or guardian(s)."

R.F. had notice he was named in the complaint, and it was not

determined which parent abused A.D. While the investigation

summary substantiated C.D. for abuse, the findings also stated,

"the allegation is substantiated with an unknown perpetrator."

The Division presented all of the same facts detailed in the

12 A-0213-15T3 complaint at both the order to show cause and the fact-finding

hearings, where R.F. was represented by counsel.

In New Jersey Division of Youth & Family Services v. P.C.,

we found a defendant's due process rights were violated when the

trial judge sua sponte found she emotionally abused or neglected

her daughter when the allegations in the Division's complaint only

addressed her ex-husband's sexual abuse of the child. 439 N.J.

Super. 404, 413-14 (App. Div. 2015). The Division named the mother

as a defendant for dispositional purposes, but at trial, the judge

found there was enough evidence to make a finding against her.

Id. at 406.

We reversed because the finding violated "long-standing due

process principles that require a party in a judicial hearing

receive notice defining the issues and an adequate opportunity to

prepare and respond." Id. at 414. Here, the complaint sets forth

a concise premise either R.F. or C.D. struck A.D. R.F.'s due

process rights were not violated; he had sufficient notice of the

manifest allegations in the complaint. The fact C.D. was

originally identified as an alleged perpetrator is inconclusive

13 A-0213-15T3 because the Division's finding was "substantiated-perpetrator

unknown."3

Lastly, we find no merit in R.F.'s argument the trial court's

finding against him gave the appearance of judicial bias because

the trial court focused its attention on him during closing

arguments. Pursuant to Rule 1:12-1(g), a judge should disqualify

him or herself "when there is any other reason which might preclude

a fair and unbiased hearing and judgment, or which might reasonably

lead counsel or the parties to believe so." Our review of the

record discloses no support for the claim the judge was biased.

Affirmed.

3 When a Division investigator finds multiple alleged perpetrators could have caused the injury to the child, the investigator must obtain circumstantial evidence that identifies the most likely perpetrator. N.J.A.C. 3A:10-2.4(d). The Department representative then must evaluate the available information and determine whether abuse or neglect occurred, making "every reasonable effort to identify the perpetrator." N.J.A.C. 3A:10- 7.3(a). Based upon A.D.'s injuries, the Division was able to substantiate abuse or neglect, pursuant to N.J.A.C. 3A:10- 7.3(c)(1), but was unable to conclude whether C.D. or R.F. perpetrated the abuse and thus found the abuse to be "substantiated-perpetrator unknown."

14 A-0213-15T3