DCPP VS. J.M.E., C.G., R.M.-E., M.E.P. AND S.A.L., IN THE MATTER OF M.E., K.E., C.P., D.P., A.L., N.L., D.L. AND J.J.M.G. (FN-14-0086-18 AND FN-14-0087-18, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 22, 2020
• Docket: A-0211-19T4/A-0212-19T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0211-19T4 A-0212-19T4

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.M.E. and C.G.,

Defendants-Appellants,

and

R.M.-E., M.E.P., and S.A.L.,

Defendants. _____________________________

IN THE MATTER OF M.E., K.E., C.P. D.P., A.L., N.L., D.L. and J.J.M.G., minors. _____________________________

Submitted December 1, 2020 – Decided December 22, 2020

Before Judges Fisher and Moynihan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket Nos. FN-14-0086-18 and FN-14-0087-18.

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

Joseph E. Krakora, Public Defender, attorney for appellant C.G. (Robyn A. Veasey, Deputy Public Defender, of counsel; Phuong V. Dao, Designated Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Sookie Bae, Assistant Attorney General, of counsel; Peter D. Alvino, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Maria Emilia Borges, Assistant Deputy Public Defender, on the brief).

PER CURIAM

On May 24, 2018, five-year-old K.E. (Karen, a fictitious name 1) was

rushed to the hospital in need of emergency neurosurgery and intubation after

sustaining life-threatening injuries. Her father and stepmother – defendants

J.M.E. (Jason) and C.G. (Carol) – claimed the injuries were caused by a slip in

the bathtub, but the trial judge determined after a seven-day hearing that Carol

1 We use fictitious names for the parties and their children to preserve their privacy. A-0211-19T4 2 assaulted the child and Jason had turned a blind eye to Carol's abusive conduct.

In appealing, defendants argue, among other things, that the trial judge

erroneously shifted the burden of persuasion to them and the evidence offered

by plaintiff Division of Child Protection & Permanency was insufficient to

support the judge's findings and conclusions. We find no merit in these

arguments and affirm.

Carol is the biological mother of six sons: C.P. (Charles, born in 2008),

D.P. (Donald, born in 2009), A.L. (Albert, born in 2013), N.L. (Nicholas, born

in 2014), D.L. (Devon, born in 2015), and J.E., Jr. (Jason, Jr., born in 2019,

during the course of the litigation). Jason is the biological father of two of

Carol's children, Devon and Jason Jr. Jason also had physical custody of his

two daughters: Karen (born in 2013) and M.E. (Marianne, born in 2011).

In October 2017, Carol and her children moved to New Jersey from

Pennsylvania and began living with Jason – recently estranged from his wife,

Rosa – and his and Rosa's daughters. This relocation alarmed the Division's

Pennsylvania counterpart, which had removed Carol's six sons in April 2016 due

to her opiate addiction and her failure to ensure the children's attendance at

school. The children were returned to her in June 2017. So, when she moved

to New Jersey, Pennsylvania authorities filed a referral with the Division,

A-0211-19T4 3 asserting Carol's use of cocaine and Adderall, her having punched Charles in the

face, and her having left Devon, soiled and alone, in a high chair for seven hours.

The Division opened a case in October 2017 and began visiting the family

on a monthly basis. Division workers found the home was "chaotic," but that

the family "appeared to be stable and adjusting" to the new living arrangements.

This adjustment period, however, took conspicuously long; the eldest sons,

Charles and Donald, did not begin attending school until more than a month

after the family's relocation, and Carol did not transfer her children's health

insurance to New Jersey, preventing them from receiving services, such as

Division-recommended behavioral therapy. As of March 2018, Jason had not

secured health insurance for Marianne and Karen, despite the Division's

attempts to facilitate the process.

Karen had several medical visits soon after Carol and her children moved

into Jason's home. In late October 2017, Carol took Karen to the hospital for a

facial injury that Carol claimed was caused when Karen's biological mother,

Rosa, hit the child; an x-ray revealed no fractures. Days later, Carol brought

Karen to a doctor claiming Rosa physically abused her. The doctor observed

bruising on Karen's shins but saw no other evidence of possible abuse. Karen

was not examined again until January 2018 when there were concerns both she

A-0211-19T4 4 and Marianne were underweight. A follow-up appointment for April 2018 was

later cancelled; the record reveals that such cancellations were not uncommon.

Karen is not the only child in the family to have been medically examined

for signs of potential physical abuse. In April 2018, a teacher observed a bruise

on the edge of Charles's ear. The next day, a Division worker met with Charles

at school to photograph and discuss the bruise. Charles said Carol caused the

bruise by pulling "hard" on his ear "because he was talking back to her and

giving her attitude." He said Carol had used this type of physical punishment

on him before, as well as Donald, who advised the Division worker that Charles,

Marianne, and Karen had all had their ears pulled by Carol. When the Division

worker interviewed Carol about this, she admitted pulling Charles's ear for "not

listening" and pulling Karen's ear in the past for wetting herself after "refus[ing]

to go to the bathroom." Carol denied using any other forms of physical

punishment on the children and expressed remorse for punishing Karen once she

learned that Karen's incontinence difficulties arose from other medical issues.

Karen, in fact, had a significant medical history. She was born

prematurely and was diagnosed in 2015 with global developmental delays

related to autism, central hypotonia, and possible cerebral palsy. During a child

study team meeting, Carol said that Karen routinely suffered bruises because

A-0211-19T4 5 she is "accident prone" and has "serious problems with gross and fine motor

skills." She claimed Karen "bumps and falls often, sometimes hitting her head,"

"scratches herself and . . . shakes excessively," and had recently "forgotten

skills" such as eating with a spoon. Carol and Jason both stated during this child

study team meeting that Karen had been diagnosed with alpha-thalassemia and

offered this condition as the cause for her bruising.2

In March 2018, Karen underwent a physical therapy evaluation and was

reported as being able to move independently without assistive devices. She

was found to have a "good ability to execute high level skills," and scored in the

average range for all administered tests.

Two months later, on May 24, 2018, a Division worker arrived at the

family's home to investigate bruises and scratches on Marianne; the worker was

turned away when Charles, who answered the door, said Carol was in the

2 Alpha-thalassemia is an inherited blood disorder, which causes the body to make less hemoglobin than normal and can cause red blood cells to be smaller than normal size. Depending on which of the four types of alpha-thalassemia is inherited, individuals can suffer from mild to severe anemia, fatigue, exercise intolerance and – in more severe cases – an enlarged liver or spleen, yellowish skin, and leg ulcers. Those who are only carriers of alpha-thalassemia have mild to no symptoms. See Hannah Tamary & Orly Dgany, Alpha-Thalassemia, GeneReviews (Nov. 1, 2005), https://www.ncbi.nlm.nih.gov/books/NBK1435/ (last updated Oct. 2, 2020). The physicians who so diagnosed Karen stated that the alpha-thalassemia trait would not cause bruising. A-0211-19T4 6 shower.3 When the Division worker returned thirty minutes later, Carol was

present. During the interview that then took place, Carol attributed the scratches

on Marianne having turned her head away from a washcloth during a bath.

During this visit, the Division worker looked in on Karen, who was alone in a

dark bedroom that smelled of feces. Karen was dressed in sweatpants despite

the day's mid-eighty-degree temperature. The Division worker did not notice

any visible bruises on Karen's face or arms. Carol then told Karen to go to the

bathroom for a bath, and the Division worker left.

Less than an hour later, Carol called the Division worker to report that

Karen fell in the bathtub during a shower while Carol was in another room.

Karen was unconscious and not breathing.

Karen had suffered life-threatening injuries. The record reveals she may

never again walk or be able to communicate. Based on photographs and other

medical evidence deemed credible, the judge found "[t]here were bruises all over

[Karen's] limbs, back and head, in various stages of healing." The child was

diagnosed with a fracture of the right occipital bone, a subdural hematoma,

extending from the right frontal through the right parietal and temporal regions,

3 The judge found credible evidence that demonstrated Carol was not home and had left Charles in charge of all the children. Carol later admitted this. A-0211-19T4 7 and a left posterior parietal scalp hematoma. Photographs depicted the intubated

five-year-old blanketed by extensive bruising and lacerations on her face, back,

buttocks, and legs, including her inner thighs. The judge found credible the

testimony of the Division worker that many of the bruises depicted in the

photographs of the child that were taken in the hospital were not present when

she saw the child hours earlier.

A Division worker interviewed Carol the next morning. Carol claimed

Karen had slipped in the bathtub and hit her head. She also testified Karen had

been having unexpected bruising that resulted from alpha-thalassemia. The

other children were individually interviewed by the Division. During this

questioning, a Division worker noted several marks and bruises on Marianne's

body, including scratches on her face and neck, and bruises on her forearm and

knee. Marianne said she did not know how she received any of the marks and,

without being asked, volunteered that "mom and dad never hit me." After his

interview, Donald expressed fear that his mother would be arrested and that

Carol "was scared that [he] and [his] brothers said something bad" to the

Division. That day, all the children except Karen were transported for pre-

A-0211-19T4 8 resource home placement physicals and removed from Carol and Jason's

custody.4

This Title Nine action was commenced a few days after Karen sustained

her life-threatening injuries. The judge determined on the return date of an order

to show cause that there was good cause to believe Karen had been physically

abused and that both Jason and Carol posed a "significant risk" to the other six

children as well. The judge granted the Division's application for care, custody,

and supervision of all seven children. In a hearing that started in early January

and ended in early February 2019, the judge heard testimony from Division

workers, child abuse experts, a school social worker, and medical experts. Carol

and Jason did not testify. Carol called a medical expert to testify; Jason called

no witnesses.

By way of an oral decision, the trial judge concluded, among other things,

that Carol physically abused Karen, that Karen was neglected and abused by

4 A month later, Charles disclosed to his resource mother that Carol had "hit him on the legs with a broom" and that he had seen Carol "pick [Karen] up by her hair and throw her to the ground," and "hit [Karen] with a shoe." Donald confirmed what Charles said. In addition, Charles reported that he had seen his siblings get hit with a belt, that he was beaten with a plastic hanger, and that his father "doesn't do anything." Charles also said that after the removal he and his brother purposefully misbehaved because Carol told him that doing so would keep them from remaining in the foster system or getting adopted. A-0211-19T4 9 Jason due to his failure to recognize what was occurring within the home, and

that the abuse of all the other children could be inferred, as permitted by N.J.S.A.

9.6-8.46(a)(1). The action was dismissed at the end of July 2019 when the trial

judge approved the Division's plan of seeking the termination of defendants'

parental rights.

In appealing, both defendants argue that the trial judge erroneously shifted

the burden of persuasion to them. Carol argues that the burden should have

remained on the Division at all times and it was not incumbent on her to prove

"she did not cause the injuries" to Karen, and Jason also complains of the

shifting of the burden of persuasion. Both defendants also assert they were

prejudiced by the judge's failure to announce at an earlier stage that the burden

would be shifted. We find no merit in these arguments for the simple reason

that the judge never shifted the burden of persuasion to either defendant.

To obtain a determination that a child was abused or neglected under Title

Nine, the plaintiff may show, among other things, that the parent or guardian

"inflict[ed] or allow[ed] to be inflicted . . . physical injury by other than

accidental means" or "create[d] or allow[ed] to be created a substantial or

ongoing risk of physical injury to such child by other than accidental means."

N.J.S.A. 9:6-8.21(c). The preponderance standard is applied in such matters,

A-0211-19T4 10 N.J.S.A. 9:6-8.46(b)(1), and a judge's findings must be supported by

"competent, material, and relevant evidence," N.J.S.A. 9:6-8.46(b)(2). See also

N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 62 (App. Div.

2012). A prima facie case of abuse or neglect can be established with proof of

injuries or a condition "of such a nature as would ordinarily not be sustained or

exist except by reason of the acts or omissions of the parent of guardian."

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

To be sure, there are times when an abused child cannot explain what has

occurred either because of the child's age or because of the consequences of the

abuse. N.J.S.A. 9:6-8.46(a)(2). In those cases, it may be appropriate to require

that the parent or guardian provide a credible explanation for what occurred or

else be subjected to an inference that the injuries were brought about by abuse

or neglect. At times, the circumstances may permit saddling a defendant only

with "the burden of going forward" by presenting evidence "to rebut the

evidence of parental culpability" while the burden of persuading the trier of fact

that the child was abused remains with the Division. See N.J. Div. of Youth &

Family Servs. v. J.L., 400 N.J. Super. 454, 471 (App. Div. 2008) (quoting In re

Phillip M., 624 N.E.2d 168, 172 (N.Y. 1993)). For example, in J.L., the trial

judge determined there were several factors constituting credible, potential

A-0211-19T4 11 causes for the child's injuries, making it unclear to the court when and how she

was injured. Id. at 472-73. In J.L., those circumstances included bone fractures

occurring at three different times over several weeks and multiple individuals

besides the parents having access to the child. Id. at 469. There, the burden was

appropriately shifted to the parents "to come forward with evidence to rebut the

presumption of abuse or neglect" without shifting the burden of persuasion. Id.

at 470. In other instances, when the possibilities are not so multi-faceted, it may

be appropriate to shift the burden of persuasion to the parent or guardian. See,

e.g., In re D.T., 229 N.J. Super 509, 517 (App. Div. 2008).

If Carol had offered no explanation for what happened, there would have

been nothing erroneous about applying either of these burden-shifting

paradigms. See generally N.J. Div. of Child Prot. & Permanency v. C.J.R., 452

N.J. Super. 454 (App. Div. 2017). Karen suffered near-fatal brain damage and

sustained extensive bruising and bodily injuries less than an hour after a

Division worker saw her and noticed nothing wrong. Jason was not home at the

time, and Marianne, Charles, and Donald were outside playing. Because Carol

was the only adult in the home, the possibilities were limited and the judge could

have required that Carol prove that she did not abuse the child. Indeed, it is hard

to imagine a more appropriate instance for shifting the burden of persuasion

A-0211-19T4 12 under the traditional res ipsa loquitor standard described in Anderson v.

Somberg, 67 N.J. 291, 298-99 (1975).

But the judge examined the evidence and made findings without shifting

either the burden of persuasion or the burden of going forward. The judge

weighed the Division's considerable proofs that he found credible, and he

considered Carol's out-of-court explanations, all of which the judge rejected in

light of the what he referred to as the "overwhelming" evidence amassed b y the

Division. The judge rejected the assertion that the head injuries could have

resulted from a fall in the tub and the claims that the bruises resulted in some

accidental way. The judge rejected the contention that Karen was clumsy by

relying on credible testimony of earlier medical exams, rejected the contention

that bruising resulted from alpha-thalassemia by relying on credible medical

testimony to the contrary, and rejected the claim of accidental bruising by

referring to the bruises on the child's inner thighs, which would not normally

occur through a child's routine fall while playing.

In short, we reject defendants' arguments that the judge shifted the burden

of persuasion to them because the judge simply didn't do that. 5 He found

5 For this same reason, we reject the arguments that the judge deprived defendants of due process by failing to give notice that he would shift the burden of persuasion to them. A-0211-19T4 13 sufficient support for the Division's claim that Carol physically abused Karen

without resorting to any burden shifting. And, as for Jason, the judge found

from the Division's evidence that Karen's past injuries "could not have

reasonably gone unnoticed" by Jason and that he was "complicit by allowing

horrific abuse upon [Karen] and by engaging in the subterfuge attempting to

hide those injuries."

Defendants also argue there was insufficient evidence to support the

judge's findings or the conclusions he drew from those findings. We find no

merit in those arguments. Judge-made findings are "considered binding on

appeal when supported by adequate, substantial and credible evidence," Rova

Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974), a

deferential standard particularly appropriate in family court matters, Cesare v.

Cesare, 154 N.J. 394, 413 (1998) (holding that "[b]ecause of the family courts'

special jurisdiction and expertise in family matters, appellate courts should

accord deference to family court factfinding"); see also N.J. Div. of Youth &

Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010). The record was replete

with evidence that the judge found credible and that, in the judge's view,

"overwhelming[ly]" demonstrated that Karen was a physically active five-year

old – as observed by a Division worker – left near death an hour later. The judge

A-0211-19T4 14 was entitled to find from this evidence that the child did not slip and fall in the

bathtub but was instead beaten by Carol. These findings fully supported a

determination that Carol "created a substantial or ongoing risk of physical injury

to such child by other than accidental means which would be likely to cause

death or serious or protracted disfigurement." N.J.S.A. 9:6-8.21(c)(2).

Moreover, there was other medical evidence that revealed to the judge's

satisfaction that the child had suffered injuries in the past that should have been

noticed and acted on by Jason who, instead, turned a blind eye, thereby failing

to "exercise a minimum degree of care." N.J.S.A. 9:6-8.21(c)(4). And there

was evidence from which the judge could conclude that both defendants

attempted to hide the true cause of Karen's injuries through smoke screens about

the child's anemic condition.

The judge was also entitled to conclude from these findings that not only

was Karen endangered by being in defendants' care but all their other children

as well. We have previously said, "[p]redictions as to probable future conduct

can only be based upon past performance," J. v. M., 157 N.J. Super. 478, 493

(App. Div. 1978), and the physical abuse of one child can be "a dangerous

harbinger to one or more of the others," N.J. Div. of Youth & Family Servs. v.

Robert M., 347 N.J. Super. 44, 68 (App. Div. 2002). The judge was entitled to

A-0211-19T4 15 infer from what happened to Karen that the health and well-being of the other

children were and would continue to be jeopardized if left in the care of either

or both defendants. See N.J.S.A. 9:6-8.46(a)(1) (declaring that "proof of the

abuse or neglect of one child shall be admissible evidence on the issue of the

abuse or neglect of any other child of, or the responsibility of, the parent or

guardian").

In the final analysis, our role is limited. Appellate courts will not

intervene where a decision has been soundly based on the findings of a judge

who had the opportunity to see the witnesses testify and obtain a feel of the case

that an appellate court can never realize. M.C. III, 201 N.J. at 342-43 (quoting

N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). The judge

made thorough factual findings that are fully supported by the evidence found

credible. We will not second-guess such well-reasoned findings.

Any arguments not specifically addressed were found to be without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-0211-19T4 16