RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0558-14T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, February 9, 2016
APPELLATE DIVISION v.
K.F. and R.G.1,
Defendants,
and
D.M.,
Defendant-Appellant. ___________________________________
IN THE MATTER OF A.M. and N.G.,
minors.
Argued December 2, 2015 – Decided February 9, 2016
Before Judges Alvarez, Haas, and Manahan.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-256-14.
1 In its amended complaint the Division of Child Protection and Permanency sought custody, care, and supervision of N.G., A.M.'s older half-sister and K.F.'s daughter. The amended complaint added N.G.'s father, R.G., as a party to the litigation. This appeal pertains only to D.M., A.M.'s father. Lora B. Glick, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Glick, on the briefs).
Jessica M. Steinglass, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kenneth M. Cabot, Deputy Attorney General, on the brief).
James J. Gross, Designated Counsel, argued the cause for the minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Gross, on the brief).
The opinion of the court was delivered by
ALVAREZ, P.J.A.D.
Defendant D.M. appeals a May 9, 2014 Family Part order
finding he abused or neglected his then twenty-five-day-old
infant son, A.M. His principal contention is that the judge
erred by shifting the burden of persuasion to him, pursuant to
the paradigm in In re D.T., at the close of plaintiff Division
of Child Protection and Permanency's (Division) case. 229 N.J.
Super. 509 (App. Div. 1988). We agree and reverse.
I.
When the incident at issue occurred, K.F., the child's
mother, was babysitting her two-year-old nephew in the small
one-bedroom basement apartment she shares with D.M. K.F. also
2 A-0558-14T1 has a four-year-old daughter, who at the time was playing with
her cousins upstairs in her grandmother's apartment.
At the fact-finding hearing, see N.J.S.A. 9:6-8.44, the
Division moved into evidence the Special Response Unit (SPRU)
report summarizing interviews with the parents and hospital
staff. The report indicated that late in the evening of August
4, 2013, D.M. and K.F. drove A.M. to the emergency room at the
nearby community hospital. They were seen in the early morning
hours of August 5 by a Dr. Rocco. He "reported . . . the
parents' stories to be inconsistent and felt it was concerning
when the mother stated the baby fell. He stated that the father
reported that a sibling made the baby fall to the floor,
however, the mother stated the sibling had nothing to do with
the child's falling." Neither parent speaks English and
communicated with Dr. Rocco with the assistance of a Spanish-
speaking hospital staff member.
Dr. Rocco's comments were not made directly to the worker,
however, as he was gone by the time she arrived. His concerns
were relayed to the worker by a Dr. Desiderio.
Dr. Desiderio said the father, D.M., explained "that he was
in the living room and the mother was helping him to change her
nephew's pamper[]" when the incident occurred. The worker noted
3 A-0558-14T1 that Dr. Desiderio also said that the father "denied knowing how
long the mother was away from the baby."
The parents directed Dr. Desiderio's attention to a bump on
the baby's head that "he did not even see initially." The baby
also had a bruised upper lip.
A.M. was admitted to monitor his condition; K.F. remained
with him. The initial CAT scan of the baby's skull which
prompted Division involvement revealed inconclusive
irregularities. It was possible that the baby had a fractured
skull, or may have moved during the taking of the CAT scan
images, or the irregularities might have been entirely normal
because at twenty-five days of age, a baby's skull is not
closed. The second CAT scan taken the following morning was
normal.
The observations of the primary worker who responded to the
hospital were also included in the SPRU report:
the parents['] stories were consistent with each other. It was reported the mother left the child alone on the bed on a pillow in the room. The mother went into the living room for [ten] minutes to help change her nephew . . . . After she heard the baby cry she went back to the room and saw [the] baby on the floor. . . . The mother stated she saw the bump on [the baby's] head and brought him immediately to the [h]ospital with a cab. The father reported the same . . . .
4 A-0558-14T1 The mother initially reported placing A.M. in the middle of the
bed.
The primary worker and the author of the report,
accompanied by D.M., returned to the family home once the baby
was admitted to the hospital. The condition of the small
apartment was unremarkable. The worker noted a crib in the
parents' bedroom "as well as ample baby supplies."
Later in the morning of August 5, the baby was medically
discharged but held at the facility "waiting on 'DYFS'
clearance." The discharge doctor, a third physician, suggested
the worker "speak to the mother to see if she confess[es] about
'something' as her story is not plausible."
That afternoon, Division workers drove the parents to the
Hudson County Prosecutor's Office to be interviewed. D.M. told
investigators that sometime the evening before, K.F. was rocking
the infant in the living room. In order to help him change the
two-year-old nephew's diaper, she took the baby into their
bedroom and placed him on top of a pillow on their bed.
D.M. said that it was a mistake to leave the child
unattended, but that they did not think A.M. would fall off the
bed. He told the detective that K.F. was in the living room
with him for about ten minutes. When an officer commented that
5 A-0558-14T1 it was a long time to change a diaper, D.M. changed the time to
perhaps only five to ten minutes.
The detective then asked D.M. to identify who told the
doctor at the hospital that the child rolled off the bed, or
that either the two-year-old or the four-year-old was around the
baby when the incident occurred.2 D.M. "denied giving anyone
that information[,]" adding that the baby moves a lot but does
not turn over, and that there were no children around the baby.
He and K.F. were in the living room changing the two-year-old
when the baby began to cry in the bedroom, and the four-year-old
was upstairs.
The detective asked if the parents had spoken to the doctor
separately or together, and D.M. responded that the doctor spoke
to them at the same time. D.M. did not know how the baby came
to fall from the bed, as they had put him on the bed before and
this had not happened. D.M. reiterated that the baby's mother
was feeding A.M. in the living room, the baby fell asleep, and
when D.M. needed assistance, she placed the child on the bed
with his head on a pillow. When asked about his source of
information, D.M. said he was repeating K.F.'s explanation.
K.F. in turn denied telling anyone that the baby rolled on his
2 The detective's line of questioning is the first mention in the record of the child rolling off of the bed. Both parents consistently denied reporting that A.M. rolled off the bed.
6 A-0558-14T1 own, insisting that she only said she found him on the floor
when she got to the bedroom.
The Division worker returned to the hospital to interview a
third physician, who agreed that the bump on the head and the
bruise on the child's lip could result from the child falling
from the bed. In the doctor's opinion, however, the child would
have had to have been extremely close to the edge in order to
fall because a child that age cannot roll.
When the worker went back to the home, she explained to the
parents "that due to the doctors stating that the parent[s']
stories are not consistent as the baby is [twenty-five] days old
and does not have the motor skills to wiggle from the bed to the
floor, a safety plan would have to be implemented." The worker
instructed K.F. not to be left unsupervised with other children.
On an interim basis, once discharged, A.M. would be placed with
relatives.
Further on, the SPRU report states that on August 9, the
mother "admitted that she placed the infant close to the edge of
the bed and reported feeling sad." K.F. was taken for a
screening as a result of concerns that she was feeling suicidal.
At the end of the SPRU report, the worker stated:
it is of concern that [D.M.] knew that the child was left alone in the bedroom, and although he did not place the child onto the bed unrestrained, he is equally responsible
7 A-0558-14T1 for ensuring his safety and well being and failed to do so. His inaction contributed to the child's injury.
Findings The allegations of neglect, inadequate supervision against both [the mother] and [D.M.] are substantiated as it relates to the child. . . .
The Division's expert in pediatric child abuse, Nina
Agrawal, M.D., testified at the fact-finding hearing that when
she saw the child on August 8, 2013, she noticed red marks on
the back of the child's head. On a second examination of the
baby, however, she determined that the marks were caused by the
birth process as their appearance had not changed in between
examinations.
By August 8, four days after the incident, the child had no
visible injury to his lip and the bump had disappeared.
Although Dr. Agrawal did not see photographs, she read a copy of
the SPRU report. She also interviewed K.F., who acknowledged
placing the child on the edge of the bed. Dr. Agrawal opined
that "it's not probable or not likely that the baby fell off the
bed independently[,]" even if he had been placed on the edge of
the bed unless he was placed "half on half off."
Dr. Agrawal noted that the child's CAT scan was normal and
a skeletal survey negative for fractures. She reiterated that
in her opinion a child could not move sufficiently to fall from
8 A-0558-14T1 the edge of the bed unless placed "half on half off." Dr.
Agrawal considered it a bad practice for children to be left on
a bed unattended because of the risk of sudden infant death
syndrome.
When the worker who authored the SPRU response report
testified, she reiterated that K.F. "clarified" that she simply
did not know how the baby fell onto the floor. It was not until
some days after the incident that K.F. admitted placing the baby
on the edge of the bed.
At the close of the Division's presentation, the judge
asked if the matter was "to be like a burden shifting case[,]"
and Division counsel agreed. Counsel for the parents opposed
the court's use of the D.T. burden-shifting paradigm, contending
that it was inapplicable. They urged the court to not shift the
burden of persuasion to the parents because the evidence as to
injury were so weak. The Division had not introduced the
medical records, and when the expert examined the child four
days after the event, having only read the SPRU report, the
child had no sign of injury.
The judge, after reiterating the facts of D.T., said he
felt compelled to shift the burden to the parents because the
child had an injury which no one admitted to inflicting. Since
he was not "convinced that the baby had this injury because the
9 A-0558-14T1 baby fell off the bed," and the baby was in the care of both
parents, he opined that although he believed the injury "was
probably some kind of accident," it was necessary to shift the
burden to them.
After hearing summations, defendants having elected to
present no proofs, the judge quoted N.J.S.A. 9:6-8.46(a)(2) to
the effect that injuries constitute prima facie evidence of an
abused or neglected child. He observed that the "D.T. cases"
are "always difficult" because invariably the burden is placed
"on at least one person who didn't have anything to do with the
injuries to the child."
The judge credited Dr. Agrawal's testimony that the injury
did not occur as a result of the child falling off the bed.
Recognizing that D.M.'s only "version" of the incident was based
on K.F.'s explanations, since "there was a time where dad [also]
had the baby . . . in the living room[,]" he opined that he
could not determine which parent caused the injury and would not
"get into whether this is gross negligence versus ordinary
negligence[.]" The judge applied the preponderance of the
evidence standard, see N.J.S.A. 9:6-8.46(b), and stated:
[T]his is different than D.T., but you have the same underlying factors that we -- it's just we have a limited number of people, two people with access to the child with an unexplained injury that the child could not
10 A-0558-14T1 cause to himself, the medical explanation is -- the explanations in the plural by Mom.
I don't accept, I don't accept them, so we don't know how this injury happened. So unfortunately, the parents, I need to make a finding. And unfortunately I need to make it against both of them because I'm not convince[d] again, I don't know how this happened.
On appeal, D.M. raises the following points:
POINT I:
THE TRIAL COURT'S FINDING OF ABUSE AND NEGLECT SHOULD BE REVERSED BECAUSE IT IS BASED ON FACTUAL FINDINGS NOT SUPPORTED BY THE RECORD AND DETERMINED UNDER AN IMPROPER STANDARD SUCH THAT SUSTAINING THE TRIAL COURT'S FINDINGS WOULD RESULT IN A GRAVE INJUSTICE.
A. The Trial Court Erred in Holding that D.T., supra, Is Applicable in this Case.
B. The Trial Court's Ruling Was Not Based On Competent, Material and Relevant Evidence.
POINT II
THE TRIAL COURT EMPLOYED AN INCORRECT STANDARD TO FIND THAT [D.M.] ABUSED AND NEGLECTED [THE INFANT].
II.
Based on Dr. Agrawal's testimony, the judge found
sufficient proof to constitute prima facie evidence of abuse or
neglect, and the parents' account of the injury unconvincing.
We review his decision in the context of Title 9's purpose to
11 A-0558-14T1 protect children "who have had serious injury inflicted upon
them by other than accidental means." Dep't of Children &
Families, Div. of Child Prot. & Perm. v. E.D.-O., 223 N.J. 166,
177 (2015). It is well-established that determining whether a
parent's action constitutes abuse or neglect requires close
scrutiny of the totality of the circumstances. N.J. Div. of
Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App.
Div. 2011).
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). We do not disturb the findings 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 court's 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)).
However, "[w]here the issue to be decided is an 'alleged
error in the trial judge's evaluation of the underlying facts
and the implications to be drawn therefrom,' we expand the scope
12 A-0558-14T1 of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191
N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269
N.J. Super. 172, 188-89 (App. Div. 1993)). The trial judge's
legal conclusions, and the application of those conclusions, are
subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995).
III.
Assuming that, by virtue of Dr. Agrawal's testimony, the
Division established that the parents' account of the injury was
unconvincing or otherwise suspect, that factor alone does not
trigger the application of D.T. The mother never admitted to
being more than careless, but she never denied being the one who
placed the baby on the bed. She never claimed D.M. was in any
way responsible for the child's injuries. In contrast to D.T.,
in this case one parent took sole responsibility throughout for
the incident that resulted in the injury.
D.T. created a paradigm to be applied when "[t]he state of
the proofs [make] it difficult to establish by a preponderance
of the evidence which of the finite group of possible abusers
committed the acts of abuse." D.T., supra, 229 N.J. Super. at
515. The opinion was "mindful of" the result the Division was
seeking, "not implicating custody or termination of parental
rights," only "the limited protective relief for [the infant]
13 A-0558-14T1 here sought." Id. at 516. In order for the Division to be able
to fulfill its legislative charge in those rare instances, the
burden would be shifted to the defendants "to come forward and
give their evidence to establish non-culpability." Id. at 517.
We cited to the "Child Abuse Law" then in effect, intended to
provide "protection of children under [eighteen] years of age
who have serious injury inflicted upon them by other than
accidental means." Id. at 516 n.2 (quoting N.J.S.A. 9:6-8.8).
In D.T., everyone in "the finite group of possible abusers" who
had access to the child denied responsibility for the sexual
abuse of the infant. Even the time the injury occurred could
not be pinpointed, other than it happened within twenty-four
hours of the child being examined by a physician. Id. at 512.
Moreover, although one member of the panel concurred with
the continuance of "a protective order" for the benefit of the
child, he dissented with regard to the burden-shifting paradigm
because it "might unjustly serve to place guilt upon a parent
for the heinous offense of sexual abuse merely because of the
parents' inability to prove innocence." Id. at 519 (Shebell,
J., concurring in part and dissenting in part). Although he
agreed that an adverse inference could be drawn against a parent
who neither presents evidence nor testifies, as is customary in
civil cases, he could not agree with the burden shifting because
14 A-0558-14T1 it placed a parent in the difficult position of proving a
negative. Ibid.
D.T.'s burden shifting then, an aid to the trier of fact in
the rare outlier case in which more than one person could have
inflicted serious harm upon a child who cannot communicate, was
actually fashioned to enable the Division to continue limited
monitoring of a family.3 Thus an important distinction between
D.T. and this case is the result sought by the Division.4
In D.T. the parents had not presented evidence, which the
court found was a tactic possibly chosen in reliance on an
earlier appellate decision in that same case. Id. at 518.
Despite this, supervision could continue until either a future
hearing at which the parents "met their burden" or the
"demonstration by any party to the satisfaction of the trial
judge, after hearing, that [the child] is in no further danger
of sexual abuse." Ibid. Another arguable distinction between
D.T. and this case is that the injury was minor; however, this
3 This observation has been made by others before us. Fall & Romanowski, New Jersey Family Law, Relationships Involving Children § 31:1-5 (2015) (highlighting that the D.T. court explicitly noted that it merely sought continuing supervision and not punitive relief or damages). 4 Title 30 establishes a parallel statutory scheme permitting the provision of services to ensure a child's health and safety even absent a finding of abuse or neglect. See N.J.S.A. 30:4C-11 and 12; N.J. Dep't of Children & Families, Div. of Youth & Family Servs., 214 N.J. 8, 32 (2013).
15 A-0558-14T1 child's extremely vulnerable young age, twenty-five days, makes
any injury a cause for concern.
In any event, just because the mother's acknowledgment of
responsibility was half-hearted, does not make this father
guilty. Nor does the fact both parents were with the child
earlier in the evening make this father responsible. From the
time the parents arrived at the hospital until the mother's
statement some days later that she placed the child at the edge
of the bed, both parents agreed that the father had not been in
the child's immediate vicinity when the incident occurred.
There was no circumstance offered by way of testimony or other
proof that actually contradicted the father's statement.
All the doctors were concerned because they opined the
child's injury could not have occurred as the parents described.
But both parents denied giving these details: that either an
older sibling caused the injury, or that the baby rolled off the
bed. The caseworker who authored the SPRU report agreed that
the parents always denied having given those explanations.
The judge referred to the doctor's second- and third-hand
version of the parents' statements as the "inconsistencies" that
make the parents suspect. Regardless of whether that is a fair
characterization of the record, the parents themselves were
never inconsistent about D.M.'s role.
16 A-0558-14T1 To apply the burden shifting paradigm to a case in which
one parent always claimed responsibility, and no reason existed
to suspect the other of involvement, is a mistake of law. The
mother's story, repeated by the father, may have been
questionable. But she always claimed she alone placed the baby
on the bed and left him there. The parents never wavered from
their assertions that the father was in another room when the
child cried out.
In D.T., the facts clearly established that abuse occurred.
See D.T., supra, 229 N.J. Super. at 515. In contrast, here, the
judge said the injury may have been the result of "some kind of
accident." The judge opined that he did not "know what
happened[,]" but the possibility that the parents were not
"quite forthcoming" did not trigger application of D.T. It is
always possible that parents will lie when faced with the
Division's intervention. More than mere speculation is
necessary, however, to impose on a parent the burden of proving
a negative, that the parent did nothing wrong.
The burden of persuasion should not be shifted merely
because a trial judge is uncertain regarding the mechanism that
caused the child's injury. Indeed, that lack of certainty was
the result of the Division's lack of proof as to D.M., and
should not have been resolved by application of the burden-
17 A-0558-14T1 shifting paradigm. Even assuming that Dr. Agrawal's testimony
means that the injury must have been deliberately inflicted,
nothing in the record suggests that the father was the
perpetrator. Nothing suggested the parent who admitted having
caused the harm was lying about D.M.'s role.
As a matter of law, given these facts, D.M. should not have
been required to carry any burden under D.T. The Division did
not otherwise prove by a preponderance of the evidence that D.M.
abused or neglected his child.
Reversed.
18 A-0558-14T1