RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4780-12T1 A-4946-12T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. December 19, 2014
B.O. and T.E., APPELLATE DIVISION
Defendants-Appellants. __________________________________
IN THE MATTER OF T.E.E.,
a minor. __________________________________
Submitted November 18, 2014 – Decided December 19, 2014
Before Judges Reisner, Koblitz and Higbee.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-198-12.
Joseph E. Krakora, Public Defender, attorney for appellant B.O. (Andaiye Al-Uqdah, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant T.E. (Carol A. Weil, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Timothy P. Malone, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.E.E. (Lisa M. Black, Designated Counsel, on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
In this consolidated matter, both parents appeal from a
February 14, 2013 order finding they abused or neglected their
seven-week-old infant, T.E.E. (Timmy1), within the meaning of
N.J.S.A. 9:6-8.21(c), by causing him to suffer brain injury
through partial suffocation when they both took oxycodone and
the mother, B.O. (Betty), slept with Timmy in the same bed.2 The
parents argue that the eyewitness presented by the Division was
so incredible and the doctor so poorly informed that the
Division did not prove the parents' failure to exercise a
minimum degree of care by a preponderance of the evidence. The
Law Guardian joins the Division in urging us to affirm. After
carefully reviewing the record in light of the contentions
advanced on appeal, we affirm.
1 We use fictitious names for the parties for ease of reference and to preserve their confidentiality. 2 The order was rendered ripe for appeal as of right after the Division of Child Protection and Permanency (Division) filed a complaint for guardianship and the judge entered a May 10, 2013 final order terminating this neglect litigation.
2 A-4780-12T1 Defendants did not testify, nor present any other evidence
at the fact-finding hearing, nor did they attend every day of
the four-day hearing. The Division presented the following
facts. The Division received its first referral regarding
defendants on the day after Timmy was born. The reporter
alleged that in June and November 2011, during her pregnancy,
Betty tested positive for marijuana. Betty told the Division
she did not intentionally smoke marijuana after realizing she
was pregnant, but may have tested positive because she was in a
car where others were smoking it. She also said she had been
diagnosed with bipolar disorder but was not receiving treatment.
Both parents tested negative after Timmy was born, although T.E.
(Ted) did not appear for a drug test at the end of January.
In January, on a routine home check, defendants informed
the Division caseworker that they had taken Timmy to the
hospital because he had a fever. The child's pediatrician
expressed no concerns about Timmy's care. A week later,
however, on February 10, 2012, the caseworker called Betty and
discovered that defendants were waiting at the pediatric
intensive care unit. Betty said that morning she found Timmy,
then about seven weeks old, not breathing. Betty related that
she had placed Timmy in his bassinet for a nap in the morning.
3 A-4780-12T1 When she checked on him later he had blue lips, a blanket
covering his face, and was not breathing.
Two Division caseworkers met the parents at the hospital
where both parents provided a similar account of what happened.
Neither parent mentioned the presence of any other adult. On
February 21, however, a downstairs resident of the two-family
house where defendants lived contacted the Division to say that
Jay, who had been staying with defendants, told her that he saw
Betty "get up off the baby" on the morning of Timmy's injury.
She said defendants were drug-involved and were always "messed
up and nodding out." Betty acknowledged having a houseguest
named Jay, but said he was not there when Timmy was hurt. Both
parents admitted using marijuana recently due to the stress from
Timmy's injury. Betty tested positive for marijuana and Ted
tested positive for marijuana, oxycodone and oxymorphone.
Two days later Jay told the police that he met the parents
through Betty's downstairs relative, and had been living with
the parents for four weeks as of February 10. According to the
transcribed statement given to the police, Jay told them that on
the evening of February 9, defendants purchased "oxycodone,
weed, [X]anax and cocaine[.]" While he did not see them use any
drugs that evening or notice any drugs in the house, Jay said he
had overheard defendants ordering drugs on the phone. Jay
4 A-4780-12T1 asserted that he could also "tell they were on something"
because they were "addicts." Jay told the police that the
parents began to argue because Ted kept "nodding out" and was
not helping Betty care for Timmy. Betty took the baby into her
bedroom, and Ted slept in the living room.
Jay stated to the police that at around 1:15 p.m. on
February 10,
I knocked on the bedroom door three times and then [Betty] finally woke up and said who is it? I said it’s Jay and she said come in. I watched [Betty] roll off the baby. My eyes were focused on the baby. I saw his head was a dark bluish color and his lips were purple. I screamed at her to get off him, and to look at what she did and she picked him up by his diaper screaming and she ran into the living room . . . and she put him on the couch and woke [Ted] up. [Ted] started to give him compressions on his chest and blowing into his mouth. I didn’t want to be up there anymore so I went downstairs and I told everybody downstairs and somebody downstairs called 911 and then all the cops came and the ambulance came and went upstairs and gave him oxygen and then they took him to the hospital.
Dr. Steven Kairys, a child abuse specialist with thirty
years of experience, who saw Timmy at the hospital every day,
opined that this explanation of the deprivation of oxygen was
"much more consistent as a plausible cause" for Timmy's
neurological damage. Kairys wrote in his report:
Co-sleeping is now the major cause of Sudden Infant Death Syndrome [(SIDS)] and Near
5 A-4780-12T1 Sudden Infant Death Syndrome [(NSIDS)] in this age child. Obviously, co-sleeping is an accidental cause of suffocation. However, it is quite concerning that the child was already an open DYFS[3] case because of marijuana smoking during pregnancy. More concerning is that the family fabricated a different story, rather than being truthful to the events that occurred.
Thus, there are clear concerns for child endangerment that resulted in the major morbidity to the child.
At trial, Jay gave a description of what he had observed on
February 9 and 10 that differed somewhat from his earlier
account to the police. He testified that, after completing a
drug rehabilitation program, he stayed with defendants from late
December 2011 to February 10, 2012. During that time, he saw
defendants sniff oxycodone every day and smoke marijuana on a
regular basis. He maintained that he had to care for Timmy
several times:
When they were messed up, nodding out on the kitchen table, the baby screamed in the chair, I would change him. I would cover him up at night. I fell asleep a couple times in my hoodie and my jeans and I was freezing, and I'd wake up and the baby was screaming and he would be in a diaper and that's it, no blanket covering him. So I covered him up, gave him a bottle, put him back to sleep.
3 The Division of Youth and Family Services, the prior name for the Division.
6 A-4780-12T1 Jay saw defendants purchase drugs several times, and sometimes
he personally gave them oxycodone as "rent[.]"
In contrast to his police statement, at trial Jay testified
that he saw defendants sniff oxycodone on February 9. He heard
Ted agree to buy more oxycodone, after which Ted left for a
period of time. Ted was nodding off, while Betty "was still
functioning." Jay admitted that he lied when he told police
that he saw Betty roll off Timmy, and testified that he saw
Timmy on a mattress on the floor directly behind Betty when she
sat up on the mattress to open the door to the bedroom.
Jay conceded on cross-examination that, on March 3, 2012,
two weeks after Jay spoke to the police about Timmy, the police
arrested him and charged him with burglary after Jay stole items
from defendants' apartment. He later pled guilty to an amended
charge of theft, and as of trial he was in jail serving a
sentence for that offense as well as an unrelated charge of
heroin possession. Jay denied that his testimony was in any way
motivated by the fact that defendants had reported him to the
police. Jay said he still dreamed about the blue baby he saw,
and that he wanted Timmy to go to a better home.
Kairys testified about the medical aspects of child abuse
and neglect. Consistent with his February 28 evaluation, Kairys
opined that Timmy suffered brain damage because he was deprived
7 A-4780-12T1 of blood and oxygen for a sustained period of at least six
minutes. Timmy's tests had produced no evidence of brain trauma
or shaken baby syndrome, and the tests ruled out the possibility
that Timmy had stopped breathing because of a vascular failure,
an infection, a seizure, or a disturbance in his metabolism.
Kairys could not identify within a reasonable degree of medical
certainty what caused Timmy to stop breathing.
Kairys acknowledged that Timmy had tested positive for
Respiratory Syncytial Virus (RSV), and that RSV could cause
episodes of apnea, which is defined as not breathing for fifteen
or twenty seconds. Based on his own experience and review of
the literature, he did not believe that RSV had caused Timmy to
stop breathing for six minutes, as there was no report of apnea
or Timmy wheezing prior to February 10, and Kairys knew of no
case of such severe oxygen deprivation due to RSV. In Kairys's
view, Jay's allegation that Betty co-slept with Timmy while in
an impaired state presented "the most plausible explanation for
[Timmy’s] injuries." Kairys admitted that without Jay's
statements, he would have deemed the cause of Timmy's
respiratory failure to be unclear.
Kairys maintained that Betty’s purported discovery of Timmy
with a blanket over his head was not plausible because an infant
of Timmy's age lacked the motor skills to pull a blanket over
8 A-4780-12T1 his head. Kairys testified that even if Timmy's head had been
covered there would have been a sufficient amount of air
available to prevent suffocation. He discussed the other
diagnoses that doctors considered, and admitted that he could
not rule out the possibility that Timmy had suffered NSIDS. He
noted that studies suggested a correlation between this
condition and co-sleeping, and that the danger would increase if
the co-sleeping parent was impaired, but stated that the cause
of SIDS and NSIDS remained a mystery.
Kairys testified that Timmy "had a significant brain damage
from the lack of oxygen[.]" Timmy had "cerebral palsy[,]" and
"was going to have all sorts of major neurological changes[.]"
Betty raises the following issues on appeal:
I. THE FINDINGS OF ABUSE AND NEGLECT MUST BE REVERSED BECAUSE THEY WERE BASED ON UNRELIABLE, INCREDIBLE EVIDENCE SUPPLIED BY A SELF-ADMITTED LIAR AND BECAUSE DR. KAIRYS' REPORT AND TESTIMONY WERE BASED SOLELY UPON THE REPORT MADE TO DYFS.
II. THE APPELLATE DIVISION SHOULD REVERSE THE TRIAL COURT'S RULING BECAUSE HEARSAY STATEMENTS AND DOCUMENTS, WERE IMPROPERLY ADMITTED DURING FACT-FINDING AND DISCUSSED AND RELIED UPON BY THE TRIAL JUDGE IN HIS RULING.
III. THE TRIAL JUDGE'S RULING SHOULD BE REVERSED AS THE JUDGE RELIED UPON DR. KAIRYS['S] REPORT, WHICH WAS CONCLUSORY, FAILED TO MAKE ANY CONCLUSIONS BASED OFF OF A REASONABLE DEGREE OF MEDICAL CERTAINTY OR
9 A-4780-12T1 PROBABILITY WHICH VIOLATES DEFENDANT'S DUE PROCESS RIGHTS.
IV. THE JUDGE ERRED BY NOT ARTICULATING WITH PARTICULARITY THE FACTS UPON WHICH A DETERMINATION OF ABUSE AND NEGLECT IS MADE AND FAILED TO IDENTIFY ALL DOCUMENTS/ EXHIBITS RELIED UPON IN REACHING HIS DECISION.
V. THE TRIAL JUDGE ERRED IN ITS RULING THAT CO-SLEEPING WITH A CHILD AMOUNTS TO GROSS NEGLIGENCE OR RECKLESSNESS.
VI. THE TRIAL JUDGE ABUSED HIS DISCRETION WHEN HE ABDICATED HIS RESPONSIBILITY TO EVALUATE WHETHER HE SHOULD SEQUESTER A DYFS SOCIAL WORKER WHOSE PRESENCE IN THE COURTROOM DURING THE TESTIMONY OF ANOTHER DYFS WORKER WOULD PREJUDICE THE DEFENSE WHEN HER TESTIMONY WAS CRITICAL IN DETERMINING CREDIBILITY.
Ted raises these issues:
I. THE FINDING OF ABUSE AND NEGLECT AS TO DEFENDANT-APPELLANT MUST BE REVERSED BECAUSE THE TRIAL COURT MISCHARACTERIZED THE EVIDENCE AND ASSUMED FACTS NOT IN EVIDENCE.
II. THE FINDING THAT THE CHILD IS ABUSED AND NEGLECTED AS DEFINED BY THE STATUTE MUST BE REVERSED BECAUSE THE DIVISION DID NOT PROVE THAT THE FATHER FAILED TO PROVIDE THE MINIMUM DEGREE OF CARE.
To prevail in a Title 9 proceeding, the Division must show
by a preponderance of the competent and material evidence that
the defendant abused or neglected the affected child. N.J.S.A.
9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. P.W.R., 205
N.J. 17, 32 (2011). The Division need only show that it was
10 A-4780-12T1 more likely than not that the defendant abused or neglected the
child. See N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J.
Super. 593, 615 (App. Div. 2010).
Title 9 defines an "abused or neglected child" as a child
less than eighteen years of age, whose parent or guardian:
(1) inflicts or allows to be inflicted upon such child 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; [or] (2) creates or allows to be 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, or protracted loss or impairment of the function of any bodily organ . . . .
[N.J.S.A. 9:6-8.21(c) (emphasis added).]
The phrase "accidental means" in this provision refers to
"the events leading up to the injury and not the resulting
injury itself." G.S. v. Dep't of Human Servs., 157 N.J. 161,
174 (1999) (citation omitted). "Where an action is deliberate,
and the actor can or should foresee that his conduct is likely
to result in injury, as a matter of law, that injury is caused
by 'other than accidental means.'" Id. at 175 (citations
omitted). The parent's intent is irrelevant. Ibid. (citations
omitted).
11 A-4780-12T1 The definition of an "abused or neglected child" also
encompasses:
a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care . . . by . . . acts of a . . . serious nature requiring the aid of the court[.]
[N.J.S.A. 9:6-8.21(c)(4) (emphasis added).]
"Where an action is deliberate, and the actor can or should
foresee that his conduct is likely to result in injury, as a
matter of law, that injury is caused by other than accidental
means." G.S., supra, 157 N.J. at 174 (citations and internal
quotation marks omitted).
The requisite measure of neglect in Title 9 matters is
higher than that of ordinary negligence. Id. at 178. By
isolating acts that fail to adhere to a "minimum degree of
care," the statute seeks only to capture conduct that is
"grossly or wantonly negligent, but not necessarily
intentional." Ibid. (citation omitted); see also N.J. Div. of
Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 167-68 (App.
Div. 2009) (affirming that inattentive or merely negligent
conduct does not constitute willful or wanton misconduct as
required by Title 9). Under this intermediate standard, a
parent is culpable if he or she acts "with the knowledge that
12 A-4780-12T1 injury is likely to, or probably will, result" in serious
injury, or acts with a reckless disregard for the consequences
of his or her actions. G.S., supra, 157 N.J. at 178.
The trial judge held that co-sleeping with an infant when
the parent is in an impaired state constitutes an act of gross
negligence. The judge found Betty was neglectful by co-sleeping
with her seven-week-old infant while under the influence of
illegal drugs. The judge also found Ted neglectful by knowingly
allowing this sleeping arrangement while Betty was impaired.
Defendants argue that because the medical expert's opinion,
that Timmy was probably injured due to co-sleeping with Betty,
depends on facts set forth only by Jay, who is not credible, the
Division did not prove its case. Defendants argue that Jay's
testimony is so demonstrably incredible that we should reverse
the trial judge's findings. In State v. Elders, where our
Supreme Court reinstated the trial judge's decision to deny the
defendant's motion to suppress after holding a plenary hearing,
Justice Albin wrote:
An appellate court should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy. An appellate court should not disturb the trial court's findings merely because it might have reached a different conclusion were it the trial tribunal or because the trial court
13 A-4780-12T1 decided all evidence or inference conflicts in favor of one side in a close case. A trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction. In those circumstances solely should an appellate court appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.
[State v. Elders, 192 N.J. 224, 244 (2007) (citations and internal quotation marks omitted).]
As demonstrated by defense counsel during cross-
examination, Jay's testimony could have reasonably been rejected
by the trial judge. Jay was in prison for stealing from
defendants, which gave him a motive to lie in retaliation for
their reporting him to the police. We note, however, that Jay
first spoke to the police before the theft occurred. Jay also
did not seek out the Division to cast blame on the parents, but
was found after the downstairs neighbor reported Jay's comments
to the Division. Jay gave differing versions of what happened
to the downstairs neighbor, the police, the Division and finally
under oath to the trial court. Jay's admission that he supplied
defendants with drugs and smoked marijuana with them was not
initially told to the police or the Division. His statement
that he saw Betty "roll off" Timmy was recanted in court.
The fact that Jay was living with defendants for an
extended period of time and that defendants did not mention
14 A-4780-12T1 Jay's existence when they reported the events adds credibility
to Jay's testimony. The parents' version of events was not
given under oath nor subjected to the rigors of cross-
examination. In a criminal case, where the standard of proof is
beyond a reasonable doubt, one could argue that "it is better
that ten guilty persons escape, than that one innocent suffer."
United States v. Schwimmer, 882 F.2d 22, 27-28 (2d Cir. 1989),
cert. denied, 493 U.S. 1071, 110 S. Ct. 1114, 107 L. Ed. 2d 1021
(1990) (citation and internal quotation marks omitted). When
the welfare of a defenseless baby is at stake, and the burden of
proof is more probable than not, different considerations apply.
A neglectful parent is a serious danger to an infant. We must
be particularly vigilant not to improperly interfere with the
credibility determinations of the trial judge where the danger
to an innocent party of an incorrect determination is so severe.
We owe great deference to the assessment of the trial judge,
particularly in light of the expertise of the family court.
Cesare v. Cesare, 154 N.J. 394, 412 (1998).
The trial judge explained why he found Jay credible,
determining that Jay was genuinely concerned for Timmy's welfare
and that inconsistencies in his version of events were
understandable given his desire to hide his drug involvement
from the police. Jay was not promised anything by the
15 A-4780-12T1 authorities for his testimony. The judge found that Jay was
truthful in his courtroom testimony, although, overwhelmed by
the sight of the injured baby, he had exaggerated initially when
speaking to the police. The judge also believed Jay's testimony
because it was consistent with Kairys's understanding of what
probably caused the injury to Timmy.
Our trial system is built on the premise that fact-finders
are able to view a witness, watch direct and cross-examination,
and decide whether the witness was truthful when making those
statements that are crucial to the decision-making. A fact-
finder is not required to reject the entire testimony of a
witness who willfully lies about some facts. State v. Ernst, 32
N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct.
464, 5 L. Ed. 2d 374 (1961); see Model Jury Charge (Criminal),
"False in One – False in All" (2013). A witness who gives a
prior inconsistent statement may well be believed by the
factfinder when he testifies in court. See Model Jury Charge
(Criminal), "Prior Contradictory Statements of Witnesses (Not
Defendant)" (1994). We therefore defer to the trial judge's
finding that Jay was credible.
Ted's argument that he did nothing wrong because he did not
sleep with Timmy is unpersuasive. A parent's failure to act in
circumstances that demand action is the essence of neglect. See
16 A-4780-12T1 In re Guardianship of K.H.O., 161 N.J. 337, 351-53 (1999)
(stating that a mother's failure to provide continuing care for
her child or to take any measures to relieve her child's
suffering satisfied the first prong of the statutory test); In
re Guardianship of D.M.H., 161 N.J. 365, 379-80 (1999) (finding
harm where a father's failure to act "compounded the mother's
neglect and contributed to the circumstances that" led to
removal); In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992)
(finding that "[s]erious and lasting emotional or psychological
harm to children as the result of the action or inaction of
their biological parents can constitute injury sufficient to
authorize the termination of parental rights") (citation
omitted); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.
Super. 418, 436 (App. Div. 2009) (stating that a mother harmed
her children by permitting the father into the home in violation
of court orders). If Jay's testimony is credited, Ted
participated in drug use with Betty and was aware that Betty
slept with Timmy, thus failing to protect Timmy.
Parents who use illegal drugs when caring for an infant
expose that baby to many dangers due to their impaired judgment.
See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.
320, 331 (App. Div. 2011) (commenting that, unlike an infant,
the twelve-year-old child was not vulnerable "to the slightest
17 A-4780-12T1 parental misstep" when visiting in a Division-supervised setting
with her father, who tested positive for drugs). Timmy was
completely dependent on his parents to protect him from danger.
Although a sober parent could also inadvertently smother a baby
when co-sleeping, a parent who falls asleep after ingesting
illegal drugs is less likely to exercise good judgment in
protecting the baby in bed.4 Just as a sober driver may have an
automobile accident, an impaired driver is much more likely to
do so.
The parents raise issues relating to the admission of
unspecified hearsay statements embedded in Division records.
Such evidence may not be admitted unless it satisfies an
exception to the hearsay rule. State v. Long, 173 N.J. 138, 152
(2002). Rule 5:12-4(d), however, specifically provides that the
Division may "submit into evidence, pursuant to N.J.R.E.
803(c)(6) and 801(d), reports by staff personnel or professional
consultants[,] [and that] [c]onclusions drawn from the facts
stated therein shall be treated as prima facie evidence, subject
to rebuttal." The trial judge in his oral opinion stated that
4 To be clear, the trial judge did not find that co-sleeping constitutes child abuse or neglect, and neither do we. The issue presented in this case is co-sleeping with an infant while under the influence of illegal drugs.
18 A-4780-12T1 he was not considering inadmissible hearsay contained in the
Division documents.
The Division's central fact witness, Jay, testified based
on his personal knowledge. The Division's expert witness,
Kairys, also testified based on his observations and review of
the records. A trial court's evidentiary rulings will not be
disturbed unless they constitute an abuse of discretion
resulting in a manifest error or injustice. Hisenaj v. Kuehner,
194 N.J. 6, 20 (2008). The trial judge did not abuse his
discretion by admitting hearsay contained in the testimony and
documents. Any other issues not addressed by us in this opinion
are without sufficient merit to warrant further discussion. R.
2:11-3(e)(1)(E).
Affirmed.
19 A-4780-12T1