Opinion
DOCKET NO. A-5874-12T3
06-18-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.M.R., Defendant-Appellant. IN THE MATTER OF R.R. and S.R., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Cecilia M.E. Lindenfelser, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Steven J. Klein, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors R.R. and S.R. (Linda Vele Alexander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-541-12. Joseph E. Krakora, Public Defender, attorney for appellant (Cecilia M.E. Lindenfelser, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Steven J. Klein, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors R.R. and S.R. (Linda Vele Alexander, Designated Counsel, on the brief). PER CURIAM
Defendant D.R. (Diane) appeals from the September 25, 2012 Family Part order finding that she abused or neglected one of her four-month old twin sons, R.R. (Reid). For the reasons that follow, we affirm.
We use pseudonyms to protect the privacy of the parties and the minors.
I.
We discern the following facts from the record. Diane is the mother of twin sons, Reid and S.R. (Samuel), born in January 2012. On May 12, 2012, the Division received a referral from an emergency room nurse at a hospital that Reid was admitted for seizures and injuries consistent with Shaken Baby Syndrome. The Division investigated and met with Diane on two occasions. During the interviews, Diane informed the Division that she and the twins lived with her mother, T.R. (Terry) and her brother, and that she and her mother were the primary caretakers, although her sister, her boyfriend, and his mother, M.E. (Mary) also had contact with the twins in the weeks prior to Reid's hospitalization. Further, Diane told the Division that Reid received a relatively clean bill of health from his doctor about a week before he was hospitalized.
As to the events of May 12, Diane reported that she brought the twins to her boyfriend's house and left them in Mary's care to go to lunch. During the first interview, Diane stated that she was gone for an hour from noon to 1:00 p.m.; at the second interview, she reported returning around 2:30 p.m. Upon her return, she fed the twins, but Reid became fussy. Diane or her boyfriend attempted to settle Reid, but Diane claimed that he started screaming and turning red before becoming limp, pale, and was not breathing. After Mary poured water on Reid's face, he started wheezing and having seizures. Someone called for emergency assistance and an ambulance subsequently took the baby to the hospital.
When Diane learned that Reid's injuries were likely caused by someone hitting or shaking him, she became upset. She denied the allegations, claiming that she was with the twins all day and that they were fine. However, at the second interview, Diane admitted that a few weeks earlier, Reid's swing carrier had hit a wall while he was in it. She also admitted that she had briefly shaken Reid to quiet him on the day that he was hospitalized.
The Division also interviewed Terry, who reported that she had watched the twins the two nights prior to Reid's hospitalization. She informed the Division that the twins were fine while in her care and opined that Reid's diagnosis "could be hereditary" as other children in the family had experienced "bleeding in the head." Additionally, the Division interviewed Diane's boyfriend and his mother, Mary, who confirmed that the twins were fine for most of the day on May 12. Diane's boyfriend reported that after Reid became fussy, then appeared to be asleep. However, when Diane's boyfriend went to hold Reid, he heard wheezing and noted that Reid was limp.
The Division also interviewed Diane's sister, who advised that she does not spend a lot of time with the twins and was not alone with them in the period leading up to Reid's hospitalization. She reiterated that Diane and Terry were the twins' primary caretakers.
As a result of the investigation, the Division executed a Dodd removal of Samuel. On May 15, 2012, the Division filed a complaint for custody, care, and supervision of the twins, which the court granted. The court also ordered supervised visitation for Diane and Reid, placement of Samuel with Diane's sister and her husband, and drug treatment, individual counseling, and parenting classes for Diane.
An emergency removal of a child pursuant to N.J.S.A. 9:6-8.29(a).
On September 25, 2012, the court held a fact-finding hearing. The Division presented the testimony of Paulette Diah, M.D., an expert in pediatric medicine, and introduced into evidence Dr. Diah's curriculum vitae, her written evaluation, the Division's screening summary and investigation report. The Division stated it intended to introduce into evidence the voluminous certified hospital records but never actually moved them into evidence. Defense counsel's only objection to the Division's evidence was to hearsay statements in the investigation report. Diane did not call any witnesses or submit evidence.
At the end of the hearing, the trial court concluded that the Division established by a preponderance of the evidence that Diane abused or neglected Reid. The court found Dr. Diah to be a credible witness and accepted her testimony that Reid's injuries were not caused by a genetic mutation and were not the types of injuries caused by an accident. The court determined that Diane was not credible given the fact that her explanation to the doctors and the Division "were just insufficient or did not match . . . the types of injuries [Reid] had sustained." The court further rejected Diane's argument that other individuals had access to and could have caused Reid's injuries, finding that "the evidence is clear that [Diane was] the primary caregiver. Nobody else really had access to the child — to [Reid] alone that could have accounted for . . . the injuries he sustained."
In the ensuing dispositional hearing, the court ordered that physical custody remain with Diane's sister, and that the Division work with Diane towards reunification. On June 21, 2013, the court terminated the litigation upon the filing of a complaint for guardianship after Diane informed the court that she wished to surrender her parental rights to her mother. Diane appealed the trial court's finding of abuse and neglect.
On appeal, Diane argues that there was insufficient credible evidence to support a finding of abuse and neglect, and the trial court erred in relying on hearsay concerning the medical records in the Division's expert's report since Reid's medical records were not admitted into evidence. Diane also asserts that the trial court erred by failing to analyze this case under the traditional res ipsa loquitur doctrine. We are not persuaded.
II.
We begin with a review of the applicable legal principles that guide our analysis. The Division brought this case under Title Nine, which sets forth the controlling standards for adjudicating cases of abuse and neglect. N.J.S.A. 9:6-8.21 to - 8.73; Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011) (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)). Title Nine's purpose is to protect children from circumstances and actions that threaten their welfare. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 176 (1999) (citing State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. 1991)).
To determine whether a child is abused or neglected, a court must hold a fact-finding hearing. N.J.S.A. 9:6-8.44. An abused or neglected child is one who is less than eighteen years of age and
whose parent or guardian . . . (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means . . .; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means . . .; (4) or 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 . . . to exercise a minimum degree of care[.]"[A]ny determination that the child is an abused or neglected child must be based on a preponderance of the evidence and . . . only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b).
[N. J.S.A. 9:6-8.21(c).]
Abuse and neglect cases are fact sensitive and "[e]ach case requires careful, individual scrutiny" as many cases are "idiosyncratic." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). The court must look at the totality of the circumstances in making its findings. Id. at 33-34 (citing M.C. III, supra, 201 N.J. at 345; see also N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329-30 (App. Div. 2011) ("Each proven act of neglect has some effect on the [child]. One act may be 'substantial' or the sum of many acts may be 'substantial.'") (internal citations and quotation marks omitted).
Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We must determine "whether the findings made could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 171 N.J. 44 (2002). Special deference is accorded to the factual findings of the family court because of its "'expertise in family matters[.]'" M.C. III, supra, 201 N.J. at 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (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 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, "[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 of our review." G.L., supra, 191 N.J. at 605 (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 to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995).
III.
First, Diane contends that since Reid's medical records were not admitted into evidence, the record contains no competent evidence of his injuries to support a finding that she abused and neglected her child. The Division counters that Dr. Diah's report, based upon a review of the records and containing summaries of the hospital records, was admitted into evidence without objection and thus, the record contained evidence of Reid's injuries and medical diagnosis and treatment.
While we agree with Diane that Reid's medical records should have been admitted into evidence, at the fact-finding hearing, defense counsel's only objection to the Division's proposed evidence was to the inclusion of hearsay statements in the Division's investigation report. Defense counsel did not object to the admission of Dr. Diah's report or seek to limit the use of the hearsay statements, which relied on and discussed Reid's medical records. In addition, she did not object to the doctor's testimony concerning the contents of the hospital records. In fact, she cross-examined the doctor concerning recommendations for further testing that were contained in the hospital records.
At the fact-finding hearing, the Deputy Attorney General noted that the voluminous records were in the courtroom, marked Exhibit P-6, and that he intended to move them in, and understood there would be no objection. He went on to discuss another exhibit. Thereafter, all counsel and the court proceeded as if the hospital records had been moved into evidence.
We recognize that "[h]earsay statements upon which an expert relies are ordinarily admissible provided that they are of a type reasonably relied upon by experts in the field." In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003) (internal citations and quotation marks omitted), certif. denied, 179 N.J. 312 (2004); see N.J.R.E. 703. Nevertheless, such "hearsay is not admissible substantively as establishing the truth of the statement." State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). Thus, by agreeing to the admission of Dr. Diah's report without seeking to limit the substantive use of the hearsay statements contained therein and not objecting to any testimony concerning what was in the hospital records, defense counsel deprived the Division of the opportunity of laying the foundation for the admission of Dr. Diah's report and testimony, i.e. moving the hospital records into evidence, and, thus, invited any error. M.C. III, supra, 201 N.J. at 341-42.
In our view, the doctrine of invited error, which holds that "trial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[,]" applies here. State v. A.R., 213 N.J. 542, 561 (2013) (internal quotation marks and citations omitted). Put differently, a party who has "invited the error is barred from raising an objection for the first time on appeal." Ibid. (citing M.C. III, supra, 201 N.J. at 342). "'The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.'" M.C. III, supra, 201 N.J. at 340 (quoting Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996)).
To demonstrate reversible error when the error was invited, "the question is whether 'the particular error . . . cut mortally into the substantive rights of the defendant[.]'" State v. Corsaro, 107 N.J. 339, 345 (1987) (alteration in original) (internal quotation marks and citations omitted); see also A.R., supra, 213 N.J. at 562. If the doctrine of invited error "would 'cause a fundamental miscarriage of justice,' it will not be applied automatically." A.R., supra, 213 N.J. at 562 (quoting M.C. III, supra, 201 N.J. at 342).
We perceive no fundamental miscarriage of justice here in the admission of the hearsay evidence concerning the hospital records in Dr. Diah's report and testimony. There was other evidence in the record that the trial court could have relied on to support its findings, including the Division's screening and investigation reports. Importantly, the hospital records were available in court, reviewed by all parties, and utilized by defendant's counsel for cross-examination. Diane's failure to object prevented the Division from simply moving the hospital records into evidence and deprived it of the opportunity to address the issue before the trial court.
Furthermore, hearsay, even if subject to a valid objection, is evidential if no objection is made. State v. Ingenito, 87 N.J. 204, 224 n.1 (1981) (Schreiber, J., concurring); J.A. Bock, Consideration, In Determining Facts, of Inadmissible Hearsay Evidence Introduced Without Objection, 79 A.L.R.2d 890 (2014) (stating that "the overwhelming weight of authority" supports the rule that inadmissible hearsay may be considered evidential when it enters the record without objection, and it "should be given its natural and logical probative effect[.]").
IV.
Next, Diane contends that the trial court erred in applying the incorrect res ipsa loquitur standard in analyzing the evidence, thereby inappropriately shifting the burden of proof. She also claims that the evidence was insufficient to support the trial court's finding that she abused or neglected Reid. We are not persuaded.
N.J.S.A. 9:6-8.46(a)(2) provides that "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[.]" If the Division establishes a prima facie case of child abuse under N.J.S.A. 9:6-8.46(a)(2), then generally the burden will shift to the parent or guardian to "come forward with evidence to rebut the presumption of abuse or neglect[,]" although the ultimate burden of proof remains with the Division. Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 470 (App. Div. 2008). This burden-shifting paradigm, which is analogous to the doctrine of traditional res ipsa loquitur, recognizes that "[i]t is difficult to marshal direct evidence of parental abuse and neglect because of the closed environment in which the abuse most often occurs and the limited ability of the abused child to inculpate the abuser." N.J. Div. of Youth & Family Servs. v. S.S., 2 75 N.J. Super. 173, 179 (App. Div. 1994).
In contrast, in rare instances, conditional res ipsa loquitur shifts the burden of proof requiring all potential defendants to be joined in an action and to go forward with presenting evidence to rebut the prima facie case of plaintiff. In re D.T., 229 N.J. Super. 509, 517 (App. Div. 1988). We agree with Diane that the conditions necessary for conditional res ipsa do not exist here. Contrary to Diane's argument, however, the record does not in any way suggest that the judge applied conditional res ipsa to reach his conclusion in this case.
On the other hand, J.L. makes it clear that under traditional res ipsa the parent or guardian is "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." J.L., supra, 400 N.J. Super. at 472. In considering the strength of the Division's prima facie case, the court should weigh the following factors:
the credibility of the witnesses testifying in support of [the Division's prima facie case], the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretaker's explanation in light of all the circumstances. . . . Certainly, the caretaker's failure to offer any explanation for the child's injuries, to treat the child, or to show how future injury could be prevented are factors to be considered by the court, for they reflect not only the caretaker's fault and competence but also the strength of the caretaker's rebuttal evidence.
[Id. at 471 (citations and internal quotations marks omitted).]
Here, the record is not clear whether the Division sought to have the statutory presumption of abuse and neglect apply. In summation, the DAG referenced the statute and pointed out that here a decision was easy under the presumption because the facts were clear. The court did not reference N.J.S.A. 9:6-8.46(a)(2) at the fact-finding hearing. Regardless of whether it applied the presumption, the trial court's analysis remains the same: whether, based on the facts and evidence presented, the Division established by a preponderance of the evidence that Diane abused or neglected Reid. Again, in reaching its decision, the trial court at no time suggested that the burden of proof had shifted.
From our independent review of the record, we conclude that sufficient credible evidence exists in the record to support the trial court's finding of abuse or neglect. In particular, the trial court found Dr. Diah to be a more credible witness, thus, giving great weight to her testimony and report that Reid's injuries were not "accidental" or due to a genetic mutation. The court also found it insignificant that Dr. Diah's recommendations for a follow up x-ray were not followed as other evidence confirmed the existence of Reid's injuries. Further, the court determined that Diane was not credible based on her inconsistent statements to the Division. The court highlighted that Diane admitted to shaking Reid on the day he was hospitalized as well as admitting to an earlier injury when Reid's carrier swing hit a wall.
Having the "best 'feel' of the case" and an opportunity to observe and weigh credibility, the trial court properly determined that Diane was Reid's primary caretaker and that she more likely than not had abused or neglected Reid. M.M., supra, 189 N.J. at 293. As these findings were not so "'wide of the mark[,]'" that we need to intercede in the interest of justice, we will not disturb the trial court's decision. E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION