Opinion
DOCKET NO. A-5337-12T3
04-30-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.H., Defendant-Appellant, IN THE MATTER OF A.L., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah Terry, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa Puglisi, Assistant Attorney General, of counsel; Victoria R. Ply, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Karen A. Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-0198-12. Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah Terry, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa Puglisi, Assistant Attorney General, of counsel; Victoria R. Ply, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Karen A. Lodeserto, Designated Counsel, on the brief). PER CURIAM
Defendant J.H. appeals from a Family Part order, entered following a fact-finding hearing, which determined she had abused or neglected her daughter, A.L. (Ashley). On appeal, defendant challenges the trial judge's factual findings, as well as her application of the law to those facts, arguing the Division of Child Protection and Permanency's (Division) evidence was insufficient to meet the requirements of N.J.S.A. 9:6-8.21(c)(4)(b). Additionally, defendant argues the judge's order violated her due process rights because she was not on notice the Division planned to pursue a theory of gross negligence. We have considered the arguments advanced in light of the record and governing law and conclude the record contains substantial credible evidence defendant's conduct met the statutory threshold of gross negligence supporting a finding of abuse or neglect. Accordingly, we affirm.
We use pseudonyms to protect the confidentiality of the parties.
On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
I.
We adduce the following facts and procedural history from the record developed at the fact-finding trial.
Defendant is the mother of two children: J.A.H. (Jessica) and Ashley. Defendant met A.N.L. (Albert), Ashley's father, on a dating website in September 2010. They were married on December 9 of that year. The relationship soured within roughly two months, at which time defendant was pregnant with Ashley. Although the couple was by then only communicating via text message, they rented a house together in early 2011. Albert slept in the upstairs bedroom, while defendant slept downstairs. Ashley was born in July 2011. Most nights Jessica slept with defendant. Ashley, the newborn, slept on a beanbag chair in Albert's room upstairs.
Jessica's father, L.B., resides in Florida. On April 25, 2012, the trial court granted physical and legal custody of Jessica to L.B. and dismissed them from the litigation. In 2013, defendant gave birth to a third child, who is not involved in this matter.
Shortly after marrying Albert, defendant began communicating with D.G. (Doug) on Facebook. Although they maintained contact online, defendant and Doug did not meet in person until a year later, in December 2011. In January 2012, Doug moved into the home occupied by defendant, Albert and the two children. Defendant testified she had met Doug face-to-face fifteen to twenty times before he moved in. At the time, defendant told Albert, falsely, that Doug was her cousin. Doug slept in the children's bedroom, which was at that point not being used as the children each slept in either defendant's or Albert's room. In February 2012, defendant and Doug became involved romantically, but hid their new relationship from Albert. Sometime in early 2012, defendant was contacted by L.G., who said she was Doug's wife and pregnant with his child and asked if defendant and Doug were romantically involved. Defendant denied any such involvement.
Defendant, Albert and Doug all worked, and shared one automobile. As a result, they generally took turns carpooling to work or picking one another up after a shift. When defendant and Albert were working at the same time, Albert's mother would care for the children.
On the evening of April 19, 2012, defendant gave Ashley a bath and dressed her in a one-piece pink outfit. Defendant stated Ashley did not have any burns at the time. The next morning, Albert woke Ashley, kept her in the same outfit, and brought her and Jessica in the car when he drove defendant to work. Shortly thereafter, Albert put Jessica on the school bus. Around 1:30 p.m., Albert, with Ashley in tow, picked defendant up after her shift, at which point defendant proceeded to drop Albert off at his job before picking up Doug from his. When they returned home, defendant changed Ashley's diaper and outfit. According to defendant, Ashley did not have any burns at that time.
Since she was running late for work and there was apparently not time to drop the children off at Albert's mother's house, defendant left Jessica and Ashley alone with Doug. Around 10:00 p.m., Doug sent defendant a text stating that it looked like Ashley had been sunburned, even though "[i]t wasn't that hot." Defendant did not receive the text until after her shift, when she returned to her car and checked her phone. She responded, "I'll check when I get home." Before going home, she picked up Albert from work, but at no point did she mention the strange text from Doug regarding their child's sunburn. When the pair arrived home at roughly 11:30 p.m., defendant testified she went to Albert's room to check on the sleeping Ashley. With only the illuminated television screen as a source of light, defendant checked Ashley for burns. She stated she did not find any. Defendant did not turn on the lights to check Ashley more thoroughly.
The following morning, April 21, after waking Ashley and taking her downstairs to make a bottle, Albert noticed marks on her arms. He went upstairs to undress her to check more thoroughly and discovered the additional marks on her leg. At 8:00 a.m., he sent defendant a text regarding these "marks" on Ashley. Defendant went upstairs and together they inspected the marks, although neither could ascertain their cause. Doug also denied knowing the origin of the marks. Defendant dressed the children and told Albert she was going to run errands. She planned to go about her day and speak with Albert regarding the burns later. However, after leaving the home, defendant decided to bring Ashley to the emergency room. Jessica and Doug accompanied them.
Emergency room staff examined Ashley and discovered burns on her arms and leg. Her left upper harm had a first-degree burn one centimeter by three centimeters long. Her right arm had two small circular burns, roughly four to five millimeters in diameter. Her left thigh showed three larger burns. The doctors concluded the burns appeared suspicious and contacted the Division.
A Division worker and two detectives from the Burlington County Prosecutor's Office arrived at the hospital and interviewed defendant, Doug and Jessica. Defendant introduced Doug as her cousin and stated she believed the burns came from a torch lighter or space heater in Albert's bedroom. Doug stated the burns were first noticed by Jessica, who brought them to his attention, but denied knowing how Ashley was burned. On the evening of April 21, detectives, with the permission of defendant, monitored a phone call between defendant and Albert in which he said he had seen the torch lighter in the trash and vehemently denied harming his daughter. When interviewed by detectives, Albert stated he had not seen any marks on Ashley on either the morning or evening of April 20, but noticed them for the first time the following morning. He again denied harming Ashley and further informed the detectives Doug was "defensive" when confronted regarding the burns.
It was not until more than a week later defendant admitted to the detectives that Doug was, in fact, not her cousin and the two were involved romantically.
On April 23, Division workers provided the prosecutor's office with the torch lighter, half-full with fuel, recovered from a trashcan at the residence. Detectives took photographs of Ashley and, that same day, the Burlington County Medical Examiner's Office told them the burns were likely inflicted intentionally. The Division referred Ashley to New Jersey CARES for an examination, which was conducted by Dr. Stephanie Lanese on April 25. Lanese concluded the precise cause of the burns was not ascertainable, but, as they were inconsistent with burns caused by flame, chemicals or sunburn, speculated a heated object pressed against Ashley's skin would explain the injuries. Nevertheless, because no one provided an account of how Ashley could have been burned on three discrete areas of her body, Lanese concluded an accidental burning of Ashley was less likely.
On April 25, the Division filed a verified complaint for custody of Jessica and Ashley. The court concluded removal was appropriate and placed Ashley in a resource home pending the Division's investigation regarding relative placement. Several months later, defendant told detectives her relationship with Doug had ended because he was unfaithful. When detectives consensually monitored a call between defendant and Doug, he denied hurting Ashley but stated, "you might as well blame it on me." The prosecutor's office ultimately did not bring charges and its case was closed in October 2012.
See supra note 2 regarding the disposition of the matter as to Jessica. Although he was named as a defendant, Doug did not appear and defaulted.
A fact-finding hearing was held in the Family Part over six days from January to March 2013. The Division offered the testimony of two caseworkers and the Burlington County detectives who had investigated the case. Additionally, the Division offered the testimony of Lanese, whom the court accepted as an expert in child abuse and pediatrics. Lanese testified regarding her examination of Ashley. She stated the shape and location of the burns made an accident highly unlikely. Although she testified the burns were most likely caused by contact with a heated object, Lanese was unable to say conclusively that the torch lighter taken from the trash in defendant's residence caused them. However, she did emphasize that a child Ashley's age would cry in pain upon being burned in such a manner, which should have alerted those nearby that the child was in distress.
At the close of its case, the Division, joined by the law guardian, moved for a conditional res ipsa loquitor standard shifting the burden regarding the cause of Ashley's injuries. See Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 468-69 (App. Div. 2008). The trial court granted the motion and denied the defendants' cross-motion to dismiss.
Defendant testified she had no knowledge of how the burns were inflicted. Albert testified similarly, and stated he did not take Ashley to the hospital immediately because he wanted to take her later with defendant.
On March 26, 2013, the trial court rendered its decision and order concluding defendant had abused or neglected Ashley. First, the court credited the testimony of Albert, while finding defendant's testimony not credible because she avoided giving answers to certain questions and her testimony was inconsistent. The court found by a preponderance of the evidence that Doug had intentionally inflicted the burns on Ashley. Moreover, the court found defendant acted with gross negligence in entrusting Ashley to Doug's care and failing to act diligently when initially learning of the burns to Ashley.
This appeal ensued.
II.
Our standard of review on appeal is narrow. "'[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) ("Particular deference is afforded to decisions on issues of credibility."). 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." Ibid. (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 Manalapan, 140 N.J. 366, 378 (1995).
The adjudication of abuse or neglect is governed by Title 9, which is designed to protect children who suffer serious injury inflicted by other than accidental means. G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999) (citing N.J.S.A. 9:6-8.8); see also N.J.S.A. 9:6-8.21 to -8.73 (governing protection of abused and neglected children). An "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c)(4)(b):
"Abused or neglected child" means a child less than 18 years of age . . . 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 . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . by any [] acts of a [] serious nature requiring the aid of the court . . . .Subsection (a) provides that the failure to provide adequate medical care can also constitute abuse or neglect. N.J.S.A. 9:6-8.21(b)(4)(a).
Whether a parent or guardian has engaged in acts of abuse or neglect is considered on a case-by-case basis and must be "'analyzed in light of the dangers and risks associated with the situation.'" N.J. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at 181-82). A court considering whether a parent's or guardian's conduct meets the statutory standard must analyze all the facts, N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 328-29 (App. Div. 2011), and decide whether the parent or guardian exercised a minimum degree of care under the circumstances. N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 68-69 (App. Div. 2014).
Applying the statutory standard, "something more than ordinary negligence is required to hold the actor liable." G.S., supra, 157 N.J. at 178. Proscribed is "conduct that is grossly or wantonly negligent, but not necessarily intentional." Ibid. The standard "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. However, whether a particular event is mere negligence, as opposed to gross or wanton negligence, can be difficult to determine. See N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309 (2011).
During the fact-finding hearing, the State bears the burden and must present proofs to establish abuse or neglect as defined in the statute. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011); N.J.S.A. 9:6-8.46(b). Specifically, the State must "demonstrate by a preponderance of the competent, material and relevant evidence the probability of present or future harm" to the minor child. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (citation omitted), certif. denied, 182 N.J. 426 (2005). However, we recognize that "the elements of proof are synergistically related. . . . One act may be substantial or the sum of many acts may be substantial." V.T., supra, 423 N.J. Super. at 329 (quoting Dep't of Children & Families, Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010)) (internal quotation marks omitted).
Here, there was sufficient credible evidence to support the trial court's conclusion defendant failed to act with the requisite degree of care under N.J.S.A. 9:6-8.21(c)(4). Although defendant leaving her children in Doug's care, on its own, would not be sufficient to constitute abuse or neglect, the sum of her acts went farther. See V.T., supra, 423 N.J. Super. at 329. Specifically, having received Doug's suspicious text on the evening of April 20 regarding Ashley's sunburn, defendant did not inform Albert about the text or thoroughly inspect Ashley that night for any injuries. It was not until Albert noticed the marks the next morning and informed defendant that she took the time to carefully examine her daughter. Even upon seeing the burns on Ashley's arms and leg, defendant initially planned to just go about her day. Only later did defendant elect to take Ashley to the emergency room.
Viewing defendant's actions in their totality, the Division provided sufficient credible evidence that defendant recklessly disregarded her daughter's welfare in responding to Ashley's injury. Ibid. In light of the record and governing law, we conclude the trial court did not err in determining defendant abused or neglected her daughter.
Lastly, defendant's contention the trial court's finding of gross negligence violated her due process rights because of a lack of notice is unavailing. The Division's complaint notified defendant she was being accused of abusing or neglecting Ashley and provided her with the statutory definition of abuse or neglect. This was sufficient. That the term "gross negligence" was not included in the complaint is of no moment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION