Opinion
DOCKET NO. A-1927-13T4
04-06-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. W.W., Defendant, and T.T., Defendant-Appellant. IN THE MATTER OF T.T., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Vanessa G. Cardwell, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Linda Vele Alexander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-41-12. Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Vanessa G. Cardwell, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Linda Vele Alexander, Designated Counsel, on the brief). PER CURIAM
Defendant appeals a determination that he was responsible for the abuse or neglect of his then five-month old child through application of the conditional res ipsa loquitur doctrine adopted in In re D.T., 229 N.J. Super. 509 (App. Div. 1988). Because there was sufficient credible evidence in the record to establish that the child's injuries occurred while in defendant's care, the trial judge properly shifted the burden of persuasion to defendant, who failed to persuade he was not culpable.
The child was born on March 29, 2011.
D.T. was based on the theory utilized at times in medical malpractice cases. See Anderson v. Somberg, 67 N.J. 291, 298 (holding that "where an unconscious or helpless patient suffers an admitted mishap not reasonably foreseeable and unrelated to the scope of the surgery . . ., those who had custody of the patient, and who owed him a duty of care as to medical treatment, . . . must prove their nonculpability, or else risk liability for the injuries suffered"), cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975).
We briefly outline the relevant facts. The Division of Child Protection and Permanency received a referral on July 22, 2011, that the child was at a Philadelphia hospital in critical condition from what appeared to be a non-accidental injury. The prosecutor's office was investigating the possibility of child abuse.
The following month, the Division filed a complaint pursuant to Title Nine against: defendant, the child's father; W.W., the child's mother (hereafter "Wendy," a fictitious name); a grandparent; and a cousin. The Division alleged the child was a victim of "severe non-accidental trauma" that had caused "partial blindness" and a need for "continued intensive care." After a brief hearing, the judge granted the Division temporary custody of the child.
The grandparent and cousin were soon dismissed from the action by consent.
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At the fact-finding hearing that soon followed, Wendy provided a timeline of the child's health from July 2, 2011 — when she and her own mother traveled with the child to Virginia — until the child's hospitalization in Philadelphia on July 20, 2011. On July 2, during the trip to Virginia, the child began vomiting and was taken to a hospital where he was examined but not admitted; they returned to New Jersey on July 11. Wendy described the child's health from July 5 through July 19 as "fine."
She further testified that on the morning of July 20, the child was "smiling" and "following [her] with his eyes," and there was nothing "unusual" about his behavior. The mother's cousin was unable to babysit as she did on occasion, so the child was left with defendant from approximately 8:45 a.m. until 1:30 p.m. When Wendy returned home early that afternoon, the child was lying on the bed with his eyes "halfway down," his hands were in the air and "clenched," and he was making a "weird crying noise" different from his typical crying. Both parents attempted to console the child by rocking, cuddling, and bathing him. They drove to Virtua Marlton Hospital because Wendy felt she was suffering from a bladder infection. While there, the child "started acting up again," and Wendy decided to take the child to Virtua Voorhees Hospital, the hospital of the child's birth. The parents argued about it, and Wendy eventually left defendant behind at Virtua Marlton and drove to Virtua Voorhees, arriving at approximately 6:20 p.m. The child was transferred to a hospital in Philadelphia that evening.
The Division's medical expert testified the child's condition was "life threatening" due to "neurological decompensation and respiratory decompensation" requiring his placement on a ventilator. The child suffered from seizures and testing revealed "severe brain swelling," both a chronic (older) and acute (newer) subdural hemorrhage, retinal hemorrhages, and "hypoxic ischemic injury" causing oxygen deprivation to the brain. The Division's medical expert concluded it would be extremely rare for the injuries to have been caused by "any other conditions except abusive head trauma with shaking." Based on the imaging studies conducted and the child's clinical history, he opined the cerebral injury occurred "within hours of the admission to Virtua."
In identifying the class of other potential abusers, the Division called D.M., who had been staying with defendants in their residence on July 19 and 20. D.M. denied ever touching or injuring the child and testified he left the residence at approximately 8:00 a.m. when Wendy drove him to work.
The judge concluded that the medical testimony established the non-accidental nature of the injuries and a short specific time during which the abuse occurred. Accordingly, over objection, the judge relied upon D.T. and shifted the burden to defendants to exonerate themselves.
Defendant then testified, asserting that on July 19 he had taken the child to his mother's house, leaving him for approximately ten to fifteen minutes, and that Wendy picked the child up from there between 5:30 p.m. and 6:00 p.m. He also testified that D.M. had stayed the night in their home and left with Wendy the following morning.
Additionally, defendant testified the child woke up at approximately 10:00 a.m. on July 20, and that he bathed, dressed and fed him. He testified that before taking a nap after being fed, the child was "acting funny," was "[i]nconsolable," was "breathing different," and that the formula the baby was fed was coming out of his nose. When defendant tried to suction the baby's nose, he "suctioned out some blood." Defendant testified that after Wendy arrived home, he called the doctor, who said the child was likely suffering from gas and suggested the parents give the child a bath. When the child continued to act "funny," they decided to take him to the hospital. Defendant agreed with Wendy's testimony that she left Virtua Marlton with the child — but without defendant — to go to Virtua Voorhees. Defendant testified he later went to Virtua Voorhees and then to the Philadelphia hospital where the child was taken. He denied causing the child's injuries.
Defendant called an expert in forensic pathology, who testified the child suffered from "shaken baby syndrome" and was the "victim of child abuse" occurring on or around July 20, 2011. The defense expert also testified the child suffered from two subdural hematomas, one of which was older and chronic and may or may not have been caused by intentional trauma, and one of which was recent and acute and "consistent with an intention[al] trauma." In referring to the acute subdural hematoma and the retinal injuries, the expert concluded, in the judge's words, "that it was not possible to determine the number of times [the child] was shaken because at least one such movement would have been sufficient to cause his injuries."
In his thorough written opinion, Judge Philip E. Haines reiterated his determination that the small class of adults who had access to the child in the short period of time the injuries occurred warranted shifting the burden of persuasion to Wendy and defendant. The judge also found that Wendy proved her non-culpability, but defendant did not. Based on the medical testimony, the judge found the child sustained the acute brain and retinal injuries when defendant "was acting as [the child's] sole caretaker between 10:00 a.m. and 1:30 p.m. on July 20, 2011."
In later proceedings, the judge granted Wendy sole legal and physical custody of the child and terminated this action.
Defendant appeals, arguing:
I. THE DETERMINATION THAT [DEFENDANT] ABUSED HIS SON MUST BE REVERSED BECAUSE THE TRIAL COURT INCORRECTLY TRANSFERRED THE BURDEN OF PROOF TO THE PARENTS AND THEN FOUND THAT [DEFENDANT] ABUSED HIS SON BECAUSE HE DID NOT PROVE HIS NON-CULPABILITY.
We reject these arguments.A. The Timing Of [The Child's] Injuries Was Not Definitively Established, And Therefore It Was Improper To Shift The Burden Of Proof To [Defendant] To Prove His Non-Culpability.
B. All Potential Defendants Were Not Before The Court, And Therefore It Was Improper To Shift The Burden Of Proof To [Defendant] To Prove His Non-Culpability.
C. The Holding Of D.T. Did Not Authorize The Anderson Burden-Shifting Paradigm To Be Applied In This Case.
II. THERE WAS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT IT WAS [DEFENDANT] WHO INFLICTED TIM'S INJURIES.
We first observe that a reviewing court must afford great deference to a family judge's factual findings. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); N.J. Div. Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). Appellate courts will not second guess such findings as long as they are based on adequate, substantial, and credible evidence, N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993), particularly when the findings are based on the judge's ability to observe the witnesses and make credibility determinations, Cesare, supra, 154 N.J. at 411-13; N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007), which "can never be realized by a review of [a] cold record," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). Where, however, the issue in dispute is "'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." M.M., supra, 189 N.J. at 279 (quoting J.T., supra, 269 N.J. Super. at 188-89). Despite an expanded review in such instances, a trial court's findings will be upheld unless "so wide of the mark that a mistake must have been made." Ibid. (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
Like any other Title Nine case, the Division was required to prove abuse or neglect by a preponderance of evidence. N.J. Div. Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235 (App. Div.), certif. denied, 201 N.J. 272 (2009), cert. denied, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). Here, the judge credited and relied on medical testimony that the injuries were brought about by physical abuse. The circumstances permitted application of N.J.S.A. 9:6-8.46(a)(2), which declares that "proof of injuries sustained by a child or of the condition of 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 [the] child . . . is an abused or neglected child."
The child was an infant and incapable of identifying his abuser or describing the cause of his injuries, and the Division did not otherwise have access to information as to the identity of the culpable person other than what might have been provided by defendant. In these circumstances, we have held that "[t]he burden would then be shifted, and such defendants would be required to come forward and give their evidence to establish non-culpability." D.T., supra, 229 N.J. Super. at 517; see also N.J. Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 181 (App. Div. 1994). We conclude that Judge Haines properly utilized the D.T. standard because of the nature of the injuries, the small class of potential abusers, and the brief period during which the injuries occurred.
Once the burden shifted, defendants were required to demonstrate their non-culpability. Both testified, and the judge was persuaded that Wendy was not responsible. After weighing the testimony, including defendant's own description of what transpired during the critical period of time, the judge found defendant did not sustain the burden of proving he was not responsible. Judge Haines's assessment of the weight and credibility of the evidence commands our deference.
We also reject defendant's argument that the burden of persuasion should not have been shifted. Any other approach would be contrary to the intent of Title Nine, which was enacted "to provide for the protection of children . . . who have had serious injury inflicted upon them by other than accidental means." N.J.S.A. 9:6-8.8. As explained in Title Nine itself, this legislation was intended "to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected." Ibid. See G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999). We, thus, continue to adhere to D.T., and, as a result, affirm the application of its holding. If the use of this standard seems harsh, we must not forget the goal is the protection of children not abusers.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION