Opinion
DOCKET NO. A-1210-14T3 DOCKET NO. A-1866-14T3 DOCKET NO. A-1898-14T3
05-11-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Appellant/Cross-Respondent, v. C.V. and J.R., Defendants-Respondents/Cross-Appellants. IN THE MATTER OF: K.R., J.R., T.R., S.R., B.R., A.R., S.J.R., G.R., P.F.R., L.D.R. and T.R., Minors. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Appellant/Cross-Respondent, v. C.V. and J.R., Defendants-Respondents/Cross-Appellants, and A.A., Defendant. IN THE MATTER OF: A.R. and A.Y.R., Minors.
Sara M. Gregory, Deputy Attorney General, argued the cause for appellant/cross-respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Gregory, on the brief). Mark E. Kleiman, Designated Counsel, argued the cause for respondent/cross-appellant J.R. (Joseph E. Krakora, Public Defender, attorney; Mr. Kleinman, on the brief). Richard Foster, Assistant Deputy Public Defender, argued the cause for respondent/cross-appellant C.V. (Joseph E. Krakora, Public Defender, attorney; Jessica López, Assistant Deputy Public Defender, on the brief). Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minors K.R., J.R. and T.R. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Rochelle B. Smith, Assistant Deputy Public Defender, on the brief). David Valentin, Assistant Deputy Public Defender, argued the cause for minors A.R. and A.Y.R. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief). Edward B. Marable, Jr., Designated Counsel, argued the cause for minors S.R., B.R., S.J.R., G.R., P.F.R., L.D.R. and T.R. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Marable, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Accurso and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket Nos. FN-09-353-13 and FN-09-354-13. Sara M. Gregory, Deputy Attorney General, argued the cause for appellant/cross-respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Gregory, on the brief). Mark E. Kleiman, Designated Counsel, argued the cause for respondent/cross-appellant J.R. (Joseph E. Krakora, Public Defender, attorney; Mr. Kleinman, on the brief). Richard Foster, Assistant Deputy Public Defender, argued the cause for respondent/cross-appellant C.V. (Joseph E. Krakora, Public Defender, attorney; Jessica López, Assistant Deputy Public Defender, on the brief). Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minors K.R., J.R. and T.R. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Rochelle B. Smith, Assistant Deputy Public Defender, on the brief). David Valentin, Assistant Deputy Public Defender, argued the cause for minors A.R. and A.Y.R. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief). Edward B. Marable, Jr., Designated Counsel, argued the cause for minors S.R., B.R., S.J.R., G.R., P.F.R., L.D.R. and T.R. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Marable, on the brief). PER CURIAM
The parties to these three separate appeals, which arise from two consolidated Title Nine cases, present numerous issues relating not only to the application of the burden-shifting device recognized in In re D.T., 229 N.J. Super. 509 (App. Div. 1988), and not only to the weight given to one defendant's admission of abuse of one child, and not only to a recent motion to supplement the record with two defendants' criminal convictions, but also to the trial judge's conclusion at a compliance hearing, which occurred the day after the abuse/neglect finding, that those children over the age of ten could return home because they were old enough to defend themselves. The judge properly shifted the burden of proof in some instances and not in others, and we defer to his abuse/neglect findings, but we also conclude the judge too hastily ruled on the return home of three of the children and, therefore, reverse in part and remand.
I
We briefly identify the parties and the children, as well as the events leading up to these proceedings.
Defendant J.R. (James) is the biological father of thirteen children. He and defendant C.V. (Carolyn) are unmarried but have been a couple for sixteen years; their relationship has produced eleven children:
• K.R. (born in 2000)
• J.R. (born in 2002)
• T.R. (born in 2004)
• S.R. (born in 2005)
• A.R. and B.R. (twins born in 2007)
• S.J.R. (born in 2009)
• G.R. (born in 2010)
• P.F.R. (born in 2011)
• L.D.R. (born in 2012)
• T.R. (born in 2013) James is the biological father of two other children through a relationship with defendant A.A. (Anna):
We were advised during the pendency of this appeal that Carolyn was expecting another child, and in emergent motion papers filed in a connected case, which is briefly discussed in Section IV(D), infra, we have learned that Carolyn gave birth to her twelfth child, N.R., on January 8, 2015.
• A.R. (born in 2012)
• A.Y.R. (born in 2013)
James and Carolyn lived with their children in Jersey City. At the times relevant to this case, Anna lived in a shelter with her daughter, A.R. (Alia), but, in the mornings, would drop Alia off at James and Carolyn's apartment before going to work.
The Division of Child Protection and Permanency became involved with defendants and these children when, on March 19, 2013, the Jersey City Medical Center made a referral concerning five-month old Alia, who had been brought there by Anna and Carolyn at 3:30 p.m.; the infant was "barely breathing," "not reacting to stimuli" and had an extremely low body temperature and low heart rate. Dr. Susan O'Brien, who examined the infant in the emergency room, described the information provided by Anna as "confusing"; Carolyn provided no information at all. The infant was transferred to Newark Beth Israel Medical Center, where it was determined she had suffered a "bilateral intracranial hemorrhage" believed to have resulted from "non-accidental trauma" consistent with shaken-baby syndrome.
Dr. Elizabeth Hodgson, a pediatrician later qualified at the hearing as an expert in the field of child abuse, evaluated Alia on March 20, 2013. She found the infant had a low body temperature, and low heart and respiratory rates — all "signs and symptoms of being neurologically unresponsive." One of the child's pupils was larger than the other, suggesting "increased pressure inside the skull," an indicator that "death could be near." A CT scan revealed "signs of shear injury where [] a brain is either shaken back and forth or has [a] significant rotational component to how it got hurt." Dr. Hodgson opined that the "acute bleeding probably happened within hours before the acute deterioration at noon time" on March 19, when Alia was found unresponsive, meaning the injury "could have happened at" James's residence. The CT scan and an MRI also revealed "evidence of . . . an older brain injury to brain tissue itself," which Dr. Hodgson described as a "contusion" where the infant's brain was "basically . . . black and blue." She concluded that this injury, which was caused by an impact to the child's head, was from four to six weeks old, most likely occurring in mid-February 2013.
A skeletal survey at the time also revealed healing rib fractures that were at least two weeks old, as well as signs of a bony injury along the right humerus and left tibia, and injuries to the metatarsi of both feet. Dr. Hodgson described the leg and toe injuries as "micro injur[ies] to the bone tissue"; she opined these injuries were "inflicted" and could not have occurred as the result of Alia's "own activity."
The long term effects of Alia's injuries were described by Dr. Hodgson as "very devastating." The infant suffered "[permanent] changes and damage to brain tissue," "no meaningful reception of vision," "[a] significant hearing deficit," a risk of developing hydrocephalus, and risk of a permanent seizure disorder. Dr. Hodgson found "tragic" the delay in seeking medical care because the more quickly medical care is provided in such cases the more brain cells may be "salvage[d]."
An excess accumulation of spinal fluid within the brain.
Dr. Rudolph Wagner, an expert in pediatric ophthalmology, examined Alia on March 24, 2013. He found her unresponsive to light and with signs of "extensive significant[]" "intra retinal hemorrhages" in both eyes that resulted from "significant trauma." Dr. Wagner described the hemorrhages as an eight or nine in severity on a scale from one to ten, and he opined the injuries causing the hemorrhages occurred within a week of his examination. Dr. Wagener concluded that the type of injuries suffered could lead to permanent vision loss and "[t]here's almost nothing that could cause [the hemorrhages] besides . . . a trauma," such as "shaken baby syndrome."
Alia was discharged from Newark Beth Israel on April 17, 2013, and admitted to Children's Specialized Hospital for "comprehensive inpatient rehabilitation." Six weeks later, she was transferred to St. Claire's Group Home.
II
Anna, James and Carolyn were arrested on April 4, 2013, and the Division conducted emergency removals of all their children pursuant to N.J.S.A. 9:6-8.29. The next day the Division filed two Title Nine complaints; the first named James and Carolyn as defendants and identified their children as the involved minors; the other named all three parents as defendants and Alia as the involved minor. The trial judge granted the Division's requests for custody in light of defendants' incarceration and the "serious unexplained injuries" suffered by Alia while in their care. James and Carolyn's children were initially placed with their maternal grandmother and later moved to foster homes.
On July 18, 2013, Carolyn gave birth to T.R., and, on November 12, 2013, Anna gave birth to A.Y.R. Those children were also placed in the Division's care and custody.
In examining the issues raised in these appeals, we have considered closely two particular phases of these proceedings: (a) the fact-finding hearing; and (b) the compliance review hearing that took place the day after the judge found defendants to have engaged in abuse or neglect.
A
A seven-day non-continuous fact-finding hearing on the allegations of abuse and neglect set forth in both complaints began on October 4, 2013, and ended on July 28, 2014.
The Division presented testimony from investigators and medical experts. The Division also provided recordings of interviews with defendants and some of James and Carolyn's children, on the theory that all three defendants "placed [Alia] at substantial risk of harm by failing to obtain timely and appropriate medical treatment for the child," and that Alia's injuries "were non[-]accidental in nature and sustained when the defendants had control or custody of the child."
During the course of the hearing, Anna wrote to both the trial judge and the judge presiding over her criminal matter, acknowledging her culpability; Anna wrote that she shook Alia twice, once the "night before" (i.e., March 18, 2013) and once in February 2013; Anna also executed a document entitled "stipulation/admission," which was entered by the judge in the form of an order, conceding she shook the child on an unspecified day in February and on March 18, 2013, and that, on March 19, 2013, she "withheld relevant information from [Alia's] treating doctor, which constitutes medical neglect." Anna's attorney elicited testimony during the hearing that these admissions were freely and voluntarily made.
The Division sought with partial success the trial judge's application of the burden-shifting doctrine adopted in D.T., supra, 229 N.J. Super. 509, and other cases, asserting that Alia had "sustained injuries which were indisputably non[-]accidental" and "these injuries were sustained during a time period when only a limited number of individuals [i.e., James, Carolyn and Anna] had access to and control over" Alia. Through counsel, James and Carolyn argued that Anna's admission of shaking the child constituted an explanation that negated the reasons for shifting the burden of proof to them. In addition, Carolyn argued that — with respect to Alia — she was not a person encompassed by the obligations imposed by Title Nine.
In his oral decision, the judge recognized that Alia's "acute rotational injuries" resulted from non-accidental abuse, but he also found those injuries had been "explained" by Anna's admission. Consequently, he found no basis for shifting the burden to James and Carolyn to demonstrate they were not the cause of those injuries. But the judge recognized there were other injuries not necessarily generated by Anna's conceded actions — namely, a one-month-old "large contusion" caused by an impact, the fractured ribs that were approximately two weeks old, as well as micro-bone injuries that "could have occurred . . . while [Alia] was in the care of [James] and/or [Carolyn]." The judge placed the burden on defendants to show they were not the cause of those injuries. Defendants did not testify.
The judge's July 28, 2014 oral decision can be summarized as drawing the following conclusions: (1) as for the acute rotational injuries, the judge accepted Anna's admission that she was the cause and, therefore, did not shift the burden to Carolyn and James to prove they were not the cause, which we interpret as including an implicit finding that the Division failed to prove that Carolyn and James caused the acute rotational injuries; (2) as for the blunt force and other skeletal injuries, the judge shifted the burden of proof to Carolyn and James, and they offered nothing in response, leading to a finding they abused Alia by inflicting those injuries; and (3) the judge did not shift the burden to defendants regarding the claim they failed to provide the child with "adequate medical care" because he found the Division's proofs were "uncontested and uncontroverted" that after Alia suffered a seizure and was found in an unresponsive state, James and Carolyn failed to call 9-1-1 or take other reasonable and appropriate steps. In addition, the judge determined that Carolyn fit the definition of a parent or guardian contained in N.J.S.A. 9:6-8.21(a) because she is "in effect [the] step parent of [Alia]."
These findings were memorialized in an order entered on July 29, 2014.
B
The day after making these findings, the judge conducted a compliance review hearing. Without taking any testimony and without any demonstrated improvement in defendants' status as potential caretakers of these children, the judge ordered the reunification of the three oldest children with their parents, Carolyn and James.
Specifically, K.R., J.R. and T.R., born in 2000, 2002 and 2004, respectively.
The judge expressed in his oral decision that day that he believed this was the best choice among a number of "unfortunate" options.
III
The Division quickly moved for leave to appeal the July 29, 2014 fact-finding order because the judge did not shift the burden to Carolyn and James regarding the acute rotational injuries; the Division also sought leave to appeal the July 29, 2014 dispositional order because the judge ordered the return of the three oldest children to Carolyn and James. Carolyn cross-moved for leave to appeal, arguing the judge erred: in applying the burden-shifting device; in failing to conclude Anna's admissions provided a sufficient explanation for all Alia's injuries; and in declining to reunify her with all her children. James wrote the court to express his joinder in Carolyn's cross-motion. We granted all applications for leave to appeal.
Later, when an order was entered terminating the Title Nine actions, Carolyn and James filed notices of appeal. All these appeals were calendared to be heard on the same day. We now consolidate these appeals and dispose of them by this single opinion.
IV
These appeals require our consideration of (a) the judge's assessment of the facts through utilization of — or refusal to utilize at times — the D.T. burden-shifting device with respect to the various categories of injuries suffered by Alia, and (b) the Division's objection to the return home of the three oldest children, and James and Carolyn's argument that all their children should have been returned home. We also consider more recent developments, namely: (c) the Division's motion on the eve of oral argument to supplement the record on appeal to include information concerning the disposition of the criminal prosecutions of Carolyn and James; and (d) an April 30, 2015 order entered by the trial judge — after oral argument was heard in this court — in a subsequent civil action that directed reunification of the next five oldest children with Carolyn.
Docket No. FG-238-15D.
A
In considering the judge's determination of the facts, we first recognize the standards that govern our review. These standards require that we 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 judge-made 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, as here, 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 concerns the judge's evaluation of the facts and their implications, the traditional scope of review is expanded. M.M., supra, 189 N.J. at 279. Despite an expanded review in those instances, a trial court's findings will be upheld unless "so wide of the mark" as to compel a reviewing court to conclude "a mistake must have been made." Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989); see also M.M., supra, 189 N.J. at 279.
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, however, with regard to the allegations of abuse — other than those allegations concerning defendants' failure to timely obtain medical care for Alia — the judge credited and relied on unrebutted medical testimony offered by the Division in determining the child had sustained non-accidental injuries at various times and of different natures, i.e., the "acute rotational" injuries and the blunt force head and skeletal injuries, and that only Carolyn, James and Anna were members of the class of potential abusers.
As a general matter, these unrebutted circumstances would warrant a shifting of the burden to all defendants. Without doubt, the rotational and blunt force injuries permitted application of the statutory presumption of abuse contained in N.J.S.A. 9:6-8.46(a)(2), and the class of potential abusers was small. 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).
"[P]roof 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 a child of, or who is the responsibility of such person[,] is an abused or neglected child." N.J.S.A. 9:6-8.46(a)(2).
In considering the application of these authorities, we emphasize that the burden-shifting device is intended, in the absence of direct evidence, to assist in illuminating the truth. Accordingly, it was within the judge's discretion to stay his hand in shifting the burden if he were satisfied the proofs provided sufficient enlightenment. Here, with respect to the rotational injuries, the judge received the free and voluntary admission of Anna that she had shaken the baby on two occasions, once in February and once the day before the seizure that led to the child's hospitalization with life-threatening injuries. The judge was entitled to find this evidence credible and that it was sufficient to exonerate Carolyn and James with regard to those injuries. We will not second-guess that fact-sensitive determination.
We would add, however, that it is not entirely clear whether the judge decided not to shift the burden to Carolyn and James with regard to those injuries because he thought the admissions were conclusive or because he found Anna's admissions credible. There is a difference. The judge repeatedly referred to Anna's admissions as a "stipulation," nomenclature that is commonly used in Title Nine matters but which suggests a connotation not necessarily consistent with what occurred here. In other words, a stipulation is generally understood as an expression of fact to which all parties agree to be bound. See State v. McNeil, 303 N.J. Super. 266, 277 (App. Div. 1997) (recognizing a stipulation is "an agreed fact and not merely one witness' testimony"). Here, although Anna admitted certain facts, the Division did not agree to be bound. The Division was free to continue to press its argument that either Carolyn or James or both also physically harmed Alia. Although we discern from the judge's determination that he found Anna's admissions credible, and therefore we affirm the determination insofar as it relates to the rotational injuries, the judge may clarify during the remand proceedings whether our interpretation of his decision is correct. If we have misinterpreted the decision, and if the judge chose not to shift the burden to Carolyn and James because he thought all parties, including the Division, had agreed to be bound by Anna's admissions, then the matter should be reopened to consider Carolyn and James's responsibility for the rotational injuries through the shifting of the burden of proof to them.
After carefully considering the parties' arguments regarding the shifting of the burden of proof with regard to the other injuries, we find no error. The judge, as factfinder, was entitled to assess the evidence presented by the Division regarding the blunt force head and skeletal injuries and conclude they were not necessarily explained by Anna's admissions or caused by the trauma inflicted by Anna.
In considering whether to shift the burden of proof in a case like this, it is important courts not lose sight that such a young and injured victim is not capable of identifying her abusers. The propriety of shifting the burden to those likely present when the injuries occurred cannot be doubted. As explained in the majority opinion in D.T.:
Were this a tort suit brought against a limited number of persons, each having access or custody of a baby during the time frame when a sexual abuse concededly occurred, no one else having such contact and the baby being then and now helpless to identify her abuser, would we not recognize an occasion for invocation of the Anderson v. Somberg doctrine? The 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.]
Anderson v. Somberg, 67 N.J. 291, 298 (holding, in the medical malpractice setting, 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 decline the invitation to adopt a different or less rigorous approach, which might provide for child abusers a primer on how to avoid a finding of abuse or neglect through silence or obfuscation. 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). If this standard seems harsh, we must remember the goal is the protection of children, not abusers.
To the extent we have not expressly addressed any of the parties' arguments regarding burden-shifting in this case or their contentions regarding the judge's abuse/neglect findings on those aspects in which the burden was not shifted, we find they have insufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). We, thus, turn to the order reunifying the three oldest children with their parents.
Regarding Carolyn's argument that she was not a person falling within the definition contained in N.J.S.A. 9:6-8.21(a), we add only that the phrase "parent or guardian" within the meaning of Title Nine includes, among others, "a stepparent," a "paramour of a parent," or "any person, who has assumed responsibility for the care, custody, or control of a child." Ibid. The judge found Carolyn was, in essence, a stepparent of Alia, but even if that conclusion was not warranted, the evidence certainly demonstrated Carolyn was a "paramour of a parent," i.e., James.
B
Pursuant to N.J.S.A. 9:6-8.32, after a parent whose child has been temporarily removed applies for reunification, a hearing must be held, absent good cause, within three days to determine if reunification is warranted. "Upon such hearing, the court shall grant the application unless it finds that such return presents an imminent risk to the child's life, safety or health." N.J.S.A. 9:6-8.32. Under N.J.S.A. 9:6-8.47(a), "[u]pon completion of a fact-finding hearing, the dispositional hearing may commence immediately after the required findings are made."
"If the court makes a finding of abuse or neglect, it shall determine, based on the facts adduced during the fact-finding hearing, and upon any other facts presented to it, whether a preliminary order pursuant to [N.J.S.A. 9:6-8.31] is required to protect the child's interests pending a final order of disposition." N.J.S.A. 9:6-8.50(d). Our Supreme Court has held that "upon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the child may safely return . . . and if not, what the proper disposition should be." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 387-88 (2009). During the dispositional hearing, "both sides may present material and relevant evidence for the court to determine whether the children may safely be released to the custody of their [parent or guardian], who was responsible for their care at the time of the filing of the complaint . . . or whether some other disposition is appropriate." Id. at 402. All hearings in Title Nine proceedings "must be conducted with scrupulous adherence to procedural safeguards." N.J. Div. of Youth & Family Servs. v. A.R.G. 179 N.J. 264, 286 (2004).
As we have observed, a compliance review hearing took place the day after the conclusion of the fact-finding hearing. At that time, the Division requested that both James and Carolyn submit to psychological evaluations. The Law Guardian, who at that time represented all eleven of their children, informed the judge that "all the children wish to be reunited with their parents," but she also could not "ignore the fact that there may be safety concerns." In addition, the Law Guardian recognized that "[t]he potential [safety] risk[s] may not be as great for the older children as they are for the younger ones." The Division opposed reunification because it could not "assess the safety of the[] children" and had "concerns about the parents' judgment" — contentions certainly supported by the judge's abuse/neglect findings.
They had both previously refused to comply when so ordered in light of their pending criminal cases.
Carolyn argued that she had completed a parenting class and gone to therapeutic visits, and that reports were provided to the court that Carolyn and James "are appropriate." Carolyn also sought unsupervised visits with the children if the judge was unwilling to grant reunification. James requested reunification as well.
In considering the prospect of reunification, the judge recognized there was "no[] [] good decision [to be made] in this case," but he ultimately allowed reunification with the three oldest children with "whatever safety protection" the Division "deem[ed] to be appropriate." The other children remained under the Division's custody, care and supervision.
The judge explained his split decision regarding reunification on the ground that "a one[-]year[-]old doesn't really have the ability to protect himself or herself" and he was "confident that if something is wrong, [fourteen-year-old K.R.] knows how to pick up the phone, unlike the parents, and call 911 or call the appropriate people and say something and do something," and that the other two older children also "have an ability to protect themselves." The Division continued to object to reunification with any of the children and sought an immediate stay, which the judge denied.
Here, the judge accurately recognized he was faced with a number of "[u]nfortunate" options; despite this quandary, we find the judge's solution problematic for several reasons. First, we agree with the Law Guardian that the procedural requirements of a dispositional hearing were not followed, as no evidence was presented. See G.M., supra, 198 N.J. at 387-88. To the extent the judge relied on the evidence adduced at the fact-finding hearing, it hardly called for the return of any children to these defendants.
Indeed, despite an apparent need for counseling for the children and psychological evaluations of the parents, the judge seemed content to rely on the children's stated refusal to engage in counseling as dispositive of the former and defendants' concern about an impact the psychological evaluations might have in the criminal prosecutions as dispositive of the latter. As for the former, the question of reunification, of course, cannot be left in the hands of minors; in fact, as we have mentioned, although the Law Guardian expressed to the trial judge the children's desire to return home, she also professed a concern for their safety that, in her view, which we find persuasive, would not be adequately addressed by the judge's decision. And, as for the latter, defendants were entitled to refuse to participate in psychological evaluations to protect them from the use of their statements in the criminal prosecutions; but, in adopting that tactic, they should have been required to live with its consequence — that the absence of psychological evaluations painted the record with considerable doubt about the safety of the children while in their care.
Second, we are more than a little uneasy about the judge's ultimate determination — and we are mindful that the judge was presented, as he observed, with nothing but unfortunate choices — that the three oldest children could return home because of their "ability to protect themselves." The day before that "finding," the judge determined their parents — to whom he was now sending these children — had engaged in abuse and neglect that had very serious consequences for Alia. Defendants' acts and omissions regarding Alia — referred to by the judge as resulting from "exceedingly poor judgment" — caused a substantial risk of harm to all children put in their care.
One of these parents, James, now resides in state prison.
In short, up until the fact-finding decision, the court deemed it appropriate to keep the children out of the home. To the extent there was any change in the status quo, it was — from their parents' standpoint — for the worst. The judge's fact-finding the day before suggested a need for greater caution, not less. Consequently, we find the judge's sua sponte determination to send three children home to James and Carolyn to be untethered to the findings made the day before.
Ultimately, we agree with the Law Guardian that the hearing lacked "scrupulous adherence to procedural safeguards" because the parties lacked notice to prepare for the hearing and "no material and relevant evidence was admitted." We agree that the decision to reunify the oldest children was arbitrary because it was not supported "by any sworn testimony, expert opinion, or established precedent."
C
As observed above, a few days before the parties' oral argument in these appeals, the Division moved to supplement the record with the judgments of conviction of James and Carolyn, as well as with transcripts containing the factual bases for those convictions. The motion was opposed by both defendants; they argued these materials alone are not dispositive and they should first be given the right to factually respond in mitigation before these convictions are either included in the factual record or considered by this court in reviewing the appealed orders.
The materials in question reveal that James pleaded guilty to second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and was sentenced to a three-year prison term on April 16, 2015. Carolyn pleaded guilty to fourth-degree child abuse, N.J.S.A. 9:6-1, and was sentenced to a two-year probationary term. In addition, the Division provided a copy of the transcript of James's guilty plea, in which he acknowledged his failure to seek medical attention for Alia. A transcript of Carolyn's guilty plea has not yet been provided.
The use of this information with respect to the findings of abuse and neglect may be, in light of our affirmance of the fact-finding order, like carrying coals to Newcastle. But this information also has relevance in the judge's further proceedings regarding reunification of the children. For example, we assume, in light of the fact that James currently resides in state prison, reunification of the children with him has been rendered moot, at least for the time being.
We are mindful that James and Carolyn have argued in opposition to the motion that a judgment of conviction or even a transcript of a guilty plea is not entirely dispositive and may be explained, citing, among others, Eaton v. Eaton, 119 N.J. 628 (1990). If there is merit in this contention — a question we need not now decide — it should first be argued and considered in the trial court.
It is to that extent that we have granted the motion to supplement the record on appeal with the materials in question. The best interests of the children are too important to exclude this information from the decision-making process either here or in the trial court; whether defendants may be able to explain or reduce the apparent importance of this information is a matter for the trial judge to first consider.
D
We lastly turn to events that have occurred since we heard oral argument.
On May 1, 2015, by letter pursuant to Rule 2:6-11(f), Carolyn's attorney advised of a trial court order entered on April 30, 2015, whereby, among other things, the trial judge ordered the reunification of the next five oldest children of James and Carolyn. Later the same day, the Division applied for permission to file a motion for a stay of that order on short notice. We granted that application and immediately stayed the April 30, 2015 trial court order insofar as it reunified those five children with Carolyn.
The Rule allows parties to such an appeal to advise the court by letter "of any change in the placement status of the child during the pendency of the appeal."
Specifically, S.R., B.R., A.R., S.J.R., and G.R., who were born in 2005, 2007, 2007, 2009, and 2010, respectively.
Because the April 30, 2015 order was entered in a suit separate from the matters now before us, we will separately consider that matter in due course to the extent it has not been rendered moot by today's decision.
By way of a guardianship complaint filed on February 3, 2015, the Division seeks the termination of James and Carolyn's parental rights to all but their three oldest children.
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V
To summarize, we affirm the fact-finding order of July 29, 2014, although we also permit the judge to reconsider in light of our comments in footnote 7, supra, but we reverse the reunification order of July 29, 2014, and remand for further proceedings regarding the disposition of all the children in question in conformity with this opinion.
We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION