Opinion
DOCKET NO. A-5874-11T1 DOCKET NO. A-5875-11T1 DOCKET NO. A-2872-12T1 DOCKET NO. A-2873-12T1
03-18-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.M. and G.M., Defendants-Appellants, and A.M., Defendant. IN THE MATTER OF Z.M. and I.M., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant M.M. (Beryl Foster-Andres, Designated Counsel, on the brief in A-5874-11 and A-2873-12). Joseph E. Krakora, Public Defender, attorney for appellant G.M. (Jay H. Bernstein, Designated Counsel, on the brief in A-5875-11 and A-2872-12). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane E. Kutch, Deputy Attorney General, on the brief). Joseph J. Krakora, Public Defender, Law Guardian, attorney for minors (David Valentin, Assistant Deputy Public Defender, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Accurso and Manahan.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, Union County, Docket Nos. FN-20-141-10 and FN-20-122-11. Joseph E. Krakora, Public Defender, attorney for appellant M.M. (Beryl Foster-Andres, Designated Counsel, on the brief in A-5874-11 and A-2873-12). Joseph E. Krakora, Public Defender, attorney for appellant G.M. (Jay H. Bernstein, Designated Counsel, on the brief in A-5875-11 and A-2872-12). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane E. Kutch, Deputy Attorney General, on the brief). Joseph J. Krakora, Public Defender, Law Guardian, attorney for minors (David Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendants are the parents of the two children — Z.M. (Zoe) and I.M. (Indira) — involved in these appeals, which we consolidated and which seek review of fact-finding orders entered in these Title Nine actions. We find no merit in defendants' arguments and affirm.
These are fictitious names to protect their identity.
The determination that these children were abused or neglected arises from a finding concerning their older sibling, A.M. (Arielle), a two-year-old child who died on April 18, 2010. A hearing first took place to determine whether Zoe was an abused or neglected child as a result. The judge set forth her findings in an oral opinion on April 4, 2011. Indira was born a few days after that decision, and the question of whether she also was an abused or neglected child was decided, after an evidentiary hearing, by way of a written opinion dated August 30, 2011.
Zoe was born on January 24, 2009, and Indira was born on April 7, 2011.
As Judge Kathryn A. Brock observed in her thoughtful and comprehensive opinions, the deputy medical examiner gave "unrefuted" and credible testimony that Arielle's cause of death was "acute morphine toxicity." Although he could not opine about "the method of delivery," the deputy medical examiner was able to testify to a reasonable degree of medical certainty "that the level of free morphine found in [Arielle's] body . . . would not have been prescribed for therapeutic reasons," and, after ruling out all other options, he concluded the manner of death was "homicide." The deputy medical examiner also opined that the lethal dose of morphine was ingested within "a matter of hours, not days." Based on this testimony and other evidence regarding Arielle's activities and appearance the day of her death, the judge concluded the Division had established a prima facie case of child abuse or neglect.
The judge then shifted the burden to defendants to prove their non-culpability — defendants being the only individuals who cared for Arielle within twenty-four hours of her death — in the manner described in In re D.T., 229 N.J. Super. 509 (App. Div. 1988). The judge ultimately found both children were abused or neglected largely because of what had occurred to Arielle and also because, as late as the second hearing concerning Indira, defendants still had not come forward to explain.
Although the children's paternal uncle was also present during the time period preceding Arielle's death, the action was dismissed as to him on his representation that he no longer resided with defendants, who were also living separately.
In later proceedings, defendants surrendered their parental rights to both children.
In his appeal, defendant G.M. argues:
I. THE DIVISION FAILED TO PROVE THAT G.M. FAILED TO "EXERCISE A MINIMUM DEGREE OF CARE" UNDER N.J.S.A. 9:6-8.21(c)(4)(b) AND THEREFORE THE COURT'S FINDING OF ABUSE AND NEGLECT CANNOT BE SUSTAINED.
A. G.M.'s Affirmative Acts Did Not Amount To Gross Negligence Or Recklessness.
B. G.M. Did Not Fail To Perform A Cautionary Act In A Grossly Negligent Or Reckless Manner.
II. G.M.'S FAILURE TO SUBMIT TO A VOLUNTARY SEARCH OF HIS HOME CANNOT BE USED TO IMPLY [ZOE OR INDIRA] WERE AT RISK OF IMMINENT IMPAIRMENT. THE COURT DREW AN UNSUPPORTED CONCLUSION FROM THE INITIAL REFUSAL, AND PUT TO[O] MUCH WEIGHT ON THE REFUSAL TO ALLOW A
SEARCH, IN DETERMINING THAT [ZOE AND INDIRA] WERE AT RISK, OR NEGLECTED AND ABUSED.In her appeal, defendant M.M. argues:
III. THE COURT APPLIED THE WRONG STANDARD, THE ANDERSON CASE LINE IN ERROR, AS [ARIELLE] WAS EXPOSED TO MULTIPLE PEOPLE AND SITUATIONS (STORE, PARK, ETC.) AND IT IS NOT KNOWN WHEN THE CHILD WAS DEFINITELY EXPOSED TO THE MORPHINE SUBSTANCE. THE COURT ADVISED G.M. NOT TO TESTIFY AS CRIMINAL PROCEEDINGS WERE POSSIBLE, BUT THE COURT FOUND AGAINST G.M., BECAUSE HE DID NOT TESTIFY, UNDER THE BURDEN SHIFTING RULE.
IV. THE DIVISION BEARS THE BURDEN OF PROOF IN PROVING THAT [ZOE AND INDIRA] ARE AT RISK UNDER G.M.'S CARE; NO BURDEN SHIFT CAN APPLY TO AN ANALYSIS THAT [ZOE AND INDIRA] ARE ABUSED. THE COURT ERRED IN APPLYING A [BURDEN] SHIFTING STANDARD AGAINST G.M.
I. THE DIVISION'S PRIMA FACIE SHOWING DOES NOT SHIFT THE BURDEN TO THE PARENTS BECAUSE THERE WAS NO EVIDENCE OF A HOMICIDE AND THE CHILD'S ACCIDENTAL OVERDOSE WAS NOT PROVEN TO BE CAUSED BY GROSS NEGLIGENCE.
A. The Division Did Not Prove That [Arielle's] Death Was Caused By Intentional Means, So The Burden To Prove Child Abuse Remains With The Division.
We reject these arguments.B. The Division Did Not Prove That [Arielle's] Death Was Caused By Gross Negligence, So The Burden To Prove Neglect Remains With The Division.
II. [M.M.] WAS ABLE TO REBUT THE DIVISION'S PRIMA FACIE SHOWING OF ABUSE OR NEGLECT WITHOUT TESTIFYING AT TRIAL.
III. BECAUSE [M.M.] WAS NOT RESPONSIBLE FOR [ARIELLE'S] DEATH AND HAS BEEN FULLY CAPABLE OF SAFELY PARENTING HER CHILDREN THROUGHOUT THIS MATTER, [ZOE AND INDIRA] SHOULD BE RETURNED TO HER CARE.
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).
In approaching defendants' similar arguments, 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 those instances, the 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 the unrebutted medical testimony offered by the Division in determining that Arielle's death was not brought about through simple negligence. The lack of care suggested by the circumstances of the child's death were presumably reckless if not intentional. And when the Division investigated after learning of the morphine toxicity content in the child's blood, their requests that defendants immediately submit to substance abuse evaluations were refused, and no search was permitted of the home in an attempt to explore how it may have been that Arielle ingested the substance that killed her. As the judge explained, the Division presented the unrefuted testimony of a caseworker who
tried to determine if someone in the house was using drugs that would allow [Zoe] to have access to those drugs. [M.M.] told the caseworker that since [Arielle's] death she had been drinking alcohol, smoking marijuana, and taking prescription medication. She had earlier reported that [G.M.] had a history of using drugs, and although she thought that he was not using drugs, she did not know what he was doing when he was out with friends. [The caseworker] arranged to take the defendants for a substance abuse evaluation right away, but they were unwilling to go until a later time. In addition, the Division learned that the defendants had refused to allow the prosecutor to search their home.These circumstances permitted application of the statutory presumption of abuse. See N.J.S.A. 9:6-8.46(a)(2) (declaring 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").
Because of Arielle's age and her sudden death, she was unable to identify her abuser or the circumstances that led to her death, and the Division did not have access to information as to the identity of the culpable person other than what might have been provided by defendants or the paternal uncle, the only adults present during the events that caused the child's death. 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., 2 75 N.J. Super. 173, 181 (App. Div. 1994). We conclude that the judge properly utilized the D.T. standard because of the small class of potential abusers — the child's parents and paternal uncle — and the brief twenty-four-hour period during which the ingestion must have occurred. Because no defendant offered evidence of exoneration — each expressly declining to testify in the hearing regarding Zoe — the judge rightfully found defendants to have engaged in abuse or neglect in bringing about Arielle's death. And that finding generated the finding that Zoe, who was fifteen-months-old at the time of Arielle's death, was an abused or neglected child because she "was at substantial risk of infliction of harm."
Later, after Indira was born, the judge conducted a plenary hearing and made findings as to whether Indira would be at risk of harm if placed in the custody of either defendant. In her written opinion, the judge determined — as the evidence revealed — that:
no matter how cooperative [the parents] are with the services designed to ameliorate the known risks which they pose to their children from substance abuse, prior criminal behavior, poor judgment, and the unfortunate effects of their own treatment by their parents as children, whatever caused their daughter's death cannot be addressed and treated.The judge thus concluded that:
until the defendants offer a credible explanation of how [Arielle] ingested the substance which caused her to die of acute morphine toxicity, they remain in a position analogous to the parents in [N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 575 (App. Div. 2010)], because their failure to acknowledge their role, or establish their non[-]culpability in how [Arielle] died continues to create a risk of serious injury to [Zoe and Indira] if placed in their custody.
We find no error in the judge's continued reliance upon the circumstances of Arielle's death — and defendants' failure to come forward and explain the circumstances preceding her death — in concluding that both Zoe and Indira would be at risk if placed in defendants' care. Both defendants argue that the burden-shifting principles outlined in D.T., and other cases, should not be applied here for distinguishing reasons. We reject this contention and continue to adhere to D.T., which provides the appropriate standard for this and other similar cases. Indeed, we can add nothing to the forceful explanation of the majority opinion in D.T., which rhetorically disposed of the contention that the burden of persuasion should not shift in similar circumstances by reasoning that:
As observed above, defendants surrendered their parental rights to both children in later proceedings. This circumstance renders moot defendant M.M.'s Point III, in which she argues that the children "should be returned to her care."
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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.]
We decline the invitation to distinguish or limit this approach and provide for child abusers a primer on how to avoid a finding of abuse or neglect through silence. 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 trial judge's 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.
We affirm the orders under review substantially for the reasons set forth in Judge Brock's well-reasoned oral and written decisions.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION