Opinion
DOCKET NO. A-5077-12T4
03-12-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.B., Defendant-Appellant, and R.B., Defendant. IN THE MATTER OF R.B., R.B., R.B., and D.D., minors.
Erin L. Pinder, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Pinder, on the brief). Laura Mastriano Console, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Console, the brief). Rachel E. Seidman, Assistant Deputy Public Defender, argued the cause for the minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Seidman, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-549-12. Erin L. Pinder, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Pinder, on the brief). Laura Mastriano Console, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Console, the brief). Rachel E. Seidman, Assistant Deputy Public Defender, argued the cause for the minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Seidman, on the brief). PER CURIAM
Defendant T.B. (Tonya) appeals the Family Part's January 11, 2013 order finding that she neglected her two-year-old son R.B. (Robert). We affirm.
We use pseudonyms to refer to the individuals in this case for the purposes of confidentiality and clarity.
I.
We discern the following facts and procedural history from the record on appeal.
On April 12, 2012, the Division received a referral concerning Robert from Wills Eye Hospital in Philadelphia. Matthew J. Dykhuizen, M.D., informed the Division worker that Robert had "a burn on his right eye lid, an abrasion on his right cornea, and on his right conjunctiva." The injury had taken place on April 11, at Tonya's home in Somerdale.
A Division worker went to Tonya's home to investigate. Tonya, her husband R.B. (Ralph), and five of her children were present.
The worker interviewed Tonya's fourteen-year-old daughter, who was visiting from Delaware where she lived with her father. The daughter explained that her aunt, Tonya's sister, was visiting Tonya the day Robert injured his eye. Her aunt and Tonya were planning to go out after dinner. Sometime "after dinner," Tonya was in the kitchen smoking a cigarette. According to the daughter, Tonya did not realize that Robert "was on the other side of [her]." As Tonya "turned around," Robert "ran into the cigarette."
Robert immediately "started screaming." Using a wet cloth, Tonya "began wiping . . . the orange ashes off his eye." Tonya then applied Neosporin to the eye and "laid [Robert] down on her bed and he went to sleep." Once Robert was asleep, Tonya and her sister left the house to go to the grocery store. Tonya did not believe the injury "was a big deal," according to her daughter.
A Division worker also interviewed Robert's father, Ralph. He explained that he was not home when his son's eye was injured. When Ralph came home around 11:00 p.m., he found all of the children sleeping except Tonya's fourteen-year-old daughter. She told him that Robert had run into a lit cigarette. Once Ralph saw Robert's eye, he "immediately took him" to the local hospital. The local hospital's records reflect that Robert was experiencing a pain level of eight out of ten when he first arrived and that his eye was red and swollen. At the direction of the hospital's emergency room staff, he took Robert to the emergency room at the Wills Eye Hospital in Philadelphia.
Tonya was also interviewed. She told the Division worker that her sister and the sister's young son had arrived at her house for a visit. She explained that she bent down to kiss her nephew with her cigarette in her left hand, and did not see that Robert was behind her. Robert ran into the cigarette.
Tonya told the workers she "washed his eye out with water," "put ice on it," and also applied Neosporin. She did not "observe any puncture wound" and did not "feel it was an emergency."
Tonya disclosed to the Division worker that she was undergoing therapy for depression, had been diagnosed with psychosis, and had "spent five months in Western State Hospital in Virginia." Tonya was taking an antidepressant, which she had received from a friend, but for which she had a prescription. She admitted to using cocaine occasionally, and stated that Ralph used crack cocaine. Tonya told the workers that Ralph had hit her within the last month. The Division's investigation report noted that both Tonya and Ralph had disclosed recent instances of domestic violence at their home. Tonya admitted that they had been witnessed by some of the children.
Elizabeth Fortunato, one of the Division workers who visited the home, worked out a plan with Tonya and Ralph. Tonya was to undergo random drug screening, a psychological evaluation, and a domestic violence assessment. It was also agreed than Robert would be examined at CARES Institute. Both parents signed the plan.
CARES stands for Child Abuse Research Education & Service.
On April 13, Tonya declined a urine screen. Ralph refused to have Robert taken to CARES, asserting that he would take care of "everything." On April 16, Tonya again declined a drug screen. Ralph agreed to one, but told the worker it might be positive for marijuana.
The Division substantiated Tonya for abuse and neglect. On April 16, the Division effectuated an emergent removal of the children with police assistance. On April 18, the Division filed a verified complaint for care, custody, and supervision of Robert and his three siblings, based on allegations that Tonya and her husband abused and neglected them. The Family Part granted the relief sought and ordered supervised visitation sessions between the children and their parents.
During a telephone interview on April 16, Alex V. Levin, M.D., a specialist at Wills Eye, told a Division worker that Robert's injury was not, in his opinion, consistent with the explanation given by the family members. Levin explained that "he had over twenty years of expertise as a pediatric ophthalmologist and child abuse pediatrician." "[D]ue to the child's second degree burn and the size [of the burn] it [did] not coordinate with the family's story with the child running into the cigarette." Levin added that "a cigarette burn usually causes a single focal injury" whereas Robert "had multifocal injuries to his upper lid and on the area of [the] nasal portion of his lower lid."
On May 3, Robert was seen by Martin A. Finkel, D.O., at CARES. Finkel sent the Division a report of his findings, which were based on his discussion with a Division worker, who indicated that "the home environment was a bit chaotic, and the kids were unruly." Finkel also noted that another doctor, Bruce Schnall, M.D., had examined Robert and found that his injuries were "healing well."
Finkel reported that Robert's burn was healing, and that the "corneal abrasion associated with" it had already healed. Finkel, however, questioned Levin's conclusion concerning the origin of Robert's burns.
Levin clarified at the fact-finding hearing that the abrasion referred to by Finkel was in fact a burn.
Surely the injury that [Robert] incurred to his eye is very unusual, but the circumstances and the history that was provided, I believe, would support the explanation as to how the injury was incurred. It is hard to imagine that a mom would volitionally take a cigarette and burn a child this age in his eye. Surely, the concern expressed by . . . Levin at Wills Eye Hospital is noted, just as I have never seen an injury to an eye like [Robert's] from a burn in my career, as well. The injuries that he did incur will heal and should result in no long term ophthalmologic consequences.
The fact-finding hearing concerning the allegations of neglect against Tonya began on December 19 and was concluded on January 11, 2013. Tonya did not attend the hearing on either day. Fortunato testified to the facts outlined above.
As noted, Ralph had not been substantiated for abuse by the Division. In her decision, the judge noted that the Division had not proven Ralph was involved in the abuse.
Levin testified for the Division as an expert in the field of ophthalmology and pediatric ophthalmology. He explained the nature of Robert's burn as follows:
[Robert] had sustained a second degree burn which was affecting his — inner part of his right upper lid, the inner part of his right lower lid, and upon opening the eye, there was a further burn to the actual surface of
the eye itself, those tissues being called the cornea, which is the crystal clear covering over our pupil and also to the conjunctiva, which is the covering over the white of the eye.Levin testified that Robert's injury "was consistent with a burn" and the appropriate treatment was "the application of an antibiotic ointment." However, "it was [his] opinion that this injury was not consistent with the offered explanation" that Robert ran into a lit cigarette. He explained:
Cigarette burn injuries, whether they be done purposefully or whether they be done by accident, tend to be very focal injuries. When done . . . with intent, there is a characteristic single crater like burn. When done by accident, they can have a less circular, less focal aspect to them, but it's really a single contact with some ashes around it, and the nature of this burn was quite large compared to a cigarette, and secondly, the injury was both to the outer surface, that being the lids, which would close in response to an object coming at it, as well as inside the eye, and there was no evidence one might say of ashes getting in the eye, but here was no evidence of ashes in the eye, and ashes rarely burn, because they're the cool part after the cigarette is burned.Levin based his opinion on his twenty years of experience "of seeing children with burns," viewing a photograph, and from the findings of the resident doctor in the Wills Eye Hospital emergency room.
So really, we had a fairly extensive burn here that didn't fit with the anatomy of a cigarette or the experience that [the Wills Eye Hospital has] with accidental and intentional cigarette burns.
On cross-examination, Tonya's attorney asked Levin whether Robert's injury "occurred[ed] from a single contact at a single moment." Levin responded:
I could tell you that these are not burns that occurred three weeks apart. Did they occur from a single contact at a single moment versus did they occur from two contacts one ten seconds apart from the other or a minute apart from the other? That I can't tell.
Levin also explained that "it's very hard to burn both your eyelids and your eyeball from the same event." Usually, he added, just the eyelids are injured or just the eyeball is injured, but rarely both. He also explained that he "frequently see[s] children who run into cigarettes, because children are at the height that a parent is often holding a cigarette by their side or by their arm when they're between puffs."
When shown the photograph of the burns, depicting their texture, Levin responded:
Yeah. That's - - that sometimes occurs if the lids scrunch together. So when your lids scrunch together, you get ripples in your skin, and therefore, there can be some areas . . . of those wrinkles in your skin when you scrunch your lids closed.
So whether those two are separate locations or occurred at the same time to a scrunched lid . . . is hard to tell.
Similarly, when asked whether the burns could have been caused by an object going into the eye with Robert blinking while the object was still in the eye, Levin responded:
Actually, no[]. What would happen . . . [is] your eyelid has some thickness to it. If you think of my fingers as the thickness of the lid, they would clamp down on the cigarette, and what would get burned is the edges of the lid, not the skin up around as we see in this photograph here.
Asked whether Tonya "intentionally burned the child's eye with a cigarette," Levin responded "[a]bsolutely not." When asked whether it was a negligently inflicted injury, Levin replied: "I'm saying only one thing. This child has a burn which is inconsistent with the history as reported to me . . . . I can't comment on what happened, why it happened, or how it happened."
Tonya's counsel also questioned Levin on "the appropriate time frame for treatment" of Robert's injury. Levin responded:
So there's two issues here. One is the actual event. Someone gets something in their eye, it causes pain, and this would certainly be painful. It happens. You know it happened. If it was a cigarette and you know your child walked into the cigarette and says ouch, my eye hurts, you bring your kid to an eye doctor immediately would be the hoped for standard.
The second thing is the appearance. For this burn 24 hours to look like this, there had to be a significant change in the skin. There would have been a blister.
There would have been redness. There was an obvious injury that should prompt someone to promptly, if not immediately, go to seek medical care.
Levin elaborated, stating that Robert's type of burn is "very painful," and would have "caused the child to keep their eye shut, to complain, to cry. That's not an injury that goes asymptomatically and gets missed . . . ." He did not think that Neosporin would have alleviated any of Robert's pain. Levin testified that the injury should have caused a parent to go to the emergency room immediately, but later said irrigating and applying ice to the site was also acceptable.
Levin conceded that the injury to the cornea and conjunctiva would "likely not" have been visible to Tonya "[b]ecause the eye would have been closed and in pain." But "if the child was able to open the eye . . . it would have been obvious."
Finkel testified on behalf of Tonya, explaining the findings and conclusions found in his report. He opined that the proffered explanation for how Robert's injury occurred was "plausible" and consistent with the history. He explained that the injury was to "very loose, connective tissues. . . . [I]f you get an irritant in your eye and you rub it, all of a sudden your eye is all swollen up. So, the same degree of injury on a different surface of your body is going to be far less dramatic."
At the close of testimony and summations on January 11, the judge delivered an oral decision. She found that Robert's injuries "were not consistent with the explanation" given by Tonya. She also found that Tonya
did not immediately take the child to the doctor. Instead, she determined that it would be fine to wait until the next day to do so, but what she did was she washed out the eye. She applied ice and Neosporin. She then put the child to bed and went to a movie with her sister.The judge noted that, after Ralph returned home "somewhat later, . . . he decided that the burn was of such seriousness that it required immediate attention."
The judge credited Levin's testimony that "a second degree burn to the eyelid . . . would have been extremely painful, and the burn to the cornea and conjunctiva would have been red and visible, and . . . it would have been impossible for her not to have observed the burn to the conjunctiva and the cornea . . . ."
Based on the facts as she found them, the judge concluded that Tonya committed medical neglect by failing to take Robert to a doctor or hospital that night, explaining that
the child's pain was, according to [the local hospital], eight on a scale of [one]
to ten, with ten being the most serious. So under those circumstances where there was a visible burn to both the upper and lower portion of the right eyelid and where that would have . . . been a visible burn to the eyeball itself . . . that would be the cornea and the conjunctiva - - her decision not to take this little child to the doctor but to go instead go to the movies with her sister and possibly take him to the doctor the next day constitutes an act of neglect.
The eye is a vital organ, and [with] a burn as serious as this one[, Tonya] should not have waited until the next day, and I find therefore that the child's physical condition was impaired by her failure to obtain medical care when it was needed in violation of N.J.S.A. 9:6-8(c)(4)(a).
After finding medical neglect, the judge turned to "the question of whether the injury itself, the nature of it, and the circumstances under which it was allegedly sustained . . . constitute[d] an additional type of abuse and neglect." She explained that she found Levin's testimony more persuasive than Finkel's with respect to Tonya's explanation of how the injury occurred, citing Levin's greater experience with accidental eye burns and ophthalmology generally. The judge accepted Levin's conclusion that "the injury sustained" by Robert "was not the result of a cigarette burn and was not consistent with the offered history." Referring to the photographs of the injury, the judge agreed with Levin that: (1) the burn was "considerably bigger than the end of a lit cigarette;" (2) had an "irregular shape" that differed from that of a cigarette; (3) was too deep and too serious to be a cigarette burn; and (4) was a multifocal injury.
The judge continued: "So where does that leave us? What it leaves us with is a child who has sustained a serious injury under circumstances that are entirely unexplained." The judge, therefore, found "neglect for a second reason, namely, that a child in [Tonya's] care sustained a very serious injury under circumstances that are entirely inconsistent with the explanation she offered."
By definition, this is a failure to properly supervise a child. If it's not an accident caused by a cigarette burn, what was it? There is no explanation provided.The judge entered the January 11, 2013, order finding that Tonya had neglected Robert on the two grounds described in her oral opinion.
A parent has a duty to properly supervise a child, to make sure a child doesn't sustain an injury. An accidental injury is understandable. That is certainly not Title 9 neglect, but where we have a parent who doesn't know how the accident happened, by definition, or does not know how the injury happened, by definition, the parent was not providing proper supervision and failed to take steps to make sure that the . . . child's eye was not burned.
Robert's paternal grandmother successfully applied for custody of Robert and his three siblings. The Family Part entered an order terminating litigation on March 16, 2013. This appeal followed.
II.
On appeal, Tonya argues that there was insufficient evidence in the record to support the trial judge's finding of neglect under the applicable legal standard.
A.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "'where the focus of the 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." J.T., supra, 269 N.J. Super. at 188-89 (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)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).
Nevertheless, 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). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
Title Nine is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. In such actions, the Legislature has provided that "the safety of the children shall be of paramount concern." Ibid. The purpose of the act is
to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern. It is the intent of this legislation 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.The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1).
[N.J.S.A. 9:6-8.8(a).]
According to Title Nine, an abused or neglected child includes one
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.The language in N.J.S.A. 9:6-8.21(c)(4) concerning failure "to exercise a minimum degree of care" has been interpreted by our Supreme Court as referring to "conduct that is grossly or wantonly negligent, but not necessarily intentional" and as the "reckless disregard for the safety of others." N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305-06 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div. 2012). Simple negligence, however, does not qualify as abuse or neglect. T.B., supra, 207 N.J. at 306-07.
[N.J.S.A. 9:6-8.21(c)(4).]
There is no requirement that the parent actually anticipate that harm will result from the conduct at issue.
Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result. McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970). Because risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful. Ibid.; Egan v. Erie Railroad Co., 29 N.J. 243, 254-55 (1959). So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. See McLaughlin, supra, 56 N.J. at 305. Knowledge will be imputed to the actor.
As our previous cases have recognized, the difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision. Ibid. "Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use." Fielder v. Stonack, 141 N.J. 101, 124 (1995). The label turns on an evaluation of the seriousness of the actor's misconduct. McLaughlin, supra, 56 N.J. at 306. Although it is clear that the phrase implies more than simple negligence, it can apply to situations ranging from "slight inadvertence to malicious purpose to inflict injury." Id. at 305; Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 277 (1960) (stating wantonness is an advanced degree of negligent misconduct).
Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Fielder, supra, 141 N.J. at 123; McLaughlin, supra, 56 N.J. at 305. Where an ordinary reasonable person would understand
that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes. Ibid.
[G.S., supra, 157 N.J. at 178-79.]
B.
Having reviewed the facts as found by the trial judge in light of the record, we find that they are amply supported by the testimony and other evidence presented during the fact-finding hearing. We note that there were conflicting expert opinions as to whether the burns resulted from Robert running into his mother's cigarette or some other event. The judge had the opportunity to listen to the experts and assess the persuasiveness of their testimony. We will not second guess her conclusion that Levin's testimony was more credible and persuasive. We have no basis in the record to conclude that the judge's findings in that regard were "so unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484.
The judge's conclusion that Tonya "acted with reckless disregard" for Robert's well-being is also supported in the record and consistent with applicable law. Robert clearly had a potentially serious injury to his eye, which is a vulnerable and important organ. Rather than seeking immediate medical assistance or even monitoring him after rendering first aid, Tonya chose to go out with her sister and leave Robert in the care of her fourteen-year-old daughter. When Ralph returned home and saw the potential seriousness of the injury, he took immediate and appropriate action. The fact that Robert did not, in fact, lose all or partial sight in the injured eye does not change the fact that Tonya acted with reckless disregard for Robert's well-being.
We reach the same conclusion with respect to the judge's secondary finding of neglect. As we have already held, the judge did not err in crediting Levin's opinion. It follows that, if the injury did not happen as Tonya claimed, Tonya was either being untruthful because she did not want to disclose the actual cause of the injury or she had no idea how her child came to be injured in such a serious manner. Either alternative gives rise to the inference that there was "reckless disregard" for Robert's safety. We note that Tonya did not appear at the fact-finding hearing. Had she done so, she could have testified concerning her version of the event, which would have given the judge the opportunity to judge her credibility in contrast to Levin's opinion. The judge's reliance on Levin's testimony in the absence of an explanation from Tonya was not error.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION