On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County.
Before Judges King, A.m. Stein and A.a. Rodriguez.
The opinion of the court was delivered by
RODRIGUEZ, A.A., J.S.C. (temporarily assigned).
Defendant S.S. challenges on federal constitutional grounds the application in this case of the burden-shifting doctrine announced in In the Matter of D.T., 229 N.J. Super. 509, 552 A.2d 189 (App. Div. 1988), which requires defendant to prove her non-culpability in the abuse of her daughter. Id. at 517. We affirm.
S.S. is the mother of two girls, N.S., age four and D.S., age six. N.S. suffers from Turner's Syndrome, a congenital abnormality, and also has a fragment of an extra chromosome in her genes. As a result, she cannot stand, walk or speak and spends most of her time lying on the floor or in her crib.
Shortly after S.S. separated from the children's father, she began dating defendant V.E. Later, she and her daughters moved in with him. V.E. assumed a role in caring for the children. He diapered, bathed and fed N.S. Because S.S. and V.E. worked rotating shifts as casino card-dealers, they regularly left the children with S.S.'s parents, often for several days at a time.
According to S.S., on November 20, 1991, N.S. awoke cranky and irritable. S.S. noticed that the child's knee was swollen and immediately brought her to her pediatrician, Doctor Amir. He recommended x-rays which revealed fractures to N.S.'s right femur and right and left tibias. The child was placed into a full hip cast and DYFS was notified.
Bruce Jenkins of DYFS' Special Response Unit interviewed S.S. and V.E. The two stated that they noticed the knee swelling while changing N.S. but had no explanation for the cause of her other injuries. Jenkins also interviewed N.S.'s maternal grandfather who reported that while the children were at his house the week before, D.S. had tripped over her sister and fell on top of her. However, because N.S. did not appear to be more than slightly injured at the time, her grandfather did not speak of the occurrence until after N.S.'s fractures were discovered. This incident was the family's only explanation for N.S.'s injuries.
Jenkins recommended that DYFS conduct a follow-up investigation. After N.S. was released from the hospital to the care of her mother, a DYFS caseworker repeatedly called, wrote and visited S.S.'s home in an effort to see N.S. However, the caseworker was never able to examine the child.
In March 1992, N.S. was again rushed to the hospital, allegedly because she had stopped breathing. An examination revealed numerous serious injuries. N.S. had a fractured right clavicle with the surrounding area was visibly swollen; a partially-healed and previously unreported fracture to her right tibia; a partially- healed contusion on her brain; swelling and bruises about her forehead and nose and excoriations around her mouth. In addition, N.S. had vaginal lacerations and rectal tearing.
DYFS was immediately notified. Jenkins requested assistance from the Atlantic County Prosecutor's office. When interviewed, V.E. told Jenkins that N.S. had not been injured recently except for the week before when she hurt her shoulder and sustained a black eye after falling out of bed. V.E. said that instead of seeking medical attention, he and S.S. wrapped N.S.'s arm in an ace bandage. V.E. continued that he first realized N.S. had a serious problem early that morning when he noticed that her eyes were glazed and unresponsive and her heartbeat faint. As he tended to N.S., she began to turn blue. V.E. immediately summoned S.S. and the couple resuscitated the child before transporting her to the emergency room. V.E. had no explanation for N.S.'s numerous other injuries. S.S. offered a similar version of these events and was also unable to explain the cause of N.S.'s injuries.
DYFS moved for preliminary removal and on the same day received immediate temporary custody of both N.S. and D.S. DYFS also filed a verified complaint against S.S. and V.E., alleging that N.S. was an abused and neglected child pursuant to N.J.S.A. 9:6-8.21c, and seeking supervision of N.S. and D.S. pursuant to N.J.S.A. 30:4C-12.
Christian Hansen, M.D., testified for DYFS at the fact-finding hearing, that because of the manner in which her bones broke very forceful trauma must have caused N.S.'s fracture. Dr. Hansen opined that it was very unlikely that D.S.'s fall onto her sister could have caused the fractures. As to N.S.'s March 1992 injuries, Dr. Hansen reasoned that there was little chance N.S. could have broken her clavicle from a fall from a bed of normal height. He concluded to a reasonable degree of medical certainty that ...