On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-234-06.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lisa and Simonelli.
The New Jersey Division of Youth and Family Services (Division) appeals from an order dismissing its complaint for child abuse and neglect against O.L.'s mother, T.L., and father, J.L. The Division argues that the trial court's decision is against the weight of the evidence and is unsupportable because the judge misapplied the burden of proof under the child abuse law. According to the Division, once its proofs established a prima facie case of abuse, the burden of persuasion (not merely the burden of going forward with evidence) shifted to J.L. and T.L., and obligated them to affirmatively prove their nonculpability by a preponderance of the evidence. The Division bases its burden-shifting argument on our decision in In re D.T., 229 N.J. Super. 509 (App. Div. 1988).
In our view, the burden-shifting rule prescribed in D.T. is not universally applicable in child abuse and neglect cases and, in the circumstances of this case, traditional principles of res ipsa loquitur apply. As such, after the Division established a prima facie case, a burden of going forward with evidence was imposed on defendants, but the burden of persuasion remained on the Division. We conclude that the judge correctly applied the burden of proof and that her decision is well supported by the evidence. Accordingly, we affirm.
O.L. was born on December 17, 2005. Her parents were not married, but lived together in a long-term relationship. After O.L.'s birth, her parents regularly took her for wellness visits and for other medical care when it appeared to be indicated. For example, O.L. displayed signs of jaundice, and T.L. promptly took her to have her bilirubin level tested. T.L. took O.L. for a hearing test on January 3, 2006. In mid-January, after noticing a bit of orange in O.L.'s spit-up, T.L. called the doctor, who told her it was reflux and prescribed Zantac. T.L. contacted the doctor again on February 10 after O.L. projectile vomited. T.L. brought O.L. to the doctor the next day. The doctor recommended that T.L. take O.L. to Jersey Shore Medical Center (JSMC) for an ultrasound to rule out pyloric stenosis. T.L. took O.L. to JSMC for the ultrasound, and returned on February 14 for a second ultrasound. T.L. called the doctor again on February 16 after O.L. developed a cold. The doctor recommended the use of a humidifier, which T.L. purchased the same evening. At a wellness visit on February 23, the doctor prescribed Albuterol and Amoxicillin for the cold and told T.L. to switch O.L.'s diet to soy because rice was not having the desired effect for O.L.'s spitting up problem. O.L. was administered shots on February 27.
On March 14, after noticing red in O.L.'s spit-up, T.L. took O.L. to JSMC, where blood was drawn and a chest x-ray taken. Another procedure was performed in which a tube was inserted up O.L.'s nose, but T.L. left the room and did not observe the procedure at the suggestion of the medical personnel who warned that "it wouldn't be pretty." T.L. also signed a consent form for an endoscopy after questioning the doctor about the use of anesthesia on O.L. The endoscopy was performed on March 15, and it revealed "severe irritation and raw marks" in O.L.'s stomach.
While at JSMC, the doctors noticed bruises on O.L.'s right leg and decided to conduct a skeletal survey, which was performed on March 16. The results were negative. O.L. was discharged later that day with instructions to change her diet from seven to eight ounces of soy formula every three to four hours to two ounces of Alimentum every two to three hours.
On March 23, after noticing blood in O.L.'s spit-up, T.L. brought O.L. to the doctor. The doctor expressed concern about O.L.'s weight and advised to add rice back into her formula. On the morning of March 27, T.L. called the doctor to inquire whether she could add prune juice to the baby's diet.
On March 27, T.L. also noticed that O.L. was holding her leg in an unusual position when she woke up. O.L. appeared irritable to T.L., who called her mother and J.L.'s mother. Both grandmothers came over. T.L. also noticed that O.L.'s leg was swollen. She immediately called her doctor who advised her to come right over. She did so, and the doctor advised T.L. and the grandmothers to take O.L. to Monmouth Medical Center (MMC).
It was the results of the evaluation of O.L. at MMC on March 27, 2006 that aroused suspicion of abuse and neglect and triggered the Division's involvement. X-rays revealed that O.L. sustained multiple metaphyseal fractures to both legs, as well as a possible fracture to one rib and a possible fracture of the right distal radius. There is no dispute that the fractures to the bones of O.L.'s legs existed. T.L. suggested that the injuries could have been caused by O.L.'s "swaddler," which T.L. used to carry O.L., or by O.L. sitting in her chair and kicking the food bowl holder. J.L. suggested that O.L.'s bruises might have resulted from an incident when he rocked his chair into T.L. as she was walking by with O.L. T.L. reported that the only other people to have contact with O.L. recently were the grandmothers, T.L.'s sister, and J.L.'s friends, but that none of them were ever left alone with the baby. On the Saturday immediately preceding Monday, March 27, 2006, friends of T.L. and J.L., the Armstrongs, and their two children were over for dinner, and had access to O.L. And, on the preceding Sunday (eight days before March 27, 2006), T.L.'s mother and sister came over, and they each took turns holding O.L. and walking her.
On March 31, 2006, the Division initiated this proceeding, seeking legal and physical custody of O.L. The Division's request was granted pursuant to N.J.S.A. 9:6-8.21 to -8.73, N.J.S.A. 30:4C-12, and Rules 5:12-1 to 5:12-6. Judge Strelecki later conducted a factfinding hearing to determine whether O.L. had been abused or neglected. The hearing commenced on November 30, 2006, and spanned nine days, concluding with the judge's oral decision on April 10, 2007.
According to Dr. Sharon Underberg-Davis, a pediatric radiologist who reviewed O.L.'s x-rays at the request of the Division, O.L. suffered nine fractures that were inflicted on three separate occasions. She explained that O.L.'s chest x-ray from March 16 was "suspicious" for a left anterior rib fracture that occurred two to three weeks prior to the March 16 hospitalization. Underberg-Davis opined that O.L.'s left leg x-rays from March 16, 28, and 30 revealed four metaphyseal fractures at the distal femur, proximal tibia, distal tibia, and distal fibula that occurred between March 15 and 16. She opined that O.L.'s right leg x-rays from March 27 revealed four metaphyseal fractures at the distal femur, proximal tibia, distal tibia, and distal fibula that occurred closer to March 27. Underberg-Davis also expressed some concern about a probable fracture of the right distal radius. She opined that these fractures were "highly suspicious" of child abuse.
Underberg-Davis rejected the defense theories that the injuries could have been caused by some metabolic condition associated with O.L.'s acid reflux disease or accidentally caused during imposition of restraints used to hold O.L. in place during medical procedures she had undergone during the applicable times. When asked on cross-examination whether a lay person should have recognized O.L.'s injuries prior to the onset of swelling, she acknowledged that O.L. did not exhibit any outward signs of injury until that time. She also acknowledged that she could not conclusively determine how the injuries were caused, nor could she determine how much force was inflicted in order to cause the injuries.
When defendants learned of the fractures, they requested that O.L. be transferred to Children's Hospital of Philadelphia (CHOP), which was accomplished on April 1, 2006. A treating pediatrician from CHOP, Dr. Paige Kaplan, a specialist in inherited metabolic diseases, tested O.L. for osteogenesis imperfecta, or brittle bone disease, and ruled that out as a potential cause of O.L.'s fractures. Kaplan also tested O.L.'s blood and found her calcium and phosphorus levels within normal range. She concluded there was no metabolic or genetic cause for O.L.'s injuries.
Prior to her pregnancy with O.L., T.L. was diagnosed with osteopenia. In Kaplan's view, that would have no effect on T.L.'s offspring. And, when asked about O.L.'s acid reflux disease and decreased nutrient intake, Kaplan explained that they could not have caused O.L.'s fractures because her calcium and phosphorus levels were within normal range.
The Division also presented the testimony of Dr. Lucinda Leung, another treating pediatrician at CHOP, and Dr. Mary Noble, the Division's medical consultant on potential child abuse cases. Leung and Noble opined that O.L.'s fractures were "highly suggestive of inflicted injury" and "consistent with non-accidental trauma."
In addition to the medical testimony we have outlined, Noble and a Division caseworker also described in their response report the results of their interview with J.L. at the initiation of the Division's involvement. They described him as anxious, fidgety, and acting in an inappropriate manner. J.L. acknowledged that he had an alcohol problem in the past, but was now attending AA meetings daily. He also reported he had been sentenced to seven years imprisonment after an incident involving a motorcycle accident involving alcohol use on his part. J.L. admitted that he had been alone with the baby on the Thursday prior to his interview date of Tuesday, March 28, 2006.
Toward the close of the Division's case, the judge granted defendants' motion to dismiss the medical neglect aspect of the case because there was no evidence to suggest that either parent failed to seek medical care for their daughter's injuries. When the Division rested, however, the judge denied defendants' motion to dismiss the abuse aspect of the case. She found that the Division made out a prima facie case of abuse based upon circumstantial evidence, and that defendants would be required "to move forward with regard to the issue before the Court." The judge then said:
And I'm satisfied, going through the facts that are before [me] that the parents were the care givers, the primary care givers for the child during the time lines that were involved here and that the -- they have established that the injuries in question were not accidental. And, therefore, I believe there is sufficient [evidence] to require the defendants to move forward.
However, the Court will revisit this, obviously, with regard to the issue of abuse, at the conclusion of ...