March 12, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
S.R. AND M.R., DEFENDANTS-APPELLANTS.
IN THE MATTER OF D.M. AND J.A.M., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-75-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2008
Before Judges R. B. Coleman and Simonelli.
In these consolidated appeals, defendants, S.R. and M.R., challenge a February 22, 2008 order by the Chancery Division, Family Part, which memorializes the following determination by the court:
[T]he Division [of Youth and Family Services] established through its exhibits and the testimony that the child, [J.A.M.], was sexually abused. The burden shifted to the defendants to come forward with a defense. The defendants failed to move forward with any explanation as to the injuries. As such, the evidence before the Court is uncontroverted. Additionally the Court finds that [D.D.] failed to exercise a minimum degree of care in that she allowed her children to be cared for [by] individuals she knew little about, specifically two weeks in Newark, two hours away and allowing [S.R. and M.R.] to have regular child care of the children and she only knew them for six months.
We conclude that there was sufficient evidence to support the determination by the trial court and that the outcome was not the result of a misapplication of law, as argued by defendants.*fn1 We affirm.
Our summary of the facts is drawn primarily from the trial court's recitation of its findings. Between July 5 and 13, 2007, defendant D.D. left her two daughters, six-month-old J.A.M. and twenty-one-month-old D.M., in the care of paternal relatives in Newark. The children's visit was cut short because D.M. seemed upset and D.D. "got concerned." Thus, D.D. and her boyfriend, defendant S.R., retrieved the children from Newark on Friday evening. D.D. changed D.M.'s diaper, but someone else changed J.A.M.'s diaper before they started the trip home.
Upon her arrival in Clementon later Friday night, D.D. felt J.A.M.'s diaper and found it dry. Hence, she changed J.A.M.'s diaper for the first time after the children's stay with the paternal relatives on Saturday morning, July 14, 2007. She did so hurriedly and in a darkened room, illuminated only by a TV screen. In any event, she did not notice any injuries at that time. Moreover, J.A.M. did not cry or give any indication she was in any type of discomfort while in D.D.'s care. On Saturday morning, S.R. took D.D. to work, and by prior arrangement, S.R. and his mother, defendant M.R., were to care for the children while D.D. was at work.
After S.R. dropped D.D. at work, he went to pick up or to visit with a friend identified only as E. in Camden. As a result of this excursion, S.R. did not arrive with the children at his mother's house until about noon. Some time after he arrived at his mother's home, S.R. changed J.A.M.'s diaper and noticed she had a loose bowel movement, bruises on her buttocks and blood in her diaper. S.R. summoned M.R., who told S.R. that it appeared J.A.M. had a bad rash or bedsores from having been left in the car seat too long. She applied diaper rash cream and re-diapered the child. While defendants S.R. and M.R. maintain that one of them telephoned D.D. that afternoon to inform her about the sores on the baby, D.D. denied that anyone contacted her at work. She picked up the children around 8:00 p.m. and took them home.
At around 10:00 p.m., D.D. changed J.A.M.'s diaper and saw the injuries, which prompted her, accompanied by her father and S.R., to take J.A.M. to the hospital. At about 1:30 a.m., Sunday, July 15, 2008, J.A.M. was evaluated by triage nurse Kathleen Morse, who noticed blood on J.A.M.'s diapers. At 2:25 a.m., Dr. George Katzenbach examined J.A.M. and found "'bruising to the anus and abrasions around [the] anus.'" In the record he generated, Dr. Katzenbach wrote "dried blood to anus," and "abrasions to anus noticed today [sic] at 11:39 p.m." Dr. Katzenbach contacted the Division to report his suspicion of physical or sexual abuse. Sometime before the Division worker arrived at 5:50 a.m., S.R. was sent to his house to retrieve diapers from the trash and to pick up D.M. Although S.R. lived near the hospital, he was gone for a long time, and he failed to bring any diapers with him.
Relying on information related by D.D., Dr. Katzenbach indicated he initially believed that J.A.M. had sustained her injuries four or five days earlier, while she was in the care of her paternal relatives. Accordingly, he released J.A.M. to D.D., with instructions to take J.A.M. to see a doctor at New Jersey Cares on Monday, July 16, 2007. However, upon further review of the case, Dr. Katzenbach wrote an addendum to J.A.M.'s records stating, "Initially I thought bruising to buttocks was over 24 hours old. But reviewing the case, it is possible that the abrasions to the anus are fresher." Thus, Dr. Katzenbach contacted D.D. to inquire about S.R. and M.R. D.D. denied having any concerns about them, but she recalled she did not notice any bruises on Saturday morning. It was D.D.'s impression that J.A.M.'s bruises seemed to be fading. Finally, Dr. Katzenbach added to his report concerns regarding arguments between D.D. and S.R. observed at the hospital.
On July 16, 2007, Dr. Cindy DeLago, of New Jersey Cares, examined J.A.M. and D.M. During her examination of D.M., Dr. DeLago found "four bruises in unusual areas of the upper outer thighs, but no signs of sexual abuse." On the other hand, her examination of J.A.M. revealed "red and black bruises on the posterior aspect of the labia majora extending over the upper inner thighs of both legs, down her perineum, on her buttocks and up the entire length of the gluteal crease. She also had significant perianal bruising." According to Dr. DeLago, there was a "patterned bruising, consistent with fingermarks." In addition, she found two abrasions with "'moist bright red appearance of freshly denuded skin.' She saw no evidence of formation of new skin, which occurs over a three to five day period."
Dr. DeLago concluded that J.A.M.'s "injuries could only have been made by someone who was handling this child in a physically inappropriate manner." She added, "[m]oreover, the specific areas of most significant injury, the perianal and perineal areas, indicate this child was subjected to sexually inappropriate contact." However, Dr. DeLago found the timing of the injury "difficult to pinpoint."
On July 17, 2007, the Division conducted an emergency removal of both children. The Essex County police and Gloucester County prosecutors were involved, which precluded the Division from completing its investigation at that time.
On July 19, 2007, Dr. DeLago conducted a follow-up examination of J.A.M. and found normal healing of all injuries. Based on the rate of healing, Dr. DeLago opined that J.A.M.'s injuries occurred either Friday, July 13 or Saturday, July 14.
On July 23, 2007, the Division filed a verified complaint for custody of D.M. and J.A.M., pursuant to N.J.S.A. 9:6-8.21, N.J.S.A. 30:4C-12, and Rule 5:12-1. That complaint named as defendants the parents of the children, D.D. and Jo.M. On that date, the judge found that J.A.M. was sexually abused and that many individuals had access to her. The judge entered an order to show cause granting custody of the children to the Division. Subsequently, the Division filed an amended verified complaint, adding S.R. and M.R. as defendants, because its investigation indicated that the children were in their exclusive care during the most likely timeframe of the sexual abuse.
The Division investigated the paternal relatives. The paternal aunt, M.G., who had assumed primary responsibility for the children during their stay in Newark, stated that the children were always with her and her husband. The Division interviewed all of the relatives living in the building, except for R.M., who is mentally challenged and legally blind, and G.'s father who suffers from dementia. As a result of its efforts, the Division was unable to substantiate abuse by any of the paternal relatives.
At trial, Dr. DeLago was qualified as an expert in pediatrics with a sub-specialty in child abuse and neglect. She was the only expert to testify. Division worker Nicole Curtis, Division supervisor Jabetta Appling and Nurse Morse also testified for the Division. Defendants did not testify and did not offer any witness or evidence.
On October 31, 2007, Dr. DeLago opined that J.A.M.'s injuries "could be only caused from blunt trauma and friction," and not by normal childhood activities. She stated she did not know what was used but her "primary suspicion was a penis, because of the way the bruises were and the abrasion in the center." She stated that she asked help from the police and the Division to narrow the time of the injury and asked to speak with M.R. Dr. DeLago suggested that S.R. and M.R. were in the best position to provide valuable information. However, there is no evidence that Dr. DeLago was able to speak with S.R. and M.R.
Dr. DeLago testified that, within a reasonable degree of medical certainty, J.A.M.'s injuries were not older than three days when she examined her. She added that she was "more suspicious that the assault happened on Saturday," because none of the diapers the police found at D.D.'s house contained blood, and "if it had happened Friday, there should have been something [some blood] in that diaper Saturday morning." Nevertheless, she conceded, "it would be stretching it, . . . [but] you'd have to include Friday."
On January 4, 2008, Nurse Morse testified that when she examined J.A.M. on Saturday night, she observed "some small bruises and some lesions and . . . blood tinged stains in the diaper." She further testified that "the lesions looked like they had leaked some small amounts of blood in the diaper." Dr. DeLago was re-called to testify on that date. She testified that an injury like J.A.M. suffered, which was not a "very deep abrasion," should not be actively bleeding twelve to twenty-four hours later, unless it got disrupted.
In addition, Dr. DeLago stated that after her first day of testimony, she reviewed literature recently published in the journal, Pediatrics, which reported that in a study of girls with genital injuries of the type J.A.M. had, there were no signs of the injury on day four. Dr. DeLago noted that when she examined J.A.M. on Monday, July 16, 2007, the injuries looked "super fresh," and there were "pretty nasty looking abrasions." She reasoned that if J.A.M.'s injuries had happened on Friday, "they should have been gone" on Monday. In addition, she found important that on Friday, when D.D. took J.A.M. home from Newark, J.A.M. was not crying, and D.D. did not notice anything Saturday morning, "even though the light was low." She stated, "I would say within a reasonable degree of medical certainty, I think it happened on Saturday."
After considering all the evidence and testimony, the trial judge found, by a preponderance of the evidence, that J.A.M. was sexually abused on Saturday, July 14, 2007. The court added, however, that "even assuming arguendo that these injuries occurred on Friday, July 13th, this court would still find that [D.D.] neglected these children by failing to protect them from the harm suffered. She left her young children unable to communicate about their needs, their safety in the care of people she knew very little about." Citing the burden-shifting doctrine discussed in In the Matter of D.T., 229 N.J. Super. 509 (App. Div. 1988), the judge further concluded that the Division "produced sufficient evidence to warrant shifting the burden to [the] three defendants to prove their non-culpability," which they failed to do since they did not testify or offer any evidence.
In a related dispositional order, also dated February 22, 2008, the court determined that the children would continue under the custody of the Division but that physical custody would be transferred to D.D., the biological mother, subject to conditions set forth in the order. The court dismissed S.R. and M.R. from further litigation in the matter and, by consent, restrained S.R. from having any contact with the children.
On appeal, S.R. argues:
THE TRIAL COURT ERRONEOUSLY APPLIED THE "CONDITIONAL" RES IPSA LOQUITOR [sic] TEST AND IMPROPERLY DETERMINED THAT THE BURDEN OF PROOF WAS SHIFTED TO S.R. TO COME FORWARD AND PROVIDE EVIDENCE TO ESTABLISH HIS INNOCENCE.
EVEN IF THE TRIAL COURT HAD PROPERLY APPLIED THE "TRADITIONAL" RES IPSA LOQUITOR [sic] TEST, THE DIVISION WOULD STILL HAVE BEEN UNABLE TO MEET ITS BURDEN OF PROOF BY A PREPONDERANCE OF THE EVIDENCE. POINT III: THE TRIAL COURT IMPROPERLY RELIED UPON INCOMPETENT HEARSAY TESTIMONY. Similarly, M.R. argues:
THE TRIAL COURT FAILED TO APPLY THE CORRECT RES IPSA LOQUITUR STANDARD.
A. THE TRADITIONAL RES IPSA LOQUITUR STANDARD SHOULD HAVE BEEN APPLIED IN THIS MATTER WHICH WOULD HAVE REQUIRED THE DIVISION TO PROVE ITS CASE BY A PREPONDERANCE OF THE EVIDENCE THE DIVISION FAILED TO MEET ITS BURDEN.
B. THE TRIAL COURT ERRONEOUSLY APPLIED THE CONDITIONAL RES IPSA LOQUITUR STANDARD AND THUS IMPROPERLY SHIFTED THE BURDEN OF PROOF TO THE PARENTS.
THE TRIAL COURT'S FINDING AGAINST M.R. IS NOT SUPPORTED BY A PREPONDERANCE OF CREDIBLE EVIDENCE AND MUST BE REVERSED.
THE PUBLIC POLICY UNDERLYING THE LAW GOVERNING THIS MATTER SUPPORTS A FINDING THAT M.R. DID NOT ABUSE OR NEGLECT THE MINOR CHILDREN.
Based upon our careful review of the facts and circumstances of this case and the applicable law, we are satisfied that applying either the burden-shifting rule employed in D.T., supra, (shifting the burden of persuasion) or that employed in N.J. Div. of Youth and Family Servs. v. J.L., 400 N.J. Super. 454 (App. Div. 2008) (shifting the burden to produce evidence), the trial court was justified in its conclusion that S.R. and M.R. had abused or neglected J.A.M. within the meaning of N.J.S.A. 9:6-8.21.
The pertinent portion of N.J.S.A. 9:6-8.21 provides "'abused or neglected child' means a child less than 18 years of age whose parent or guardian, as herein defined, . . . (3) commits or allows to be committed an act of sexual abuse against the child[.]" The uncontroverted evidence in this case establishes that an act of sexual abuse was committed upon J.A.M., and the trial court found, on contested but persuasive evidence, that the act of sexual abuse occurred on Saturday, July 14, 2007. On that date, J.A.M. was in the care of defendants D.D., S.R. and M.R. Each of the defendants was a "parent or guardian, as defined [in N.J.S.A. 9:6-8.21]." Each "assumed responsibility for the care, custody or control" of J.A.M. during the timeframe that the court found the sexual abuse occurred. N.J.S.A. 9:6-8.21 (defining "parent or guardian").
It is true, as defendants assert, that the trial court did not make a finding as to who committed the act of sexual abuse, but such a finding is not necessary to a finding that statutory abuse or neglect occurred. An abused or neglected child is one "whose parent or guardian . . . commits or allows to be committed an act of sexual abuse against the child." N.J.S.A. 9:6-8.21c(3) (emphasis added). The court determined that the Division "produced sufficient evidence to warrant shifting the burden to [the] three defendants to prove their nonculpability." As the court further observed in its factfinding order of February 22, 2007, "[t]he defendants failed to move forward with any explanation as to the injuries. As such the evidence before the court is uncontroverted."
Defendants argue the trial court utilized the wrong standard and erroneously shifted to them the burden of proof by a preponderance of the evidence, rather than the burden of producing evidence. We disagree. While we do agree the court's statements about shifting the burden leave room for discussion as to which she applied, the court expressly stated that "[t]he defendants failed to come forward with any explanation as to the injuries." It is fair to conclude, and we do conclude, that the court merely shifted to defendants the burden to produce evidence, and not the heavier burden of persuasion. "'Burden of producing evidence' means the obligation of a party to introduce evidence when necessary to avoid the risk of judgment or peremptory finding against that party on an issue of fact." N.J.R.E. 101(b)(2). Thus, even if we accept that defendants' argument that they were only obligated to satisfy the burden of producing evidence, they did not meet that burden. In that regard, we observe that an order or judgment will be affirmed on appeal if it is correct, even though the judge gave the wrong reasons for it. Isko v. Planning Bd. of Tp. of Livingston, 51 N.J. 162, 175 (1968).
In discussing the ultimate burden of persuasion and the burden of production in the context of alleged improper racial targeting by law enforcement officers, our Supreme Court explained:
[a] prima facie case is one in which the evidence, including any favorable inference to be drawn therefrom, could sustain a judgment. Once a defendant through relevant evidence and inferences establishes a prima facie case of racial targeting, the burden of production shifts to the State to articulate a race-neutral basis for its action.
[State v. Segars, 172 N.J. 481, 494 (2002) (internal citations omitted)].
The Court remarked that the burden of production "has been described as so light as to be 'little more than a formality.'" Ibid., (quoting Mogull v. C.B. Commercial Real Estate Group, 162 N.J. 449, 469 (2000)). Despite the lightness of the burden of production, the Segars Court cautioned that "[f]or the State to prevail, it cannot remain silent once a prima facie case has been established by a defendant because the '[e]stablishment of the prima facie case in effect creates a presumption that the [State] unlawfully discriminated against the [defendant].'" Id. at 495.
A similar analysis dictates the result in this case. Once the Division established a prima facie case of sexual abuse upon J.A.M. during a time when she was under the care of the three defendants, it was incumbent upon those defendants to come forward with evidence to overcome the presumption that he or she had committed or allowed the sexual abuse to be committed. Their failure to come forward with such evidence will sustain a judgment against them.
Traditionally, the doctrine of res ipsa loquitur applied "only where the injury more probably than not has resulted from negligence of the defendant, and defendant was in exclusive control of the instrument." Anderson v. Somberg, 67 N.J. 291, 299 (1975), cert. denied, 423 U.S. 929 (1975) (internal citations omitted). However, "[t]he doctrine has been expanded to include . . . multiple defendants . . . [and] cases where the negligence cause was not the only or most probable theory in the case, but where the alternate theories of liability accounted for the only possible causes of injury." Id. at 299 (internal citations omitted).
In Anderson, the tip of a surgical instrument broke off while it was being manipulated in the plaintiff's spinal canal. The surgeon attempted to retrieve it but was unable to do so. The Court held that "where an unconscious or helpless patient suffers an admitted mishap . . . those who had custody of the patient, and who owed him a duty of care as to medical treatment, or not to furnish a defective instrument for use in such treatment can be called to account for their default." Id. at 298. The Court observed: "In such cases [involving alternate theories of liability], defendants are required to come forward and give their evidence. The latter development represents a substantial deviation from earlier conceptions of res ipsa loquitur and has more accurately been called 'akin to res ipsa loquitur,' or 'conditional res ipsa loquitur.'" Id. at 299-300 (internal citations omitted).
In In Matter of D.T., supra, 229 N.J. Super. at 512, we held that the burden shifting analysis discussed in Anderson applies in a DYFS case where "a limited number of persons, [had] 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 . . ." Id. at 512 (citing Anderson, supra, 67 N.J. at 298-99) (reversing the trial court's judgment of dismissal). In D.T., although the doctor's statement "varied somewhat, . . . she concluded that the abuse occurred, at most, within the 24 hours prior to her 7:00 p.m. examination, and more likely within about 12 hours." Ibid. Because "[t]he state of the proofs made it difficult to establish by a preponderance of evidence which of the finite group of possible abusers committed the abuse, or that the parents knowingly allowed such acts," the court applied conditional res ipsa loquitur and shifted the burden so the "defendants would be required to come forward and give their evidence to establish non-culpability." Id. at 515, 517.
Recently in J.L., supra, we distinguished D.T. and stated that in a case where, "unlike in D.T., the circumstances do not fit the Anderson v. Somberg burden-shifting paradigm," because "the child [was] exposed to a number of unidentified individuals over a period of time, and it is unclear as to exactly where and when the child's injuries took place, traditional res ipsa loquitur principles apply." J.L., supra, 400 N.J. Super. at 469-70. Under this approach, "once the Division establishes a prima facie case of abuse or neglect under N.J.S.A. 9:6-8.46a(2), the burden will shift to the parents [or guardians] to come forward with evidence to rebut the presumption of abuse or neglect." Id. at 470. However, "[u]nlike the rule set forth in D.T., the burden of proof will not shift to the parents to prove their non-culpability by a preponderance of the evidence. The burden of proof will remain on the Division." Ibid.
In J.L., the child had suffered fractures on three different occasions "over a period of several weeks." Id. at 469. During that timeframe, the parents and their relatives and friends who visited were not the only people who had access to the child. Ibid. Rather, the child had been "in the custody of medical personnel on various occasions and subjected to various procedures, including x-rays and endoscopy, which required physical restraint." Ibid. The trial judge found that the parents successfully overcame the presumption of abuse and that it could not be confirmed that the child's injuries were a result of abuse or neglect. Id. at 466. We agreed that the trial judge's factual findings were well supported by the evidence, and deferred to those findings. Id. at 473.
In the case at bar, the record also amply supports the trial court's conclusion that J.A.M. was sexually abused on Saturday, July 14, 2007. Accordingly, we defer to that finding. N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 605 (2007); State v. Locurto, 157 N.J. 463, 470-71 (1999). As in D.T., the evidence narrowed the timeframe of the abuse and the finite number of individuals that had access to or custody of J.A.M. during that critical time period. The trial court correctly shifted the burden to defendants S.R., M.R. and D.D. to provide evidence to overcome the presumption of abuse while the child was in their care. It properly concluded that defendants failed to satisfy that burden.
We reject S.R.'s contention that the trial court erred by shifting the burden to defendants even though all persons who had access to J.A.M., specifying the paternal relatives in Newark and E., were not parties to the case. The court's factual determination that the sexual assault occurred on Saturday excluded the paternal relatives from the finite group of abusers or persons who allowed the abuse to occur. That determination is entitled to deference, as we are satisfied it is based on adequate, substantial and credible evidence. N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007). To the extent S.R. is suggesting that his friend, E., may have been the sexual abuser, S.R. must bear responsibility because it was S.R. who exposed J.A.M. to E.
We also reject S.R.'s argument that he was prejudiced by the Court's reliance upon incompetent hearsay testimony. Specifically, S.R. takes issue with Division worker Ms. Curtis having testified in reliance on Division records that were prepared before Ms. Curtis was assigned to the case by Division worker Mara Durkin, who did not testify. We resolved a similar issue in In re Guardianship of Cope, 106 N.J. Super. 336 (App. Div. 1969). In Cope, we held that, because in DYFS matters, it would be too disruptive to the process to have everyone involved testify, the Division is permitted to submit into evidence "reports [its] personnel (or affiliated medical, psychiatric, or psychological consultants), prepared from their own first-hand knowledge of the case, at a time reasonably contemporaneous with the facts they relate, and in the usual course of their duties with the Bureau." Id. at 343. The Division records met those criteria.
S.R. also contends the trial judge improperly admitted and relied on evidence that S.R. was asked to retrieve J.A.M.'s diaper from his home and take it to the hospital, but failed to do so. S.R. claims that the Division's record regarding this event contains multiple levels of hearsay. However, in his appellate brief, S.R. admits that Dr. Katzenbach asked him to retrieve J.A.M.'s diaper that was changed at M.R.'s house and to bring it to the hospital, which he failed to do, reportedly because he could not find it. Even if the Division's evidence and testimony regarding this subject were improperly admitted, it was harmless. Moreover, there was sufficient additional evidence supporting the decision by the court. See State v. Stevens, 136 N.J. Super. 262, 264-65 (App. Div. 1975) (Where there is enough proof aside from the challenged testimony, "if error exist[s] it [is] harmless . . . .") (citations omitted).
We also reject M.R.'s contention that the court's finding that she committed abuse or neglect is untenable because the Division's expert testified "to any reasonable certainty . . . that J.A.M.'s injuries were a result of penile to anal contact." M.R. argues it was unnecessary for her to offer any evidence as to this point because she is a woman, and obviously lacking a penis, could not have caused these injuries. We reiterate that the controlling statute applies not only to one who commits sexual assault but also to one who allows the assault to be committed. In addition, Dr. DeLago's testimony was that J.A.M.'s injuries were likely caused by a penis, but they could have been caused by a finger or some other object.
Finally, we acknowledge M.R.'s argument that the court's finding is against public policy, but we find that argument and the remaining arguments raised by both appellants, to be so lacking in merit that they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).