On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FN-13-202-04.
The opinion of the court was delivered by: Lihotz, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Ashrafi.
In these consolidated Title Nine matters, N.J.S.A. 9:6-1 to -8.73, N.S. and R.B. separately appeal from a finding following a factfinding hearing that they committed acts of abuse and neglect with regard to the minor child K.S.N., who died while in their care. Defendants ask this court to consider (1) whether N.S. and R.B. may challenge the court's finding of abuse and neglect, even though they have not appealed from the final dispositional order terminating the litigation; (2) whether the evidence presented was sufficient to support the court's findings; (3) whether N.S.'s right to counsel of her choice was violated by the denial of her request to substitute criminal counsel as her attorney in the Title Nine proceeding; and (4) whether R.B.'s trial counsel was ineffective. Following our consideration of the arguments raised, in light of the record and applicable legal standards, we affirm.
N.S. is the mother of four children: K.S.N., who is deceased, K.A.N., J.B. and the youngest, K.B. J.N. is the father of K.S.N. and K.A.N. R.B. is the father of J.B. and K.B. At the time of K.S.N.'s death, the older three children were living with N.S. and R.B. Although J.N. had joint legal custody of his children, he did not have much contact with them. K.B. was born on September 27, 2005, after K.S.N.'s death.
The Division of Youth and Family Services (DYFS or Division) first received a referral regarding K.S.N. on November 25, 2002, when a Head Start Daycare staff member reported the child's complaints of pain from a scratch on his penis. K.S.N. told the daycare worker R.B. had squeezed his penis with his fingernails the prior evening because he would not follow directions or go to sleep. DYFS worker Eileen Wolff interviewed K.S.N. He said he did not like it when his mother went out and left him alone with R.B., who was "the boss," because R.B. hit him with a paddle. A physical examination revealed no marks on the child. Wolff also interviewed R.B., who denied striking the child but admitted he had been wrestling with K.S.N. a few months past, when he accidentally pinched the child's penis.
The referral was deemed "unsubstantiated" due to a lack of physical evidence and the divergent statements from K.S.N. and R.B.*fn1
DYFS received a second referral on May 20, 2003. While J.N. was visiting him at school, K.S.N. told his father R.B. had squeezed his penis, and put a sock in his mouth, and taped it shut. After interviews were conducted, a different caseworker concluded the child was not afraid of R.B., who interacted appropriately with him during the interview. This allegation was also deemed unsubstantiated. However, N.S. and R.B. consented to a Division Case Plan in which R.B. agreed not to roughhouse with the children.
On March 29, 2004, DYFS was notified that five-year-old K.S.N. had died at approximately 3:00 p.m. DYFS worker Sarah Jankowski interviewed N.S. and R.B., learning that on Sunday, March 28, R.B. had been caring for K.S.N., K.A.N., and J.B. while N.S. worked as a nurse's aide from 7 a.m. until 11 p.m. R.B. told Jankowski he went into the boys' bedroom shortly after lunch and caught K.S.N. and K.A.N. "wrestling" and saw K.A.N. "bouncing on [K.S.N.]'s stomach." Around 3:00 p.m., K.S.N. complained of stomach pain and began vomiting. That day, K.S.N. threw-up approximately five times. N.S. returned home around 11:20 p.m. During the night, K.S.N. vomited twice more.
The next morning, N.S. checked on K.S.N., who said he did not want to go to school. This was unusual, as the child "loved school." N.S. left to take K.A.N. to school and get to work by 7 a.m., while R.B. gave K.S.N. the first of three doses of anti-nausea medication and ginger ale. R.B. noted K.S.N. was weak. He called the child's pediatrician, who recommended giving the child flat soda and to call back if he noticed no improvement in the child's condition. R.B. called N.S. at work and stated K.S.N. exhibited shallow breathing and continued vomiting. N.S. arranged for a 2:15 p.m. doctor's appointment and returned home at 2:00 p.m. By that time, K.S.N.'s stomach was distended, and the child was limp and non-responsive. R.B. told Jankowski the child's "whole demeanor changed," as he went from "a little weak to real weak." R.B. explained K.S.N. was drooling and "kinda spaced out." N.S. stated she held a glass of water for K.S.N., who was too weak to drink on his own, and noticed his hands were cold and clammy. As N.S. drove the child to the doctor, she saw him slump over, close his eyes and vomit through his nose.
At the doctor's office, K.S.N. had no pulse and CPR was initiated. The child was taken to the hospital emergency room, where doctors unsuccessfully attempted to restart his heart. The preliminary autopsy revealed K.S.N. suffered blunt force abdominal trauma causing lacerations of his intestine, with resultant severe peritonitis.
Jankowski spoke with the pediatrician, who stated R.B. had called regarding K.S.N.'s vomiting and was told to give him clear liquids and call back if the vomiting persisted. At 11:45 a.m., N.S. called to schedule an appointment. She was given a 2 p.m. appointment and told the boy could be seen earlier if he remained sick. When K.S.N. arrived a little after 2 p.m., his pupils were dilated and fixed; he was pale and not breathing and had no detectable heart rate or pulse.
In the presence of N.S., Jankowski asked K.A.N., who was then three-and-a-half years old, if he and K.S.N. had wrestled. He said, "No." When his mother told him to tell the truth, he looked at her and did not respond. N.S. stated K.A.N. had been disciplined for wrestling. K.A.N. began to cry and family members arrived at the residence; so Jankowski ended the interview.
Jankowski testified that, while taking the children to their foster placement, K.A.N. told her his parents hit him with belts and that, after K.S.N. had jumped on him causing his nose to bleed, K.S.N. was punched in the stomach, presumably by R.B., and placed in the corner.
Jankowski attended an interview conducted the following day by Natalie Zuppa of the Monmouth County Prosecutor's Office. In the presence of his mother, K.A.N. gave several nonsensical responses to questions but also stated "daddy" had "punched" K.S.N. in the stomach because he was "lying down and not listening."
On March 30, 2004, DYFS exercised a Dodd*fn2 removal of K.A.N. and J.B., placing the children in foster care. N.J.S.A. 9:6-8.29. The following day, the Division filed an order to show cause and verified complaint seeking custody, care, and supervision of K.A.N. and J.B. N.J.S.A. 30:4C-12; see also Division of Youth and Family Servs. v. E.B., 137 N.J. 180, 185 (1994). J.N. was joined as a party defendant solely for dispositional purposes. The court granted the Division's request pending further review.
When the matter was heard on April 14, 2004, the return date of the order to show cause, J.N. filed a complaint for custody of K.A.N. Services were ordered for all three parents, including weekly supervised visitation, as well as psychological and substance abuse examinations. On May 20, 2004, the two children were placed with their maternal grandmother and her husband. N.S. and R.B. were restrained from the grandmother's home and permitted visitation only as supervised by the Division. On July 7, 2004, the court continued a child placement review board order terminating R.B.'s visitation with K.A.N.
A four-day factfinding hearing began on October 13, 2004. In addition to caseworkers Jankowski and Wolff, who related the Division's efforts after the three referrals, Neptune Township Police Officer John Jackson and Detective Michael Emmons testified regarding their investigation following K.S.N.'s death. The reports of Chester Sigafoos, Ph.D., who performed psychological examinations of N.S. and R.B., were also introduced.
The Division presented the expert testimony of Elizabeth Susan Hodgson, M.D., a pediatrician with the Dorothy B. Hirsch Regional Child Protection Center and co-chair of the Central Region Child Fatality Review Board, which reviews the deaths of all New Jersey children under age eighteen. Dr. Hodgson reviewed K.S.N.'s medical records and the autopsy report in her "medical child death review" and determined whether K.S.N.'s death was an accident or the result of abuse and neglect.
Dr. Hodgson highlighted certain items in K.S.N.'s medical history. In June 2002, he suffered a "fairly significant" bruise injury to his left thigh, for which he was x-rayed. No information was provided as to how the injury occurred. Hodgson labeled the injury "unusual." In September 2002, K.S.N. was admitted to the hospital for three days following a closed head injury, including a concussion with loss of consciousness, along with post-concussive symptoms of right side body weakness and ataxia, or wobbly gait. N.S. had reported the child ran into a wall. Dr. Hodgson opined the explanation was inconsistent with the injuries displayed, which were more consistent with a rotational injury to the head. Finally, on May 9, 2003, N.S. took K.S.N. to his pediatrician the day following a motor vehicle accident because he complained of pain in his right elbow and back. Dr. Hodgson questioned the delay in seeking treatment for the child, as N.S. was taken to the emergency room on the day of the accident.
Regarding the lethal injury, Dr. Hodgson reviewed the first aid squad report, which noted K.S.N. had bruises on his right forehead and cheek. The autopsy report also identified: bruising on the child's face below his eye and on the left side of his neck, just underneath his jaw; abrasions beneath his umbilicus (belly button) and in his right lower quadrant; a two-inch by one-inch area of bruising on his back; and external trauma visible on a number of areas on his body. Dr. Hodgson characterized the facial, neck, and back bruising as "unusual" for horseplay between children. Internally, K.S.N. suffered severe localized blunt force abdominal trauma, "which led to [a] rupture in an area of the small bowel when this loop of bowel was forcefully impinged onto the spine." The mesentery, a membrane that attaches organs to the abdominal wall, was torn as was the omentum, the large membrane that covers the internal organs of the abdomen. The jejunum, or middle section of the small intestine, was ruptured. Dr. Hodgson stated K.S.N.'s intestines suffered a full perforation, which is "difficult" to do. The coroner recorded 700ccs of blood and stool had leaked into the peritoneal cavity, which led to a "massive infection." The autopsy listed the manner of death as "homicide."
Hodgson stated the child's injuries were without question consistent with being punched by an adult and inconsistent with the suggested roughhousing or wrestling with K.A.N. Dr. Hodgson asserted the "velocity of force necessary in a blunt trauma... was something that needed adult-size strength to cause," unless it was caused by some mechanical force such as a car accident or a fall from a second-story window. The expert dispelled the parents' allegation that K.A.N. had jumped on K.S.N.'s stomach, in part because DYFS reported the two slept on mattresses on the floor, eliminating a high surface from which one child could have jumped onto the other, and also because, in her opinion, the younger boy lacked "the strength, velocity or weight" to inflict a lethal blow to his bigger, stronger brother's abdomen.
Dr. Hodgson explained the symptoms of peritonitis, stating the condition is "extremely painful." She noted a child suffering from peritonitis would likely be complaining of severe pain on a constant basis. When K.S.N. died, the infection was raging in his abdominal cavity and had entered his blood stream. She opined a "reasonably prudent" parent would have been able to distinguish between a stomach virus and peritonitis and, by no later than Monday morning, would know K.S.N. needed emergent medical care. The failure to provide timely medical care contributed to K.S.N.'s death, as he could have been helped had he been evaluated earlier.
Finally, J.N. testified regarding his relationship with K.S.N. and K.A.N. N.S. and R.B., who each faced pending criminal charges, did not testify or present witnesses.
The trial court issued its oral opinion on February 3, 2005. Determining the unrefuted evidence presented by the Division "clearly and convincingly" showed R.B. had inflicted the fatal blows to the child, and that N.S. and R.B. were responsible for K.S.N.'s death by failing to render timely and necessary medical treatment, the court concluded K.S.N. was an abused or neglected child, as defined by the statute.
On September 14, 2005, the court considered the Division's motion, joined by the Law Guardian, to be relieved of its statutory obligation to make reasonable efforts to reunite the family. N.J.S.A. 30:4C-11.3(b). The court found aggravating circumstances existed and granted the Division's request, concluding "no level of supervision in this case would be sufficient to protect these children." Legal and physical custody of the two children were placed with their maternal grandmother, and visitation with N.S. and R.B. was temporarily suspended.
On September 27, 2005, K.B. was born following N.S. and R.B.'s April 19, 2004 marriage. Before the baby was released from the hospital, DYFS filed an order to show cause and moved for custody, alleging the infant was at substantial risk of harm. The court granted the Division's motion.
A dispositional hearing was held on October 25, 2005. After the hearing, K.A.N. was placed in the custody of his father, J.N., who was required to continue to live with his parents.
Concerns for J.B. and K.B. developed when their maternal grandmother's marijuana use was discovered. The children were again placed in foster care, and DYFS began reviewing alternative relative placements. Finding none, and after a substance abuse evaluation and two negative urine screens, J.B. and K.B. were returned to their grandmother's care on January 25, 2006.
On February 7, 2006, J.N. was dismissed from the litigation. N.S. was permitted visitation with K.A.N. only as supervised by J.N. DYFS moved to amend the order relieving it of the obligation to provide reasonable efforts to reunite the infant with her parents, which was also granted. The Division also advised it sought to amend its complaint to allow kinship legal guardianship (KLG) of J.B. and K.B. by their grandmother. This too was granted. On June 7, 2006, R.B. and N.S. consented to KLG. A risk assessment was ordered to determine whether to allow J.B. and K.B. to visit with their parents. At the final dispositional hearing held on September 11, 2006, the judge determined N.S. and R.B. could visit with the two children under the supervision of the children's grandmother. The litigation was terminated, and appeals were filed by N.S. and R.B. on October 20 and October 31, 2006, respectively. The cases were consolidated for the purpose of sharing transcripts.
Thereafter, this court entered a limited remand to allow N.S. and R.B. to move for relief, pursuant to Rule 4:50. Following his review, the Family Part judge denied the motions on April 10, 2008. On February 6, 2009, we granted the Law Guardian's request to include in the record R.B.'s judgment of conviction for the second-degree offenses of reckless manslaughter, endangering the welfare of a child by causing physical injury, and endangerment for failure to seek timely medical care in the death of K.S.N., "without prejudice to the parties' arguments as to whether or to what extent it may be considered in [the court's] determination of the merits of the appeal."
On March 16, 2009, N.S. pled guilty to third-degree child endangerment by failing to get K.S.N. timely medical treatment. The Law Guardian's motion to include that judgment of conviction was granted. Pending before us is N.S.'s motion to supplement the record with the transcript of her plea and her affidavit of explanation for why she pled guilty to the endangerment charge. We grant that motion and have considered her submission.
"Whether a parent or guardian has failed to exercise a minimum degree of care" in protecting a child is determined on a case-by-case basis and "analyzed in light of the dangers and risks associated with the situation." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999). We note N.J.S.A. 9:6-8.21(a) defines the terms parent or guardian to include "any person [ ] who has assumed responsibility for the care, custody or control of a child or upon whom there is a legal duty for such care." Also, N.J.S.A. 9:6-2 provides that a "'person having the care, custody or control of any child'" includes "any person with whom a child is living at the time the offense is committed."
An "'[a]bused or neglected child'" is defined at N.J.S.A. 9:6-8.21(c) to include a child whose parent or guardian (2) creates or allows to be created a substantial... risk of physical injury to such child by other than accidental means which would likely cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ;
(4) or a child 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.... (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]
A finding of abuse or neglect must be based on a preponderance of the evidence and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b)(2). "Under the preponderance standard, 'a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met.'" Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (quoting Biunno, Current N.J. Rules of Evidence, comment 5a on N.J.R.E. 101(b)(1) (2005)). "The evidence must demonstrate that the offered hypothesis is a rational inference, that it permits the trier of fact to arrive at a conclusion grounded in a preponderance of probabilities according to common experience." In re Estate of Reininger, 388 N.J. Super. 289, 298 (Ch. Div. 2006) (citing Joseph v. Passaic Hosp. Ass'n, 26 N.J. 557, 574-75 (1958)). If the facts are sufficient to sustain the complaint, the court will enter an order finding that the child is an abused or neglected child and set forth the ground for such finding. N.J.S.A. 9:6-8.50(a).
Generally, "the phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S., supra, 157 N.J. at 178. "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). Wanton and willful behavior is "an 'intermediary position between simple negligence and the intentional infliction of harm[,]'" id. at 179 (quoting Foldi v. Jeffries, 93 N.J. 533, 549 (1983)), and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Id. at 178 (quoting McLaughlin, supra, 56 N.J. at 305). "[N]on-intentional conduct is sufficient to warrant a finding of abuse if injury to the child is demonstrated." Division of Youth and Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (citing G.S., supra, 157 N.J. at 175-82), certif. denied, 182 N.J. 426 (2005). "[T]he inquiry should focus on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger." G.S., supra, 157 N.J. at 182. "When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law." Ibid.
The trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Division of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing Division of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)) (internal quotations omitted). Accordingly, "in reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the  court's credibility determination... based upon... [the] opportunity to see and hear the witnesses." Division of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)), certif. denied, 190 N.J. 257 (2007).
We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13. The judgment of a trial court in a family-related matter "'should not be overthrown except upon the basis of a carefully reasoned and factually supported... determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" In re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).
"However, 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." M.M., supra, 189 N.J. at 279 (internal quotations and citations omitted). "[E]ven in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid.
Governed by these standards, we review the various challenges presented by N.S. and R.B. When appropriate, we have combined similar ...