July 20, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF J.F., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-213-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2012
Before Judges Axelrad and Ostrer.
Defendant J.F. (Jack)*fn1 appeals from the court's March 7, 2011 final order, following a fact-finding hearing, determining that he abused or neglected his three-month old son, J.F. (Joey). Jack and F.P. (Felicia), Joey's mother, had taken Joey to the emergency room on May 6, 2010 after Felicia noticed a lump on Joey's collarbone, and heard a popping sound in his back. The doctor determined Joey had a broken clavicle, which was estimated to be ten days old, and five fractured posterior ribs, all of which appeared to have been fractured at the same time. Based on the evident healing, the doctor estimated the rib fractures were between two and six weeks old. According to the doctor, the fractures were not the result of medical causes, such as a genetic weak-bone condition. Rather, they were caused by outside forces. After trial, the court determined that Jack caused the fractures by roughly handling Joey.
Jack argues the court erred by shifting the burden of persuasion to him; the evidence did not support the court's finding; and the court's order violates public policy. We disagree and affirm.
Who inflicted Joey's injuries was the key issue in the three-day fact-finding hearing held before Judge Terence P. Flynn between September and December 2010. The Division of Youth and Family Services (DYFS) called four witnesses: DYFS supervisor Ava Sharp; Dr. Steven Kairys, who described Joey's injuries and opined how they were likely caused; a detective who participated in interviewing Felicia; and a detective who took part in interviewing Jack. Among the various exhibits DYFS introduced into evidence were the video-recorded custodial interviews of Jack and Felicia. Neither Jack nor Felicia testified at the hearing or called any witnesses. Felicia was permitted to introduce into evidence various medical records of Joey.
In summary, Jack admitted in his recorded interview that he held Joey a few times by grasping him around his chest, causing Joey to cry in discomfort until he held Joey in a different manner; he often removed the boy from his car seat by simply grabbing the front of his clothing; both Felicia and her mother complained that Jack handled the infant too roughly; and Jack eventually changed the way he handled his son.
Joey was a small and fragile child. He was born on February 11, 2010 by caesarian section at thirty-seven weeks gestation, weighing four pounds, six ounces. Joey remained in the hospital until February 20, 2011 because of his low weight and difficulty feeding. After discharge, Joey lived with Felicia and Jack, in Felicia's mother's house.
It was a stressful arrangement. Also living in the house were Felicia's twelve-year-old brother, ten-year-old sister, and aunt. The mother, father and child shared a bedroom, along with their young dog. Jack and Felicia had money problems - they were both unemployed after Joey's birth. Their inability to contribute to living expenses, and the quality of their housekeeping, were sore points with Felicia's mother. Jack and Felicia both claimed Joey was sleeping through the night by April 2010, but he did not nap during the day.
Despite numerous medical visits, many of which occurred after the suspected date of Joey's rib fractures, no medical provider identified Joey's fractures until the parents brought Joey to the hospital on May 6, 2010. Jack and Felicia dutifully took Joey to numerous appointments to address his reflux, chronic gas, and failure to gain sufficient weight. He was deemed medically fragile and classified as a "failure to thrive" baby. His formula was changed frequently due to digestive and feeding issues.
In early April 2010, Jack and Felicia brought Joey to the pediatrician with a condition that was diagnosed as an umbilical hernia. Joey was referred to a pediatric surgeon, Dr. Saad, who examined Joey on April 6. Dr. Saad advised the parents that if the hernia became incarcerated, urgent surgery would be recommended; but if it did not, he recommended monitoring and reevaluation after a year.
The hernia remained problematic. Joey was taken to the hospital emergency room on April 16 and then examined by Dr. Saad in his office. The hernia was manually reduced, but the pediatric surgeon indicated that the hernia had become incarcerated, requiring surgery, which was scheduled for April 26. Dr. Saad noted that aside from Joey's hernia, his "[o]ther physical examination is essentially normal." Joey went to the emergency room again on April 20, 2010 because of the hernia. X-rays were taken of Joey's abdominal area during both ER visits, but they did not depict his ribs or collarbone. On April 26, 2010 Joey underwent surgery at Jersey Shore Medical Center to repair the hernia under general anesthesia and was discharged the same day.
In addition to his visits related to the hernia, Joey visited his pediatrician on March 24, and on April 1, 12, and 21. He was also taken to the Community Medical Center on April 14 for a bowel problem.
In late April, Felicia's mother confronted Jack and Felicia over Jack's treatment of the dog. The confrontation was heated. Jack admitted he was intemperate and threatening. At one point, he told Felicia's mother that he could get rid of her with a single phone call. On April 25, Jack and Felicia moved out, finding room at Jack's parents. On May 6, 2010, they moved again, into their own apartment in Asbury Park. The previous month, Jack had passed a licensing exam to be a certified nursing assistant and had begun working at an assisted living and nursing home facility about two weeks before Joey's surgery. He started with a training shift of 7:00 a.m. to 3:00 p.m., but transitioned to a 3:00 p.m. to 11:00 p.m. shift.
The evidence also indicated that while other family members, such as Felicia's aunt or mother, sometimes cared for Joey, they did so with others present. However, Joey was often alone with Jack, when Felicia was out on errands or during the few days she tried to return to work; and the infant was often alone with Felicia, particularly after Jack returned to work in April. Joey was also in the care of medical providers during certain medical procedures.
On May 6, 2010, Joey had been fussy, according to Felicia. During the afternoon, she heard and felt a "pop" on Joey's side, which she attributed to gas. At about 9:30 that evening, Joey was crying and Felicia noticed a bump on his collar bone and that his sides were "uneven." She brought her observations to Jack's attention and they decided to take the child to the hospital. That is when x-rays revealed the rib fractures and the fractured clavicle.
Jack submitted to a more than hour-long interview with police on May 7. He was Mirandized,*fn2 but not apparently arrested or charged with a crime. Jack denied purposefully hurting his son. Jack stated that two or three times, he held the child by grasping Joey under his arms, with each of Jack's hands clasped around the infant's chest, with Joey facing Jack. He admitted that Joey cringed and screamed as a result, but when Jack ceased holding him that way, Joey stopped crying. So, Jack did not believe he caused any lasting injury. He denied squeezing his son with excessive force, or out of anger or frustration. He admitted that he eventually stopped holding Joey that way.
Jack recognized that he was a large, strong man - he was six-foot-four-inches tall and weighed over 240 pounds; and his son barely weighed six pounds more than two months after birth. He sometimes held his son in one hand, with his head inadequately supported. Also, when Joey would cry, Jack would sometimes draw the palm of his hand down across his son's face, but denied doing it with any force. He also often lifted the infant out of his car seat with one hand by grabbing the boy's clothing. He admitted that Felicia and her mother complained to him that he treated the boy too roughly, and he responded that Joey was his son and he would treat him as he saw fit.
Jack expressed disbelief that Felicia could have injured Joey out of frustration over his crying. He insisted that if Felicia injured the child, even accidentally, she would have told him.
Throughout his interview, as evident on the recording, Jack appeared concerned, but assertive. He strongly denied purposefully harming his son. He stated that if he did harm his son, he did so accidentally.
After the officers concluded their interview, Jack asked if he was going to be arrested and incarcerated. The officers did not directly answer the question, and then asked Jack to wait while they left the room to determine if a DYFS worker who wanted to speak to Jack was present. While alone in the interview room, Jack stood to stretch, evidently experiencing back discomfort. He then began to sob, composed himself, and then began to sob again, covering his face.
In her interview, Felicia admitted that Jack could sometimes lose his temper. She discussed the incident when he threatened her mother. Felicia confirmed that Jack often punched their dog with a closed fist when it misbehaved, and she did not approve of his method of disciplining the dog.
Dr. Steven Kairys, who was qualified as an expert in medical examinations for child abuse, examined Joey and the x-rays of his injuries. He estimated the age of the rib and clavicle fractures discussed above. Diagnostic tests indicated no other injuries or fractures often associated with a baby who has been shaken.
Dr. Kairys explained that an infant's rib bones are resilient and difficult to fracture. Fractures of the posterior ribs - that is, the ribs in the child's back - are caused by someone of adult strength squeezing the baby's rib cage. The clavicle fracture could have been caused by a child falling or being dropped and landing on a hard object on the shoulder or by a direct blow to the clavicle with an object or fist. Because there was no history to assist in determining whether the injuries were accidental or non-accidental, Dr. Kairys was unable to come to a definitive conclusion as to the cause of the injuries. He did state that inflicted injuries are always a concern with posterior rib fractures, particularly in an infant who is not ambulatory.
Dr. Kairys did not support the notion that the injuries could have resulted from someone forcefully holding Joey during one of his x-rays, or during his hernia surgery. He stated that he reviewed the surgeon's notes and there were no complications reported. He stated that nothing in the report regarding the surgery and the anesthesia could have caused Joey's injuries. Dr. Kairys explained that a young child who cannot roll over will not require much restraint while being x-rayed, but that if necessary, someone would hold the baby while another technician took the x-rays. While he admitted that "anything is possible," he stated that it was highly unlikely that the injuries were caused by restraint during the x-rays, the surgery, or the anesthesia.
Despite the fact that there were no indications in any of the x-rays or the skeletal scan that Joey might be suffering from a condition such as osteogenisis imperfecta (brittle bone disease or OI) or rickets, Dr. Kairys ordered a skin biopsy and later a blood test for OI. The testing did not indicate that Joey had OI, but it did not completely rule out the possibility. He said this testing was also important because a child Joey's age may not manifest symptoms of bone fractures, especially of the ribs. Dr. Kairys explained that in children with OI, the most common fractures are of the arms and legs, though they could occur anywhere.
The court denied defendants' motion to dismiss after plaintiff's case. As noted, neither defendant offered any testimony.
In an oral decision issued March 7, 2011, Judge Flynn found by a preponderance of the evidence that Jack had abused or neglected Joey by handling him roughly. He credited Dr. Kairys' testimony that it was not easy to fracture a baby's ribs, it required "particular and acute compression of the chest wall," and such fractures could result from picking a child up under the arms, holding the child and squeezing to the point of fracture. The clavicle fracture could be caused by dropping the baby or a direct blow to the clavicle. Judge Flynn credited Dr. Kairys' testimony that Joey's injuries were highly unlikely to have been caused by any of the medical procedures performed on him. The judge also noted that the skin biopsy and blood testing failed to disclose the presence of osteogenisis imperfecta.
Judge Flynn found that Felicia and Jack had the opportunity to injure
Joey, as they were often the baby's sole caregivers since his birth.
While others may have cared for him, they were not alone.*fn3
Given Dr. Kairys' estimate that the clavicle fracture was no
more than ten days old, the injury would have had to have happened
after the hernia surgery during a time when Joey was in his parents'
care and not receiving medical attention. Judge Flynn then found that
it was unlikely that the injuries were caused by the limited number of
people who had access to Joey for the limited amount of time that they
had it. He then noted that Joey was a colicky baby and that it was
likely stressful to care for him.
Judge Flynn placed great weight on Jack's video-recorded interview; his admission that he held his son by the ribcage and Joey would cry uncontrollably until Jack changed positions; and his acknowledgement that others in the household expressed concern that he handled the baby too roughly. Of particular interest to the court was the fact that following the interview when the officers left the room, Jack began to cry "seriously." The judge apparently considered this evidence of consciousness of guilt, although he did not say so explicitly. Judge Flynn concluded that, given the evidence before him, the likely cause of Joey's injuries was Jack's rough handling of him. Judge Flynn did not make a finding of abuse or neglect as to Felicia.
A permanency hearing was held immediately after the judge's oral decision. The Division had obtained custody of Joey roughly ten months earlier, shortly after Joey's May 6, 2010 hospital visit. Joey was placed with his paternal grandparents while Jack and Felicia complied with various ordered services and exercised supervised visitation. With the Law Guardian's concurrence, Judge Flynn approved DYFS's plan of reunification, restoring to Jack and Felicia legal and physical custody of Joey. The FN litigation was terminated soon thereafter.
Jack appealed the finding that he had abused or neglected his son, and presents the following points for our consideration:
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 J.F.
THE TRIAL COURT'S FINDING AGAINST J.F. 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 J.F. DID NOT ABUSE OR NEGLECT THE MINOR CHILD.
The Law Guardian urges us to affirm the trial court's order.
Our scope of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We give deference to the trial court's factual findings based on the trial judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998) (Family Part judges' expertise and training warrants deference). See also Rova Farms v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (we shall not disturb trial court's fact findings "unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.") (quotation and citation omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Jack argues the court erred in interpreting the law allocating the burdens of persuasion and production in child abuse and neglect cases. We disagree. While Jack correctly asserts the burden of persuasion belonged to DYFS in this case, we disagree with Jack's assertion the court erroneously shifted that burden to him.
We apply the principles explicated in Division of Youth and Family Services v. J.L., 400 N.J. Super. 454 (App. Div. 2008). In that case, we identified two burden-allocating rules: traditional res ipsa loquitur, and conditional res ipsa loquitur. The first applies when an injured child has been exposed to unidentified individuals over a period of time, and it is unclear exactly when and where the injuries occurred. Id. at 470. In that instance, DYFS bears the burden of establishing a prima facie case of abuse or neglect under N.J.S.A. 9:6-8.46a(2). DYFS does so by presenting "proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian[.]" N.J.S.A. 9:6-8.46a(2). Even after proof of a prima facie case, DYFS bears the burden of persuasion, which does not shift. J.L., supra, 400 N.J. Super. at 470. However, once DYFS establishes a prima facie case of abuse or neglect, the burden of production shifts to the parents "to come forward with evidence to rebut the presumption of abuse or neglect." Ibid.
The second rule, conditional res ipsa loquitur, applies if DYFS establishes that a limited, identified group of individuals were the only persons present at the definitive time and place of the injuries. Id. at 468-69. In that case, the identified persons with access are required to come forward to prove their non-culpability. Id. at 468. This burden is more than a burden of production. It is a burden of persuasion. Id. at 468-470. This rule has its roots in the doctrine enunciated in the tort case, Anderson v. Somberg, 67 N.J. 291, 298-99, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975).
Returning to the traditional res ipsa loquitur rule, where the burden of production shifts but not the burden of persuasion, the parents can rebut the presumption of abuse or neglect through their own testimony or any other evidence in the case. J.L., supra, 400 N.J. Super. at 471 (quoting In re Philip M., 624 N.E.2d 168, 172 (N.Y. 1993)). However, they are not actually required to present exculpatory evidence. Id. at 472 (quoting Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 340 (App. Div. 2000)). Defendants may respond by "explain[ing] the causative circumstances because of [their] superior knowledge." Ibid. Or they may simply rest and put DYFS's case to the test by the fact-finder.
Under this approach, parents are not obligated to present evidence. They may choose to rest and allow the court to decide the case on the strength of the Division's evidence. They may present evidence tending to refute the Division's prima facie case by showing, for example, that the child was not in their care when the injury occurred or that the injury could reasonably have occurred accidentally, with or without any acts or omissions on their part. [Id. at 472.]
In other words, presentation of a prima facie case under the traditional res ipsa loquitur rule does not compel a result in DYFS's favor. On the other hand, a fact-finder may draw negative inferences from the failure of parents to present any evidence or testimony. Id. at 471 (citing In re Philip M., supra, 624 N.E.2d at 172-73).
To avoid confusion, one clarification should be made. Although we stated in J.L., supra, that presentation of a prima facie case under traditional res ipsa loquitur creates a rebuttable "presumption of abuse or neglect," 400 N.J. Super. at 470, it is not "presumption" in the sense defined by the Court in Shim v. Rutgers, 191 N.J. 374, 386 (2007). The Shim Court held "a presumption is a conclusion that the law directs must be drawn," and "a presumption has the effect of compelling a particular conclusion in the absence of contrary evidence." Ibid. (emphasis added). By contrast, in an abuse and neglect case involving traditional res ipsa loquitur, the defendants may "choose to rest and allow the court to decide the case on the strength of the Division's evidence." J.L., supra, 400 N.J. Super. at 472. The presentation of a prima facie case does not compel a conclusion of abuse or neglect. Ibid.
The formulation in J.L., supra, is consistent with the explication of res ipsa loquitur found in Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595, 605-06 (1958). There, the Court stated that res ipsa loquitur "symbolizes a permissible presumption of negligence from the plaintiff's proof, that is to say, an allowable inference of the defendant's want of due care[.]" Ibid. (emphasis added). A prima facie case is thereby established "[i]f the circumstances are such as will, unexplained, sustain the inference of negligence as reasonably probable[.]" Ibid. Nonetheless, "the inference [of negligence] is still one for the jury and not for the court, and the jury may reject it as not of such quality as would move reasonable men [and women] to judgment in favor of the tendered hypothesis, even when there is no explanation by the defendant." Ibid. See also Eaton v. Eaton, 119 N.J. 628, 638 (1990).
In J.L., supra, we held that the trial court correctly applied the traditional res ipsa loquitur rule because the child was in the presence of numerous individuals and the place and time of injuries were not definitive. The parents in that case chose to present rebuttal evidence, including the testimony of an expert who opined that the child's injuries could have resulted from medical causes and not abuse or neglect. We affirmed the trial court's decision that DYFS had failed to satisfy its burden of proving abuse or neglect by a preponderance of the evidence. Id. at 473; see N.J.S.A. 9:6-8.46b(1) (abuse or neglect must be proved by a preponderance of the evidence).
Applying these principles, we think it plain that conditional res ipsa loquitur did not apply to this case. Although Jack and Felicia were principally responsible for Joey's care, others were involved as well, including not only family members, but unidentified medical providers. Although DYFS's expert dismissed the possibility that Joey suffered his injuries at the hand of medical providers restraining him during an x-ray or surgery, the fact-finder was not bound to accept that opinion. Moreover, the time and place of Joey's injuries were far from definitive.
Instead, traditional res ipsa loquitur applied. DYFS presented evidence of injuries that ordinarily would not be sustained except by reason of a parent's acts or omissions. N.J.S.A. 9:6-8.46a(2) (emphasis added). It thereby established a prima facie case, sufficient to defeat a motion to dismiss, and to trigger a presumption of abuse or neglect. Consequently, Jack had the option of coming forward with proof or an explanation, or simply resting.
Having carefully examined Judge Flynn's thoughtful oral decision, it is apparent that he correctly applied the traditional res ipsa loquitur rule. DYFS obviously did more than merely present a prima facie case. It presented additional circumstantial evidence of Jack's rough handling of his son, including the way he grasped him around his chest, held him in the palm of his hand with his head unsupported, and pulled him out of his car seat by his clothes. Circumstantial evidence also pertained to his inability sometimes to control his temper with his pet or his girlfriend's mother; and his sobbing at the conclusion of his police interview, which the court apparently considered evidence of consciousness of guilt. This circumstantial evidence supported a reasonable inference that Jack caused the injuries by handling Joey with excessive force.
Judge Flynn expressly found that this case was analogous to J.L., in which the traditional res ipsa loquitur rule applied. Judge Flynn also noted that Jack had declined to put on a case. In so noting, Judge Flynn did not, as Jack argues, shift the burden of persuasion to him. Judge Flynn recognized that in J.L., and implicitly in this case, "there was no requirement on the defendants that they exonerate themselves." However, the judge drew a fair comparison with the defendants in J.L., who did effectively rebut DYFS's proofs, and Jack and Felicia in this case, who left DYFS's proofs unanswered by their own evidence or an expert opinion. The court concluded, "[T]he real issue here is whether the Division is able to prove to this
[c]court, by a preponderance of the evidence, that the child in this . . . case was abused or neglected by the parents." Referring to the circumstantial evidence, Judge Flynn found it more likely than not that Jack's rough handling of his son was the cause. In sum, the trial court correctly allocated the burdens of persuasion and production.
We address briefly Jack's challenge to the sufficiency of the evidence. To challenge the court's finding, Jack improperly invokes expert opinions summarized in J.L., supra, regarding medical conditions that could result in an infant's bone fractures absent abuse or neglect. However, as such opinions were not presented to the court, and subjected to cross-examination, they are not before us. Rather, the record reflects that Judge Flynn's findings were supported by sufficient credible evidence.
We recognize that DYFS's proofs were not overwhelming. They need not be. The Legislature has made the policy judgment that satisfying the slightest of our standards of proof - preponderance of the evidence - is all that is required to support a finding of abuse or neglect and to activate the court's intervention to protect children. As a result, the potential of finding abuse or neglect by a parent when it actually did not occur is increased; but raising the standard of proof would increase the risk of not finding abuse or neglect when it actually did occur, posing an unacceptable threat to the safety of children.*fn4 See N.J.S.A. 9:6-8.46b(1) (establishing preponderance of the evidence standard of proof); N.J. Div. of Youth & Fam. Servs. v. R.D., 207 N.J. 88, 113 (2011) (discussing difference between lower preponderance of evidence standard of proof in Title 9 abuse and neglect proceedings and clear and convincing standard of proof in Title 30 termination of parental rights proceedings).
Lastly, we find no merit to Jack's argument that we should reverse the trial court's order because his inclusion in the central registry, N.J.S.A. 9:6-8.11, N.J.A.C. 10:129-7.4(c)(2), would offend public policy. Further comment is not warranted in a written opinion. R. 2:11-3(e)(1)(E).