September 18, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
S.F., DEFENDANT-APPELLANT, AND K.S., SR., DEFENDANT. IN THE MATTER OF K.S., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-265-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 27, 2012
Before Judges Alvarez, Nugent and Ostrer.
Defendant S.F appeals from the June 23, 2011 Family Part order finding that she abused or neglected her two-year-old son, K.S., when she accidentally caused a fracture of his right lower leg while pulling him across the back seat of a car. We affirm.
The New Jersey Division of Youth and Family Services*fn1
(the Division) received a referral concerning S.F. and K.S.
on October 20, 2010, when a hospital emergency room pediatrician
reported that K.S. had sustained a spiral fracture of his right tibia.
The Division assigned a caseworker from the special response unit to
investigate the referral. After speaking to the emergency room doctor,
the caseworker interviewed S.F. and other family members, then
implemented a safety plan "with the use of a homemaker."
Two months later, on December 20, 2010, the Division filed a complaint alleging that K.S. had been abused or neglected. Following several proceedings in which the court, among other actions, granted the Division care and supervision of K.S., the court conducted a fact-finding hearing on June 14 and 23, 2011. At the inception of the hearing, in response to the court's question, the Division informed the court that it was proceeding under sub-sections (c)(1) and (2) of the statute that defines "abused or neglected child," N.J.S.A. 9:6-8.21.
During the fact-finding hearing, the Division presented the testimony of the special response worker and a medical expert, and moved into evidence six documentary exhibits, including the reports of its investigation. S.F. testified on her own behalf. The evidence established that on the day K.S. sustained the fracture, S.F. drove to her mother's place of employment and parked her car while waiting for her mother to finish work. S.F.'s adult cousin was seated in the front passenger seat. K.S. and three other children, ages two, three, and four, were seated in the back seat. S.F. put K.S.'s car seat in the trunk so that the children would have more room while they waited. As S.F. and the others continued to wait for S.F.'s mother, K.S. opened the rear driver's side door. S.F. got out of the car and went to the rear door to "sit [K.S.] down," but K.S. ran to the opposite side of the car, behind the passenger seat. S.F. leaned in, reached across the seat, and pulled K.S.'s left leg toward her. She did not yank her son's leg. As she pulled him toward her, "his facial expression changed. That's how [S.F.]knew something happened and he started crying." S.F. "thought [she had] sprung his foot."
S.F. explained that they waited for her mother for approximately one-half hour. During the wait the children were not sitting still, and a couple of times she had to turn around and tell them to quiet down. However, S.F. testified that she was not upset and that she remained calm. When she reached into the back seat and began pulling her son toward her, "he still was smiling, laughing[,] but after he got closer his facial expressions just changed."
K.S. would not let his mother touch his foot. He would not stand up. S.F. knew something was wrong, so she dropped off her mother, cousin, and the other children, then took K.S. to the hospital where he was diagnosed with a spiral fracture of the right tibia.
Dr. Robert Morgan, the Chief Medical Officer for the Department of Children and Families, testified on behalf of the Division as "an expert in pediatrics and child abuse and neglect cases." According to Dr. Morgan, K.S. suffered a non-displaced spiral fracture of the right tibia, the large bone of the lower leg extending from the knee to the ankle. He explained that "non-displaced" means that the bone fractures, but the pieces of the bone do not separate. He further explained that a spiral fracture is "a twisting type of fracture and it's the result usually of that type of force." According to Dr. Morgan, the tibia is the second largest bone in the body, and "[t]he tibia and the femur or the upper leg bone are the two most difficult to fracture." In his opinion, "[a] powerful twisting shearing type of force" was necessary to cause the type of spiral fracture sustained by K.S. Dr. Morgan considered such force to be excessive to remove a child from a car in a non-emergent situation. Yet, he acknowledged on cross-examination that the injury could have occurred by pulling the child's left leg, as described by the child's mother. He also acknowledged that the injury could have occurred if K.S.'s right leg "got caught on something" as S.F. pulled him. Dr. Morgan explained that "historically[,] fractures in general happen very quickly. . . .
[T]hey are a sudden traumatic force applied and the bone yields quickly. It's not a slow type of process."
Following the close of evidence and summations, the trial court reiterated that the Division was seeking a finding against S.F. under N.J.S.A. 9:6-8.21(c)(1) and (2). The court found, as facts, that: S.F. exited the car after K.S. opened the rear door; the child attempted to evade his mother; S.F. "reached over and pulled his left leg"; and regardless of whether "it was a yanking motion or a pulling motion, the child as a result of the pulling motion sustained a fracture." The court accepted Dr. Morgan's testimony that the force must have been excessive, and that "this type of fracture is sustained . . . as a result of a powerful twisting shearing force." As to S.F.'s state of mind, the court found that S.F. "clearly . . . did not intend to harm her child but [that she] . . . engaged in an act which resulted in the fracture of the child's leg."
The court concluded that despite S.F.'s lack of intent to "harm her child," her intent was irrelevant because: "[i]f an intentional act produces an unintended result, the injury is not accidental." The court then considered whether S.F. failed to exercise a minimum degree of care for K.S. Noting that conduct must be willful or wanton to support such a finding, the court stated that "[w]hether the actor actually recognizes the highly dangerous character of his or her conduct is irrelevant. Knowledge will be imputed to the actor." Citing Dr. Morgan's testimony that a powerful, twisting, shearing force was necessary to cause K.S.'s spiral fracture, the court determined that "this was not simple negligence," but was rather, gross negligence. Thus, the court found that S.F. abused or neglected K.S.
On October 4, 2011, the court signed an order terminating the litigation since the Division had no further concerns about S.F. and K.S. This appeal followed.
S.F. contends there are four reasons why the trial court's decision should be reversed: (1) despite stating that it would decide the case under N.J.S.A. 9:6-8.21(c)(1) and (2), the court framed the determinative issue under N.J.S.A. 9:6-8.21(c)(4)(b), then mistook "excessive force" for "minimum degree of care" and misapplied the law; (2) the evidence was insufficient to support a finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b) because the evidence did not establish that S.F. was aware of and disregarded any known risk; (3) the court refused to hear argument from counsel for S.F. and K.S. that the fracture was accidental; and (4) S.F.'s name should be removed from the central registry because the evidence was insufficient to support a finding of abuse or neglect.
"'Title [Nine of the New Jersey Statutes] controls the adjudication of abuse and neglect cases.'" Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011) (quoting N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)). In a Title 9 proceeding in which the Division has charged a parent with abuse or neglect, the Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (citing N.J.S.A. 9:6-8.46(b)). N.J.S.A. 9:6-8.21(c), in pertinent part, defines "abused or neglected child" as:
[A] child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to 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; . . . .
S.F.'s first argument stems from some confusion that occurred in the trial court about the statutory basis for the Division's complaint. In its complaint, the Division pled its cause of action under N.J.S.A. 9:6-8.21(c)(4)(b). Yet, at the inception of the fact-finding proceeding, the Division informed the court that it was proceeding under subsection (c)(1) and (2). In its decision, the court reiterated that the Division was seeking a finding against S.F. under N.J.S.A. 9:6-8.21(c)(1) and (2), and then read those statutory sections. The court did not analyze the facts or make its determination under those sections, however. Instead, it analyzed the facts under N.J.S.A. 9:6-8.21(c)(4)(b). S.F. argues that the confusion over the statutory basis for the Division's cause of action requires a new hearing. We disagree.
S.F. did not make this argument to the trial court. We review issues raised for the first time on appeal under the plain error standard. See R. 2:10-2. Under that standard, we must determine whether the alleged error "is of such a nature as to have been clearly capable of producing an unjust result." Ibid. We find no such error.
As we previously indicated, the Division pled a cause of action in the language of N.J.S.A. 9:6-8.21(c)(4)(b); it did not plead a cause of action under N.J.S.A. 9:6-8.21(c)(1) or (2). The Division filed the complaint on December 20, 2010, thereby placing S.F. on notice that it would proceed under N.J.S.A. 9:6- 8.21(c)(4)(b). Nothing changed before the fact-finding hearing commenced on June 14, 2011. S.F. has not argued that her trial preparation, her trial strategy, or her testimony was affected by either the Division's or the court's statements at trial about N.J.S.A. 9:6-8.21(c)(1) and (2). In fact, S.F. has not explained how she was prejudiced by the court deciding the case under N.J.S.A. 9:6-8.21(c)(4)(b) instead of N.J.S.A. 9:6-8.21(c)(1) or (2). Given that the Division pled a cause of action under the statutory section upon which the court based its decision, and that S.F. did not articulate any prejudice resulting from the statements about the different sections of the statute, we conclude that the erroneous references did not constitute plain error.
We next turn to S.F.'s second and fourth contentions that the Division did not establish by a preponderance of the evidence the elements of abuse and neglect under N.J.S.A. 9:6-8.21(c)(4)(b). Specifically, S.F. argues that her conduct amounted, at most, to an error in judgment or mere negligence, but that it did not constitute a failure to exercise a minimum degree of care in providing K.S. with proper supervision. S.F. further argues that the trial court erroneously applied a negligence standard in determining that she had failed to exercise a minimum degree of care in supervising K.S.
The "'failure . . . to exercise a minimum degree of care' at least requires grossly negligent or reckless conduct." T.B., supra, 207 N.J. at 306 (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 180 (1999)). "Whether a particular event is to be classified as merely negligent or grossly negligent defies 'mathematical precision.'" N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 544 (App. Div. 2011) (quoting G.S. supra, 157 N.J. at 178). "There exists a continuum between actions that are grossly negligent and those that are merely negligent. The parent's conduct must be evaluated in context based on the risks posed by the situation." T.B., supra, 207 N.J. at 309. Nevertheless, "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes." G.S., supra, 157 N.J. at 179.
Accidental injuries are not inconsistent with a finding of neglect under N.J.S.A. 9:6-8.21(c)(4)(b). Id. at 167. If a parent's action is deliberate and it is foreseeable that such an action will likely result in injury, the parent's conduct may constitute abuse or neglect even though the injury is unintended. Id. at 174-75.
In the case before us, the classification of S.F.'s conduct as negligent or grossly negligent depended upon both the manner in which S.F. pulled K.S. across the seat of her car, and the amount of force she used. Those issues were in turn dependent upon the trial court's "feel" for and assessment of the testimony of S.F. and Dr. Morgan. Having considered and carefully evaluated the testimony of both witnesses, the court concluded that K.S. sustained the spiral fracture of his tibia as the result of a "powerful, twisting, s[h]earing force" and "from a powerful pull of [the] child." The trial court's factual determinations are entitled to our deference.
When facts are undisputed, the determination as to whether a defendant's conduct is negligent or grossly negligent "is a conclusion of law to which we are not required to defer" to the trial court. T.B., supra, 207 N.J. at 308 (quoting A.R., supra, 419 at 542). When facts are disputed, we accord particular deference to the trial court's fact-finding. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). The trial court's factual determination as to the degree of force employed by S.F. was supported by sufficient credible evidence in the record, and therefore we will not disturb it. See Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).
S.F. argues that there was no evidence that she "applied any force at all to either [of her child's] leg[s]." The record contradicts this assertion. S.F. testified that she "pulled" her son's left leg toward her but did not "yank him." She thought that she had "sprung his foot." Additionally, Dr. Morgan opined that the force used to remove K.S. from the car was excessive in a non-emergency situation.
S.F. also contends that the trial court applied a negligence standard, rather than a gross negligence standard, in determining whether S.F. had failed to exercise a minimum degree of care for her son. Not so. The trial court applied a "gross negligence" standard. It observed that "in G.S. . . . the phrase ["failed to exercise a minimum degree of care"] was chosen to capture a middle standard and refers to conduct that is grossly or wantonly negligent but not necessarily intentional." Furthermore, in rendering its conclusion, the court specifically determined, "[t]his was not simple negligence. This was gross negligence . . . ."
S.F.'s third contention, that during summations the trial court refused to hear any arguments that the fracture was accidental, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments: when S.F.'s attorney argued that the incident was accidental, the court pointed out that S.F. intentionally pulled K.S. toward her, but did not intend to injure him. Counsel agreed. This distinction is consistent with the holding in G.S.: "[w]here an action is deliberate, and the actor can or should foresee that his conduct is likely to result in injury, as a matter of law, that injury is caused by 'other than accidental means.'" Supra, 157 N.J. at 175. We do not glean from the record that the trial court restricted the closing argument of S.F.'s counsel.