NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
D.C. and K.J., Defendants-Appellants. IN THE MATTER OF A.C. AND S.C., minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-222-12.
Joseph E. Krakora, Public Defender, attorney for appellant D.C. (Philip Lago, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant K.J. (Theodore J. Baker, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Natalie Behm, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.C. and S.C. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).
Before Judges Fuentes, Fasciale and Haas.
Defendants D.C. (fictitiously named here as "Donald") and K.J. (fictitiously named here as "Karen") are the biological parents of A.C., a two-month old infant boy who suffered a fractured left humerus while under his parents' exclusive care and control. Utilizing the burden-shifting paradigm we endorsed in Div. of Youth and Family Servs. v. S.S., 275 N.J.Super. 173, 179-81 (App. Div. 1994) and Div. of Youth and Family Servs. v. D.T., 229 N.J.Super. 509, 517 (App. Div. 1988), the Family Part found: (1) the Division of Youth and Family Services (Division) established a prima facie case of abuse and neglect against defendants, as defined in N.J.S.A. 9:6-8.21c(1); and (2) defendants failed to present competent evidence to rebut the presumption of abuse and neglect created by the circumstances of how A.C. was injured as well as the nature of his injury.
Each parent in these consolidated appeals are represented by separate counsel and have filed separate briefs in support of their respective legal positions. Consolidation is appropriate, however, because defendants have raised similar arguments attacking the trial court's factual findings and ultimate legal conclusion. Specifically, defendants argue the Division failed to make out a prima facie case that they abused or neglected their infant son.
Defendants also maintain that they presented at trial a plausible alternative explanation for the child's injuries, thereby rebutting the presumption of abuse and neglect under S.S. and D.T. and shifting the burden of proof to the Division to establish, by a preponderance of the competent evidence, that they abused and/or neglected their son. Defendants argue the trial court committed reversible error when it failed to hold the Division to this burden of proof. As an adjunct to these primary arguments, defendants argue the trial court erred when it rejected as not credible defendants' plausible hypothesis for how A.C. may have been injured.
In response, the Division urges us to uphold the trial court's ultimate judgment of abuse and neglect against defendants because the factual findings underpinning this legal conclusion are supported by a preponderance of the competent evidence presented at trial. Stated differently, the Division maintains it presented sufficient evidence to establish that A.C.: (1) suffered a serious injury; (2) caused by other than accidental means; (3) while he was under his parents' exclusive care and control. We agree with the Division and affirm.
We derive the following facts from the record developed before the Family Part.
On September 15, 2011, at approximately 3:30 a.m., defendants brought their two-month old son to the emergency room of Newark Beth Israel Medical Center. Dr. Stephen Amaefuna was the attending physician who first examined the child. He immediately noticed swelling in the upper part of the infant's left arm; diagnostic tests revealed the child had a fractured left humerus. When questioned by the medical staff as to the cause of the injury, defendants claimed the child had fallen from their bed the previous night. Dr. Amaefuna referred the matter to the Division because the parents' account of how their son fractured his left arm was inconsistent with the mechanics of the injury.
This was the first time the Division had received any complaints about this family. The Division dispatched a caseworker assigned to the Special Response Unit who initially interviewed defendants and the medical staff who treated the child and interacted with the parents. According to defendants, on the day of the accident, Donald cared for A.C. from 2:30 p.m. until approximately 8:00 p.m., when Karen arrived home. A.C. appeared fine when Karen first saw him and did not have any visible bruises. Although he had a bassinet, she laid him down for a nap on her bed because the mattress on the bassinet was too thin and hard. She left A.C. alone in her bed for a brief moment while she cooked dinner in the kitchen. Although she checked on him periodically, she could not see the bed from where she was standing in the kitchen.
At approximately nine that evening, Karen heard a "thump, " followed by the sound of A.C. crying. She admitted to the Division caseworker that she did not place pillows or other barriers to prevent A.C. from rolling off the bed; given his tender age, she assumed he was not capable of moving from the center of the bed. When she walked into the bedroom, she claimed A.C. was laying on his back on the hardwood floor. He appeared uninjured; she picked him up from the floor and the evening proceeded from this point without further incident. A.C. remained awake and alert until the family went to bed at approximately eleven o'clock that night.
Karen told the Division caseworker that she decided to sleep with her infant son that night. She shared her queen-size bed with A.C., while Donald slept on the couch in the living room. According to Karen, A.C. woke up crying at around one o'clock in the morning; he appeared in pain and refused to take the pacifier. Defendants claimed that this was the first time they noticed that his arm was swollen and hung limp by his side. Defendants emphasized to the Division caseworker that no one else had cared for A.C. at the time of the accident.
In addition to A.C., defendants have a three-year-old daughter (identified here as S.C.). In addition to their two young children, defendants shared their apartment in Newark with Donald's mother, his brother, his brother's girlfriend, and Donald's five-year old niece. Before living in Newark, defendants shared an apartment in the Township of Orange with Karen's parents; they were forced to move from this apartment after A.C. was born because the electricity service was terminated.
The Division caseworker personally inspected defendants' home and interviewed some of the family members who resided therein. The caseworker found the residence clean, well-furnished, and without any apparent safety hazards. Defendants' older daughter, three-year-old S.C, also appeared "well cared for and was appropriately dressed in a pink shirt and brown paints, with her hair braided with beads." Donald's brother told the caseworker that he was not at home at the time A.C. was injured.
The caseworker interviewed Karen again the day after the incident to determine whether Karen could have inadvertently rolled over A.C. while sharing her bed with him. According to the caseworker, Karen did not remember "rolling over him" and believed she would know if she had done so. Although the Division did not have a specific policy or directive prohibiting a parent from sharing a bed with their infant child, the caseworker informed Karen the Division was willing to provide the family with a crib.
The Division presented Dr. Elizabeth Susan Hodgson as its expert witness. She is a physician affiliated with the Children's Hospital of New Jersey at Newark Beth Israel Medical Center. Dr. Hodgson submitted a report of her interview with defendants conducted at the Hospital's emergency room the day A.C. was admitted. Defendants were in the emergency room by "the baby's bedside" when Dr. Hodgson conducted her interview. They consented to answer Dr. Hodgson's questions after they were apprised that "her medical findings would be sent to the Division . . . and that [they] could share in this consultation report through a family engagement meeting."
Defendants reaffirmed to Dr. Hodgson their account of how A.C. may have been injured. Karen in particular told Dr. Hodgson that A.C. was using his arm normally when she returned home with her daughter on the day of the incident. Defendants indicated that, as a general rule, three-year-old S.C. was not permitted unsupervised access to her baby brother because "she played rough;" they also emphasized that S.C. did not play or interact with A.C. on the day of the incident. No other adults cared for S.C. the day he was injured or were in the home at the time of the fall. Karen also told Dr. Hodgson that she did not remember rolling onto A.C. while the two shared a bed that night; she also did not think A.C. changed positions during the night. According to Karen, the first time she and Donald noticed A.C. was not using his left arm was after he woke up screaming at around one o'clock in the morning.
On September 15, 2011, the Division executed an emergent removal of both A.C. and S.C. pursuant to N.J.S.A. 9:6-8.29, and assumed temporary legal custody. The children were placed with their maternal aunt pending further order of the Family Part. On September 21, 2011, the Division received a report indicating A.C. had been readmitted to the University Medical Center complaining of pain. The foster parents (maternal aunt and her husband) had taken A.C. on a follow-up visit to the Hospital in connection with his initial treatment for the spiral fracture of his left arm. According to Division records, Dr. Hodgson decided to readmit A.C. overnight to control his pain and to determine whether "he may have another fracture in the same arm that may not have been found before."
Division records thereafter indicate that the radiologist reported that x-rays discovered A.C. had two additional "buckle fractures" on his left hand, "located on [the] 3rd and 4thmetacarpals." The radiologist who reviewed the x-rays opined that the type of fractures were usually caused by non-accidental "twist or squeezing." Given the formation of callus around the point of injury, the treating pediatrician opined that the fracture was "older than a week or about 10 days old." The Division investigator informed defendants of these additional injuries. Neither defendant could account for or explain how A.C. sustained these additional fractures.
The Division filed a formal verified complaint and order to show cause against defendants on September 19, 2011, seeking legal and physical custody of both children. The complaint alleged defendants abused or neglected A.C. by causing the injuries to his left arm and wrist. The Division relied on the medical opinion of Dr. Hodgson who rejected defendants' explanation of how A.C. suffered the injuries to his left arm and wrist as "inconsistent with [the child's] injury." In Dr. Hodgson's view, "the type of fracture that [A.C.] has would have to have been caused by pressure to the bone rather than a fall." In Dr. Hodgson's opinion, "a ...