NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
C.J.R. and C.R.A, Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF A.A.R., C.L.A. and C.A., Minors.
November 13, 2017
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Essex County, Docket No. FG-07-0117-16.
Adrienne Kalosieh, Designated Counsel, argued the cause for
appellant C.J.R. (Joseph E. Krakora, Public Defender,
attorney; Adrienne Kalosieh, on the briefs).
R. Foley, Designated Counsel, argued the cause for appellant
C.R.A. (Joseph E. Krakora, Public Defender, attorney; Eric R.
Foley, on the brief).
R. Blankstein, Deputy Attorney General, argued the cause for
respondent (Christopher S. Porrino, Attorney General,
attorney; Andrea M. Silkowitz, Assistant Attorney General, of
counsel; Alan R. Blankstein, on the brief).
H. Cassar, Designated Counsel, argued the cause for minors
(Joseph E. Krakora, Public Defender, Law Guardian, attorney;
Cory H. Cassar, on the brief).
Judges Sabatino, Ostrer and Whipple.
C.J.R. (Cindy) and C.R.A. (Charles) appeal from an April
27, 2016 judgment of guardianship terminating their parental
rights to their three biological children, A.A.R. (Anne),
C.L.A. (Claire), and C.A. (Chip). Because the trial court
erred in giving preclusive effect, in the guardianship
proceeding, to the prior finding of abuse and neglect based
upon the burden shifting provisions of Title Nine, we reverse
and remand for a new guardianship trial.
discern the following relevant facts from the record. On
February 18, 2014, Charles and Cindy brought Chip to his
primary care physician because two days earlier, they heard
and felt a popping sensation when picking up Chip for
doctor referred them to the emergency room where an X-ray
revealed one, and possibly two, fractured ribs. The emergency
room doctor reported the matter to the Division of Child
Protection & Permanency (the Division) as a precaution.
the course of the Division's investigation, Cindy denied
allowing anyone else to care for Chip, and denied having
anyone else in the home besides herself, Charles, her other
two children, and her two nieces. Charles also reported no
one but himself and Cindy cared for Chip, the other children
were not permitted to handle Chip on their own, and he had
never witnessed the other children harm Chip.
February 19, 2014, the Division consulted with Dr. Monica
Weiner, M.D., of the Metro Regional Diagnostic and Treatment
Center. Based on the initial consultation and Dr.
Weiner's review of Chip's medical records, the
Division requested Cindy bring her children to the hospital
for medical examinations. While at the hospital, Cindy again
denied knowing how Chip was injured. On February 20, 2014,
Chip underwent a skeletal survey, revealing four rib
fractures; on February 21, 2014, a head CT scan was
performed, revealing head trauma. The other children showed
no signs of abuse or neglect.
Division conducted an emergency removal of the children and
placed them in resource homes. On February 24, 2014, the
Division filed an order to show cause and verified complaint,
and the children were placed in the custody, care, and
supervision of the Division. The court granted Charles and
Cindy weekly supervised visitation.
February 25, 2014, Chip received an MRI, revealing brain
contusions and subdural hematomas. Dr. Weiner, in her report
to the Division's dated April 9, 2014, opined that the
rib fractures could not be the result of a birth injury based
on "the x-rays findings alone." Further,
[p]osterior rib fractures can be caused when the chest is
forcefully squeezed. They can also occur from a direct impact
to the ribs. Both [Cindy] and [Charles] have stated that they
were [Chip's] only caregivers and cannot provide an
explanation for the fractures. Based on the information
currently available, the fractures must be considered to be
the result of physical abuse until proven otherwise.
the brain contusions and hematomas, Dr. Weiner opined,
[p]arenchymal contusions of the brain with subdural
hemorrhages are caused by head trauma. A shaking mechanism
could cause the findings seen in [Chip], and could have also
caused the posterior rib fractures. Therefore, abusive head
trauma must be considered as a likely cause of the brain
injuries. Brain contusions are also a rare complication of
birth trauma. As the exact timing of [Chip's] brain
findings cannot be determined, birth trauma as an explanation
for the brain injuries cannot be completely ruled out.
11, 2014, the Family Part judge entered an order continuing
the custody, care, and supervision of the children with the
Division, continuing the supervised visitation with Charles
and Cindy, and requiring them to comply with services
provided by the Division. Additionally, the judge conducted a
fact-finding hearing, resulting in a finding of abuse against
Cindy and Charles.
Division offered services to Charles and Cindy, in the form
of parenting skills classes, psychological evaluations,
couples therapy, and individual therapy. Both parents
completed all recommended services. Additionally, Charles
underwent a substance abuse evaluation, which concluded he
was not in need of substance abuse treatment. On October 3,
2014, Anne, Claire, and Chip were returned to their
November 18, 2014, an ambulance brought Chip to the hospital.
Cindy reported Chip had been listless and not eating well,
and she had gone upstairs to give her daughters a bath when
Charles called to tell her Chip was "breathing funny,
" at which point she went downstairs and witnessed Chip
having a seizure. She reported that a few weeks earlier Chip
had fallen to the floor from a sitting position and hit his
head. A CT scan revealed subdural hematomas in the form of
bleeding in the frontal and right temporal area of the brain,
and an eye exam revealed "extensive multi-layered
emergency room doctor reported the incident to the Division,
indicating Chip's injuries were consistent with abuse. On
November 19, 2014, the Division executed another removal of
all children in the household, placing them with the same
Weiner prepared another report for the Division, and found,
"[Chip's] previous brain contusions and subdural
hemorrhages had resolved by July 2014 and were not the cause
of the current findings. There were no infectious, metabolic,
hematologic, or other organic medical causes found for the
intercranial and eye injuries, leaving recent trauma as the
remaining explanation." She went on to state,
[s]ubdural hemorrhages can be caused by an
acceleration-deceleration ("shaking") mechanism
with or without impact or by impact alone. The acute
appearance of the subdural hemorrhages on [Chip's] CT
scan, plus [Chip's] sudden onset of symptoms, suggests
that head trauma occurred within a few days of [Chip]
presenting to University Hospital on 11/18/14.
No accidental or other trauma was reported which would
explain the subdural and retinal hemorrhages. At this time,
no reasonable medical or other explanation has been provided
which would account for [Chip's] injuries and they must
be considered to be the result of physical abuse,
specifically abusive head trauma, until proven otherwise.
There is now evidence for two additional episodes of
unexplained head trauma leading to additional injuries. Head
injuries are the number one cause of morbidity and mortality
due to child abuse and returning [Chip] to the environment in
which these injuries occurred put him at risk for further
severe injury or death.
December 12, 2014, Chip was discharged from the hospital and
placed with his previous resource home. In March 2015, the
Division recommended continued services for Cindy and
Charles, in the form of therapy, parenting skills, and
visitation. Both parties completed all required services.
March 17, 2015, the Division sent a letter to counsel for
Charles and Cindy. The letter alerted defendants that the
Division intended to ask the court to take judicial notice of
the previous fact-finding order and "the Division is
requesting that the court make a finding of abuse against
[Charles and Cindy] by clear and convincing evidence."
If the court elects to make such a finding, the Division
informed, "it will have a preclusive effect on any
subsequent guardianship proceeding." The letter
concluded, "the Division, upon establishing its prima
facie case against [Charles] and [Cindy], intends to request
that the Court shift the burden of proof to them to prove
their non-culpability with respect to the injury sustained by
April 10, 2015, the parties appeared for a fact-finding
hearing. As the above letter warned, the Division sought a
finding by clear and convincing evidence against Cindy and
Charles for Chip's injuries. The Division presented Dr.
Weiner and the Division caseworker as witnesses.
caseworker testified about the Division investigations and
the removal of the children from defendants' care. Dr.
Weiner testified, as an expert witness, about the injuries
sustained by Chip in both February and November, and her
opinions as to the cause of the injuries. Specifically,
consistent with her medical report, she testified Chip's
injuries were likely caused by shaking, and that neither
Cindy nor Charles provided alternate explanations to account
for the injuries. The doctor testified that a fall from a
sitting position onto a hardwood floor would not be
sufficient to cause Chip's injuries. At the close of this
hearing, the judge found,
the case law is clear . . . the Division has made a prima
facie case where the burden shifting would come into play in
that there were two caretakers, the mother and the father
that apparently were admitted to the caseworker to be the
primary caretakers of the child. And, therefore, the burden
shifting would apply to this case.
hearing continued on April 30, 2015, and Cindy testified
about the trip to the hospital with Chip in November, what
the doctors told her about his injuries, and about the fall
in which he was sitting up and hit his head on the floor.
There were no other accidents where Chip hurt his head,
neither she nor Charles had ever used corporal punishment on
Chip, and she had never observed Claire, Anne, or her nieces
roughhousing or harming Chip. Furthermore, the only times
another person was Chip's caretaker during the relevant
time period,  was one night in ...