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New Jersey Division of Child Protection & Permanency v. C.J.R.

Superior Court of New Jersey, Appellate Division

December 11, 2017

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.

          Argued November 13, 2017

         On 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).

          Eric R. Foley, Designated Counsel, argued the cause for appellant C.R.A. (Joseph E. Krakora, Public Defender, attorney; Eric R. Foley, on the brief).

          Alan 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).

          Cory H. Cassar, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Cory H. Cassar, on the brief).

          Before Judges Sabatino, Ostrer and Whipple.


          WHIPPLE, J.A.D.

         Defendants C.J.R. (Cindy[1]) 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.


         We 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 feeding.

         The 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.

         During 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.

         On 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.

         The 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.

         On 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.

         Regarding 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.

         On July 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.

         The 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 parents' custody.

         On 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 retinal hemorrhages."

         The 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 resource families.

         Dr. 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.

         On 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.

         On 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 [Chip]."

         On 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.

         The 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[2] 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.

         The 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, [3] was one night in ...

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