Opinion
DOCKET NO. A-2870-13T1 DOCKET NO. A-2872-13T1
02-04-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.L. and R.C., Defendants-Appellants. IN THE MATTER OF I.C. and N.L., Minors.
Janet A. Allegro, Designated Counsel, argued the cause for appellant M.L. (Joseph E. Krakora, Public Defender, attorney; Ms. Allegro, on the brief). Christine Olexa Saginor, Designated Counsel, argued the cause for appellant R.C. (Joseph E. Krakora, Public Defender, attorney; Ms. Saginor, on the brief). Thomas Ercolano, III, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Ercolano, on the brief). Karen A. Lodeserto, Designated Counsel, argued the cause for minors I.C. and N.L. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Lodeserto, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John and Guadagno. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-171-13. Janet A. Allegro, Designated Counsel, argued the cause for appellant M.L. (Joseph E. Krakora, Public Defender, attorney; Ms. Allegro, on the brief). Christine Olexa Saginor, Designated Counsel, argued the cause for appellant R.C. (Joseph E. Krakora, Public Defender, attorney; Ms. Saginor, on the brief). Thomas Ercolano, III, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Ercolano, on the brief). Karen A. Lodeserto, Designated Counsel, argued the cause for minors I.C. and N.L. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Lodeserto, on the brief). PER CURIAM
In these consolidated matters, M.L. and R.C. appeal from an order entered by the Family Part on May 28, 2013, finding that they abused or neglected their child, I.C. We affirm.
I.
On March 24, 2012, M.L. gave birth to I.C. at St. Barnabas Medical Center. I.C. was born prematurely, at twenty-four weeks' gestation. Ultrasound tests indicated that the child had intraventricular hemorrhages in the center of the brain. She also was diagnosed with retinopathy of prematurity (ROP). I.C. remained at St. Barnabas until August 31, 2012. Upon her release she appeared well and active.
On September 7, 2012, M.L. brought the child to Clara Maas Hospital due to the child's decreased activity and appetite, amongst other concerns. I.C. was transferred to Newark Beth Israel Hospital (NBI), where she remained until September 19, 2012. During her stay at NBI, I.C. had staring spells or "recurrent partial seizures." I.C. was discharged with a diagnosis of "partially treated meningitis" and a notably "improved" condition. The child was examined by her regular pediatrician on October 2, 2012. Except for an eye hemorrhage, her physical exam was normal.
On October 7, 2012, M.L. brought I.C. to the emergency department at NBI because the child was vomiting, feeding poorly and having seizures. The admission report noted that I.C. had a small hemorrhage in her right eye. Multiple imaging studies were performed, which revealed findings that had not been present during I.C.'s prior admission to NBI. Those findings included acute and chronic brain hemorrhages. The child's eyes were examined on October 8, 2012, and they showed bilateral retinal hemorrhages.
The hospital's medical staff contacted the Division of Child Protection and Permanency (Division) and reported that I.C.'s condition indicated possible "inflicted trauma." A Division case worker interviewed M.L. and R.C. They both indicated that the child had been fine until sometime during the morning of October 7, 2012. They offered no explanation for the child's injuries.
On October 10, 2012, the Division determined that I.C.'s injuries were highly suggestive of physical abuse. Because M.L. and R.C. had been the child's sole caretakers at the time the abuse apparently occurred, and they were unable to explain how the child sustained the injuries, the Division effected an emergent removal of I.C. and N.L., M.L.'s other child, who was thirteen years old at the time.
D.M. is N.L.'s biological father. --------
On October 12, 2012, the Division filed a verified complaint and order to show cause in the Family Part seeking custody, care and supervision of I.C. and N.L. The judge entered an order that day, finding that removal of the children was required due to an imminent danger of harm.
The order noted that I.C. had been admitted to a hospital with certain injuries, and M.L. and R.C. had not provided an explanation for her condition. M.L. and R.C. were required to show why the children should not remain in the Division's custody, care and supervision. The child remained at NBI until October 23, 2013. She was then placed in foster care.
On November 9, 2012, the return date of the order to show cause, the judge determined that the Division would have legal and physical custody of I.C., and D.M. would have legal and physical custody of N.L. Thereafter, the judge conducted periodic compliance review hearings. In April and May 2013, the judge held a fact-finding hearing to determine whether I.C. was an abused or neglected child, and if so, whether M.L. and R.C. abused or neglected her.
II.
At the hearing, the Division presented testimony from I.C.'s treating physician, Dr. Monica Weiner, who was qualified to testify as an expert in the field of child abuse pediatrics. In her report, Dr. Weiner reviewed I.C.'s medical history and the results of the various diagnostic tests performed on I.C. She stated that she had personally examined I.C. and interviewed M.L. and R.C.
Dr. Weiner noted that multiple diagnostic tests had been performed after I.C.'s admission to NBI on October 7, 2012. According to Dr. Weiner, the results of those tests showed that the child had chronic and acute brain hemorrhages, multiple retinal hemorrhages, rib fractures, a fracture of the distal right femur, and a fracture of the distal right tibia. Dr. Weiner opined that I.C.'s injuries were suggestive of physical abuse, which occurred minutes or hours before the child's symptoms began on October 7, 2012.
The Division also presented testimony from its case worker. She testified that she had been involved in this case from October 9, 2012, through December 5, 2012. She investigated the report of the child's physical abuse. During her investigation, the worker spoke with M.L. and R.C. They told her that M.L. was the primary caretaker for I.C., and R.C. would watch the child when M.L. went to work.
The Law Guardian called Dr. Maria McColgan as a witness, and she also was qualified to testify as an expert in child abuse pediatrics. In her report, Dr. McColgan reviewed I.C.'s medical history, including the results of the imaging studies performed after the child's admission to NBI on October 7, 2012. According to Dr. McColgan, those tests revealed injuries that had not been present on the imaging studies performed on I.C. during her hospital stay in September 2012.
The new injuries included chronic and acute brain hemorrhages, retinal hemorrhages, rib fractures, a fracture of the distal right femur, and a fracture of the distal right tibia. Dr. McColgan concluded that physical abuse was the most likely diagnosis for the injuries. She opined that the abuse would have occurred after I.C.'s September 2012 hospital stay, and before her admission to NBI on October 7, 2012.
M.L. and R.C. presented testimony from Dr. Jack Levenbrown, who was qualified as an expert in pediatrics, radiology and pediatric radiology. In his report, Dr. Levenbrown stated that there was an "extremely low probability" that I.C.'s injuries were due to physical abuse. He wrote that the child's injuries were likely due to her premature birth, and were worsened by the child's "intercurrent illness and severe dehydration" just prior to her hospitalization on October 7, 2012.
Based on his review of the X-rays and skeletal surveys performed after I.C.'s October 7th admission to the hospital, Dr. Levenbrown opined the child's femur had not been broken and there was no indication of a tibia fracture. He also testified that although the studies showed fractures to the ribs, these were only hairline fractures. He noted that, due to her premature birth, I.C. probably had weakened bones which fractured easily.
M.L. and R.C. also presented testimony from Dr. Jack Daniel, who was qualified as an expert in forensic pathology. In his report, Dr. Daniel stated that none of the child's reported injuries — hypoxic brain injury, chronic and acute brain hemorrhages, retinal hemorrhages, rib fractures, and other bone fractures — were "specific for, [] or diagnostic of physical abuse."
M.L. and R.C. did not testify at the hearing.
III.
On May 28, 2013, the judge placed an oral decision on the record. The judge found that Dr. Weiner was a credible witness, noting that she was a highly-trained physician and had been responsive and thorough in her answers to questions. The judge stated that Dr. Weiner had explained the "somewhat complicated medical processes" in a straightforward and understandable manner. The judge pointed out that Dr. Weiner was the only testifying expert who actually examined I.C.
In addition, the judge found Dr. McColgan to be credible. The judge stated that the doctor "was extremely impressive with her command of her chosen field of study." According to the judge, Dr. McColgan was a careful listener, and she had explained the child's hemorrhages in a "graphic, vivid and [] entirely understandable manner."
The judge found, however, that Dr. Levenbrown was not a credible witness, although he was "highly educated and highly credentialed." The judge noted that Dr. Levenbrown acknowledged that I.C.'s ribs had been broken, as shown in the studies made after her admission to NBI in October, but he attempted to downplay or minimize those injuries. The judge also noted that the doctor could not opine how the rib fractures had occurred.
The judge observed that Dr. Levenbrown's report consisted of one and one-half pages. In his report, the doctor concluded that the child's "constellation" of injuries was likely due to her premature birth. The judge found that the doctor had not provided a sufficient explanation for that conclusion, which bordered on a net opinion.
The judge also refused to credit Dr. Daniel's testimony. The judge noted that Dr. Daniel was not even sure I.C. had meningitis in September 2012, and did not address the severity of that illness. In addition, the judge stated that Dr. Daniel reached his conclusion that the retinal hemorrhages were due to an inflammatory process, but he had not reviewed any records of the pattern of those hemorrhages. The doctor also had not reviewed the child's October 8, 2012 ophthalmological diagram. Thus, the judge found that Dr. Daniel's review of the records was incomplete.
The judge concluded that the Division had established by a preponderance of the evidence that I.C. was an abused or neglected child under N.J.S.A. 9:6-8.21(c), and that both M.L. and R.C. had abused or neglected the child. The judge stated:
[I.C.] was admitted to Newark Beth Israel Hospital on October 7, 2012, with numerous physical injuries including acute subdural hematomas, bilateral retinal hemorrhages and fractured ribs. [M.L.] and [R.C.] were [I.C.'s] sole caretakers on October 6,
2012[,] and October 7, 2012. In addition, neither parent provided an explanation as to any accidental cause of [I.C.'s] injuries and both parents indicated [I.C.] was well prior to October 6, 2012.
The judge found that the child's injuries were present on October 6th and 7th, and noted that neither parent had been able to explain how the child had sustained the injuries. The judge memorialized his findings in an order dated May 28, 2013.
IV.
In April 2013, N.L. was reunited with M.L. In June 2013, I.C. was returned to M.L., after M.L. had complied with all services and the court-appointed psychologist recommended reunification. The litigation continued, however, for the care and supervision of the children.
On June 25, 2013, the court ordered that M.L. would have legal and physical custody of I.C. The court also ordered that M.L. and D.M. would share legal custody of N.L., although N.L. would continue to reside with M.L.
On January 23, 2014, the court terminated the litigation, but permitted the Law Guardian to reopen the case within forty-five days if necessary. The Law Guardian did not reopen the matter. M.L. and R.C. thereafter filed separate appeals.
V.
In her appeal, M.L. raises the following arguments: (1) the Family Part judge erred by requiring M.L. and R.C. to prove they did not abuse I.C.; (2) the judge erroneously found that M.L. abused or neglected I.C.; (3) the judge's evaluation of the expert testimony was fundamentally flawed; (4) the history of I.C.'s treatment and hospitalizations proved that M.L. was a devoted mother who did not abuse or neglect the child; (5) the judge erred by allowing Dr. Weiner and Dr. McColgan to testify outside their areas of expertise; and (6) Dr. Weiner and Dr. McColgan were not qualified to render certain opinions, which had been obtained from non-testifying medical professionals.
In his appeal, R.C. argues: (1) the judge's finding that I.C. was an abused or neglected child was not supported by substantial credible evidence; (2) the Division failed to prove its claim of abuse or neglect by a preponderance of the evidence; (3) Dr. McColgan's testimony was not credible; (4) the judge improperly allowed the Division to present statements by non-testifying witnesses who were not subject to cross-examination; (5) the judge improperly shifted the burden of proof to R.C.; (6) the judge failed to give proper weight to Dr. Levenbrown's and Dr. Daniel's testimony; and (7) the judge erred by failing to make particularized findings concerning R.C.'s culpability.
VI.
"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). The findings of the trial court are binding on appeal if supported by "adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Moreover, deference to the Family Part's fact-finding is especially appropriate in view of that court's "special jurisdiction and expertise." Id. at 413.
"Abuse and neglect cases are generally fact sensitive. Each case requires careful, individual scrutiny." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). N.J.S.A 9:6-8.21(c) provides in pertinent part that an "[a]bused or neglected child" is a child less than eighteen years of age, whose parent or guardian:
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 . . . .
[Ibid.]
Furthermore, the phrase "[p]arent or guardian" is defined as "any natural parent, adoptive parent, or any person, who has assumed responsibility for the care, custody, or control of a child." N.J.S.A. 9:6-8.21(a). The court's determination that a child was abused or neglected "must be based on a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1).
Here, M.L. and R.C. argue that the judge's finding that I.C. was an abused or neglected child under N.J.S.A. 9:6-8.21(c)(1) is not supported by sufficient credible evidence. We disagree. The evidence presented at the fact-finding hearing supports the judge's determination that I.C. was admitted to NBI on October 7, 2012, with a range of physical injuries that had been inflicted by other than accidental means. The judge found that I.C.'s injuries were due to physical abuse, not underlying medical conditions.
The judge's findings are supported by Dr. Weiner's testimony. As noted, Dr. Weiner was the only testifying expert who personally examined I.C. after her October 7, 2012 admission to NBI. As Dr. Weiner indicated, tests performed at NBI showed that I.C. had chronic and acute brain hemorrhages, extensive retinal hemorrhages in both eyes, rib fractures, a fractured right distal femur, and a fractured right tibia.
Dr. Weiner testified that there was no adequate explanation for the chronic brain hemorrhages and no medical explanation for the child's acute brain hemorrhages, and concluded that their cause was inflicted head trauma. She ruled out meningitis as the cause of the child's retinal hemorrhaging. She opined that inflicted head trauma was the cause of the child's brain and retinal hemorrhages. In addition, the doctor opined that the child's fractures were caused by inflicted trauma.
Dr. Weiner concluded that I.C.'s injuries had been caused when she was held by the chest and forcibly shaken. She said this also would account for the child's seizures, vomiting and lethargy. The doctor further concluded that the injuries had occurred shortly before the child's symptoms began, noting that M.L. and R.C. had reported the child had been well until the day on which she was admitted to NBI.
The judge's findings also are supported by Dr. McColgan's testimony. Dr. McColgan testified that the injuries found upon I.C.'s October 7, 2012 admission to NBI were inflicted injuries. The doctor noted that, when I.C. was discharged from the hospital on August 31, 2012, she did not have any bleeding or bone disorders, and there was no indication that the child had suffered any accidental trauma. Dr. McColgan opined that there were no medical conditions that would explain the child's many injuries that were identified after her admission to NBI on October 7, 2012. She stated that the child's retinal hemorrhages "would require a significant amount of force outside of the normal routine care of an infant."
M.L. and R.C. argue that the judge erred by failing to give proper weight to the testimony of Dr. Levenbrown and Dr. Daniel. They contend that these expert witnesses gave the court plausible, credible testimony which explained the child's injuries and supported their contention that the injuries were not the result of physical abuse.
More specifically, M.L. argues that there is sufficient support in the record for Dr. Levenbrown's opinion that there was an "extremely low probability" that the child's "constellation" of injuries was due to inflicted abuse, and was likely due to her premature birth and related health problems. R.C. argues that Dr. Daniel credibly testified that the child's injuries were not due to inflicted abuse. According to R.C., Dr. Daniel provided credible medical explanations for the hemorrhages and fractures.
R.C. further argues that the judge erred by crediting the testimony of Dr. Weiner and Dr. McColgan. Among other things, R.C. contends that the credibility of both witnesses was compromised because they make their livelihoods by diagnosing child abuse and neglect. He contends that both Dr. Weiner and Dr. McColgan rendered opinions based on an incomplete review of the medical records. He notes that Dr. McColgan never personally examined the child.
We are convinced, however, that the judge's findings as to the credibility of the expert witnesses are amply supported by the record. As noted, the judge detailed the reasons why he found the testimony of Dr. Weiner and Dr. McColgan to be credible, and the reasons why he found Dr. Levenbrown's and Dr. Daniel's testimony to be unpersuasive. The judge based his credibility findings on a careful review and analysis of the testimony, and his observations of the witnesses.
An appellate court should defer to the factual findings of a trial judge when, as in this case, those findings are "'substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). Based on our review of the record, we see no reason to second guess the judge's credibility findings.
VII.
Next, M.L. and R.C. argue that although Dr. Weiner and Dr. McColgan have expertise in the field of child abuse pediatrics, they were not qualified to offer opinions in the fields of radiology, pediatric radiology, ophthalmology, pathology or neurology. M.L. and R.C. further argue that the judge erred by permitting Dr. Weiner and Dr. McColgan to offer opinions that were based on findings and conclusions of other medical professionals.
We review the trial court's evidentiary rulings for abuse of discretion. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011). Based on our review of the record, we find no error that would warrant reversal of the trial court's judgment.
N.J.R.E. 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Thus, expert testimony may be admitted when (1) the intended testimony concerns a subject matter that is beyond the ken of the average juror; (2) the expert's testimony is sufficiently reliable; and (3) the witness has sufficient expertise to offer the testimony. DeHanes v. Rothman, 158 N.J. 90, 100 (1999).
We reject M.L.'s and R.C.'s contentions that Dr. Weiner and Dr. McColgan were not qualified to testify as experts in this matter. Both were qualified by their training, education and experience to testify in the field of child abuse pediatrics, which involves the review of medical records and the results of diagnostic studies. Neither witness testified to any matter beyond the scope of their education, training or experience.
In addition, M.L. and R.C. argue that the judge erroneously permitted Dr. Weiner and Dr. McColgan to present opinions by other medical professionals, who were not presented as witnesses and subject to cross-examination. M.L. argues that the judge compounded the error by admitting Dr. Weiner's and Dr. McColgan's expert reports, in which they set forth the medical findings of non-testifying witnesses.
More specifically, M.L. asserts that the judge erroneously permitted Dr. Weiner to testify about a medical procedure that was performed on I.C.'s tibia bone without incident; eye examinations performed during I.C.'s earlier hospital admission; the results of a brain MRI performed on September 10, 2012; and the results of a head scan performed on October 8, 2012. M.L. contends this testimony improperly allowed the Division to introduce the findings of medical professionals who did not testify.
She further argues that the judge erroneously permitted Dr. McColgan to testify about the results of certain imaging studies and scans that had been performed by ophthalmologists and radiologists who were not called as witnesses. She contends that Dr. McColgan should not have been permitted to testify that I.C.'s ROP had resolved by the time the child was discharged from the hospital on August 31, 2012, and that I.C.'s retinal hemorrhages extended to the periphery of I.C.'s eyes in October 2012. She maintains this testimony also reflected the findings of non-testifying witnesses.
N.J.R.E. 703 provides that if the facts or data upon which an expert has based his or her opinion are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." Here, the facts or data that Dr. Weiner and Dr. McColgan relied upon in formulating their opinions are of a type that child abuse pediatricians typically rely upon. Such facts and data include information set forth in medical records, as well as the results of imaging studies and other diagnostic tests.
We have held, however, that the admissibility of an expert medical opinion contained in a report that is admissible as a business record depends upon whether the opinion reflects "the exercise of subjective judgment rather than a straightforward, simple diagnosis based upon objective criteria or one upon which reasonable professionals could not differ." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 174-75 (App. Div. 2012) (citations omitted). Admissibility depends upon the complexity of the analysis involved in arriving at the opinion. Ibid.
We note initially that, in their reports, all of the experts relied upon I.C.'s medical records, including the results of the diagnostic tests and imaging studies. Many of the statements in the records, such as the statement that a physician performed a procedure on I.C.'s tibia without incident, are statements of fact rather than medical diagnoses. Moreover, M.L. and R.C. have not shown that any of the findings made after the medical tests and imaging studies were the result of any complex analysis.
Indeed, at the hearing, Dr. Levenbrown testified about the chest X-rays and skeletal survey performed on October 8, 2012; a so-called "shunt series" performed on October 13, 2012; and a skeletal survey performed on October 22, 2012. Dr. Levenbrown stated that these studies only showed "minimal" rib fractures. Based on his review of the films, the doctor opined that there were no fractures of the femur or tibia. Although Dr. Levenbrown interpreted the films differently than the radiologist who performed the tests, the doctor never stated that reading and interpreting the films involved any complex analysis.
Moreover, at the hearing, M.L. and R.C. did not question the findings that I.C. had ROP at birth, and that it had resolved by the time of her discharge from the hospital on August 31, 2012. They also did not challenge the fact that an October 8, 2012 examination of the child showed bilateral intra-retinal and pre-retinal hemorrhages which extended to the periphery of the child's eyes. Furthermore, M.L. and R.C. never established that any of these findings were the result of complex medical analysis.
Thus, with the exception of Dr. Levenbrown's interpretations of the X-rays and skeletal studies performed after the child's admission to NBI on October 7, 2012, M.L. and R.C. did not dispute the core facts set forth in I.C.'s medical records, including the results of the various tests and imaging studies. Rather, their defense was that the child's injuries were not the result of any physical abuse, but were instead due to medical conditions, which stemmed from her premature birth.
We therefore conclude that the judge did not err by allowing Dr. Weiner and Dr. McColgan to testify as to the child's medical history, and to base their opinions upon findings by the radiologists and other medical professionals set forth in those records. As noted previously, those findings are of a type that child abuse pediatricians typically rely upon in formulating opinions as to whether a child was physically abused.
VIII.
In addition, M.L. and R.C. argue that the judge erred by shifting the burden of proof to them as to the identity of the person or persons who physically abused I.C. They argue that the judge erroneously assumed that they were the only individuals who had access to the child when the injuries were sustained, and that there were no other reasonable possibilities for her injuries.
It is well established that after the Division has presented a prima facie case of child abuse or neglect, the child is unable to identify the abuser, and a defined number of persons had access to the child when the abuse occurred, the burden shifts to the defendants to establish their non-culpability for the abuse. Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 468-69 (App. Div. 2008) (citing In re D.T., 229 N.J. Super. 509, 517 (App. Div. 1988)).
If the child was "exposed to a number of unidentified individuals over a period of time," and the timing of the injuries is uncertain, the burden still shifts to the defendants to come forward with evidence to rebut the presumption of abuse or neglect. Id. at 470. Under these circumstances, however, the burden of proof of identifying the person who abused or neglected the child remains with the Division. Ibid.
Here, the judge found that Dr. Weiner had credibly testified that the injuries were inflicted on October 6 or 7, 2012. The judge further found, based on M.L.'s and R.C.'s statements to Dr. Weiner and the Division's case worker, that M.L. and R.C. were the child's caretakers at that time. The judge concluded that, in light of this evidence, the burden shifted to M.L. and R.C. to establish their non-culpability for the abuse. Since they failed to do so, the judge found that they both abused or neglected the child.
We are convinced that there is sufficient credible evidence for the judge's findings, and his analysis is consistent with the burden-shifting approach set forth in D.T., supra, 229 N.J. Super. at 517. See also N.J. Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 181 (App. Div. 1994) (upholding finding of abuse and neglect where persons alleged to have abused a child were required to prove their non-culpability after Division presented prima facie case of abuse).
M.L. and R.C. contend, however, that the judge ignored the possibility that other persons may have caused the injuries. M.L. asserts the child's tibia fracture could have been caused by hospital personnel after her admission to NBI. She argues that I.C.'s injuries could have been sustained when she was examined by a pediatrician on October 2, 2012; when the child's maternal grandmother cared for her on or about the Sunday prior to her admission to NBI; or when the child attended a birthday party on October 6, 2012, where other people could have held or handled her. There was, however, no credible evidence indicating that I.C. was injured at these times.
As Dr. Weiner testified, I.C. was injured minutes or hours before she was taken to the hospital on October 7th, not after. The evidence showed that the child was in the care of M.L. and R.C. when she suffered her injuries. Thus, the judge properly determined that the burden of proof shifted to M.L. and R.C. to establish their non-culpability for the abuse. M.L. and R.C. did not carry that burden, and the judge correctly found, based on the evidence he found credible, that they abused or neglected I.C.
We have considered the other arguments raised by M.L. and R.C. and find that they are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed in A-2870-13 and A-2872-13. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION