Opinion
DOCKET NO. A-5044-13T1
05-11-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. N.D., Defendant-Appellant. IN THE MATTER OF I.D., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Cecilia M.E. Lindenfelser, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Karen Ann Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Sumners. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-159-14. Joseph E. Krakora, Public Defender, attorney for appellant (Cecilia M.E. Lindenfelser, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Karen Ann Lodeserto, Designated Counsel, on the brief). PER CURIAM
Defendant N.D. (Nadine) appeals from a May 16, 2014 Family Part fact-finding order, determining that she abused or neglected her three-year-old son, I.D. (Ian). Having considered Nadine's arguments in light of the record and applicable legal standards, we affirm.
To maintain confidentiality, we use pseudonyms for those family members involved. We mean no disrespect by our use of first names, but do so for ease of reference.
I.
At the fact-finding hearing on May 16, 2014, the Division of Child Protection and Permanency (the Division) presented testimony from its expert, Dr. Steven Kairys, and Division intake worker, Daniel Transue. While Nadine attended the hearing, she did not testify nor present any witnesses. The following pertinent evidence was presented.
The Division became involved with the family on December 11, 2013, when it received a referral from Monmouth Medical Center reporting that Ian had been transferred there from Kimball Medical Center, where he was being treated the day before, due to injuries he had sustained. After being examined, it was determined that Ian had a bruise to his chest, about one- and-one-half centimeters round; two separate linear line bruises to his buttock; five bruises to his forehead; a scar under his right eye; bloody patches on his scalp; a cracked and bloody lip; and a bloody nose.
Following the referral, Transue conferred with Dr. Degroot, the treating physician at Monmouth Medical Center. In his investigation summary, Transue indicated that Dr. Degroot ordered a gastrointestinal series, a skeletal exam, and a blood scan. Dr. Degroot explained that prior to being transferred to Monmouth Medical Center, Ian was being treated at Kimball Medical Center for a homological syndrome; however, he did not suspect there to be an issue with Ian's blood work, but indicated his belief that Ian was abused. He further explained that Ian's liver enzymes were elevated, which he expressed could be due to trauma or a virus.
The record does not reflect Dr. Degroot's first name. Moreover, two spellings of his name appear in the record: Dr. Degroot, the spelling we rely on, and Dr. Degroote.
Dr. Degroot also informed Transue that Nadine was uncertain how the injuries occurred stating that "they just appeared." Nadine reported that there had been no recent trauma or falls, though Kimball Medical Center documented that Ian fell the week before. After the test results came back, Dr. Degroot explained to Transue that all medical explanations for Ian's injuries had been ruled out, and reiterated his concern that the injuries were due to abuse. Transue informed him that Dr. Kairys would be reviewing Ian's medical chart for a second opinion.
On the same date, Transue conferred with a social worker from Monmouth Medical Center who also advised him that Nadine did not have any indication as to where Ian's bruises came from. She observed Nadine to be attentive with Ian, and that Ian did not appear to be fearful of Nadine. She expressed to Transue, however, that Ian looked "beat up," with the bruises and a scar on his right eye appearing to be at different stages of healing. She also informed Transue that Ian was generally at daycare from 7:30 a.m. to 4:30 p.m., but that he was recently watched by Nadine's boyfriend, Bart, as there was a snow day, and the daycare was closed.
Transue also attempted to interview Ian that day, but Ian was unable to focus during the interview. Nonetheless, Transue was able to photograph Ian's injuries and bruises. Transue was able to interview Nadine. Nadine reported that she, Bart, the paternal grandparents, and her roommate, all had contact with Ian in the past week. She and Ian had stayed with his paternal grandparents from December 4 to December 7. On December 9, while she worked, Bart had watched Ian because the daycare Ian attended was closed due to a snow day. She claimed to have first noticed the bruises on this date. The next day, after Ian had a fever and was lethargic, having slept for fourteen hours, she brought him to Kimball Medical Center.
Nadine claimed that she could not understand where the bruises came from "as no one hit him or hurt him." She was Ian's primary care provider. She did not suspect that the daycare or anyone in her family would do anything to harm Ian. Nadine also indicated that Ian's father, Irwin, had very limited contact with Ian, as he was currently stationed in Spain on military deployment, and they were separated since the summer and in the process of obtaining a divorce.
Transue explained to Nadine that all the tests had been completed and medical explanations for her son's injuries had been ruled out. He also advised her that Detective Matthews from the Ocean County Prosecutor's Office would be reaching out to her to discuss the case further.
The record does not reflect Detective Matthews' first name.
On December 12, Matthews reported that he contacted the daycare and was advised that they never noticed any suspicious bruising on the child nor had they ever had any concerns for abuse. The next day, Transue met with the paternal grandfather and the paternal step-grandmother. They both were surprised that Nadine had left Ian alone with Bart since they believed he was "not a good person."
Transue also spoke with Irwin, who expressed concern for his child and inquired as to the cause of Ian's injuries. When asked if he could come home from Spain to take care of Ian, he indicated that he needed to discuss it with his commanding officer. He also requested that his mother, who had power of attorney over his affairs, take care of Ian in the meantime, but was advised by Transue that this request would have to be discussed with the court.
On December 17, the Division filed a verified complaint and order to show cause seeking care and custody of Ian. After a compliance review hearing on February 3, 2014, the paternal grandmother was awarded temporary legal and physical custody of Ian, with care and supervision remaining with the Division. On March 26, 2014, following a second hearing, legal and physical custody was transferred to Irwin, with care and supervision remaining with the Division.
The Division named Irwin as a defendant for dispositional purposes only.
In May 2014, Nadine provided Transue with a different version of events. She indicated that on December 9, she had noticed Ian scratching at his "butt area" and that he appeared lethargic. She reported that she received a phone call on this day from the daycare to inform her that he had been sleeping all day, which was unlike him. The next day — not on December 9 as she originally had indicated — Ian stayed home with Bart because the daycare was closed due to a snow day. Bart advised her that Ian was still lethargic. Thereafter, she took Ian to the emergency room at Kimball Medical Center.
Nadine also expressed her belief to Transue that the doctors had misdiagnosed Ian's bruises and that they were not due to abuse, but to a virus. However, she confirmed that she and Bart had contact with Ian at the time she noticed the bruises. Nadine further indicated that she was no longer with Bart as the "stress over what was going on with her son ha[d] caused their relationship to diminish and drift apart." Partly based on this last conversation with Nadine, Transue concluded in his investigation and testified, that Nadine and Bart were the only two individuals who had contact with Ian at the time of the injuries, with Nadine serving as the primary care provider.
Dr. Kairys, board certified in child abuse, and Chairman of Pediatrics at Jersey Shore University Medical Center and Director of its Child Protection Center, testified that he reviewed Ian's medical chart and the pictures taken of his injuries to determine whether Ian's injuries were accidental or inflicted. Dr. Kairys stated that, though the pictures were "kind of fuzzy," he could still observe the redness and bruising that were noted on the charts. And in the instances where he could not see the bruising, he indicated that the "description in the chart [was] much, much more descriptive and more revealing than the picture."
Dr. Kairys concluded that several of Ian's bruises were "highly concerning for child physical abuse." In particular, he found the bruises to Ian's ear and buttock to be concerning because he felt that the linear buttock bruise was consistent with a bruise caused by a "belt," "wide strap," or some object that would cause that kind of linear mark, which he testified "usually [was] a sign of a more inflicted than accidental injury." With regard to the ear bruise, Dr. Kairys opined that it was in a very "unusual" location for accidental injury, and "much more specific for someone, . . . pinching or squeezing or pulling with a lot of force causing bruising to the ear." Dr. Kairys ruled out this injury being caused by a playmate of Ian's, unless it was a "large playmate," one comparable to a "teenager." However, he testified that there was no evidence that Ian was hit by a playmate larger than him. Dr. Kairys did not have an opinion as to whether the rest of the bruises were accidental or inflicted.
At the conclusion of the hearing, the judge rendered an oral decision. Finding Dr. Kairys' and Transue's testimony credible and the photographs submitted into evidence illuminating, the judge found that Ian's injuries were not accidental:
[T]here's no question that . . . something occurred to this child that produced bruises in the context of this matter. And[,] Dr. Kairys, although he could not definitively state [that] all of them were caused by means that were other than accidental, he definitely at least referred to the bruising on the ear and the buttocks as caused by means other than accidental and were inflicted in this particular case for the reasons he stated. One being they're in places that children don't normally receive injuries of this particular type just by playing or anything else; two, the amount of force with regard to the ear that would've been necessary to produce such a result on the child.
Additionally, the judge noted that Nadine never provided any explanation for how the injuries occurred, and further emphasized that only Nadine and Bart, who refused to appear before the court or speak to the Division, had access to Ian during the time the injuries occurred. As such, the judge reasoned:
It is clear: one, that there's no constitutional issue when the burden shifts to a defendant to show non-culpability when a child presents with unexplained in juries[,] which is what we have here, and that's in [New Jersey Division of Youth &
Family Services v.] S.S., 275 N.J. Super.[] 173 [(App. Div. 1994)].
Now, while they do have that burden shifting, the burden of going forward with evidence is posed to the defendant, the burden of persuasion remains clear with the Division[,] which the court finds it has met with Dr. Kairys' testimony and report in this matter to be sure the mother has had ample opportunity to explain exactly what happened to the child, and here, she has chosen not to engage. And, in fact, she initially sa[id] that the child supposedly . . . fell, but that was discounted by Dr. Kairys. She did state that the unknown boyfriend watched the child because of a snow day. She didn't mention anything about the daycare abusing the child.
The court then explained:
Furthermore, [Nadine], at all times, has consistently maintained [that] she didn't abuse the child, and that she didn't know exactly what happened except [that] he was scratching a lot, and she noticed he was scratching at his butt area. She brought him home, and . . . he slept well, essentially, not giving any explanation. And she was asked if she had any other explanations on how the bruises could've been caused, and she reported that other than the virus, she did not know and that she nor anyone associated with her caused the bruises. Dr. Kairys ruled out the fact that . . . a virus could've caused the[se] types of injuries. They also did a test to decide whether there was any type of blood injury [ ] or blood disease that the child was suffering that would've caused such bruising and ruled that out as well.
The judge subsequently held:
Therefore, . . . the [c]ourt . . . find[s] by the preponderance of evidence in this case that there was an act or omission by the mother that amounts to abuse or neglect under Title 9, and either that it was inflicted or she failed to protect the child in that regard. And as such, the jurisdiction of the [c]ourt is established.Following this oral decision, the court issued an order finding that Nadine and Bart both abused or neglected Ian. As no findings of abuse or neglect were made against Irwin, custody of Ian remained with Irwin. This appeal followed.
II.
On appeal, Nadine argues that the trial court's finding is not supported by a preponderance of competent, material and relevant evidence. She claims that the court erred by applying the conditional res ipsa loquitor doctrine which required her to prove that she did not abuse or neglect Ian. Although not raised below, she also contends that Dr. Kairys' conclusion that Ian was abused was a net opinion based upon conjecture and not scientific evidence, and should have been excluded. Opposition was submitted by the Division and the Law Guardian.
We begin with a review of the applicable legal principles that guide our analysis. Appellate courts "have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010). "[A]ppellate courts 'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
"There is an exception to th[e] general rule of deference: Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., supra, 269 N.J. Super. 172, 188-89 (App. Div. 1993)). And, when the issue presented turns on a legal conclusion derived from the Family Part's fact-finding, "we are not required to defer." N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011). Such is the case here, where the defendant contends that the trial judge applied the wrong legal doctrine in finding abuse and neglect.
"Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). "Abuse and neglect cases are generally fact sensitive. Each case requires careful, individual scrutiny." Id. at 33. 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 . . . .At a fact-finding hearing, the Division need only show that it was more likely than not that the defendant abused or neglected the child. See N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010) (holding that "[a] finding of abuse or neglect must be based on a preponderance of the evidence"). N.J.S.A. 9:6-8.46(a)(2) provides that "proof of injuries sustained by a child . . . of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child . . . is an abused or neglected child[.]" Therefore, "[t]he evidence must demonstrate that the offered hypothesis is a rational inference, that it permits the trier[] of fact to arrive at a conclusion grounded in a preponderance of probabilities according to common experience." In re Estate of Reininger, 388 N.J. Super. 289, 298 (Ch. Div. 2006) (citing Joseph v. Passaic Hosp. Ass'n, 26 N.J. 557, 574-75 (1958)). In this case, where there were no direct proofs against Nadine, the question is whether the court applied the proper standard of proof to find that Nadine was culpable in Ian's abuse or neglect.
In New Jersey Division of Youth & Family Services v. J.L., we applied traditional ipsa loquitor principles "whe[n] the child [was] exposed to a number of unidentified individuals over a period of time, and it [was] unclear as to exactly where and when the child's injuries took place[.]" 400 N.J. Super. 454, 470 (App. Div. 2008) (emphasis added). Thus, "once the Division establishes a prima facie case of abuse or neglect under N.J.S.A. 9:6-8.46[(a)](2), the burden will shift to the [defendant] to come forward with evidence to rebut the presumption of abuse or neglect." Ibid. However, "[t]he burden of proof will remain on the Division." Ibid.
In a decision issued prior to J.L., In re D.T., 229 N.J. Super. 509, 517 (1988), we applied the burden-shifting paradigm of conditional res ipsa loquitor as set forth in Anderson v. Somberg, 67 N.J. 291, 298-99, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975). In D.T. we held:
[Where] a limited number of persons, each having access or custody of a baby during
the time frame when a sexual abuse concededly occurred, no one else having such contact and the baby being then and now helpless to identify her abuser, . . . [t]he burden would then be shifted, and such defendants would be required to come forward and give their evidence to establish non-culpability.
[Ibid. (emphasis added).]
This burden-shifting principle was also applied in New Jersey Division of Youth and Family Services v. S.S., 275 N.J. Super. 173, 181 (App. Div. 1994). There, we rejected the argument that requiring certain defendants to prove their non-culpability in the abuse of their child violated the Fifth Amendment privilege against self-incrimination, and upheld the trial court's finding of abuse against the mother and her paramour, whom the child was with when the abuse occurred, for failing to prove their non-culpability after the Division established a prima facie case of abuse. Ibid.
Here, the trial judge found that Dr. Kairys had credibly testified that, the injuries inflicted on Ian were not accidental, but due to abuse or neglect. The judge further found that based on the evidence that Nadine and Bart were Ian's sole caretakers at that time, they were culpable for the abuse or neglect. Our examination of the record reveals that the judge did not shift the burden of proof to Nadine pursuant to the conditional res ipsa loquitor doctrine. Rather, he applied traditional res ipsa loquitor by shifting the burden of going forward to Nadine to present evidence of non-culpability of abuse, with the burden of proof remaining with the Division.
Clearly, the judge was aware of the different concepts of res ipsa loquitor, as evidenced by the following colloquy that occurred during Transue's direct examination, where the judge rejected the Division's request to shift the burden pursuant to conditional res ipsa loquitor, as done in D.T.:
[THE DIVISION]: And so, Judge, since I would — I was asking the [c]ourt and — is to find that the burden [sic] has met its burden of persuasion and now the burden shifts under D.T. to the defense to show some non-culpable —
THE JUDGE: No, no, no, no. That's not how it works. That's not how it works. See, and maybe that's what the problem is. That's not how it works. Once the Division puts on a case and it has an unexplained injury, and there's a limited number of people, the burden shifts at that point for the parents —
[THE DIVISION]: To come forward.
THE COURT: — to come forward and give a reason as to what happened to the child. If they do not, they don't. But here's the point. The
burden of persuasion remains —
[THE DIVISION]: On the Division. I -
THE COURT: — with the Division throughout.
[(alteration in original).]
Had the judge applied conditional res ipsa loquitor, he would have pointed to Nadine's failure to meet her burden of proof to produce exculpatory evidence as a basis for his decision. However, he did not do so. The judge did, though, mention in his findings that Nadine did not explain how the injuries occurred. This was factually accurate; still, the judge never stated that Nadine was required to produce such evidence.
Moreover, the contention that Nadine had to prove she was not responsible for Ian's injury is also absent from the judge's order outlining his decision. The order stated:
[Ian] had linear bruising to his buttocks consistent with an inflicted injury and a bruise behind his ear consistent with an inflicted injury. [Nadine] made admissions to the hospital and the Division that the bruises occurred on [two] different days[] [-] there was no explanation offered for the bruises [—] and that only [Nadine] and [Bart] had access to the child at that time.Therefore, we find that the judge's approach was consistent with the traditional res ipsa loquitor concept, where "reasonableness of the caretaker's explanation" is one factor to be considered in deciding whether the Division met its prima facie case. J.L., supra, 400 N.J. Super. at 471 (quoting In re Philip M., 82 N. Y. 2d 238, 246, 624 N. E. 2d 168, 173, 604 N. Y. S. 2d 40, 45 (1993)). As the court in J.L. stated:
"[T]he caretaker's failure to offer any explanation for the child's injuries, to treat the child, or to show how future injury could be prevented are factors to be considered by the court, for they reflect not only the caretaker's fault and competence but also the strength of the caretaker's rebuttal evidence."
[Ibid. (quoting In re Philip M., supra, 82 N. Y. 2d at 246, 624 N. E. 2d at 173, 604 N. Y. S. 2d at 45).]
While we are convinced that there was sufficient credible evidence supporting the judge's findings under a traditional res ipsa analysis, we conclude that the record also supports an application of a burden-shifting conditional res ipsa loquitor analysis as set forth in D.T. and S.S.. This case, like those two cases, involves a situation where the credible evidence suggested that there were specific individuals caring for and with access to the child when the abuse occurred. Accordingly, it would have been appropriate to shift the burden of proof to require Nadine to provide evidence to establish non-culpability. Since she did not do so, finding her liable for Ian's abuse or neglect would have been proper under the conditional res ipsa loquitor analysis. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 624 (App. Div.), certif. denied, 192 N.J. 68 (2007) (finding that a parent's failure to explain a child's significant injuries may serve as evidence of abuse or neglect).
Lastly, we address Nadine's argument that Dr. Kairys' conclusion that Ian was abused was inadmissible net opinion. We begin by noting that "issues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate the public interest." M.C. III, supra, 201 N.J. at 339. While the admissibility of Dr. Kairys' opinion does not fit that description, we, nevertheless, will address the issue. In doing so, we review it for plain error. This requires us to disregard an error "unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2.
In accordance with N.J.R.E. 703, an expert opinion must be "grounded in 'facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.'" Townsend v. Pierre, 221 N.J. 36, 53 (2015) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)).
"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data.'" Id. at 53-54 (alteration in original) (quoting Polzo, supra, 196 N.J. at 583). The rule "mandates that experts 'be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable.'" Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). "An expert's conclusion 'is excluded if it is based merely on unfounded speculation and unquantified possibilities.'" Ibid. (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998)).
Applying these principles, we are convinced that Dr. Kairys' testimony was not inadmissible net opinion. His testimony that Ian's injuries were the result of intentional abuse was adequately supported by the photographs, medical records from Monmouth Medical Center, and clinical assessments. In particular, Dr. Kairys relied upon: 1) objective tests confirming that the cause of the bruising was not due to a virus or blood disease; 2) Nadine's failure to provide no other explanations for Ian's injury, noting no recent falls or trauma; 3) the bruise on Ian's buttock which had parallel linear marks that are almost always due to some object like a belt or wide strap; and 4) the location of the bruising on Ian's ear which was unusual for an accidental injury and was more consistent with the child being pinched or squeezed with significant force. Consequently, no error occurred in permitting Dr. Kairys to opine that Ian was a victim of abuse or neglect.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION