DCPP VS. J.M.E., C.G., R.M.-E., M.E.P. AND S.A.L., IN THE MATTER OF M.E., K.E., C.P., D.P., A.L., N.L., D.L. AND J.J.M.G. (FN-14-0086-18 AND FN-14-0087-18, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0211-19T4
A-0212-19T4
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.M.E. and C.G.,
Defendants-Appellants,
and
R.M.-E., M.E.P., and S.A.L.,
Defendants.
_____________________________
IN THE MATTER OF M.E., K.E.,
C.P. D.P., A.L., N.L., D.L. and
J.J.M.G., minors.
_____________________________
Submitted December 1, 2020 – Decided December 22, 2020
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket Nos. FN-14-0086-18 and FN-14-0087-18.
Joseph E. Krakora, Public Defender, attorney for
appellant J.M.E. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Beth Anne Hahn, Designated
Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant C.G. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Phuong V. Dao, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Peter D. Alvino, Deputy Attorney General, on
the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Maria Emilia Borges, Assistant
Deputy Public Defender, on the brief).
PER CURIAM
On May 24, 2018, five-year-old K.E. (Karen, a fictitious name 1) was
rushed to the hospital in need of emergency neurosurgery and intubation after
sustaining life-threatening injuries. Her father and stepmother – defendants
J.M.E. (Jason) and C.G. (Carol) – claimed the injuries were caused by a slip in
the bathtub, but the trial judge determined after a seven-day hearing that Carol
1
We use fictitious names for the parties and their children to preserve their
privacy.
A-0211-19T4
2
assaulted the child and Jason had turned a blind eye to Carol's abusive conduct.
In appealing, defendants argue, among other things, that the trial judge
erroneously shifted the burden of persuasion to them and the evidence offered
by plaintiff Division of Child Protection & Permanency was insufficient to
support the judge's findings and conclusions. We find no merit in these
arguments and affirm.
Carol is the biological mother of six sons: C.P. (Charles, born in 2008),
D.P. (Donald, born in 2009), A.L. (Albert, born in 2013), N.L. (Nicholas, born
in 2014), D.L. (Devon, born in 2015), and J.E., Jr. (Jason, Jr., born in 2019,
during the course of the litigation). Jason is the biological father of two of
Carol's children, Devon and Jason Jr. Jason also had physical custody of his
two daughters: Karen (born in 2013) and M.E. (Marianne, born in 2011).
In October 2017, Carol and her children moved to New Jersey from
Pennsylvania and began living with Jason – recently estranged from his wife,
Rosa – and his and Rosa's daughters. This relocation alarmed the Division's
Pennsylvania counterpart, which had removed Carol's six sons in April 2016 due
to her opiate addiction and her failure to ensure the children's attendance at
school. The children were returned to her in June 2017. So, when she moved
to New Jersey, Pennsylvania authorities filed a referral with the Division,
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3
asserting Carol's use of cocaine and Adderall, her having punched Charles in the
face, and her having left Devon, soiled and alone, in a high chair for seven hours.
The Division opened a case in October 2017 and began visiting the family
on a monthly basis. Division workers found the home was "chaotic," but that
the family "appeared to be stable and adjusting" to the new living arrangements.
This adjustment period, however, took conspicuously long; the eldest sons,
Charles and Donald, did not begin attending school until more than a month
after the family's relocation, and Carol did not transfer her children's health
insurance to New Jersey, preventing them from receiving services, such as
Division-recommended behavioral therapy. As of March 2018, Jason had not
secured health insurance for Marianne and Karen, despite the Division's
attempts to facilitate the process.
Karen had several medical visits soon after Carol and her children moved
into Jason's home. In late October 2017, Carol took Karen to the hospital for a
facial injury that Carol claimed was caused when Karen's biological mother,
Rosa, hit the child; an x-ray revealed no fractures. Days later, Carol brought
Karen to a doctor claiming Rosa physically abused her. The doctor observed
bruising on Karen's shins but saw no other evidence of possible abuse. Karen
was not examined again until January 2018 when there were concerns both she
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4
and Marianne were underweight. A follow-up appointment for April 2018 was
later cancelled; the record reveals that such cancellations were not uncommon.
Karen is not the only child in the family to have been medically examined
for signs of potential physical abuse. In April 2018, a teacher observed a bruise
on the edge of Charles's ear. The next day, a Division worker met with Charles
at school to photograph and discuss the bruise. Charles said Carol caused the
bruise by pulling "hard" on his ear "because he was talking back to her and
giving her attitude." He said Carol had used this type of physical punishment
on him before, as well as Donald, who advised the Division worker that Charles,
Marianne, and Karen had all had their ears pulled by Carol. When the Division
worker interviewed Carol about this, she admitted pulling Charles's ear for "not
listening" and pulling Karen's ear in the past for wetting herself after "refus[ing]
to go to the bathroom." Carol denied using any other forms of physical
punishment on the children and expressed remorse for punishing Karen once she
learned that Karen's incontinence difficulties arose from other medical issues.
Karen, in fact, had a significant medical history. She was born
prematurely and was diagnosed in 2015 with global developmental delays
related to autism, central hypotonia, and possible cerebral palsy. During a child
study team meeting, Carol said that Karen routinely suffered bruises because
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5
she is "accident prone" and has "serious problems with gross and fine motor
skills." She claimed Karen "bumps and falls often, sometimes hitting her head,"
"scratches herself and . . . shakes excessively," and had recently "forgotten
skills" such as eating with a spoon. Carol and Jason both stated during this child
study team meeting that Karen had been diagnosed with alpha-thalassemia and
offered this condition as the cause for her bruising.2
In March 2018, Karen underwent a physical therapy evaluation and was
reported as being able to move independently without assistive devices. She
was found to have a "good ability to execute high level skills," and scored in the
average range for all administered tests.
Two months later, on May 24, 2018, a Division worker arrived at the
family's home to investigate bruises and scratches on Marianne; the worker was
turned away when Charles, who answered the door, said Carol was in the
2
Alpha-thalassemia is an inherited blood disorder, which causes the body to
make less hemoglobin than normal and can cause red blood cells to be smaller
than normal size. Depending on which of the four types of alpha-thalassemia is
inherited, individuals can suffer from mild to severe anemia, fatigue, exercise
intolerance and – in more severe cases – an enlarged liver or spleen, yellowish
skin, and leg ulcers. Those who are only carriers of alpha-thalassemia have mild
to no symptoms. See Hannah Tamary & Orly Dgany, Alpha-Thalassemia,
GeneReviews (Nov. 1, 2005), https://www.ncbi.nlm.nih.gov/books/NBK1435/
(last updated Oct. 2, 2020). The physicians who so diagnosed Karen stated that
the alpha-thalassemia trait would not cause bruising.
A-0211-19T4
6
shower.3 When the Division worker returned thirty minutes later, Carol was
present. During the interview that then took place, Carol attributed the scratches
on Marianne having turned her head away from a washcloth during a bath.
During this visit, the Division worker looked in on Karen, who was alone in a
dark bedroom that smelled of feces. Karen was dressed in sweatpants despite
the day's mid-eighty-degree temperature. The Division worker did not notice
any visible bruises on Karen's face or arms. Carol then told Karen to go to the
bathroom for a bath, and the Division worker left.
Less than an hour later, Carol called the Division worker to report that
Karen fell in the bathtub during a shower while Carol was in another room.
Karen was unconscious and not breathing.
Karen had suffered life-threatening injuries. The record reveals she may
never again walk or be able to communicate. Based on photographs and other
medical evidence deemed credible, the judge found "[t]here were bruises all over
[Karen's] limbs, back and head, in various stages of healing." The child was
diagnosed with a fracture of the right occipital bone, a subdural hematoma,
extending from the right frontal through the right parietal and temporal regions,
3
The judge found credible evidence that demonstrated Carol was not home and
had left Charles in charge of all the children. Carol later admitted this.
A-0211-19T4
7
and a left posterior parietal scalp hematoma. Photographs depicted the intubated
five-year-old blanketed by extensive bruising and lacerations on her face, back,
buttocks, and legs, including her inner thighs. The judge found credible the
testimony of the Division worker that many of the bruises depicted in the
photographs of the child that were taken in the hospital were not present when
she saw the child hours earlier.
A Division worker interviewed Carol the next morning. Carol claimed
Karen had slipped in the bathtub and hit her head. She also testified Karen had
been having unexpected bruising that resulted from alpha-thalassemia. The
other children were individually interviewed by the Division. During this
questioning, a Division worker noted several marks and bruises on Marianne's
body, including scratches on her face and neck, and bruises on her forearm and
knee. Marianne said she did not know how she received any of the marks and,
without being asked, volunteered that "mom and dad never hit me." After his
interview, Donald expressed fear that his mother would be arrested and that
Carol "was scared that [he] and [his] brothers said something bad" to the
Division. That day, all the children except Karen were transported for pre-
A-0211-19T4
8
resource home placement physicals and removed from Carol and Jason's
custody.4
This Title Nine action was commenced a few days after Karen sustained
her life-threatening injuries. The judge determined on the return date of an order
to show cause that there was good cause to believe Karen had been physically
abused and that both Jason and Carol posed a "significant risk" to the other six
children as well. The judge granted the Division's application for care, custody,
and supervision of all seven children. In a hearing that started in early January
and ended in early February 2019, the judge heard testimony from Division
workers, child abuse experts, a school social worker, and medical experts. Carol
and Jason did not testify. Carol called a medical expert to testify; Jason called
no witnesses.
By way of an oral decision, the trial judge concluded, among other things,
that Carol physically abused Karen, that Karen was neglected and abused by
4
A month later, Charles disclosed to his resource mother that Carol had "hit
him on the legs with a broom" and that he had seen Carol "pick [Karen] up by
her hair and throw her to the ground," and "hit [Karen] with a shoe." Donald
confirmed what Charles said. In addition, Charles reported that he had seen his
siblings get hit with a belt, that he was beaten with a plastic hanger, and that his
father "doesn't do anything." Charles also said that after the removal he and his
brother purposefully misbehaved because Carol told him that doing so would
keep them from remaining in the foster system or getting adopted.
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9
Jason due to his failure to recognize what was occurring within the home, and
that the abuse of all the other children could be inferred, as permitted by N.J.S.A.
9.6-8.46(a)(1). The action was dismissed at the end of July 2019 when the trial
judge approved the Division's plan of seeking the termination of defendants'
parental rights.
In appealing, both defendants argue that the trial judge erroneously shifted
the burden of persuasion to them. Carol argues that the burden should have
remained on the Division at all times and it was not incumbent on her to prove
"she did not cause the injuries" to Karen, and Jason also complains of the
shifting of the burden of persuasion. Both defendants also assert they were
prejudiced by the judge's failure to announce at an earlier stage that the burden
would be shifted. We find no merit in these arguments for the simple reason
that the judge never shifted the burden of persuasion to either defendant.
To obtain a determination that a child was abused or neglected under Title
Nine, the plaintiff may show, among other things, that the parent or guardian
"inflict[ed] or allow[ed] to be inflicted . . . physical injury by other than
accidental means" or "create[d] or allow[ed] to be created a substantial or
ongoing risk of physical injury to such child by other than accidental means."
N.J.S.A. 9:6-8.21(c). The preponderance standard is applied in such matters,
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N.J.S.A. 9:6-8.46(b)(1), and a judge's findings must be supported by
"competent, material, and relevant evidence," N.J.S.A. 9:6-8.46(b)(2). See also
N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 62 (App. Div.
2012). A prima facie case of abuse or neglect can be established with proof of
injuries or a condition "of such a nature as would ordinarily not be sustained or
exist except by reason of the acts or omissions of the parent of guardian."
N.J.S.A. 9:6-8.46(a)(2).
To be sure, there are times when an abused child cannot explain what has
occurred either because of the child's age or because of the consequences of the
abuse. N.J.S.A. 9:6-8.46(a)(2). In those cases, it may be appropriate to require
that the parent or guardian provide a credible explanation for what occurred or
else be subjected to an inference that the injuries were brought about by abuse
or neglect. At times, the circumstances may permit saddling a defendant only
with "the burden of going forward" by presenting evidence "to rebut the
evidence of parental culpability" while the burden of persuading the trier of fact
that the child was abused remains with the Division. See N.J. Div. of Youth &
Family Servs. v. J.L., 400 N.J. Super. 454, 471 (App. Div. 2008) (quoting In re
Phillip M., 624 N.E.2d 168, 172 (N.Y. 1993)). For example, in J.L., the trial
judge determined there were several factors constituting credible, potential
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causes for the child's injuries, making it unclear to the court when and how she
was injured. Id. at 472-73. In J.L., those circumstances included bone fractures
occurring at three different times over several weeks and multiple individuals
besides the parents having access to the child. Id. at 469. There, the burden was
appropriately shifted to the parents "to come forward with evidence to rebut the
presumption of abuse or neglect" without shifting the burden of persuasion. Id.
at 470. In other instances, when the possibilities are not so multi-faceted, it may
be appropriate to shift the burden of persuasion to the parent or guardian. See,
e.g., In re D.T., 229 N.J. Super 509, 517 (App. Div. 2008).
If Carol had offered no explanation for what happened, there would have
been nothing erroneous about applying either of these burden-shifting
paradigms. See generally N.J. Div. of Child Prot. & Permanency v. C.J.R., 452
N.J. Super. 454 (App. Div. 2017). Karen suffered near-fatal brain damage and
sustained extensive bruising and bodily injuries less than an hour after a
Division worker saw her and noticed nothing wrong. Jason was not home at the
time, and Marianne, Charles, and Donald were outside playing. Because Carol
was the only adult in the home, the possibilities were limited and the judge could
have required that Carol prove that she did not abuse the child. Indeed, it is hard
to imagine a more appropriate instance for shifting the burden of persuasion
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under the traditional res ipsa loquitor standard described in Anderson v.
Somberg, 67 N.J. 291, 298-99 (1975).
But the judge examined the evidence and made findings without shifting
either the burden of persuasion or the burden of going forward. The judge
weighed the Division's considerable proofs that he found credible, and he
considered Carol's out-of-court explanations, all of which the judge rejected in
light of the what he referred to as the "overwhelming" evidence amassed b y the
Division. The judge rejected the assertion that the head injuries could have
resulted from a fall in the tub and the claims that the bruises resulted in some
accidental way. The judge rejected the contention that Karen was clumsy by
relying on credible testimony of earlier medical exams, rejected the contention
that bruising resulted from alpha-thalassemia by relying on credible medical
testimony to the contrary, and rejected the claim of accidental bruising by
referring to the bruises on the child's inner thighs, which would not normally
occur through a child's routine fall while playing.
In short, we reject defendants' arguments that the judge shifted the burden
of persuasion to them because the judge simply didn't do that. 5 He found
5
For this same reason, we reject the arguments that the judge deprived
defendants of due process by failing to give notice that he would shift the burden
of persuasion to them.
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sufficient support for the Division's claim that Carol physically abused Karen
without resorting to any burden shifting. And, as for Jason, the judge found
from the Division's evidence that Karen's past injuries "could not have
reasonably gone unnoticed" by Jason and that he was "complicit by allowing
horrific abuse upon [Karen] and by engaging in the subterfuge attempting to
hide those injuries."
Defendants also argue there was insufficient evidence to support the
judge's findings or the conclusions he drew from those findings. We find no
merit in those arguments. Judge-made findings are "considered binding on
appeal when supported by adequate, substantial and credible evidence," Rova
Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974), a
deferential standard particularly appropriate in family court matters, Cesare v.
Cesare, 154 N.J. 394, 413 (1998) (holding that "[b]ecause of the family courts'
special jurisdiction and expertise in family matters, appellate courts should
accord deference to family court factfinding"); see also N.J. Div. of Youth &
Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010). The record was replete
with evidence that the judge found credible and that, in the judge's view,
"overwhelming[ly]" demonstrated that Karen was a physically active five-year
old – as observed by a Division worker – left near death an hour later. The judge
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was entitled to find from this evidence that the child did not slip and fall in the
bathtub but was instead beaten by Carol. These findings fully supported a
determination that Carol "created a substantial or ongoing risk of physical injury
to such child by other than accidental means which would be likely to cause
death or serious or protracted disfigurement." N.J.S.A. 9:6-8.21(c)(2).
Moreover, there was other medical evidence that revealed to the judge's
satisfaction that the child had suffered injuries in the past that should have been
noticed and acted on by Jason who, instead, turned a blind eye, thereby failing
to "exercise a minimum degree of care." N.J.S.A. 9:6-8.21(c)(4). And there
was evidence from which the judge could conclude that both defendants
attempted to hide the true cause of Karen's injuries through smoke screens about
the child's anemic condition.
The judge was also entitled to conclude from these findings that not only
was Karen endangered by being in defendants' care but all their other children
as well. We have previously said, "[p]redictions as to probable future conduct
can only be based upon past performance," J. v. M., 157 N.J. Super. 478, 493
(App. Div. 1978), and the physical abuse of one child can be "a dangerous
harbinger to one or more of the others," N.J. Div. of Youth & Family Servs. v.
Robert M., 347 N.J. Super. 44, 68 (App. Div. 2002). The judge was entitled to
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infer from what happened to Karen that the health and well-being of the other
children were and would continue to be jeopardized if left in the care of either
or both defendants. See N.J.S.A. 9:6-8.46(a)(1) (declaring that "proof of the
abuse or neglect of one child shall be admissible evidence on the issue of the
abuse or neglect of any other child of, or the responsibility of, the parent or
guardian").
In the final analysis, our role is limited. Appellate courts will not
intervene where a decision has been soundly based on the findings of a judge
who had the opportunity to see the witnesses testify and obtain a feel of the case
that an appellate court can never realize. M.C. III, 201 N.J. at 342-43 (quoting
N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). The judge
made thorough factual findings that are fully supported by the evidence found
credible. We will not second-guess such well-reasoned findings.
Any arguments not specifically addressed were found to be without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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