DCPP VS. A.Z., J.C.B., AND J.S., IN THE MATTER OF C.B. AND C.Z. (FN-07-0463-16, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 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NOT FOR PUBLICATION WITHOUT THE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-4740-17T4
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
A.Z.,
Defendant-Appellant,
and
J.C.B. and J.S.,
Defendants.
___________________________
IN THE MATTER OF C.B. and
C.Z., minors.
___________________________
Submitted December 2, 2019 – Decided September 10, 2020
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-0463-16.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Beth Anne Hahn, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Amanda L. Helms, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Neha Gogate, Assistant Deputy
Public Defender, on the brief).
PER CURIAM
Defendant A.Z. (Alma1) appeals from a January 27, 2017 Family Part
order finding she abused or neglected her then seven-month-old daughter, C.B.
(Carla). She argues the trial judge improperly shifted the burden to her to
disprove culpability, and that the judge's abuse or neglect finding was based on
insufficient evidence. We disagree and affirm.
The Division received a referral conveying concerns that Carla was
abused, after Alma brought her to the hospital. According to hospital notes,
1
In accord with Rule 1:38-3 and for the reader's convenience, we use
pseudonyms for the parties.
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2
Alma had noticed bruising on Carla's right arm that morning, and by the
afternoon, swelling appeared. Alma initially could not explain what caused the
injury.2 X-rays revealed Carla had a displaced transcondylar fracture in her right
elbow. She underwent surgery the following day.
In an interview with the Division's Special Response Unit (SPRU)
caseworker the day of the surgery, Alma admitted she was Carla's primary
caretaker, and that her boyfriend, with whom she lived, had no contact with the
child the previous day. He worked until 11:00 p.m. Alma told the caseworker
she gave Carla a bath at 9:00 p.m. the previous night and put her to bed. She
observed nothing unusual then, or when she woke to feed Carla overnight.
At Carla's 10:00 a.m. bath, Alma noticed that the child's right arm was
bruised. The left arm was bruised too. When she raised the child's right arm to
wash, Carla cried in pain. Alma first took Carla to her pediatrician, but they
were turned away because they did not have an appointment. After the arm
worsened during the day, she brought the child to Overlook. She told the
caseworker Carla was with her all that day and the day before. She denied Carla
fell or was harmed. Based on the interviews, the Division determined that an
2
Alma does not speak English and communicated with the hospital staff and
Division caseworkers with the assistance of Spanish-speaking staff members.
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3
emergency removal was necessary because Alma could not plausibly explain
how C.B. suffered the injury.
At the subsequent fact-finding hearing, the Division presented testimony
from SPRU caseworker Santiago Gonzalez; permanency supervisor Inez Perez-
Nin; and pediatric care expert Dr. Raksha Gajarawala. Gonzalez recounted
aspects of the Division's investigation. The court admitted the Division's
investigation summary into evidence.
Perez-Nin testified that during an interview about two weeks after the
incident, and in a family team meeting with Alma and her boyfriend almost a
month after the removal, Alma said that a bed bug must have caused Carla's
injury. Perez-Nin testified that after several more months and other meetings,
Alma first suggested other possible causes for Carla's injury. Alma recalled that
the day before she discovered the injury, she left Carla alone with a seven-year-
old neighbor for five minutes, so that Alma could prepare a bottle. Alma alleged
Carla was crying when she returned. Alma also said her boyfriend's brother —
the "uncle" — was alone with Carla for thirty minutes the evening before Alma
discovered the injury.
The Division had interviewed the uncle the day of Carla's surgery.
According to his hearsay statement to the Division's investigator, which the
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4
court considered over the Division's objection, he watched the child for thirty
minutes, at around 9:30 p.m., while Alma went to the store. 3 He said the baby
seemed fine.
Dr. Gajarawala testified that x-rays revealed Carla had three calcific
densities on her right arm, one of which resulted from trauma. She explained
that "twisting" or "extreme pulling force" caused Carla's transcondylar humerus
fracture. The expert explained that children as young as Carla usually cannot
generate the force needed to cause this type of injury to themselves. Dr.
Gajarawala opined the injury resulted from non-accidental abuse. She said the
symptoms of the fracture would include crying, swelling (within five to eight
hours at most), bruising, and inability to move the joint. The pain would occur
"right away."
On cross-examination, Dr. Gajarawala doubted that hospital staff
worsened Carla's injury by moving and manipulating her arm. She also opined
that had Alma grabbed Carla's arm to prevent her from falling off the bed — an
alternative means of injury explored at the hearing — Carla's pain would have
been immediate and obvious.
3
Asked when he watched the child, he said "it was after he returned home from
work so it had to be around 9:30 p.m." However, in the same interview, the
uncle said he worked from 8:00 a.m. to 8:00 p.m.
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Alma did not testify. Her expert in pediatrics and pediatric radiology, Dr.
Jack Levenbrown, agreed that Carla suffered a fracture caused by twisting, and
the child did not do it to herself. He opined that swelling would become evident
within twelve hours of injury. However, comparing the x-rays taken at each
facility that treated Carla, Dr. Levenbrown opined that the fracture worsened as
a result of manipulation and movement by medical providers. He opined that
the injury may have been minor when it first occurred, so that Alma would not
have noticed it immediately. He also opined that the type of fracture Carla
suffered was not associated with abuse, based on his personal experience and
his familiarity with abuse literature.
Dr. Levenbrown also suggested other explanations for Carla's injury. He
said Alma may have injured Carla by pulling her arm to prevent her from falling
off the bed while being changed. Alternatively, the seven-year-old neighbor, or
the uncle may have injured the child. Dr. Levenbrown found the latter
possibility most likely.
In a cogent written opinion, Judge David B. Katz found the Division
proved, by a preponderance of the evidence, that Alma abused or neglected Carla
under N.J.S.A. 9:6-8.46(a)(2). The judge recounted the facts we have
summarized. He found both lay witnesses and experts credible, although the
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judge rejected Dr. Levenbrown's conclusions. Critically, the court found that
Carla's elbow likely did not become swollen until the afternoon. The judge
relied on Alma's statement to a Division worker, that after she could not get in
to the see the pediatrician and returned home, she began to worry "as the elbow
began to become swollen." The judge also relied on a hospital triage note,
stating that Alma reported that "by afternoon, the right arm is [sic] swollen." 4
The court noted that absent direct proof, prima facie evidence of abuse or
neglect may be presented by "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 of omissions of the parent or guardian," citing N.J.S.A. 9:6-8.46(2). The
court concluded the Division presented such proof. The court noted that both
experts agreed that the injury "had to occur with force and by some mechanism,"
and he credited Dr. Gajarawala's opinion the injury was caused by abuse. Carla
could not have injured herself.
Since swelling appears within at most twelve hours after injury, and the
swelling appeared in the afternoon, the judge concluded that only Alma had
contact with the child when she was injured. Based on that conclusion, Judge
4
We recognize that there was also evidence in the record that Alma noticed
swelling as early as 10:00 a.m.
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Katz explicitly declined to shift the burden of persuasion to Alma as permitted
by In re D.T., 229 N.J. Super. 509 (App. Div. 1988), in cases involving multiple
caregivers during the period an injury occurred.
The judge nevertheless considered and rejected the three theories Dr.
Levenbrown advanced to refute the Division's prima facie case. The judge
rejected the suggestion that Alma accidentally injured Carla by grabbing her arm
while changing her diaper, which occurred two days before Alma discovered the
injury. The judge noted the absence of details about how that occurred; Alma's
failure to mention the incident during multiple interviews over many months;
and the fact that Carla exhibited no evidence she experienced pain until two days
later.
The judge also rejected the scenarios that the seven-year-old neighbor or
the paternal uncle injured Carla. The court highlighted the lack of details to
support Dr. Levenbrown's opinion that either person injured the child. The judge
noted that Alma admitted when she gave Carla her night-time bath before putting
her to bed, Carla did not appear to be in pain, nor was any bruising or swelling
evident. Alma also delayed alleging Carla was left with others until long after
the incident.
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The judge concluded "that the Division has satisfied its burden of proof
that [Carla] was abused or neglected due to the transcondylar fracture suffered
by the child between 9:00 p.m. on May 12 when the child was bathed by [Alma]
without incident and without there being any indications of pain or other
symptoms, and May 13 when [Alma] reported the bruising, pain and swelling,
with the x-rays on that date confirming the fracture."
On appeal, Alma contends the abuse and neglect finding against her must
be reversed because the trial judge improperly shifted the burden of proof to her
under the doctrine of conditional res ipsa loquitur. She also argues the judge 's
finding of abuse and neglect was based on insufficient evidence. Having
reviewed the record and governing legal principles, we reject her arguments.
We generally defer to the Family Court's fact-finding because of the
court's "special expertise" in family matters and the court's "superior ability to
gauge the credibility of the witnesses who testify before it." N.J. Div. of Youth
& Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We will not disturb a trial
court's fact-finding "when supported by adequate, substantial, credible
evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). "Only when the trial
court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an
appellate court intervene and make its own findings to ensure that there is not a
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denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605
(2007)). However, we scrutinize more closely a "trial judge's evaluation of the
underlying facts and the implications to be drawn therefrom," N.J. Div. of Youth
& Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations
omitted), and we review issues of law de novo, Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995).
In a fact-finding hearing under Title 9, "(1) any determination that the
child is an abused or neglected child must be based on a preponderance of the
evidence and (2) only competent, material and relevant evidence may be
admitted." N.J.S.A. 9:6-8.46(b). In this case, under its theory of abuse and
neglect, the Division was required to prove that Alma
[i]nflict[ed] or allow[ed] to be inflicted upon [Carla]
. . . 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.
[N.J.S.A. § 9:6-8.21(c)(1).]
Oftentimes "[i]t is difficult to marshal direct evidence of parental abuse
and neglect because of the closed environment in which the abuse most often
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occurs and the limited ability of the abused child to inculpate the abuser." N.J.
Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 179 (App. Div.
1994). Consequently, at a fact-finding hearing, "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[.]" N.J.S.A. 9:6-
8.46(a)(2).
In N.J. Division of Youth & Family Services v. J.L., 400 N.J. Super. 454,
470 (App. Div. 2008), we applied traditional res ipsa loquitur principles "where
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[.]" 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,"
but the burden of persuasion remains with the Division. Ibid.
In J.L., the child suffered fractures and "extended family, including the
two grandmothers or other relatives and friends . . . visited" and the child was
"in the custody of medical personnel on various occasions and subjected to
various procedures, . . . which required physical restraint." Id. at 469. Under
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those circumstances, we held, "parents are not obligated to present evidence.
They may choose to rest and allow the court to decide the case on the strength
of the Division's evidence." Id. at 472.
However, where a "defined number of people ha[d] access to the child at
the time the abuse definitively occurred," we have shifted the burden of
persuasion to the parents under a paradigm known as "conditional res ipsa
loquitur." Id. at 468-69 (discussing In re D.T., 229 N.J. Super. at 517). 5 In In
re D.T., we held that 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.
[229 N.J. Super. at 517 (citing Anderson v. Somberg,
67 N.J. 291, 298-99 (1975)).]
5
In J.L., we noted that the conditional res ipsa loquitur paradigm was applied
in S.S. 400 N.J. Super. at 469. In that case, the defendant was "one of a limited
number of people in control of [the child] when she was injured." 275 N.J.
Super. at 181. But we distinguished the case on the ground that the defendant
did not dispute whether the facts triggered the burden-shifting paradigm, but
challenged the doctrine on constitutional grounds. J.L., 400 N.J. Super. at 469.
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Alma contends that traditional res ipsa loquitur principles apply, as under
J.L., and that the court inappropriately shifted the burden of persuasion to her,
as under In re D.T. We agree as to the first point, but not as to the second.
Rather, Judge Katz correctly applied traditional res ipsa loquitur principles. The
court never shifted the burden of persuasion to Alma. Instead, the court found
that the Division established a prima facie case of abuse or neglect under
N.J.S.A. 9:6-8.46(a)(2) by presenting evidence that the child's injuries were "of
such a nature as would ordinarily not be sustained or exist except by reason of
the acts or omission of the parent or guardian." The court relied on the expert
testimony that someone must have twisted or exerted great force on Carla's arm
in order to cause her fracture; and her injuries were not self-inflicted.
The only burden imposed on Alma was the burden of production — to
present evidence to rebut the prima facie case. She presented such evidence —
in the form of Dr. Levenbrown's opinion that the uncle, the seven-year-old
neighbor, or even Alma, while changing the baby two days earlier, may have
injured Carla. But, the court found those scenarios implausible and rejected
them. The judge concluded, with adequate record support, that Alma must have
caused the fracture because she was the only person in contact with Carla when
the injury must have occurred. We are obliged to defer to the fact finding.
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We find no merit in Alma's argument challenging the sufficiency of the
evidence. The court gave significant weight to Dr. Gajarawala's testimony that
Carla's injury was caused by a twisting or pulling force and could not have been
caused by Carla herself. The court highlighted that only Alma had access to
Carla during the time the injury took place.
The court found Dr. Levenbrown's theories about other persons who may
have caused Carla's injury to be speculative and factually inaccurate. Alma
argues that Dr. Gajarawala's radiologic experience was limited, but she does not
appeal from the court's decision to admit her as an expert, although the court did
so over her objection. In any event, an expert's qualifications "are generally
addressed to the discretionary determination of the trial judge." Correa v.
Maggiore, 196 N.J. Super. 273, 282 (App. Div. 1984).
Alma also argues that Dr. Levenbrown's analysis was grounded in deeper
experience in pediatric radiology. But, we will not disturb the court's decision
to credit one expert over the other. See In re Guardianship of DMH, 161 N.J.
365, 382 (1999) (stating "we rely on the trial court's acceptance of the credibility
of the expert's testimony").
We recognize that Alma's recollection that she bathed Carla at 9:00 p.m.
and then put her to bed did not comport with the uncle's recollection that he
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watched the child for about thirty minutes, around 9:30. However, that
discrepancy does not undermine the trial court's ultimate finding, for three
reasons. First, the court was not obliged to resolve that timing discrepancy in
order to credit a statement in the Division records that Alma put Carla to bed
after the bath. The uncle may have been mistaken that he watched the child at
9:30 p.m., or the Division worker may have reported the time in error. The
uncle's only explanation for surmising he watched the child at around 9:30 p.m.
was that he did so after returning from work; but he said he worked until 8:00
p.m., which gave him ample time to watch the child before 9:00 p.m., when
Alma said she bathed Carla.
Second, regardless of what time the uncle watched the child, had he
injured Carla's arm, she would have expressed some pain or discomfort,
accepting Dr. Gajarawala's testimony that the injury was of the sort that would
trigger a pain response.
Third, one may infer the injury occurred after the uncle watched the child,
because the swelling did not first appear until the afternoon the next day. The
court found, based on competent evidence in the record, that the swelling arose
in the afternoon. Working backward twelve hours — the outside limit by which
swelling would arise after the fracture according to Dr. Levenbrown — Carla
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must have suffered the injury after midnight, at the earliest. At that point, only
Alma cared for Carla. Alma resorts to mere speculation that her boyfriend, or
the grandfather may have interacted with Carla during that period and caused
her injury. Although they were both in the home overnight, Alma stated that
only she cared for the child, bathing her, putting her to bed, feeding her about
3:00 a.m. in the early morning, and then bathing her again at around 10:00 a.m.
In sum, as the trial court's findings were not "wide of the mark," we will
not disturb them.
Affirmed.
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