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NOT FOR PUBLICATION WITHOUT THE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-0213-15T3
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
C.D.,
Defendant,
and
R.F.,
Defendant-Appellant.
________________________________
IN THE MATTER OF A.D.,
Minor.
________________________________
Submitted February 16, 2017 – Decided March 22, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FN-07-288-13.
Joseph E. Krakora, Public Defender, attorney
for appellant (Laura M. Kalik, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Thomas
Ercolano, III, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Danielle Ruiz,
Designated Counsel, on the brief).
PER CURIAM
Defendant father, R.F., appeals from a May 3, 2013 Family
Part order finding he abused or neglected his child. Having
considered R.F.'s arguments in light of the record and applicable
legal standards, we affirm.
R.F. and C.D. are the parents of A.D. On January 13, 2013,
the Division of Child Protection and Permanency (the Division)
received a referral from the Newark Police Department because
A.D., then five years old, had what appeared to be a slap mark on
her face. That night, R.F. went to the 17th Street police station
to report C.D. had jumped on and was banging on his car when he
picked A.D. up from C.D.'s home. R.F. left A.D. in the car with
his sister when he went into the 17th Street station. When the
officer declined to do anything about the incident, R.F. left and
went to the Clinton Street police station.
2 A-0213-15T3
At the police station, he brought A.D. inside with him to
continue his complaint about C.D. When he removed the child's
hat, R.F. showed the officer a mark on A.D.'s face. The mark
consisted of red scratches that were five inches in length and two
inches in width. The officers referred R.F. back to the 17th
Street station, and the police called the Division. The police
also called C.D., who came to the 17th Street station. A Division
Special Response Unit (SPRU) worker responded to the station at
around 2:15 a.m. and spoke with C.D., who recounted she and R.F.
argued when R.F. arrived at her home to take her to work. A.D.
was in the car while R.F. and C.D. argued. C.D. refused to get
into R.F.'s car because R.F.'s sister was in the front seat. C.D.
decided to walk to catch a bus to work, but realized she would not
be able to get there in time, so she called R.F. to come back to
get her. When she was about to get in the car, R.F. pulled away.
C.D. reported she was dragged before R.F. stopped the car. The
SPRU worker noted C.D.'s jeans were dirty with black skid marks
along the front. C.D. informed the police of the incident.
The SPRU worker examined A.D. and observed red linear marks
on the upper left side of A.D.'s face, which resembled a hand.
The left side of her face was slightly swollen, giving the
appearance the mark was fresh. A.D.'s left eye was slightly
bloodshot. With the assistance of C.D., the SPRU worker observed
3 A-0213-15T3
A.D.'s body in the bathroom. She noticed a small scratch on her
left thigh, but A.D. said she scratched herself. When asked how
she got the mark on her face, A.D. shrugged her shoulders. When
asked if she knew what happened, A.D. shook her head yes.
The SPRU worker spoke with R.F., who recounted he was out of
state earlier in the day and had called C.D. to tell her he would
not be back in time for her to take the bus, so he would drive her
to work. According to R.F., he arrived at C.D.'s home around 10
p.m., and C.D. began "tweaking." R.F. left because C.D. yelled
at him for "bringing people to her house," but C.D. kept phoning
him. R.F. went back to pick her up but, when C.D. kept arguing,
he left. R.F. went back for a third time, but after C.D. began
yelling again, he drove off. R.F. claimed when he was stopped at
a light, C.D. jumped on his car and began hitting it and "faked a
fall." R.F. told the SPRU worker A.D. stated C.D. hit her;
however, no one heard A.D. say who hit her.
According to another SPRU worker who interviewed A.D. that
night, A.D. stated "the monster" hit her. The worker asked A.D.
again about the mark, but A.D. refused to disclose who caused the
injury. R.F. denied hitting his daughter and stated he believed
C.D. hit A.D.
The SPRU worker informed both parents the Division would be
executing an emergency removal and would take custody of A.D., as
4 A-0213-15T3
there was an unexplained mark on her face. The Division's
investigation summary listed C.D. as the alleged perpetrator, but
the findings were deemed "substantiated-perp unknown." R.F. was
not listed as an alleged perpetrator.
The Division filed an order to show cause and a verified
complaint for custody against R.F. and C.D. on January 15, 2013.
The complaint contained no specific allegations against R.F., but
references were made to "parent(s) or guardian(s)." R.F. and C.D.
both appeared at the hearing and were represented by counsel. The
trial judge was satisfied the Division established the child had
suffered such injuries as ordinarily would not be sustained but
for the acts or omissions of parents or guardians. The judge also
noted no one, besides R.F. and C.D., was with A.D., and she did
not identify her abuser; thus, the burden shifted to defendants
to come forward with evidence to establish non-culpability. The
trial judge ordered the child placed in the immediate custody,
care, and supervision of the Division.
The fact-finding hearing took place on May 3, 2013, at which
the SPRU worker and C.D. testified. The worker testified about
the January 13, 2013 referral, when R.F. brought A.D. into the
police station because of what appeared to be a slap mark on her
face. The worker recounted her interviews both C.D. and R.F.
Specifically, C.D. told the worker she had been caring for A.D.
5 A-0213-15T3
on Friday and Saturday until 10:00 p.m., when R.F. was supposed
to come pick her up but was late. C.D. told the worker no one
else was caring for A.D. at that time. The worker described her
observations of A.D.'s face and how it "resembled like a hand mark
as if she was slap[ped]," and A.D.'s left eye was bloodshot. The
worker testified both C.D. and R.F. denied causing the mark.
C.D. testified she dressed A.D. prior to R.F. coming to pick
her up and observed no mark on her face. C.D. had the opportunity
to see A.D.'s face because C.D. put a hat on A.D.'s head, put her
coat on, and zipped it up. R.F. placed A.D. in her car seat.
R.F. presented no witnesses and did not testify. During
R.F.'s closing arguments, his counsel noted the Division made no
allegations against R.F. The trial judge asked R.F.'s counsel,
"If the Court determines he engaged in abuse and neglect, am I
bound by the Division - by the Division's determination?" R.F.'s
counsel conceded, "No, you're not . . . you have discretion."
Counsel for C.D. argued the court should make a finding of abuse
and neglect against R.F. because there is no evidence C.D. injured
their child. The law guardian argued a finding should be made
against "both or either."1
1
When pressed further, the law guardian stated based upon the
evidence, she would lean toward finding against the mother but
believed res ipsa loquitur should apply in this case.
6 A-0213-15T3
The Division noted C.D. was entitled to a review of the
Division's finding of substantiated abuse and neglect of A.D.
However, when pressed by the trial judge for due process concerns
regarding the absence of a finding of substantiation against R.F.,
the Deputy Attorney General acknowledged, "There's not a due
process concern due to the fact . . . the [c]ourts are charged
with an independent ability and duty to make findings of abuse and
neglect, whether or not the Division has entered a substantiation.
That would require the Division then to amend their findings."
The trial judge found the pictures of A.D.'s face clearly
demonstrated the child suffered injuries satisfying N.J.S.A. 9:6-
8.46(a)(2) and based upon the evidence in the record, found the
injuries occurred while A.D. was in either the custody of C.D. or
R.F. The trial judge found a limited number of persons could have
caused the injury to the child and noted the burden had shifted
to the defendants to present evidence to establish non-
culpability. Based upon C.D.'s testimony, which the judge found
credible, there was no bruising while A.D. was in her custody.
Therefore, the trial judge found C.D. satisfied her burden of
showing she did not abuse or neglect A.D. In contrast, the trial
judge found R.F.'s account to the Division about A.D.'s injury was
not credible, specifically the judge stated R.F.'s version
"defie[d] common sense" and was "hard to believe." The trial
7 A-0213-15T3
judge found R.F. had not satisfied his burden and made a finding
he had abused and neglected A.D. The litigation was terminated
on July 28, 2015. This appeal followed.
On appeal, R.F. requests we reverse the finding he abused or
neglected A.D., arguing there is insufficient evidence to support
this finding and the trial judge improperly shifted the burden of
proof to him. We disagree.
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) (citing Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)).
We "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)). Moreover, "[b]ecause of the family courts'
special jurisdiction and expertise in family matters, appellate
courts should accord deference to family court factfinding."
Cesare, supra, 154 N.J. at 413.
"Parents have a constitutionally protected right to maintain
a relationship with their children." N.J. Div. of Youth & Family
8 A-0213-15T3
Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship
of K.H.O., 161 N.J. 337, 346 (1999)). A parent's right is not
absolute; it must be balanced against the "State's parens patriae
responsibility to protect the welfare of children." In re
Guardianship of J.C., 129 N.J. 1, 10 (1992).
We consider the totality of the circumstances in abuse and
neglect proceedings. N.J. Div. of Youth & Family Servs. v. P.W.R.,
205 N.J. 17, 39 (2011). The standard in deciding whether a
guardian has failed to exercise a minimum degree of care is one
of gross negligence. G.S. v. Dep't of Human Servs., 157 N.J. 161,
178-79 (1999). The failure to exercise such a degree of care is
"analyzed in light of the dangers and risks associated with the
situation." N.J. Dep't of Children & Families v. R.R., 436 N.J.
Super. 53, 58 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at
181-82). There must also be proof the "parent 'unreasonably'
inflicted harm." N.J. Div. of Child Prot. & Permanency v. Y.N.,
220 N.J. 165, 180 (2014).
The Division bears the burden of establishing a prima facie
case of abuse and neglect. Id. at 178-79. Additionally,
proof of injuries sustained by a child or of
the condition of 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 of, or who is the
9 A-0213-15T3
responsibility of such person is an abused or
neglected child.
[N.J.S.A. 9:6-8.46(a)(2).]
When the Division establishes a child has sustained an injury
that would not have occurred but for the act or omission of a
parent or guardian, but the Division cannot show not who caused
the injury, we apply either conditional res ipsa loquitur or
traditional res ipsa loquitur. In In re D.T., 229 N.J. Super. 509
(App. Div. 1988), we applied the conditional res ipsa loquitor
rule of Anderson.2 We held:
[where] a limited number of persons, each
having access or custody of a [child] during
the time frame when a[n] [] abuse concededly
occurred, no one else having such contact and
the [child] being then and now helpless to
identify her abuser . . . the burden would
then be shifted, and such defendants would be
required to come forward and give their
evidence to establish non-culpability.
[D.T., supra, 229 N.J. Super. at 517.]
In the present case, there is no dispute A.D. suffered an
injury. Based upon testimony and the pictures of A.D., the trial
judge found she suffered an injury that would not have occurred
absent an act or omission of her parents or guardian. See N.J.S.A.
9:6-8.46(a)(2). The testimony of the Division workers who observed
2
Anderson v. Somberg, 67 N.J. 291 (1975), certif. denied, 423
U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975).
10 A-0213-15T3
the child's injuries and the pictures are competent, material, and
relevant evidence of A.D.'s abuse or neglect.
Because the injury occurred while A.D. was either in the
custody of R.F. or C.D., the trial judge correctly shifted the
burden to the parents under conditional res ispa loquitur pursuant
to In re D.T. A.D. was in the custody of only C.D. or R.F., and
A.D. did not name her abuser. C.D. and R.F. each bore the burden
to come forward with evidence to rebut the Division's presumption
of abuse and neglect. C.D. rebutted the presumption, but R.F. did
not.
R.F. argues he did not know he needed to present testimony
and was unaware of the burden shifting. He claims his due process
rights were violated because the court failed to inform the parties
the burden of proof might shift. However, the trial judge
specifically advised at the order to show cause hearing both
defendants would have to come forward with evidence to establish
non-culpability. R.F. was on notice of the potential for burden
shifting in advance of the fact-finding.
R.F. argues his due process rights were violated because the
complaint did not allege any specific claims against him, and he
was not given any notice the Division intended to prosecute a
finding against him.
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Due process requires a parent charged with abuse and neglect
"have . . . adequate notice and opportunity to prepare and
respond." N.J. Div. of Youth & Family Servs. v. T.S., 429 N.J.
Super. 202, 213 (App. Div. 2013) (citing N.J. Div. of Youth &
Family Servs. v. B.M., 413 N.J. Super. 118, 126-27 (App. Div.
2010)). Notice must "reasonably apprise the party of the charges."
B.M., 413 N.J. Super. at 127 (quoting H.E.S. v. J.S.C., 175 N.J.
309, 321-22 (2003)). Because of the significant liberty interests
at stake, the fact-finding hearing "must be conducted 'with
scrupulous adherence to procedural safeguards.'" N.J. Div. of
Youth & Family Servs. v. G.M., 198 N.J. 382, 401 (2009) (quoting
N.J. Div. of Youth & Family Serv. v. A.R.G., 179 N.J. 264, 286
(2004)).
R.F. asserts he was denied vital procedural protections
because the issues litigated at the fact-finding hearing were
substantially different from what was in the complaint. However,
the complaint lists R.F. as the father of A.D. and includes the
alleged perpetrator of A.D.'s abuse as "parent(s) or guardian(s)."
R.F. had notice he was named in the complaint, and it was not
determined which parent abused A.D. While the investigation
summary substantiated C.D. for abuse, the findings also stated,
"the allegation is substantiated with an unknown perpetrator."
The Division presented all of the same facts detailed in the
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complaint at both the order to show cause and the fact-finding
hearings, where R.F. was represented by counsel.
In New Jersey Division of Youth & Family Services v. P.C.,
we found a defendant's due process rights were violated when the
trial judge sua sponte found she emotionally abused or neglected
her daughter when the allegations in the Division's complaint only
addressed her ex-husband's sexual abuse of the child. 439 N.J.
Super. 404, 413-14 (App. Div. 2015). The Division named the mother
as a defendant for dispositional purposes, but at trial, the judge
found there was enough evidence to make a finding against her.
Id. at 406.
We reversed because the finding violated "long-standing due
process principles that require a party in a judicial hearing
receive notice defining the issues and an adequate opportunity to
prepare and respond." Id. at 414. Here, the complaint sets forth
a concise premise either R.F. or C.D. struck A.D. R.F.'s due
process rights were not violated; he had sufficient notice of the
manifest allegations in the complaint. The fact C.D. was
originally identified as an alleged perpetrator is inconclusive
13 A-0213-15T3
because the Division's finding was "substantiated-perpetrator
unknown."3
Lastly, we find no merit in R.F.'s argument the trial court's
finding against him gave the appearance of judicial bias because
the trial court focused its attention on him during closing
arguments. Pursuant to Rule 1:12-1(g), a judge should disqualify
him or herself "when there is any other reason which might preclude
a fair and unbiased hearing and judgment, or which might reasonably
lead counsel or the parties to believe so." Our review of the
record discloses no support for the claim the judge was biased.
Affirmed.
3
When a Division investigator finds multiple alleged perpetrators
could have caused the injury to the child, the investigator must
obtain circumstantial evidence that identifies the most likely
perpetrator. N.J.A.C. 3A:10-2.4(d). The Department
representative then must evaluate the available information and
determine whether abuse or neglect occurred, making "every
reasonable effort to identify the perpetrator." N.J.A.C. 3A:10-
7.3(a). Based upon A.D.'s injuries, the Division was able to
substantiate abuse or neglect, pursuant to N.J.A.C. 3A:10-
7.3(c)(1), but was unable to conclude whether C.D. or R.F.
perpetrated the abuse and thus found the abuse to be
"substantiated-perpetrator unknown."
14 A-0213-15T3