N.J. Div. of Child Prot. & Permanency v. J.R.-R. (In re G.R.-R.)

248 N.J. 353

258 A.3d 1094

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,

v.J.R.-R. and G.R.-R., Defendants-Appellants.

In the Matter of G.R.-R., Jr., a Minor-Respondent.

A-56/57 September Term 2019

083807

Supreme Court of New Jersey.

Argued November 9, 2020

Decided September 27, 2021

Laura M. Kalik, Designated Counsel, argued the cause for appellant J.R.-R. (Joseph E. Krakora, Public Defender, Office of Parental Representation, attorney; T. Gary Mitchell, Deputy Public Defender, and Robyn A. Veasey, Deputy Public Defender, of counsel, and Laura M. Kalik, Bedminster, of counsel and on the briefs).

Beth Anne Hahn, Designated Counsel, argued the cause for appellant G.R.-R. (Joseph E. Krakora, Public Defender, Office of Parental Representation, attorney; T. Gary Mitchell, Deputy Public Defender, and Robyn A. Veasey, Deputy Public Defender, of counsel, and Beth Anne Hahn, of counsel and on the briefs).

Sara M. Gregory, Deputy Attorney General, argued the cause for respondent New Jersey Division of Child Protection and Permanency (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel, and Sara M. Gregory and Amy Melissa Young, Deputy Attorney General, on the briefs).

Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for respondent G.R.-R., Jr. (Joseph E. Krakora, Public Defender, Office of the Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel, and Noel C. Devlin, of counsel and on the briefs).

Steven M. Resnick, Livingston, argued the cause for amicus curiae New Jersey Association for Justice (Ziegler, Zemsky & Resnick, attorneys; Steven M. Resnick, Livingston, and Angela M. Scafuri, on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

The Legislature has assigned to the Division of Child Protection and Permanency (DCPP) the burden of proving by a preponderance of the evidence that a parent has committed an act of abuse or neglect against a child in violation of N.J.S.A. 9:6-8.21(c)(4)(b). In this appeal, the issue is whether, in a case where DCPP has established that a child has been abused and neglected while in the care of his parents, the family court can shift the burden of proof to the parents to prove their non-culpability.

DCPP charged J.R.-R. (Jenny) and G.R.-R. (George) with the abuse and neglect of their ten-month-old son G.R.-R. (Gabriel).¹ At an abuse and neglect hearing conducted in the Family Part, the court heard testimony from DCPP caseworkers and medical experts. The family court first determined that DCPP had proven that Gabriel had been abused and neglected and that his parents had been his sole caretakers when he suffered his injuries. Relying on In re D.T., 229 N.J. Super. 509, 517, 552 A.2d 189 (App. Div. 1988), and the doctrine of conditional res ipsa loquitur, the court then held that the burden of persuasion had shifted to each of the parents to establish that they were not culpable. Finding that Jenny and George had not satisfied their burden, the court concluded that DCPP had proven by a preponderance of the evidence the charges of abuse and neglect against the parents.

The Appellate Division affirmed, asserting that the family court properly applied the conditional res ipsa doctrine to shift the burden of proof to the parents, and concluded that sufficient credible evidence in the record supported the court's abuse and neglect findings.

We now reverse. When a court finds that a parent has committed an act of abuse or neglect against a child, the parent faces serious consequences that could include the termination of the parent's custodial rights to the child. In enacting child-welfare laws in Title Nine, the Legislature placed on DCPP the burden of proving by a preponderance of the evidence that a parent abused or neglected a child. N.J.S.A. 9:6-8.46(b)(1). Although the statutory scheme allows for the nature of a child's injuries to constitute prima facie evidence of abuse or neglect under N.J.S.A. 9:6-8.46(a)(2), nowhere in Title Nine has the Legislature authorized shifting the burden of proof to the parent. Neither before nor during the abuse and neglect hearing were Jenny and George given notice that the burden would shift to them to prove that they were not the responsible parties.

The Legislature, mindful of the due process rights of parents, carefully crafted a statutory scheme allocating the burden of proof to the agency that brings charges of child abuse or neglect. DCPP has the authority and resources to prosecute abuse and neglect cases within the metes and bounds of the law. The Judiciary has no commission to exercise equitable powers to alter the statutory burden of proof set forth by the Legislature. We disapprove of the Appellate Division cases that have imported the doctrine of conditional res ipsa loquitur from our common law into a comprehensive statutory scheme to relieve DCPP of its burden of proving that a particular parent abused or neglected a child.

Accordingly, we reverse the judgment of the Appellate Division and remand for a new hearing on the abuse and neglect charges.

I.

A.

In April 2017, DCPP filed an order to show cause and verified complaint seeking temporary custody, care, and supervision of Gabriel who, DCPP alleged, was an abused and neglected child, as defined in N.J.S.A. 9:6-8.21(c). Specifically, DCPP charged Jenny and George with causing "multiple injuries" to their son Gabriel, some "consistent with Shaken Baby Syndrome." The Superior Court, Law Division granted DCPP's application for temporary custody of Gabriel, allowing DCPP to place Gabriel with a resource family. The court also granted Jenny and George the right to have weekly supervised visitation. In accordance with Title Nine, the court scheduled a hearing to determine whether Jenny and George neglected or abused their son.

During a five-day bench trial in the Family Part in April and May 2018, the court heard the testimony of five witnesses and reviewed multiple exhibits, including the investigation report of DCPP caseworker Doris Montalvo. The record before us consists of the testimony and evidence elicited during that hearing.

B.

At the hearing, DCPP called to the stand caseworker Montalvo, whose investigation report and testimony provided the basis for bringing the abuse and neglect charges.

On March 29, 2017, Jenny and George brought Gabriel, then ten months old, to a scheduled appointment with a pediatrician. Two days earlier, Gabriel had begun showing symptoms of illness, including fever and vomiting. When Jenny and George brought Gabriel to the pediatrician's office, he was in respiratory distress, and the decision was made to transport him to Inspira Medical Center in Vineland, New Jersey. At Inspira, Gabriel received a diagnosis of meningitis. He was then transferred to the intensive care unit of Nemours/Alfred I. duPont Hospital for Children in Delaware, where he could receive a higher level of care.²

The pediatric neurosurgeon on duty at duPont, Dr. Joseph Piatt, testified that Gabriel arrived with a diagnosis of life-threatening bacterial meningitis³ and had to be intubated because of epileptic seizures. Diagnostic imaging of Gabriel's brain showed a spillage of some blood and a fluid build-up around the outside of the brain.⁴ Gabriel also presented with retinal hemorrhages in the back of the right eye, a single bruise to the right eye, and stretched and torn ligaments in the neck that required his neck to be immobilized.

Dr. Piatt opined that meningitis did not explain the bleeding around the outside of Gabriel's brain, the retinal hemorrhages, or the neck injury. He noted that violent movements of the head -- "an acceleration or deceleration injury" -- could cause those types of injuries. However, he did not offer an opinion on how the injuries actually occurred.

Dr. Allan DeJong, the Medical Director of duPont's Children At Risk Program and a physician board-certified in pediatrics and child abuse and neglect, testified that his evaluation of Gabriel's case led him to the conclusion that Gabriel suffered physical trauma unrelated to bacterial meningitis. He did indicate, however, that the only "visible sign of trauma" was the bruise over Gabriel's right eye.

Dr. DeJong stated that the blood surrounding Gabriel's brain, the retinal hemorrhages, and the neck injury were not consistent with a meningitis diagnosis. He also observed a well-healed injury to Gabriel's forearm bone and further noted that fluid surrounding his pancreas, along with an elevated level of the enzyme lipase, suggested abdominal trauma. Additionally, Dr. DeJong emphasized that Gabriel's neck injury, evidenced by ligament damage and blood found between the spine and spinal cord, "is highly associated with [a] violent shaking type of injury." Overall, Dr. DeJong opined that the "multiple unexplained injuries [were] consistent with abusive injury."⁵

In contrast, the joint defense medical expert, Dr. Joseph Scheller, a physician board-certified in pediatrics and pediatric neurology, testified that he found no "evidence of abusive head trauma" -- "[n]o scalp injury, no skull injury, no brain injury" -- and he offered alternative and innocent explanations for the findings made by Drs. Piatt and DeJong. Dr. Scheller observed that the bones in Gabriel's neck were "perfectly normal" and reasoned that the strained neck ligaments could have occurred during the procedures to intubate and place a spinal tap in the ten-month-old child. He also stated that meningitis is one of the known causes of retinal hemorrhaging. Additionally, Dr. Scheller's review of the diagnostic imaging showed only a thickening of the arm bone, not evidence of a fracture.

Dr. Scheller explained that the presence of "four drops of blood" and fluid between Gabriel's brain and skull could be attributed to a serious brain infection -- meningitis -- and the resultant fever and seizures, as well as a congenital condition,...