NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. IN THE MATTER OF AND (2014)

By leave granted in this abuse and neglect case, the New Jersey Division of Child Protection and Permanency (the “Division”) appeals from three orders ¹ returning C.M., born in January 2012, and D.M., born in April 2008, to defendant M.D. (the “mother”).   We reverse, remand, and direct the judge to conduct a fact-finding hearing.

We discern the following facts from the record.   In October 2012, the mother brought C.M. to the hospital with a fractured right arm and said that he had fallen off a bed.   Ten days later, a follow-up examination revealed that C.M. also had healing fractures of his left wrist and ribs.   The orthopedist reported this information to the Division.

The Division interviewed the mother;  defendant J.M. (the “father”);  and defendant R.C. (the “aunt”), the mother's sister who resided with the mother and the father at the time.   The mother denied ever seeing the father or the aunt handle C.M. roughly and stated that C.M. had not had any other recent falls.   Both the father and the aunt denied being home when C.M. purportedly fell off the bed.   D.M. reported to a day care worker that the father had punched C.M. The mother later admitted that D.M. reported this abuse to her, but stated that she did not believe D.M. The Division then conducted an emergency Dodd removal of the children.²

The father later claimed that he had dropped C.M. The mother admitted that the father had squeezed C.M. very tightly until the child cried and the mother took the child away.   The aunt later reported that the father hit, punched, and kicked the children, and that she told this to the mother but the mother did not take any action to prevent further abuse.   The father was arrested, charged with endangering the welfare of a child, N.J.S.A. 2C:24–4, and was incarcerated.

Without conducting a fact-finding hearing, the judge ordered reunification with the mother.   The judge issued a written decision holding that “[t]he material facts as taken from the complaint preponderate that [the father] committed the physical abuse,” and because the father was incarcerated and there was a protective order, “the Division has not shown immediate and irreparable harm” to support foster care placement.   The judge also noted that there were inconsistent factual allegations regarding whether individuals other than the father, mother, and aunt had access to the children.

We stayed the reunification orders and remanded the matter for further proceedings.³  In October 2013, the trial court conducted the permanency hearing and noted that “there has been no fact finding or trial in this case,” rejected the Division's permanency plan, and directed the Division to request that this court lift the stay if the Division's goal was reunification.

On appeal, the Division argues that the judge erred by returning the children to the mother without conducting a fact-finding hearing.   The Division maintains that there are unexplained multiple fractures and that it was improper to return the children to the mother without an adjudication of whether the mother abused and neglected the children.   The Law Guardian also contends that a fact-finding hearing is required and seeks a remand for that purpose.

The children had three caregivers:  the mother, aunt, and the father.   Without conducting a fact-finding hearing, the judge determined that it was safe to return the children to the mother, presumably because the father had been incarcerated for endangering the welfare of a child.   But even if the father caused C.M.'s fractures, the Division contended that the mother and aunt abused and neglected the children too.   The judge never resolved that contention by conducting a fact-finding hearing.

When there are a “limited number of persons” who had access to a child during the time frame when abuse occurred, the Division must establish a prima facie case of child abuse, and the burden of proof then shifts to the defendants to establish non-culpability.  In re D.T., 229 N.J.Super. 509, 517 (App.Div.1988);  see also N.J. Div. of Youth & Family Servs. v. J.L., 400 N.J.Super. 454, 468–69 (App.Div.2008).   In contrast

where the child is exposed to a number of unidentified individuals over a period of time, and it is unclear as to exactly where and when the child's injuries took place, traditional res ipsa loquitor principles apply․  [T]he burden of proof will not shift to the parents to prove their non-culpability by a preponderance of the evidence.   The burden of proof will remain on the Division.

[J.L., supra, 400 N.J.Super. at 470.]

We remand for a fact-finding hearing and a permanency hearing.   We direct the judge to make appropriate findings of fact and conclusions of law as to burden-shifting and whether the mother and the aunt abused and neglected the children.   We do not retain jurisdiction.

FOOTNOTES

FN1. Dated October 22, 2012;  November 2, 2012;  and November 15, 2012..  FN1. Dated October 22, 2012;  November 2, 2012;  and November 15, 2012.

FN2. A “Dodd removal” refers to the emergency removal of a child from the home without a court order, as authorized by N.J.S.A. 9:6–8.29 of the Dodd Act, N.J.S.A. 9:6–8.21 to –8.82..  FN2. A “Dodd removal” refers to the emergency removal of a child from the home without a court order, as authorized by N.J.S.A. 9:6–8.29 of the Dodd Act, N.J.S.A. 9:6–8.21 to –8.82.

FN3. On November 15, 2012, the trial court considered a report based on a psychological evaluation of the mother.   The court entered another order for reunification, but stayed the order pending our clarification on whether the court had authority to enter the order..  FN3. On November 15, 2012, the trial court considered a report based on a psychological evaluation of the mother.   The court entered another order for reunification, but stayed the order pending our clarification on whether the court had authority to enter the order.

PER CURIAM