New Jersey Division of Child Protection and Permanency v. J.R.-R.

New Jersey Division of Child Protection and Permanency v. J.R.-R. (A-56/57-19) (083807) November 9, 2020 -- Decided September 27, 2021 ALBIN, J., writing for a unanimous Court.

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 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. The bench trial began in May 2018 to determine abuse or neglect.

Jenny and George brought their child to a scheduled pediatric appointment. Two days earlier the child began showing signs of illness with a fever and vomiting. Gabriel presented at the pediatric appointment he was in respiratory distress and was transported to Inspira Medical Center in Vineland NJ where he was diagnosed with meningitis and then transferred to the intensive care unit at DuPont Hospital for children in Delaware. DuPont physicians, Dr. Piatt and Dr. DeJong, testified with regard to the child’s diagnosis of bacterial meningitis with additional injuries including bleeding around is brain, retinal hemorrhaging, bruises, and a torn ligament in his neck. It was both doctors opinion that meningitis did not explain the additional injuries to the child. While Dr. Piatt did not have any opinion regarding how the injuries occurred, Dr. DeJong opined that the injuries were consistent with abusive behavior. Defense expert Dr. Scheller, testified that he found no evidence of abusive head trauma and further provide explanations for how the child might have sustained the additional injuries absent abuse or neglect. The Court found all three medical experts credible but gave greater weight to the testimony of Drs. Piatt and DeJong than that of Dr. Scheller.

The Court must find that DCPP has proved by a preponderance of the evidence that a parent has abused or neglected their child. Here, the 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 (App. Div. 1988) and the doctrine of conditional res ipsa loquitur, the court held that the burden of persuasion had shifted to each of the parents to establish that they were not culpable. Ultimately 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. Applying In Re D.T. at 517, the trial Court required, “the only two people [who] had dominion, control and also a legal duty to protect and care” for their son -- to rebut by a preponderance of the evidence “that they either inflicted or allowed to be inflicted these injuries.” The court determined that, despite some “benign explanations,” the “constellation of injuries” indicated “shaken baby syndrome” -- “an event of significant traumatic force [that] likely . . . involved rapid shaking of the child.” According to the court, “the telltale signs” of injury to the neck particularly supported that conclusion -- a conclusion not “explained away” by any credible evidence “other than Dr. Scheller’s medical speculation at best.” The trial court held both Jenny and George responsible for abuse and neglect under Title 9 and terminating both party’s parental rights without specifying who failed to supervise or caused the injuries. On appeal, the Appellate Division affirmed the trial court decision finding a proper application of the doctrine of conditional res ipsa loquitur in ruling against Jenny and George.

On appeal, Jenny and George argue a violation of their due process rights because (1) at no point were they noticed of the shift in the burden of proof upon a finding of abuse or neglect, (2) Title Nine does require the alleged to prove a lack of culpability, and (3) DCPP failed to present sufficient credible evidence to sustain the finding of abuse or neglect. As amicus, the NJAJ asked that the Court bar the application of Conditional res ipsa loquitur in the future to ensure that the burden of persuasion always remains with DCPP.

DCPP argued that (1) there was not burden shift but a failure to rebut the presumption of abuse or neglect which is consistent with the res ipsa principles implied by NJSA 9:6-8.46(a)(2), (2) even if there was a burden shift, the Defendants received notice of that shift from the complaint and investigative report, (3) and that the finding of abuse and neglect is supported by the record. On behalf of Gabriel, the Law Guardia concedes that there was a burden shift to Jenny and George but that it is equitable in furthering the goal of protecting children.

On a de novo review the Court distinguishes between the Division’s ability to draw an inference from prima facie evidence of abuse and neglect and the application of res ipsa loquitur to shift the Division’s statutory burden before a trier of fact. The ultimate burden of proof remains with the plaintiff and the permissive nature of the doctrine implies that a trier of fact could reject it. The Court differentiates between its adaption of the common law in application of the doctrine in case law and its role in construing a statute or statutory scheme. The court ensures public policy in shaping common law and in passing law; the legislature ensures public policy through the democratic process. Thus, the court can only give effect to legislative intent when engaging in statutory interpretation to ensure that it does not subjugate legislature’s authority. The court compares the abundance of the agency’s investigative resources to the severity of consequence for parents found to be child abusers as likely being considerations in the legislature’s decision to place the burden of proof with the child welfare agency.

HELD: The court rejected the burden shifting paradigm in D.T. as applicable in abuse and neglect proceedings due to its conflict with the statutory framework of Title 9. The court remanded to the trial court to conduct a new hearing that adheres to Title 9. In resolving the matter on statutory grounds, the court declined to address the constitutional claims.