On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, FN-10-18-01.
Before Judges Stern, Eichen and Collester.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2001
Pursuant to leave granted, plaintiff, the New Jersey Division of Youth and Family Services (Division), appeals from a fact- finding order of the Hunterdon County Family Part on July 8, 2001, dismissing its complaint for continuing custody of four children of defendants, Robert M. and Brenda M., on grounds that the Division failed to prove abuse or neglect under N.J.S.A. 9:6-8.21 et seq. *fn1
We granted and extended a stay following the filing of a notice of appeal by the Division.
Defendants have four natural sons: Robert, Jr., born February 13, 1984, Richard, born September 23, 1985, Raymond, born October 24, 1991, and Jonathan, born February 11, 1992. The family is deeply religious and closely bonded. The children were home schooled by their mother until recent years and attended church services faithfully with their parents. Mr. M. works as a motor vehicle mechanic manager in a local business. Mrs. M. is a homemaker. They lived in their own home, a four bedroom ranch in Union Township, Hunterdon County.
After attending a church meeting in 1998, defendants decided that it was their Christian duty to adopt an impoverished child from a foreign country. They first sought adoption of a child in Brazil but were unsuccessful. Through a lawyer they arranged for an adoption agency to perform a home study preparatory to placement of a child. In the fall of 1999 they were contacted by the agency and told that four year old twins at an orphanage in Siberia were available for adoption. Defendants went to Russia and discovered the twins had a brother in another orphanage. They adopted all three children in Russia on December 16, 1999. They renamed the twins James and Jeziah. Their six year old brother was named Viktor.
Defendants returned to New Jersey shortly before Christmas 1999, with their three adopted sons to form a new family of nine. Mrs. M. said the three new children were malnourished and ate "veraciously. . .anything they could get their hands on because perhaps the children had the feeling that food would not be there the next day." Viktor was the worst in appearance, looking "Ethiopian". He ate so much that Mrs. M. had to limit his intake at each meal so that he would not overeat. He also rejected affection. He would not hug and became stiff as a board when someone tried to hug him. Mrs. M. began giving him a baby bottle so that he would snuggle on her lap. He was also prone to temper tantrums when he would flail and lash out at others.
Viktor's main problem was his dysfunctional sleep pattern. He would lie in bed, picking at his finger or feet or playing with his mouth. He would try to wake up his brothers and at times would roam the house. In order to stop him from disturbing other family members, Mrs. M. put a mesh net over his crib. She felt that at times Viktor would "get even with her" for keeping him in his "cage" by purposely wetting or soiling and waking her to change linens in the middle of the night. There were times when she was only able to sleep two to three hours a night.
Viktor and his brothers were seen for physical examinations, immunizations and medical care by Dr. John Eck, defendants' family doctor, and his wife, Dr. Anita Eck, an internist. Both were members of defendants' church and were so impressed that defendants had given a home to the Russian children that they did not charge for office visits. The children were seen on December 29, 1999, a few days after their arrival, and twice more in June 2000. At no time did either Dr. Eck see evidence of fractures, bruises or unusual scratches on Viktor, and they were never told of any self- mutilation. What was reported was Viktor's insomnia and bed- wetting. Defendants were given samples of three different antidepressant medications to alleviate those problems.
The weekend of October 29 and 30, 2000, were momentous in the short life of Viktor M. According to Mrs. M.'s statement, he was wakeful in the middle of Saturday night and soiled himself in his bed. After he was showered, he was shivering. Mrs. M. was concerned and stayed with him Sunday morning while the rest of the family went to church. She gave the Division worker the following narrative of that morning:
Mrs. M. said that on 10/28/00 (this past Saturday) she did not think Viktor's behavior was unusual although he had seemed limp and lethargic but that on Sunday 10/29/00 "it was different." She said that his eyes looked different and that he was not getting better so she decided that as soon as her husband got back from Church they would take him to the doctor. This would be around 12:00 or 12:30 p.m. She indicated then that she gave him his bath, changed him, wrapped him up and he seemed fine and then she sat him in the chair with her and cuddled him and gave him a bottle. She said very sadly that he fought her and that he stiffened his legs and clenched his teeth so hard that she couldn't open his mouth. She said that she then tried to dribble food in his mouth so that would taste the food and open his mouth but it did not work and she then realized he was unresponsive. She began tapping on his head but realized he was just staring and not responding. She indicated that on 10/29/00 Viktor had awakened her at around 2:00 or 3:00 a.m. Viktor laid in his bed and grunted. She said that that is what he usually does and that if he really wanted attention he would stand in the corner and scream until someone came. She indicated adamantly that she had no idea what happened on 10/29/00, only that "the sparkle left his eyes."
At 12:19 p.m. Mrs. M. called 9-1-1. Minutes later emergency medical technicians arrived while Mrs. M. was giving Viktor CPR. The EMT personnel reported Viktor was cold and not breathing. They intubated him, initiated ventilation, administered epinephrine and rushed him to Hunterdon Medical Center. On arrival his rectal temperature was markedly hypothermic at 83.2 degrees. His eyes were fixed and dilated. No pulse was found. He could not breathe spontaneously. His white and red blood counts indicated severe anemia.
Viktor was transported by helicopter that afternoon to the Pediatric Intensive Care Unit at Robert Wood Johnson University Hospital. His condition remained critical. His body temperature was 80 degrees Fahrenheit. He had no neurological response. His eyes remained fixed and dilated. He was in septic shock with fluid in his lungs. A radiological review showed a total shutdown of kidney function as a result of the severe prolonged anoxia suffered during cardiopulmonary arrest. A medical order was issued stating "Do Not Resuscitate."
The following day, October 30, 2000, the Division Special Response Unit was notified that Viktor was at the hospital in critical condition with suspicious injuries consisting of cuts and extensive bruising on his legs, knees, arms, hands and forehead. Caseworker Christine Baxevane responded and spoke with defendants. When asked about the cuts and bruises, both said that they were the result of self-mutilation by Viktor. The other six children were examined on that date and found to be in good health.
Viktor M. died on October 31, 2000. He was not yet seven years old. He had been in the United States for ten months.
An autopsy was performed the following day by Dr. Carlos A. Fonseca, Hunterdon County Medical Examiner. Among his findings were lesions on Viktor's back, abrasions in the area of his spine as well as his right elbow, right wrist, right index finger and swelling on the back of the right hand. Dr. Fonseca also found abrasions on the left elbow, swelling at the back of the left hand, and puncture marks on the right forearm. Irregular abrasions were noted on the left kneecap, and bruising on the left leg. Viktor's stomach was partially distended. The cause of death was listed as "undetermined pending further studies."
As a result of Viktor's death, a Medical and Fatality Report was prepared by Dr. Susan Hodgson, Medical Co-Director of the Child Protection Center of the New Jersey Central Abuse Center, and was submitted on November 8, 2000, to the Division and the Hunterdon County Prosecutor's Office. The report set forth the following physical findings suggestive of physical abuse.
[H]is scalp, chin, back, elbows, hands, knees, lower legs and feet (including the soles of his feet) were covered with round and linear scabbed scratches. His scalp, elbows, knees, skin, and the backs of both hands, and his sacrum, buttocks, and hips were covered with fresh and old bruises. He had a healing (approximately 2 weeks old) buckle fracture of the proximal end of his left 4th proximal phalanges on the left hand; he had 3 uncalloused (less than 7 days old) buckle fractures of the proximal ends of his right index finger, 4th and 5th proximal phalanges on his right hand. He had signs of early cellulitis around the scabbed scratch marks on the lateral side of his left foot. He had fresh blood (hemotympanum) behind his right eardrum. He had significant swelling and bluish fresh bruising over his right hand fingers, dorsum of his right hand and extending to the dorsal right wrist. He had extensive fresh bruising on his left calf and petechiae and fresh bruising over the left skin and left lateral leg. The fresh bruising and swelling of the dorsum of the right hand suggests that the fractures in his right hand may have occurred within 48-72 hours prior to his hospitalization at Robert Wood Johnson University Hospital Pediatric Intensive care Unit on 10/29/00.
The report cast doubt on defendants' explanation of the injuries as self-inflicted.
His parents' "explanation" for all these skin findings, even the scratches and scabbed marks on the back, were due to "self-mutilation." His parents could offer no explanation for the fresh bruising on his right hand, nor for the underlying fractures in his hands. Nor could they account for the extensive diffuse bruising over his sacrum and hips.
The extent and location of his skin findings was truly horrifying. While some of the scabs and scratches might be the result of self-mutilation, the Child Protection Center staff who have discussed and reviewed this case feel that many of the scratches and the bruising on his back and the fractures of different ages in both hands may have been inflicted upon Viktor.
Dr. Hodgson considered medical neglect to be a contributing factor to the child's death.
Viktor's parents sought no medical attention for his skin wounds. They sought no attention for his fractures.
Viktor's parents sought no medical or pediatric psychiatric evaluation for Viktor's clearly out of control behavior swings, alleged self injury, and sleep disorder for over four months. They never obtained a pediatric neuropsychiatric evaluation for this clearly suffering child.
Dr. Hodgson was also critical of the continued use of adult antidepressants for Viktor's sleep disturbances.
At the time of his medical visits on 6/7/00 and 6/15/00 Viktor's parents were given samples of at least three different antidepressive medications – Paxil, Tofranil, and lastly Remeron (on 6/15/00), supposedly to be given for sedation at night for his insomnia. Viktor had never received a pediatric neuropsychiatric evaluation. The choice of a trial of "antidepressants" for Viktor's sleep disorder was never based on a sound medical diagnosis. It was hoped that the sedating side effects of these classes of medication might prove helpful to Viktor's sleep dysfunction. Two of the medications which were given to Viktor's parents (Paxil and Remeron) have not been FA approved for use in children Viktor's age. Remeron is a new class of antidepressant which has never been field tested in children. How many samples of these medications were given or the schedule for treatment of length of treatment were not clear. Once Viktor's family started treating him with medications for his sleep disorder they pursued no further medical follow-up even though his behaviors markedly worsened (the alleged self-mutilation began).
It is possible that Viktor's parents' unsupervised persistence in the off-label use of Remeron for sedation of Viktor at night created some of Viktor's alleged self- mutilatory behaviors. One noted side effect of Remeron is pruritis or severe itching; other adverse effects may include manic or anxious behaviors, dizziness, and loss of cognitive function. It is also possible the use of Remeron may have led to Viktor's unusually low white blood count (we await microscopic autopsy evaluation of his bone marrow). (It is also possible that his prolonged anoxia by the time of his resuscitation contributed to his low blood count).
While it should have been totally clear to Viktor's parents from simply looking at Viktor's skin and behavior that this medication was not working, his parents persisted in their attempts to sedate him at night and sought no further professional or medical assistance.
On November 8, 2000, the same day that Dr. Hodgson's report was issued, defendants were arrested and charged with child endangerment. They were released on bail with the specific condition that they have no contact with their children.
On the day of their parents' arrest, the remaining children were taken to the Hunterdon County Prosecutor's Office to be interviewed. The Division was notified to be present as part of the multi-disciplinary team and to avoid multiple interviews of the children by the Division. Caseworkers Christina Baxevane and Chris Crielly did not participate in questioning but observed the interviews, which were recorded both on audio and video tapes maintained by the prosecutor's office.
After the children were placed in temporary foster care overnight, the Division filed a complaint for protective services and an order to show cause for immediate custody, care and supervision of the children. As a result physical custody was given to the paternal and maternal grandmothers. Over that weekend an agreement was reached for defendants to move into the paternal grandmother's house and the paternal grandmother into the family home so that the children could be in their home and schools. Subsequently, the four natural children were placed with the pastor of defendants' church. The adopted twins were first placed in the custody of other church members and later in foster care. Defendants were permitted unsupervised visitation with the two oldest children and supervised visitation with the others.
On the November 30, 2000 return date of the Division's order to show cause the status quo was continued with a direction that the defendants undergo psychological evaluations. Defendants then filed an order to show cause for return of their children. An order was later signed for appointment of four separate law guardians to represent the children.
On December 26, 2000, Dr. Fonseca submitted his final autopsy report. He amended Viktor's death certificate to state the cause of death as cardiac arrhythmia due to hypothermia and the manner of death as homicide.
Also on December 26, 2000, a report was submitted to the Division by Dr. Michael Fiore and Margaret Pittaluga, MSW, LCSW, of the Center for Evaluation and Counseling summarizing their interviews with the four older children in connection with a risk assessment at the Division's request pursuant to the order of November 30, 2000.
The first interview was with Raymond, who said Viktor slept in a crib with a string "cage" over it so he could not get up during the night. Raymond added that sometimes his mother would put the crib in ...