SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6202-00T1F
DIVISION OF YOUTH AND FAMILY
SERVICES,
Plaintiff-Appellant,
v.
ROBERT M. and BRENDA
M.,
Defendants-Respondents,
IN THE MATTER OF ROBERT M., JR.,
RICHARD M., RAYMOND M.,
JONATHAN M., JAMES M.,
and JEZIAH M.,
Minors.
__________________________________
Submitted September 17, 2001 - Decided January 24, 2002
Before Judges Stern, Eichen and Collester.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon
County, FN-10-18-01.
John J. Farmer, Jr., Attorney General,
attorney for appellant (Michael J. Haas,
Assistant Attorney General, of counsel;
Lisa B. Landsman, Deputy Attorney General,
on the brief).
Arthur J. Russo, attorney for respondent
Robert M., Broscious, Glynn & Fischer,
attorneys for respondent Brenda M. (Mr.
Russo and James W. Broscious, on the
joint brief).
Harold J. Bush, Law Guardian for minor
Robert M.
Vincent J. Gaughan, Law Guardian for minor
Richard M.
Deborah Berk, Assistant Deputy Public
Defender, Law Guardian for minors Raymond M.
and Jonathan M.
Deborah Toth O'Donnell, Law Guardian for
minors James M. and Jeziah M.
The opinion of the court was delivered by
COLLESTER, J.A.D.
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. See footnote 11
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 the unheated garage so that Viktor could not be heard.
Raymond also spoke about Mrs. M.'s disciplining techniques:
My mom got a five-foot whip and a cat-o-nine
tails. My mom only said she was only going to
use it on us. She wanted it to last for a
long time. Now the leather is getting old.
She didn't hit us with it. She'd only hit
with her hand. All of us got hit usually on
our butt. She did it nicely so we wouldn't
get too hurt. She did it to make her point.
We would just get red. Before all of the new
brothers came over, she'd use a belt because
we were tough. She didn't want the little
guys would tell people in church or their
preschool she hit with a belt, so I think she
stopped. My mom didn't want to get in trouble
from people thinking it was child abuse. She
was worried we would say things to people.
She said we should be careful about what we
say or people would get her in trouble and we
wouldn't see her for a long time. This is
what she has been saying since [Viktor] died.
The oldest son, Robert, Jr., told Dr. Fiore he participated in
the disciplining of the younger children at times but added that it
was not "abusive or extensive." Robert, Jr. also said that his
mother would put Viktor in a crib in the garage with a cover on it.
At times his parents put duct tape over Viktor's mouth because he
would scream when he was put in the garage. Later Viktor was taken
out of the garage because "we didn't want to put heat on in the
garage." He would sometimes be locked in the pump room when he
misbehaved. The pump room had cinder block walls, a concrete
floor, no lights, and no bed. The children described it as dirty,
extremely cold, and prone to flooding.
As to other disciplining, Robert, Jr. said that Viktor would
be put in cold showers when he wet his bed. He stated that his
mother used the whip only to scare Viktor and that he was struck
only when he threw himself in the direction of the whip.
Richard was largely unresponsive to Ms. Pittaluga's questions.
He said Viktor would overeat, his table manners were awful and he
ate at a separate table from the rest of the family. On one
occasion Viktor was fed a diet consisting of beans and peas. His
parents would sometimes set a timer, and Viktor would not be
allowed a glass of water unless he finished on time.
Jonathan was more cooperative. He said that his parents told
him "not to tell" because if he told the truth, they would go to
jail. Regarding the disciplining of Viktor, Jonathan said:
We'd put him in a little crib like a playpen
or the bathtub and he would sleep in there.
We also locked him in the bathroom. My dad
used to use a hanger and lock him in there.
There was another lesson that if he peed in
his pants, he would go in the shower with the
water all the way cold. It was to teach him a
lesson. That lesson was taught to the twins
too. Raymond got a cold shower once for not
letting the twins go to the bathroom.
Sometimes [Viktor] got a bath all the way hot.
It was a lesson for him to sleep. I had to
watch him. He would scream. It was plain old
screaming ... like "mama I want out." But we
would just ignore him.
Jonathan related that James and Jeziah did not get cold
showers, but they got a very cold bath on one occasion. He said
his mother used a whip and a cat-o-nine tails on Viktor, James, and
Jeziah, and his father used the whip on Viktor. Viktor, James, and
Jeziah would be made to run in place while carrying a bat over
their head if they did not go to sleep. According to Jonathan, "if
they got tired, they'd get whipped or hit with the bat."
Jonathan also stated that his mother would bend fingers back
and would "break their fingers if they touched their diapers." His
parents would place band aids over Viktor's eyes as he was not
permitted to "see the other children being good or see them eating
good food." He added that his parents would tie James and Jeziah
with rope when they misbehaved. At times Robert, Jr. would hit
James and Jeziah and put socks in their mouths until they ate.
Mrs. M. would also hit Jeziah in the head with her hand or
something else.
James reported that his parents would hit Viktor with a belt
and sometimes he was punished by being put into the pump room.
James added that injuries observed on his own back and stomach were
because his mother hit him with a belt.
The Division filed amended complaints on January 11 and
January 12, 2001, alleging abuse of Viktor and the other children
based in part on the November 8, 2000, interviews with the children
at the Hunterdon County Prosecutor's Office and the interviews by
Dr. Fiore and Ms. Pittaluga, the report of Dr. Hodgson and the
final autopsy report. The fact finding hearing began on January
25, 2000, less than three months after Viktor's death and during
the time that the prosecutor's investigation into the death of
Viktor was still on-going.
The continued criminal investigation caused delays and
problems of discovery. Because defendants had not received
transcripts of the November 8, 2000, interviews at the Hunterdon
County Prosecutor's Office, the trial judge ruled that Division
caseworkers Baxevane and Crielly were not permitted to testify as
to the statements of the children even though their notes were made
available.
Similarly, the report of Dr. Fiore and Ms. Pittaluga was
redacted to exclude references to the interviews of the children at
the prosecutor's office, and their testimony was restricted to
exclude any references to their interviews. However, Dr. Fiore was
permitted to testify as to his overall assessment that Viktor was
subjected to consistent physical and emotional abuse as well as
neglectful parenting. He opined that the remaining children should
not be returned to their parents at that time because of risk for
parental physical and emotional abuse as well as potential abuse
within the sibling subsystem by Robert, Jr.
Other events unfolded during the fact finding hearing which
resulted in further delays and discovery problems. On February 1,
2001, Dr. Hodgson amended her report by a letter in which she
concurred with Dr. Fonseca's opinions in the final autopsy report.
Dr. Hodgson issued her final report a month later in which she
concluded:
Viktor [M] died as a result of hypothermia.
His hypothermia was a perpetrated injury or
punishment from cold showers, frigid baths
and/or being "caged", to sleep in
insufficiently heated locations. His
extensive bodily bruising and abrasions were
the results of physical abuse. His injuries
showed multiple ages, indicating recurrent
abuse. Forensic assessments of the other M.
children, witnesses to Viktor's "care" and
punishment, reveal "a picture of consistent
physically abusive, emotionally abusive, and
neglectful parenting." (Dr. M. Fiore,
Forensic Assessments.) This abusive parenting
resulted in the untimely death of Viktor M.
After receipt of this report, defense counsel sought leave to
obtain a defense medical expert and demanded discovery of the
following:
1. All autopsy photographs
2. All autopsy body diagrams
3. Any and all photographs of seized items
by the Hunterdon County Prosecutor's
Office from the [M.] residence
4. Any and all post-mortem x-rays
5. Complete forensic death medical
investigation
6. Interim toxicology results
7. Complete record of statements of the [M.]
children at the Hunterdon County
Prosecutor's Office
Since some of these materials were within the exclusive
control of the county prosecutor, the deputy attorney general
representing the Division faxed a letter on March 16, 2001, to the
first assistant prosecutor advising that she did not have the
requested materials and inquiring as to whether the prosecutor
would make them available. The prosecutor's response was that
criminal charges were pending presentation to the Hunterdon County
Grand Jury and that "my office will not provide any material
obtained in the course of our criminal investigation other than
through the appropriate criminal discovery process outlined in R.
3:13-3. That means, as we have said repeatedly, no pre-indictment
discovery will be provided either directly to the defendants or
through your office."
This response reflected the consistent position of the
prosecutor. On March 13, 2001, the prosecutor obtained a
protective order from the assignment judge that no member of the
prosecutor's office would be required to testify in the Family
Court proceeding. On March 20, 2001, the deputy attorney general
filed a motion before the presiding judge of the Criminal Division
for release of the transcripts by the prosecutor. The motion was
rendered moot when the prosecutor's parallel criminal investigation
finally culminated in the return of an indictment against
defendants on March 28, 2001.
That indictment charged defendants with aggravated
manslaughter in the death of Viktor, N.J.S.A. 2C:11-4a; the lesser-
included offense of manslaughter, N.J.S.A. 2C:11-4b; and separate
counts of criminal endangerment under N.J.S.A. 2C:24-4a alleging
(1) Viktor was confined in the unheated pump room for extended
periods; (2) defendants failed to provide necessary medical care
for Viktor; (3) defendants inflicted excessive corporal punishment
on Viktor; and (4) defendants fed him excessive quantities of
uncooked, dried beans to cause him physical distress. A final
count charged defendants with tampering with witnesses, N.J.S.A.
2C:29-3a(3), by inducing their children to withhold information.
Defendants entered pleas of not guilty and await trial as of this
writing.
Following return of the indictment, discovery of the
children's statements was made available under R. 3:13-3 to defense
counsel who represented defendants in both the Criminal and Family
Court actions. A consent order on May 25, 2001 released copies to
the Division.
Discovery issues also arose with respect to autopsy materials
sought by defendants for review by an expert pathologist. On March
20, 2001, the deputy attorney general wrote to Dr. Fonseca for
production of the requested material. She was advised a week later
that the photographs, diagrams and microscopic slides had not been
located. The slides were never located. On April 18, 2001, Dr.
Fonseca located autopsy diagrams, which were then faxed to defense
counsel. After a set of autopsy photographs were found in the
possession of the prosecutor, the deputy attorney general advised
defense counsel on April 23, 2001, that they were available for
inspection at the prosecutor's office. However, defense counsel
demanded their own set of photographs. Subsequently, the negatives
were found at the New Jersey State Police forensic laboratory. On
April 27, 2001, the deputy attorney general submitted an order to
expedite the production of a set of the autopsy photographs. The
order was signed by the trial judge on April 30, 2001.
Two days later on May 2, 2001, the Division sought to
introduce the November 8, 2000, statements of the children. The
trial judge sustained defense objections and excluded the
children's statements given to the prosecutor as well as witness
references or opinions based on them by the Division's witnesses.
Also excluded were the autopsy reports and any testimony or
evidence based on the autopsy performed on Viktor including
applicable portions of Dr. Hodgson's reports and her proposed
testimony. The judge gave the following explanation:
I think it's time that I take the case in
hand because I think it reflects badly on my
ability to manage my calendar and to manage
cases so that they are heard expeditiously and
fairly. I see no reason for me to sit here as
a potted palm, as it were, and allow this to
go on in this fashion.
The division made no effort to get these
records of the children's interviews from the
Prosecutor's Office and in fact, perhaps, may
have joined in the objection that was filed
with the Presiding Judge. I don't know
because I don't pay any attention. I'm trying
to stay focused on what goes on in this
courtroom and to absolutely ignore everything
else.
But I do know I have from early days
suggested to you that there will be no
testimony in regard to what was said in the
Prosecutor's Office without copies of those
tapes. And we didn't have them when we
started this. We didn't have them within a
reasonable period thereafter and they are not
going to be allowed now. Absolutely not.
It is beyond the pale for you to come in
and suggest that this dilatoriness should be
condoned by the Court by overlooking it and
permitting it to be used at this stage of this
overly long fact-finding hearing and it is not
going to be permitted to be admitted into
evidence. I will sign an order and you can
appeal it. But I will not permit it. Let
somebody else call that shot, but I will not.
I am embarrassed to be presiding over these
proceedings.
All right, what else you want to address
in regard to the autopsy? It seems to me that
likewise should be excluded because we do not
have the necessary _ the necessary documents.
And I think this case will have to stand or
fall on the testimony that children told the
doctors during their interviews. I see no
other way around this lack of timely _ we have
standards under ASFA to move these cases.
There's no reason since DYFS was involved
in this case from Day One, why this
information is not before the Court months
ago. I can't in good conscience suggest that
this can go on open-ended forever and I can't
condone that kind of dilatoriness by now
permitting that information to be put into
evidence in this Court. I cannot.
Defendants called as witnesses Rev. Szierer, the children's
minister with whom the four natural children resided; Phyllis
Eckel, their school principal; and Dr. Bruce, who was Robert's and
Richard's English teacher. All testified that they had never seen
any signs of abuse of these children and that they were well-
adjusted children who were suffering as a result of separation from
their parents. Their testimony was supported by the testimony of
both Drs. Eck, who were called by the Division as witnesses. The
defendants did not testify, and they called no medical expert.
On July 3, 2001, the trial judge rendered an opinion regarding
Robert, Jr., Richard, Raymond and Jonathan, reserving opinion as to
James and Jeziah for the law guardian to submit information as to
the wishes of the five year old twins. The trial judge found by a
fair preponderance of the evidence that Viktor was a neglected
child within the meaning of N.J.S.A. 9:6-8.21c. No finding was
made that he was an abused child. As to the consequence of this
finding, the judge framed the issue as follows:
Ever since the date of the return on the
order to show cause, the primary issue before
this Court continues to be whether the
injuries which caused Viktor's death, which by
the preponderance of the evidence sustains a
finding that the defendants were negligent in
caring for the emotional and medical needs of
Viktor, are sufficient to prove that these six
remaining children are abused and neglected
children.
The trial judge determined the evidence insufficient to prove
that the four natural children were abused or neglected.
This Court agrees with the respective counsel
that the four older boys, of the four older
boys, that they do not meet the definition of
abused or neglected children under any of the
subparts of New Jersey Statute 9:6-8.21c.
There was no evidence any one of them was
inflicted with any physical injury under
subsection c(1), nor was there any substantial
or ongoing risk of physical injury which would
likely cause death or serious protracted
disfigurement under Section c(2). . . . None
of these four children is a child whose
physical, mental or emotional condition has
been impaired or in imminent danger of
becoming impaired as a result of the
defendants['] failure to exercise a minimum
degree of care and supplying any of them with
adequate food, shelter, clothing, education,
medical or surgical care. I note that all
were doing...well behaviorally and were
diligent in their studies. And, none needed
any medical care as evidenced by their
physicals.
Neither did the defendants fail...in
providing any of these four children with
proper supervision or guardianship by
unreasonably inflicting or allowing to be
inflicted harm or substantial risk thereof,
including the infliction of excessive corporal
punishment or by any other acts of similarly
serious nature requiring the aid of the Court.
While these children clearly were raised
in a strict household and were subject to
corporal punishment on some occasions when
they misbehaved, none of them allege that they
have been subjected to excessive corporal
punishment. Not only do they not allege it,
they exhibit no evidence to suggest the
corporal punishment that any one of these four
children received was excessive. None have
been willfully abandoned under Subsection
c(4), correction c(5), none have been
subjected to excessive physical restraints
under Subsection c(6) and none has been
institutionalized as described under Section
c(7).
The judge specifically rejected the Division's contention that
defendants' treatment of Viktor impacted on the remaining children
so as to mandate their continued legal custody and supervision by
the Division. The judge continued:
J&E v. M&F,
157 N.J. Super. 478,
Appellate Division case, 1978 and New Jersey
Statute 9:6-8.46a(1) [state] "In any hearing
under this Act, proof of the abuse or neglect
of one child shall be admissible evidence on
the issue of abuse of neglect of any other
child." However, the Division moves beyond
acknowledging this statement for what it is, a
rule of evidence. Instead, the Division
insists that proof of the abuse of one brother
is proof of the abuse of all the others,
thereby relieving it of the burden to prove
specific abuse or neglect as to each child.
The Division is incorrect. Nowhere in New
Jersey Statute 9:6-8.9 or 9:6-8.21 is an
abused or neglected child defined as "the
sibling of an abused or neglected child."
In fact, New Jersey Statute 9:6-8.33(c)
states, "In cases of emergency, in addition to
the removal of one child, that is a child who
is alleged to be abused and neglected, any
other child residing within the home may also
be removed if his immediate removal is
necessary to avoid imminent danger to his life
or health." Had the legislature intended that
all children must be removed because all are
deemed to be abused and neglected when one is
abused and neglected, it could have said so.
Clearly, it is not the scheme of New
Jersey Statute 9:6-1, et seq. to confer
jurisdiction over any child simply because
there are proofs supporting the jurisdiction
of the Court for a sibling.
In the case before the Court, evidence of
defendants['] fitness as to the four older
boys can be gleaned from the four older boys,
thus, the situation of these boys is very
different from J&E versus M&F. In the first
place, there is a history between the parents
and each of these four children upon which to
form a judgment about the quality of their
care. There's no need to rely on treatment of
Viktor to predict how these parents will treat
these four older children in the future. For
all of Robert's 17 years, Richard's 15½ years,
Raymond's 10½ years and Jonathon's 9 years,
the Division has not shown any parental
mistreatment. There is nothing in this case,
or any of the cases cited by the Division to
suggest that the Division can be relieved of
its burden to make the case required of it as
to each of these children that it claims to be
abused or neglected.
The conclusion of the trial judge was in accord with the
position of the law guardian for Robert, Jr. While Richard's law
guardian argued for immediate return of his client to his parents,
he recommended a psychological evaluation of defendants and
counseling for the family. The law guardian for Raymond and
Jonathan, the younger natural siblings, asserted that there was no
evidence of their abuse or neglect and that the children expressed
a desire to return to their parents. However, she did not
recommend reunification unless there was psychological assistance
for the family. The trial judge rejected these conditions for the
children's return and stated that under R. 5:8A a law guardian
could make no recommendation contrary to the children's wishes.
The proper role of a law guardian was also raised by the judge
after the law guardian for the twins adopted the position of the
Division that none of the children should be returned to the
defendants. The law guardian's summation did not delineate the
children's desires. The judge stated that it was inappropriate for
the law guardian to suggest disposition as to the other children,
and she withheld disposition as to the twins until the twins' law
guardian advised the court of their wishes.See footnote 22
On July 24, 2001, after leave to appeal was granted as to the
natural children, the trial judge rendered an opinion in which she
found that the adopted twins, James and Jeziah, were abused
children under N.J.S.A. 9:6-8.21 by reason of excessive corporal
punishment by defendants. Emphasis was placed on the statements of
nine year old Jonathan to Dr. Fiore:
Jonathan also described his mother as
using a belt, but he added that she used a
whip and a cat-o-nine tails on the twins, and
that they had to stand and run in a corner
with a bat over their heads if they did not
sleep, and if they got tired, they got hit
with the bat. He also said his Mom bent their
fingers back if they touched their diapers,
causing them to say "ouch." These actions and
the medical report that James had a belt mark
on his left thigh on November 8, 2000, is
evidence that defendants used excessive
corporeal punishment on James and Jeziah, ...
therefore to find that they were abused by the
fair preponderance of the evidence. This
finding is required since the defendants did
not offer any testimony to refute this
evidence of excessiveness.
In holding that the twins were abused children the trial judge
also gave weight to statements concerning defendants' treatment of
Viktor, but restricted the applicability of such evidence to the
twins as opposed to the natural children.
[t]he treatment of Viktor is relevant to
his Russian born siblings' treatment under J.
& E. v. M. & F.,
157 N.J. Super. 478 (App.
Div. 1978), because of the greater commonality
of their circumstances. Some of the twins',
particularly James', behavior patterns, while
not as dysfunctional as Viktor's, were in some
ways similar and they were disciplined
similarly at least on some occasions. They
all came into the household past toddlerhood
and had habits and behaviors that did not fit
those expected by these defendants, who had
successfully raised four older children since
birth. They were a unique challenge for which
these parents were ill prepared and to which
they reacted, by the fair preponderance of the
evidence with excessive corporeal punishment.
The trial judge ordered continued care and custody of James
and Jeziah with the Division, affording defendants supervised
visitation. Defendants do not appeal from that order.
The Division appeals from dismissal of its complaint
respecting the four natural children. It argues that the evidence
established by a preponderance of the evidence that the four
children were abused or neglected within the meaning of Title 9,
and, furthermore, that the exclusion of the autopsy report and the
statements of the children to the prosecutor constituted reversible
error. The law guardian for Raymond and Joseph, the two younger
children, joins in these arguments.
We are constrained to reverse and remand for further hearing
based on the wrongful exclusion of the children's statements and
the autopsy report.
This case presents an unfortunate and extreme instance of
conflicts and problems in Title 9 or Title 30 proceedings which can
arise from the relationship between the Division and law
enforcement agencies when parallel investigations are pursued. As
the Chief Justice stated in State v. P.Z.,
152 N.J. 86, 100 (1997),
"the criminal justice system acts separately but in tandem with the
civil system to investigate and prosecute those who abuse or
neglect children." The Division is required to investigate
allegations of abuse and neglect, N.J.S.A. 9:6-8.11-8.18, to
ascertain their veracity, to take action to safeguard abused
children from further harm, either by seeking ways to remediate
such conduct or, in a proper instance, by placing the child in
protective custody of the State. N.J.S.A. 9:6-8.18, -8.31, -8.35,
-8.50e, -8.51, -8.58. The interest of law enforcement is different
since the focus is the criminal culpability of those accused of
child abuse and neglect under N.J.S.A. 2C:24-4a. State v.
Demarest,
252 N.J. Super. 323, 333 (App. Div. 1991).
The statutory scheme and administrative regulations of the
Division envisage cooperation between the agency and law
enforcement. N.J.A.C. 10:129-1.1(a)4. The Division is obliged to
immediately report to the county prosecutor all instances of
suspected criminal activity including child abuse or neglect.
N.J.S.A. 9:6-8.36a; N.J.A.C. 10:129-1.1(a); -129-1.3(d), -129-
1.3(e). If the Division institutes a child abuse complaint in the
Family Court, a copy must be sent to the county prosecutor N.J.S.A.
9:6-8.25a. Alternatively, if the prosecutor decides to bring a
criminal case, the caseworker must be advised. N.J.A.C. 10:129-
1.5(c).
While the Division must maintain strict confidentiality of
records and reports of child abuse, an exception requires release
of such information to law enforcement agencies investigating
child abuse. N.J.S.A. 9:6-8.10a, b(2). However, no statute or
rule requires the county prosecutor to disclose information of an
on-going criminal investigation to the Division. While Title 9
contemplates that actions brought by the Division will continue
after referral to the county prosecutor, N.J.S.A. 9:6-8.24, the
prosecutor is not restrained from continuing its investigation
while the Title 9 action proceeds to trial.
Parallel investigations and proceedings by the Division and
the county prosecutor have resulted in thorny constitutional
issues. See P.Z., supra, 152 N.J. at 86 (defendant not entitled to
Miranda warnings in a non-custodial interview with a Division
caseworker); State v. Helewa,
223 N.J. Super. 40 (App. Div. 1988)
(Miranda rule applicable when defendant interviewed by caseworker
in jail); accord, State v. Flower,
224 N.J. Super. 208 (Law Div.),
aff'd,
224 N.J. Super. 90 (App. Div. 1988). Defendants may face
the Hobson's choice of deciding whether to testify and risk
incrimination or remain silent in the face of testimony that could
deprive them of custody of their children. Judges must be mindful
of the potential for abuse of defendant's civil or criminal
procedural rights. However, the fact of parallel proceedings does
not invest a defendant with any additional procedural safeguards
beyond those provided by constitution, statute or procedural rules.
P.Z., supra, 152 N.J. at 117.
The applicable discovery rule, R. 5:12-3, mandates that
All relevant reports of the Division of Youth
and Family Services and other reports of
experts or other documents upon which the
Division intends to rely shall be provided to
the court and to counsel for all parties on
the first return date of the Order to Show
Cause, if then available, or as soon as
practicable after they become available.
(Emphasis supplied.)
The transcripts of the interviews of the children by members
of the prosecutor's office were not made available to the Division
until after the return of the indictment, the same time they were
available to defendants under the rules of criminal practice.See footnote 33
Since the indictment was returned on March 28, 2000, and the same
attorneys have represented defendants in the civil and criminal
proceedings, the discovery sought from the Division was available
to defendants some weeks before the trial judge excluded the
proffered evidence based on the perceived failure of the Division
to comply with R. 5:12-3. Furthermore, the substance of the
children's statements were known by defendants since the inception
of the action through the caseworker's notes, and the autopsy
reports were available early on.
We have carefully reviewed the lengthy record of this case and
find no misconduct or tactical delay by the Division or the deputy
attorney general representing the Division. Contrary to the
allegations of defense counsel and some comments of the trial
judge, the record indicates a good faith effort by the Division to
comply with discovery obligations. The Division was rebuffed by
the prosecutor in its efforts to obtain the tapes or transcripts of
the children's interviews prior to indictment of defendants, and
the Division made proper request of the county medical examiner,
the prosecutor and the State police for all autopsy material
including negatives of autopsy pictures. No plausible inference
can be drawn that the Division conspired with the Hunterdon County
Prosecutor to manipulate the process to wrongfully deprive
defendants of necessary discovery. Compare State v. Kobrin
Securities, Inc.,
111 N.J. 307, 317 (1988). This is not one of the
rare instances where governmental actions violate "commonly
accepted standards of decency of conduct to which government must
adhere." State v. Talbot,
71 N.J. 160, 168 (1976). The actions of
the Division did not deprive defendants of "fundamental fairness."
Compare State v. Sugar,
84 N.J. 1 (1980); see also Doe v. Poritz,
142 N.J. 1, 108 (1995).
We do not mean to suggest that defendants were not entitled to
timely receipt of pertinent discovery and appropriate time to
secure witnesses to challenge the statements and opinions
submitted. We understand the reluctance of the trial judge to
grant further adjournments in this lengthy and contentious
proceeding.See footnote 44 It is for good reason that cases of this nature are
given priority. The well-being of children and the family
structure are in issue. "Justice delayed is justice denied" is not
a simple platitude. It imports a realistic concern, especially
where the welfare and safety of children are concerned.
However, in this instance the trial judge wrongfully excluded
potentially critical evidence and turned a blind eye to what was
known by all involved in this proceeding _ that Viktor's death was
officially determined a homicide, that the Division's medical
expert attributed his death to abuse by defendants and that
statements of the other children could corroborate abuse. Facts do
not disappear because they are ignored. The exclusionary ruling of
the trial judge eviscerated the Division's thesis that Viktor died
as a result of serious abuse by defendants and that the other
children were in turn abused by virtue of being exposed to cruel
and abusive treatment of Viktor. The ruling also straight-jacketed
and confined the decision of the trial judge to consideration only
as to emotional or medical neglect of Viktor and not of abuse which
may have culminated in his death.
The trial judge concluded:
Because the State failed to supply in
this court all the records and materials that
were utilized in arriving at the autopsy
report, this court does not know the official
findings as to the cause of Viktor's death,
nor did defendants have the materials to
challenge whatever findings were made as to
the cause of death. This court is, thus, left
with Dr. Hodgson's opinion from her report
that "emotional and medical neglect
contributed to his untimely death." No other
persons were involved in Viktor's care for any
extent for the three and a half months between
his last visit to Dr. Eck and his lapsing into
a coma on October 29th, 2000.
Dr. Hodgson's opinion as to his neglect,
I find constitutes prima facie evidence that
the parents subjected him to neglect. In
accordance with New Jersey Division of Youth
and Family Services versus SS, 175 N.J. Super,
173, Page 81, Appellate Division decision of
1994, the burden thus shifts to the parents to
exculpate themselves. However, they presented
no evidence to refute the prima facie evidence
other than by self-mutilization, other than by
the explanation of self-mutilization which Dr.
Hodgson ruled out as the explanation for all
the various significant injuries to Viktor.
Therefore, I find that by the fair
preponderance of the credible evidence, that
it supports a finding that Viktor [M] was a
neglected child.
There is a qualitative and dramatic difference between a case
in which it is alleged that a child's death resulted from
neglectful conduct by negligent or incompetent parents and one in
which it is charged that a child died as a result of physical abuse
tantamount to torture. It was error for the trial judge to
restrict her findings as to parental neglect of Viktor and exclude
relevant proof of parental abuse which could be considered on the
question of past or potential abuse of the other children.
As previously noted, the trial judge concluded that the
alleged treatment of Viktor by defendants did not impact upon their
four natural children for the following reasons:
In the case before the Court, evidence of
defendants' fitness as to the other four older
boys, thus, the situation of these boys is
very different from J&R versus M&F. In the
first place, there is a history between the
parents and each of these four children upon
which to form a judgment about the quality of
their care. There's no need to rely on the
treatment of Viktor to predict how these
parents will treat these four older children
in the future. For all of Robert's 17 years,
Richard's 15½ years, Raymond's 10½ years and
Jonathan's 9 years, the Division has not shown
any parental mistreatment.
Although the absence of past physical abuse to the natural
children may infer their future safety, the alleged treatment of
Viktor could be a dangerous harbinger to one or more of the others.
As we stated in J. & E. v. M. & F.,
157 N.J. Super. 478, 493 (App.
Div.), certif. denied,
77 N.J. 490 (1978).
Predictions as to probable future conduct can
only be based upon past performance .... We
cannot conceive that the Legislature intended
to guarantee parents at least one chance to
kill or abuse each child. Evidence of
parents' fitness or unfitness can be gleaned
not only [from] their past treatment of the
child in question but also from the quality of
care given to other children in their custody.
A child's exposure to a parent's physical abuse of a child may
well be abusive to others by instilling either fear or a tolerance
to violence in intra-family relationships. In the instant case the
trial judge found that the twins, James and Jeziah, were abused
children partly because of defendants' treatment of Viktor. If
Viktor was abused by defendants and died as a result, potential
abuse of other children, whether emotional or physical, cannot be
discounted.
In evaluating the whole picture each part
cannot be separately determined. In child
abuse and neglect cases the elements of proof
are synergistically related. Each proven act
of neglect has some effect on the children.
One act may be substantial or the sum of
many acts may be substantial. New Jersey
Div. Of Youth and Family Services v. C.M.
181 N.J. Super 190, 201 (App. Div. 1981).
We hold the exclusion of the children's statements as well as
the autopsy reports and related opinions constituted an improper
exercise of discretion amounting to reversible error. We reverse
the dismissal of the complaint and remand for further hearing and
consideration of the proffered evidence.
We further find it necessary to comment on the different views
of some counsel and the trial judge respecting the proper role of
a law guardian. N.J.S.A. 9:6-8.23 specifies that
Any minor who is the subject of a child abuse
or neglect proceeding under this act must be
represented by a law guardian to help protect
his interests and to help him express his
wishes to the court.
The rules of court distinguish between a law guardian and a
guardian ad litem. R. 5:8A specifies that in actions involving
custody or visitation the court may appoint counsel on behalf of
the child or children. R. 5:8B provides for appointment of a
guardian ad litem "to represent the best interests of a child or
children" and requires the filing of a written report and
availability to testify and be subject to cross-examination. The
Official Comments for Rules 5:8A and 5:8B clarify the distinction:
A court-appointed counsel's services are
to the child. Counsel acts as an independent
legal advocate for the best interests of the
child and takes an active part in the hearing,
ranging from subpoenaing and cross-examining
witnesses to appealing the decision, if
warranted. If the purpose of the appointment
is for legal advocacy, then counsel would be
appointed.
A court-appointed guardian ad litem's
services are to the court on behalf of the
child. The GAL acts as an independent fact
finder, investigator and evaluator as to what
furthers the best interests of the child. The
GAL submits a written report to the court and
is available to testify. If the purpose of
the appointment is for independent
investigation and fact finding, then a GAL
would be appointed. The GAL can be an
attorney, a social worker, a mental health
professional or other appropriate person. If
the primary function of the GAL is to act in
the capacity of an expert, then the court
should ordinarily appoint a GAL from the
appropriate area of expertise. Attorneys
acting on behalf of children in abuse or
neglect cases and in termination of parental
rights cases should act as counsel for the
child pursuant to Rule 5:8A rather than in the
capacity of a GAL pursuant to Rule 5:8B.
The comments follow the rationale of Matter of M.R., 135 N.J.
155 (1994), which considered the advocacy rule of the attorney for
an incompetent. The Supreme Court speaking through Justice Pollock
distinguished a representative attorney from a guardian ad litem by
citing with approval the distinction made in a 1994 report of the
Family Practice Committee:
The Committee firmly believes that the
role of an attorney in abuse or neglect cases
and in termination of parental rights cases
must be as an advocate for the child. Nothing
short of zealous representation is adequate to
protect a child's fundamental legal rights....
Requiring attorneys to act as counsel for
children in these cases, does not deprive the
court of the benefit of the type of assistance
afforded by a guardian ad litem. Clearly, as
counsel for the child, an attorney could
request the additional appointment of a
guardian ad litem, and the court sua sponte
could do so if deemed necessary. Yet by
clarifying an attorney's role as counsel for
the child, substantial evidentiary and
procedural dilemmas could be solved. Under
the present situation where attorneys assume a
hybrid role of attorney/social investigator,
questions arise such as the right of the
attorney to speak with the parties outside the
presence of their counsel; whether
communications between a child and the
attorney are privileged; and whether an
attorney who submits an investigative report
is subject to cross-examination. Finally,
having attorneys acts as counsel for children
insures that they are being utilized for a
role for which they are trained and suited.
[Family Division Practice Committee Report
(1994), quoted in Matter of M.L., supra, 135
N.J. at 174-75.]
We made the same distinction in Matter