Opinion
DOCKET NO. A-2680-13T4
08-23-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.J., Defendant-Appellant, and R.J., Defendant. IN THE MATTER OF K.S.J, Z.J., and K.N.J, (deceased), Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-48-13. Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant T.J. ("the mother") appeals from a June 12, 2013 Family Part fact-finding order, determining she abused her two-month old son, K.N.J. ("Ken" or "the baby"), who died from one of the acts of abuse. Ken's father, R.J. ("the father"), was also found to have abused Ken, but he did not appeal from this order. Having considered the mother's arguments in light of the record and applicable legal standards, we affirm.
Ken's name is fictionalized to protect the family's privacy.
I
The following evidence emerged from the fact-finding hearing. The mother and father are the biological parents of three children, Ken, K.S.J., and Z.J. Ken and K.S.J. were twins, born in May 2012. Z.J. was five years of age when his siblings were born. Soon after his birth, Ken developed various ailments that required visits to his pediatrician and two hospitalizations. Specifically, he was admitted to the hospital from June 9, 2012 to June 11, 2012 for a surgical hernia repair. At that time, Ken appeared to be healthy.
One of the Division's expert witnesses, Susan Hodgson, M.D., determined from her review of the record that Ken actually suffered from and was treated for a hydrocele, but the actual condition Ken suffered from is immaterial to the issues on appeal.
On June 20, 2012, the father took Ken to an emergency room because the baby had a large sore on his right heel. According to the father, he had been bathing Ken when he noticed the skin on Ken's foot "was literally falling off." Emergency room doctors found no sign of infection or disease that would explain the lesion. After consulting with doctors from the hospital's burn center, the emergency room doctors diagnosed the wound was a "full-thickness burn" and treated it, accordingly.
A full-thickness burn is "a b[urn] involving destruction of the entire skin; deep full-thickness b[urn]s extend into subcutaneous tissue, muscle, or bone and often cause much scarring." Stedman's Medical Dictionary 278 (28th ed. 2006).
The following day Ken was seen by his treating pediatrician, Severiano SanJuan, M.D., who suspected the wound was caused by a bacterial infection rather than a burn. The baby was admitted to the hospital for testing from June 21, 2012 to June 23, 2012, but additional testing revealed the lesion was not in fact an infection.
On July 16, 2012, Dr. SanJuan saw Ken for a routine visit. The doctor observed swelling on the left side of Ken's head and face, and noted that the child had shown poor weight gain since his last examination. Neither a diagnosis nor treatment was prescribed for the swelling.
On July 18, 2012, the baby was seen by a dermatologist in connection with the wound on his foot, who treated the baby's wound with a burn dressing. The doctor's notes make no comment about the swelling Dr. SanJuan had observed on July 16, 2012.
As the mother later reported to the New Jersey Division of Child Protection and Permanency ("the Division"), on July 19, 2012, the baby vomited his formula. At 4:00 a.m. the following morning, Ken again vomited his formula. At around noon on July 20, 2012, the father observed the baby "shaking" his legs and arms for about two minutes. Further, the baby was lethargic throughout the day.
The mother left the baby in the father's care at some unspecified point during the day to go to a doctor's appointment and to run errands. When the father attempted to feed Ken at approximately 5:30 p.m., the baby ate only a small amount of and then threw up his food and immediately went back to sleep. When the father checked on Ken about an hour later, the baby was unresponsive and gasping for air. The father called the mother, who had not yet returned home; she instructed the father to call 9-1-1.
The mother rushed home and discovered the baby to be unresponsive. The paramedics found the baby pulseless and without "neuro activity." Initial attempts to resuscitate his heart were unsuccessful. The baby was taken to the emergency room, where doctors eventually succeeded in restarting Ken's heart. He was transferred to the pediatric intensive care unit, where he died the following afternoon.
Doctors at the hospital discovered the baby had a significantly low hemoglobin reading, which indicates internal bleeding. However, there were no external signs of injury. A chest x-ray that had been performed to aid the medical staff place breathing tubes into the child's lungs revealed numerous rib fractures, which appeared to be in varying stages of healing.
The hospital staff arranged for an autopsy. Concerned about the rib fractures and low hemoglobin level, the staff contacted the Division. Investigators from the Division interviewed the parents, who were unable to account for how the baby's ribs had been fractured. They also admitted they had been the only individuals who cared for Ken during his life, but for those periods he was admitted into the hospital. The Division immediately removed the parents' other children from their care on an emergent basis.
Forensic pathologist and medical examiner Junaid R. Shaikh, M.D., performed the autopsy. He testified there were no external signs of injury, but an internal examination revealed the baby had multiple skull fractures and subdural hematomas. In his opinion, the fractures were caused by a single but significant blunt force blow to the back of the head. The impact caused a series of radiating fractures and the development of subdural hematomas, which injured the brain and caused the baby's death. He ruled the death a homicide. However, Dr. Shaikh was unable to state within a reasonable degree of medical probability when the blow to the skull occurred.
Both parents were charged with but acquitted of murder (the record does not indicate the specific charge on which they were indicted). However, the acquittal does not affect the outcome of this proceeding. The standard in the criminal proceeding required the State to prove all elements of its case beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072-73, 25 L. Ed. 2d 368, 375 (1970). Here, the standard of proof was by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b)(1).
Dr. Shaikh also discovered multiple rib fractures, as well as hemorrhaging and contusions along the sides of the baby's chest under the skin. He opined significant force was required to cause the fractures, which were in various stages of healing. He estimated the ribs were fractured within several days to two weeks of the date of death. An anthropologist in the Medical Examiner's office who examined the ribs agreed that some of the fractures occurred within ten to fourteen days of death, but opined some occurred between twenty-one and ninety days of the baby's death.
The Division also called as an expert witness Susan Hodgson, M.D., who is board certified in both pediatrics and a subspecialty of pediatrics known as "child abuse pediatrician." She testified that as part of the training for this subspecialty, a pediatrician learns the mechanics behind how children are injured. She also testified that, as a pediatrician, she received training on and has experience in how to read x-rays.
Consistent with Dr. Shaikh, Dr. Hodgson also determined Ken died from a head injury that was caused by "major" blunt force trauma to his head, causing numerous fractures in the skull. She also noted the baby had a low hemoglobin level during his last hospitalization, which is consistent with the subdural hematomas discovered by Dr. Shaikh at the time of autopsy. She further discovered the baby's blood sugar was 358, which is consistent with an acute brain injury.
Dr. Hodgson was unable to state the exact time the skull was fractured, but did testify it "has to have been between July 18th and the 20th . . . . The fatal blunt-force trauma head injury with the accumulation of the subdural bleeds happened within 48 hours of his admission on the 20th . . . [a]nd probably more quickly than that from the morning of the — early morning hours of the 20th to when he finally presented in the evening to the E.R."
Her reasons for concluding the fracture occurred during the later time period were that the skull fractures were "fresh," meaning they had not yet begun to heal by the time of the baby's death. She also noted that the father had reported to the hospital staff following the baby's death that the baby had been sleeping more than usual on July 19, 2012, which is consistent with a head injury. However, "certainly" throughout the day on July 20, 2012, the baby was showing significant changes in his neurological status, as evidenced by his vomiting, the seizure activity at noon, his sleepiness, his failure to wake up on his own to feed, and the cardio-respiratory arrest that occurred early that evening.
The doctor was unable to relate the swelling observed on the baby's head on July 16, 2012 to the head injury that caused the baby's death.
Dr. Hodgson also testified the child had sustained multiple bilateral rib fractures in various stages of healing, which she opined were a crush injury to the chest caused by a moderate to severe force. The fractures could not have occurred as the result of the normal care and handling of the baby, or by any of the procedures performed on the child by medical personnel. She opined the fractures occurred in late June and July 2012, but before his final admission on July 19, 2012.
Dr. Hodgson also testified that the oldest child could not have caused the head injury, as the blow that caused the skull fractures was "extremely forceful" and one that a child his age could not have inflicted. Further, that child's hands were too small to wrap around the baby's chest and cause the kind of rib fractures the baby sustained. Finally, she noted that the kind of skull and rib fractures the baby sustained could have occurred without there being any external signs of injury.
The parents did not testify, call any witnesses, or introduce any documents into evidence.
The trial court found in favor of the Division, concluding it had proven by a preponderance of the evidence that both parents had abused Ken. The court found Dr. Shaikh to be a "very" credible witness. As for Dr. Hodgson, the court found that she tried
to say almost anything that would make it more likely for a court to find abuse and neglect against the defendants rather than trying to provide the court with the best -- with her expertise in her area of expertise. . . . Even during the course of her testimony when she was cross-examined, there's a colloquy where she's — where the court is finally trying to get her to address directly the witness — the cross-examination of the lawyers. And I [had to] direct Dr. Hodgson to stop telling — or continuing to go on and talk about what she wants to, but to address the questions of the [attorney] . . . [But] I don't believe that she was trying to knowingly or purposely testify untruthfully in this case. But she did raise questions as to her credibility. Nonetheless, much of what she testified to is so obvious from the record that it was clearly true.
One aspect of Dr. Hodgson's testimony the court credited was her opinion concerning when the brain injury likely occurred. As previously indicated, Dr. Hodgson testified this injury "has to have been between July 18th and the 20th" but before the baby's admission to the emergency room on the latter date, and "probably more quickly than that from the morning of the — early morning hours of the 20th to when he finally presented in the evening to the E.R."
However, it is clear from the court's decision that it had mistakenly heard Dr. Hodgson testify that the period during which the injury to the head occurred was sometime between July 19, 2012 and July 21, 2012. According to the court, Dr. Hodgson testified that the skull fractures "most likely occurred somewhere around 24 to 48 hours before [Ken's] death at 2:27 p.m. on July 21st." Thus, while the court was willing to accept Dr. Hodgson's opinion regarding when the skull fractures occurred, the court misheard what the doctor had actually stated.
Because the court noted the skull could have been fractured either when the baby was under the care of his parents or the "numerous and unidentified" medical personnel during the evening of July 20, 2012 and on July 21, 2012, the court declined to shift the burden of proof to the parents pursuant to the conditional res ipsa loquitur doctrine, and instead applied the traditional res ipsa loquitur doctrine.
Traditional res ipsa loquitur principles apply "whe[n] the child [was] exposed to a number of unidentified individuals over a period of time, and it [was] unclear as to exactly where and when the child's injuries took place[.]" Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 470 (App. Div. 2008). Conditional res ipsa loquitur applies when a limited number of individuals have access to or custody of a child during the period when the alleged abuse concededly occurs, causing the burden to shift to them to come forward and provide evidence to establish their non-culpability for that abuse. Matter of D.T., 229 N.J. Super. 509, 517 (App. Div. 1988). --------
However, even when applying the doctrine of traditional res ipsa loquitur with respect to the skull fractures, the court determined that it is not "logical or even probable that the individuals who had exclusive control over [Ken], other than his parents, might have caused his fatal injury." As for the rib fractures, the court noted such fractures spanned over the baby's lifetime and, throughout his short life, his parents had been his exclusive caregivers, but for those brief periods he was in the hospital. The court reasoned that
[t]he common denominator during every period of time under which this child was injured is only the mother and the father. They were with him from the time of birth through the first series of [rib] fractures, through the second series of [rib] fractures, the third, the fourth, the fifth [series of rib fractures], and during the period of time when the head injury occurred . . . .
The court then concluded the Division proved the parents were responsible for the baby's fractures, stating:
I think the evidence compels me to draw . . . that the child suffered injuries that would not ordinarily be sustained except by reasons of acts or omissions of the parents . . . in that they either permitted or caused such injury to the child. And they are responsible.In its June 12, 2013 order setting forth its disposition following the fact-finding hearing, the court added:
[T]he statutory inference set forth in [N .J.S.A.] 9:6-8.46(a)(2) tips the scales in favor of a finding of abuse and neglect.
II
On appeal, the mother's principal arguments are that: (1) the court's finding she abused the baby was not supported by substantial credible evidence; (2) Dr. Hodgson testified on subjects for which she had not been qualified as an expert; (3) Dr. Hodgson's opinions about the baby's foot injury, his failure to thrive, and his rib and skull fractures were "contradicted by the other experts;" and (4) Dr. Hodgson was predisposed to find abuse by virtue of her education and training. We reject these contentions and affirm.
"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). The findings of the trial court are binding on appeal if supported by "adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins., 65 N.J. 474, 484 (1974)). Moreover, deference to the Family Part's fact-finding is especially appropriate in view of that court's "special jurisdiction and expertise." Id. at 413.
"Abuse and neglect cases are generally fact sensitive. Each case requires careful, individual scrutiny." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). The court's determination that a child was abused or neglected "must be based on a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1). N.J.S.A. 9:6-8.21(c)(1) provides in pertinent part that an "[a]bused or neglected child" is:
a child less than eighteen years of age whose parent . . . inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ . . . .
[Ibid.]
N.J.S.A. 9:6-8.46(a)(2) provides that
[i]n any hearing under this act, . . . (2) proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of, or who is the responsibility of such person is an abused or neglected child[.]
As we previously noted, traditional res ipsa loquitur is
[w]here 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 . . . . This means that once the Division establishes a prima facie case of abuse or neglect under N.J.S.A. 9:6-8.46(a)(2), the burden will shift to the parents to come forward with evidence to rebut the
presumption of abuse or neglect . . . . [But] [t]he burden of proof will remain on the Division.
[J.L., supra, 400 N.J. Super. at 470.]
Conditional res ipsa loquitur applies when a limited number of individuals have access to or custody of a child during the period when the alleged abuse concededly occurs, causing the burden to shift to them to come forward and provide evidence to establish their non-culpability for that abuse. Matter of D.T., supra, 229 N.J. Super. at 517.
Here, the mother argues the court's finding she abused Ken is not supported by the evidence. While we disagree with the trial court that the evidence supported a finding the head injury occurred between July 19, 2012 and July 21, 2012, nevertheless, for other reasons there was sufficient evidence to affirm the court's conclusion the parents were culpable for the skull fractures. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) (reciting the well-settled principle that "if the order of the lower tribunal is valid, the fact that it is predicated upon an incorrect basis will not stand in the way of its affirmance"), abrogated on other grounds by Commercial Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J. 546 (1991).
As for the skull fractures, Dr. Hodgson testified the blow to the head occurred between July 18, 2012 and the time the baby was admitted to the emergency room on July 20, 2012, but during the course of her testimony she narrowed down the time when the injury likely occurred. Dr. Hodgson pointed out that throughout the day on July 20, 2012, the baby was showing significant changes in his neurological status that are consistent with a head injury, culminating in his cardio-respiratory while still at home.
During the period Dr. Hodgson indicated the skull fractures likely occurred, only the parents were caring for and had access to the baby. There is evidence the mother left the baby in the father's care on July 20, 2012, but not before the baby exhibited signs of having sustained a head injury. Although the baby did see a doctor in the office on July 18, 2012, there is no evidence either parent left the baby alone with the doctor or his staff. The mother did not come forward with any evidence to refute any of the Division's evidence.
Applying the traditional res ipsa loquitur test, once the Division established a prima facie case of abuse, the burden shifted to the mother under N.J.S.A. 9:6-8.46(a)(2) to come forward with evidence to rebut the presumption of abuse or neglect. She failed to come forward with any evidence.
While we are convinced that there was sufficient credible evidence supporting a finding under a traditional res ipsa loquitur analysis that the parents are culpable for the skull fractures, we conclude that the record also supports the same finding under a conditional res ipsa loquitor analysis. Specifically, only the parents were caring for and had access to the baby when the abuse occurred. During the fact-finding hearing, the mother failed to establish her non-culpability.
Accordingly, there is sufficient credible evidence supporting the finding the mother was culpable — along with the father — for the skull fractures under either a traditional or conditional res ipsa loquitur analysis.
With respect to the rib fractures, we are satisfied there was sufficient credible evidence supporting the court's findings with respect to the parents — and thus the mother — under a traditional res ipsa loquitur analysis. The court's findings are entitled to our deference. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare, supra, 154 at 413.
We have examined the mother's remaining arguments and have determined they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION