NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,Plaintiff–Respondent, v. D.J. and M.S., Defendants–Appellants. IN RE: S.S.,
Defendants M.S. and his paramour, D.J., appeal from a Family Part order finding them responsible for the severe dehydration, failure to thrive, medical neglect and hypernatremia, or sodium poisoning, that M.S.'s twenty-one-month-old son, S.S., suffered in October 2011. Because we conclude that the trial court's findings are supported by sufficient credible evidence in the record, and are buttressed by defendants' subsequent guilty pleas in related criminal proceedings, we affirm.
We summarize the facts adduced during the trial court's five-day fact-finding hearing. In September 2011, defendants moved into a hotel in Newark with S.S. and M.S.'s four-year-old son, L.F.2 According to M.S., he had physical custody of both S.S. and L.F., and the two children had lived with him since February and July 2011, respectively.
On October 11, 2011, the Division of Youth and Family Services (Division) received a referral from Newark Beth Israel Medical Center (Beth Israel). S.S. had been brought to the hospital by defendants on October 5, 2011, after they became concerned that he was not eating or drinking as much as usual, and he wanted to be held or lie down. He had developed a shriek-like cry, and D.J. stated that he had stopped eating and was not playful.
S.S. was admitted to the hospital, where he was diagnosed as suffering from dehydration, malnourishment, and hypernatremia. At 1:00 a.m. on October 6, 2011, a blood test showed that his sodium level was 198 md. A normal sodium level was between 135 and 145 md. The test was repeated soon after and showed a sodium level of 202 md. Following an investigation, the Division conducted an emergency Dodd removal of the children.3 Upon his release from the hospital on October 24, 2011, the Division placed S.S. in foster care.
Dr. Elizabeth Hodgson treated S.S. at Beth Israel, and testified at the hearing as an expert witness in pediatrics and child abuse and neglect. She explained that when S.S. was admitted to the hospital on October 5, 2011, he was suffering from hypernatremia, or salt poisoning. Dr. Hodgson had never seen a patient with a bloodstream sodium level so high. If S.S. had not received treatment, she opined that he would have died within one day's time.
Dr. Hodgson explained that hypernatremia can be the result of excessive fluid loss from diarrhea, vomiting or lack of water; or from consumption of salty foods or sea water. Breast fed infants could also develop hypernatremia if the mother's milk was inadequate and contained too much sodium. But in any of these cases, the level of sodium in the person's bloodstream would be only about 160 to 170 md., well below S.S.'s level of 202 md.
The hospital tested the contents within S.S.'s stomach and found that his gastric juices contained 260 millimoles of sodium. The normal range of sodium in gastric juices was 50 to 60 millimoles. Thus, S.S.'s level was “exquisitely high.” Dr. Hodgson was “certain” that S.S. had ingested the sodium because it was in his stomach. Nothing else was found inside the child's stomach. Based on literature that she had reviewed, she believed that about a teaspoon of salt could have caused this high level of sodium.
Dr. Hodgson was unable to determine whether the ingestion was accidental. But she said that a teaspoon of salt was an excessive amount for a twenty-one-month-old child of S.S.'s size, and it would not have tasted good to him. Thus, she did not believe that he ate it on his own.
In addition to suffering from hypernatremia, S.S. was severely dehydrated, which exacerbated his condition. Dr. Hodgson explained that when a person ingests too much sodium, the body tries to eliminate it through the kidneys by pulling water from cells inside the body to flush out the salt. S.S. did not have enough fluid in his body to do this. Tests showed that because his body had pulled so much fluid from his brain cells, they had significantly decreased in size. He could have experienced bleeding in the brain or kidneys, and his heart or kidneys could have stopped functioning as a result of his body's attempt to flush out the excessive sodium. Dr. Hodgson concluded: “He was so close to being dead.”
The urine that his body produced was scant in amount, was “very dark” and “was about as concentrated as you can get.” A test that measured his blood urea nitrogen (BUN) level to determine kidney functioning, showed a BUN level of fifty-eight; a normal BUN level was between ten and eleven. Fortunately, S.S.'s kidneys were not damaged. Dr. Hodgson believed that in order for his BUN level to be as high as it was, S.S. must not have received adequate fluids “for days to hours.” She then clarified that he must not have received adequate fluids for “days.” When asked what type of diet could have caused S.S.'s condition, Dr. Hodgson answered: “That's a hard question. It would have to be something incredibly and unpalatably salty and no access to water.”
It took four days to rehydrate S.S. The process had to be done slowly because his dehydration was so severe, he could have had seizures and brain death if he received too much fluid too quickly. Once rehydrated, S.S.'s brain returned to a normal size. However, tests showed some lasting effects. The “center of his brain stem, the ponz area and the phalanx area” showed that “some of the white cells” had “problems” with the myelin, or the “outside of the cells.” Dr. Hodgson could not predict whether this would have any long-term effect on S.S. His motor development, speech and emotional responses would have to be closely monitored as he grew and developed.
S.S. was also suffering from “life threatening failure to thrive.” His extremely low weight placed him in less than the second percentile on the growth chart. He weighed less at twenty-one months of age than he had at eight months. S.S's amount of albumin, a protein that the liver would make when the body obtained adequate calories, was “extremely low,” which meant that for “months” he had not received the calories his body needed to grow and develop. Dr. Hodgson believed that the cause of his failure to thrive was inadequate calories, nutrition and nurturing. She described him as being “on death's doorstep.”
Based on the tests that the hospital conducted in October 2011, and on S.S.'s medical files since birth, Dr. Hodgson did not believe that he had any underlying condition that caused his failure to thrive. The hospital ruled out any underlying genetic, metabolic or gastroenterological problems. Dr. Hodgson noted that if S.S. had been seen by a pediatrician during this time, the pediatrician would have questioned why he was not gaining weight and why he had dropped so significantly on the growth chart. Any time a child drops at least two percent on the growth chart, she said, a pediatrician will investigate the cause.
By October 10, 2011, S.S. was rehydrated and began gaining weight. By the time he was released from the hospital on October 24, 2011, he had gained 2.86 lbs. This increase in weight was “very consistent with catchup [sic] growths that can be seen in children who've had very severe failure to thrive which has been the result of simply not having enough calories and enough fluid, and nurturing offered in a steady way to promote growth.” It confirmed that S.S's body was capable of growing at a normal rate, and that his failure to thrive was the result of lack of calories, nutrition, fluids and nurturing, not some underlying condition.
Safiyyah Islam–Horne was the Division investigator assigned to S.S.'s case as of October 11, 2011. In addition to conferring with Dr. Hodgson, Islam–Horne also met with defendants. M.S. advised Islam–Horne that he did not have health insurance for S.S., that the child had not received immunizations, and did not have a physician. The last time that S.S. had seen a doctor was when he was treated for a cold at a hospital in Harlem, New York. During that examination, the doctors did not note any concern for abuse, neglect or malnutrition.
M.S. stated that he, his sons, and D.J. were residing in a hotel, which Islam–Horne described as a “shelter of sorts.” D.J. contributed to the rent there, helped care for the children, and prepared meals for the family. M.S. said that he fed S.S., and that the family had enough food to eat.
There was no kitchen in the hotel room, but there was a communal kitchen that D.J. used. The family ate cereal for breakfast and sandwiches for lunch. M.S. and D.J. were home all day and ate regular meals with the children. M.S. said that S.S. ate “basic foods,” like “starch, vegetables, chicken.” He did not eat salty foods, and there was no salt in the hotel that he could have eaten. In the days leading to his hospitalization, M.S. said that S.S. became sluggish, stopped eating, did not lift his head, and stopped walking.
M.S. told Islam–Horne that he wanted to distance himself from D.J. because he had to gain a better understanding of what was happening with his children. He advised Islam–Horne that until S.S. recovered, he would stay at the hospital with him. Within a few days, M.S. notified Islam–Horne that D.J. had removed all of his belongings from the hotel room, and he was no longer living there with her.
D.J. initially told Islam–Horne that she was M.S.'s wife, but then she retracted that statement because he was still legally married to S.S.'s mother. D.J. informed Islam–Horne that she was the primary caretaker for the children; she fed, cleaned and dressed them. Like M.S., she stated that a couple of days before they took S.S. to the hospital he had stopped eating, walking and sitting up on his own.
M.S. testified that he had not noticed any weight loss in S.S., and that he believed S.S. had been growing and developing normally. He denied knowing how S.S.'s severe hydration and elevated sodium levels had developed. In the days leading to the child's hospitalization, S.S. had not shown any signs of being thirsty. Although M.S. ended his relationship with D.J., he did not believe that she had done anything to cause S.S.'s problems.
During her testimony, D.J. denied using salt in her cooking and said there was no salt in the hotel room. She knew that children should receive immunizations, but she did not take S.S. for any. She also knew that failure to thrive meant that a child was not growing and developing, and she understood the importance of well-baby visits to monitor a child's growth and development. Nonetheless, she never took S.S. for a well visit, nor did she believe he was not progressing.
M.S. also offered the testimony of psychologist Albert Griffith, who had evaluated him at the Division's request. Griffith testified that M.S. did not seem to have unrealistic expectations of children, he showed no signs of being abusive, and showed no signs of a psychological condition. In Griffith's opinion, M.S. had no parenting experience, even though his sons lived with him for a short time. He did not recommend the immediate return of S.S. to M.S.'s care. Rather, he recommended that M.S. attend parenting classes, as he appeared capable of learning and parenting with adequate supports.
On cross-examination, Griffith testified that he did not believe that M.S. sought timely medical treatment for S.S., since the child suffered from malnourishment, and the symptoms of that must have been evident to him. He believed that M.S. had “clear[ly]” neglected S.S.
In a comprehensive thirty-three page written opinion, Judge Ronald D. Wigler concluded that defendants had abused and neglected S.S. by being responsible for his failure to thrive, malnutrition, dehydration and hypernatremia. The judge also found that defendants had medically neglected S.S. by failing to ensure that he received adequate and appropriate medical care. Judge Wigler summarized his findings as follows:
The Division brought claims that [S.S.] was abused and/or neglected by his father [M.S.], and the father's paramour, [D.J.] because on October 5, 2011 [S.S.] was admitted to Newark Beth Israel Medical Center and diagnosed with severe hypernatremia and failure to thrive. The medical reports and expert testimony supported and have not been rebutted, that [S.S.'s] dehydration was a result of inadequate access to fluids or a restriction of fluids over a period of days, that his weight loss occurred over a period of time and not overnight as exemplified by his hanging skin, and that he suffered from hypernatremia as a result of ingesting a salt load.
During the fact finding it was undisputed and [M.S.] and [D.J.] testified that they were the sole caretakers of the child, [S.S.], from February 2011 through October 5, 2011 when he was admitted to the hospital and during the exact period that doctors believe the hypernatremia and failure to thrive injuries occurred. The [c]ourt does not know what the underlying cause of the hypernatremia was, but it could only have occurred as a result of [wanton] negligence, recklessness in supervision or deliberate acts. All of which establish that [S.S] had been abused and/or neglected.
N.J.S.A. 9:6–8.46(a)(2) provides that proof of injuries sustained by a child or of the condition of a child of such a nature as would 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. In this case, the Division has established a prima facie case of abuse and neglect by at least a preponderance of the evidence. Having sole care for [S.S], [M.S.] and [D.J.] must then rebut the presumption, as the law states that once the Division proves a prima facie case, the burden shifts to the defendants to rebut the presumption that they have abused or neglected the child.
The doctrine of conditional res ipsa loquitur applies when a “defined number of people have access to the child at the time of abuse definitely occurred.” By [M.S.] and [D.J.'s] own report, they were the only caretakers for [S.S.] when the injuries reportedly occurred. Therefore, all caretakers have been identified and the doctrine of res ipsa loquitur is applied. Here, the defendants have not offered any evidence or plausible explanation for [S.S.'s] failure to thrive or for his hypernatremia condition.
Even if the [c]ourt was presented with evidence to the contrary by the defendants, the [c]ourt would be hard pressed to not find abuse and neglect as the Division is not obligated to prove exactly how the injuries occurred, only that there were injuries and that they were non-accidental. New Jersey Div. of Youth & Family Servs. v. S.S., 275 N.J.Super. 173, 179 (App.Div.1994) (finding that “it is difficult to marshal direct evidence of parental abuse and neglect because of the closed environment in which the abuse most often occurs and the limited availability of the abused child to inculpate the abuser). In this case certainly, [S.S.], a twenty-two month old child, would not be able to explain himself. Thus, as N.J.S.A. 9:6–8.21(c)(4) defines an abused or neglected child as one whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care [though] financially able to do, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm or substantial risk thereof[.] [I]n this case [M.S.] and [D.J.] provided inadequate care by failing to attend routine medical check ups with [S.S.], failing to provide him with prompt and timely immunization, adequate feedings and nourishment, and proper monitoring of [S.S.'s] overall health and growth. Their failure resulted in [S.S.] developing the life-threatening condition of hypernatremia and symptoms of failure to thrive with his malnourishment and dehydration.
Based on the medical records, constellation of injuries suffered by [S.S.], testimony by Dr. Hodgson, and Dr. Griffith, the failure of the defendants to provide adequate and reasonable explanations of the injuries, and the totality of circumstances and evidence, this [c]ourt finds by a preponderance of the evidence that [M.S.] and [D.J.] abused and/or neglected their minor child, [S.S.].
While these appeals were pending, defendants entered guilty pleas to resolve criminal charges related to the acts of abuse and neglect that were the subject of the Family Court proceedings. On December 18, 2013, we granted the Division's motion to supplement the record to include the May 13, 2013 plea hearing transcripts, and the July 15, 2013 judgments of conviction.
The Division brought this case under Title Nine, N.J.S.A. 9:6–8.21 to –8.73, the statute covering non-criminal abuse and neglect of children. Title Nine requires that, after a child has been temporarily removed from his or her parent's custody, a fact-finding hearing must be held to determine whether the Division has shown by a preponderance of the evidence that the child was abused or neglected. N.J.S.A. 9:6–8.44. The evidence presented at a fact-finding hearing must be competent, material and relevant. N.J.S.A. 9:6–8.46(b)(2).
An “abused or neglected” child is defined as one who is less than eighteen years of age and
whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian ․ to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof․
In determining whether action or inaction constitutes abuse or neglect, the court must base its decision on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J.Super. 320, 329 (App.Div.2011). An inquiry under N.J.S.A. 9:6–8.21 should focus on the harm to the child, rather than on the intent of the caregiver, in order to allow the Division to properly “protect children from a wide range of conduct that clearly qualifies as neglect.” G.S. v. Dep't of Human Servs., 157 N.J. 161, 180–81 (1999). In G.S., the Court explained that “[t]he phrase ‘minimum degree of care’ denotes ․ something more than ordinary negligence” and “refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.” Id. at 178. The essence of gross or wanton negligence is that it “implies that a person has acted with reckless disregard for the safety of others.” Id. at 179 (citations omitted). Thus, “a guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child.” Id. at 181.
The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). These findings may not be disturbed unless “they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.” Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Moreover, “[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.” N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). “Where the issue to be decided is an ‘alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,’ we expand the scope of our review.” N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J.Super. 172, 188–89 (App.Div.1993)). The trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
On appeal, defendants challenge the court's findings that they abused and neglected S.S. by failing to provide him adequate nutrition, fluids and medical care. They also argue that the court incorrectly shifted the burden of proof to them to present evidence of their non-culpability with respect to S.S.'s hypernatremia.
D.J. also claims that she did not assume responsibility for S.S.'s care and that she lacked the financial ability to care for him. Thus, she claims that she should not have been responsible for the dehydration, failure to thrive and medical neglect that S.S. experienced.
M.S. also challenges the opinion testimony of the Division's expert witness, Dr. Hodgson, as a net opinion based on speculation and other non-testifying doctors' work.
We conclude that defendants' arguments lack merit, and we affirm essentially for the reasons Judge Wigler expressed in his comprehensive and well-reasoned opinion, which is supported by substantial and credible evidence in the record. We add the following comments.
On May 13, 2013, M.S. pled guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24–4, by causing dehydration, malnutrition, and failure to thrive. As a factual basis for his guilty plea, M.S. testified that he was S.S.'s custodial caretaker between August 2010 and October 5, 2011. During that time he had an affirmative duty to meet S.S.'s needs, but he failed to do so. Specifically, he failed to take S.S. to a doctor on a regular basis, and failed to provide S.S. adequate food and fluids, which caused him “severe dehydration” and to become “severely underweight.” “As a result of the dehydration and malnutrition,” S.S. “became severely ill.” M.S. further acknowledged that he knew “there were other avenues such as government assistance” that he “could have undertaken” to provide S.S. with food and medical services, but he did not pursue those avenues. On July 15, 2013, M.S. was sentenced to one year probation, conditioned on attending parenting classes and abiding by Family Part orders regarding visitation.
D.J. pled guilty to fourth-degree abuse and neglect of a child, N.J.S.A. 9:6–1. During her plea colloquy on May 13, 2013, D.J. testified that between August 21, 2010, and October 5, 2011, she lived with M.S. and shared in the custody and supervision of S.S. During that time, she did not provide S.S. with “all necessary medical care or ․ food.” This lack of food caused S.S. “some significant medical issues,” and she noticed a “severe weight loss” in him. D.J. likewise acknowledged she was aware social services were available that could have provided food stamps and/or medical care for S.S., but she neglected to seek those services. On July 15, 2013, D.J. received a similar one-year probationary sentence.
The Division argues that defendants should be collaterally estopped from denying the various acts of abuse and neglect by virtue of their subsequent guilty pleas in the related criminal proceedings. Support for the Division's position may be found in New Jersey Division of Youth and Family Services v. N.S., 412 N.J.Super. 593, 625 (App.Div.), certif denied, 204 N.J. 38 (2010). In N.S. the panel noted that, where the factual questions decided in the criminal case are identical to those in a civil abuse and neglect proceeding, defendants' criminal convictions “collaterally estop any asserted claims of innocence” in the civil proceeding. Ibid ; see also In re Guardianship of J.O., 327 N.J.Super. 304, 309–10 (App.Div.), certif. denied, 165 N.J. 492 (2000) (where the defendant was convicted in a criminal proceeding of repeatedly raping his children, collateral estoppel precluded him from claiming his innocence in a civil proceeding and challenging the facts that were decided in the criminal case).
We note, however, that the Supreme Court has held
[a] guilty plea is merely evidence, not conclusive proof, of the facts underlying the offense. Because such a plea is entered without litigation of the underlying facts, it does not estop the pleading party from contesting the admitted fact․ The plea is merely an admission of a party. As with other admissions, the party who has entered the plea may rebut or otherwise explain the circumstances surrounding the admission.
[Eaton v. Eaton, 119 N.J. 628, 644 (1990) (refusing to apply collateral estoppel doctrine and bar admission of guilty plea for motor vehicle offense in subsequent wrongful-death action).]
In the present case, we are firmly convinced that the result would be the same regardless of whether or not we apply the doctrine of collateral estoppel. Here we have been presented not only with defendants' judgments of convictions, but also the transcripts of their guilty pleas. In their respective plea colloquies, defendants clearly admitted that they abused and neglected S.S. by failing to provide him adequate nutrition, fluids and medical care.
We acknowledge that defendants did not admit to causing or being responsible for S.S.'s sodium poisoning during their plea hearing, and hence they are not precluded from challenging the trial court's decision finding them culpable. However, defendants did admit to not providing S.S. with adequate food, fluids and medical care, all of which Judge Wigler found contributed to the severity of the child's poisoning.
We also disagree with defendants' contention that the trial court incorrectly shifted the burden to them to present evidence of their non-culpability with respect to S.S.'s hypernatremia. When there are a “limited number of persons” who had access to a child during the time frame when abuse occurred, the Division must establish a prima facie case of child abuse, and the burden of proof then shifts to the defendants to establish non-culpability. In re D.T., 229 N.J.Super. 509, 517 (App.Div.1988); see also N.J. Div. of Youth & Family Servs. v. J.L., 400 N.J.Super. 454, 468–69 (App.Div.2008). In contrast
where the child is exposed to a number of unidentified individuals over a period of time, and it is unclear as to exactly where and when the child's injuries took place, traditional res ipsa loquitor principles apply․ [T]he burden of proof will not shift to the parents to prove their non-culpability by a preponderance of the evidence. The burden of proof will remain on the Division.
[J.L., supra, 400 N.J.Super. at 470.]
Here Judge Wigler found that both defendants testified that from the time S.S. came into their physical custody until he was admitted to Beth Israel Hospital, they were the only two people responsible for feeding and caring for him. The judge found Dr. Hodgson's testimony “extremely thorough and credible,” and that it provided a logical explanation for S.S.'s hypernatremia. The court also rejected the defense supposition that S.S. might have ingested a salt packet by some accidental means. On these facts, we agree that the Division established that the sodium poisoning occurred within a specific time frame when only defendants had access to S.S., and that the trial court acted properly in shifting the burden of proof to them to establish their non-culpability.
Defendants' additional appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E).
2. FN2. L.F. is not the subject of this appeal.
3. FN3. A “Dodd removal” refers to the emergency removal of a child from the home without a court order, as authorized by N.J.S.A. 9:6–8.29 of the Dodd Act, N.J.S.A. 9:6–8.21 to –8.82.