Opinion
DOCKET NO. A-1571-12T1
06-05-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.J., Defendant-Appellant. IN THE MATTER OF T.E., a Minor.
Deric Wu, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wu, on the briefs). Tara B. LeFurge, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Monisha A. Kumar, Special Deputy Attorney General, on the brief). Nancy P. Fratz, Assistant Deputy Public Defender, argued the cause for the minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Fratz, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Hayden and Rothstadt.
On Appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-221-12.
Deric Wu, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wu, on the briefs).
Tara B. LeFurge, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Monisha A. Kumar, Special Deputy Attorney General, on the brief).
Nancy P. Fratz, Assistant Deputy Public Defender, argued the cause for the minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Fratz, on the brief). PER CURIAM
Following an October 25, 2012 Family Part order terminating Title Nine litigation, defendant M.J. (Mary) appeals from an August 7, 2012 Family Part order finding that she abused and neglected her then sixteen-year-old daughter, T.E. (Tina). Because we find that the record lacks substantial credible evidence that Mary recklessly created a substantial risk to Tina's health and safety, we reverse the finding of abuse and neglect.
N.J.S.A. 9:6-8.21 to -8.73.
We use pseudonyms for the parents, children, and other family members to protect their privacy.
The record reveals the following facts. Mary had one child, Tina, born in 1995. Mary and Tina resided with Mary's parents, S.J. (Sally) and C.J. (Carl), and her two brothers.
Tina's father, M.E., does not live with the family, was not involved in the incident that gave rise to this case, and was not charged with abuse and neglect.
Tina had a history of mental health issues and was diagnosed with major depressive disorder, social disorder, and panic disorder with agoraphobia. She was evaluated, but not admitted for treatment, at the Bergen Regional Medical Center (BRMC) in 2005, 2008, and 2010, due to depressive symptoms and moderate suicidal ideation. Following these evaluations, Mary procured mentoring and psychotherapy services for Tina as recommended by the evaluators.
In Tina's junior year of high school, her school attendance sharply declined; she only attended about fourteen days of school for the period of September through December 2011. As a result of Tina's frequent absences from school and history of mental health issues, high school personnel referred her to a psychiatrist, Richard Hahn, M.D., for an evaluation.
Dr. Hahn evaluated Tina on December 13, 2011. At that time, Dr. Hahn found that Tina's "[t]hought content was negative for current suicidal or homicidal ideation." However, the doctor noted a "continued decline in [Tina's] emotional functioning during the past 2 years" marked by anxiety, refusal to eat, insomnia, auditory hallucinations during depression, and difficulty with crowds. Although he noted that she "did not appear to be in any acute distress," Dr. Hahn nonetheless found that Tina "present[ed] with symptoms suggestive of selective mutism and social phobia . . . which ha[d] evolved into a Panic Disorder with Agoraphobia . . . . [Tina] ha[d] also experienced some signs of a thought disorder, which ha[d] also interfered with her overall functioning in a variety of aspects of her life."
Dr. Hahn recommended "continuation of school based supports" and suggested that Tina seek "clinical treatment of her condition" at a mental health clinic. Dr. Hahn did not suggest that inpatient treatment was necessary; rather, he advised that "another option would be for [Tina's] family physician to attempt medication treatment to alleviate her chronic symptoms."
Two days later, on December 15, 2011, Tina revealed to her guidance counselor that she was very depressed and wanted to end her life. That same day, Mary met with school personnel to determine how to address Tina's many problems, especially school avoidance and depression. At the school staff's suggestion, Mary contacted the Crisis Mobile Unit (CMU). The CMU arrived at Mary's home that afternoon, interviewed Tina, and recommended that Tina be brought to BRMC immediately for further evaluation. Mary agreed and brought her at once.
At the hospital, Mary and Tina met with Syed Hussaini, M.D., a fourth-year psychiatric resident. Dr. Hussaini spoke with Tina privately for what the doctor estimated was forty-five minutes. During the interview, Tina told the doctor "that she [] had suicidal ideations with a plan to jump in front of the car for the past five days." Dr. Hussaini reported that Tina related that the previous Sunday, she "went to a party and became very depressed due to her negative self-image." As a result of these feelings of depression, Tina "planned her death by convincing a friend to drive by her house at 4:00 a.m. so that she would jump in front of the car." Sally heard noises outside of their home, and stopped Tina from attempting suicide. Neither Sally nor Tina told Mary about this incident.
Dr. Hussaini conferred with his attending physician and determined that Tina required admission for inpatient psychiatric care due to her worsening depression and active consideration of suicide. The doctor concluded that Tina was a danger to herself in the immediate future, and, if she were released, there was a risk she would carry out her suicide plan.
Dr. Hussaini next met with Mary to explain that the necessary course of treatment was inpatient admission, but Mary refused to consent to Tina's admission. According to the doctor, he spent over an hour explaining the reasons Tina needed inpatient care. Mary at first seemed amenable, but then advocated for outpatient care. She expressed concern about which hospital Tina would be sent to, but the doctor was unable to provide that information until Mary agreed to admit Tina. Dr. Hussaini recalled telling Mary several times that, if she refused to admit Tina, he would have to contact the Division to take emergency custody. When Mary still refused to consent, Dr. Hussaini contacted the Division.
In his testimony, Dr. Hussaini opined that Tina presented a risk to herself and could have been involuntarily committed, but, because she was a minor, BRMC's policy was either for the parent to agree to voluntarily admit the child or for the Division to be contacted. For the first time on appeal, the Law Guardian questions the validity of this policy in light of the clear mandate for involuntary commitment of minors pursuant to Rule 4:74-7A(d). We take no position on BRMC's procedure, as it is not relevant to the judge's finding of Title Nine abuse and neglect in this case.
Theresa Valenzuela, a Special Response Unit (SPRU) worker with the Division, responded to the referral in about an hour. Valenzuela immediately spoke with Dr. Hussaini, and then met with Tina, Mary, and Sally, who had recently arrived. Tina told Valenzuela, in the presence of her mother and grandmother, that "she ha[d] been feeling depressed for a while, but wasn't suicidal at that moment." However, Tina added that when "she ha[d] those thoughts, she mean[t] to kill herself."
According to Valenzuela, Mary expressed that she was aware of, and concerned about, her daughter's problems. Mary reportedly stated that she would seek outpatient help for Tina, but did not want her to stay in the hospital. After conversing for a considerable amount of time, Valenzuela was unable to persuade Mary to consent to inpatient hospitalization.
Valenzuela asserted that she did not get to speak with Sally because Sally grabbed Tina by the arm, pushed Valenzuela aside, and quickly left the hospital. Mary followed. The hospital security guard brought the three back into the hospital, and Valenzuela conducted a Dodd removal after again attempting to convince Mary that a removal could be avoided if she would consent to Tina's admission. Valenzuela explained that the Division took emergency custody of Tina to ensure she would receive necessary medical treatment. Thereupon, Tina was admitted to BRMC and later transferred to Summit Oaks Hospital for inpatient psychiatric treatment, where she remained until December 22, 2011.
A "Dodd removal" is the emergency removal of a child, without use of a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 75 n.2 (App. Div. 2013).
Mary's testimony about these events, which the trial judge found less than credible, differed. She stated that Dr. Hussaini spoke with Tina for fifteen minutes before recommending admission. Mary testified that she did not refuse to consent; she agreed, but simply asked what hospital Tina would be sent to, which caused the doctor to call the Division. She explained that she became very emotional when the doctor told her that Tina had to be admitted, stating that it "hit a nerve." Mary testified that she and Valenzuela were discussing the removal in private when Sally attempted to leave with Tina. Mary claimed that she chased after them and brought them back.
According to Division caseworker Lourdes Mendoza-Portes, she began her investigation the next day by speaking with BRMC and Summit Oaks hospital staff, Tina's vice-principal, and a CMU worker. She then interviewed Tina, who told Mendoza-Portes that her long-standing depression had recently escalated. Tina also relayed that she had a good relationship with Mary. Mendoza-Portes' investigation revealed that Mary was an excellent advocate for her daughter and had been "very proactive with meeting with the school and complying with the recommendations made by the school."
Mendoza-Portes next met with Mary at her home, where Mary seemed "apologetic," but expressed some confusion regarding the prior day's events. Mary stated that the doctor did not adequately explain things to her. Even so, Mary asserted to the investigator that she understood why the removal occurred and was happy that Tina was receiving the care she needed.
Ultimately, the Division substantiated Mary for medical neglect based on Mary's refusal to comply with recommended medical treatment after learning that Tina had a plan to commit suicide. In her report, Mendoza-Portes concluded that the risk of abuse and neglect was "low."
The Division filed a verified complaint seeking care and supervision of Tina on December 19, 2011. At the order to show cause hearing, conducted the same day, the trial judge held that the Division's emergency removal had been proper under the circumstances. The judge stated:
It would have been contrary to the welfare of [Tina] . . . for the Division to have had [Tina] remain in the care and custody of her mother, at the time her mother was refusing to admit her to [BRMC]. And the child would have been at imminent risk of harm, given her suicidal ideations and her threats to harm herself.Nevertheless, because Mary had agreed to cooperate with the Division going forward, the judge restored her legal and physical custody of Tina with continued care and supervision by the Division.
In January 2012, pursuant to a referral from Summit Oaks, Tina began therapy, schooling, and treatment at an outpatient psychiatric program geared towards adolescents. In June 2012, Tina began a second outpatient program, resumed weekly therapy sessions, and continued to see a psychiatrist.
The trial judge held a fact-finding hearing on three nonconsecutive days in June and July 2012 and issued an oral decision on August 1, 2012. He found that Mary had medically neglected Tina under N.J.S.A. 9:6-8.21(c)(4)(b) "based upon her refusal to consent to inpatient admission" of Tina at BRMC. In rendering this decision, the judge found Dr. Hussaini and both Division caseworkers credible, but found Mary only "partially credible." The judge determined that Mary had attempted to leave the hospital with her daughter and her mother. The judge also determined that Mary had refused to admit Tina after both the doctor and Valenzuela fully informed her of Tina's need for inpatient treatment and the ramifications of her refusal.
The judge opined that "at the very least, [Mary] was indecisive; and at the very worst, she was blocking the admission and being contrarian." While the judge did take note of the positive relationship that Mary and Tina shared, she also expressed concerns that Mary "minimized the child's suicidal ideations[.]" The judge concluded that Mary's "refusal was not a harmless gesture" because, as the doctor credibly testified, "[t]o release this child was to place the child at risk of harm."
On October 25, 2012, the trial judge issued an order terminating the litigation over the Division's objection. This appeal followed.
On appeal, Mary argues that the trial judge erred in finding that the Division had met its burden to show medical neglect by a preponderance of the evidence because the judge's factual findings were not supported by adequate, substantial, and credible evidence in the record. Mary asserts that "[a] finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4) cannot be sustained against [her] based solely on the fact that she disagreed with the opinion of one expert on one occasion." Moreover, she contends that a single instance of allegedly blocking a hospital admission does not rise to the level of gross negligence or reckless disregard for Tina's safety required by Title Nine. Additionally, Mary maintains that this one instance did not demonstrate that she poses a danger in the future to her child or other children. Under the totality of circumstances of this case, we find these arguments persuasive.
We begin with a review of the applicable legal principles that guide our analysis. The Division brought this case under Title Nine, which sets forth the controlling standards for adjudicating cases of abuse and neglect. N.J.S.A. 9:6-8.21 to - 8.73; Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011) (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)). Title Nine's purpose is to protect children from circumstances that threaten their welfare. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 176 (1999) (citing State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. 1991)). A child is abused or neglected when the child's
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 . . . to exercise a minimum degree of care . . . in providing the child 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 a similarly serious nature requiring the aid of the court[.]
[N.J.S.A. 9:6-8.21(c)(4).]
The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence[.]" N.J.S.A. 9:6-8.46(b); N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013). Where there is no evidence of actual harm to the child, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)).
A "minimum degree of care," as required by N.J.S.A. 9:6-8.21(c)(4)(b), does not refer to merely negligent conduct, but "'refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.'" T.B., supra, 207 N.J. at 299-300 (quoting G.S., supra, 157 N.J. at 178). "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." G.S., supra, 157 N.J. at 178 (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). 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 (citing Fielder v. Stonack, 141 N.J. 101, 123 (1995); McLaughlin, supra, 56 N.J. at 305).
Whether conduct is merely negligent, as opposed to grossly or wantonly negligent, is determined by a fact-sensitive inquiry where the conduct is "evaluated in context based on the risks posed by the situation." T.B., supra, 207 N.J. at 309-10 (finding only negligence where mother left four-year-old alone at home because she mistakenly believed the child's grandmother was present); see also N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168-69 (App. Div. 2009) (finding only negligence where mother allowed children to walk from playground to condominium within her line of sight); but see N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 545-46 (App. Div. 2011) (finding gross negligence where defendant left infant on bed near radiator and infant was severely burned).
In New York, if a parent is unwilling to pursue recommended psychiatric treatment, which results in the impairment of the child or is necessary to prevent the impairment of the child, the courts may find neglect. In re Felicia D., 263 A.D.2d 399, 399 (N.Y. App. Div. 1999). The court noted that this issue "cannot be judged in a vacuum[;]" the most important factor "is whether the parents have provided an acceptable course of medical treatment for their child in light of all the surrounding circumstances," not whether one decision was "right" or "wrong." Ibid. (internal quotation marks and citation omitted).
Where there is no actual harm alleged, the court must focus on "the likelihood of future harm," taking into consideration events after the removal "if causes for concern have been significantly alleviated." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). Indeed, the abuse and neglect statutes "expressly require that the court assess risk to the children." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 575 (App. Div. 2010). The "risk of harm, not just past injury or acts, [is] relevant to determining whether a child is an abused or neglected child." Ibid. Where an isolated act "appears to be aberrational," labeling the parent a child abuser may be inappropriate. Dep't of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 512-13 (App. Div. 2010), certif. dismissed, 208 N.J. 355 (2011).
In determining whether neglect has occurred, the trial judge must look at the totality of the circumstances, including the general home environment and family circumstances. N.J. Div. Of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 39 (2011). The court should evaluate a defendant's conduct within the context of the circumstances and problems facing the family. Ibid. Bearing in mind the very serious consequences to the parent of a finding of abuse and neglect, including having his or her name included on the Central Child Abuse Registry, the judge should also consider whether the parent or guardian is likely to pose a danger in the future to this child or to other children. See S.S., supra, 372 N.J. Super. at 27-28.
Our scope of 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). We must determine "whether the findings made could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 171 N.J. 44 (2002). Special deference is afforded to the family court because of its "'expertise in family matters,'" M.C. III, supra, 201 N.J. at 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)), and "[p]articular deference is afforded to decisions on issues of credibility." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007 ) .
Nevertheless, "[w]here 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." G.L., supra, 191 N.J. at 605 (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).
The issue here is whether Mary's refusal to consent to Tina's admission to the hospital for psychiatric care constituted a failure to exercise a minimum degree of care by recklessly creating "harm, or [the] substantial risk thereof[.]" N.J.S.A. 9:6-8.21(c)(4)(b). Whether a particular event should be classified as mere negligence, as opposed to gross or wanton negligence, can be difficult to determine. See T.B., supra, 2 07 N.J. at 309.
Based upon our review of the record, we are persuaded that it does not contain competent evidence that defendant was grossly or wantonly negligent, knowing that injury was likely, and recklessly disregarding the possibility. See G.S., supra, 157 N.J. at 178. Indeed, the record suggests that Mary, who had a substantial positive track record in dealing with her daughter's issues, had an extremely emotional and adverse reaction to the possibility of her daughter being committed and wished to seek treatment other than hospitalization. While Mary's refusal was perhaps ill-conceived and emotional, we do not perceive that it crossed the line from negligence to willful and wanton negligence. As the judge found, it was indecisive or contrarian.
The record shows that Mary had a very close relationship with Tina and for many years had diligently pursued appropriate psychiatric treatment and related services, including mentoring, psychotherapy, special education services, and evaluations at the BRMC on numerous occasions. The record fully supports the Division worker's investigation results that Mary had been extremely proactive in obtaining help for Tina's numerous issues. Indeed, on the day in question, Mary met with the school, took the school staff's advice to call the CMU, and followed the CMU's recommendation to bring Tina to the hospital for an evaluation. In light of her overall diligence in trying to get treatment for Tina, Mary's one poor decision was not grossly or wantonly negligent.
Importantly, Mary's refusal to follow the doctor's recommendation during the December 15, 2011 incident appears to be an aberration. Mendoza-Portes found the risk of abuse and neglect to be low, the judge restored Mary's full custody a mere four days after the incident, and the litigation was terminated entirely less than a year later. Additionally, after Tina was discharged, Mary ensured that she received all the necessary therapy, schooling, and treatment. Thus, we perceive no likelihood of future harm. See S.S., supra, 372 N.J. Super. at 24. Instead, this incident appears to be an isolated event that does not warrant labeling Mary a child abuser. See K.A., supra, 413 N.J. Super. at 512-13.
In sum, given the totality of the circumstances, the record simply does not support a finding of abuse and neglect. The Division failed to prove by a preponderance of the evidence that Mary acted with gross or wanton negligence.
The finding of abuse and neglect is reversed. The Division will remove defendant's name from the Central Child Abuse Registry within thirty days of the date of this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION