DIVISION OF YOUTH AND FAMILY SERVICES v. M.T., SR

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.T., SR.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF N.T., D.T.

and M.T.,

Minors.

___________________________________

Submitted: July 3, 2013 Decided:

Before Judges Axelrad and Fuentes.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-47-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ellen Buckwalter, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant M.T., Sr., appeals from the Family Part's April 27, 2012 order, following a fact-finding hearing, determining he medically neglected his obese sixteen-year-old son M.T. (Max)1 by failing to follow up with medical referrals. He challenges the trial court's finding that the Division of Youth and Family Services2 (Division) proved abuse or neglect within the intendment of N.J.S.A. 9:6-8.21(c)(4)(a) and case law. Although the Law Guardian supported the Division's application before the trial court, it now supports appellant's position.3 We reverse.

Appellant and C.B. have three children, two daughters, now age sixteen and twelve and one-half, and Max, who is the only child involved in this appeal. Appellant is their primary caregiver and sole custodian as C.B., who suffers from mental health and substance abuse problems, has been in and out of the home since 2003. At the time of the subject complaint, the Division was unaware of C.B.'s whereabouts.

On September 23, 2011, the Division filed an FN complaint and order to show cause seeking care and supervision of the children, and the court granted it as to Max that day. Following a fact-finding hearing over two days in February and April, on April 27, 2012, the judge found appellant medically neglected Max by failing to follow up with doctor referrals for Max's high blood pressure and obesity-related medical conditions, and terminated the litigation at the Division's request because the conditions had been remediated.

At the order to show cause hearing, Jenny Sierra, an intake worker, testified for the Division, and appellant testified on his behalf. Sierra testified again at the fact-finding hearing, and the Division also presented the testimony of Dr. Muhammad Rehan Ali Siddiqui, a pediatrician at the St. Joseph's Family Health Center (St. Joseph's Center) who examined Max in 2010 and 2011. Appellant did not testify again at the fact-finding hearing.

Max had been a patient of the St. Joseph's Center since May 4, 1996. On July 2, 2010, Dr. Siddiqui performed a routine annual physical exam of Max, who was then five feet ten inches tall and weighed 284 pounds. The doctor testified that Max's blood pressure was 156/87 on one reading and 146/77 on a second reading. Concerned that Max was obese and to rule out possible causes of high blood pressure, the pediatrician gave appellant referrals for Max to have a cardiology and renal exam and visit a nutritionist. He also recommended that Max have a follow-up with him in three months. Dr. Siddiqui explained that the risks to a child of Max's height, weight and age included cardiovascular disease, Type 2 Diabetes, early heart attack, stroke, and hypertension leading to ocular disease, renal disease, and stroke.

Appellant did not bring Max back to St. Joseph's Center until May 23, 2011, when he needed medical clearance to play high school football. Max was then six feet tall and weighed 295 pounds. His blood pressure was 142/82, which Dr. Siddiqui considered high. Dr. Siddiqui testified that Max had a high risk of developing Type 2 Diabetes and cardiovascular disease, but did not diagnose him with either at the time. Nor was he in need of emergent care or hospital admission at that time.

Dr. Siddiqui refused to sign the form because it appeared that appellant had not taken Max for the cardiology and renal examinations. Appellant told Dr. Siddiqui that he had taken Max to a cardiologist who said he was fine, but there were no reports from the doctor in the file and Dr. Siddiqui did not believe him.

Appellant became hostile and yelled profanities at the doctor, then stormed out of the office with Max. The doctor reported that he felt threatened by appellant's behavior. The clinic administration then discharged the family from the clinic and a staff member contacted the Division three days later.

Sierra made telephone contact with appellant on May 27, 2011, who was angry about Division involvement. She met with the children a few days later at their schools and they appeared well groomed. The older sister told Sierra that Max wanted to play football to help him lose weight, and the children reported that their father was preparing healthy meals for them in that he had started baking rather than frying foods and regularly served vegetables at dinner.

Max confirmed that his father became upset at the pediatrician's office. He told the caseworker that he did not have the exams recommended by Dr. Siddiqui, but his father was researching specialists who would accept his insurance. He denied having high blood pressure and noted that Dr. See, his former pediatrician who had retired from the practice, had never expressed such concern. The records reflected, however, that the school nurse had checked his blood pressure during the current school year and "found it to be high for his age." In addition to making better food choices, Max reported that he was working out in the high school weight room daily and walking his uncle's dog after school.

On June 11, 2011, appellant brought Max to a different doctor's office (Dr. Haselkorn) and a nurse practitioner completed the school physical and signed off on the athletic form. As reported to Sierra by a staff member, there was nothing documented in Max's chart that indicated he suffered from high blood pressure.

Sierra testified about appellant's lack of cooperation. After multiple failed attempts to reach appellant, she made contact with him on June 28, 2011 by making an unannounced visit to the family home. When she informed him of the reasons for the Division's involvement, he denied the allegations and referenced a visit to a new doctor's office. However, despite several requests from her and promises by appellant, he did not provide her with the name of the new doctor. She had to track down the information about Dr. Haselkorn on her own. He also commented that he was not going to take Max to the recommended specialist examinations because he showed no recent signs indicating he suffered from high blood pressure. Sierra continued to have difficulty contacting appellant throughout the month of July.

In August 2011, appellant brought Max to the emergency room where he was seen for high blood pressure and headaches. He explained that he could not find a doctor who would accept his insurance, and the emergency room would not turn Max away. Max was discharged on August 25, 2011 with instructions for nonspecific headaches and high blood pressure.

Max was evaluated by a cardiologist on November 9, 2011, who found him healthy, and no additional appointments were recommended. His highest blood pressure reading by the cardiologist was 144/81, which the cardiologist indicated was "within normal limits for size." As of the April 27, 2012 decision date, Max's treating physician provided documentation to the Division indicating he was obese but on a diet, receiving appropriate care and the doctor had no concerns.

The court found appellant only brought Max to the pediatrician because Max needed the sports authorization, appellant did not follow through with the doctor's prior specialist referrals that the doctor had deemed medically necessary, and appellant lied to the doctor and caseworker about having taken Max to the specialists. Appellant also denied that Max ever had high blood pressure, which was contradicted by the pediatrician. He became verbally abusive towards the pediatrician. Appellant also failed to cooperate with the Division in providing medical information, and told the caseworker that he had no intention of taking Max for the consultations or for follow up visits.

The judge found the doctor and the caseworker credible, and appellant not credible. He concluded that appellant's refusal to complete the prescribed evaluations and subsequently lying met the definition of an abused or neglected child under N.J.S.A. 9:6-8.21(c)(4). This appeal ensued.

We determine whether the position of the trial court is supported by substantial credible evidence in the record and is consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Particular deference is given to a trial judge's credibility determinations and to "the family courts' special jurisdiction and expertise[.]" Id. at 413. "So long as the record contains substantial and credible evidence to support the family court's decision, [this court] may not second-guess its judgment." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012). "Nevertheless, the trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002). See also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

Appellant argues that a single instance of failing to follow through on a doctor's recommendation is insufficient as a matter of law to constitute medical neglect because continued failure is necessary to find neglect absent risk of imminent harm. The Law Guardian emphasizes that there were no underlying medical conditions found and no evidence of risk of imminent harm, nor did the pediatrician make an immediate referral to the Division. The Division counters that appellant "consciously and deliberately ignored a crucial medical diagnosis and recommended treatment for well over a year, thereby placing his son at significant risk of harm." We are not persuaded by the Division's arguments in this regard.

N.J.S.A. 9:6-8.21(c)(4) defines an "abused or neglected child" as:

a child 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[] 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[.]

The focus of the fact-finding hearing is to determine "whether the parent under consideration caused injury to the child and, if not, whether that parent is likely to do so in the future." N.J. Div. of Youth and Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).

A court does not have to wait until a child is actually harmed or neglected before it can act in the welfare of that minor. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). "However, as a part of its burden of proof, the State must still demonstrate by a preponderance of the competent, material and relevant evidence (N.J.S.A. 9:6-8.46b) the probability of present or future harm." S.S., supra, 372 N.J. Super. at 24. In S.S., we reversed the conclusion of the trial judge that a battered wife who chose to remain in an abusive relationship despite her toddler witnessing the domestic violence between his parents abused or neglected her son "by failing to appreciate the continuing risk of harm posed by the actions of her husband[.]" Id. at 15, 22-23.

In New Jersey Division of Youth & Family Services v. K.M., 136 N.J. 546, 550 (1994), the Court affirmed a finding of neglect where the parents failed to provide for their children's basic needs of food, clothing, shelter and medical needs, though financially capable of doing so. The defendants' youngest child "had gained very little weight under [their] care due to inadequate and infrequent feeding and no medical attention[,]" the children were found to be "inadequately dressed, wearing only dirty under-shirts and dirty diapers, and home itself was persistently filthy[,]" and the home conditions did not improve despite assistance and intensive parenting-skills programs offered by the Division. Id. at 552. Accordingly, the Court found the Division demonstrated that the children's conditions were impaired or in imminent danger of being impaired. Id. at 562.

In New Jersey Division of Youth & Family Services v. P.W.R., 205 N.J. 17, 38 (2011), our Supreme Court reversed a finding of abuse and neglect concluding, in part, that the stepparent's failure to take her teenage daughter to a pediatrician for two years did not constitute medical neglect. The court found there was no evidence submitted that the teenager's "'physical, mental, or emotional condition [was] impaired or [was] in imminent danger of becoming impaired'" by that omission. Ibid. (alterations in original). Moreover, the stepparent had been taking the teenager to Planned Parenthood for pregnancy checks and the Division "never demonstrated proof of a physical condition, other than a possible pregnancy, for which [the teenager] required pediatric care that was not sought." Ibid.

"Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999). There, the Court found sufficient evidence of neglect where an employee at a hospital for mentally impaired persons mistakenly administered medication to a disabled minor which was about seventy-eight times the prescribed dosage. Id. at 166-67. The Court explained that "the phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Moreover, "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 State argues that appellant did not meet the "minimum degree of care" as explained in G.S. because he did not address Max's medical needs for more than a year. There, the caregiver administered a medication clearly contrary to the label and beyond reasonable interpretation; moreover, the harm was undisputed.

Here, however, there was no harm and insufficient evidence that Max was at risk of imminent harm. We do not countenance appellant's lack of honesty about the specialist referrals, cavalier attitude about his son's obesity and the potential medical risks if ignored, verbal abuse of the doctor, and failure to cooperate with the Division. Nevertheless, accepting all the facts as found by the trial court, we are not satisfied the Division demonstrated by a preponderance of the competent evidence that the appellant's conduct was sufficient under law to constitute medical neglect.

Childhood obesity has been recognized as a national problem.4 Parents clearly should be aware of the risks and take full advantage of nutritional, medical, educational, and recreational referrals and programs.5 It would have been in Max's best interest for appellant to have complied with Dr. Siddiqui's recommendation for the specialist referrals based on his assessment of Max's elevated blood pressure and obesity.

Nevertheless, the evidence does not demonstrate that appellant's failure to comply in this isolated instance placed Max at significant risk of harm. Nor did appellant's other behavior rise to the level of impairing Max's health or place him in imminent danger of becoming impaired as required for a finding of medical neglect under N.J.S.A. 9:6-8.21(c)(4). Though immature in his interaction with Dr. Siddiqui and the Division, appellant apparently was cognizant of the medical risks to Max occasioned by his obesity and helped him eat better by baking his food, serving him vegetables daily, limiting his fast food intake, and encouraging him to play high school football. Max was also engaging in regular physical activity.

Reversed.

1 We use a fictional name to protect the privacy of the child and for ease of reference.

2 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

3 The Law Guardian explains in its brief that "[a]t trial below, the Law Guardian's position was based only on safety issues; a review of the case law and consultation with the minor child has led to a different position on appeal."

4 About NIH Obesity Research, Nat'l Inst. of Health, http://obesityresearch.nih.gov/about/about.aspx (last updated Feb. 21, 2013).

5 Obesity and Overweight for Professionals: Childhood: Solutions, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/obesity/childhood/solutions.html (last modified Oct. 26, 2012).