NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0800-12T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

T.A.,

Defendant-Appellant,

and

A.R.,

Defendant.

__________________________

IN THE MATTER OF K.R.,

Minor.

__________________________

December 20, 2013

Submitted December 10, 2013 Decided

Before Judges Reisner and Alvarez.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-97-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Pastacaldi, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.R. (Cory H. Cassar, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this Title Nine case, defendant T.A. appeals from an August 31, 2012 order, finding that she neglected her son Kevin2 by failing to seek regular, appropriate medical care for his sickle cell disease and by failing to immediately take him to the hospital after he suffered a stroke.

On this appeal, defendant contends that the trial court's factual findings are not supported by the evidence, while the Division contends that the evidence supports the findings. The Law Guardian supports defendant's argument, adding that the trial court did not find and the record does not support the conclusion that the child's protection requires placement of defendant's name on the Central Registry. For the reasons that follow, we reverse.

I

We begin by reviewing the procedural history, because it is both puzzling and illuminating. The incident in question occurred on Friday, March 18, 2011, when the child's daycare center called defendant because Kevin was crying, complaining of mouth pain, and had slurred speech and weakness in his left arm. According to the Division's evidence, someone at the center advised defendant to take the child to the doctor right away or take him to the emergency room. Based on her observations when she arrived home with the child, who was then four years old, defendant did not think he was in severe distress and, when she could not get an immediate appointment with the child's pediatrician, she waited until the following Monday to take him to the hospital. When he was examined at the hospital, the doctors determined that the child had suffered a stroke, a known but rare complication associated with sickle cell disease.

The Division did not file a Title Nine complaint until December 2, 2011. On the return date, December 15, 2011, the Division's attorney told the Family Part judge that, after some delay, defendant had accepted services designed to educate her about the child's medical needs, and the Division wished to withdraw the complaint. The Law Guardian opposed the withdrawal on the grounds that the incident was serious and defendant had not yet actually attended the proposed training; the Law Guardian suggested that the court mark the case "inactive" and review it in a month or two. The judge entered an order for supervision and scheduled a return date in January 2012.

On January 27, 2012, the Division attorney stated that defendant "has been complying with the Division," taking the child to all scheduled medical appointments, and receiving education about sickle cell disease. The Division and Law Guardian agreed that the case should remain open "for the Division to continue with care and supervision with this family." The Law Guardian noted that the child did not appear to have suffered any permanent injury from the stroke. All counsel acknowledged that defendant worked a split shift at her full-time job3 and was diligently juggling work, medical education about sickle cell disease, and taking the child to all of his medical appointments. To that litany of obligations, the parties added a requirement that defendant undergo psychotherapy, to be provided either in her home or on weekends.

When the attorneys returned to court on April 19, 2012, the Division attorney reported to the court that the Division "does not have any concerns regarding the child and [defendant] is doing everything that she is supposed to be doing regarding [Kevin's] medical treatment." The Law Guardian agreed, stating that she was now "fully satisfied that [defendant] is meeting his needs and that the concern which brought the case here" had been addressed. She indicated that defendant had been evaluated by a psychologist who found no psychopathology, and found her to be a fit parent as long as she continued her education about sickle cell disease. The Law Guardian asked "that the case be dismissed" because "[t]here are no abuse or neglect issues present in the family at this point."

Notwithstanding her earlier request that the case be dismissed back in December 2011, the Division's attorney stated, "I think now we do not have any concerns regarding the care that [defendant] is providing to the child, however, I believe my client has the right to proceed to a fact finding. They may decide not to do it, but I do have to consult with my client." Noting that a fact finding hearing had already been scheduled for May, the judge gave the Division two weeks to decide whether to dismiss the case or proceed. The Division decided to proceed with the case, leading to two days of testimony, on May 21, 2012 and August 8, 2012.

The Division presented testimony from Dr. Rafael Barilari, the pediatric hematologist who treated the child at St. Joseph's Hospital (hospital) on March 21, 2011. He opined that the child was showing symptoms of a stroke on March 18, 2011. As a result of the stroke the child required blood transfusions to prevent future strokes, and physical therapy to address left-side weakness.4 He testified that it was not possible to prevent the first stroke and sickle cell patients "can develop strokes even without showing motor changes." However, a stroke is a "medical emergency" requiring immediate treatment. On cross-examination, the doctor agreed that the child had no seizure activity on March 18, which is a symptom frequently associated with strokes.

Dr. Barilari, who staffed a pediatric hematology unit at the hospital, had seen Kevin for routine appointments in prior years. He explained that regular appointments are important:

Because the disease is very unpredictable and many times the parents of these patients are not familiar with this unpredictability of the sickle-cell disease . . . [a]nd this is a very new burden to a family when they have a child with sickle-cell disease, because some children with sickle-cell disease have no problems early in life and some children have more problems, and there is no way to know in advance who is going to have which kind of problems.

Dr. Barilari recounted that when one of his colleagues first examined the child in 2009, he gave defendant and her husband a booklet with information about the disease. Dr. Barilari was not present at that appointment but he testified that it was their practice to discuss with parents of children with sickle cell disease "what to do in the event of fever" and other complications. In response to questions from the judge, he stated that he or his colleagues would typically give parents information about stroke symptoms. However, he had no personal knowledge as to what his colleague told defendant about Kevin's medical condition.

Dr. Barilari testified that the hospital's records indicated that one of his colleagues examined the child on January 25, 2011, two months before the stroke incident. At that time, the child was taking his recommended medications for sickle cell. The records indicated that the child did not attend any appointments between October 2009 and January 2011. The doctor was, however, aware that defendant had moved to South Carolina during that time period.

The Division also presented testimony from Shannon Heffernan, a social worker at the pediatric hematology unit of the hospital. As part of her regular duties, she was assigned to provide information to defendant about sickle cell disease, beginning in November 2008. She testified that it was the hospital's procedure to have a social worker meet with parents of children with sickle cell to help educate them about the disease. Heffernan also met with defendant after she brought Kevin in on March 21, 2011. At that time, defendant admitted that she had not taken the child to a specialist while they lived in South Carolina, although she took him to his pediatrician.

A Division case worker, Jessica Checo, testified that she interviewed defendant on March 22, 2011, after Heffernan alerted the Division that defendant had delayed in obtaining medical care for the child. Defendant told Checo that the day care center had called her because the child was not feeling well. Defendant told Checo that when she arrived, Kevin "was complaining that his mouth was hurting and that his hands were shaking . . . [and] she was advised [by the school staff] . . . to take him to the hospital." Defendant told Checo that she called the pediatrician's office but it was closed already; however, she said the child appeared to be "feeling better" and was eating, playing normally, and did not have a fever during the weekend. Defendant stated to Checo that "it was not until Monday when she felt that the child had a hard time eating or drinking, that's when she decided to take the child to the emergency room."5 On cross-examination, Checo agreed that defendant obtained appropriate medical treatment and follow-up treatment for the child after she brought him to the hospital.

Defendant testified that she was at Kevin's day care center for a meeting on the morning of March 18. At that time, his teacher told her that the child's mouth was hurting him, but it was not necessary for her to take him home. She would call defendant if it continued to be a problem. According to defendant, when the center called her later to pick the child up, the staff recommended that she "take him to see his doctor, but not to the hospital." Center staff told her that the child's hand had been shaking, but the shaking had stopped by the time defendant arrived at the school. She testified that she called the doctor but the office was closed.

On cross-examination, defendant admitted that when she first took the child to the hematology clinic at the hospital she received education about sickle cell disease, including the need for him to see a specialist every six months and take penicillin. She was also advised that "one of the risks of a child with sickle cell anemia was a higher risk of having a stroke." On re-direct examination, defendant also testified that since Kevin had the stroke, she had attended additional training about sickle cell disease, and she received training every time she took Kevin for his routine medical appointments. During the re-direct, the judge would not permit defendant's counsel to question her further about her current parenting abilities, insisting that the only issue before the court was "whether she was guilty of medical neglect at the time of this incident."

At the conclusion of the hearing, both defendant's attorney and the Law Guardian argued that the Division had not proven that there was any imminent risk of harm to the child when the agency finally filed its complaint in December 2011, nor had the Division established that the child was in danger of future harm.

The judge issued a statement of reasons on August 31, 2012. He found that the child's treating doctor explained the condition to defendant in detail, including the danger that the child could have a stroke. He found that defendant failed to take the child for follow-up visits with a specialist for more than fifteen months after she went to South Carolina. He found that she only gave the child penicillin on a regular basis, although he was also supposed to take Vitamin D and folic acid.

The judge found that defendant received a call from the child's school that he was having "symptoms of left-side weakness, was crying due to mouth pain, was drooling, and his speech was slurred," and that she needed to take him for "immediate medical care." However, she waited three days before taking him to the hospital. The judge found that any reasonable adult having that information would have taken the child to the hospital immediately. He found that her failure to take the child to the emergency room on Friday, March 18, 2011 constituted "medical neglect to a gross negligence standard" and placed the child "at risk of harm." Later in his remarks, the judge emphasized that he believed defendant called the pediatrician immediately and found that the office was closed over the weekend. However, he found that she should have then taken the child to the hospital. He later emphasized his belief that defendant "loves her child, and wants to care for him appropriately," but she acted inappropriately on March 18, 2011.

The judge also addressed the Division's attorney concerning whether the agency wished to immediately terminate the litigation. The attorney responded, "Yes. At this time the Division does not have any concerns regarding the care of the child. [Defendant] has been complying with all of the services provided by the Division, as well as the medical treatment that the child requires."

II

On this appeal, we defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,'" and so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). The trial court is best suited to assess credibility, weigh testimony, and develop a feel for the case. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010). Special deference is accorded to the Family Part's expertise. Id. at 343; Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super.81, 89 (App. Div. 2006) (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995)), certif. denied, 190 N.J.257 (2007).

An abused or neglected child is defined 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 . . . 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. . . .

[N.J.S.A. 9:6-8.21(c)(4).]

Here, the finding of abuse and neglect revolves around defendant's purported "failure . . . to exercise a minimum degree of care," in obtaining medical treatment. Our Court has held that:

The phrase "minimum degree of care" denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.

[N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-78 (1999)).]

In turn, "'willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes.'" Id. at 306 (citations omitted) (quoting G.S., supra, 157 N.J. at 178-79).

The Court concluded that "'[w]hether 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.'" Ibid. (quoting G.S., supra, 157 N.J. at 181-82). However, "'[w]hen a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law.'" Ibid. (quoting G.S., supra, 157 N.J. at 181-82). The Court acknowledged that "the question of whether a particular event is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one." Id.at 309.

In adjudicating an abuse and neglect complaint, courts must also remember that "Title 9's primary concern is the protection of children, not the culpability of parental conduct." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J.17, 31 (2011) (quoting G.S., supra, 157 N.J.at 177). Thus, a finding of abuse and neglect is aimed, not at punishing the parent, but at protecting the child from future neglect. SeeT.B., supra, 207 N.J.at 303. "[W]here a parent or guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger. To the contrary, where a parent is merely negligent there is no warrant to infer that the child will be at future risk." Id.at 307. Because the purpose of the statute is to prevent future harm to the child, it is highly relevant whether the child is in fact at risk of future neglect. If the risk may be ameliorated by the provision of services, it is relevant whether those services have been provided and have produced improvement in the parent's conduct. SeeP.W.R., supra, 205 N.J.at 34; N.J. Div. of Youth & Family Servs. v K.M., 136 N.J.546, 552 (1994).

In another context, we have stated:

The abuse or neglect statutes . . . expressly require that the court assess risk to the children. N.J.S.A. 9:6-8.21c(4), -8.31b. By the language of those statutes, the Legislature has made risk of harm, not just past injury or acts, relevant to determining whether a child is an abused or neglected child. Consequently, the risk, or pre-disposition, that a defendant may harm the children is expressly admissible in an abuse or neglect case despite the general evidentiary prohibition contained in N.J.R.E. 404(b).

[N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 575-76 (App. Div. 2010).]

Applying those legal principles to the evidence in this case, we reach the following conclusions. We acknowledge that this is a close case, because what might appear clear in hindsight may implicate a parent's reasonable judgment at the time, based on her observation of her child's symptoms or lack of symptoms. No one disputes defendant's testimony that by the time she arrived to pick up Kevin at day care, some of his symptoms seemed to have abated and he appeared normal over the weekend. Nevertheless, our deferential standard of review mandates that, in a close case such as this, we accept the trial judge's finding that defendant neglected Kevin by failing to obtain immediate medical care for him.

However, that does not end our analysis. The Law Guardian argues that this was an aberrational situation, which is not likely to recur in light of defendant's willingness to accept counseling and training about sickle cell disease. Hence, the child is not at risk of future neglect, and Title Nine's purpose would not be served by labeling defendant as a child abuser and keeping her name in the Central Registry of Abuse/Neglect Perpetrators. SeeN.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 512-13 (App. Div.), certif. granted, 204 N.J.40 (2010), certif. dismissed, 208 N.J.355 (2011). We agree.

Indeed, having thoroughly reviewed the record, we confess some puzzlement at why the Division has chosen to expend its resources on a case that it was willing to dismiss on the first return date. At that first hearing, the agency conceded that it had no concerns about defendant's ability to safely care for the child on a going-forward basis. But for the objections of the Law Guardian (later retracted), the case would have been dismissed at that point. "We see no reason, when judging the likelihood of future harm, that the court focus solely on events at the time of the removal if causes for concern have been significantly alleviated." N.J. Div. Youth & Family Servs. v. S.S., 372 N.J. Super.13, 24 (App. Div. 2004), certif. denied, 182 N.J.426 (2005).

That being so, we also conclude it was a mistaken exercise of discretion, and prejudicial error, for the trial judge to preclude defendant from presenting evidence designed to show that the events that precipitated the Division's complaint were unlikely to recur. That was a critical issue in deciding whether a finding of abuse and neglect was appropriate in this case. However, we find that in the circumstances of this case, a remand is not required, because based on the record before us, it is clear that the Division failed to prove that the child was at risk of future harm. To the contrary, from the first hearing to the last, the agency conceded that was not the case. Consequently, we reverse the finding of child neglect, vacate the order on appeal, and direct that defendant's name be removed from the Central Registry.

Reversed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency (Division). L. 2012, c. 16, eff. June 29, 2012.

2 We use a pseudonym for the child.

3 Defendant worked as a school bus driver.

4 The doctor could not predict for how long the child would need periodic transfusions. He indicated that the need could last for as little as two years, or it could be a lifelong requirement.

5 The child's father was not involved in the incident, because he was in jail at the time. He is not participating in this appeal.