OF YOUTH AND FAMILY SERVICES v. K.M.C IN THE MATTER OF J.L.M and S.A.M., JR., minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4090-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.M.C.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF J.L.M. and

S.A.M., JR., minors.

_______________________________

June 13, 2013

Submitted June 5, 2013 Decided

Before Judges Sapp-Peterson and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-38-11.

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

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.L.M. and S.A.M., Jr. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant K.M.C. appeals from the Family Part's March 22, 2011 order, following a fact-finding hearing, determining defendant abused or neglected her son, S.A.M., Jr. (Simon),1 by failing to properly address the child's serious medical needs.2 Defendant challenges the trial court's finding that this conduct constituted abuse or neglect under Title Nine. The Law Guardian supports the judge's finding that the Division of Youth and Family Services3 (Division) met its burden of proving abuse or neglect. Based on our review of the record and applicable law, we affirm substantially for the reasons stated by Judge Mark A. Troncone in his oral opinion of March 22, 2011.

I.

Defendant is the mother of Simon, who was born on September 11, 1995. Defendant lives with S.A.M., Sr., but the couple are not married. They have a daughter, J.L.M., who also resides in their home.

The Division has been involved with the family since 2003. Both children have serious medical and mental health issues. With regard to those issues, the Division first applied for care and supervision of the children in May 2007 because defendant and S.A.M., Sr. were not taking J.L.M. to her mental health treatment sessions and failed to appreciate the severity of her condition. Both children completed psychological evaluations at that time and were diagnosed with psychiatric issues requiring treatment.

As a result of her evaluation, a recommendation was made for J.L.M. to attend a treatment home. Defendant failed to provide the necessary insurance information and other documentation. Therefore, the Division obtained custody of J.L.M. so that she could attend the program. J.L.M. completed the program in January 2009 and returned to the home. Thereafter, the Division continued to receive referrals concerning J.L.M. and it continued to attempt to assist the family in making sure she received the proper treatment.

The Division received a referral in November 2009 from Simon's gastroenterologist's office, the Pediatric Gastroenterology, Hepatology, and Nutrition Program at the K. Hovnanian Children's Hospital, indicating the child had been diagnosed with impaired liver function and failure to thrive. The child needed to have lab work performed every four months in order to monitor his condition. However, Simon had last attended a doctor's appointment on December 8, 2008 and had had no lab work done since that time. The referent further reported that defendant had cancelled all of Simon's appointments for the past year and continued to claim she had misplaced the lab work prescriptions.

Division workers went to the family's home to investigate the referral, but S.A.M., Sr. refused to allow them into the house. Defendant told the workers Simon had missed one appointment because he had to attend a hearing in "truancy court" that day. Defendant permitted the workers to see Simon, who "had little to say and appeared well." At that point, S.A.M., Sr. told the workers to leave. The Division encouraged Simon's parents to take him to his January 19, 2010 appointment with his gastroenterologist and later confirmed the child was seen on that date.

In May 2010, the Division received a referral from Simon's school that the child had been repeatedly absent. Defendant told the caseworker that Simon had been sick and that he had recently missed school because he had "too much salsa." Simon completed another psychological evaluation in June 2010, but two subsequent appointments for medication monitoring were not kept.

In July 2010, the Division contacted defendant to remind her that Simon had an upcoming appointment with his gastroenterologist. Defendant stated she was aware of the appointment and had transportation. She also acknowledged she needed to take Simon to have lab work performed in advance of the appointment.

Division intake worker Jaime Rimer testified she went to the family's home on August 26, 2010, after the Division received another referral from Simon's gastroenterologist's office about medical neglect concerning Simon. S.A.M., Sr. refused to admit Rimer to the home on August 26. The next day, Rimer returned and, when S.A.M., Sr. again refused to cooperate, she called police for assistance. At some point, S.A.M., Sr. yelled that Simon had missed one of his doctor's appointments because J.L.M. "was being discharged from the hospital" that day.

On September 22, 2010, the Division received a referral from Carol Porter, a social worker from Simon's gastroenterologist's office. Porter stated Simon had been receiving treatment since 2004 for abdominal pain, poor growth, and abnormal liver functions. Porter reported that Simon's parents repeatedly cancelled treatment and evaluation appointments for the child. As a result, Simon had not been brought to his treating physician, Dr. Azam Soroush, since January 19, 2010. Simon's condition also required that he have lab work every four months. However, Porter reported that Simon's parents had not presented him for lab work for over a year.

Dr. Soroush was qualified as an expert in pediatric gastroenterology and testified at trial. Dr. Soroush had been treating Simon since 2005 for chronic constipation, poor growth, and abnormal liver function. He also had several nutritional deficiencies, including zinc and vitamin D. Dr. Soroush followed up on Porter's letter by making a second referral to the Division on November 15, 2010. Dr. Soroush stated Simon's condition was "of great concern because liver disease can progress to liver failure and its monitoring is very important. The vitamin D deficiency needs to be corrected and other nutritional deficiencies should be identified and treated as well." These deficiencies "can have [an] impact upon [Simon's] bones and other deficiencies can have a negative impact on various organs of his body, including eye, skin, RBC, bleeding control, [and] nervous system[.]"

Based upon these referrals, the Division again obtained care and custody of Simon and his sister. The trial court ordered defendant and S.A.M., Sr. to ensure that Simon participate in the treatment recommended by Dr. Soroush.

Division caseworkers also went to defendant's home on November 23, 2010. Defendant told them S.A.M., Sr. had had a heart attack and would not be speaking with the Division. Defendant stated she had scheduled an appointment for Simon with Dr. Soroush on January 21, 2011, but admitted she had not brought him for his lab work. The Division followed up the next week, but defendant had still not scheduled Simon's lab work. The Division offered to provide transportation to the family so they could have Simon treated and evaluated.

Dr. Soroush testified defendant cancelled appointments for Simon on September 30, 2009, November 12, 2009, and November 17, 2009. He did not attend his November 23, 2009 appointment. He was seen on January 19, 2010, but his parents did not bring him for his August 20, 2010, August 26, 2010 or October 1, 2010 appointments. Defendant provided no explanation for her failure to bring her son for the appointments.

Dr. Soroush testified that, when defendant finally brought Simon for an appointment in January 2011, she found he had lost 4.6 pounds from the previous year. She stated this was unusual for a sixteen-year-old boy, since children usually gain weight at that age. Within two weeks of that appointment, Simon had lost another 2.3 pounds and, as a result, Dr. Soroush admitted him to the hospital in February 2011 for possible tube feeding.

However, as soon as Simon was admitted, he began to eat and gain weight. Within five days, Simon had gained 2.2 pounds. Based upon this weight gain, Dr. Soroush concluded Simon's condition had deteriorated over the past year because defendant and S.A.M., Sr. had not been properly supervising his nutritional intake. Dr. Soroush testified she discussed the importance of Simon eating three meals and two snacks a day with defendant before she stopped bringing the child for appointments. Dr. Soroush had also given defendant nutritional supplements to give to Simon. Defendant offered no explanation to Dr. Soroush for why the child had lost weight over the past year.

Dr. Soroush was able to have lab work completed while Simon was hospitalized. As a result of the tests, she found that Simon had developed "kidney problems, he does have stones and he has some cysts in this kidney, so that showed some abnormalities . . . ." Dr. Soroush referred Simon to a pediatric nephrologist for "some workup for his kidney status."

Dr. Soroush and Rimer were the only witnesses who testified on behalf of the Division. Neither defendant nor S.A.M., Sr. testified.

Based upon the evidence presented, Judge Troncone found the Division had established by a preponderance of the evidence that defendant abused or neglected Simon by failing to provide him with adequate medical care for over a year. This appeal followed.

II.

On appeal, defendant challenges the judge's finding that she abused or neglected Simon by failing to address his serious medical needs. Our review of the trial judge's factual finding of abuse or neglect is limited; we defer to the court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 413. Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(a) 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 through offered financial or other reasonable means to do so[.]

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. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect. M.C. III, supra, 201 N.J. at 344; see also G.S. v. Dep't of Human Servs., 157 N.J. 161, 175 (1999) ("A parent or guardian can commit child abuse even though the resulting injury is not intended. . . . The intent of the parent or guardian is irrelevant.").

In determining a case of abuse or neglect, the court should base its determination 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). A finding of abuse or neglect must be based on the preponderance of the evidence. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009); N.J.S.A. 9:6-8.46(b).

In G.S., the Court analyzed the "minimum degree of care" language set forth in Title Nine. Supra, 157 N.J. at 177-82. Under this standard, "something more than ordinary negligence is required to hold the actor liable[,]" such as "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Such conduct "implies that a person has acted with reckless disregard for the safety of others." Id. at 179. The Court explained that such a standard is intended to balance a parent's constitutional right to raise his or her own children, with "the State's parens patriae power to protect children from acts that negatively impact on their health and safety." Id. at 179-80.

As the Court explained in G.S., "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. "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 [or her] responsible for the injuries he causes." Id. at 179.

Applying these standards to this matter, we are satisfied there was competent, credible evidence in the record to support the trial judge's finding that defendant abused or neglected Simon by failing to ensure he received the treatment ordered by his gastroenterologist. Defendant was fully aware that Simon had a serious medical condition. He suffered from abnormal liver function, chronic constipation, vitamin and nutritional deficiencies, and growth problems. He needed regular treatment and lab work. Dr. Soroush and her staff continually reminded defendant of the need for treatment and good nutrition for the child. When it became involved, the Division also encouraged defendant to bring Simon to Dr. Soroush for his scheduled visits and to have his lab work completed. The Division also offered to assist with transportation.

In spite of this, defendant steadfastly failed to bring Simon to his appointments and she failed to have his required lab work completed. She did not bring Simon to see Dr. Soroush for over a year. The child's lab work was not completed until after Dr. Soroush ordered him hospitalized.

At that time, it was discovered Simon had developed kidney problems, including stones and cysts, in addition to his abnormal liver issues. He had lost almost seven pounds since he was last seen. Once Simon was hospitalized, he rapidly gained weight, which demonstrated he had not been receiving proper nutrition in the home. Under these circumstances, there is plainly sufficient credible evidence in the record to support Judge Troncone's conclusion that defendant abused or neglected Simon by failing to bring him to his medical appointments.

Contrary to defendant's contention, her actions in this case did not constitute mere negligence. Judge Troncone found that defendant and S.A.M., Sr. were fully aware of Simon's special needs and the high risk of harm if his needs were not addressed. In spite of this knowledge, they continually ignored Simon's needs, failed to provide him with proper nutrition, and failed to permit his gastroenterologist to examine the child and treat his condition for over a year. Therefore, we discern no basis in the record to disturb Judge Troncone's finding that defendant abused or neglected Simon.

Defendant argues the judge erred in overruling her objection to the admission in evidence of certain records regarding the Division's past contacts with defendant and S.A.M., Sr. She argues the Division should have been "collaterally estopped" from introducing the documents.

The doctrine of collateral estoppel is clearly inapplicable in this case. The issue of medical neglect was never adjudicated in any prior litigation between defendant and the Division. Therefore, the Division was plainly not estopped from presenting this evidence in this matter. See Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006)(holding that, for collateral estoppel to apply, the issue must have been "actually litigated" in a prior proceeding between the parties).

Evidentiary rulings are reviewed under an abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010). We perceive no abuse of discretion here. The documents were introduced to provide background information concerning the family. They were obviously relevant because they demonstrated that Simon's parents were fully aware of the importance of ensuring that their children received needed medical and psychiatric care. Therefore, defendant's contention lacks merit.

1 A fictional name is used to protect the privacy of the child and for ease of reference.

2 The Order also memorialized the trial judge's finding that Simon's father, S.A.M., Sr., had also abused or neglected the child by failing to address his medical needs. However, S.A.M., Sr. is not a party to this appeal.

3 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.