DCPP VS. J.B. AND L.B.IN THE MATTER OF D.B., T.B. AND N.B.(FN-02-0093-12, BERGEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 22, 2017
• Docket: A-2527-14T3/A-2528-14T3
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2527-14T3 A-2528-14T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.B. and L.B.,

Defendants-Appellants. _______________________________

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

Minors. ________________________________

Argued November 10, 2016 – Decided September 22, 2017

Before Judges Simonelli, Carroll and Gooden Brown.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0093-12.

Deric Wu, Assistant Deputy Public Defender, argued the cause for appellant J.B. (Joseph E. Krakora, Public Defender, attorney; John A. Salois, on the briefs). Clara S. Licata, Designated Counsel, argued the cause for appellant L.B. (Joseph E. Krakora, Public Defender, attorney; Ms. Licata, on the briefs).

Natasha C. Fitzsimmons, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jessica E. Goldstein, on the brief).

Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minor D.B. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Crisp, on the brief).

PER CURIAM

In these Title 9 matters,1 defendants J.B. (James),2 and L.B.

(Laura), appeal from the May 8, 2012 Family Part order, which

found they medically neglected their son, D.B. (David), within the

meaning of N.J.S.A. 9:6-8.21(c)(4)(b) by refusing to consent to

inpatient psychiatric treatment after a purported suicide attempt.

Defendants also appeal from the December 11, 2014 order terminating

the litigation. For the following reasons, we affirm.

David was born in 1994. He was diagnosed with diabetes at

age fourteen, is insulin-dependent, and has a history of anxiety

1 We consolidate these appeals for the purpose of this opinion only. 2 Pursuant to Rule 1:38-3, we use fictitious names for the parties to protect their identities. We also use initials to identify the witnesses who testified at the factfinding hearing.

2 A-2527-14T3 and depression for which he received psychiatric treatment and was

prescribed psychotropic medication. With defendants' knowledge,

David dropped out of school at age sixteen and in May 2011, he

stopped seeing his psychiatrist and taking his psychotropic

medication.

In August 2011, the family was on vacation when David's

girlfriend of two years called him and ended their relationship.

David called his girlfriend when he returned home, but she refused

to reconsider. David then went to her home and told her he was

going to kill himself by injecting insulin without eating. He

then ran from the home and claimed to have injected ten units of

insulin.

David's girlfriend called Laura and told her what happened.

Laura called David's pediatrician, who advised her to take him to

the hospital to have his blood sugar checked to see if he had

injected insulin. At the hospital, David told an emergency room

doctor, Dr. L., that he had an argument with his girlfriend two

days prior, was sad ever since, and injected ten units of insulin

without eating. Laura told Dr. L. that David had been crying "a

lot" during this time. David did not respond when Dr. L. asked

if he was trying to kill himself. Although David's blood tests

showed his sugar level was normal, Dr. L. noted: "Although it is

unclear as to whether or not [David] had discrete suicidal

3 A-2527-14T3 planning, the insulin administration was an impulsive move at the

very least. Fortunately, [David's] sugar is normal at this time."

A crisis clinician, M.F., evaluated David in the emergency

room. David told M.F. that his girlfriend ended their relationship

and he was severely depressed, feeling very tired, and had not

eaten over the past weekend. David also told M.F. he had injected

insulin without eating to kill himself. M.F. concluded that David

was a danger to himself, was not safe, and needed further

evaluation. M.F. recommended to defendants that David be

immediately admitted for inpatient psychiatric treatment.

Defendants refused to consent to inpatient treatment, opting

instead to take David to his psychiatrist and pediatrician the

next day. M.F. determined this was not an appropriate level of

care because David had not seen his psychiatrist for some time,

and defendants did not understand the magnitude of his actions.

A psychiatrist, Dr. D., evaluated David in the emergency

room. David told Dr. D. that he was experiencing passive suicidal

thoughts for some time, had injected insulin, wanted to kill

himself, and did not care if he lived or died. David also said

he had been depressed for some time, had been crying "a lot," had

not attended school, and the break up with his girlfriend was the

reason for his suicide attempt.

4 A-2527-14T3 Dr. D. diagnosed David with depressive disorder, not

otherwise specified, and recommended inpatient psychiatric

hospitalization for observation and stabilization. Dr. D. opined

within a reasonable degree of medical certainty that David's

judgment was impaired, and because he had acted in a dangerous

manner, he needed to be in a safe place for at least a brief period

of time and would be at risk of recurrence if he left the hospital

and was exposed to any stressors. Dr. D. emphasized he would have

recommended inpatient treatment even if David had not injected

insulin because David had expressed suicidal ideations. The doctor

acknowledged that David's blood sugar level was within normal

limits, but could not opine this was evidence that David did not

inject insulin.

Defendants initially consented to David's admission to

inpatient treatment at Summit Oaks, but later changed their minds.

A second psychiatrist, Dr. N., was then called to conduct a second

evaluation. David told Dr. N. that he had injected insulin

without eating. David initially did not respond when asked if

this was a suicide attempt, but later denied he attempted suicide

or had any suicidal ideations or plans. David admitted he was

depressed and would benefit from some inpatient care, but said he

wanted to go home. Dr. N. agreed with Dr. D.'s diagnosis of

depressive disorder, not otherwise specified. Dr. N. opined within

5 A-2527-14T3 a reasonable degree of medical certainty that David's insight and

judgment were questionable, situational stressors prompted David

to inject insulin, David required inpatient treatment for

stabilization, and inpatient treatment would provide David with

safety and prevent a recurrence. Dr. N. explained to defendants

the danger of recurrence.

Dr. N. acknowledged that David's blood sugar level was fairly

normal, but could not opine this was evidence that David did not

inject insulin. However, Dr. N. opined that an attempted suicide

"is always considered dangerous behavior and that's why you

recommend inpatient care," and that even if David had not injected

insulin, "this was a cry for help."

Defendants refused to consent to inpatient treatment. Laura

did not believe David had injected insulin, and James did not

believe David made a suicide attempt. James also saw no need for

David to be admitted to a psychiatric facility or to have been

receiving any psychiatric treatment between May 2011 and August

2011.

The situation at the hospital escalated and hospital staff

called the Ridgewood Police and the Division of Child Protection

and Permanency (Division). The responding Division caseworker,

H.C., testified that defendants were yelling at hospital staff,

including M.F., and kept insisting they wanted to remove David

6 A-2527-14T3 from the hospital. The Division effected a Dodd removal,3 assumed

temporary care, custody, and supervision of David, and admitted

him to Summit Oaks for inpatient psychiatric treatment.

In a comprehensive May 8, 2012 oral opinion, the trial judge

held that defendants' refusal to consent to inpatient treatment

constituted medical neglect that placed David at risk of harm.

The judge found as follows:

[E]ven with the best of intentions, [defendants] were willful and wanton in their decision making. Teenage suicide is a serious issue. [Defendants'] decisions . . . were wrong headed, constituted willful and wanton negligence, and subjected their child to risk of harm.

. . . .

[David's] psychiatric status on that evening in the hospital did not seem to overly concern [defendants]. [The hospital's] psychiatrists were focused on the suicidal ideation. They concluded that based upon [David's diabetes], his history of depression, the fact that he had been treated by a psychiatrist, but had stopped going, the fact that he had been on [psychotropic] medication, but had taken himself off the medication, the fact that he was not in school, not working, and had clearly expressed to [emergency room] doctors that he had injected himself with insulin to harm himself, and [did not] care whether he lived or died, and that three psychiatrists, two from [the hospital] and one from Summit Oaks, opined that [David] was in need of inpatient [treatment] to stabilize his

3 A "Dodd" removal refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82, as amended. 7 A-2527-14T3 mental state, that he was clearly impaired, and that release would have risked a recurrence of the behavior. This child, after all, did have access to insulin.

The fact that [David] may or may not have actually taken the insulin is of no moment to this [c]ourt. When a child threatens suicide, with a history and the situation stressors such as the ones placed upon [David] in this case, this was, as I've already indicated, a cry for help. Inpatient was the only decision at that time and place according to the evaluating psychiatrists.

Calling a psychiatrist the next day from home was not the proper course of treatment, especially when [defendants] and [David] had not been following through with psychiatric treatment and medication monitoring. And even if they had, it might not have been the proper course of treatment.

[Defendants'] refusal to consent to [David] being placed inpatient placed [David] at risk of harm. The harm, as articulated by the psychiatrists testifying in this case, was the risk that [David] would . . . hurt himself, and that . . . the behavior would recur. Either the threat of suicide or attempted suicide.

This appeal followed.

Our Supreme Court has set forth the standard that governs

Title 9 cases as follows:

[A]ppellate courts defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold 8 A-2527-14T3 record . . . . [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, 342-43 (2010) (citations omitted).]

Thus, "if there is substantial credible evidence in the record to

support the trial court's findings, we will not disturb those

findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J.

210, 226 (2010). However, "if the trial court's conclusions are

clearly mistaken or wide of the mark [we] must intervene to ensure

the fairness of the proceeding." Id. at 227 (quoting N.J. Div.

of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We

owe no deference to the trial court's legal conclusions, which we

review de novo. Manalapan Realty v. Manalapan Twp. Comm., 140

N.J. 366, 378 (1995).

"To prevail in a Title [Nine] proceeding, the Division must

show by a preponderance of the competent and material evidence

that the defendant abused or neglected the affected child." N.J.

Div. of Child Protection & Permanency v. B.O., 438 N.J. Super.

373, 380 (App. Div. 2014). "The Division need only show that it

was more likely than not that the defendant abused or neglected

the child." Ibid.

An "abused or neglected child" means, in pertinent part, a

child under the age of eighteen years 9 A-2527-14T3 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 . . . 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)(b).]

Interpreting N.J.S.A. 9:6-8.21(c)(4)(b), our Supreme Court has

held that mere negligence does not trigger the statute. N.J. Div.

of Youth & Family Servs. v. T.B., 207 N.J. 294, 306-07 (2011);

G.S. v. Dep't of Human Servs., 157 N.J. 161, 172-73 (1999).

Rather, the failure to exercise a minimum degree of care refers

"to conduct that is grossly or wantonly negligent, but not

necessarily intentional." T.B., supra, 207 N.J. at 305 (quoting

G.S., supra, 157 N.J. at 178). The failure to exercise a minimum

degree of care "at least requires grossly negligent or reckless

conduct." Id. at 306.

Although the distinction from ordinary negligence cannot be

precisely defined, 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." G.S., supra, 157 N.J. at 179. Further, willful

or wanton conduct is that which is "done with the knowledge that 10 A-2527-14T3 injury is likely to, or probably will, result[,]" and "can apply

to situations ranging from 'slight inadvertence to malicious

purpose to inflict injury.'" Id. at 178 (quoting McLaughlin,

supra, 56 N.J. at 305). However, if the act or omission is

intentionally done, "whether the actor actually recognizes the

highly dangerous character of her conduct is irrelevant," and

"[k]nowledge will be imputed to the actor." Ibid. Such knowledge

is imputed "[w]here an ordinary reasonable person would understand

that a situation poses dangerous risks and acts without regard for

the potentially serious consequences." Id. at 179.

A determination of whether a parent's or guardian's conduct

"is to be classified as merely negligent, grossly negligent, or

reckless can be a difficult one." T.B., supra, 207 N.J. at 309.

"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., supra, 157 N.J. at 181-82.

"When 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." Id. at 182. The mere lack of actual harm to

the child is irrelevant, as "[c]ourts need not wait to act until

a child is actually irreparably impaired by parental inattention

or neglect." In re Guardianship of DMH, 161 N.J. 365, 383 (1999).

11 A-2527-14T3 "[T]he standard is not whether some potential for harm

exists." N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J.

Super. 159, 168 (App. Div. 2009). "A parent 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 the child."

Ibid. (quoting G.S., supra, 157 N.J. at 181).

We are satisfied from our review of the record that the

judge's findings are well-supported by substantial, competent, and

credible evidence. This includes the uncontroverted testimony of

two expert psychiatrists and a crisis clinician. The record

supports the conclusion that David required immediate inpatient

psychiatric treatment; hospital physicians recommended to

defendants such a course of treatment; and defendants knew or

should have known that such a course of treatment was medically

necessary for David, but they deliberately refused to follow that

course.

David was clearly in crisis when he came to the emergency

room. Whether or not he actually injected insulin or attempted

suicide, he had expressed suicidal ideations, was severely

depressed, was not receiving psychiatric treatment or taking his

prescribed psychotropic medication, and did not care if he lived

or died. He was a danger to himself and needed immediate inpatient

12 A-2527-14T3 treatment for stabilization. Defendants were aware of, and

ignored, the potentially serious consequences and refused to

consent to inpatient treatment that would prevent David from

harming himself or having his mental or emotional condition

impaired. We are satisfied that defendants medically neglected

David within the meaning of N.J.S.A. 9:6-8.21(a)(4)(b) by refusing

to consent to inpatient treatment.

Affirmed.

13 A-2527-14T3