DCPP VS. M.D. AND H.E., IN THE MATTER OF D.E. (FN-07-0457-17, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 18, 2020
• Docket: A-0274-19T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0274-19T1

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.D.,

Defendant-Appellant,

and

H.E.,

Defendant. _________________________

IN THE MATTER OF D.E., a minor. _________________________

Submitted September 29, 2020 – Decided November 18, 2020

Before Judges Messano and Suter. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-0457-17.

Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel; Caitlin A. McLaughlin, Designated Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Carlos J. Martinez, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

PER CURIAM

M.D. (defendant) appeals from an order of the Family Part finding that

she abused and neglected her minor son D.E. (Devin) 1 by not administering him

prescribed medications and by not providing him with educational instruction.

We affirm.

I.

Defendant and H.E. (Harold) are the parents of Devin, who was born in

2007. Devin resided with defendant.

1 We use initials and pseudonyms to maintain the confidentiality of the parties and their child. R. 1:38-3(d)(12). A-0274-19T1 2 In April 2017, the Division of Child Protection and Permanency (the

Division) filed a verified complaint and order to show cause seeking the care

and supervision of Devin based on allegations he was medically and

educationally neglected, and that defendant was mentally ill. On the return date

in May 2017, the trial court transferred Devin's custody to Harold. The Division

amended the complaint to add a request for custody. In the interim, the Division

substantiated defendant for educational and medical neglect and mental illness.

A fact-finding hearing was conducted based on the allegations in the

amended abuse and neglect complaint. We glean the facts from that hearing.

When Devin was in first grade, defendant disagreed with the school's

decision to classify him as emotionally disturbed. She rescinded the

classification, following what she claimed was harassment of Devin by the

school. Devin was placed in a regular classroom, but within just a few days he

had a "melt down," resulting in his suspension from school. The Division

became involved based on a referral that Devin had not returned to school. In

April 2014, the Division closed its investigation as unfounded because Devin

was being home-schooled by defendant.

In March 2017, the Division received a referral about Devin by medical

personnel. The referral alleged Devin had not attended school for two years and

A-0274-19T1 3 he was not being homeschooled. The referent alleged that the child's mother

reported Devin was "very sick" but that her conversation was "rambling."

Defendant was supposed to take Devin to a psychiatrist —as his pediatrician

advised— but defendant had not done so. The referent expressed concern that

Devin's medical needs were not being met by defendant.

The Division investigated the referral. The investigator learned from her

interview with Devin that he was not taking any medications. He told her he

was home-schooling everyday with his mother.

When the investigator spoke with defendant, she said that after Devin was

declassified, he was not treated well at school, and she began home-schooling

him. Although she originally conducted four hours of home school instruction

per day, she reduced that to two hours per day because her "work schedule

conflicted in the time she has allotted . . . and . . . because the home environment

was so hectic that she just . . . couldn't keep up . . . ." She acknowledged that

"recently" she stopped home-schooling all together because of Devin's health

issues. The investigator testified that defendant acknowledged Devin was not

performing at grade level and had fallen behind.

Harold told the investigator that initially defendant was doing well at

home-schooling, but that for the past year, Devin was not doing much work. He

A-0274-19T1 4 suggested to defendant that Devin could attend a school near him, but she would

not agree to this.

The investigator asked defendant about the allegations that Devin's

medical needs were not being met. Defendant told the investigator that in

February 2017, Devin complained about coughing, throat pain and fever. She

took him to the pediatrician who prescribed Amoxicillin, an antibiotic.

Defendant discontinued administration of that medicine, claiming it was out of

date.

Defendant advised the investigator that Devin remained ill. Defendant

took Devin to the emergency room, twice, but the doctors there could not

determine what was wrong with Devin. Devin "ended-up" with the flu—

according to defendant—but she would not administer the Tamiflu that was

prescribed for him, because she could not afford the liquid form of the

medication and Devin would not take the pills. Defendant gave him Motrin.

She refused the recommended flu shot for him because he still had fevers.

Defendant took Devin to another doctor, who prescribed a "Z-pack" and

Orapred, but she claimed Devin developed a fever of 105 degrees and stopped

breathing. He was taken to the hospital. She was advised to have Devin finish

the prescribed medication because not continuing the medication was worse for

A-0274-19T1 5 the child, but she did not do so. She took Devin to an ear, nose and throat

specialist, but Devin would not submit to an endoscopy.

Defendant told the investigator that Devin was still suffering from fevers

when the interview occurred on April 7, 2017. Defendant also explained to the

investigator that she would not take Devin for a consultation with a psychologist

because the pediatrician who made the referral did not explain "thoroughly

enough" why it was needed. 2

The trial court found that defendant abused and neglected Devin by not

providing him with an education. This finding was based on defendant's

statements to the investigator that Devin had fallen behind educationally and

was not at grade level. Defendant admitted to the investigator that she had

reduced the number of hours of instruction and then stopped all together because

of Devin's medical problems. The trial court found the investigator's testimony

was credible.

2 In May 2017, Dr. Leah Schild conducted a psychological evaluation of Devin to "assess for symptoms related to trauma, regarding concerns of . . . educational neglect, and medical neglect" and to make recommendations for services. Although Dr. Schild testified at the hearing, the trial court concluded not to consider her testimony, but without an explanation. We have not related her findings or recommendations because they were not part of the trial court's reasoning. A-0274-19T1 6 The trial court also found that defendant abused and neglected Devin by

not providing him with adequate medical care. Defendant failed to follow

through on the medical recommendations made by the doctors from February

through April 2017. Based on what defendant told the investigator, the court

found that Devin "was sick, was still experiencing symptoms from at least

February 13 to April 7. That is two months of unnecessary sickness." The court

found that defendant's "actions created an imminent danger or a substantial risk

of harm to" Devin and constituted abuse and neglect under N.J.S.A. 9:6–

8.21(c)(4). The court did not find the Division met its burden of proving abuse

and neglect based on defendant's mental health because "there was no evidence

of a diagnosis of a mental illness . . . ."

On August 6, 2019, the abuse and neglect litigation was terminated after

sole legal and physical custody of Devin was transferred to his maternal

grandmother based on defendant's non-compliance with the Division's services.

The trial court's order continued defendant's supervised visitation with Devin.

On appeal defendant raised this issue:

Point I

THE TRIAL COURT'S FINDING OF ABUSE AND NEGLECT AGAINST [DEFENDANT] IS NOT SUPPORTED BY A PREPONDERENCE OF THE EVIDENCE AND SHOULD BE REVERSED AND

A-0274-19T1 7 THE REQUIREMENT IN THE FINAL ORDER REQUIRING THAT [DEFENDANT] BE SUPERVISED WITH HER SON SHOULD BE VACATED.

A. The Trial Court Improperly Concluded that [Defendant] had Educationally Neglected Her Son When Home-Schooling Him.

B. The Trial Court Improperly Determined that [Defendant] had Medically Neglected Her Son.

II.

We defer to Family Part judges' fact-finding because of their "special

jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394,

413 (1998). They also have "the opportunity to make first-hand credibility

judgments about the witnesses who appear on the stand; [and have] a feel of the

case that can never be realized by a review of the cold record." N.J. Div. of

Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J.

Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Fact-finding

that is supported by sufficient, substantial and credible evidence in the record is

upheld. See N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226

(2010). The court's interpretation of the law or its legal conclusions are

reviewed de novo. See State ex rel. A.B., 219 N.J. 542, 554-55 (2014).

A-0274-19T1 8 The relevant portion of Title Nine, N.J.S.A. 9:6–8.21(c)(4), defines an

"[a]bused or neglected child" to include a child under the age of eighteen,

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 (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, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . .

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

Each case of alleged abuse "requires careful, individual scrutiny" and is

"generally fact sensitive." N.J. Div. of Youth & Family Servs. v. P.W.R., 205

N.J. 17, 33 (2011). The "main focus" of Title Nine "is not the 'culpability of

parental conduct' but rather 'the protection of children.'" Dep't of Children &

Families, Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 178 (2015)

(quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999)).

The phrase "minimum degree of care" under the statute "refers to conduct

that is grossly or wantonly negligent, but not necessarily intentional." G.S., 157

N.J. at 178. "[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

A-0274-19T1 9 supervise the child or recklessly creates a risk of serious injury to that child."

Id. at 181. A finding of gross negligence depends 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), and "is determined on a case-by-case basis." N.J. Div. of

Child Prot. & Permanency v. K.N.S., 441 N.J. Super. 392, 398 (App. Div. 2015).

It is well established that parents have a duty "to ensure their children

attend public school or receive equivalent instruction to that provided in the

public schools." N.J. Div. of Child Prot. & Permanency v. S.D., 453 N.J. Super.

511, 519 (App. Div. 2018). This is required by law. See N.J.S.A. 18A:38-25

(providing that "[e]very parent, . . . having custody and control of a child

between the ages of six and [sixteen] years shall cause such child regularly to

attend the public schools . . . or to receive equivalent instruction elsewhere than

at school"). The failure to do so may be deemed grossly negligent and constitute

educational neglect under Title Nine. S.D., 453 N.J. Super. at 519 (citing N.J.

Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 285-86 (App. Div.

2008)).

A burden-shifting framework applies. Under State v. Vaughn, the State

must first allege a violation of N.J.S.A. 18A:38-25, which then shifts the burden

of production to the defendant to provide evidence "that a child attends a day

A-0274-19T1 10 school in which the equivalent instruction is given, or that the child is receiving

equivalent instruction elsewhere than at school." 44 N.J. 142, 147 (1965).

Where that burden is met, the "burden of persuasion remains with the State

. . . ." Ibid.

Here, defendant home-schooled Devin between 2014 and the Division's

investigation in April 2017. Defendant acknowledged reducing his instruction

from four hours a day to two and then to none. She acknowledged he had fallen

behind educationally. This satisfied the Division's burden that there was a

violation of N.J.S.A. 18A:38-25.

Under Vaughn, the burden of production shifted to defendant. Although

Devin said defendant taught him math and reading "every day," this was not

consistent with defendant's statements to the investigator. Defendant also did

not show what she had done to provide an education for Devin. She never

provided any curriculum or other evidence of her home-schooling plan. She

never showed how she evaluated Devin's progress against standards for children

his age and abilities. She did not allege he had a learning disability that might

have affect his education, which she acknowledged to the Division was lacking.

Harold told the investigator that defendant gave Devin less work over the

previous year. We are satisfied there was substantial credible evidence of

A-0274-19T1 11 educational abuse and neglect under N.J.S.A. 9:8-21 because defendant failed

to exercise the minimum degree of care for Devin by not supplying him with

"equivalent [educational] instruction."

Defendant argues the trial court erred by determining she medically

neglected Devin. She alleges the Division did not show that Devin had a serious

medical condition that could have led to long-term harm if left untreated.

An abused or neglected child includes one whose physical condition "has

been impaired or is in imminent danger of becoming impaired" by a parent who

does not provide adequate medical care. N.J.S.A. 9:6-8.21(c)(4)(a). There is

no requirement for the courts to wait for a child to be irreparably harmed by

parental neglect to take protective action. In re Guardianship of D.M.H., 161

N.J. 365, 383 (1999). "[A] finding of abuse and neglect can be based on proof

of imminent danger and a substantial risk of harm." E.D.-O., 223 N.J. at 178

(2015) (quoting N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23

(2013)). "In many [abuse or neglect] cases, an adequate presentation of actual

harm or imminent danger can be made without the use of experts." A.L., 213

N.J. at 29.

The trial court found defendant's "actions created an imminent danger or

a substantial risk of harm to" Devin. We agree. There was substantial, credible

A-0274-19T1 12 evidence of this in the record. Defendant repeatedly ignored medical advice, by

seeking treatment and then discontinuing prescribed medications on many

occasions. Defendant knew the child was ill. His temperature soared to 105

degrees and, according to defendant he stopped breathing at one point. She told

the Division's investigator that she was warned not to discontinue medication

and yet she did. We agree these actions—occurring within the short span of two

months—supported the finding that defendant created a substantial risk of harm

to Devin.

This case is not like P.W.R., cited by defendant, where the trial court's

finding of medical neglect was reversed. 205 N.J. at 21-22. In PWR, there was

no proof of a physical condition where care should have been sought. In this

case, defendant acknowledged Devin was ill. Given the substantial risk of harm

to Devin, we are satisfied the finding of medical neglect under N.J.S.A. 9:8-21

was adequately supported.

Defendant argues in her reply brief that the trial court's order restricting

her to supervised visitation with Devin should be vacated. The order terminating

this litigation transferred Devin's custody to his maternal grandmother.

Defendant resides in the same residence. In her initial brief, defendant asked

that the order requiring supervised visitation be vacated, but never ad dressed

A-0274-19T1 13 that issue in her brief. Where an issue is not addressed on the merits, we consider

it to be waived. Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); Drinker Biddle

v. N.J. Dep't of Law & Pub. Safety, Div. of Law, 421 N.J. Super. 489, 496 n.5

(App. Div. 2011) (noting that claims not addressed in merits brief are deemed

abandoned). See Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R.

2:6-2 (2020). Furthermore, defendant's reply brief does not even address her

non-compliance with the Division's services, or the conditions set forth in the

termination order that defendant must satisfy in order to be considered for

unsupervised contact with Devin.

Affirmed.

A-0274-19T1 14