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) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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
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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.
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