DCPP VS. F.B., S.D. AND S.B., IN THE MATTER OF N.B. AND J.B. (FN-07-0346-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-3266-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
F.B.,
Defendant-Appellant,
and
S.D. and S.B.,
Defendants.
__________________________
IN THE MATTER OF N.B.
AND J.B., Minors.
__________________________
Submitted March 22, 2021 – Decided April 12, 2021
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-0346-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Victor E. Ramos, Assistant Deputy Public
Defender, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Mary L. Harpster, Deputy Attorney General,
on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors N.B. and J.B. (Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Nancy
Fratz, Assistant Deputy Public Defender, of counsel
and on the brief).
PER CURIAM
Defendant F.B. (the mother) appeals from a December 10, 2019 order
finding that she abused and neglected N.B. (the child). 1 After hearing testimony
from the mother and a Division of Child Protection and Permanency (DCPP)
caseworker, Judge Garry J. Furnari entered the order under review, rendered an
oral opinion, and found by a preponderance of the evidence that the mother
failed to provide for the child upon his discharge from a hospital stay and ensure
1
The mother also included a March 11, 2020 order terminating the litigation in
her Notice of Appeal.
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that the child attended all his therapies, which were meant to assist with his
recovery from a brain aneurysm. We affirm.
The child was born in 2006 and is currently fourteen years old. In January
2019, the child began complaining of a headache and passed out shortly after.
He was rushed to University Hospital in Newark and diagnosed with a brain
aneurysm. The child underwent an eighteen-hour surgery and was placed in a
medically induced coma for three weeks. In February 2019, he was transferred
to Children's Specialized Hospital (CSH) in New Brunswick for rehabilitative
services. While at CSH, the child received physical, occupational, speech,
recreational, and child life therapies. His physical therapy treatment was
"focus[ed] on improving his strength, balance, coordination, and functional
mobility skills[.]" The child exhibited weakness in his right upper extremities
as well as balance and coordination issues, but displayed notable improvements
after continued therapy sessions. Speech therapy improved his expressive
language skills and vocal quality, but he still experienced issues with his
memory and "continued to benefit from cues to recognize unsafe events [and]
recognize and solve problems."
CSH staff educated the mother on safety awareness and trained her to
assist the child with walking, climbing stairs, and transferring in and out of a
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wheelchair. The mother acknowledged that she understood the assistance the
child required and did not ask questions. CSH also explained to the mother that
the child would need ongoing therapy and in-home school instruction. CSH
scheduled the child's post-discharge appointments, informed the mother of the
appointments, and explained that she would need to follow up with the child's
school to set up in-home instruction. On March 20, 2019, CSH released the
child to the mother's custody.
Over the following weeks, the mother failed to bring the child to several
of the scheduled therapy appointments. The mother failed to bring the child to
his first six neuropsychologist appointments, brought him to one appointment in
May 2019, and then again failed to attend until June 2019. 2 She also failed to
bring the child to a scheduled physical therapy evaluation, which was
rescheduled five times, before eventually bringing the child to be evaluated.
This delayed the child's physical therapy sessions until June 2019, which the
mother did not attend. The mother also did not bring the child to his
occupational therapy appointments between April and May 2019, even after
rescheduling from morning to afternoon appointments as well as scheduling
2
The child's neuropsychologist explained that the delay in beginning the child's
therapies diminished the likelihood that he would recover full use of the right
side of his body.
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Saturday appointments at the mother's request. The child's appointments were
eventually moved to a location closer to the mother's home, but she continued
to fail to bring the child to the appointments, resulting in the facili ty refusing to
schedule more appointments.
The child was scheduled for and attended an MRI with a neurosurgeon,
but it could not be conducted because the mother disregarded the neurosurgeon's
instructions that the child not eat prior to the MRI. The neurosurgeon
rescheduled and later completed the MRI. The neurosurgeon also scheduled an
angiogram to check the child's brain for "any [arteriovenous malformations] that
needed to be taken out[] to prevent another brain rupture," and the neurosurgeon
explained to DCPP that "an additional rupture could be fatal, which is why it
was important to see if there are any other blood vessels that can burst inside of
[the child]'s head." The mother failed to bring the child to the hospital to
complete required pre-operative blood work. As a result, the angiogram needed
to be rescheduled. 3
The mother explained to the DCPP caseworker that she did not take the
child to the neuropsychologist or the physical therapist "because [she's] not
3
After DCPP obtained care and supervision of the child in June, the child
attended his rescheduled angiogram in July.
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smiling in these people[s] face[s] after they called [DCPP] on [her]." She told
the caseworker that "she was unaware of all of the appointments, and some of
the appointments were overlapping," and that CSH "never bothered to ask her if
those appointment dates worked for her or not." The mother also expressed
skepticism as to whether the child needed the therapies, asking the caseworker
"what if I feel that he doesn't need all of these services?" and "so if they say he
needs all of this therapy, I have to take him?"
On June 28, 2019, DCPP obtained care and supervision of the child and
his sibling. On August 12, 2019, DCPP completed its investigation and
determined that it was "substantiated" that the mother was medically negligent.
N.J.A.C. 3A:10-7.3(c)(1). DCPP also concluded that it was "not established"
that the mother was educationally negligent. N.J.A.C. 3A:10-7.3(c)(3) The
mother was required to undergo a psychological evaluation, wherein the
psychologist determined that "[a]t this point, it does not appear that [the mother]
is consistently capable of being left to her own judgment and independent
resources—without assistance—to ensure that [the child] receives the services
he requires" and that her conduct "created circumstances that could have led to
serious and enduring harm to [the child]."
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On December 10, 2019, Judge Furnari conducted a factfinding and
compliance hearing, where he heard testimony from the mother and the DCPP
caseworker. The judge summarized his findings, which supported his
conclusion that the mother abused and neglected the child:
In January 2019, [the child] suffered a brain aneurism
resulting in his hospitalization for several months.
Upon discharge, he was scheduled for follow-up
services, including speech therapy, occupational
therapy, an[d] physical therapy, as well as a surgical
intervention to detect any additional problems in his
brain. [The mother] failed to ensure that [the child]
attended the appointments and surgery. [The mother]
also failed to ensure that [the child] received in-home
schooling, because she did not obtain the necessary
prescription from [the child's] pediatrician. [The
child's] medical providers indicated that the failure to
receive timely follow-up treatment put [the child] at
risk that his functions might not return fully, and the
failure to have the surgery put him at risk of death
should another brain aneurism arise.
On appeal, the mother raises the following points for this court's
consideration:
POINT I
THE CIRCUMSTANCES ATTENDANT TO [THE
MOTHER'S] INABILITY TO CONSISTENTLY
BRING [THE CHILD] TO MEDICAL SERVICES
FOLLOWING HIS HOSPITAL DISCHARGE AND
PRECEDING DCPP'S INVOLVEMENT WITH THE
FAMILY DID NOT RISE TO THE REQUISITE
LEVEL OF GROSS NEGLIGENCE OR
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RECKLESSNESS NOR WAS [THE CHILD] AT A[N]
IMMINENT DANGER OF BECOMING IMPAIRED
AS REQUIRED TO UPHOLD MEDICAL NEGLECT
PURSUANT TO N.J.S.A. 9:6-8.21(c)(4)(a)[.]
A. The Delay and Inconsistency in Getting [The
Child] To Medical Services Did Not Rise to The
Degree of Gross Negligence Given CSH's Failure
to Coordinate and Better Communicate the Post
Discharge Services to [the Mother], [the
Mother's] Limited Means, Lack of
Transportation, Lack of Parental Support and
Delays with CSH's Medical Transportation
Services.
B. The Circumstances of This Case Did Not Fall
Within the Required Imminence Needed to
Satisfy that Element of Medical Neglect Under
N.J.S.A. 9:6-8.21(c)(4)(a); Nor in the Absence of
Evidence to the Contrary Should the Imminence
of Impairment Be Presumed.
Our review of a family judge's factual findings is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1988). The general rule is that findings by the family
judge are binding on appeal when supported by adequate, substantial, credible
evidence. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). This is
because the judge "ha[d] the opportunity to make first-hand credibility
judgments about the witnesses who appear on the stand; [the judge] has 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. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of
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Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). This court will not
disturb the family judge's findings of fact unless they are "so wide of the mark
that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v.
G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.T., 269 N.J. Super.
172, 188-89 (App. Div. 1993)).
"Title 9's purpose is clear: to protect children 'who have had serious injury
inflicted upon them' and make sure they are 'immediately safeguarded from
further injury and possible death.'" N.J. Dept. of Children and Families v. A.L.,
213 N.J. 1, 18 (2013) (quoting N.J.S.A. 9:6-8.8(a)). An "abused or neglected
child," as defined by N.J.S.A. 9:6-8.21(c)(4), is a child who is less than eighteen
years of age and
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 . . . or by any other acts
of a similarly serious nature requiring the aid of the
court[.]
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"Whether a parent or guardian has failed to exercise a minimum degree of care'
in protecting a child is determined on a case-by-case basis and analyzed in light
of the dangers and risks associated with the situation." N.J. Div. of Child
Protection and Permanency v. E.D.-O, 223 N.J. 166, 178 (2015) (quoting G.S.
v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999)). The phrase "'minimum
degree of care' refers to conduct that is grossly or wantonly negligent, but not
necessarily intentional." G.S., 157 N.J. at 178. "[A] guardian [or 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 that child." Id. at 181.
A parent's inaction or unintentional conduct may amount to a finding of
abuse or neglect if there is evidence that the child was injured as a result. Id. at
175-77. A judge "need not wait to act until a child is actually irreparably
impaired by parental inattention or neglect." E.D.-O, 223 N.J. at 178 (quoting
In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). "[I]n child abuse and
neglect cases the elements of proof are synergistically related. Each proven act
of neglect has some effect on the [child]. One act may be 'substantial' or the
sum of many acts may be 'substantial.'" N.J. Div. of Youth and Family Servs.
v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010) (second alteration in
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original) (quoting N.J. Div. of Youth & Family Servs. v. C.M., 181 N.J. Super.
190, 201 (App. Div. 1981)).
After hearing testimony from the DCPP caseworker and the mother, the
judge explained that he found the caseworker "quite credible," and "did not find
[the mother] to be completely incredible." Specifically, the judge did not find
the mother credible when she asserted that "[t]he doctors really didn't tell [her]
how important it was to do all of these services immediately . . . when [the] child
still has deficits and [the mother has] been caring for him," and found it "more
likely that the hospital did tell [her] and that [she was] aware." The judge noted
that the circumstances surrounding the child's care "really wasn't fitting into
what [the mother] thinks ought to happen and the convenience for herself," and
that "during that period of time [the mother] was making very poor decisions
about the care of [the] child. And [the mother] failed to provide for the care of
[the] child as . . . would be expected."
While the judge noted that "some of" the mother's conduct may not be
negligent, "the magnitude of the things that she did before [DCPP's] intervention
and immediately after . . . essentially underscores that the things that she did
before were more than just negligent." The judge explained that a child "can be
neglected where the mother or the father failed to exercise the minimum degree
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of care although they are aware of the imminent danger" and that "during this
period of time [the] mother failed pretty miserably to meet her obligations to
make sure that the child was protected." The trial judge's determination was not
"so wide of the mark" that it was "clearly mistaken." G.L., 191 N.J. at 605
(citing J.T., 269 N.J. Super. at 188-89).
Affirmed.
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