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 )


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  •                              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    NOT FOR PUBLICATION WITHOUT THE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