On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FN-07-572-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, R. B. Coleman and Sabatino.
Defendants V.M. and B.G. appeal from the judgment of the Family Part which found that they abused and neglected their child, J.M.G. As a result of these findings, J.M.G. was placed in the custody and care of plaintiff Division of Youth and Family Services (DYFS). At a permanency hearing the judge approved DYFS's plan for termination of parental rights.
We have carefully reviewed this record in light of defendants' contention that the judge erred in finding abuse and neglect. We agree that the judge's findings as to V.M. were supported by the evidence adduced at the hearing, but as conceded by the Deputy Attorney General representing DYFS at oral argument before us, we disagree as to his findings as they relate to B.G. We further agree with the ultimate conclusion reached by our concurring colleague affirming the judgment as to V.M. and reversing as to B.G. In so doing, we adopt the facts as set forth in the concurring opinion, and we generally ascribe to the law, which he so thoroughly enunciates in that opinion. Where we part company is his discussion of whether V.M.'s refusal to consent to a cesarean section (c-section) can, as a matter of law, be considered an element of abuse and neglect. On the record before us, we do not agree that the issue need be decided.
While we acknowledge that the judge, in fact, did rely, in part, on such refusal in his findings of abuse and neglect, we are of the view that there was substantial additional evidence of abuse and neglect that supported the ultimate findings. Our view is consistent with DYFS' acknowledgement at oral argument that the judge need not have considered V.M.'s refusal on the merits of the issue of abuse or neglect. DYFS did assert, as well, that the judge could consider V.M.'s refusal and her later claim that she did not refuse, as these statements relate to her credibility.
As we have stated, the independent evidence presented, irrespective of the evidence concerning V.M.'s resistance to the c-section, amply supported the judge's ultimate finding as to V.M., and we affirm as to her. As to B.G., we reverse for the reasons set forth in the concurring opinion.
Affirmed as to defendant V.M.; reversed as to defendant B.G.
CARCHMAN, P.J.A.D. (concurring)
Defendants V.M. and B.G. are the biological parents of J.M.G., born on April 16, 2006. During her hospitalization in anticipation of J.M.G.'s delivery, V.M. demonstrated combative and erratic behavior including a refusal to consent to a cesarean section (c-section)*fn1 . Despite the medical opinion that the fetus demonstrated signs of distress and that the procedure was necessary to avoid imminent danger to the fetus, the child was born by vaginal delivery without incident.
After the birth of the child, plaintiff Division of Youth and Family Services (DYFS) investigated. It learned of V.M.'s refusal to consent to the c-section and discovered that V.M. had been under psychiatric care for twelve years prior to J.M.G.'s birth. Moreover, V.M. was not forthcoming about her treatment or diagnosis. B.G. also refused to cooperate with DYFS's efforts to obtain information.
DYFS commenced a Title 9 proceeding pursuant to the Abandonment, Abuse, Cruelty and Neglect Act (the Act), N.J.S.A. 9:6-8.21 to -8.106, and placed J.M.G. in its custody. At the fact-finding hearing, the trial judge found that J.M.G. was an abused and neglected child due in part to her parents' failure to cooperate with medical personnel at the time of her birth.
V.M.'s refusal to consent to a c-section factored heavily into this decision. Later, at a permanency hearing, the judge approved DYFS's plan for termination of parental rights and foster family adoption.
On appeal, V.M. and B.G., among other arguments, assert that the judge erred in considering in his findings that they abused and neglected J.M.G. based on decisions that V.M. made concerning medical treatment, specifically, her refusal to consent to a c-section. At trial, DYFS asserted that V.M.'s refusal to consent to a c-section was a relevant factor in assessing abuse and neglect. On appeal, DYFS maintained that position, however, at oral argument, DYFS suggested that the judge need not have considered such refusal in reaching his conclusion that V.M. abused and neglected J.M.G. DYFS did urge that such refusal and V.M.'s later assertion that she did not refuse the procedure were relevant to the issue of credibility.*fn2
My majority colleagues conclude that irrespective of whether or not V.M. consented to the c-section, there was sufficient credible evidence to support a finding of abuse and neglect as to V.M. The majority therefore eschews any discussion of the issue of c-section.
I concur in the result reached as to both V.M. and B.G. I am of the view that even with the limited concession of DYFS as to the narrow utility of V.M.'s refusal to have a c-section, the issue remains extant and requires a level of judicial scrutiny. Consideration of V.M.'s refusal to submit to a c-section, in my view, is improper and beyond the legislative scope of the child-protective statutes. For this reason, I concur.
These are the relevant facts adduced at the trial. On April 16, 2006, V.M. and B.G., who have been married since 1995, went to Saint Barnabas Hospital after V.M., pregnant with her first child, experienced contractions. V.M. presented as a forty-two-year-old woman who was thirty-five weeks pregnant and in labor.
V.M., who is college educated but has not been gainfully employed since a workplace accident in 1993, consented to the administration of intravenous fluids, antibiotics, oxygen, fetal heart rate monitoring, an episiotomy*fn3 and an epidural anesthetic. She refused to consent to any other invasive treatment, however, including a c-section or fetal scalp stimulation. Hospital personnel explained the potentially dire consequences of not allowing a c-section in the event of fetal distress, but V.M. remained adamant in her refusal.
In the hospital records, V.M. is described as "combative," "uncooperative," "erratic," "noncompliant," "irrational" and "inappropriate." She ordered the attending obstetrician, Dr. Shetal Mansuria, to leave the room and told her if she did not do what V.M. said, she would be off the case. V.M. then threatened to report the doctor to the police. In fact, at one point V.M. did call the Livingston Police to report that she was being abused and denied treatment. She told a nurse that "no one is going to touch my baby." She continuously refused to wear the face mask that provided her with oxygen and also refused to remain still in order to allow for fetal heart monitoring. She thrashed about to the extent that it was unsafe for the anesthesiologist to administer an epidural. She would not allow Dr. Mansuria to touch the baby or perform an ultrasound examination. Throughout this entire period, V.M. "was very boisterous and yelling and screaming at the top of her lungs."
B.G. was present while all of these events occurred. Dr. Mansuria explained the complications, such as brain damage, mental retardation and fetal death, that could occur if the fetus went into distress and a c-section was not performed. She also explained that an examination revealed a "nonreassuring fetal status." B.G. said that he understood the risks, but V.M. would not consent to the procedure.
The hospital responded appropriately to confront V.M.'s mental state and her refusal to consent to the c-section. After considering V.M.'s "extreme behavior" and signs of developing fetal distress, the hospital staff requested an emergency psychiatric evaluation to determine V.M.'s competency. Dr. Devendra Kurani responded to the delivery room and spoke to V.M. for approximately one hour. While Dr. Kurani was there, the anesthesiologist was able to administer an epidural. V.M. informed Dr. Kurani that she had a psychiatric history and had been on medication prior to getting pregnant. B.G. confirmed that V.M. had been treated by a psychiatrist for post-traumatic stress disorder and had been prescribed Zoloft, Prozac and Seroquel. When Dr. Mansuria stressed the need for V.M. to consent to a c-section, V.M. stated that she understood the risks, but she did not want the procedure. Dr. Kurani then made a critical finding. Although he acknowledged that V.M. was very anxious, Dr. Kurani concluded that V.M. was not psychotic and had the capacity for informed consent with regard to the c-section. At no time did anyone seek judicial intervention or the appointment of a special medical guardian.
After Dr. Kurani left, the staff requested a second psychiatric opinion from Dr. Jacob Jacoby. Before Dr. Jacoby's evaluation was completed, V.M. gave birth vaginally to J.M.G. without incident. In his report, Dr. Jacoby recounted V.M.'s professed history of childhood abuse, workplace violence and societal discrimination. He noted that V.M. was treated by a psychiatrist, Dr. Ronnie Lee Seltzer, for many years until V.M. stopped seeing her allegedly at the behest of her lawyers. Although he concluded that V.M. appeared to be cognitively intact, he admitted that "there is a gnawing concern overall that the patient may not be as intact as I may have described."
Later that day, Dr. Jacoby dictated an addendum report recounting a conversation with Dr. Seltzer. Dr. Seltzer related that she initially treated V.M. for post-traumatic stress disorder but later began to appreciate that V.M. suffered from either a schizoaffective disorder or a bipolar disorder. Dr. Seltzer questioned the reliability of B.G. and was concerned about V.M.'s "ability to care for her child in a responsible manner." Dr. Jacoby also related a conversation with B.G. in which B.G. indicated that he feels the way the patient [V.M.] is acting now is not her normal manner and that she is not as "tranquil." She seems to be more rambunctious and over expansive (i.e., in a possible hypomanic state)[.] He also was hesitant but seemed to intimate that the patient has in fact had episodes of psychotic ideation, which he did not want to elaborate upon, prior to this present birth.
Dr. Jacoby concluded that V.M.'s and B.G.'s ability to parent the child "needs to be more fully evaluated by state social services."
Despite being slightly premature, J.M.G. was in good medical condition upon her vaginal delivery. She was taken to the neonatal intensive care unit, placed on antibiotics and observed for signs of jaundice. No drugs or alcohol were detected in her blood or urine.
A social worker at Saint Barnabas Hospital contacted DYFS on April 18, 2006, to report concerns over releasing J.M.G. to her parents' care. Caseworker Heather Frommer immediately went to the hospital, interviewed staff and spoke to V.M. and B.G.
V.M. and B.G. denied that V.M. had ever received psychiatric treatment, had ever refused to consent to a c-section or had ever been evaluated by a hospital psychiatrist. Frommer then spoke to Dr. Kurani, who stated that he prescribed Zyprexia for V.M., but she refused to take it. He also said that V.M. "distorts everything that is told to her."
Frommer informed V.M. and B.G. that once J.M.G. was medically cleared for discharge, she would not be going home with them. V.M. became upset, started yelling and called the police. Frommer told B.G. and V.M. that there would be a court hearing on the matter on April 20, 2006, and wrote down the relevant information on a piece of paper. After Frommer left, V.M was discharged from the hospital. Later that day, Frommer went to the parents' apartment to complete a home assessment and reminded V.M. and B.G. about the court hearing on April 20.
On the morning of April 20, Frommer phoned the parents to remind them again of the hearing. B.G. answered the phone, but denied that he was B.G. and denied knowing Frommer. He insisted he did not know what she was talking about with regard to the court proceeding. When Frommer immediately attempted to call back with her supervisor on the line, no one answered the telephone. Neither V.M. nor B.G. appeared at the April 20 hearing. J.M.G. was discharged from the hospital on April 24, 2006, and placed in foster care.
Another hearing followed on May 9, 2006, at which time V.M. told the trial judge that she saw Dr. Seltzer from 1994 to 2005 as the result of an injury she suffered at work after being forced to participate in a mock boxing match. Seltzer diagnosed her as suffering from post-traumatic stress disorder, depression and panic; but in 2005, a psychiatrist working for the State of New York Worker's Compensation Board told her that she was cured and no longer needed treatment. The judge ...