February 3, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
M.A., DEFENDANT-APPELLANT. IN THE MATTER OF K.A., A MINOR.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 4, 2011
Before Judges Yannotti and Espinosa.
M.A. appeals from a final determination of the Director of the Department of Children and Families (Director) in the Division of Youth and Family Services (Division), finding that she neglected her infant child K.A. by failing to provide him with necessary medical care. We affirm.
Here, the Division informed M.A. that it had substantiated a finding that she had medically neglected K.A. M.A. requested a dispositional review in order to contest this finding. The Division's finding was affirmed. Thereafter, M.A. requested an administrative hearing, and the Division referred the matter to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ).
The evidence presented at the hearing indicated that M.A. had given birth to K.A. on June 27, 2005. L.A. is the child's biological father.*fn1 The child had tested positive for presumptive medium-chain acyl-CoA dehydrogenase deficiency (MCAD). An individual with MCAD cannot convert fatty acids into "fuel" for the body. A child with this disorder must be fed approximately every two to four hours so the body has sufficient nutrition. In addition to the recommended frequent feedings, carnitine supplements are often suggested. Carnitine assists the fatty acids to oxidize, and facilitates the production of ketones, which can take the place of sugar or carbohydrates in the body.
An individual with MCAD can become hypoglycemic, which may lead to metabolic decompensation that can cause such effects as Attention Deficit Hyperactivity Disorder (ADHD) and certain developmental delays. In addition, a child with MCAD is at substantial risk during times of illness and physical stress. In certain circumstances, MCAD can lead to death if not properly treated.
On July 1, 2005, St. Peter's University Hospital (St. Peter's) confirmed K.A.'s presumptive diagnosis of MCAD. Dr. Debra-Lynn Day-Salvatore (Dr. Day-Salvatore), Director of the Institute for Genetic Medicine (Institute) at St. Peter's, attempted to schedule an appointment for K.A. on July 7, 2005; however, his parents declined that appointment. Dr. Day-Salvatore first saw K.A. on August 19, 2005.
The doctor counseled the family and explained the risks associated with MCAD and the appropriate treatment for the condition, including a feeding schedule, glucose monitoring and possible carnitine supplementation. K.A.'s parents decided not to have DNA tests performed on the child, although such tests had been recommended to further confirm the MCAD diagnosis. On August 24, 2005, Dr. Day-Salvatore wrote to K.A.'s pediatrician, Dr. Vidya Vakil (Dr. Vakil), and advised her concerning the initial consultation.
In addition, on August 25, 2005, Dr. Day-Salvatore wrote to K.A.'s parents and confirmed the diagnosis of MCAD. She again recommended carnitine supplementation to minimize the risk that K.A. would experience a metabolic crisis. The doctor also recommended that M.A. contact her directly so that a treatment plan for K.A. would be established.
On September 1, 2005, M.A. called Dr. Day-Salvatore, but the doctor was not available at that time. M.A. did not leave her phone number and said that she would call again. M.A. did not call St. Peter's again until June 2006.
The record indicates that M.A. failed to bring K.A. for visits with Dr. Vakil that had been scheduled for August 27, 2005, and September 16, 2005. M.A. brought K.A. for an appointment with Dr. Vakil on November 8, 2005. Dr. Vakil noted in her chart that M.A. would not permit K.A. to receive all of his vaccines at the same time, and M.A. had requested that only two vaccines be administered at a time.
Dr. Vakil also noted that M.A. had not started K.A. on carnitine, as had been recommended. Dr. Vakil suggested that the parents follow up at a metabolic treatment center (MTC), and she gave them the number for Children's Hospital of Philadelphia (CHOP).
K.A. was taken to see Dr. Vakil on December 21, 2005. The doctor's chart indicates that, at the time, K.A.'s weight had dropped to the tenth percentile compared to boys of his age. K.A. was not brought for his scheduled appointment with Dr. Vakil on February 17, 2006. However, Dr. Vakil saw the child in March 2005, and she again gave M.A. the number for CHOP so that K.A. could be seen at a MTC.
K.A. was not taken for his May 1, 2006, appointment, although Dr. Vakil saw the child on May 27, 2006, when his father brought him to see the doctor for a rash. Dr. Vakil again advised that the child needed to be seen at a MTC. The doctor said that K.A. should return in a week; however, K.A.'s parents failed to take him to the doctor at that time.
On June 15, 2006, M.A. phoned Dr. Day-Salvatore and advised that K.A. had possibly lost five pounds in a week. The doctor attempted to return the call but there was no answer. Eventually, Dr. Day-Salvatore was able to contact M.A. and offered to see K.A. on June 19, 2006. M.A. said that the following day would be better for her.
On the morning of June 20, 2006, M.A. called St. Peter's and said that she had been on their way to the hospital but had gotten stuck in traffic. Nearly two hours later, M.A. called Dr. Day-Salvatore and said that she had returned home. Dr. Day-Salvatore advised M.A. to take K.A. to the St. Peter's emergency room if he was experiencing acute illness.
On June 21, 2006, M.A. called Dr. Day-Salvatore and said that K.A. had gained back all of his weight and was fine. However, at 11:00 p.m. on June 22, 2006, M.A. brought K.A. to the St. Peter's emergency room. The doctor there found that K.A. was not suffering from any acute illness but his weight was below the fifth percentile on the growth chart.
K.A. was seen by Dr. Vakil on June 29, 2006, in the company of one of the Division's caseworkers. The child then weighed about eighteen pounds, which was still below the fifth percentile on the growth chart. M.A. advised the Division's caseworker that she wanted to have the child evaluated at Cooper University Hospital; however, she did not schedule an appointment there for two weeks. The Division scheduled the appointment for August 11, 2006. The Division also scheduled an appointment for K.A. at the Dorothy B. Hersh Child Protection Center on August 11, 2006.
Dr. Susan Hodgson (Dr. Hodgson) evaluated K.A. on August 11, 2006, and reviewed the child's medical records. Dr. Hodgson found K.A. had "without question" been medically neglected. She wrote that K.A. is a child with a "potentially life-threatening" disorder, who had shown a significant decrease in weight and who had not been given carnitine supplements or metabolic testing between August 19, 2005, and June 26, 2006.
Dr. Rhonda Schnur of Cooper Hospital saw K.A. on August 24, 2006. At that time, K.A.'s growth parameters had fallen below the third percentile on the growth charts. Dr. Schnur concluded that K.A. was "fail[ing] to thrive." M.A. again refused DNA testing, even though Dr. Schnur said that such tests would provided a better understanding of the child's "severe carnitine deficiency and failure to thrive." Dr. Schnur subsequently treated K.A., and noted that he had severe developmental delays, including no head growth, possible ADHD, head-banging, and speech delay.
M.A. testified that, at times, St. Peter's had turned her away from scheduled appointments when she was only five or ten minutes late. M.A. stated that she was concerned about the side effects of carnitine supplements. M.A. claimed that she was not supposed to follow up at St. Peter's until a year had gone by. She explained the reasons why she did not bring K.A. for certain appointments. M.A. insisted that she made up for the missed appointments.
M.A. further testified that she called Dr. Day-Salvatore on June 16, 2006, because she was concerned about K.A.'s weight loss. M.A. claimed that she had been told that Dr. Day-Salvatore would not see her if she was even a minute late. She stated that she ran into heavy traffic on the way to the appointment and returned home. She asserted that she did not believe K.A. was failing to thrive in June 2006.
The ALJ issued an initial decision in which she concluded that the Division had proven that K.A. had been "abused or neglected" as that term is defined in N.J.S.A. 9:6-8.21(c). The ALJ found that, although M.A. was a concerned parent, her testimony about the missed appointments and concerns about the suggested treatments were not credible. The ALJ further found that the evidence established that a significant amount of time had passed before K.A. was seen by a doctor for his condition, and only then when M.A. thought the child was in crisis.
The ALJ made the following additional findings of fact:
The record presented in this case demonstrates that K.A.'s physical condition was placed in imminent danger of becoming impaired as the result of the failure of [M.A.] to exercise a minimum degree of care in providing the [child] with proper supervision or guardianship, by unreasonably allowing [a] substantial risk of harm [to be inflicted]. . . . In the present matter, M.A. had the benefit of knowing early [on] that K.A. suffered from a chronic condition which could lead to further medical complications. Armed with that information, the record demonstrates that M.A. failed to provide a minimum degree of care in that she frequently missed doctor's appointments and failed to follow up as advised by doctors.
While incidents can and do occur, the frequency with which appointments were missed or delayed, or advice not heeded[,] placed K.A.'s physical condition in danger of becoming impaired. While this would be cause for concern in a vacuum, what was known about K.A.'s condition serves to exacerbate this concern. [M.A.'s] statements regarding worries as to side effects of various treatments are unpersuasive, as the documents make clear the rarity of occurrences and the record is devoid of any indication of these concerns being raised at the time treatment was attempted. Rather they appear to be compiled in preparation for the hearing in this matter, an excuse rather than a reason.
Thereafter, M.A. filed exceptions to the ALJ's initial decision with the Director. The Director found, however, that the record supported the ALJ's findings and reaffirmed the Division's determination that M.A. had neglected K.A. by failing to provide the child with the medical care required for his condition.
On appeal, M.A. argues that the Division's finding of neglect should be reversed because it is "unreasonable" and not supported by the evidence in the record. M.A. also argues that the ALJ erred by finding that her testimony was not credible.
"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid.
In determining whether the agency's action is arbitrary or unreasonable, we consider: 1) whether the agency's decision offends either the State or Federal Constitution; 2) whether the action violated express or implied legislative policies; 3) whether there is substantial credible evidence in the record to support the agency's findings; and 4) whether the agency clearly erred in reaching a conclusion unsupported by relevant factors. Ibid. (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); In re Larsen, 17 N.J. Super. 564, 570 (App. Div. 1952)).
N.J.S.A. 9:6-8.21(c) provides that a child is considered "abused or neglected" if the parent or guardian of a child less than eighteen years of age:
(1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or a child 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 . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]
The Supreme Court has explained that, for the purpose of applying this statute, a parent or 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 supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 181 (1999). Minimum degree of care refers to conduct that is "grossly or wantonly negligent, but not necessarily intentional[,]" rather than conduct that is simply negligent. Id. at 178.
We are satisfied that there is sufficient credible evidence in the record to support the Division's finding that M.A. medically neglected K.A. and, as a consequence, K.A. was an "abused or neglected" child, as defined in N.J.S.A. 9:6- 8.21(c)(4)(b). The record supports the Division's finding that M.A. failed to provide appropriate medical treatment for K.A.'s diagnosed MCAD in the first year of his life, thereby subjecting him to a risk of serious injury.
We find no merit in M.A.'s assertion that the ALJ erred by finding her testimony to be lacking in credibility. Here, the ALJ correctly noted that M.A.'s testimony was contradicted by the documentary evidence presented at the hearing, as well as by Dr. Day-Salvatore's testimony, which the ALJ found credible and persuasive. Our deference to the ALJ's credibility findings is warranted because the ALJ heard the testimony and was better able to assess the credibility of the witnesses than an appellate court. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988).
We have considered M.A.'s other contentions and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).