October 9, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
B.D., Defendant-Appellant. IN THE MATTER OF R.N., JR., Minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-85-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth Erb Cashin, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.N., Jr. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
Before Judges Parrillo, Harris, and Guadagno.
Defendant B.D. (Barbara) appeals from the October 26, 2011 order of the Family Part entered after a fact-finding hearing, which determined she abused or neglected her grandnephew, R.N., Jr. (Rodney). The Family Part judge found that Barbara neglected Rodney by delaying medical treatment for three days after he had been accidentally burned. N.J.S.A. 9:6-8.21(c)(4)(a). The judge also found that Barbara failed to exercise a minimum degree of care by recklessly creating a risk to the child's health and safety in the home. The Division concedes that it did not allege environmental neglect in its complaint as to Barbara and does not seek affirmance on that finding. Because the record lacks substantial credible evidence that Barbara's conduct constituted gross negligence or recklessness, we reverse the finding of medical neglect.
We derive the following facts from the record. Barbara's niece, V.N. (Veronica) and her husband R.N. (Ralph) first came to the attention of the Division in 2008 after a referral alleging Ralph was physically abusive to Veronica and had kicked her while she was pregnant with Rodney. The referral also mentioned both parents are learning disabled and lacked parenting skills. A caseworker investigated and Ralph admitted the kicking incident but claimed he and Veronica had resolved their differences. Rodney appeared to be healthy and the allegations were deemed unfounded and the Division closed the case.
On July 14, 2010, the Division received another referral. Rodney's pediatrician, Dr. Danilo Guinto, reported that Rodney, who was then two years old, had a severe case of eczema that had not improved over three months. Dr. Guinto suspected Veronica and Ralph were not giving the child the prescribed treatment. Dr. Guinto also reported that Veronica's sister, S.D. (Sally), observed Ralph hitting Rodney in the face, although he found no evidence of bruising when he examined the child.
After interviewing Dr. Guinto, a Division caseworker went to the home Veronica and Ralph shared with Sally and Barbara. Veronica denied that Ralph hit Rodney in the face. She also told the caseworker that her parents died when she was young and Barbara had cared for her since then.
Barbara told the caseworker that Veronica suffers from developmental delays and without help from her and her daughter Sally, Veronica would not be able to properly care for Rodney or protect him from Ralph.
Sally told the caseworker that neither parent properly cares for Rodney and that she had seen Ralph slap Rodney in the face. When Sally told Veronica what Ralph did, Veronica seemed unaffected by it.
On October 6, 2010, the Division arranged for both Veronica and Ralph to be evaluated by psychologist Barry Katz, Ph.D. After completing the evaluation of Veronica, Dr. Katz concluded that she is mentally disabled with limited coping ability:
[Veronica] is limited in her ability to deal with complexity and daily stresses. [Veronica] has never lived on her own. She does not handle her own finances. . . . She is quite limited in her ability to meet the needs of a child. [Veronica] has admitted to missing [t]he therapy appointment yesterday because she forgot about it. [Veronica] has been described to have been living in a home that has become dirty with the presence of vermin. She did not have the inclination to clean up the home until the family was confronted with this by DYFS. [Veronica] has admitted to dealing with [Rodney]'s crying by striking him.
Dr. Katz recommended that Veronica attend "parenting training appropriate for her level of intellectual functioning." In addition, he recommended that Veronica be continually supervised and assisted in caring for Rodney.
Dr. Katz concluded that Ralph is moderately mentally disabled and "has a history of anger problems, poor frustration tolerance and emotional disturbance. [Ralph] is easily overwhelmed by minimal stressors." Dr. Katz further found
[Ralph] has a history of emotional disturbance and anger dating back to early childhood. [Ralph] displayed attempts to control the evaluation and was confrontational with the examiner at times. [Ralph] does have an intact memory of his childhood, however, he displayed little insight into how such emotional problems and intellectual limitations can affect his current parenting ability. [He] stressed how he wants to care for [Rodney] independent of extended family. However, the reality is that [Ralph] has been a dependent himself upon these family members and does not have the capacity to care for himself independently, let alone meet the needs of a child.
Dr. Katz recommended that Ralph be supervised when interacting with Rodney. He also noted that Veronica was not capable of supervising Ralph's interaction with Rodney because of her own limitations. In addition, Dr. Katz recommended that Ralph be further evaluated to determine whether medical treatment was necessary to address his emotional, behavioral, and psychological issues. Dr. Katz recommended that the Division continue to monitor the family given the obvious and extreme limitations of both parents.
On November 22, 2010, a "family team meeting" was held attended by Ralph, Veronica, Barbara, Sally, the DYFS caseworker, two DYFS supervisors, a domestic violence liaison, and a representative from the Division of Developmental Disabilities. The purpose of the meeting was to "make decisions about [the family's] future needs[, ]" including implementing Dr. Katz's recommendations that neither Veronica nor Ralph be left alone with Rodney. A written agreement was created stating the family's goal was "to keep [Rodney] in the home safe." The agreement included a schedule for Sally and Barbara sharing supervision of each parents' interaction with Rodney:
[Ralph] is NOT to be left alone with [Rodney]. [Sally] will supervise all interaction between, [Ralph, Veronica, and Rodney] from 10am – 3pm on the days [Barbara] is at work. When [Barbara] is not at work, [Barbara] will be the full time supervisor.
The agreement is signed by the caseworker and both supervisors. A third signature appears to be the initials of the domestic violence liaison. No other signatures appear on the document, although Barbara does not deny that she and Sally agreed to supervise the parents' contact with Rodney.
On Friday, December 17, 2010, Rodney was severely burned by boiling water. Rodney and his cousin S.D. (Sam) had been playing in the kitchen while hot dogs were being boiled on the stove. Barbara told both children to leave the room. She then moved the pot of boiling water to the center of the stove, but did not feel it was necessary to pour the water out because hot dogs remained in the pot. Barbara made herself tea, and then went to her bedroom to lie down, as she was not feeling well.
After she left, Rodney and Sam returned to the kitchen. The children opened the oven door and stood on it. Sam would later explain that Rodney was reaching for a hot dog when the oven tilted. Veronica and her cousin were in the living room watching television when she heard commotion in the kitchen. She ran in just as the range was tilting from the weight of the boys standing on the oven door. As Veronica lunged to stabilize the range, the boiling water spilled on Rodney, contacting his neck, ear, and around his waist.
Barbara left her bedroom to find Veronica chasing Sam and accusing him of causing Rodney to be burned. Barbara took control of the situation and told Veronica to place Rodney in cold water in the bathtub. When Rodney was reluctant to remove his clothes, Barbara told Veronica to put him in the tub fully clothed if she could not get his clothes off. The family went to a pharmacy for advice on how to treat the burn and returned with Neosporin, which was applied. Veronica did not want to take Rodney to a doctor that night, as she feared the Division would remove him. Barbara, who did not think the burn was serious, agreed that they would wait until Monday and take Rodney to the doctor then.
On Monday, December 20, 2010, Rodney was taken to Dr. Guinto who diagnosed Rodney with second-degree burns and prescribed a cream for the burn and ibuprofen for pain. Sally notified the Division and later that day a caseworker responded to the family home. When the caseworker contacted Dr. Guinto, he stated that Rodney did not need to be treated at a burn center and that "the family will follow up with him."
On December 21, 2010, Rodney was evaluated at the St. Barnabas Burn Center by Dr. Esber Hani Mansour and diagnosed with third and second-degree burns to his upper and lower back, ear, and neck area.
Initially, the caseworker concluded that the allegations of medical neglect were substantiated against both parents but the allegation of inadequate supervision was unfounded against Barbara. Nevertheless, the Division executed a Dodd removal and placed Rodney in a Division-approved foster home on December 21, 2010.
On December 23, 2010, the Division filed a complaint for custody alleging "medical neglect" of Rodney by Ralph and Veronica. The complaint specifically stated "[t]he allegation of inadequate supervision and burns is unfounded against [Barbara]." The court found the allegations of medical neglect were substantiated against both parents and that returning the child to the home would endanger the child's safety and health.
On January 12, 2011, the law guardian and counsel for the parents moved to include Barbara as a defendant in the litigation based on the November 22, 2010 agreement designating her as the full-time supervisor. The court granted the motion and the Division filed an amended complaint incorporating the allegations contained in the December 23 complaint and adding Barbara as a defendant.
On May 25, 2011, a fact-finding hearing commenced. Caseworker Faith Dzurovcik, who visited the family home on September 20, 2010, testified the floors were dirty, there were dirty dishes in the sink, the stair bannister was missing dowels, and she observed a strong cat odor. She had told the family the home was unsafe and had to be remedied.
Dzurovcik also discussed the family team meeting and the recommendations of Dr. Katz. She had explained to both parents that they could not be alone with Rodney and either Sally or Barbara had to be with them.
On the day Rodney was removed, the home was still in disarray and was not clean. Dzurovcik conceded that the caseworker's original finding as to Barbara was that abuse or neglect was not substantiated because the Division was uncertain whether the supervisory relationship established at the November 22, 2010 meeting was legally binding. Dzurovcik testified that the decision to substantiate abuse or neglect against Barbara was not unanimous within the Division and those who favored substantiating were in the minority.
Another caseworker, Paula Freeman, testified she spoke with Dr. Guinto on December 20, 2010, following Rodney's injury and he felt the situation concerning Rodney was just an accident. Freeman testified that the decision to substantiate abuse and neglect against Barbara was based on the burns as well as the state of the home because "[a]ll of that had a part in [their] decision. All of those things played a part in [their] decision-making."
A report of Dr. Linda Shaw was entered into evidence, in which Dr. Shaw found that Rodney's "wounds were clean without evidence of infection." In addition, Dr. Shaw wrote that the burns were painful and posed the potential for permanent scaring.
Dr. Mansour was qualified as an expert in burns and testified that he examined Rodney on December 21, 2010. Dr. Mansour found that Rodney had
burns on the back of the right ear, on the back of the neck, on the upper back and the lower back. These were considered second and possibly deep second-degree burns. The burns of the head, neck and upper back were treated open technique with an antibiotic ointment called Gentamicin. Dressings were applied with also an antibiotic [ointment] on the burn wounds of the lower back because they were deeper and more serious using the Silver Sulfadiazine cream.
Dr. Mansour testified that Rodney suffered both second-degree and third-degree, or deep second-degree, burns from the boiling water and the untreated burns can deepen in a process known as wound conversion, which he described:
[t]he depth of the burn is related to the intensity of the heat and the time of exposure. So when, for example, a hot liquid falls on a person, the central area would take the brunt or the heat and then there is the fusion when the liquid is moving, it loses its heat. So the burns are deeper at the center and less deep as it moves out of the center.
If the wound desiccates, that mean[s] if it dries out, the area of stasis can die and that makes not only the wound deeper but larger. If the wound is infected, also the same phenomena happens, the areas of stasis, the cells are going to die and it's going to be —— the wound is going to convert to a deeper wound and larger wound.
Delay in treatment can lead to wound conversion because of desiccation, infection, and hypotension. When burns cover a large percentage of a person's skin, there is a significant risk that wound conversion occurs. The burns Rodney suffered covered only four percent of his skin, but Dr. Mansour felt that is still a "significant size burn." Dr. Mansour testified, Rodney "did not need intravenous fluid or sedation. He was not at risk of shock per se but he had —— he was at risk of having wound conversion if the wounds are drying out or if the wounds get infected."
Rodney's wounds had closed by the next time Dr. Mansour examined him on December 31, 2010. He explained, this "means that the skin layers have reconstituted themselves. So there is less risk of infection but there's also potential for scarring. That's why the wound is going to continue to mature even though it is considered closed, technically healed." Rodney was released from Dr. Mansour's care on January 28, 2011.
None of the defendants testified, called witnesses, or presented evidence.
The court found that Barbara was functioning as the supervisor of the parents' interactions with Rodney but that her "supervision did not absolve the parents of responsibility." The court found by a preponderance of the evidence that Barbara abused or neglected Rodney in that "[she was] aware that [Rodney] should have received medical treatment on Friday (12/17/10) and recklessly created a risk of serious injury to the child by waiting until Monday (12/20) to obtain the treatment, which constituted medical neglect under N.J.S.A. 9:6-8.21(c)(4)(a)." The judge also found that "due to [Barbara's] failure to maintain a safe and sanitary home, [she] failed to exercise a minimum degree of care by recklessly creating a risk to the child's health and safety in the home pursuant to N.J.S.A. 9:6-8.21(c)(4)(a)." The judge found the Division failed to prove inadequate supervision by Barbara.
On appeal, Barbara challenges the finding of medical and environmental neglect, as the Division's complaint only alleged Barbara's failure to supervise. Barbara also challenges the finding of environmental neglect, as the deputy attorney general represented to the court that she was only proceeding on improper supervision and medical neglect. Finally, Barbara challenges the sufficiency of the evidence presented in support of abuse or neglect.
A reviewing court owes considerable deference to the family court's findings of fact. D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). An appellate court must also defer substantially to that court's assessment of expert evaluations and credibility determinations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the . . . court's credibility determination[s] and the judge's 'feel of the case' based upon [the court's] opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J.Super. 81, 88 (App. Div. 2006) (citing Cesare, supra, 154 N.J. at 411-13), certif. denied, 190 N.J. 257 (2007). We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13.
There are two exceptions to this very limited scope of appellate review. First, when the trial judge's decision is so wide of the mark as to be "clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction." Formosa v. Equitable Life Assurance Soc'y, 166 N.J.Super. 8, 20 (App. Div.), certif. denied, 81 N.J. 53 (1979). Second, "where the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom[.]" Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J.Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989).
"Actions initiated by [the Division] charging abuse and neglect of children are governed by statute." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J.Super. 155, 163 (App. Div. 2003); N.J.S.A. 9:6-8.21 to -8.73. N.J.S.A. 9:6-8.21(c) defines "[a]bused or neglected child" as:
A child . . . whose parent or guardian (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 protracted disfigurement, or protracted impairment of physical or emotional health 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 (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able 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, including the infliction of excessive corporal punishment; or by any other acts of similarly serious nature requiring the aid of the court[.]
N.J.S.A. 9:6-8.21(c)(4) requires a finding that a child's 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[.]" As used in the statute, "the phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). "[N]on-intentional conduct is sufficient to warrant a finding of abuse if injury to the child is demonstrated." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J.Super. 13, 24 (App. Div. 2004) (citing G.S., supra, 157 N.J. at 175-82), certif. denied, 182 N.J. 426 (2005).
The testimony at the hearing was undisputed that Veronica and Ralph were incapable of caring for Rodney without supervision. Because of that, the Division structured supervision of the parents' contact with Rodney utilizing Barbara and Sally.
On the evening in question, Barbara was home and aware of the children playing in the kitchen near the stove. She told them to leave the room, but then retired to her room, as she was not feeling well. As children are inclined to do, they returned to the kitchen, and Rodney was injured when he and his cousin caused the stove to tilt. Barbara responded immediately and, at her direction, Rodney was placed in cold water, which Dr. Mansour agreed was appropriate treatment. Advice from a local pharmacy was sought and the wound was treated with an antibiotic cream. Although Rodney was not taken immediately for medical attention because of Veronica's fears that the child would be removed, Barbara maintained that he would be taken to Dr. Guinto on Monday. In addition, Barbara's assessment of the injury was that it was not serious enough to require immediate medical attention.
The Court in G.S. explained that "willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others[, ]" and that under such a standard, "a person is liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury." G.S., supra, 157 N.J. at 179. Therefore, "failure to exercise a minimum degree of care" at least requires grossly negligent or reckless conduct. Id. at 177-78.
Whether Barbara has failed to exercise a minimum degree of care is to be analyzed in view of the dangers and risks associated with the situation. Her decision to accede to Veronica's wish not to take Rodney for immediate medical attention must be viewed together with her actions immediately after the accident and her opinion, although flawed, that the child's injuries were such that he could wait until Monday for medical attention. Barbara's conduct must be evaluated in context based on the risks to Rodney posed by the situation. See id., at 181-82.
Applying these standards, we have concluded that, although not seeking immediate care for Rodney was negligent, Barbara was not grossly negligent or reckless. She took appropriate action in redirecting Veronica to immerse Rodney's burns in cold water in the bathtub. When Veronica had problems removing the child's clothing, Barbara directed that he be placed fully clothed in the tub. She sought treatment information from a pharmacist, and as a result, obtained and applied over-the-counter antibiotic ointment to the injury. Dr. Shaw's report described Barbara's actions prior to seeking medical care as "fortunate." Barbara told Veronica that Rodney would have to be brought for medical treatment with Dr. Guinto on Monday.
Concerning the risk posed to Rodney, Dr. Guinto treated the wounds, prescribed Silvadene cream and Ibuprofen, and informed the caseworker that further treatment at the burn center was not necessary. Dr. Mansour testified that "no fever or other burn-related symptoms had been noted at [the family] home" and by the time he examined Rodney, "[a]ll the wounds were clean without evidence of infection."
As the Court held in Dep't of Children & Families v. T.B., 207 N.J. 294, 305-06 (2011), proof of mere neglect does not satisfy the requirements of the statute. There must be willful, wanton, or reckless conduct. Ibid. The proof adduced at the fact-finding hearing is insufficient to meet that standard.
As we are vacating the finding of abuse or neglect, we need not address Barbara's claims of ineffective assistance of counsel. Also, the Division explicitly stated in its brief that it is not seeking to have the finding of environmental neglect affirmed.
The order of October 26, 2011, is reversed. The Division will remove Barbara's name from the Central Child Abuse Registry within thirty days of the date of this opinion.