Opinion
DOCKET NO. A-2722-13T2
03-20-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.M., Defendant-Appellant, and S.N., Defendant. IN THE MATTER OF G.M., a minor.
Deric Wu, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wu, of counsel and on the briefs). Renard L. Scott, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Scott, on the brief). David Valentin, Assistant Deputy Public Defender, argued the cause for minor G.M. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-89-11. Deric Wu, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wu, of counsel and on the briefs). Renard L. Scott, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Scott, on the brief). David Valentin, Assistant Deputy Public Defender, argued the cause for minor G.M. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief). PER CURIAM
Following a fact-finding hearing, the Family Part entered an order on May 31, 2012 determining that L.W. (Lana) medically neglected her then seven-month-old child, G.M. (Grant), by failing to seek timely medical treatment for Grant after the child suffered a fracture of his femur. The court also determined that Lana obscured the nature and severity of Grant's injuries by giving inconsistent accounts of how he sustained the injury. Lana claims that the Division of Child Protection and Permanency (Division) presented no evidence that her actions caused "mismanagement" or unreasonable delay of Grant's medical treatment and the judge's findings were not supported by evidence in the record. The child's Law Guardian urges us to affirm the court's findings. After careful consideration of the record and for the reasons that follow, we affirm.
Pseudonyms are used to protect the identity of the child and for ease of reference.
Because of the nature of these allegations, we recount the evidence presented at the fact-finding hearing, including the testimony of the witnesses, medical reports, and Division records, with considerable detail.
Grant was born to Lana and S.N. in March 2010. In August 2010, Lana and Grant began living with Lana's friend, D.S. (Dana), and Dana's husband, R.G. (Ralph). During the evening of November 17, 2010, Ralph heard Grant crying "uncontrollably" and went up to the guest room where Lana and Grant were staying. Lana told Ralph she thought Grant was constipated. Ralph attempted to help Lana calm the child down, but he continued crying until he finally fell asleep.
S.N. was named as a dispositional defendant in the Title Nine complaint. The Division did not seek a finding against him and he is not involved in this appeal.
That evening, Lana spoke with Dana, who was on a business trip in Florida, and told her Grant fell off her bed and hurt his leg. Ralph was not a party to this conversation and, until the next morning, was under the impression that Grant was suffering only from constipation.
The following morning, Grant was still crying and Lana told Ralph that Grant may have injured his leg when he fell as she was lifting him out of a child swing the day before. Ralph called Dana, to discuss whether Lana should take Grant to the child's pediatrician or directly to the hospital. Dana advised taking the child to the hospital.
Lana took Grant to the emergency room at the Children's Hospital of Philadelphia (CHOP), arriving at 2:24 p.m. CHOP records indicate that Lana informed admissions personnel that the "chief complaint" was constipation, but she also requested that Grant's left leg be "checked out" and again explained that he had been dropped after his removal from a child swing: "mom removed [patient] from swing yesterday & [patient] slipped out of her hands." Lana told hospital personnel that the fall was only from a height of six inches. An x-ray revealed that Grant had suffered a non-displaced fracture of his left femur, and the leg was placed in a cast. The treating personnel determined that Lana's explanation seemed inconsistent with the severity of the child's injury, and notified the CHOP child abuse and neglect team.
Dr. Laura Brennan, a pediatric attending physician at CHOP and a member of the Suspected Child Abuse and Neglect (SCAN) team, testified at the fact-finding hearing that the SCAN team received a referral on Grant because of "the incongruence of the injury with history. There was really insufficient history to explain the fracture that [Grant] was found to have." Dr. Brennan spoke with Lana, who told her that
[Grant] had been in an infant swing which is pretty low to the floor, I think the estimated distance was about six inches, and he had been picked up by his mother and had slipped such that he fell backwards and did not cry at that time, seemed okay, went to bed, and then the following morning, which was the day prior to when I saw him, he awoke and it had been noticed that his leg seemed sore and I think he wasn't bearing weight on his left leg at which point he got brought in for medical attention.
Dr. Brennan testified that in the version Lana presented to her, "the only history of trauma or an injury had been this sort of fall backwards from a height of about six inches onto a floor." Brennan concluded that Lana's explanation was insufficient to explain Grant's injury, and raised "sufficient concerns" that prompted her to make a referral of child abuse to the Division. On cross-examination, Brennan further explained that had this type of fracture been sustained by an ambulatory, two- or three-year-old child, she might not have had the same concern, but Lana's explanation "raised concerns for child abuse [because] this is a non-ambulatory infant."
After CHOP notified the Division, caseworker Luis Delacruz was initially assigned. Delacruz informed Detective Stacie Lick of the Gloucester County Prosecutor's Office of the CHOP referral. On November 20, 2010, Lana was interviewed by Detective Lick and Sergeant Charles Barone of the East Greenwich Police Department. Before the interview began, Lana was advised of her Miranda rights and signed a form waiving those rights. Caseworker Laura McKenna observed but did not participate in the interview.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Detective Lick, Sergeant Barone, and Caseworker McKenna testified at the fact-finding hearing. Barone confirmed that Lana initially claimed that Grant's injury occurred as she was removing him from a baby swing and he slipped from her grasp and fell to the floor. He testified that during the interview, Lana "just stopped and said that [Grant's injury] didn't happen from a fall from the swing, that he actually fell off . . . the bed while she was laying with him . . . and someone told her to say the swing story . . . ." Lana would not identify the person who told her to fabricate the swing story.
Lick testified that she spoke with Ralph, who expressed concerns with Lana's interaction with Grant and suggested that she had difficulty dealing with him. Ralph also confirmed that he and his wife Dana made the decision to bring Grant to the hospital.
Dr. Johanna Vidal-Phelam, Grant's pediatrician, testified that she saw Grant on November 8, 2010, when Lana brought him in with a rash. During her conversation with Lana, Dr. Vidal-Phelam became concerned that Lana was displaying signs of depression. She recommended that Lana see her personal physician.
On November 20, 2010, Dr. Vidal-Phelam called a friend of Lana's to discuss test results for the friend's child and Lana happened to answer the phone. Lana told her that Grant suffered a spiral leg fracture and had been admitted to CHOP. When Dr. Vidal-Phelam inquired how the child broke his leg, Lana told her, "He fell out of the swing."
Lana called Ralph and Dana as witnesses. Ralph testified that on the night of November 18, 2010, he was downstairs with his daughter when he heard Grant begin to cry uncontrollably. When he went upstairs to check on the child, Lana told him only that the child was constipated. Initially, Lana did not say anything about Grant being dropped while being taken out of the swing or falling off the bed. Ralph attempted to help Lana comfort the child until he eventually went to sleep.
Although Ralph told Detective Lick that Grant woke up again crying at 1:00 a.m., at the hearing he testified that he did not recall that occurrence. It was not until the next morning, when Grant resumed crying, that Lana told Ralph that Grant may have fallen out of the swing.
Dana was also called by Lana. She testified that she has known Lana for twenty-five years. On Wednesday, November 17, 2010, Lana drove her to the airport for a business trip to Florida. At approximately 11:00 p.m. that night, Lana called her and told her that Grant had fallen off the bed. When Lana told Dana that the child had stopped crying, Dana suggested that she make an appointment with the doctor the next morning.
Dana received another call the next morning from either Ralph or Lana. As the child was still crying, Dana recommended bringing him directly to CHOP.
At the conclusion of the hearing, the judge determined that the Division had not sustained its burden to support a theory of intentional or reckless infliction of harm. Rather, the judge found that Lana's delay of twenty-four hours in bringing Grant for treatment combined with her "lies about what . . . happened" constituted medical neglect, in violation of N.J.S.A. 9:6-8.21(c). The judge found that Grant suffered the injury at approximately 7:00 or 8:00 p.m. on November 17, 2010 and was not treated until 8:45 p.m. the next evening.
The judge found Ralph's testimony credible in describing "how upset the child was, how red, crying hard and heavy." The judge noted the different explanations given by Lana, beginning at the hospital with "a six-inch fall and then later moves to about a two-foot fall . . . from [Lana] picking [Grant] up out of the swing." The judge further noted that it was not until Lana was interviewed by the detectives that she admitted that the child fell off the bed. The judge concluded that the misinformation resulted in "a mismanagement of treatment" for the child. The judge found that the mother's delay resulted in "the child being in pain all night without any pain mitigation techniques, including just stabilizing the leg." The judge found a
complete lack of disclosure or appropriate response so that the child could get medical care for what Mom knew had happened. Mom knew the child fell. Nobody else did, but Mom did. Is where I find the risk of harm and the actual harm just in terms of the additional pain and suffering from no meds and no immobilization through medical professional from, like, either to take this 24 hours between when this happened, when the child was seen, and you take out five or six of it for transportation and waiting in the emergency room, which maybe the [wait] would have been shorter if the main complaint was not presented as constipation but a fall and a leg.
And, I'm not really sure, so maybe not.
So, there would have been five, six hours there anyway, but this delay was, you know, really longer than it should have been and different actions could have been taken that would have reduced the pain and reduced the
risk of harm and that's the basis for my finding . . . .
On appeal, Lana raises the following points:
I.
THERE WAS NO EVIDENCE THAT [LANA'S] ACTIONS CAUSED "MISMANAGEMENT" OR UNREASONABLE DELAY OF HER SON'S MEDICAL TREATMENT.
A. [LANA'S] INABILITY TO RECOGNIZE THE SEVERITY OF G.M.'S INJURY DID NOT AMOUNT TO ABUSE AND NEGLECT.
B. THE RECORD CONTAINS NO EVIDENCE OF A NEXUS BETWEEN [LANA'S] FAILURE TO DISCLOSE G.M.'S FALL AND A DELAY OR DEGRADATION OF G.M.'S MEDICAL TREATMENT.
II.
THE NEGLECT FINDING MUST BE REVERSED BECAUSE IT WAS NOT SUPPORTED BY THE RECORD AND ONLY SERVES TO PUNISH THE MOTHER.
The thrust of defendant's argument on appeal is that her failure to recognize the severity of her son's injury did not amount to abuse and neglect. We do not question or minimize the difficulties a parent faces in evaluating a non-verbal infant who is in distress from an unknown cause. The decision of when to seek medical treatment is often not clearly defined and normally entrusted to the sound discretion of a parent. That being said, this is not a case where the source of Grant's distress was unknown to defendant. In reaching that conclusion, we note several facts that are not disputed by defendant.
First, Grant suffered a spiral fracture of his left femur. Second, this occurred while he was in Lana's exclusive custody. Third, this likely occurred sometime after Lana dropped Dana off at the airport during the afternoon of November 17, 2010, and around 7:00 or 8:00 p.m. that evening, when Ralph first noticed that Grant was crying uncontrollably. During the ride to the airport, Grant was "cranky" but clearly not displaying the level of distress described by Ralph later that evening. Fourth, at approximately 11:00 p.m., Lana and Dana spoke on the phone and Lana confided to Dana that Grant had fallen off the bed. Ralph was apparently not privy to this conversation and Lana continued to tell him instead that the child suffered only from constipation. Fifth, when the child continued in distress the next morning, Lana first told Ralph the fabricated story that Grant had slipped from her hands as she was taking him out of the child swing, and further minimized the incident by saying he fell only six inches. Sixth, the decision to take Grant to the hospital was ultimately made by Ralph and Dana, not Lana. Seventh, when Lana brought Grant to the CHOP emergency room, she advised the staff that the child's primary complaint was constipation and mentioned the problem with his left leg as a secondary concern. Finally, Lana continued to minimize the injury by retelling the false child swing story, and never informing the CHOP doctors that the child had fallen off the bed.
N.J.S.A. 9:6-8.21(c)(4)(b) defines the term "abused or neglected child" as:
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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]
The Court in G.S. v. Department of Human Services, 157 N.J. 161, 177-78 (1999), determined that the phrase "failure to exercise a minimum degree of care . . . refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Whether a child is "abused or neglected" is quite frequently "fact sensitive." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). But, as we have noted, the facts here, as substantiated by several witnesses called by the Division, are largely undisputed. We are left with the question of whether Lana's deliberate actions in failing to seek medical care for her son when she knew or should have known that such care was needed, and then misrepresenting the causation for the injury, constituted a reckless disregard for those consequences.
On occasion, we have been critical of the Division's excessive reliance on hearsay to prove closely contested cases. In this matter, the testimony of Detectives Lick and Barone and Doctors Brennan and Vidal-Phelam greatly aided our review.
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When Lana spoke with Dana at 11:00 p.m., and admitted that Grant had fallen off the bed, the child had been crying uncontrollably for three or four hours. An ordinary reasonable person would have concluded that the child needed immediate medical attention. Instead, Lana intentionally fabricated an explanation for the child's injury that minimized her role and responsibility. She told the story first to Ralph and repeated it to the CHOP doctors. As a result, the child spent the night in pain with an untreated and unstabilized broken leg. Lana's actions were grossly negligent and subjected Grant to harm by failing to exercise a minimum degree of care.
We are satisfied that "an ordinary reasonable person" would understand and would have acted upon the child's need for immediate medical attention, and for that reason, defendant's conduct amounted to gross negligence and supports the Division and Law Guardian's contention that the child was abused or neglected within the meaning of N.J.S.A. 9:6-8.21(c).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION