Opinion
DOCKET NO. A-3235-14T3
10-05-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. B.M., Defendant-Appellant, and N.C.-M. and E.B., Defendants. IN THE MATTER OF S.B., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Gillian Hemstead, Assistant Deputy Public Defender, on the brief).
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fuentes and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FN-21-123-14. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Gillian Hemstead, Assistant Deputy Public Defender, on the brief). PER CURIAM
This appeal concerns the well-being of a medically fragile child who has been diagnosed with Type 1 diabetes. Pursuant to N.J.S.A. 9:6-8.25 and N.J.S.A. 30:4C-12, the Division of Child Protection and Permanency (hereinafter "the Division") filed a verified complaint against N.C-M. (hereinafter "Nancy"), the biological mother of five children ranging in age from seven to sixteen years old. The focus of this appeal concerns Nancy's second oldest child, S.B. (hereinafter "Sharon"), who was born in 2001. The four remaining children are not involved in this case. The Division has identified A.E. as the biological father of Sharon and her older brother, N.B., who was born in 2000. A.E. has never participated in the upbringing of his children, and the Division remains unaware of his date of birth or whereabouts.
"Type 1 diabetes, once known as juvenile diabetes or insulin-dependent diabetes, is a chronic condition in which the pancreas produces little or no insulin, a hormone needed to allow sugar (glucose) to enter cells to produce energy. The far more common type 2 diabetes occurs when the body becomes resistant to insulin or doesn't make enough insulin." Mayo Clinic Staff, Diseases and Conditions: Type 1 Diabetes, MAYO CLINIC (Aug. 2, 2014), http://www.mayoclinic.org/diseases-conditions/type-1-diabetes/basics/definition/con-20019573.
Pursuant to Rule 1.38-3(d)(12), the parties have been given fictitious names in order to protect and preserve their confidentiality.
Appellant B.M. (hereinafter "Burt") is Nancy's former husband, as well as the biological father of her three younger children. After Nancy and Burt divorced, they continued to reside in the same household. The Division alleged, and the Family Part Judge found, that Burt cares for his three biological children and has voluntarily assumed a parental role with respect to Sharon and her older brother.
On October 1, 2013, the Division filed a verified complaint against Nancy and Burt in the Family Part, alleging that they abused and neglected Sharon. At this time, Sharon was eleven years old. The complaint contained allegations that Nancy and Burt: (1) failed to properly monitor Sharon's medical condition; (2) repeatedly failed to seek timely medical assistance when Sharon's condition became life-threatening; and (3) were unable or unwilling to take the necessary steps to provide for Sharon's medical needs. The Family Part concluded that Burt and Nancy's conduct was grossly negligent, thus constituting abuse and neglect under N.J.S.A. 9:6-8.21(c)(4).
Burt now appeals, arguing that the Division failed to prove by a preponderance of the evidence that he assumed a parental role or otherwise acted as Sharon's "guardian," as that term is defined in N.J.S.A. 9:6-8.21(a). Alternatively, Burt argues the Division did not demonstrate he committed child abuse and neglect under N.J.S.A. 9:6-8.21(c)(4) by failing to "exercise a minimum degree of care" in monitoring and managing Sharon's medical condition. We reject these arguments and affirm.
We derive the following facts from the record developed by the parties before the Family Part.
I
On August 13, 2013, the Lehigh County Office of Children & Youth Services (hereinafter "OCYS") formally referred Sharon and her siblings to the attention of the Division. OCYS had opened a case on the entire family after substantiating a report of medical abuse regarding Sharon. As a result, OCYS had placed a visiting nurse in the family's home in order to provide medical counseling to the child's caregivers and monitor the child's diabetic condition. This service plan came to an abrupt end when the family decided to relocate to Phillipsburg, New Jersey.
In response to the OCYS referral, Division caseworker Karen Lynch-Mattioli made an unannounced visit to the family's Phillipsburg residence on Wednesday, August 14, 2013. Both Nancy and Burt were home, but Sharon was not. Burt told Lynch-Mattioli that his "two stepchildren," Sharon and her older brother, were in New York with their maternal grandmother and were not expected to return until Monday. Lynch-Mattioli asked Nancy and Burt to clarify the events that had caused OCYS to intervene in their family's affairs. According to Lynch-Mattioli's testimony before the Family Part, Burt "acknowledged [Sharon's] medical needs" and "explained that he was educated on how to take care of her Type 1 diabetes[.]" He also stated that "[Nancy] is now gainfully employed in New York City and is pretty much gone from Monday through Friday[,] so he supervises [Sharon] when she takes her blood sugar and her insulin."
Lynch-Mattioli included a "narrative entry" in the Division's records to document this encounter with the family. In that entry, she explained in greater detail what triggered OCYS's involvement in the family's affairs, and further described Burt's role in managing Sharon's medical condition:
[Burt] stated that [Sharon] was hospitalized for her diabetes and then child protection became involved. [Burt] maintains that he is the one who takes care of [Sharon] and ensures that she takes her medication but for some reason her sugar level was really high. [Burt] stated that [Sharon] was hospitalized in Lehigh Valley Hospital.
[Burt] then disclosed to worker that he and [Nancy] are divorced but they still live
together and he is caring for the children; at least for the time being.
As the Division records show, Burt answered Lynch-Mattioli's queries regarding Sharon's well-being. The record shows Burt served as the stay-at-home parent for all five children, while Nancy worked in New York City at least five days per week. A nanny named Maria Villate also resided with the family to help Burt care for the children. Lynch-Mattioli described her as "an elderly lady" who was working in the kitchen at the time she visited the home. Burt told the caseworker that Villate was a Haitian national who does not speak English. According to Burt, the nanny was not responsible for monitoring Sharon's sugar level or administering insulin.
In order to determine the services the Division may be able to provide Sharon's caregivers, Lynch-Mattioli first had to ascertain the insurance coverage available under Nancy's work-related health insurance. In the meantime, Lynch-Mattioli contacted the Warren County Health Department and arranged for a nurse to contact Nancy directly. Nancy told Lynch-Mattioli that she took online classes to complete her college degree and was currently working in Manhattan for a health insurance company. Nancy also told her that both she and Burt were properly trained to care for Sharon's medical needs.
According to Nancy, Sharon was first diagnosed with Type 1 diabetes in April 2011. At this time, Sharon displayed all of the symptoms typically associated with the condition, such as frequent urination and accidental bedwetting. When the family lived in Pennsylvania, Sharon was treated by Dr. Laurissa Kashmer, an endocrinologist. Nancy was at work when Sharon was hospitalized in April 2011. Burt called Nancy at work to tell her that Sharon did not seem well and that he had decided to take her to the hospital. Sharon was admitted to the pediatric intensive care unit (hereinafter "PICU"), where she remained for several days.
Dr. Kashmer expressed a willingness to continue treating Sharon after her family relocated to New Jersey.
Division records show that no adults properly monitored Sharon's diabetic needs. Despite her young age, Nancy told caseworker Lynch-Mattioli that Sharon self-administered her insulin injections and kept track of her sugar-levels. Keeping track of a diabetic child's sugar levels is crucially important because an appropriate dosage of insulin directly depends upon an accurately maintained log. Nancy also admitted that Sharon regularly brought candy and soft drinks to school. When Lynch-Mattioli visited Sharon on August 19, 2013, Sharon told her that she "was taught how to [administer insulin injections], so she mostly does it by herself." In addition, the family's nanny was the only adult available to supervise Sharon when Nancy and Burt were both away from the home; it is undisputed that the nanny was not trained to monitor Sharon's diabetic symptoms or supervise her treatment regimen.
In a letter dated August 20, 2013, under the letterhead of Lehigh Valley Health Network, Pediatric Endocrinology, Dr. Kashmer described Sharon's treatment history. Dr. Kashmer noted that while the child resided with her biological mother and stepfather, "her step-father has reportedly been supervising [Sharon] and [her] five siblings throughout the week . . . while her mother works in New York City." By this time, Sharon had been hospitalized twice "due to severe hyperglycemia and ketoacidosis, which resulted from poor diabetes compliance and management." (emphasis added). Dr. Kashmer stated that Sharon was also hospitalized on November 12, 2012, and June 13, 2013.
"Diabetic ketoacidosis is a serious complication of diabetes that occurs when your body produces high levels of blood acids called ketones. The condition develops when your body can't produce enough insulin. Insulin normally plays a key role in helping sugar (glucose) -- a major source of energy for your muscles and other tissues -- enter your cells. Without enough insulin, your body begins to break down fat as fuel. This process produces a buildup of acids in the bloodstream called ketones, eventually leading to diabetic ketoacidosis if untreated." Mayo Clinic Staff, Diseases and Conditions: Diabetic Ketoacidosis, MAYO CLINIC (Aug. 21, 2015), http://www.mayoclinic.org/diseases-conditions/diabetic-ketoacidosis/basics/definition/con-20026470. --------
Dr. Kashmer made clear in the August 20, 2013 letter that a failure to properly monitor and supervise Sharon's diabetic condition led to the circumstances requiring her hospitalization: "Due to these facts, it was recently recommended that [Sharon] be removed from her home due to chronic medical neglect." (emphasis added).
On September 26, 2013, the school nurse at Sharon's middle school contacted the Division to report Sharon's alarmingly high sugar levels. The nurse stated that for two days during the school week, Sharon had "high blood sugar readings and I was unable to reach [her] [m]om to notify her of my concerns." The nurse had "sent two letters requesting supplies," but had only received some of the items she requested. In the meantime, the school had been "using an extra glucometer . . . but would ideally prefer that [Sharon] keep a glucometer here of her own."
Of particular concern given the child's medical condition, the nurse emphasized that Sharon needed to have a "physical exam, [which] is a requirement for entry into the school district." The physical examination should have been submitted within thirty days of Sharon's admission. The nurse concluded her correspondence as follows: "I have had the opportunity to speak with [Sharon's] [m]om once or twice and understand that she is only home on the weekends, while working in NYC during the week. She is aware of my request for supplies, etc. Thank you for any assistance you can provide."
Division records show that Sharon was left on her own to maintain a sugar-level log and self-administer her own insulin injections. Burt and the family's nanny were the only adults in the home on a regular basis. Despite his decision to serve as Sharon's stepfather, Burt relied on the medically-untrained nanny to oversee Sharon's diabetic needs. Faced with this chaotic and medically dangerous environment, on October 3, 2013, the Division filed a complaint in the Family Part to take custody of Sharon. The court granted the Division's application and the child was placed in a resource home, where she remains to this date.
On April 30, 2014, the Family Part conducted a fact-finding hearing as required under N.J.S.A. 9:6-8.44. At the hearing, caseworker Lynch-Mattioli described the circumstances which prompted the Division to seek judicial intervention. The court also heard testimony from the school nurse. The Law Guardian called Dr. Kashmer as Sharon's treating physician. She described Sharon's treatment history and recounted her inability to reach Nancy to discuss Sharon's elevated sugar levels. Dr. Kashmer explained that uncontrolled Type 1 diabetes leads to diabetic ketoacidosis, "a potentially life-threatening condition [that occurs] when diabetes is either unrecognized or not properly treated." Diabetic ketoacidosis "can occur with intercurrent illness or with poor adherence to medical care." When asked to elaborate on the standard of treatment applied to children with Type 1 diabetes, Dr. Kashmer explained:
[W]e recommend that children with Type 1 diabetes, such as [Sharon] has, are to be seen in the office approximately every three to four months for ongoing monitoring and to continue the education required for this fairly life-encompassing, all-encompassing chronic management disease. She presented to the office on those two occasions . . . and was found to have constituently poor blood sugar control, meaning hypoglycemia chronically, with information that was not consistent with her diagnosis.
So we ask our families to bring in blood sugars so that we can help adjust their insulin and help bring them closer to the target blood sugar, which is more associated with health. She did not have accurate blood sugars and had high glucose levels and was also experiencing a failure to grow appropriately for a child of her age.
And so those things combined, together with ketones in the urine, made us suspicious for chronically poorly controlled blood sugar and ketoacidosis.
Ultimately, Dr. Kashmer concluded that Nancy and Burt had submitted false records of Sharon's sugar levels. Despite hemoglobin analyses that indicated Sharon had dangerously high sugar levels of 300 and 500, as compared with normal levels of 90 to 150, Nancy submitted reports that indicated normal sugar levels. When Sharon was hospitalized in June 2013, the child's insulin had to be significantly increased over several days to stabilize her condition.
II
Based on the record developed at the fact finding hearing, the judge found, by a preponderance of the evidence, that Burt voluntarily assumed responsibility for the care of this medically fragile child. The judge found Burt viewed and represented Sharon to the public as his stepdaughter:
The [c]ourt finds that [Burt] is certainly a stepparent and that he had assumed responsibility for the care, custody, and control of [Sharon] by taking her to numerous medical appointments, by receiving the education for the diabetes management, for living in the home, certainly in August and prior to sometime in September 18th, in which he was at the home Monday through Friday with [Sharon] and his other children. Being, basically, the sole caretaker, although there was a nanny there to assist, but certainly . . . the biological mother, was not [in the] home Monday through Friday.
So the court does find that [Burt] . . . fits the definition of parent or guardian in accordance with the statute.
The judge also found that Burt abused and neglected Sharon by failing to monitor her serious medical condition and failing to administer insulin injections after confirming the correct dosage required under the circumstances. Because Burt knowingly exposed Sharon to life-threatening conditions when he failed to keep accurate records of her sugar levels, the judge further found that Burt acted in a wantonly and grossly negligent manner.
The principal purpose "animating Title Nine 'is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (quoting N.J.S.A. 9:6-8.8). The Division pursues a case under Title Nine not to punish an unfit parent, but to protect a child from abuse and neglect. Title Nine defines an "abused or neglected child," in pertinent part, as:
a child less than 18 years of age . . . 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 . . . to exercise a minimum degree of care . . . [by not] supplying the child with adequate . . . medical . . . care though financially able to do so . . . .
[N.J.S.A. 9:6-8.21(c)(4)(a).]
Furthermore, "[t]he analysis in an abuse or neglect case should 'focus on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger.'" N.J. Div. of Child Prot. & Permanency v. K.M., 444 N.J. Super. 325, 331 (App. Div.), certif. denied, ___ N.J. ___ (2016), (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 182 (1999)).
The evidence presented by the Division at the fact-finding hearing was not disputed. There is no question that Burt assumed the role of Sharon's "guardian," which includes "any person, who has assumed responsibility for the care, custody, or control of a child." N.J.S.A. 9:6-8.21(a). The evidence is also undisputed that Burt's failure to monitor Sharon's sugar levels and thereafter inject her with the appropriate dosage of insulin placed Sharon in grave danger. Dr. Kashmer's testimony to this effect is unrebutted and we therefore need not belabor this point. The Family Part's findings of abuse and neglect are well-supported by the competent evidence in the record.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION