Dcpp v. A.O., in the Matter of I.O.

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NOT FOR PUBLICATION WITHOUT THE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 binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1100-23

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

A.O.,

Defendant-Appellant,

and

E.M.O.,

Defendant.

_________________________

IN THE MATTER OF

I.O., a minor.

_________________________

Submitted January 13, 2025 – Decided May 15, 2025

Before Judges Gummer, Berdote Byrne, and Jacobs.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Mercer County,

Docket No. FN-11-0070-22.

Jennifer N. Sellitti, Public Defender, attorney for

appellant (Laura M. Kalik, Designated Counsel, on the

briefs).

Matthew J. Platkin, Attorney General, attorney for

respondent (Janet Greenberg Cohen, Assistant Attorney

General, of counsel; Renee Greenberg, Deputy

Attorney General, on the brief).

Jennifer N. Sellitti, Public Defender, Law Guardian,

attorney for minor (Meredith Alexis Pollock, Deputy

Public Defender, of counsel; Noel C. Devlin, Assistant

Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant A.O. ("Alice") is the biological mother of I.O. ("Isaac"), a

three-year-old boy.1 Alice appeals from an order entered by the Family Part

finding she had abused or neglected Isaac within the meaning of N.J.S.A. 9:6-

8.21(c)(4), for failing to accept her son's diagnosis of sickle cell disease or

obtain required medical care and treatment for him. We affirm.

1

We use initials and pseudonyms to refer to the parties and their family

members to protect their privacy and preserve the confidentiality of these

proceedings. R. 1:38-3(d)(12).

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I.

Sickle Cell Diagnosis and Treatment

Alice gave birth to Isaac in September 2021, after separating from Isaac's

father, E.O. ("Eddie"). Isaac's initial health screening indicated a possible

diagnosis of sickle cell disease. He was also treated for jaundice caused by high

levels of bilirubin.2 The hospital advised Alice of the potential sickle cell

diagnosis and referred Isaac to a specialist in pediatric hematology oncology.

Just days after Isaac's birth, Alice missed two appointments at a treatment center

to ensure that Isaac's bilirubin count was trending down. Because jaundice may

cause brain damage if left untreated, on October 5, 2021, the medical staff at the

treatment center contacted the Division of Child Protection and Permanency (the

Division) leading to an initial report of possible neglect.

The Division conducted an interview with Alice and learned she did not

want to take Isaac to the jaundice follow-up appointment because the facility

was "out of network." Instead, she had made an appointment with another

provider. The Division reported that the "pediatric collateral received on

2

Bilirubin is "a reddish-yellow bile pigment produced during the breakdown of

hemoglobin in red blood cells. It is a normal byproduct that the liver processes,

but excessive bilirubin buildup in the blood can lead to jaundice, a yellowing of

the skin and eyes." Merriam-Webster's Collegiate Dictionary 121 (11th ed.

2020).

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3

10/14/2021 indicate[d] [the] child was seen for a recheck/sick visit. No concerns

indicated." The Division concluded the report of neglect was unfounded "as

there is not a preponderance of the evidence [Isaac] was neglected as defined

and the evidence indicates the child was not harmed."

In November 2021, Alice brought Isaac to see a recommended doctor at

the Rutgers Cancer Institute of New Jersey (CINJ), where the doctor confirmed

the sickle cell diagnosis. He prescribed a course of penicillin.

Pursuant to a treatment plan, Alice brought Isaac to see the doctor again

on December 21, 2021. In his progress notes from that visit, the doctor stated

he had telephoned Alice to advise her that he had confirmed Isaac's diagnosis of

the sickle cell disease, but at the December in-person appointment she claimed

to have no memory of that conversation. The doctor later testified that Alice

did not accept the medical diagnosis, describing her as "very disbelieving" as

she "claimed it was impossible that the child had sickle cell disease" because

she was not a carrier of the sickle cell gene trait. The doctor also testified that

Alice disclosed to him she had not administered the previously prescribed

penicillin to Isaac because no one told her the prescription was ready for pickup.

In April 2022, the Division was contacted by medical staff at CINJ, who

reported that Alice had missed four appointments scheduled to take place on

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various dates in January, March, and April of 2022. CINJ staff also reported

that Alice had been unreachable for over five weeks by phone. A Division

caseworker investigated and reported that Alice had "stated that her son didn't

have sickle cell and didn't need to take medications or see any specialis t." The

caseworker further reported that Alice denied she had any mental health issues.

On April 27, 2022, the caseworker spoke with Isaac's maternal

grandmother, who advised the caseworker she understood the severity of Isaac's

condition and assured her that Isaac would be brought to CINJ for his next

scheduled appointment. At Isaac's May 3, 2022 appointment at CINJ, Alice

informed the doctor she would not be returning with Isaac because he did not

have sickle cell disease, nor would she be administering any medication. The

doctor described Alice as "argumentative" and "uncooperative" during the

appointment. He testified that Alice did not engage with medical staff to learn

how to test Isaac's spleen for distress. In addition, Isaac's blood count had

worsened, and he was prescribed a second medication, hydroxyurea. A follow-

up appointment was scheduled for June 7, 2022.

The caseworker and a Division nurse visited Alice and Isaac twice in May

2022. Alice continued to deny the diagnosis and refuse treatment for Isaac.

Alice was unable to confirm when Isaac had last visited the pediatrician and

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5

acknowledged Isaac was behind on his immunizations. Although Isaac's

grandmother had picked up the penicillin prescription from the pharmacy, the

caseworker questioned whether it was being given to Isaac because Alice could

not articulate how it was being administered.

On May 24, 2022, the Division confirmed with CINJ medical staff that

Isaac was last seen on February 24, 2022, and had missed a scheduled March

appointment, with no further appointments scheduled. Isaac's immunizations

were also not up to date. His doctor testified the failure to keep Isaac's

immunizations up to date was problematic because Isaac had a compromised

immune system. The doctor also testified that children with sickle cell disease

receive additional vaccinations and operate on an accelerated vaccination

schedule due to their vulnerability.

A Division nurse and caseworker met with Alice and Isaac on May 24,

2022. They found Alice still had not accepted the sickle cell diagnosis. The

caseworker reported that Alice had stated "bloodwork will show . . . her son

does not have it . . . things will change, and she doesn't believe that her child

has the disease . . . She kept saying, 'My faith will not allow him to have it.'"

The nurse and caseworker were concerned that Isaac was not being given his

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medication. The doctor testified that without "penicillin, there's a very high risk

of death secondary to sepsis."

Alice missed Isaac's June 7, 2022 appointment at CINJ. On June 16, 2022,

the Division removed Isaac from Alice's home pursuant to an emergency Dodd

order.3 The caseworker who had participated in the removal described Isaac as

being "very . . . very pale, his skin was kind of grayish in tone. He was kind of

like a rag doll. He was very limp, wasn't eating."

Isaac was placed in an unrelated resource home. During his first night at

the resource home, the resource parents called the caseworker concerned about

Isaac's condition. The caseworker testified "[Isaac] was hard to wake up when

he was placed at the resource home . . . . Sleeping for extended periods of time

. . . and then at that point we directed the resource parent to take the child to the

emergency room."

The resource parents took Isaac to the hospital where they were advised

he needed an immediate blood transfusion. Even after a physician from the

hospital spoke with Alice about the urgency and importance of the blood

transfusion, she refused to give consent and responded, "[my] child doesn't need

3

A "Dodd removal" refers to the emergency removal of a child from the home

without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.

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7

a transfusion. I'm holding out hope that he will get better through . . . time."

The Division received emergency approval from the Office of the Attorney

General to consent to the transfusion on Isaac's behalf. Thereafter, the Division

reached an investigatory finding that medical neglect was "established" based

on Alice's failure to meet Isaac's medical needs. Subsequently, Isaac was moved

from the unrelated resource home and placed with his maternal uncle.

Fact-Finding and Disposition

The trial court held a fact-finding hearing on two days, October 27, 2022

and January 23, 2023 Alice attended on the first day but not the second day.

Alice’s counsel did not object to the continuation of the fact-finding hearing in

her absence.

The Division presented two witnesses, a Division caseworker and Issac's

treating physician, Dr. Richard Drachtman, who was qualified by the court as

an expert in the field of pediatric hematology. The doctor explained that

children with the sickle cell trait are at risk for sepsis and splenic sequestration,

which causes shock from bleeding in the spleen. Without treatment, a child with

manifested disease has an eighty percent chance of dying before age twenty and

of those, seventy-five percent die before they turn five due to causes such as

splenic sequestration, sepsis infection, and stroke. With treatment, "the vast

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majority of people survive into adulthood. It's way over 90 percent." He

testified that the failure to treat sickle cell disease is "catastrophic" and the

"uncontroverted data" supports that the failure to treat is "life-threatening."

Finally, the doctor testified that during his career, although he has

encountered parents who refused certain medical treatments or interventions for

religious reasons, no one had ever objected to a sickle cell diagnosis on the basis

of religion.

On March 22, 2023, the court placed its decision on the record and issued

an order in which it found Alice had abused or neglected Isaac in that she had

"refused to acknowledge and seek medical treatment for [his] sickle cell anemia,

which put [him] at a high risk of harm including death . . . ."

The court found the doctor's expert testimony "credible," "compelling,"

and "impactful." In particular, the court found uncontroverted the doctor's

testimony that without treatment, Isaac's sickle cell disease would have an eighty

percent chance of lethality before the age of twenty. Further, the court

recognized that while it had "receive[d] correspondence from counsel advising

that [Alice] was hospitalized," the evidence presented at the fact-finding hearing

showed that Alice "d[id] not have any . . . mental health issue[s]."

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The court found that Alice had missed a total of seven doctor's

appointments for Isaac and had fallen behind with Isaac's immunizations. The

court concluded that Alice "understood the severity of [Isaac's] diagnosis" and

"repeatedly failed to seek medical care and treatment related to sickle cell

disease," which placed him in danger of "severe medical complications, up to

including death." It found that Alice's lack of acceptance of the sickle cell

disease diagnosis and subsequent treatment plan put Isaac's health at imminent

risk.

In consideration of these findings, the court concluded:

So here, the uncontroverted evidence . . . demonstrates

[Alice] was aware of, educated on, and provided

resources to address her son's diagnosis of [s]ickle

[c]ell [d]isease, that she understood the severity of the

diagnosis but refused to acknowledge or accept it, she

. . . repeatedly failed to seek medical care and treatment

related to [s]ickle [c]ell [d]isease . . . and that the failure

to meet [Isaac's] medical needs (indiscernible)

continually . . . places him (indiscernible) severe

medical complications, up to including death.

And . . . these facts support my finding that [Isaac] is

an abused and neglected child . . . pursuant to N.J.S.A.

9:6-8.21, and requires continued jurisdiction and

protection of the [c]ourt.

On October 12, 2023, the court entered an order terminating the litigation

because Isaac was living with his father and "conditions have been remediated."

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10

The court directed that Eddie would continue to have physical custody of Isaac

and both parents would have legal custody.

In its decision, the court expressly found that Alice had not asserted a

religious exception to treatment for Isaac. The court remarked the only comment

that could be attributed to a religious objection to medical treatment was when

Alice reportedly told the caseworker that Isaac’s bloodwork would show her son

did not have sickle cell because, "[m]y faith will not allow him to have it." The

court concluded that neither that comment nor Alice's subsequent inaction

amounted to an objection to treatment on the basis of religious belief.

On appeal, Alice argues the trial court's finding that she willfully and

wantonly withheld medical care from her infant son was not supported by the

"preponderance of adequate, substantial, credible evidence." She asks this court

to reverse the trial court's order finding she had "abused and neglected" Isaac by

failing to seek medical care and treatment for his sickle cell disease for three

reasons: (1) she did not shun all medical intervention for Isaac and there was

no proof of imminent risk of harm; (2) Alice's decisions for Isaac's treatment

and care were influenced by disparate cultural norms that caused her to be

"initially resistant to adopting therapies that had become the norm in the

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treatment of sickle cell disease;" and (3) the court did not consider facts

surrounding Alice's mental health challenges.

Isaac's Law Guardian and the Division urge this court to affirm, citing the

unrebutted testimony of the Division's expert, Isaac's treating doctor.

Additionally, the Law Guardian and Division observe that Alice did not

establish she was suffering from an identified mental health condition or a

mental health condition that prevented her from caring for her newborn son.

Finally, both entities agree that Alice, for the first time on appeal, asks this court

to address the trial court's purportedly insufficient consideration of her religious

and cultural differences.

II.

An appellate court will uphold a trial judge's fact-findings if they are

"supported by adequate, substantial, and credible evidence." N.J. Div. of Youth

& Fam. Servs. v. R.G., 217 N.J. 527, 552 (2015); see also N.J. Div. of Youth &

Fam. Servs. v. S.I., 437 N.J. Super. 142, 152 (App. Div. 2014) ("Our standard

of review on appeal is narrow."). "This deferential standard of review is

appropriate because the Family Part judges are presumed to have a 'specialized

knowledge and experience in matters involving parental relationships and the

best interests of children.'" N.J. Div. of Child Prot. & Permanency v. S.K., 456

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N.J. Super. 245, 261 (App. Div. 2018) (quoting N.J. Div. of Youth & Fam.

Servs. v. F.M., 211 N.J. 420, 472 (2012)). However, "[w]here the issue to be

decided is an 'alleged error in the trial judge's evaluation of the underlying facts

and the implications to be drawn therefrom,'" the scope of review is broader.

N.J. Div. of Child Prot. & Permanency v. B.H., 460 N.J. Super. 212, 218 (App.

Div. 2019) (quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596,

605 (2007)). The court's legal conclusions are reviewed de novo. See ibid.

(citing N.J. Div. of Child Prot. & Permanency v. K.G., 445 N.J. Super. 324, 342

(App. Div. 2016)). A finding that a party was negligent is a legal conclusion

and therefore is not entitled to any deference. See N.J. Div. of Youth & Fam.

Servs. v. T.B., 207 N.J. 294, 308 (2011).

The purpose of Title Nine is clear: "to protect children 'who have had

serious injury inflicted upon them' and make sure they are 'immediately

safeguarded from further injury and possible death.'" Ibid. (quoting N.J.S.A.

9:6–8.8(a)). Although Title Nine provides for the civil prosecution of an abusive

or neglectful parent, its "'paramount concern' is the 'safety' of children and its

'primary consideration' is a child's 'best interests.'" Id. at 369 (quoting N.J.S.A.

9:6-8.8(a)). Intent to injure the child is irrelevant. See N.J. Div. of Youth &

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Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) ("[I]njuries caused accidentally

can form the basis for a finding of neglect.").

Procedural protections are nonetheless afforded to the parents. Id. at 369.

In particular, parents have the right to a fact-finding hearing, N.J.S.A. 9:6-

8.50(d), with the Division having to prove its case by the preponderance of

competent, material, and relevant evidence. N.J.S.A. 9:6-8.46(b). "The purpose

of a fact-finding hearing in an abuse or neglect proceeding is not to assign guilt

to a defendant, but to determine whether a child is an abused or neglected child

pursuant to N.J.S.A. 9:6-8.44." N.J. Div. of Youth & Fam. Servs. v. V.T., 423

N.J. Super. 320, 328 (App. Div. 2011) (citing N.J. Div. of Youth & Fam. Servs.

v. I.H.C., 415 N.J. Super. 551, 581-82 (App. Div. 2010)). Accordingly, the

Division bears the burden of proof to demonstrate by a preponderance of the

evidence at the fact-finding hearing that there was an act of abuse or neglect

committed by the parent charged with a legal duty of care for the minor child.

See N.J. Div. of Child Protection and Permancy v. J.R.-R., 248 N.J. 353, 376

(2021) (citing N.J.S.A. 9:6-8.46) ("The preponderance of the evidence standard

is the least difficult standard of proof to vault.").

N.J.S.A. 9:6-8.21(c)(4) defines an abused or neglected child as:

a child whose physical, mental, or emotional condition

has been impaired or is in imminent danger of

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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 though

offered financial or other reasonable means to do so

....

Recently, the Court has defined the standard for ascertaining whether a

child is in "imminent danger" as follows:

Per their plain meanings, "imminent" means

"threatening to occur immediately; dangerously

impending . . . [or] about to take place," Black's Law

Dictionary 898 (11th ed. 2019), and "danger" means

"peril; exposure to harm, loss, pain, or other negative

result," id. at 493. Further, Black's Law Dictionary

defines "imminently dangerous" as "reasonably certain

to place life and limb in peril." Id. at 494.

[N.J. Div. of Child. Prot. & Permanency v. B.P., 257

N.J. 361, 376 (2024).]

Pursuant to the second element of N.J.S.A. 9:6-8.21(c)(4), a parent is

expected to exercise "a minimum degree of care," which means, "conduct that

is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't

of Hum. Servs., Div. of Youth & Fam. Servs., 157 N.J. 161, 178 (1999); B.P.,

257 N.J. at 376 (holding that ordinary negligence is insufficient). In this regard,

both action and inaction by a parent can constitute abuse or neglect. See J.R.-

R., 248 N.J. at 370. "Conduct is considered willful or wanton if done with the

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knowledge that injury is likely to, or probably will, result." G.S., 157 N.J. at

178 (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)); see

Krauth v. Geller, 31 N.J. 270, 277 (1960) (holding that wantonness "is an

advanced degree of negligent misconduct"). This includes "actions taken with

reckless disregard for the consequences." G.S., 157 N.J. at 178. "Whether a

parent or guardian has failed to exercise a minimum degree of care is to be

analyzed in light of the dangers and risks associated with the situation." Id. at

181-82. Thus, the analysis is fact sensitive, considered on a case-by-case basis.

See B.P., 257 N.J. at 376; see also S.I., 437 N.J. Super. at 153.

At the outset, we note that while cultural and religious beliefs were

explored by the court at the Title Nine hearing, defenses asserted on appeal

related to these issues were not affirmatively raised below. Beyond this, we

share the Division and Law Guardian's assessment that defendant's religious and

cultural differences were undefined and unsupported by the record. Finally, we

have recognized that

[w]hen children are removed from parents under Title

9, the Division is charged with the duty to provide

appropriate medical care and treatment. We view this

duty as encompassing the authority to administer age-

appropriate immunizations over the religious

objections of the parents. To rule otherwise would

needlessly jeopardize the health and safety of children

in placement and undermine the discharge of the

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Division's duty to provide care, particularly when a

known risk of exposure to a disease preventable by

vaccination is present.

[N.J. Div. of Child Prot. & Permanency v. J.B., 459 N.J.

Super. 442, 457 (App. Div. 2019) (citations omitted).]

Alice principally relies on three medical neglect cases in support of her

appeal, all of which are factually inapposite and unpersuasive. The first, G.S.,

157 N.J. at 182-83, involved a professional health-care worker accidentally and

unwittingly overdosed a mentally-impaired child. The Court found she acted

"foolishly" and failed to exercise a minimum degree of care. The second,

P.W.R., 205 N.J. at 37-38, involved a parent who failed to take a healthy

teenager to the pediatrician for two years. The Court held that conduct did not

rise to the level of medical neglect. The third, S.I., 437 N.J. Super. at 154-57,

involved a grandparent who failed to send a suicidal child in her custody for a

psychiatric evaluation. But the Division failed to proffer any evidence of a

threat of imminent danger, and the trial court did not find abuse or neglect. None

of these matters are apposite as they do not rise to the level of inaction by a

parent coupled with the seriousness of the risk of death Isaac faced.

Alice also challenges the trial court's finding that Isaac was in "imminent"

danger. She points to a statement by his treating doctor that sickle cell infants

are typically protected from crisis for the first six to eight months of life.

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However, we note that Isaac was removed from Alice's care when he was nearly

nine months old, clearly outside of that protective time. She further minimizes

the seriousness of Isaac's immediate hospitalization and blood transfusion after

the Dodd removal by arguing that "visits to a hospital emergency room are fairly

routine and expected." While all parties agreed that a child stricken with sickle

cell disease inevitably will visit the hospital for care from time to time, Alice

presented no explanation for why Isaac needed significant emergency medical

treatment only hours after being removed from her care. His treating physician

testified about the life-threatening dangers Isaac, as a child with sickle cell

disease, faced without treatment and immunization. The court's finding that

Isaac's health was placed in imminent danger of becoming impaired through

Alice's inaction was supported by substantial credible evidence in the record.

Last, Alice's hospitalization for mental health treatment was not revealed

until the disposition hearing, two months following the fact-finding hearing. As

noted by the court, there was no evidence in the record that established or

identified Alice's compromised mental health condition. Absent any such

evidence, the court did not err in not considering facts surrounding Alice's

mental health challenges.

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In summary, there was ample evidence in the record on which the court

based its factual findings. The trial court's conclusion that Alice abused or

neglected Isaac is supported by competent, credible evidence and is in accord

with the controlling legal principles.

Plaintiff's remaining arguments lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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