DCPP VS. F.S., M.F. AND D.B. IN THE MATTER OF A.S., D.S., AND D.B.(FN-03-0116-16, BURLINGTON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
A-4618-15T1
| N.J. Super. Ct. App. Div. | Oct 5, 2017Background
- Division removed five children after an October 2015 report; workers observed children unclean, inadequately clothed, and with rotten teeth; Daniel (age 4) had especially severe dental decay.
- Division substantiated defendant F.S. for neglect and filed for custody; court returned two children to defendant under Division supervision and ordered dental exams for all children.
- Defendant testified she believed calcium deficiency caused decay, had previously taken Daniel to a dentist who recommended a pediatric dentist, but did not follow that referral because it was "far out of the way."
- After the court order, defendant took Daniel to a dentist and his front baby teeth were extracted; defendant admitted being told to brush the children’s teeth and her oldest child had required similar extractions earlier.
- Trial court found defendant’s explanations not credible and concluded she grossly neglected Daniel’s dental needs in violation of N.J.S.A. 9:6-8.21(c)(4)(a); this appeal challenges that finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant neglected child by failing to provide dental care | Division: rotten, missing teeth and failure to follow dental referral show gross neglect and actual harm | F.S.: lack of expert medical testimony; tooth decay alone insufficient to prove harm or imminent risk; she lacked intent | Held: Affirmed — visible severe decay and extractions constitute actual harm; failure to seek care meets "minimum degree of care" standard |
| Whether expert testimony was required to prove harm or risk | Division: lay evidence (photo, observations, removals) sufficient to show impairment | F.S.: A.L. requires expert when harm not apparent; here expert should have been presented | Held: Expert not required when harm (rotten/missing teeth) is apparent to ordinary observer; A.L. distinguished |
| Whether the court improperly shifted burden of proof to defendant | Division: court assessed credibility of defendant but relied on its evidence | F.S.: court impermissibly required defendant to disprove neglect | Held: No burden shift; court based decision on Division evidence and credibility findings |
| Whether the statutory "minimum degree of care" was met | Division: defendant had means/ability, knew consequences (oldest child had same issue), yet failed to act | F.S.: she took some dental steps and cited access issues | Held: Failure to obtain recommended care and allow teeth to decay amounted to gross/wanton negligence (failure to meet minimum degree of care) |
Key Cases Cited
- N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420 (2012) (standard of review: deference to Family Part factual findings supported by credible evidence)
- Cesare v. Cesare, 154 N.J. 394 (1998) (trial court expertise in family matters merits deference on factual matters)
- N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596 (2007) (no deference where findings are clearly mistaken)
- G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161 (1999) ("minimum degree of care" denotes gross or wanton negligence)
- N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1 (2013) (expert testimony may be required when harm is not apparent; distinguishable when harm is visible)
- N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17 (2011) (failure to provide care can constitute neglect, but facts showing no impairment may require different analysis)
- Campbell v. Hastings, 348 N.J. Super. 264 (App. Div. 2002) (expert testimony unnecessary when matters are within common understanding)