                             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                        NOT FOR PUBLICATION WITHOUT THE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-4375-15T3



NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

S.A.,

        Defendant-Appellant,

and

A.N.,

     Defendant.
__________________________________

IN THE MATTER OF A.N. and E.N.,

     Minors.
__________________________________

              Argued May 24, 2017 – Decided July 13, 2017

              Before Judges Manahan and Lisa.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County,
              Docket No. FN-07-136-15.
           Janet A. Allegro, Designated Counsel, argued
           the cause for appellant (Joseph E. Krakora,
           Public Defender, attorney; Ms. Allegro, on the
           brief).

           Joseph Maccarone, Deputy Attorney General,
           argued the cause for respondent (Christopher
           S. Porrino, Attorney General, attorney; Andrea
           M. Silkowitz, Assistant Attorney General, of
           counsel; Mr. Maccarone, on the brief).

           Melissa R. Vance, Assistant Deputy Public
           Defender, argued the cause for minors (Joseph
           E. Krakora, Public Defender, Law Guardian,
           attorney; Ms. Vance, on the brief).

PER CURIAM

      S.A. appeals from the Family Part's December 9, 2014 order,

following a fact-finding hearing, determining that she medically

neglected her daughter, E.N., who was born on August 10, 2000.

She   argues   that   the   court's       finding   is   not   supported     by

substantial,   competent,    credible       evidence     necessary   for   the

required finding of gross negligence, the court's statement of

reasons was inadequate, and the court's finding of actual harm was

speculative and unsupported by the record.           The Division of Child

Protection and Permanency (Division) and the Law Guardian urge us

to reject these arguments.       We agree with the Division and the

Law Guardian and affirm.

      S.A. and her husband, A.N., Sr., have two daughters, E.N. and

her older sister by three years, A.N.           At all times relevant to



                                      2                               A-4375-15T3
this proceeding, A.N., Sr. was incarcerated.1           Although E.N.'s

older sister was initially included in the complaint filed by the

Division, the litigation was subsequently terminated with respect

to her.    She has remained a member of the household at all times.

        This case revolves entirely around the medical care provided

by S.A. for E.N., who was diagnosed with autism at a very young

age.2     During her early years, E.N. functioned well and did not

exhibit any significant behavioral problems, although she did not

have speech.     Beginning at about age ten, following the death of

E.N.'s    maternal   grandfather,   she   began   exhibiting   aggressive

behavior, which progressively became worse and more frequent, and

was directed primarily at her mother.

        Beginning in the early part of 2012, when E.N. was eleven

years old, a pattern developed regarding S.A's management of E.N.'s

behavior.    When severe episodes occurred, which were unmanageable

by her mother, S.A. would take E.N. to an emergency room.             E.N.



1
   A.N., Sr. is a party to these proceedings. Counsel was assigned
to represent him. During the fact-finding hearing, his counsel
was present and A.N., Sr. participated from prison by telephone.
No findings were made with respect to him, and he is not involved
in this appeal.
2
    After S.A. became involved with the Division, she reported at
one point that E.N. was diagnosed when she was two-and-one-half
years old; at another time she reported the diagnosis was made at
age five; in her testimony at the fact-finding hearing, she said
the diagnosis occurred when E.N. was four or five years old.

                                    3                             A-4375-15T3
would typically spend an extended period of time there, perhaps

twelve   to    twenty-four   hours.        She   would   be    restrained   and

medicated.      The medical personnel would then discharge her with

instructions to S.A. to follow-up with a primary care physician,

more particularly a psychiatrist, who could prescribe appropriate

medication to be taken on a long-term basis.                  Such a physician

would also continue to see E.N. on a regular basis, evaluating

her, and making any appropriate modifications in the medications

prescribed or their dosages, to manage her autism and achieve the

best possible results in maintaining her stability.

     The first known treatment for E.N.'s autism was at Newark

Beth Israel Medical Center in September 2011.            On March 25, 2012,

S.A. brought E.N. to the emergency room at the Rutgers University

of Medicine and Dentistry Hospital of New Jersey (University

Hospital), when she was having a severe episode of agitated and

combative behavior.       This followed an emergency room visit the

previous day at Clara Maass Hospital.

     Over the next two years, E.N. was brought to the University

Hospital      emergency   room   on   eleven     additional     occasions   for

agitated and combative behavior arising from her autism condition.3

The Division received its first referral in this matter on June


3
     E.N. was also brought to that emergency room on two other
occasions for unrelated medical issues.

                                       4                               A-4375-15T3
11, 2013, from Perform Care.   The referent reported that S.A. had

taken E.N. to the emergency room on multiple occasions due to her

uncontrollable bouts of aggression.    The referent also indicated

that S.A. was not administering medication prescribed to E.N.

Further, although it had been recommended by various clinicians

that S.A. submit an application for services to the Division of

Developmental Disabilities (DDD), she had not done so.

     A Division worker met with S.A. and emphasized the importance

of utilizing all medical services available to E.N.      Over the

ensuing weeks, the Division continued to check in with S.A. to

assure that she and E.N. would attend a scheduled appointment with

University Hospital's behavioral healthcare's crisis clinic.    The

Division worker also assisted S.A. in completing the necessary

paperwork for DDD services.     On August 8, 2013, the Division

determined E.N. was safe under S.A.'s care.

     A second referral was made by E.N.'s school on November 21,

2013, regarding her poor attendance.    The Division investigated

and concluded that the allegation of educational neglect was

unfounded.   During these contacts, the Division worker took the

DDD application packet from S.A. and sent it to DDD.   Apparently,

DDD never received the application at that time.

     A third referral was made on February 7, 2014, by Dr. Tolga

Taneli, the Director of the Child and Adolescent Psychiatric

                                 5                         A-4375-15T3
Division, Department of Psychiatry, at University Hospital, and

Lolita Patel, a crisis clinician at University Hospital.            They

reported that S.A. and E.N. frequently visited the emergency room,

but S.A. was apparently not following up with any of the hospital's

recommendations.   It was also apparent at that time that the DDD

application had not been received by the appropriate party.          The

Division ultimately found the allegation of medical neglect to be

established, but not substantiated.     See N.J. Div. of Child Prot.

& Permanency v. V.E., 488 N.J. Super. 374, 388-89 (App. Div. 2017).

     The   Division   referral   that   evolved    into   the   present

litigation was made in the early morning hours of June 25, 2014,

by staff at the Clara Maass Medical Center.       It was reported that

S.A. brought E.N. to the emergency room because she was being

"violent and self-abusive."      Emergency room personnel wanted to

admit E.N. for seven days of in-patient care, but S.A. refused,

saying "the child has been admitted 3 times this year already and

it does not help her." The referent indicated that he was familiar

with S.A. and E.N. because they had come to the emergency room for

similar crisis situations in the past few years.

     A Division worker interviewed S.A.     When asked whether E.N.

was taking any medications, S.A. indicated that E.N. had been

admitted at the Trinitas Regional Medical Center for several months

in early 2014 and had been prescribed Depakote and Seroquel upon

                                  6                             A-4375-15T3
discharge.    However, S.A. stated that she stopped giving E.N.

these medications because she believed they were ineffective and

were   causing   side   effects   that   made   E.N.   more   aggressive.

Importantly, S.A. acknowledged that she did not consult with any

medical personnel prior to stopping these medications for E.N.

       Because S.A. would not consent to placing E.N. in in-patient

care, a "hospital hold" was invoked.      Jesus Carhauchin, a Division

worker who had been involved in one of the prior referrals, was

contacted and assumed the investigation for the Division.              The

following day, E.N. was transferred from Clara Maass to Bergen

Regional Medical Center.     She was discharged from that facility

on July 2, 2014, but returned to the emergency room with S.A.

later that afternoon due to another onset of violent behavior.

       E.N. was referred to Hoboken Medical Center the next day and

was transferred there when a bed became available on July 7.             On

July 10, Carhauchin met with Partnership for Children of Essex

(PCE) to discuss future treatment for E.N.         At this meeting, it

was explained to S.A. that staff from University Hospital, Hoboken

Medical Center, Bergen Regional Medical Center, and Trinitas had

all recommended that E.N. receive a "Residential Facility Level

of Care."    S.A. declined to provide her consent, stating that she

needed additional time to consider it.



                                    7                             A-4375-15T3
       E.N. was discharged from Hoboken Medical Center on July 11,

but she became violent and agitated upon arriving home.       S.A. took

her to the University Hospital emergency room where she was treated

and returned home the same day.        Following yet another episode,

E.N. was taken to Trinitas Hospital emergency room on July 18, and

admitted there the next day.

       The June 25, 2014 allegation was ultimately substantiated by

the Division, which found that S.A. "[d]eprive[d] a child of

necessary care which either caused serious harm or created a

substantial risk of serious harm."       See N.J.A.C. 10:129-7.4(a)6.

In its report, the Division referred to Dr. Taneli's July 3, 2014

letter, which explained: "Having gotten to know [E.N.] and her

outpatient providers intimately over the past years, our child

[and] adolescent psychiatric team concludes that [E.N.] is in need

of residential care at this time, if any degree of stability is

to be attained."

       The Division also found that S.A. refused to consent to pursue

this level of care, and the only medical care E.N. had received

in the past three years was through her many emergency room visits

and hospital stays.     The Division determined that S.A. had not

been    properly   administering   the   medications   that   E.N.   was

prescribed.    The Division also emphasized how various services,

including PCE, Associates Mental Health Disability, Perform Care,

                                   8                            A-4375-15T3
and DDD were offered to S.A., but she was non-compliant with their

recommendations.    Having substantiated the referral, the Division

filed for care and supervision of E.N. and her sister on August

5, 2014.4

     Although we include in the sequence of events the fact that

S.A. resisted efforts to secure a residential placement for E.N.,

that was not the basis for the ultimate finding of medical neglect.

Indeed, S.A.'s reason for resisting was her continuing hope that

with additional home care services, she would be able to keep her

daughter, whom she loves, at home with her.           The basis for the

medical neglect finding was the long course of conduct, spanning

more than two years, during which S.A. repeatedly failed to follow

recommendations by medical providers that would have had the best

prospect for stabilizing E.N. on a long-term basis.

     Instead, E.N. took it upon herself to discontinue medications

without medical advice, and failed to establish a relationship

with a treating psychiatrist who could see E.N. on a regular basis

to assess her condition, monitor and adjust her medications as

necessary,   and   provide   such   other   medical   care   as   would    be

indicated.   This could only be achieved through an ongoing and


4
    On this same date, S.A. provided PCE with verbal consent to
begin securing an appropriate residential placement for E.N. E.N.
has ultimately been placed in the Bancroft Residential Facility.


                                    9                               A-4375-15T3
stable course of psychiatric care.                 However, S.A. persistently

failed      to     comply     with     this    advice       and    these   multiple

recommendations, opting for crisis management through emergency

room visits and emergency admissions. This provided only temporary

relief and temporary stabilization of E.N.'s condition.                     Without

the required follow-up, it was inevitable that the cycle would

recur, which it did over and over again.

       At   the    fact-finding      hearing,   the     Division     presented    the

testimony of Dr. Taneli and caseworker Carhauchin.                     The Division

also placed into evidence voluminous documentary materials.                      S.A.

testified in her own behalf, but presented no other witnesses.

       Dr. Taneli was qualified without objection as an expert in

the field of child and adolescent psychiatry.                     He had personally

seen E.N. on a number of her emergency room visits at University

Hospital, and he was familiar with the records of all of her other

visits there. Dr. Taneli noted that in six of the twelve emergency

room   visits       at    University    Hospital      for    aggressive    behavior

resulting         from     E.N.'s    autism,     in-patient         treatment     was

recommended.       On four of those occasions, it was accomplished with

S.A's consent.           On one occasion, a bed was not available.           On the

remaining occasion, S.A. refused.

       Throughout the course of these emergency room visits, the

common thread was the recommendation made to S.A. that she obtain

                                         10                                 A-4375-15T3
a stable primary care psychiatric physician for ongoing treatment.

Dr. Taneli explained that an emergency room is "not a place where

treatment can be effectively set up or completed." In an emergency

room, a "set of medicines that we end up using are agitation

medicines, sometimes injectable medicines or if she agrees by

mouth."   This will reduce agitation in the short term, but it is

not the kind of ongoing treatment that is required to achieve

optimum stability.   He explained the necessity for ongoing care

and medication as follows:

               Q.   What is your understanding of [S.A.]
          giving E.N. medication?

          A.   I think [S.A]'s relationship or work with
          the medicines was mostly ambivalent. That is,
          sometimes she was prepared to go through
          stretches of medicines.     I think sometimes
          they were helpful. Other times there was a
          good number of side effects, but in terms of
          arriving to the ER with an established
          provider or a stretch of care was missing.
          That is, throughout the many visits there
          wasn't, for example, one person who we would
          identify as the doctor who treats E.N.

               Q.   And why is that significant when
          you're talking about a child with autism?

          A.   Because it interrupted the medicine
          treatments. It created gaps in prescriptions
          where it would be -- there would be times of
          no medicine and it took away the ability to
          make judgments on benefits and side effects
          that would then lead to other trials if, for
          example,   treatments  failed  or   if  they
          succeeded, for the continuation of that
          treatment.

                               11                          A-4375-15T3
               . . . .

               Q.   And this inconsistency, what harm,
          if any, did that cause to the child?

          A.   It left her in -- in -- it left her with
          many visits for aggression that probably would
          have been reduced if there were stretches of
          well-being.

     Dr. Taneli testified that the record did not indicate that

E.N. was getting regular psychiatric care throughout the two-year

period during which she had presented at the emergency room on

twelve occasions for severely aggressive and agitated behavior

caused by her autism.    He stated:   "Some visits there had been

many months of no treatment and other visits there had been months

of treatment by some providers then by others."   But there had not

been a particular doctor that was following her on a consistent

basis.

     Referring to medical records, Dr. Taneli pointed out that

S.A. readily acknowledged on various occasions that she had stopped

giving E.N. prescribed medications.   Indeed, in her testimony at

the fact-finding hearing, S.A. acknowledged that she had no regular

primary care psychiatric physician for E.N. over the years.        In

her testimony, she could not remember what medications had been

prescribed from time to time, but she readily acknowledged that,




                               12                           A-4375-15T3
without medical advice, she often stopped giving those medications

to E.N.

     At the conclusion of the hearing, the judge rendered his

decision.    He began by acknowledging that in a case such as this

it is necessary "to look at the totality [of] the circumstances

as opposed to a particular finite point in time."       The beginning

point in the judge's assessment was "around 2010 or 2011."            He

elaborated as follows:

                 The child was out of control for a very,
            very long period of time and there was nothing
            done but -- except when there was an absolute
            total crisis bringing the child to the
            emergency room. That's not treatment. That's
            calming down a crisis.        That's . . .
            stabilizing the situation, but that's not
            treatment. That's not ongoing treatment that
            this child clearly needed.

                 This child had special needs.       I mean,
            you know, if the child was sick, you    wouldn't
            wait until the child was to the point   of dying
            and bring him to an emergency room.     You need
            to get continuing treatment.

                 This child had autism.     She was having
            problems in school. She was out of control
            at school. She was out of control at home.
            And going to the emergency room every month
            is not the answer to getting this child
            consistent treatment. She clearly needed some
            type -- it seemed to me that she clearly needed
            medication and there was no consistent
            medication.

                 And if there were problems with the
            medication, there had to be follow-up with
            doctors. There had to be a doctor following

                                 13                            A-4375-15T3
her that she saw monthly. No one is going to
treat her with medication unless she saw a
doctor regularly, monthly for medication
monitoring.

     Nobody is going to give psychotropic
medication to anyone without seeing them at
least once a month and there wasn't that
consistency for this child to make sure she
was getting the appropriate meds to stabilize
her so that she could manage in school. Maybe
some of these hospitalizations and emergency
rooms wouldn't have been necessary.

     I find there's actual harm here.    This
child should have been getting regular
treatment as opposed to crisis treatment only
and that really wasn't enough.

     I mean it's very telling when it says
"Patient has not been on medications.    Was
taking Depakote and Seroquel. Dose unknown."
Mother didn't know how much since -- she's
been on it since April, because mom stopped
medication because of a new tremor. Whether
or not the tremor was related to medication,
there's no showing that she went to a doctor
to get off there.

     Mom stopped medication on her own because
she stated she did not notice any improvements
in her behavior.     But she didn't get any
recommendation from another doctor to change,
alter, increase, decrease, change a different
medication.

     I mean getting medication for a couple
of days or a week that the hospital gives you
when you go to a hospital, is not regular
psychiatric care.   This is not the kind of
treatment this child needed for years and
didn't get.

     And I'm sorry, but this -- you know, it
came to a head at that point where they said

                     14                          A-4375-15T3
          she needs to be immediately put in hospital,
          but you know, it isn't like this is a big
          surprise that there's problems. I mean I find
          that, you know, these issues and these
          problems -- and [S.A.] seems to be confusing
          the different dates. I mean I didn't find her
          a very good historian about what was going on
          or what took place or who was doing what.

     He concluded:

               I didn't find her testimony to be -- it
          was very cogent or helpful to the court in
          this matter and I do find this was a child
          that really needed more intensive [treatment]
          as recommended by the hospital.        It was
          recommended and she never got that kind of
          treatment that she needed and it created the
          situation that caused the instability.

               . . . .

               That's not the way to treat and stabilize
          a child. I don't find that appropriate. I
          do find that's medical neglect.

     Appellate courts "have a strictly limited standard of review

from the fact-findings of the Family Part judge."    N.J. Div. of

Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App.

Div. 2010).   "[A]ppellate courts 'defer to the factual findings

of the trial court because it has the opportunity to make first-

hand credibility judgments about the witnesses who appear on the

stand; it has a feel of the case that can never be realized by a

review of the cold record.'"   N.J. Div. of Youth & Family Servs.

v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of

Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover,

                               15                          A-4375-15T3
"[b]ecause    of    the     family   courts'   special   jurisdiction       and

expertise    in    family    matters,    appellate   courts   should    accord

deference to family court factfinding."              Cesare v. Cesare, 154

N.J. 394, 413 (1998).        "A trial court's interpretation of the law

and the legal consequences that flow from established facts are

not entitled to any special deference."               Manalapan Realty v.

Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

     As relevant here, Title 9 defines an "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 . . . to exercise a
            minimum degree of care . . . in supplying the
            child with adequate . . . medical or surgical
            care.

            [N.J.S.A. 9:6-8.21c(4)(a).]

     The standard in deciding whether a parent has failed to

exercise a minimum degree of care is one of gross negligence. G.S.

v. Dep't of Human Servs., 157 N.J. 161, 178-79 (1999).             Parental

conduct that is "inattentive or even negligent [does] not meet the

requisite standard of willful or wanton misconduct."             N.J. Dep't

of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168 (App.

Div. 2009).       A parent may fail to exercise a minimum degree of

care where he or she knows of the dangers inherent to a particular

situation.    N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J.

                                        16                             A-4375-15T3
Super. 320, 329-30 (App. Div. 2011) (citing G.S., supra, 157 N.J.

at 181-82).   This is so because the focus of Title Nine is not on

the "'culpability of parental conduct' but rather 'the protection

of children.'"   Dep't of Children & Families v. E.D-O., 223 N.J.

166, 178 (2015) (citing G.S., supra, 157 N.J. at 177).

     Courts must consider the totality of the circumstances.        N.J.

Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 39 (2011).

We consider whether the child has suffered actual harm and in the

alternative, we consider whether there is "some form of . . .

threatened harm to a child."        E.D.-O., supra, 223 N.J. at 181

(alteration in original) (citing N.J. Dep't of Youth & Family

Servs. v. A.L., 213 N.J. 1, 25 (2013)).

     We are satisfied from our review of the record that the

judge's findings are well supported by substantial, competent,

credible   evidence   in   the   record.   This   includes   voluminous

documentary materials, the uncontroverted expert testimony of Dr.

Taneli, and S.A's own testimony, in which she acknowledged the

very deficiencies which underpin the finding of medical neglect.

The record supports the conclusion that consistent primary care

psychiatric treatment was required, that emergency room physicians

repeatedly recommended to S.A. such a course of treatment, and

that S.A. knew or should have known that such a course of treatment

was medically necessary for E.N., but she deliberately failed to

                                   17                           A-4375-15T3
follow that course.   As a result, E.N. was actually harmed because

she could not achieve optimal stabilization of her condition

without consistent treatment and medication monitoring.

     Affirmed.




                                18                          A-4375-15T3
