Defendants V.M. and B.G. appeal from the judgment of the Family Part which found that they abused and neglected their child, J.M.G. As a result of these findings, J.M.G. was placed in the custody and care of plaintiff Division of Youth and Family Services (DYFS). At a permanency hearing the judge approved DYFS's plan for termination of parental rights.
Where we part company is his discussion of whether V.M.'s refusal to consent to a cesarean section (c-section) can, as a matter of law, be considered an element of abuse and neglect. On the record before us, we do not agree that the issue need be decided.
Defendants V.M. and B.G. are the biological parents of J.M.G., born on April 16, 2006. During her hospitalization in anticipation of J.M.G.'s delivery, V.M. demonstrated combative and erratic behavior including a refusal to consent to a cesarean section (c-section) 1
After the birth of the child, plaintiff Division of Youth and Family Services (DYFS) investigated. It learned of V.M.'s refusal to consent to the c-section and discovered that V.M. had been under psychiatric care for twelve years prior to J.M.G.'s birth. Moreover, V.M. was not forthcoming about her treatment or diagnosis. B.G. also refused to cooperate with DYFS's efforts to obtain information.
DYFS commenced a Title 9 proceeding pursuant to the Abandonment, Abuse, Cruelty and Neglect Act (the Act), N.J.S.A. 9:6-8.21 to -8.106, and placed J.M.G. in its custody. At the fact-finding hearing, the trial judge found that J.M.G. was an abused and neglected child due in part to her parents' failure to cooperate with medical personnel at the time of her birth. V.M.'s refusal to consent to a c-section factored heavily into this decision. Later, at a permanency hearing, the judge approved DYFS's plan for termination of parental rights and foster family adoption.
These are the relevant facts adduced at the trial. On April 16, 2006, V.M. and B.G., who have been married since 1995, went to Saint Barnabas Hospital after V.M., pregnant with her first child, experienced contractions. V.M. presented as a forty-two-year-old woman who was thirty-five weeks pregnant and in labor.
V.M., who is college educated but has not been gainfully employed since a workplace accident in 1993, consented to the administration of intravenous fluids, antibiotics, oxygen, fetal heart rate monitoring, an episiotomy 3 and an epidural anesthetic. She refused to consent to any other invasive treatment, however, including a c-section or fetal scalp stimulation. Hospital personnel explained the potentially dire consequences of not allowing a c-section in the event of fetal distress, but V.M. remained adamant in her refusal.
When Dr. Mansuria stressed the need for V.M. to consent to a c-section, V.M. stated that she understood the risks, but she did not want the procedure. Dr. Kurani then made a critical finding. Although he acknowledged that V.M. was very anxious, Dr. Kurani concluded that V.M. was not psychotic and had the capacity for informed consent with regard to the c-section. At no time did anyone seek judicial intervention or the appointment of a special medical guardian.
Despite being slightly premature, J.M.G. was in good medical condition upon her vaginal delivery.
A social worker at Saint Barnabas Hospital contacted DYFS on April 18, 2006, to report concerns over releasing J.M.G. to her parents' care.
Frommer informed V.M. and B.G. that once J.M.G. was medically cleared for discharge, she would not be going home with them. V.M. became upset, started yelling and called the police.
J.M.G. was discharged from the hospital on April 24, 2006, and placed in foster care.
After the judge reviewed the medical records of V.M.'s erratic behavior, he commented that V.M. appeared to care about having a healthy baby; nevertheless, he determined that she was “negligent” in not acceding to the doctors' requests and found that J.M.G. was an abused or neglected child under N.J.S.A. 9:6-8.21(c)(4).
At the March 19, 2007 permanency hearing, J.M.G.'s foster mother offered that V.M. and B.G. visited the child once every two weeks. She noted that they always brought shopping bags full of supplies for the baby, and they always listened to the foster mother and followed her suggestions. She opined that they would be wonderful parents
I now address the significant issue raised by the unique facts of this case-whether V.M.'s refusal to consent to the c-section may be considered in determining the issue of abuse and neglect. The positions of the parties are simply stated. V.M. asserts that she had a fundamental right to refuse medical treatment during pregnancy, even at the risk of death to herself or the fetus. The law guardian, on behalf of the child and relying on New Jersey Division of Youth and Family Services v. L.V., 382 N.J.Super. 582, 889 A.2d 1153 (Ch.Div.2005), contends that a finding of abuse and neglect can only be based on a child's experiences after birth. He further contends that V.M. had a constitutional right to control her own body and to avoid unwanted medical procedures..
There is no allegation that J.M.G. was actually harmed by her parents. Rather, the judge's finding was based solely on the imminent danger of harm presented by V.M.'s actions and mental condition.
The unique problem here is that much of V.M.'s erratic behavior occurred before J.M.G.'s birth, while V.M. was still pregnant. N.J.S.A. 9:6-8.21(b) defines “child” simply as “any child alleged to have been abused or neglected.” Nothing in the statute or the attendant legislative history suggests that the Legislature intended that the provisions of the Act should apply to a fetus.9
The decision to undergo an invasive procedure such as a c-section belongs uniquely to the prospective mother after consultation with her physicians. To allow such a decision to factor into potential charges of abuse or neglect requires a prospective mother to subjugate her personal decision to a governmental agency's statutory interpretation creating a scenario that was neither contemplated nor incorporated within the four corners of the relevant statutory language. Her decision on matters as critical as this invasive procedure must be made without interference or threat. V.M.'s decision to forego a c-section had no place in these proceedings.