Refusal to Consent to Caesarean Section as Neglect of the Child?

From today’s very interesting decision in New Jersey Div. of Youth & Family Servs. v. V.M. (N.J. Super. Ct. App. Div.):

Defendants V.M. [the mother] and B.G. [the father] appeal from the judgment … 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….

We agree that the judge’s findings as to V.M. were supported by the evidence adduced at the hearing, but … we disagree as to his findings as they relate to B.G…. [On the record before us, we do not think that] 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 … need be decided.

[T]he independent evidence presented, irrespective of the evidence concerning V.M.’s resistance to the c-section, amply supported the judge’s ultimate finding as to V.M., and we affirm as to her. As to B.G., we reverse for the reasons set forth in the concurring opinion.

Carchman, P.J, concurring.

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). Despite the medical opinion that the fetus demonstrated signs of distress and that the procedure was necessary to avoid imminent danger to the fetus, the child was born by vaginal delivery without incident.

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.

On appeal, V.M. and B.G., among other arguments, assert that the judge erred in considering in his findings that they abused and neglected J.M.G. based on decisions that V.M. made concerning medical treatment, specifically, her refusal to consent to a c-section. At trial, DYFS asserted that V.M.’s refusal to consent to a c-section was a relevant factor in expressing abuse and neglect….

My majority colleagues conclude that irrespective of whether or not V.M. consented to the c-section, there was sufficient credible evidence to support a finding of abuse and neglect as to V.M. The majority therefore eschews any discussion of the issue of c-section.

I concur in the result reached as to both V.M. and B.G. I am of the view that … [the c-section] issue remains extant and requires a level of judicial scrutiny. Consideration of V.M.’s refusal to submit to a c-section, in my view, is improper and beyond the legislative scope of the child-protective statutes. For this reason, I concur….

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….

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.

However, I agree that there was sufficient additional evidence to support the judge’s finding that V.M. placed J.M.G. in imminent danger from April 16 to April 20, 2006. As the hospital records reflect, V.M. was “combative,” “uncooperative,” “erratic,” “noncompliant,” “irrational” and “inappropriate.” She ordered the attending obstetrician to leave the room, did not allow the obstetrician to perform an ultrasound examination, told a nurse that “no one [was] going to touch [her] baby,” refused to continuously wear the face mask that provided her with oxygen and would not remain still in order to allow for fetal heart monitoring and the administering of an epidural. Incredibly, she also called the Livingston Police to report that she was being abused and denied treatment when it was her “erratic” and “combative” behavior that was preventing the hospital staff from providing treatment….

For more, see the full opinion.