Posted by Eugene Volokh:
Refusal to Consent to Caesarean Section as Neglect of the Newborn Child?
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247782973
From today's very interesting decision in [1]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 [2]the full opinion.
References
1. http://www.judiciary.state.nj.us/opinions/a4627-06.pdf
2. http://www.judiciary.state.nj.us/opinions/a4627-06.pdf
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