N.J. Div. of Child Prot. & Permanency v. J.B. (In re Ca.R.)

• Decision Date: 10 June 2019
• Docket Number: DOCKET NO. A-3019-18T3
• Citation: 459 N.J.Super. 442,212 A.3d 444
• Parties: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.B., Defendant-Appellant, and C.R., Defendant. In the Matter of Ca.R. and C.R., JR., Minors.
• Court: New Jersey Superior Court — Appellate Division

459 N.J.Super. 442
212 A.3d 444

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
J.B., Defendant-Appellant,
and
C.R., Defendant.

In the Matter of Ca.R. and C.R., JR., Minors.

DOCKET NO. A-3019-18T3

Superior Court of New Jersey, Appellate Division.

Argued May 21, 2019
Decided June 10, 2019

Michael C. Wroblewski, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Michael C. Wroblewski, on the brief).

Jennifer A. Lochel, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Joshua Paul Bohn, Deputy Attorney General, on the brief).

Caridad Diaz Argote-Freyre, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; Caridad Diaz Argote-Freyre and Nancy P. Fratz, Assistant Deputy Public Defender, of counsel and on the brief).

Before Judges Fisher, Geiger and Enright.

The opinion of the court was delivered by

GEIGER, J.A.D.

459 N.J.Super. 445

This case presents the unresolved issue of whether the Division of Child Protection and Permanency (the Division) can obtain court approval to vaccinate two minor children, who are in the Division's care, custody, and supervision due to the substantiated and admitted abuse and neglect of the parents, despite the parents' religious objection. Defendants J.B. (Mother)¹ and C.R. (Father) are the parents of Ca.R. (Daughter), born in December 2014, and C.R., Jr. (Son),² born in September 2017. Following a plenary hearing, the Family Part granted permission to the Division to vaccinate the children with age-appropriate immunizations

459 N.J.Super. 446

in consultation with

212 A.3d 447

Son's allergist. For the reasons that follow, we affirm.

I.

In September 2017, the Division received a referral reporting Mother gave birth to Son and expressing concerns over the family's living arrangements because the entire family was living in a single motel room and Mother stated there was no space for a crib for Son. The referent further reported Mother received no prenatal care while pregnant with Son. The referent also reported Mother and Father became combative when they were informed Son should stay in the hospital for monitoring for Group B Streptococcus (GBS) infection for at least forty-eight hours to observe the child for possible sepsis due to Mother's lack of prenatal care.³ Mother and Father alleged the hospital only wanted to keep Son to make more money.

Mother told Division workers it was not against the law to co-sleep and admitted Daughter, who was then two years and nine months old, never had a bed of her own because she always slept in the same bed as Mother and Father. Mother also stated she did not believe in vaccines. The Division workers provided Father with a voucher so he could obtain a bassinet for Son to sleep in and informed Mother and Father the Division would need to monitor the family's sleeping arrangements.

The next day, Father stated the family did not believe in immunizations and the hospital was not respecting their wishes. Mother told hospital staff Son did not need to be tested for syphilis or gonorrhea because Son was not sexually active and would not be for a while; she also told the staff Son did not need

459 N.J.Super. 447

the hepatitis B vaccine because Son was not an intravenous drug user. Mother refused other vaccines as well.

Mother reported both children slept in the same bed with her and Father. When Mother was advised it was dangerous to have Son, then less than three weeks old, sleeping in the same bed, Mother responded it was her choice. Division workers subsequently observed Mother leave Son and Daughter alone in the motel room with Father. They also observed only one bed in the room with a co-sleeper on top of the mattress. This led to a Safety Protection Plan prohibiting Father from unsupervised contact with Daughter and Son and requiring that Son and Daughter receive appropriate medical care and separate beds.

Father is a Megan's Law offender subject to community supervision for life (CSL), L. 1994, c. 130, § 2.⁴ N.J.A.C. 10A:71-6.11(a). As such, Father is prohibited from "initiating, establishing, or maintaining"

212 A.3d 448

or "attempting to initiate, establish, or maintain contact with any minor" and from "residing with any minor," which includes "[s]taying overnight at a location where a minor is present" without prior approval from the District parole Supervisor. N.J.A.C. 10A:71-6.11(c).

On October 10, 2017, the Division filed a complaint for the custody, care, and supervision of Son and Daughter pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The complaint alleged Father was living with the children and Mother was allowing Father to have unsupervised contact with them. The complaint

459 N.J.Super. 448

also alleged the children had not been immunized, the parents failed to provide any regular medical and dental care for the children, and they failed to provide safe sleeping arrangements for the children. The Division also sought permission to immunize Son and Daughter with age-appropriate vaccinations. The court granted the Division care, custody, and supervision of Daughter and Son, but denied its request to immunize the children without prejudice, directing that any issues involving vaccinations be brought by separate application. Son and Daughter were placed with resource parents who live in Ocean County, where they continue to reside. Mother and Father subsequently stipulated to the abuse and neglect of Son and Daughter.

The Division moved to compel age-appropriate immunizations for the children. In particular, the Division sought permission to administer the MMR vaccine to immunize the children against measles, mumps, and rubella. The Law Guardian joined in the Division's application to compel age-appropriate immunizations. The immunization issue was litigated throughout 2017 and 2018. The Family Part ultimately commenced an emergent hearing at the Law Guardian's request in December 2018, and conducted a plenary hearing on January 16, 2019.

The children's Board certified pediatrician, Stephen Shroyer, M.D., was admitted as an expert in pediatrics and opined that all children should receive age-appropriate vaccinations in accordance with the Academy of Pediatrics Committee on Immunization Practices. Dr. Shroyer testified that while the initial MMR vaccine is usually administered at fifteen months and the booster at age five, Son and Daughter were not immunized at Mother's request. He further stated Son has "an allergic diathesis," "meaning he has a full complement of allergic-type genes." Nevertheless, Dr. Shroyer agreed with Son's gastroenterologist that a child should still be vaccinated as per the published guidelines, even if the child has allergies, and stated children allergic to the contents of a vaccine are referred to an allergist who will prepare the child through medication, if necessary, before the vaccine is administered. Dr.

459 N.J.Super. 449

Shroyer rejected the notion that the MMR vaccine can cause autism.

Dr. Shroyer testified the usual presentation for measles is a maculopapular red rash, high fever, and a moderately sick-looking child. He noted that in children, measles can result in serious health complications affecting major organs, such as meningitis or encephalitis, which "can kill a child." He stated there is a likelihood an individual exposed to measles will contract the disease if not immunized.

Mother testified she has held a religious belief against having her children immunized since 2013. Mother advised the Division in writing of her objection to immunization. When asked to explain her religious objection, she testified:

I rely on the Bible and the First Amendment. And I understand there is DNA and foreign protein in vaccines which are not healthy.... [T]he Bible teaches

212 A.3d 449

us that children are gifts from God, that parents are supposed to make decisions for their children, not the State.

Mother also objects to the use of "fetal and animal DNA," in vaccinations "as per the ingredients and the Bible." Mother does not have any formal education or training in medicine, vaccines, or virology. She relies on information she obtained from the internet and vaccine package inserts. Mother presented no competent evidence of the composition of the MMR vaccine, any risks associated with the MMR vaccine, or any allergic reactivity of Son to the vaccine that cannot be controlled through medication.

The court noted Dr. Shroyer was the pediatrician chosen by Mother and Father to care for the children. The court found him credible. The court also noted Son...