STATE EX REL. NKC

• Decision Date: 02 December 1999
• Docket Number: No. 981701-CA.,981701-CA.
• Citation: 995 P.2d 1,1999 Utah Ct. App. 345
• Parties: STATE of Utah, In the Interest of N.K.C., a person under eighteen years of age. M.W., Appellant, v. State of Utah, Appellee.
• Court: Utah Court of Appeals

995 P.2d 1

1999 Utah Ct. App. 345

STATE of Utah, In the Interest of N.K.C., a person under eighteen years of age.

M.W., Appellant, v. State of Utah, Appellee.

No. 981701-CA.

Court of Appeals of Utah.

December 2, 1999.

Jim C. Shirley, Laherty & Assocs. PC, Salt Lake City, for Appellant.

Jan Graham, Atty. Gen., and John Peterson, Atty. Gen.'s Office, Salt Lake City, for Appellee.

Martha Pierce and Susan Eisenman, Salt Lake City, Guardians Ad Litem.

Before GREENWOOD, Associate P.J., and BENCH and ORME, JJ.

OPINION

ORME, Judge:

¶ 1 M.W. appeals the juvenile court's determination that her child, N.K.C., was a "neglected child," as defined in Utah Code Ann. § 78-3a-103(1)(r)(i)(C) (Supp.1999), because she failed to secure immediate medical attention for the child. We conclude the juvenile court properly determined, given the stipulated facts, that the child was medically neglected. We therefore affirm.

BACKGROUND

¶ 2 The facts in this case are undisputed and were stipulated to by all parties. On the evening of April 9, 1998, the mother, the one-month-old child, and the child's father returned to their apartment in Salt Lake City from a trip to southern Utah. Sometime around 10:00 p.m., the mother left to go buy ice cream and was gone for about twenty minutes. During the short time she was gone, the father became angry and vigorously shook the child. When the mother returned, she observed that the child was limp and lethargic. The father, in the mother's presence, shined a flashlight in the child's eyes and observed that his pupils were fixed. Rather than seek medical help for the child, the mother and father put the child to bed.

¶ 3 At approximately 1:00 a.m., the mother awoke and checked on the child. Not surprisingly, she found him in the same torpid condition and discovered that he would not nurse. The mother expressed a desire to take the child to the hospital at that time, but was dissuaded by the father. At about 2:00 a.m., the mother called the child's pediatrician, who directed the mother to immediately take the child to Primary Children's Hospital. The telephone conversation lasted approximately thirty minutes.¹ Finally, at 3:02 a.m., almost five hours after initially discovering the child's dire condition, the mother arrived with the child at the hospital.

¶ 4 The child was examined and found to be suffering from severe injuries, including major retinal hemorrhaging, causing blindness; deafness; low to no brain activity; pressure on the brain; a loss of sucking and swallowing reflexes, which necessitated the insertion and use of a feeding tube; diabetes-insipidus; intracranial bleeding; and seizures. The examining doctor determined that these injuries stemmed from nonaccidental trauma. The medical staff later determined that the child had also suffered a nonaccidental fractured rib, caused by squeezing the child, and a nonaccidental bruised toe, caused by pinching the child.

¶ 5 Hospital personnel, believing that the child had been abused, alerted the Division of Child and Family Services (DCFS). The child was taken into protective custody by DCFS. On April 22, a Verified Petition was filed and a shelter hearing was held. The juvenile court awarded temporary custody and guardianship of the child to DCFS. An Amended Verified Petition was filed two months later, alleging that the father had physically abused the child and that the father and mother had "neglected the child by failing to obtain timely medical care." The petition regarding the father was promptly adjudicated, but the court granted a motion to continue the mother's trial. In the father's Adjudication Order, the juvenile court concluded that the child was abused within the meaning of the statute because the child suffered life-threatening physical abuse at the hands of his father and because the father neglected the child by failing to obtain timely medical care. See Utah Code Ann. § 78-3a-103(1)(a) (Supp.1999). These findings regarding the father are not at issue in this appeal.

¶ 6 In July 1998, the Amended Verified Petition was adjudicated regarding the mother on the facts stipulated to by the parties and summarized above. The juvenile court concluded that the mother "neglected the child by failing to obtain timely medical care."

ISSUES AND STANDARD OF REVIEW

¶ 7 In the juvenile court, neglect must be established by clear and convincing evidence. See Utah R. Juv. P. 41(b). The mother argues on appeal that the juvenile court's conclusion that she neglected the child when she delayed seeking medical treatment is not supported by the stipulated facts, especially because the child's condition did not demonstrably worsen in the five hours before he was taken to the hospital. Given that the facts were stipulated, we review the conclusions drawn by the juvenile court for correctness. See, e.g., Stephens v. Bonneville Travel, Inc., 935 P.2d 518, 519 (Utah 1997); Sacramento Baseball Club, Inc. v. Great Northern Baseball Co., 748 P.2d 1058, 1059-60 (Utah 1987).

ANALYSIS

¶ 8 A "`[n]eglected child' is a minor... whose parent, guardian, or custodian fails or refuses to provide proper or necessary subsistence, education, or medical care, including surgery or psychiatric services when required, or any other care necessary for health, safety, morals, or well-being[.]" Utah Code Ann. § 78-3a-103(1)(r)(i)(C) (Supp.1999).² The mother contends that if the child was no worse off because of a five-hour delay in taking him to the hospital, what she did (or did not do) cannot be considered medical neglect. We disagree and conclude the stipulated facts clearly set forth circumstances in which a reasonable parent would understand the need for immediate medical treatment. We conclude the mother's delay constituted neglect under the statute.

¶ 9 "A fundamental rule of statutory construction is that statutes are to be construed according to their plain language." O'Keefe v. Utah State Retirement Bd., 956 P.2d 279, 281 (Utah 1998). The definition of neglect in section 78-3a-103(1)(r)(i)(C) is consistent with the derivative term "negligence" as used in the tort context, which "simply means the failure to use reasonable care." Ortiz v. Geneva Rock Prods., Inc., 939 P.2d 1213, 1216 (Utah Ct.App.1997). The only difference is that rather than focusing on the "prudent person ... in similar situations," id., the statute refers to the "proper or necessary" conduct of a "parent, guardian, or custodian." Utah Code Ann. § 78-3a-103(1)(r)(i)(C) (Supp.1999).

¶ 10 Black's Law Dictionary defines the similar phrase "necessary and proper" as meaning "appropriate and adapted to carrying into effect [a] given object." Black's Law Dictionary 1029 (6th ed.1990). In common usage, the phrase simply means "appropriate."³See Stauffer v. Miller, 79 Ohio App.3d 100, 606 N.E.2d 1037, 1040 (1992). The plain meaning of neglect in this statutory context bespeaks a reasonable parent standard, governed by what action on the part of a parent would be reasonable or appropriate in similar circumstances. Therefore, to determine if the mother's conduct constitutes medical neglect in this instance, we must square her conduct against the appropriate conduct of a reasonable parent, guardian, or custodian who finds a child in like condition.

¶ 11 We note that while jurisdiction over the child is not always based on the conduct of a parent, see In re K.T.S., 925 P.2d 603, 604 (Utah Ct.App.1996), our statute focuses primarily on the parent's conduct in light of the child's needs. See Utah Code Ann. § 78-3a-103 (Supp.1999). A reasonable parent standard comports with this policy; a perspective focused on the largely fortuitous circumstances of whether, in hindsight, parental neglect proximately caused physical harm does not.⁴

¶ 12 Nonetheless, the mother argues that even if we adopt a reasonable parent standard, she did not medically neglect her child because the alleged medical neglect must also have caused some additional impairment or worsening of the child's condition. Thus, appellant suggests we adopt what she characterizes as the New York standard for determining medical neglect. In New York, a child is regarded as neglected if (1) the parent "did not exercise a minimum degree of care" and (2) "as a result, the child's physical, mental or emotional condition was impaired or in imminent danger of being impaired." In re Jessica SS, 229 A.D.2d 616, 644 N.Y.S.2d 854, 856 (1992). Accord In re Jessica YY, 258 A.D.2d 743, 685 N.Y.S.2d 489, 491 (N.Y.App.Div.1999). If either of these two elements is missing, a parent cannot be found to have medically neglected the child. See Jessica SS, 644 N.Y.S.2d at 856.

¶ 13 This two-part standard is a statutory creation in New York, similar to statutes in some other jurisdictions. See N.Y. Family Law § 1012(f)(i) (Consol.1999). See also N.J. Stat. Ann. § 9:6-8.21 (West 1999); In re K.H., 527 So.2d 230, 232 (Fla.Ct.App.1988) (explaining previous version of Fla. Stat. ch. 39.01(46) (1998), which defined neglect as conduct that "causes the child's physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired"). However, such a standard does not logically flow from our statute, as the Utah Legislature has not adopted similar "impairment" language in this context.⁵ "Despite [the mother's] efforts to add additional elements to the statute, we find [this section] to be clear and unambiguous.... [Thus] we conclude that [the mother's] interpretation is untenable." State v. Singh, 819 P.2d 356, 359 (Utah Ct.App.1991), cert. denied, 832 P.2d 476 (Utah 1992).

¶ 14 While a worsened condition due to a delay in seeking medical help may strengthen a determination of medical neglect, it is not a prerequisite to such a determination. A parent should not benefit from the happenstance that her child's condition did not worsen when negligence on her part kept the child from receiving proper medical attention...