Custody Determinations: Childhood Obesity and the Law

State intervention in obesity “doesn't necessarily involve new legal requirements,” Ludwig said, noting that healthcare providers are already required to report all kinds of conditions in which children are at risk, including severe obesity.

Typical Cases

The types of cases that frequently appear in headlines are ones such as a case involving a 12-year-old who weighed 400 pounds and developed medical problems. The child was put in foster care where diet and exercise were provided, and where the child remains. The basis of that determination, highlighted in the Yahoo News article, was parental neglect. In another case described in the same article, a child was extremely overweight; at 14-years-old, he weighed 550 pounds.
His single mother worked two jobs and was unable to provide a proper diet for her son. The issue, even in that case, was whether the court should separate the child from the mother or keep the family intact.

Ultimately, the decision in cases like this is based upon whether there is an imminent health risk, and whether the parent is attempting to address the situation. Then the question becomes whether the state or another entity would do better in raising the child. Would it cause more upset for the child to be taken out of the home and placed in foster care? Would foster care help? In such a situation, foster care is the last resort because it breaks up a family. Experts and courts tend to agree that it is better first to leave the child in the home and try family education, nutrition and better medical care to see if the problem can be remedied before taking the drastic step of removal. The question becomes whether the obesity is putting the child at risk.

In very extreme cases, the situation can be viewed as neglect. In an article on the ABC News website dated Nov. 28, 2011, a case was reported about a three-year-old weighing 90 pounds, who was taken from her parents by government officials and placed in foster care. Dr. Ludwig was cited in that article as well, expressing his concern that removing the child from the home can create greater damage than leaving the child in the household; the impression was that in that situation, it caused more of a problem to leave the child in the home. Again, Ludwig took the position that children should be removed only when it is the last resort and an extreme situation. When a 400-pound child has life-threatening complications, there may not be many choices.

Children of Divorce

It is often a frustrating situation when a child of divorce continues to gain weight; often, one parent blames the other. Again, this comes to the attention of the court in very extreme cases. When does a case of obesity tip the scales of justice? When does the weight problem become so severe that it affects the best interests of the child? In an article from The Wall Street Journal, titled “Obesity Fuels Custody Fights” (Oct. 29, 2011), parents are described as using childhood obesity as yet another spear to throw down in the custody arena. Furthermore, the situation is burgeoning. Since 1980, according to The Center for Disease Control and Prevention Statistics, obesity rates have nearly tripled.

What happens when the parent is also obese? Can he or she be a good parent? There are cases where an obese parent makes no effort to keep the child at the proper weight; in these situations, experts urge awarding physical custody to the parent who demonstrates a willingness and ability to keep the children on the prescribed weight-management program.

Best Interests of the Child

In a 2004 Michigan Court of Appeals case, In the Matter of Jered Ostrander, Minor, 2004 Mich. App. LEXIS 752, the court looked at the totality of the circumstances and not the isolated issue of obesity. The question was whether there was bad parental care. Did the parents accept responsibility, and were they working to remedy the situation? In a Minnesota Court of Appeals decision, In the Matter of the Welfare of the Children of M.A.M. and J.D.M., 2004 Minn. App. LEXIS 1496, there were tremendous problems in the family and the court determined that even if the children's preference was to stay with their parents, it would not be in their best interests. In a recent Illinois case, In re: K.F., a minor, 2011 Ill. App. Unpub. LEXIS 170, obesity was far from the only issue. The court's decision to award custody of the obese child to his father was based on myriad circumstances, obesity among them. In such cases, the question revolves around the impact of the obesity on the health of the children. Can it be proven that the obesity is putting the child at risk? Is the overall family situation putting the children at risk? Or both?

In such extreme situations, the impact of morbid obesity on a child becomes scrutinized by the court. In a 2007 New York case, In the Matter of Brittany T., a Child Alleged to be Neglected. Shawna T. et al., Respondents, 15 Misc. 3d 606, 835, N.Y.S.2d 829, 2007 N.Y. Misc. LEXIS 469, the family court in Chemung County, NY, looked at the impact of morbid obesity on a child; in six months, her weight went from 238 to 263 pounds. The court looked to see what corrective methods the parents took, and at the parents' failure to treat the child's morbid obesity properly. The court found that the parents failed to insure that the child attended school on a regular basis and on time. The parents were found to have failed to implement changes in the child's diet and to insure that the child engaged in exercise.

The court heard the testimony of Dr. William J. Cochran, a board-certified pediatric gastroenterologist and nutritionist, who testified that the child was morbidly obese. Dr. Cochran described the child's other medical issues: gallstones, excessive fat in her liver with resultant fatty liver disease (which, he said, could eventually develop into non-alcoholic cirrhosis of the liver), sleep apnea, intermittent high blood pressure, pain in her knee joints, insulin resistance (indicating an increased risk of developing diabetes), and acanthosis nigricans (darkening and thickening of the skin around her neck associated with insulin resistance). Many of these health problems develop in children with extreme obesity issues. Additionally, he testified as to the “significant social and psychological impact such morbidity has.” Also, the doctor found that this was “accentuated for females” and that the child was showing signs of depression.

While the court heard evidence that there had been some improvement in the situation, it also found that the child's obesity was not the only problem. Both parents had very serious problems as well, and were obese as well. The father had various medical issues and was confined to a wheelchair. The mother weighed 436 pounds and had additional medical problems. The child was allowed to overeat at home and, due to the health issues of the parents, was poorly supervised. The child missed appointments, school, and so forth. So once again, it was not only the obesity, but the totality of the circumstances that swayed the court. The parents were found to have been uncooperative and did not follow through and try to help the child. The court found that there was a pattern of alarming parental behavior. The parents' lack of “commitment and motivation demonstrated by the respondent in effectively and wholeheartedly addressing their daughter's school issues (at least until the eve of trial) and her morbid obesity” were found to be the key issues in the case.

Ultimately, the court found consistent with New York law the child had been neglected based upon the statute in that state ' when his or her “physical, mental or emotional condition has been impaired ' as a result of the failure of his or her parent to exercise a minimum degree of care in supplying the child with adequate ' education or medical ' care, though financially able to do so. “

Again, the court looked first to the least onerous determination, and found that the lesser options did not resolve the case. The court ruled in this case:

In so deciding, of course, the court notes that less drastic remedies should generally be attempted first. In the instant matter, as noted above, absolutely every thing and every effort has been attempted'not for months, but for years. The court finds that [the child's] continued residency in the home is contrary to her health, welfare and safety and that the best interest of the children warrants her removal from the care and custody of the parents and placement once again with the department. The court finds that the department has employed not only reasonable but, indeed, extraordinary efforts to prevent or eliminate this need.

In a 2002 Pennsylvania case, In re D.K., 2002 Pa. Dist. & Cnty. Dec. LEXIS 195; 58 Pa. D. & D. 4th 353, the court looked not only at the difficulties of the child, but the overall parenting. In this case, the child was 16, just over five feet tall and weighed 451 pounds. He had other physical, emotional and mental problems. Ultimately, he was found to be without the proper parental care or control. The court found that the child's mother did not have the ability to care for him, as she too was morbidly obese. The court ruled that the child needed to be removed because he did not receive the necessary medical care for his health issues. The court recognized that there was an unusual issue in the decision. The mother weighed 600 pounds. She could not attend the meetings with her son because of her own obesity.

The focal point in this case was obesity, the parent's ability to raise the child, and the child's development. The court found the child's obesity was not properly addressed by the parent, who never took the child to a dietician. The child's weight was related to his poor school performance and absences. The court determined that the child was in a life-threatening situation because of his various medical problems, including, but not limited to, an enlarged liver as a precursor of cirrhosis of the liver, hypertension, respiratory problems to the extent that he required oxygen at night, insulin resistance that placed him at a high risk for diabetes, sleep apnea and knee pain. The child also suffered from a depressive disorder, was not able to be mobile, and spent much of his time in front of the television or a computer screen with few friends.

The child was placed in a foster home, where he lost 50 pounds in three months. While the child expressed a desire to return home, the court found that this would pose a risk to his life. The court again looked at whether the minimum standard of care for the child's physical, intellectual and moral well-being were met, and whether the parents had the ability and willingness necessary to address the special needs of the child. The court went out of its way to define this situation as an extreme case, stating that it was not intervening merely because the child was overweight or not engaging in a healthier lifestyle. This was a case where the child needed necessary medical care and was not receiving it.

The court weighed the necessity of removing the child from the home and separating the child from his family. However, it found that the mother did not have the “natural abilities” to care for the child as she suffered from extreme obesity, was homebound and was unable or did not wish to go to the hospital during the six days when the son was hospitalized; the court found that it was unlikely that she fully appreciated her son's problems at that time. The court went on to say, “[d]espite his obesity from the age of three, and his weight gain of over 100 pounds in the past year, there is no evidence that she [the mother] did anything to address this problem. She never took him to a dietician or other specialist.” The mother also failed to address the child's performance in school, or his school absenteeism.

Again, the court was able to see the result of taking the child out of the home, placing the child in foster care and seeing the child improve. The court repeatedly indicated that this was an extreme case.

The court ultimately ordered that in light of the overall circumstances, the child needed to be placed out of the home.

The court entered a well-reasoned and extensive Order focusing on the child's best interests that is worthy of being set forth verbatim and is as follows:

(1) With the child's health and safety as the paramount concern, the court finds that reasonable efforts were made to preserve and reunify the family prior to the placement of the child.

(2) That D.K. is adjudicated dependent by reason of being without proper parental care or control necessary for his physical, mental and emotional health.

(3) That legal and physical custody of D.K. is awarded to Northumberland County Children and Youth Services and that he is hereby placed in a children and youth services approved facility until further order of the court.

(4) That removal of D.K. from the home was the result of a determination that continuation therein would be contrary to the health, welfare and safety of the child and that reasonable efforts were made by the agency to preserve and reunify the family.

(5) That Northumberland County Children and Youth Services will ensure that the opportunity for visits between the child and his mother will be provided at least twice every week, unless such are not in keeping with the service objectives or placement goals.

(6) (a) That D.K. obtain and maintain a healthy weight and lifestyle before returning home to the care of the natural mother.

(b) That D.K. obtain and maintain a membership in a fitness facility, and participate in a mentoring program.

(7) That Donna K. attends all D.K.'s medical appointments.

(8) That Donna K. cooperates with a resource worker for help with nutrition.

(9) That Donna K. provide the appropriate foods in the home and prepare them as required by the diet as part of her visitation with D.K.

(10) That Donna K. supports D.K. in his efforts to lose weight.

(11) That Donna K. provide a safe, stable and healthy home environment for the minor child.

(12) That Donna K. attend counseling with D.K. as required by the therapist and follow all recommendations of the therapist.

(13) That Donna K. will address her own health concerns and well-being in order to care for D.K.

(14) That Donna K. will cooperate with Northumberland County Children and Youth Services and follow all recommendations.

(15) That Northumberland County Children and Youth Services be permitted to release pertinent information regarding this matter to all appropriate treating professionals and agencies.

(16) Because good cause for such disclosure has been shown to the court, that all educational, drug and alcohol, psychological and medical records (including all diagnostic tests, evaluations, treatment notes, treatment plans, summaries, conclusions and recommendations) from all treating facilities and professionals ' pertaining to Donna K. and D.K. be released to children and youth services for the purpose of assessment, ongoing monitoring, and the court's review; material to be released is to include all present information and future until further order of the court.

(17) That the name and address of the foster parents not be released unless approved by Children and Youth Services.

(18) That in the event of extended placement, Northumberland County Children and Youth Services shall ensure that the child receive a permanency hearing and placement review before the end of the third, sixth and ninth month of continuous placement of the child and each three months thereafter.

Other Rulings

Another case that dealt with the obesity issue was Jose G. and Rocio E., Petitioners, v. The Superior Court of the State of California for the County of Los Angeles, Respondent, 2008 Cal. App. Unpub. LEXIS 8121. This was a case that reflected not only obesity, but a family out of control. The child was four-years-old, weighed 160 pounds. and was determined to be at high risk for diabetes, heart disease and sleep apnea. By age six, he weighed 200 pounds, threw tantrums, and used his size to intimidate other children. There was domestic violence in the house, among other problems.

A social worker who had visited the home had found it to be dirty, full of clutter and without any beds. When the child was placed in a group home, he had daily exercise and nutritious meals, and his behavior and development improved. He also lost weight. When the parents visited the child, however, they brought him fried and sugary foods. During these visits, the child became agitated, verbally abusive and destructive.

The department had referred the family to an eight-week individualized program staffed by experts who provide instruction on proper eating habits, how to make daily exercise fun, how to perform life skills and how to develop self-esteem. Unfortunately, that program did not to work because the parents failed to utilize what they were told. The parents continued to show little compliance, and exhibited alcohol abuse.

The child's improvement continued outside of the family home, which continued to reflect domestic violence, medical neglect and filthy living conditions. The rooms continued to be messy and cluttered, and furnished with mattresses lacking sheets and blankets. Large cockroaches infested the bedroom, bathroom, and one wall contained several holes.

The court was able to obtain a comparison between the significant behavior problems in the house, and the child's improved behavior and loss of weight outside of the house. This was a case where obesity was not an isolated factor; the entire household was suffering from severe problems. The court found that the child would suffer if returned to the house.

Proof of Danger

A slightly different focus was preserved in the case of Alice Brown, Plaintiff, vs. State of Montana; Department of Public Health and
Human Services Child and Family Services Division; Shawn Wills, Defendants, 442 F. Supp. 2d 982; 2006 U.S. Dist. LEXIS 49015. In that case, the mother could not hold her infant for more than 10 minutes at a time because she was so obese. The issue there focused on the fact that the social worker took the child away without a court order where there was no imminent danger.

The issues in that case concerned whether the social worker, as an employee of a governmental agency, had immunity. The court found that the agency ultimately was immune from prosecution, but the social worker acted individually. The court focused on whether a reasonable social worker would have concluded that the extremely obese parent put the child in imminent danger.

In a New Jersey case, New Jersey Division of Youth and Family Services, Plaintiff-Respondent, v. S.A.R., Defendant-Appellant. In The Matter of the Guardianship of K.A., Minor, 2011 N.J. Super. Unpub. LEXIS 516, the trial court looked at whether a child should be removed from the home. He had medical issues arising out of parental failure to seek treatment for global developmental delays, autism spectrum and obesity. The court found in this case that the child was overfed, was not given proper medical care and was left to watch television for hours at a time. At two-years-old, he weighed approximately 55 pounds. The child had limited human contact and focused on the television.

The child was taken out of the home, and improved. The court found that the child had not been properly parented. There was a misuse of foods, and the child had temper tantrums in the home. While the child seemed happy and the mother had a strong relationship with the child, it was observed that he was overfed, that food was forced on him when he was trying to play, and food was used to calm him. The parents seemed unable to recognize the child's special needs or address their own anger issues.

The court found that the child would be at risk if he was returned to the parents. It was determined that the parents lacked the capacity to care for the child, and his medical needs were not being addressed. The parents refused to accept the child's developmental delays, and the family did not know how to cope with his autism issues. Both experts acknowledged that the mother could not care for the child's special needs, and the child would be endangered if returned to her custody. The appellate division found that it must defer to the trial court, which had heard all of the evidence.

Conclusion

As has been seen, childhood obesity is only one element a court must consider when deciding whether parents are unfit to care for their child, and is often only part of a larger issue. That having been said, it cannot be ignored as a significant factor affecting a child's health and well-being.

Lynne Strober, a member of this newsletter's Board of Editors, co-Chairs the Family Law Practice Group at Mandelbaum, Salsburg, P.C., South Orange, NJ. The author would like to thank David Carton for his assistance with this article.

While the issue of childhood obesity is what makes news headlines in custody determinations, it is usually not an isolated element. Almost always, the family has a plethora of issues and the child's extreme obesity, or in one case, the obesity of the parent, is a reflection of the larger problems in the household. Courts usually look at whether the parent is trying to remedy the situation before determining whether a child must be removed from a parent, or from the home.

Contributory Factors

In an article in Yahoo News on Jan. 20, 2012, Dr. David Ludwig, an obesity specialist at Harvard Affiliated Children's Hospital, Boston, focused not on blaming the parents, but on getting help for morbidly obese children when their parents cannot provide that aid. The article states that roughly two million U.S. children are extremely obese. According to Ludwig, obesity-related conditions such as Type 2 diabetes, breathing difficulties and liver problems could kill many of these children by age 30. “It is these kids for whom state intervention, including education, parent training, and temporary protective custody in the most extreme cases, should be considered,” Ludwig said.

State intervention in obesity “doesn't necessarily involve new legal requirements,” Ludwig said, noting that healthcare providers are already required to report all kinds of conditions in which children are at risk, including severe obesity.

Typical Cases

The types of cases that frequently appear in headlines are ones such as a case involving a 12-year-old who weighed 400 pounds and developed medical problems. The child was put in foster care where diet and exercise were provided, and where the child remains. The basis of that determination, highlighted in the Yahoo News article, was parental neglect. In another case described in the same article, a child was extremely overweight; at 14-years-old, he weighed 550 pounds.
His single mother worked two jobs and was unable to provide a proper diet for her son. The issue, even in that case, was whether the court should separate the child from the mother or keep the family intact.

Ultimately, the decision in cases like this is based upon whether there is an imminent health risk, and whether the parent is attempting to address the situation. Then the question becomes whether the state or another entity would do better in raising the child. Would it cause more upset for the child to be taken out of the home and placed in foster care? Would foster care help? In such a situation, foster care is the last resort because it breaks up a family. Experts and courts tend to agree that it is better first to leave the child in the home and try family education, nutrition and better medical care to see if the problem can be remedied before taking the drastic step of removal. The question becomes whether the obesity is putting the child at risk.

In very extreme cases, the situation can be viewed as neglect. In an article on the ABC News website dated Nov. 28, 2011, a case was reported about a three-year-old weighing 90 pounds, who was taken from her parents by government officials and placed in foster care. Dr. Ludwig was cited in that article as well, expressing his concern that removing the child from the home can create greater damage than leaving the child in the household; the impression was that in that situation, it caused more of a problem to leave the child in the home. Again, Ludwig took the position that children should be removed only when it is the last resort and an extreme situation. When a 400-pound child has life-threatening complications, there may not be many choices.

Children of Divorce

It is often a frustrating situation when a child of divorce continues to gain weight; often, one parent blames the other. Again, this comes to the attention of the court in very extreme cases. When does a case of obesity tip the scales of justice? When does the weight problem become so severe that it affects the best interests of the child? In an article from The Wall Street Journal, titled “Obesity Fuels Custody Fights” (Oct. 29, 2011), parents are described as using childhood obesity as yet another spear to throw down in the custody arena. Furthermore, the situation is burgeoning. Since 1980, according to The Center for Disease Control and Prevention Statistics, obesity rates have nearly tripled.

What happens when the parent is also obese? Can he or she be a good parent? There are cases where an obese parent makes no effort to keep the child at the proper weight; in these situations, experts urge awarding physical custody to the parent who demonstrates a willingness and ability to keep the children on the prescribed weight-management program.

Best Interests of the Child

In a 2004 Michigan Court of Appeals case, In the Matter of Jered Ostrander, Minor, 2004 Mich. App. LEXIS 752, the court looked at the totality of the circumstances and not the isolated issue of obesity. The question was whether there was bad parental care. Did the parents accept responsibility, and were they working to remedy the situation? In a Minnesota Court of Appeals decision, In the Matter of the Welfare of the Children of M.A.M. and J.D.M., 2004 Minn. App. LEXIS 1496, there were tremendous problems in the family and the court determined that even if the children's preference was to stay with their parents, it would not be in their best interests. In a recent Illinois case, In re: K.F., a minor, 2011 Ill. App. Unpub. LEXIS 170, obesity was far from the only issue. The court's decision to award custody of the obese child to his father was based on myriad circumstances, obesity among them. In such cases, the question revolves around the impact of the obesity on the health of the children. Can it be proven that the obesity is putting the child at risk? Is the overall family situation putting the children at risk? Or both?

In such extreme situations, the impact of morbid obesity on a child becomes scrutinized by the court. In a 2007 New York case, In the Matter of Brittany T., a Child Alleged to be Neglected. Shawna T. et al., Respondents, 15 Misc. 3d 606, 835, N.Y.S.2d 829, 2007 N.Y. Misc. LEXIS 469, the family court in Chemung County, NY, looked at the impact of morbid obesity on a child; in six months, her weight went from 238 to 263 pounds. The court looked to see what corrective methods the parents took, and at the parents' failure to treat the child's morbid obesity properly. The court found that the parents failed to insure that the child attended school on a regular basis and on time. The parents were found to have failed to implement changes in the child's diet and to insure that the child engaged in exercise.

The court heard the testimony of Dr. William J. Cochran, a board-certified pediatric gastroenterologist and nutritionist, who testified that the child was morbidly obese. Dr. Cochran described the child's other medical issues: gallstones, excessive fat in her liver with resultant fatty liver disease (which, he said, could eventually develop into non-alcoholic cirrhosis of the liver), sleep apnea, intermittent high blood pressure, pain in her knee joints, insulin resistance (indicating an increased risk of developing diabetes), and acanthosis nigricans (darkening and thickening of the skin around her neck associated with insulin resistance). Many of these health problems develop in children with extreme obesity issues. Additionally, he testified as to the “significant social and psychological impact such morbidity has.” Also, the doctor found that this was “accentuated for females” and that the child was showing signs of depression.

While the court heard evidence that there had been some improvement in the situation, it also found that the child's obesity was not the only problem. Both parents had very serious problems as well, and were obese as well. The father had various medical issues and was confined to a wheelchair. The mother weighed 436 pounds and had additional medical problems. The child was allowed to overeat at home and, due to the health issues of the parents, was poorly supervised. The child missed appointments, school, and so forth. So once again, it was not only the obesity, but the totality of the circumstances that swayed the court. The parents were found to have been uncooperative and did not follow through and try to help the child. The court found that there was a pattern of alarming parental behavior. The parents' lack of “commitment and motivation demonstrated by the respondent in effectively and wholeheartedly addressing their daughter's school issues (at least until the eve of trial) and her morbid obesity” were found to be the key issues in the case.

Ultimately, the court found consistent with New York law the child had been neglected based upon the statute in that state ' when his or her “physical, mental or emotional condition has been impaired ' as a result of the failure of his or her parent to exercise a minimum degree of care in supplying the child with adequate ' education or medical ' care, though financially able to do so. “

Again, the court looked first to the least onerous determination, and found that the lesser options did not resolve the case. The court ruled in this case:

In so deciding, of course, the court notes that less drastic remedies should generally be attempted first. In the instant matter, as noted above, absolutely every thing and every effort has been attempted'not for months, but for years. The court finds that [the child's] continued residency in the home is contrary to her health, welfare and safety and that the best interest of the children warrants her removal from the care and custody of the parents and placement once again with the department. The court finds that the department has employed not only reasonable but, indeed, extraordinary efforts to prevent or eliminate this need.

In a 2002 Pennsylvania case, In re D.K., 2002 Pa. Dist. & Cnty. Dec. LEXIS 195; 58 Pa. D. & D. 4th 353, the court looked not only at the difficulties of the child, but the overall parenting. In this case, the child was 16, just over five feet tall and weighed 451 pounds. He had other physical, emotional and mental problems. Ultimately, he was found to be without the proper parental care or control. The court found that the child's mother did not have the ability to care for him, as she too was morbidly obese. The court ruled that the child needed to be removed because he did not receive the necessary medical care for his health issues. The court recognized that there was an unusual issue in the decision. The mother weighed 600 pounds. She could not attend the meetings with her son because of her own obesity.

The focal point in this case was obesity, the parent's ability to raise the child, and the child's development. The court found the child's obesity was not properly addressed by the parent, who never took the child to a dietician. The child's weight was related to his poor school performance and absences. The court determined that the child was in a life-threatening situation because of his various medical problems, including, but not limited to, an enlarged liver as a precursor of cirrhosis of the liver, hypertension, respiratory problems to the extent that he required oxygen at night, insulin resistance that placed him at a high risk for diabetes, sleep apnea and knee pain. The child also suffered from a depressive disorder, was not able to be mobile, and spent much of his time in front of the television or a computer screen with few friends.

The child was placed in a foster home, where he lost 50 pounds in three months. While the child expressed a desire to return home, the court found that this would pose a risk to his life. The court again looked at whether the minimum standard of care for the child's physical, intellectual and moral well-being were met, and whether the parents had the ability and willingness necessary to address the special needs of the child. The court went out of its way to define this situation as an extreme case, stating that it was not intervening merely because the child was overweight or not engaging in a healthier lifestyle. This was a case where the child needed necessary medical care and was not receiving it.

The court weighed the necessity of removing the child from the home and separating the child from his family. However, it found that the mother did not have the “natural abilities” to care for the child as she suffered from extreme obesity, was homebound and was unable or did not wish to go to the hospital during the six days when the son was hospitalized; the court found that it was unlikely that she fully appreciated her son's problems at that time. The court went on to say, “[d]espite his obesity from the age of three, and his weight gain of over 100 pounds in the past year, there is no evidence that she [the mother] did anything to address this problem. She never took him to a dietician or other specialist.” The mother also failed to address the child's performance in school, or his school absenteeism.

Again, the court was able to see the result of taking the child out of the home, placing the child in foster care and seeing the child improve. The court repeatedly indicated that this was an extreme case.

The court ultimately ordered that in light of the overall circumstances, the child needed to be placed out of the home.

The court entered a well-reasoned and extensive Order focusing on the child's best interests that is worthy of being set forth verbatim and is as follows:

(1) With the child's health and safety as the paramount concern, the court finds that reasonable efforts were made to preserve and reunify the family prior to the placement of the child.

(2) That D.K. is adjudicated dependent by reason of being without proper parental care or control necessary for his physical, mental and emotional health.

(3) That legal and physical custody of D.K. is awarded to Northumberland County Children and Youth Services and that he is hereby placed in a children and youth services approved facility until further order of the court.

(4) That removal of D.K. from the home was the result of a determination that continuation therein would be contrary to the health, welfare and safety of the child and that reasonable efforts were made by the agency to preserve and reunify the family.

(5) That Northumberland County Children and Youth Services will ensure that the opportunity for visits between the child and his mother will be provided at least twice every week, unless such are not in keeping with the service objectives or placement goals.

(6) (a) That D.K. obtain and maintain a healthy weight and lifestyle before returning home to the care of the natural mother.

(b) That D.K. obtain and maintain a membership in a fitness facility, and participate in a mentoring program.

(7) That Donna K. attends all D.K.'s medical appointments.

(8) That Donna K. cooperates with a resource worker for help with nutrition.

(9) That Donna K. provide the appropriate foods in the home and prepare them as required by the diet as part of her visitation with D.K.

(10) That Donna K. supports D.K. in his efforts to lose weight.

(11) That Donna K. provide a safe, stable and healthy home environment for the minor child.

(12) That Donna K. attend counseling with D.K. as required by the therapist and follow all recommendations of the therapist.

(13) That Donna K. will address her own health concerns and well-being in order to care for D.K.

(14) That Donna K. will cooperate with Northumberland County Children and Youth Services and follow all recommendations.

(15) That Northumberland County Children and Youth Services be permitted to release pertinent information regarding this matter to all appropriate treating professionals and agencies.

(16) Because good cause for such disclosure has been shown to the court, that all educational, drug and alcohol, psychological and medical records (including all diagnostic tests, evaluations, treatment notes, treatment plans, summaries, conclusions and recommendations) from all treating facilities and professionals ' pertaining to Donna K. and D.K. be released to children and youth services for the purpose of assessment, ongoing monitoring, and the court's review; material to be released is to include all present information and future until further order of the court.

(17) That the name and address of the foster parents not be released unless approved by Children and Youth Services.

(18) That in the event of extended placement, Northumberland County Children and Youth Services shall ensure that the child receive a permanency hearing and placement review before the end of the third, sixth and ninth month of continuous placement of the child and each three months thereafter.

Other Rulings

Another case that dealt with the obesity issue was Jose G. and Rocio E., Petitioners, v. The Superior Court of the State of California for the County of Los Angeles, Respondent, 2008 Cal. App. Unpub. LEXIS 8121. This was a case that reflected not only obesity, but a family out of control. The child was four-years-old, weighed 160 pounds. and was determined to be at high risk for diabetes, heart disease and sleep apnea. By age six, he weighed 200 pounds, threw tantrums, and used his size to intimidate other children. There was domestic violence in the house, among other problems.

A social worker who had visited the home had found it to be dirty, full of clutter and without any beds. When the child was placed in a group home, he had daily exercise and nutritious meals, and his behavior and development improved. He also lost weight. When the parents visited the child, however, they brought him fried and sugary foods. During these visits, the child became agitated, verbally abusive and destructive.

The department had referred the family to an eight-week individualized program staffed by experts who provide instruction on proper eating habits, how to make daily exercise fun, how to perform life skills and how to develop self-esteem. Unfortunately, that program did not to work because the parents failed to utilize what they were told. The parents continued to show little compliance, and exhibited alcohol abuse.

The child's improvement continued outside of the family home, which continued to reflect domestic violence, medical neglect and filthy living conditions. The rooms continued to be messy and cluttered, and furnished with mattresses lacking sheets and blankets. Large cockroaches infested the bedroom, bathroom, and one wall contained several holes.

The court was able to obtain a comparison between the significant behavior problems in the house, and the child's improved behavior and loss of weight outside of the house. This was a case where obesity was not an isolated factor; the entire household was suffering from severe problems. The court found that the child would suffer if returned to the house.

Proof of Danger

A slightly different focus was preserved in the case of Alice Brown, Plaintiff, vs. State of Montana; Department of Public Health and
Human Services Child and Family Services Division; Shawn Wills, Defendants, 442 F. Supp. 2d 982; 2006 U.S. Dist. LEXIS 49015. In that case, the mother could not hold her infant for more than 10 minutes at a time because she was so obese. The issue there focused on the fact that the social worker took the child away without a court order where there was no imminent danger.

The issues in that case concerned whether the social worker, as an employee of a governmental agency, had immunity. The court found that the agency ultimately was immune from prosecution, but the social worker acted individually. The court focused on whether a reasonable social worker would have concluded that the extremely obese parent put the child in imminent danger.

In a New Jersey case, New Jersey Division of Youth and Family Services, Plaintiff-Respondent, v. S.A.R., Defendant-Appellant. In The Matter of the Guardianship of K.A., Minor, 2011 N.J. Super. Unpub. LEXIS 516, the trial court looked at whether a child should be removed from the home. He had medical issues arising out of parental failure to seek treatment for global developmental delays, autism spectrum and obesity. The court found in this case that the child was overfed, was not given proper medical care and was left to watch television for hours at a time. At two-years-old, he weighed approximately 55 pounds. The child had limited human contact and focused on the television.

The child was taken out of the home, and improved. The court found that the child had not been properly parented. There was a misuse of foods, and the child had temper tantrums in the home. While the child seemed happy and the mother had a strong relationship with the child, it was observed that he was overfed, that food was forced on him when he was trying to play, and food was used to calm him. The parents seemed unable to recognize the child's special needs or address their own anger issues.

The court found that the child would be at risk if he was returned to the parents. It was determined that the parents lacked the capacity to care for the child, and his medical needs were not being addressed. The parents refused to accept the child's developmental delays, and the family did not know how to cope with his autism issues. Both experts acknowledged that the mother could not care for the child's special needs, and the child would be endangered if returned to her custody. The appellate division found that it must defer to the trial court, which had heard all of the evidence.

Conclusion

As has been seen, childhood obesity is only one element a court must consider when deciding whether parents are unfit to care for their child, and is often only part of a larger issue. That having been said, it cannot be ignored as a significant factor affecting a child's health and well-being.

Lynne Strober, a member of this newsletter's Board of Editors, co-Chairs the Family Law Practice Group at Mandelbaum, Salsburg, P.C., South Orange, NJ. The author would like to thank David Carton for his assistance with this article.