On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-319-10C.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued April 14, 2011
Before Judges Cuff, Fisher and Sapp-Peterson.*fn1
The opinion of the court was delivered by FISHER, J.A.D.
We granted leave to review the trial judge's interlocutory determination that J.H. (defendant) did not abuse or neglect his ten-month old son, J.H. (hereafter James, a fictitious name), by placing him on a twin bed without rails late at night with a sleeping ten-year old child, A.T. (hereafter Anna, a fictitious name).*fn2 As a consequence of what defendant concedes was his negligence, James was found by Anna early the next morning on the floor and against a hot radiator, incurring severe burns to his right cheek, left arm, and skull. Defendant argued, and the trial judge agreed, that his conduct did not meet the gross negligence standard applied in actions seeking a determination of abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c). See G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1991). We granted leave to appeal and now reverse.
On October 28, 2010, a hearing took place for the purpose of determining whether defendant abused or neglected James within the meaning of N.J.S.A. 9:6-8.21(c). The Division presented the testimony of two Division caseworkers and other evidence that revealed the following basic facts.
On March 30, 2010, after going out to dinner, defendant, Victoria, and other family members, including James, returned to Victoria's apartment at approximately 11:00 p.m. The other children were put to bed and James was left in his car seat, which was carried into and left in a bedroom with the door slightly ajar.
Defendant and Victoria remained up, sitting on a couch in the living room; according to Victoria, she and defendant "talked and flirted . . . kissing and stuff life that." At approximately 2:00 a.m., when James began to cry, defendant carried him -- still in the car seat -- to the living room. Later, defendant took James out of the car seat and placed him on a bed in the bedroom with Anna, who was asleep. The twin bed had no rails, and Anna was not awakened nor told James was in the bed with her. After placing James on the bed, defendant closed the door and returned to the living room.
Sometime after 6:00 a.m., Anna awoke and told defendant and Victoria there was "something wrong with the baby," who she found on the floor against a hot radiator. James was taken to the hospital to be treated for his burns; the third-degree burn to James's head was described as being "all the way down to his skull."
Defendant neither testified nor called any witnesses, leaving these facts undisputed. The Family judge concluded that although defendant was negligent, he was not grossly negligent, and he did not act with reckless or wanton disregard for the child's safety. The judge recognized that defendant "exercised very poor judgment, putting the child on the bed with nothing to prevent the child from falling off the bed, other than a blanket." He observed that a child of this age should be in a bed with "little bumpers and little railings and things" to prevent the child from falling but concluded that the act of placing the ten-month old James on a bed without such safety precautions was "not gross and willful conduct, and [was] certainly not conduct that implies a person has acted ...