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New Jersey Division of Youth and Family Services,*Fn1 v. N.S

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 7, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,*FN1 PLAINTIFF-RESPONDENT,
v.
N.S., DEFENDANT-APPELLANT. IN THE MATTER OF A.S., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0104-12.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 28, 2012 -

Before Judges Simonelli and Accurso.

Defendant N.S. appeals from the trial judge's determination that she abused or neglected her daughter pursuant to N.J.S.A. 9:6-8.21c(4)(b), and placement of her name in the Central Registry of substantiated child abusers maintained by plaintiff Division of Youth and Family Services (the Division) pursuant to N.J.S.A. 9:6-8.11. We affirm.

Defendant is the biological mother, and T.S. is the biological father, of A.S. (Anna),*fn2 born in October 2009. At approximately 11:50 p.m. on June 30, 2011, defendant called T.S. and asked him to come home to their apartment located on Waldo Avenue in Jersey City because she wanted to go out and get something to eat. Defendant did not wait for T.S. to arrive. She left the apartment at approximately 12:00 a.m., leaving Anna, then twenty-one months old, in the apartment alone and unsupervised. Defendant walked to a nearby White Castle, but then changed her mind and boarded a train at Journal Square to go "downtown" to a "Fried Chicken Place" on Newark Avenue.

T.S. arrived at the apartment at approximately 12:30 a.m. and found Anna alone. Defendant did not contact T.S. to advise where she was or when she would return. When defendant returned at 2:00 a.m., she and T.S. argued loudly outside the apartment about defendant leaving Anna alone. Defendant initially told a Division caseworker that T.S. dragged her upstairs to the apartment, where they continued arguing, and T.S. hit her in the face in Anna's presence. The police responded to the apartment after a neighbor reported the arguing. The police arrested T.S. and charged him with simple assault, and arrested defendant and charged her with endangering the welfare of a child for leaving Anna alone and unattended.

The police reported the incident to the Division. A Division caseworker interviewed defendant and T.S. at police headquarters. The interview revealed that in addition to defendant leaving Anna alone, the parties had a history of domestic violence. The Division effected an emergency removal and placed Anna in a resource home. On July 5, 2011, the Division filed a verified complaint and order to show case (OTSC), seeking custody of Anna.

On that same date, the trial judge held a hearing. Defendant appeared with counsel and testified, as did the Division caseworker and T.S. The trial judge found the emergency removal was proper based on the imminent danger and risk of harm to Anna's safety or health resulting from being left alone and unattended, the arrest of her parents, and the parties' history of domestic violence. The judge granted the Division custody of Anna, finding it was in the child's best interests to do so under the circumstances. The judge ordered Anna's placement with a paternal relative, and ordered defendant to attend psychological and substance abuse evaluations and comply with their recommendations, submit to random drug and alcohol screens, and attend domestic violence counseling and parenting skills classes. The judge also ordered supervised visitation.

Thereafter, defendant attended a psychological evaluation, completed drug treatment, and engaged in domestic violence counseling and parenting skills classes. After a hearing on October 12, 2011 on the return of the OTSC, the judge granted the Division continued custody of Anna, ordered defendant to continue complying with services, and ordered supervised overnight visitation. Anna remained with paternal relatives.

After a fact-finding hearing on November 3, 2011, the judge concluded the Division proved that defendant abused or neglected Anna pursuant to N.J.S.A. 9:6-8.21c(4)(b). The judge found "it was not reasonable and it's grossly negligent" for defendant to have left Anna alone and unattended, and defendant's conduct placed Anna at substantial risk of harm. After a compliance review the same day, the judge ordered the transfer of physical custody of Anna to defendant and T.S., which occurred the next day. The judge also ordered the parties to continue engaging in services under the Division's supervision.

In a February 14, 2012 order, the judge transferred legal custody of Anna to defendant and T.S., thereby terminating the litigation. This appeal followed.

On appeal, defendant raises the following arguments:

POINT I

THE [DIVISION] DID NOT PRESENT EVIDENCE SUFFICIENT TO DEMONSTRATE THAT IT MET THE STANDARDS REQUIRED FOR A FINDING UNDER N.J.S.A. 9:6-8.21[c](4)(b).

POINT II

THE JUDGE'S DETERMINATION THAT [DEFENDANT] ABUSED OR NEGLECTED ANNA MERITS NO DEFERENCE BECAUSE IT WAS BASED ON A SIMPLE NEGLIGENCE STANDARD.

POINT III [DEFENDANT'S] CONSTITUTIONAL RIGHT TO RAISE HER DAUGHTER WAS VIOLATED: (A) WHEN [THE DIVISION] IMPROPERLY FAILED TO ADHERE TO N.J.S.A. 9:6B-4 WHEN IT REMOVED ANNA, AND (B) WHEN THE UNREASONABLE GAP IN TIME BETWEEN THE SHOW CAUSE HEARING AND THE RETURN HEARING PROLONGED THE SEPARATION. POINT IV [DEFENDANT'S] NAME SHOULD BE ORDERED REMOVED FROM THE CENTRAL REGISTRY BECAUSE THE CONCLUSION OF NEGLECT IS NOT SUPPORTED BY THE EVIDENCE AND THE STIGMA ON [DEFENDANT] WILL DISADVANTAGE ANNA.

We reject these arguments.

Our Supreme Court has set forth the standards that govern our review of abuse or neglect matters as follows:

[A]ppellate courts defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record. Indeed, we recognize that because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding. [N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (internal quotation marks and citations omitted).]

"[I]f there is substantial credible evidence in the record to support the trial court's findings, we will not disturb those findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). However, "if the trial court's conclusions are 'clearly mistaken or wide of the mark[,]' an appellate court must intervene to ensure the fairness of the proceeding." Id. at 227 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We owe no deference to the trial court's legal conclusions, which we review de novo. State v. Smith, 212 N.J. 365, 387 (2012); Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

An "abused or neglected child" means, in pertinent part, a child under the age of eighteen whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.] [N.J.S.A. 9:6-8.21c(4)(b).]

Interpreting N.J.S.A. 9:6-8.21c(4)(b), our Supreme Court held that mere negligence does not trigger the statute. Dep't of Children & Families v. T.B., 207 N.J. 294, 306-07 (2011); G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-78 (1999). Rather, the failure to exercise a minimum degree of care refers "to conduct that is grossly or wantonly negligent, but not necessarily intentional." T.B., supra, 207 N.J. at 305 (quoting G.S., supra, 157 N.J. at 177-78). The failure to exercise a minimum degree of care "at least requires grossly negligent or reckless conduct." Id. at 306.

Although the distinction from ordinary negligence cannot be precisely defined, McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970), the essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179. Further, willful or wanton conduct is that which is "done with the knowledge that injury is likely to, or probably will, result," and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Id. at 178 (quoting McLaughlin, supra, 56 N.J. at 305). However, if the act or omission is intentionally done, "whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant," and "[k]nowledge will be imputed to the actor." Ibid. Such knowledge is imputed "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences." Id. at 179.

A determination of whether a parent's or guardian's conduct "is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one." T.B., supra, 207 N.J. at 309.

"Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." G.S., supra, 157 N.J. at 181-82. "When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law." Id. at 182. The mere lack of actual harm to the child is irrelevant, as "[c]courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

Governed by these standards, we are satisfied there is substantial credible evidence to support the conclusion that defendant abused or neglected Anna under N.J.S.A. 9:6-8.21c(4)(b) and applicable caselaw. See, e.g., G.S., supra, 157 N.J. at 181 (providing, by way of example, "if a parent left a two-year old child alone in a house and went shopping, the child would be considered a neglected child within the meaning of Title 9 regardless of whether the parent intended to impair the child's well-being or harm the child") (citations omitted). In our view, leaving an infant alone, unsupervised and unattended in a home exposed the child to more than a mere potential for harm. Such parental inattention creates an actual and imminent risk of serious harm. That Anna did not suffer actual harm, physical or otherwise, is immaterial. See D.M.H., supra, 161 N.J. at 383. Moreover, nothing in the circumstances surrounding this incident necessitated defendant's actions. The situation was clearly non-emergent. By taking the simple precautionary act of waiting for T.S. to arrive, defendant could have prevented exposing Anna to these risks altogether. That omission evidences the failure to exercise a minimum degree of care in protecting Anna. Under the circumstances, we are satisfied defendant's conduct constituted grossly or wantonly negligent behavior.

We are not persuaded by defendant's arguments that the short delay between the OTSC hearing on July 5, 2011, and the return on the OTSC on October 12, 2011, and Anna's placement outside the home, compels reversal. Although the delay was unfortunate, there was no evidence that reunification would have occurred sooner. Defendant does not dispute she required services in order for reunification to occur, including drug treatment, domestic violence counseling, and parenting skills classes. Clearly, it would not have been safe to return Anna to the home absent defendant's completion of those services. Reunification occurred on November 4, 2011, when the judge apparently determined there was no longer a danger to Anna's life, safety or health, and the child could safely return home.

Further, although N.J.S.A. 9:6B-4a requires the Division to make reasonable efforts to prevent a child's placement outside the home, there is an exception. The Division shall not be required to provide reasonable efforts to prevent placement of the child if a court of competent jurisdiction has determined that both of the following criteria are met:

a. One of the following actions has occurred:

(4) removal of the child was required due to imminent danger to the child's life, safety or health; and

b. Efforts to prevent placement were not reasonable due to risk of harm to the child's health or safety. [N.J.S.A. 30:4C-11.2.]

The record in this case amply supports application of the exception. The Division had to remove Anna due to the imminent danger to her life, safety or health resulting from being left alone and unattended; and efforts to prevent placement were not reasonable due to the serious risk of harm to her health or safety.

The finding of abuse and neglect is affirmed. Defendant's name shall remain in the Central Registry.


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