May 14, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
J.M.H., Defendant-Appellant, and C.S., Defendant. IN THE MATTER OF E.M.S., Minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 17, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-496-11.
Rebekah E. Heilman, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the briefs).
James D. Harris, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Andrea Fonseca-Romen, Deputy Attorney General, on the brief).
David B. Valentin, Assistant Deputy Public Defender, argued the cause for minor E.M.S. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief).
Before Judges Grall, Simonelli and Accurso.
Defendant J.M.H. appeals from an October 4, 2011 Family Part order entered after a fact-finding hearing, which determined he had abused or neglected his child pursuant to N.J.S.A. 9:6-8.21c(4)(b). Because the record lacks substantial credible evidence that defendant's conduct constituted gross negligence or recklessness, we reverse.
We derive the following facts from the record. Defendant is the biological father of E.M.S. (Evan),  born in May 2008, and Cindy is the child's biological mother. Defendant and his girlfriend, Danielle, are the biological parents of Kelly and Donald. Kelly is three months younger than Evan. On April 10, 2011, defendant resided with his parents, and with Danielle, Kelly and Donald. Cindy resided with her mother, Judy, and Evan.
Evan was at defendant's home on April 9 and 10, 2011. On the morning of April 10, 2011, defendant was asleep but Danielle was awake with the children. Danielle saw Evan consuming a drink that defendant told him he could not have and awoke defendant. Defendant disciplined Evan by hitting him on the "butt." Evan then began playing with a toy. Evan bit Kelly when she took the toy from him, and then Kelly struck him in the eye. Defendant immediately separated the children, and nothing further happened between them. Defendant saw a small red mark on Evan's eye, and later placed ice on it when it turned black-and-blue. Defendant returned Evan to Cindy's home later that morning. Only Judy was there at the time, and defendant explained to her what had happened to Evan's eye. Judy saw the eye injury, but also saw a bald spot on the back of Evan's head. She asked defendant what happened to Evan's head, and defendant said he had not seen the bald spot and did not know what caused it. Cindy subsequently reported the matter to the New Jersey Division of Youth and Family Services (Division).
On April 12, 2011, a Division caseworker interviewed Evan, Cindy, Judy, defendant, and Danielle. When the caseworker asked Evan what happened to his face he replied, "Daddy did it, Daddy hurt me, [Kelly] hit my face." Judy reported that when she asked Evan what happened, he stated, "Daddy did it" and pointed to his head, and said "[Kelly] did it" and pointed to his face.
Defendant reported that the day after the incident, he found a toy car with "a clump" of Evan's hair. He believed the toy car got stuck in Evan's head and Kelly helped Evan pull it out causing Evan's hair to be ripped out of his head. Danielle reported that Evan bit Kelly, Kelly punched Evan in the face, and she did not see defendant hit Evan in the face, and had no knowledge of what happened to Evan's head.
Stephanie v. Lanese, M.D. examined Evan at the Division's request and rendered a report. Cindy told the doctor that Evan said Kelly hit his face, and said "Daddy" when Cindy asked what happened to the top of his head. Although Cindy also told Dr. Lanese about the toy car, the doctor did not examine or obtain any information about it. The doctor also did not interview defendant, Danielle, or Kelly.
Evan told the doctor that defendant punched him in the eye and "got me on top of the head and hurt me." Cindy responded, "Really, at first [Evan] said it was [Kelly] who did it[.]" Dr. Lanese concluded that "[a]t this time, it is still somewhat difficult to know and to understand under what context all these things happened to [Evan], as he is too young to provide a full history." Nonetheless, the doctor also concluded as follows:
My [concern] for physical abuse or at the very least neglect or lack of supervision is elevated because firstly, the traction alopecia is in a large area for a toy car to cause. Secondly, this much hair being pulled out and ripped would have hurt and been difficult for a two year old to do, so any observant caretaker should have known what happened and responded quickly. Lastly, [Evan] does not say that a toy did it and implies that dad caused the injuries.
The trial judge's findings are sparse. It appears the judge concluded that Kelly caused Evan's eye injury, and the injury occurred as the result of defendant's failure to supervise the children. The judge also concluded that Evan said "it was his father that pulled his hair out" and there was "no information to the contrary." This appeal followed.
On appeal, defendant raises several contentions. We will only address his contention that the record lacks substantial, credible evidence to support a finding of abuse or neglect pursuant to N.J.S.A. 9:6-8.21c(4)(b).
The trial judge has a duty to conduct a fact-finding hearing to determine whether the Division has proved abuse or neglect by a preponderance of the "competent, material and relevant evidence." N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J.Super. 40, 59, 62 (App. Div. 2012). "Under the preponderance standard, a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met." Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (citations and internal quotation marks omitted).
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 fact finding. [N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (citations and internal quotation marks 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, L.P. v. Twp. Comm. of Manalapan, 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[.]
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 178). The failure to exercise a minimum degree of care "at least requires grossly negligent or reckless conduct." Id . at 306.
Although the distinction between gross or wanton negligence and 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]ourts 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 conclude that the record lacked substantial credible evidence to support a finding that defendant abused or neglected Evan pursuant to N.J.S.A. 9:6-8.21c(4)(b). The judge made no finding, nor is there competent, credible evidence suggesting that defendant's conduct was grossly negligent or reckless so as to constitute a failure to exercise a minimum degree of care. Evan was not left unsupervised when he suffered the eye injury. Defendant was awake when the injury occurred and took immediate steps to separate the children. Evan suffered no other injury thereafter. We conclude that defendant's conduct with respect to Evan's eye injury did not even constitute ordinary negligence, let alone gross or wanton negligence.
There also was no competent, credible evidence that defendant caused Evan's head injury or that the injury actually occurred when the child was in defendant's care. Evan gave conflicting statements about his head injury and Dr. Lanese concluded that the child could not provide competent information about what had happened. Evan did not say, and the doctor never found, that defendant actually pulled out Evan's hair. The doctor merely speculated about what may have happened. The preponderance of the evidence burden clearly was not met with respect to Evan's head injury.