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New Jersey Division of Child Protection and Permanency v. E.B.

Superior Court of New Jersey, Appellate Division

November 15, 2013

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, [1] Plaintiff-Respondent,
v.
E.B., Defendant-Appellant IN THE MATTER OF D.W.G., a minor

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued October 23, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket Number FN-03-126-12.

Beryl Foster-Andres, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Foster-Andres, on the brief).

James R. Griffin, Jr., Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Griffin, on the brief).

David B. Valentin, Assistant Deputy Public Defender, argued the cause for minor D.W.G (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief).

Before Judges Parrillo and Kennedy.

PER CURIAM

Defendant E.B. appeals from the July 31, 2012 order of the Family Part, entered after a Title 9 fact-finding hearing, that determined she abused and neglected her son D.W.G. For the following reasons, we reverse.

At the time of the incident in question, E.B. was twenty-eight years old. She is the biological mother of D.W.G., who was born on March 4, 2009.[2] E.B. shares a home with her son, her thirty-two year old brother K.B., and their grandmother. E.B. and her son share a bedroom in the basement of the home, and K.B. has a separate bedroom there as well.

In the evening of January 17, 2012, C.G. came over to share drinks and talk with her cousin, E.B., who was upset because her mother had passed away in 2010, and both her grandmother and father had just been hospitalized. Prior to visiting with C.G. upstairs, E.B. put her son in the bed they shared in the basement bedroom and turned on cartoons for him to watch. K.B., the child's uncle, was nearby in his bedroom watching television until he fell asleep.

During this visit, the cousins drank, [3] talked and watched a movie. Thereafter, E.B. returned to her bedroom, where her son was already sleeping. C.G. left through a door in the first-floor kitchen and may have inadvertently forgotten to close it properly.

While everyone was sleeping, D.W.G. left the house and wandered the neighborhood wearing only a polo shirt and diaper. At around 10:00 p.m., the Edgewater Park Township Police received a call from a resident that a toddler was found walking around the neighborhood alone, knocking on doors. The resident did not recognize D.W.G. or know where he lived. The police responded, and transported D.W.G. to the hospital for examination, where it was determined that the child was unharmed and in good overall health. His identity, however, was still unknown at the time.

Meanwhile, at around 1:00 a.m., K.B. awoke and went upstairs to the kitchen for a snack, when he noticed the door that led outside to the yard was wide open. He then went downstairs to E.B.'s room and noticed that D.W.G. was not sleeping in the bed. K.B. woke up E.B. and informed her that D.W.G. was missing. E.B. became hysterical. After they failed to locate the child, K.B. contacted the police and reported the child missing.

At around 3:00 a.m., Officer Joseph Dunn responded to E.B.'s residence and informed her that D.W.G. was found walking around the neighborhood. After his preliminary investigation, Officer Dunn remained uncertain whether the kitchen door through which D.W.G. exited had been left open by C.G. or whether the toddler had opened it himself. At 3:40 a.m., Officer Dunn alerted the Division of Child Protection and Permanency (Division) to D.W.G.'s identity and home address.

At 11:00 a.m. on January 18, 2012, a Division caseworker responded to the home and discovered that the main lock on the kitchen door handle was broken and the deadbolt on the door was loose and could easily be turned. That same day, the Division effectuated an emergency removal of D.W.G. from E.B.'s care and two days later was granted temporary custody of the child. A fact-finding hearing was conducted on May 17, 2012, and on July 31, 2012, the judge found D.W.G. had been neglected "because [E.B.] did not ensure the safety of the child." The judge reasoned:

[E.B.'s] conduct was grossly negligent because at 3 years of age [D.W.G.] was clearly capable of getting out of bed by himself and walking around. [E.B.], therefore, should have insured that the home was childproof so that [D.W.G.] could not exit the home without an adult present. Childproof means at least a locked door with a lock that functions. As a result of the failure to properly secure the home, [D.W.G.] was able to leave by himself. He was placed at imminent risk of harm because he was wandering around the neighborhood by himself at 10 p.m. at night. This is January when it's dark at 10:00 p.m. at night and, typically, not pleasant weather; certainly not warm.
The [c]ourt is not drawing any conclusions about [E.B.'s] consumption of alcohol on January [17]. It is not clear to the [c]ourt that her failure to properly secure the home was due to her intoxication[, ] . . . or alleged intoxication. The [c]ourt also does not find that [E.B.'s] drinking was in itself abuse or neglect because she began drinking after [D.W.G.] went to bed, and a sober adult, namely, [K.B.], who check[ed] on [D.W.G.], was in the home.
So based on the [c]ourt's findings, the [c]ourt finds that by a preponderance of evidence that [E.B.] abused or neglected [D.W.G.], whose physical, mental or emotional condition was in imminent risk of being impaired because of her failure to exercise a minimum degree of care in not providing him with proper supervision.

On the same day this opinion was rendered, E.B. resumed custody of D.W.G. and the Title 9 litigation was dismissed.

This appeal follows in which E.B. raises the following issues:

I. [E.B.'s] DRINKING ON THE NIGHT THAT DAVID LEFT THE HOME CANNOT BE HELD AGAINST HER BECAUSE SHE ENSURED THAT THERE WAS PROPER SUPERVISION FOR [D.W.G.].
II. THE TRIAL COURT'S DECISION IS NOT SUPPORTED BY THE RECORD BECAUSE THE EVIDENCE SHOWS THAT THE DEADBOLT LATCH MAY HAVE BEEN LOOSE BUT COULD STILL BE LOCKED.
III.THE TRIAL COURT'S DECISION CREATES AN OVERLY BURDENSOME STANDARD FOR PARENTS, POSES A POTENTIAL SAFETY HAZARD FOR YOUNG CHILDREN, AND CONTRADICTS EXISTING STATE SAFETY REGULATIONS.
A. A NEGLECT FINDING IS INAPPROPRIATE DESPITE THE CONDITION OF THE DEADBOLT BECAUSE [D.W.G.] WOULD HAVE BEEN ABLE TO EASILY UNLOCK AND OPEN THE DOOR REGARDLESS.
B. REQUIRING PARENTS TO INSTALL CHILD PROOF LOCKS IS AN UNREASONABLE AND POTENTIALLY HARMFUL STANDARD BECAUSE IT EXPOSES CHILDREN TO A HIGH RISK OF PERIL DURING AN EMERGENCY SITUATION.
C. REQUIRING PARENTS TO INSPECT EXIT DOORS AT ALL TIMES CREATES AN UNREASONABLY BURDENSOME STANDARD.
IV. [E.B.] HAS DONE EVERYTHING IN HER POWER TO COMPLY WITH DCPP AND REMEDY THE SITUATION AND MUST NOT BE INDEFINITELY PUNISHED BY UPHOLDING THE NEGLECT FINDING AND PLACING HER NAME IN THE CHILD ABUSE REGISTRY.

Our scope of review of a trial court's findings of fact in an abuse and neglect case is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Family courts have special expertise with issues involving the welfare of children; therefore, we should accord deference to family courts' fact-finding and credibility determinations. Id. at 413; see also N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

There are two exceptions to this very limited scope of appellate review: first, when the trial judge's decision is "so wide of the mark as to be clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction[, ]" Matter of Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1993) (internal quotation marks and citations removed), and second, "where the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom[.]" Id. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J.Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). Moreover, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Manapalan Twp. Comm., 140 N.J. 366, 378 (1995).

"Actions initiated by [the Division] charging abuse and neglect of children are governed by statute." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J.Super. 155, 163 (App. Div. 2003); N.J.S.A. 9:6-8.21 to -8.73. The purpose of Title Nine "is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means." N.J.S.A. 9:6-8.8. The primary concern of Title Nine "is the protection of children, not the culpability of parental conduct." G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999).

A trial court's "determination that the child is an abused or neglected child must be based on a preponderance of the evidence and . . . only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). Pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), "abused or neglected child" is defined as a child who is less than eighteen years old, 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 . . . (b) 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.

The Court in G.S., supra, defined the phrase "minimum degree of care" as imposing "a lesser burden on the actor than a duty of ordinary care." 157 N.J. at 178. The Court further explained that

[i]f a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.
[Ibid.]

Although "wanton and willful misconduct cannot be described with mathematical precision[, ]" id. at 178, it "implies more than simple negligence[.]" Ibid.; see also Dep't of Children & Families v. T.B., 207 N.J. 294, 305-06 (2011).

In determining a case of abuse or neglect, the court should base its determination on "the totality of the circumstances." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J.Super. 320, 329 (App. Div. 2011). In addition,

[w]hether 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. We recognize that a variety of factual scenarios can give rise to the finding that a guardian has failed to exercise a minimum degree of care, and do not attempt to describe them. We simply remind [the Division] and the courts that the inquiry should focus on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger. 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. Ultimately, we leave it to [the Division] and the courts to determine, on a case-by-case basis, whether a caregiver has failed to exercise a minimum degree of care in protecting a child.
[G.S., supra, 157 N.J. at 181-82.]

By the same token, not every lapse in parental supervision or failure to exercise caution qualifies as abuse or neglect. Nor should hindsight dictate the result. As the Court in Foldi v. Jefferies, 93 N.J. 533 (1983), cautioned:

[W]e can conceive of few accidental injuries a child might sustain that could not have been prevented by closer supervision by his or her parents. Hindsight invariably will expose some slight oversight, some failure to take yet another precaution that somehow contributed to the child's mishap. No parent can do everything. If such claims were allowed, it would be the rare parent who conceivably could not be called to account in the courts for his or her conduct.
[Id. at 547.]

Thus, in T.B., supra, the Court held that a mother was not grossly negligent when she dropped her four-year-old child off at home to go have dinner with a friend, assuming that the child's grandmother was home as she usually is on Sunday evenings and her car was in the driveway. Id. at 297. The grandmother, however, had decided to go to New York City and the child was left home alone as a result. Id. at 298. When the child woke up, he found that no one was home and decided to cross a busy intersection to go to a neighbor's house. Id. at 297. The police were contacted shortly after and the Division substantiated neglect against the mother. Id. at 297-98.

In evaluating the mother's conduct, the Court found that "every failure to perform a cautionary act is not abuse or neglect. When the failure to perform a cautionary act is merely negligent, it does not trigger section (c)(4)(b) of the abuse or neglect statute." Id. at 306-07. Further, the Court reasoned that in determining whether a parent's conduct was merely negligent or grossly negligent it should evaluate whether the conduct subjects the child to future danger. Id. at 307. Governed by that standard, the Court found that the mother, although plainly negligent, was not grossly negligent or reckless in leaving her four-year old son at home with no supervision. Id. at 310; see also N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J.Super. 538, 541-45 (App. Div. 2011) (holding that a father "exercised very poor judgment" but was not grossly negligent for a child's third-degree burns when he put his ten-month-old child on a twin bed, without rails, next to a radiator, and closed the door behind him); N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J.Super. 159, 161-62 (App. Div. 2009) (finding that a mother's conduct, "arguably inattentive or even negligent, " did not constitute "gross negligence" when she allowed a three-year old and a five-year old to walk from a playground to their home while she remained at the playground).

Measured against these standards, we do not find that E.B.'s conduct rises to the requisite level of grossly negligent or reckless to constitute abuse or neglect within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). Obviously, hindsight dictates that E.B. should have fixed the locks on the kitchen door and raised the deadbolt latch to a height out of her young son's reach. However, D.W.G. had never before awakened in the middle of the night and wandered outside the home. Nor was there any evidence that the "broken lock" had previously ever caused any such problem. On the contrary, E.B. had reason to believe her son was safe and secure in the basement bedroom he shared with her because the child was sleeping when E.B. went to bed that evening. Also, the child's adult uncle was present nearby during the entire time D.W.G. was in the bedroom. Moreover, E.B. could reasonably assume that her cousin C.G., who was familiar with the home, would close and secure the door behind her as she departed the premises. Although certainly not dispositive, D.W.G. was unharmed and, more relevant perhaps, this singular, isolated incident would not expose the child to future harm as the underlying condition is easily remedied by simply installing new locks on the door. The failure to have done so earlier, however, under all the extant facts and circumstances, does not, in our view, amount to gross negligence to support the Family Part's neglect finding.

The fact that E.B. had been drinking that evening does not compel a different result. In fact, the trial court's finding of gross negligence was based on E.B.'s failure to "[ensure] that the home was childproof[ed] so that [D.W.G.] could not exit the home without an adult present[, ]" and not on her drinking. As the court commented:

[t]he [c]ourt is not drawing any conclusions about [E.B.'s] consumption of alcohol on January [17]. It is not clear to the [c]ourt that her failure to properly secure the home was due to her intoxication[, ]. . . or alleged intoxication. The [c]ourt also does not find that [E.B.'s] drinking was in itself abuse or neglect because she began drinking after [D.W.G.] went to bed, and a sober adult, namely, [K.B.], who check[ed] on [D.W.G.], was in the home.

We concur with the trial court's observations in this regard. As we explained in New Jersey Division of Youth and Family Services v. V.T., 423 N.J.Super. 320 (App. Div. 2011), "Title 9 is not intended to extend to all parents who imbibe illegal substances at any time. The Division would be quickly overwhelmed if law enforcement was required to report every individual under the influence who had children." Id. at 331. In any event, E.B.'s drinking on the evening in question had no relation to her failure to childproof the locks on the kitchen door. It is that lapse in parental supervision which the court found to constitute gross negligence and therefore neglect -- a determination with which we disagree, having concluded that although flawed and wanting, E.B.'s conduct amounts to simple negligence.

Reversed and remanded for entry of an order removing E.B.'s name from the Central Child Abuse Registry.


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