NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
N.M., Defendant-Appellant, and J.K., Defendant. IN THE MATTER OF J.K., Jr. and J.K., minors
Submitted December 1, 2014
Approved for Publication December 24, 2014.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-103-13.
Joseph E. Krakora, Public Defender, attorney for appellant ( Ruth Harrigan, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent ( Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sara M. Gregory, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.K., Jr. and J.K. ( Margo E.K. Hirsch, Designated Counsel, on the brief).
Before Judges SABATINO, GUADAGNO, and LEONE. The opinion of the court was delivered by GUADAGNO, J.A.D.
[438 N.J.Super. 420] OPINION
Defendant N.M. (Nina) appeals from the trial court's finding that she abused or
neglected her two children by bringing them to [438 N.J.Super. 421] a public park to meet her former boyfriend, J.B. (Jeffrey), who followed her home and raped her in the children's presence. Because the Division of Child Protection and Permanency (Division) failed to establish that the children suffered harm as a result of defendant's actions, and because her conduct was neither reckless nor grossly negligent, we reverse.
In light of the arguments raised on appeal, we recite the facts with particularity. Nina is the mother of J.K., Jr. (James) and J.K. (Jonah). At the time of the incident which gave rise to this litigation, James was two years old and Jonah was one. J.K., Sr. (Joseph) is the father of both children. He was a named defendant in this litigation, but the Division did not seek a finding of abuse or neglect against him, and he is not a party to this appeal.
The Division first became involved with this family in June 2010, when it received a referral from the Bayonne Police Department that Nina reported that Joseph choked her, threw her to the ground, and shook James, who was then one month old. James was later diagnosed with a skull fracture, a subdural hematoma on the left side of his brain, and retinal hemorrhaging in both eyes. Both parents were found to have abused or neglected James. Joseph admitted to choking Nina and injuring James when he threw the child into a car seat. Nina was found to have placed James at risk by permitting Joseph to care for him when she knew or should have known that the Joseph was prone to violence. Nina appealed and we affirmed. N.J. Div. of Youth & Family Servs. v. N.M.,
No. A-5808-11 (App.Div. May 10, 2013).
In 2012, Nina was living in an apartment with her mother, her brother F.K. (Fred), and the two children. Joseph remained incarcerated as a result of his conviction for injuring James. Nina met Jeffrey in March 2012, and they began a casual dating relationship, seeing each other on approximately three occasions until May 2012, when Nina attempted to end the relationship.
[438 N.J.Super. 422] On May 24, 2012, a Bayonne police officer responded to a report of domestic violence at Nina's home. When the officer arrived, he spoke with Fred who explained that he and Nina had an argument over a cell phone. The officer entered the apartment and found Nina sitting on the floor of her bedroom with her face covered in blood. Nina explained that after arguing with Fred, she retreated to her bedroom to avoid further conflict, but Fred forced the door open, which struck her in the face, causing a laceration. Fred was arrested and Nina was taken to the hospital for treatment.
On June 24, 2012, Nina called the police again after arguing with Fred. Bayonne Police Officer Michael Zajac responded, but Fred left before he arrived. Nina, who was not injured, did not wish to file a complaint. Nina explained that she feared that her brother might hit her, and she called the police to prevent the matter from escalating. While in the apartment, Zajac noticed that the children were dirty and the apartment was in disarray. He reported the condition to the Division.
Pedro Cirino, a member of the Division's Special Protective Response Unit (SPRU), went to Nina's apartment that evening at around 8:15 p.m. After speaking with Nina, Cirino asked to see the children. He observed that they were asleep ...