OF YOUTH AND FAMILY SERVICES v. V.G., T.C., AND D.J - IN THE MATTER OF U.G. AND T.C., minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1805-10T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

V.G., T.C., AND D.J.,

Defendants-Respondents.

_______________________________

IN THE MATTER OF

U.G. AND T.C., minors,

Appellants.

_______________________________

November 23, 2011

 

Submitted October 26, 2011 - Decided

 

Before Judges Cuff, Lihotz and St. John.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-0124-10.

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for appellants (Nana Wilson Olson, Designated Counsel, on the briefs).

 

Paula T. Dow, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Christian A. Arnold, Deputy Attorney General, of counsel and on the brief).

 

Joseph E. Krakora, Public Defender, attorney for respondent V.G. (Catherine Reid, Designated Counsel, on the brief).

 

Respondents T.C. and D.J. have not filed a brief.

 

PER CURIAM

The Law Guardian, on behalf of minor children U.G., age three (who we fictitiously name Una) and T.C., age one (who we fictitiously name Theo), appeals from the Family Part's November 9, 2010 order, entered following a hearing concluding the Division of Youth and Family Services (the Division) failed to sustain its burden of proof in this proceeding. The court dismissed the Division's complaint and proposed to return the minor children to their mother V.G. (who we fictitiously name Violet). The Law Guardian argues the court erroneously concluded the Division could not maintain custody of the children pursuant to N.J.S.A. 30:4C-12, absent a finding of abuse and neglect, despite the "ongoing and serious concerns for the children's safety." Further, the Law Guardian maintains the court erred as a matter of law in concluding the evidence did not meet the statutory standard for neglect pursuant to N.J.S.A. 9:6-8.21. We agree and reverse the November 9, 2010 order, remanding for further proceedings consistent with this opinion.

These facts are substantially undisputed. As a child, Violet was in foster care as a result of her parents' substance abuse issues. At age thirteen, she was diagnosed with bi-polar and attention deficit hyperactivity disorders. At nineteen, Violet gave birth to her first child, who was adopted by Violet's foster mother. In 2003, at approximately age twenty-two, Violet was convicted of a Tier Two sex offense, as a result of a five-month sexual liaison with a fifteen year-old girl. Violet served thirty months in a correctional facility and remains subject to community supervision for life as a sex offender. The Division first became involved with Violet in October 2007, after she was paroled. Violet gave birth to X.G. (who we fictitiously name Xander). While living with her infant in a shelter, Violet's score on a mental health assessment suggested concern for her ability to parent Xander, prompting shelter personnel to notify the Division. Following an investigation, the Division found it unnecessary to remove Xander, but directed Violet to undergo psychiatric care. She agreed to attend monthly counseling sessions and medication monitoring.

Following Una's birth in 2008, Violet was informed by her parole officer, Officer Reed, that the initial conditions of her release precluded her from being alone with anyone under age eighteen, even her own children, until she participated in an assessment and was cleared to care for the children. Violet requested her friend D.M. (who we fictitiously name Della) to care for Xander and Una.1 Della has three sons, who at the time were ages twelve, ten, and nine. Una and Xander went to live in Della's home and thereafter, Violet visited them twice a month.

On September 14, 2009, the Division investigated an anonymous allegation of abuse filed regarding Della.2 After learning Violet was a registered sex offender and pregnant, the Division opened a new file in her name. Della told the Division she filed for custody of Una and Xander and was assigned a January 11, 2010 court date. The Division took no action to remove the children from Della's care.

During her visits, Violet began noticing bruises and other marks on Una and Xander. In October 2009, she noted Xander had two black eyes, a cut lip, and a swollen face. She explained she photographed these injuries and took Xander to a hospital emergency room. Violet asserted medical providers told her to "just follow-up" with Xander's pediatrician if the injuries did not heal. Violet questioned Della about Xander's injuries; Della responded Xander had a problem with "balance" and was "always . . . falling around the house." Violet returned the children to Della's care. She did not disclose her concerns to the Division during meetings held on November 9 and December 17, 2009.

On December 17, 2009, Violet agreed to a case plan for the children's care. She told the Division that Una, Xander, and the baby, when born, would be placed in Della's custody and care. She advised the Division she had no abuse and neglect concerns for the children. On December 19, 2009, Violet participated in a psychological assessment to determine whether she could safely have custody of her expected baby.

On Christmas Day 2009, Violet again noticed marks on Xander's neck and face. After Violet questioned Della about the injuries, she accepted Della's explanation that one-year old Una caused the injuries to her thirty-month old brother, and took no further action. However, Della gave a conflicting story to Xander's father, stating Xander had fallen down the steps.

Violet gave birth to Theo in January 2010. As planned, Theo left the hospital with Della. Shortly thereafter, Violet granted Della residential custody of Xander and Una, retaining joint legal custody of the three children along with liberal supervised parenting time. When asked why she did not raise the issue of Xander's injuries during a January 11, 2010 custody hearing, Violet explained "she did not want her children to be split and placed in foster care[.]"

On January 13, 2010, Officer Reed informed the Division Violet had successfully completed a Living With Children Assessment. Judith E. Rosenstein, a psychotherapist who performed the evaluation, determined Violet exhibited "a low level of risk for reoffending[,]" and she recommended Violet be permitted to have custody of Theo and enjoy "unsupervised weekends as well as holidays with her other biological children," conditioned on her attendance at weekly sex-offender therapy. The record contains no information regarding whether Violet followed these recommendations.

During a February 1, 2010 visit, Violet saw a "gash" on Xander's forehead. She photographed the injury and questioned Della about its cause. Della explained Xander fell down the stairs and she intended to take him to the doctor later that day. Satisfied with this explanation, Violet again took no action.

Violet conversed with her Division caseworker, Danushka Dasir,3 on February 7, 17, 18, 23 and 24. The February 18 case notes reflect the first time Violet mentioned concerns for Theo's care. Also, on February 24, Violet stated she had noticed bruises on Xander and had taken pictures.

On February 25, 2010, Della called 911 and Xander was rushed to the hospital. Della stated Xander had fallen down the basement steps twelve hours earlier and suffered a bleeding head wound. Della alleges she contacted the Division and the child's physician and was told she could wait until the following day to obtain medical care. Shortly after midnight, she found Xander face down in the toilet and unable to breathe. Shortly after arriving at the hospital in the early hours of February 25, 2010, thirty-two-month-old Xander died from these injuries. The hospital records state the child suffered from:

2nd 3rd degree burns at the center of the forehead; 3 inch deep laceration at the left eyebrow; right eyebrow area 3 inch deep laceration; left leg distal various contusions; lacerations to the scrotum and penis; healed laceration to the forehead; forehead swollen with hematoma; [a deformed] left wrist[;] and multiple healed lacerations.

The Division executed an emergency removal of Una and Theo. Della was charged with murder and endangering the welfare of a minor.

Caseworker Patricia Arroyo spoke to Violet in February and April 2010. Violet insisted she mentioned her concerns for Xander to Dasir sometime in January and on February 18. Arroyo requested copies of the photographs Violet had taken in October and December 2009, along with the records from October 2009 emergency room admission. Violet provided the photographs but said she could not locate the emergency room discharge slip because she had moved.

Since Xander's death, Violet married on October 2, 2010,4 and is currently disabled. Una and Theo remain in custody of the Division, under the care of a resource family.

The Division filed a complaint seeking custody, care and supervision of Una and Theo on March 2, 2010. On five days spread over five months, the Family Part judge conducted a factfinding hearing.5 The Division presented testimony from its caseworkers, Arroyo and Dasir, who related the Division's involvement with Violet, Della, and the children. The Division also presented testimony from a psychological expert, Brianna Cox, Psy.D., who evaluated Violet in February 2010.

Violet told Dr. Cox she was not taking medication for her bi-polar condition nor was she attending counseling. Dr. Cox described Violet's thinking as "non-linear" and difficult to understand because it was not chronological. Violet presented an "inconsistent affect," often laughing inappropriately, and minimized and denied less favorable items in her history. Violet was also found to lack insight into her conduct. For example, she did not understand why the sexual relationship with a fifteen-year old was inappropriate or how the interaction harmed the minor child. Violet believed she was a victim, suggesting the minor lied about her age.

Dr. Cox opined Violet's current psychological functioning posed serious risks to her children. Her failure to consistently treat her bi-polar disorder and long-standing history of mental illness was problematic, leaving open the risk of future unpredictable behavior. Violet scored 90 on the Millon Clinical Multiaxial Inventory, which identifies pervasive personality characteristics underlying a patient's overt personality disorders and has a cutoff score of 75. Dr. Cox opined Violet suffered from a narcissistic personality disorder, which may be accompanied by "functioning impairment," and an obsessive-compulsive personality disorder. The former resulted in her not accepting responsibility for her actions, putting satisfaction of her needs ahead of others, and blaming others for undesired consequences. In addition, her narcissistic personality disorder interferes with Violet's ability to interact with others, including her children as she lacks empathy and insight, making her unaware of the effect of her conduct, which placed the children at risk for abuse and neglect. Because of the obsessive-compulsive personality disorder, Violet presents conforming behavior with others, however, when alone she acts under her "own code" and not by what others expect. Dr. Cox recommended Violet undergo a psychiatric evaluation, possibly participate in individual therapy, parenting classes, and a sex offender risk assessment prior to Violet's assuming custody of the children.

The court adjourned the hearing for one month to allow Violet to assess the Division's evidence and determine the presentation of her defense. Violet decided not to testify or otherwise present witnesses.

In a November 9, 2010 oral opinion, the court concluded the Division had not sustained its burden to prove abuse or neglect under the statute and ordered the complaint dismissed. Violet informed the court she lacked housing and the Law Guardian sought a stay. The trial judge stayed its order for ten days during which the Law Guardian filed an emergent appeal. We ordered a stay pending our review.

On appeal, the Law Guardian maintains the trial court: (1) erred in interpreting the requirements of N.J.S.A. 9:6-8.21(c)(4), arguing Violet's acts and omissions satisfied the statutory standard for a finding of neglect; (2) erroneously concluded its dismissal of the Title Nine proceeding precluded the Division's continued custody, care and supervision pursuant to N.J.S.A. 30:4C-12, an event which was not in Una and Theo's best interests to be placed in Violet's custody; and (3) abused its discretion in denying the motion to appoint a guardian ad litem for Una and Theo, pursuant to Rules 5:8A and 5:8B.

The Division supports the Law Guardian's position in part. It argues the trial court erred in concluding it failed to prove more than mere negligence.

Violet maintains the Division declined to argue it should continue custody pursuant to N.J.S.A. 30:4C-12, requiring the court to dismiss the complaint. Also, in her brief, she suggests the Law Guardian subsequently has agreed to the Division's plan for the reunification of Una and Theo with her, rendering the Law Guardian's appeal moot. We do not agree the planned reunification moots the legal issues presented.

As a threshold matter, the scope of our review is limited. The factual findings, which undergird a trial court's judgment "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the [] court's credibility determination[s] and the judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). See also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (stating deference is afforded to a trial court's findings of fact as the trial court "has the opportunity to make first-hand credibility judgments about witnesses" who testify). The trial court's "feel of the case [] can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104 (internal quotation marks omitted). We also recognize the special expertise of those judges assigned to the Family Part. Cesare v. Cesare, 154 N.J.394, 412 (1998).

However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made.

 

[N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations and citations omitted).]

 

"The Legislature charged the Division with the responsibility of protecting the health and welfare of the children of this state." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009). See also N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting N.J.S.A. 30:4C-2(a) (defining the Division as the State agency charged with the responsibility for the "care, custody, guardianship, . . . and protection of children[.]")); N.J.S.A. 30:4C-4 (enumerating the powers the Legislature granted to the Department of Children and Families). "New Jersey's scheme for the protection of children against abuse or neglect is codified in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 108 (2011). See also N.J.S.A. 9:6-8.21 to -8.73. The wellbeing of children is the paramount concern. N.J.S.A. 9:6-8.8a. Title Nine permits the Division to immediately remove a child from his or her parent's care when there is an "imminent danger to the child's life, safety or health," prior to applying for a court order. N.J.S.A. 9:6-8.29.

An abused or neglected child is defined, in pertinent part, as

a child less than 18 years of age whose parent or guardian, . . . (1) . . . allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, . . . ; (2) . . . allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, . . . (4) or a child 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 . . . to exercise a minimum degree of care (a) . . . , (b) . . . , . . . [by] 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.9:6-8.21(c)(1)-(4).]

 

Regulations promulgated by the Commissioner illustrate the types of injuries that may constitute abuse. Relevant to this matter, the regulation states:

(a) The allegations of the types of injuries or risk or harm that may be abuse or neglect include:

 

1. Child death;

 

2. Head injuries;

 

. . . .

 

4. Burns;

 

. . . .

 

6. Wounds;

 

. . . .

 

9. Cuts, bruises, abrasions, welts or oral injuries[.]

 

[N.J.A.C. 10:129-2.2.]

 

See also Dep't of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 510-11 (App. Div. 2010) (citing N.J.A.C. 10:129-2.2 as additional guidance to determine those injuries that may constitute abuse and neglect), certif. dism'd as improvidently granted, __ N.J. __ (2011). The statute considers a parent's affirmative acts of abuse against a child, as well as any omissions and failures to act, resulting in the impairment of a child's physical and emotional well-being. N.J.S.A. 9:6-8.9. Also, N.J.S.A. 9:6-8.10 imposes an affirmative obligation on "[a]ny person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse" to immediately inform the Division. Further, the failure to report is a disorderly person offense. N.J.S.A. 9:6-8.14. Thus, in certain circumstances, a parent's failure to act to prevent or address harm to a child may rise to statutory neglect as defined in N.J.S.A. 9:6-8.21(c)(4). G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999).

Interpreting whether a parent has failed "to exercise a minimum degree of care," resulting in injury to a child, N.J.S.A. 9:6-8.21(c)(4), our Supreme Court held that mere negligence does not trigger the statute. See Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B. 207 N.J. 294, 304-05 (2011); see also G.S., supra, 157 N.J. at 177-78. Rather, proving a parent's "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 299-300 (quoting G.S., supra, 157 N.J. at 178). "'Whether a parent . . . failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation'" presented. Id. at 306 (quoting G.S., supra, 157 N.J. at 181-82).

The Court recently reaffirmed the necessary conduct as described in G.S.:

"Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds [her] responsible for the injuries [s]he causes. Thus, under a wanton and willful negligence standard, a person is liable for the foreseeable consequences of her actions, regardless of whether she actually intended to cause injury."

 

[Ibid. (quoting G.S., supra, 157 N.J. at 178-79 (internal citations omitted)).]

 

"[W]e evaluate a claim of abuse [or neglect] by looking to the harm suffered by the child, rather than the mental state of the accused abuser, because '[t]he main goal of Title [Nine] is to protect children.'" K.A., supra, 413 N.J. Super. at 511 (quoting G.S., supra, 157 N.J. at 176). Any determination of abuse or neglect must be shown by a preponderance of the evidence during a factfinding hearing. See N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 552 (1994).

In the absence of abuse and neglect, the Division also may be granted temporary custody of a child, when "it appears [] the child requires care and supervision . . . to ensure the health and safety of the child[.]" N.J.S.A. 30:4C-12. Specifically, the Division may temporarily remove a child when a parent (1) "is unfit to be entrusted with the care and education of such child"; (2) fails to provide the child "with proper protection, maintenance and education"; (3) fails "to ensure the health and safety of such child"; (4) or "is endangering the welfare of the child." N.J.S.A. 30:4C-12. Routinely, when the Division files a complaint seeking care and supervision of a child, it recites not only N.J.S.A. 9:6-8.21, but also N.J.S.A. 30:4C-12, as the statutory authority underpinning its request. "N.J.S.A. 30:4C-12 is an additional tool afforded the Division to discern the most appropriate course of action for a child and his or her family in need of the Division's assistance." N.J. Div. of Youth & Family Servs. v. J.C., __ N.J. Super. __, __ (2011) (slip op at. 11).

Often a child must be placed in the Division's custody at birth, or other times prior to any act of abuse or neglect by a parent. The Division is authorized to "proceed under Title [Thirty], irrespective of a finding of abuse or neglect." N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 109 (App. Div. 2010). See also N.J. Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 612 n.13 (App. Div. 2011) (quotation marks and citations omitted) (stating "in the context of a Title 30 proceeding . . . 'the best-interests standard' applies, and . . . a finding of abuse and/or neglect is not necessary for [the Division] to exercise its jurisdiction.").

More specifically, the Division must aid a parent who is hampered by homelessness, diminished by a developmental delay, or crippled by emotional instability and cannot assume care of the child. Further, when a parent seeks in-patient treatment in a psychiatric facility to address emotional illness, enrolls in a residential rehabilitation program to remediate substance abuse, or is confined as a result of municipal infractions or less serious criminal offenses, the Division may be required to step in because the parent is unable to attend to the physical and educational needs of the child, even though he or she may not have acted or failed to act in a way that satisfies the definition of abuse and neglect. See e.g., N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (2001) (concluding parents' mental illness precluded their inability to parent their child). With these principles in mind, we review the matter at hand.

We first examine the Law Guardian's challenge to the trial judge's conclusion that the Division could only retain custody of Una and Theo if there were a finding that Violet had either abused or neglected one of her children because N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 "must be read together" and include "the requirement of . . . proof of negligence or abuse by this parent." The Law Guardian maintains the court must not dismiss the action and release the children to Violet without assessing the children's best interests.

A factfinding hearing is conducted to test the Division's allegations and determine "whether the child is an abused or neglected child as defined [by N.J.S.A. 9:6-8.21(c)]." N.J.S.A. 9:6-8.44. It is not designed "to assign guilt to a defendant [parent]." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 581 (App. Div. 2010). Once a factfinding hearing is concluded, "[i]f facts sufficient to sustain the complaint . . . are not established, or the court concludes that its assistance is not required on the record before it, the court shall dismiss the complaint and shall state the grounds for the dismissal." N.J.S.A. 9:6-8.50(c).

"Parents have a constitutionally protected right to maintain a relationship with their children." M.M., supra, 189 N.J. at 279. "Although those rights are fundamentally important, they are not absolute, and 'must be balanced against the State's parens patriae responsibility to protect the welfare of children.'" G.M., supra, 198 N.J. at 397 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). The Legislature has charged the Division "to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected." N.J.S.A. 9:6-8.8a. The Family Part must balance these competing concerns to protect the constitutional rights of parents and to secure the safety of children who are at the center of these cases.

In light of the limited statutory guidance of N.J.S.A. 9:6-8.50(c), the question becomes whether, absent a finding the child was abused or neglected, the Division's role is concluded.6 When the proofs presented in a factfinding hearing do not rise to abuse or neglect, but do prove by a preponderance of the evidence that it is unsafe to return the children to the care of a parent and the Division affirmatively grounded the removal of the children on N.J.S.A. 30:4C-12, the answer to the question must be no.7

The Division may retain "care, supervision or custody" of a child "to ensure the health and safety of the child" in the child's bests interests. N.J.S.A. 30:4C-12. "Therefore, irrespective of the outcome of the Title [Nine] hearing, the court had the authority under N.J.S.A. 30:4C-12 to retain custody of the child[ren] because the child[ren]'s health and welfare would be at risk if returned to the home." M.M., supra, 189 N.J. at 292. At all times, the safety and welfare of the children must be paramount.

Although the trial court suggested it would entertain requests by the Division to retain custody under Title Thirty, it nevertheless concluded "pro[of] of a finding [of] negligence toward the children" is a prerequisite to the Division's involvement.8 The court mistakenly concluded the Division's custody of the children must be predicated upon "fact finding of some particularized abuse or neglect." Accordingly, the trial judge erred in denying the Law Guardian's request to allow Una and Theo to remain in the Division's custody and care, pursuant to N.J.S.A. 30:4C-12.

It was undisputed that Violet suffered from mental health problems and was not compliant with prescribed medication for her bi-polar condition. Further, Violet has not cared for the children for any significant period of time, choosing instead to surrender custody and care to Della, even though her parole officer cleared her to care for Theo and have unsupervised overnight visits with the other children.

Violet's personality deficits, as identified by Dr. Cox, further posed a potentially strong risk of harm for the children. Violet's inability to understand Xander's needs, despite observing the child's significant injuries, illustrated this continued risk of harm. Despite viewing her son with two black eyes, a "busted lip," and swollen face, Violet unquestioningly accepted Della's explanations that Xander fell. Della's refrain of Xander's clumsiness was repeated as his head injuries mounted. One serious head injury would alert a reasonably prudent parent something was amiss, resulting in investigation of whether the child was being struck or, at the very least, he was suffering physical problems demanding medical attention. Yet, Violet blindly continued, without taking any precautionary measures.

These comments lead us to the next issue for review, that is, whether the trial judge properly concluded Violet had committed no acts of neglect. The Law Guardian, joined by the Division, argues the trial court incorrectly applied N.J.S.A. 9:6-8.21, as the facts show Violet placed her children in a situation posing a risk of harm and disregarded the probability of continued injury, positing these omissions amount to abuse and neglect. We agree.

We do not defer to the court's legal conclusion that Violet's conduct was not grossly negligent. See N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011) (holding a trial court's determination the defendant was negligent and not grossly negligent is not entitled to any deference as it is a conclusion of law). In reaching this conclusion, the trial judge narrowly interpreted N.J.S.A. 9:6-8.21(c)(4). We reject as error the trial court's conclusion that conduct constituting abuse or neglect is limited to a parent's infliction of harm to a child. See G.S., supra, 157 N.J. at 179 ("Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes."); see also In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (holding the court need not be presented with an act of irreparable injury prior to concluding a parent's inattention to harm resulted in neglect).

In G.S., the Court elaborated on the gross negligence standard as applied to child neglect cases pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), stating:

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 . . . . 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.

 

[Supra, 157 N.J. at 181-82.]

 

This remains the standard when examining "a parent's level of culpability," and assessing whether a failure "to exercise a minimum degree of care" is presented. T.B., supra, 207 N.J. at 306-07.

Again, the failure to exercise a minimum degree of care "at least requires grossly negligent or reckless conduct." Id. at 306. Grossly negligent conduct requires "an indifference to consequences[,]" Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987) (internal quotation marks and citation omitted), but a parent's actual intent to cause harm is not necessary. G.S., supra, 157 N.J. at 179. Any determination of whether a parent failed to exercise a minimum degree of care in protecting a child must be made on a case-by-case basis. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). "The parent's conduct must be evaluated in context based on the risks posed by the situation." T.B., supra, 207 N.J. at 309.

In this matter, the Division's evidence was unrebutted. Viewed under the standard established in G.S., we determine the preponderance of the substantial credible evidence, direct and circumstantial, proves Violet's parental inattention created an actual and imminent risk of serious harm to her children. Her omission -- not taking simple precautionary measures -- evinces her failure to exercise the minimum degree of care proscribed by N.J.S.A. 9:6-8.21.

First, Violet's omission was not an isolated mistake. For over four months, Violet knew Xander was suffering considerable head injuries. In assessing these injuries, the trial judge placed great weight on the Division's failure to introduce photographs Violet took in October and December 2009. Without that evidence, the judge stated he was unable to determine whether the bruises were "routine" or "obvious signs of child abuse," concluding "the State ha[d] not met its burden."

While such proofs would have solidified exactly what Violet knew, the absence of the pictures does not detract from the seriousness of the situation she confronted. Violet described Xander's condition, telling the Division caseworker her two-year old had both eyes blackened, a "busted lip," and a swollen face. Multiple acute injuries on a two-year-old's face should trigger alarms; facial and head injuries are listed in the regulations as possible signs of abuse. N.J.A.C. 10:129-2.2. On two later occasions, Violet observed bloody "gashes" on Xander's forehead. These descriptions conjure significant visualization, easily allowing their differentiation from everyday bumps and bruises accompanying the life of an active two-year old. Even if Della accurately reported Xander's injuries resulted from falls, a reasonably prudent adult would challenge why the child was repeatedly left unsupervised and unprotected. Violet did nothing.

Second, Violet took no curative steps to prevent further injury to Xander. Despite the opportunity to do so, she did not make a report to the Division, the Family Court, Dr. Cox or Ms. Rosenstein. While she talked it over with her boyfriend, who urged her that something was wrong, Violet, nevertheless returned the children to Della.

Third, Violet questioned Della about Xander's injuries but reacted without skepticism to the casual explanations, such as his baby sister hit him, he fell, or she intended to take him to the doctor. Violet never followed-up, had no information of the children's treating physician, and could produce no documentation of her professed reports to medical and Division authorities. Violet's inability to appreciate the children's needs aligns with Dr. Cox's evaluation opining Violet's personality disorders and mental health issues posed harm to the children.

Fourth, Violet expressed fears for her children's separation in foster care and admitted she delayed disclosure of Xander's injuries, which were recorded a week before he died. Further, she took no steps to retain custody of the children following clearance from her parole officer. These facts support Dr. Cox's opinion that Violet's concerns centered more on her needs rather than the children's.

Violet argues the trial judge correctly found no actionable abuse or neglect and the Division is limited in further action. P.W.R., supra, 205 N.J. at 22. We cannot forget that, based on her choices, none of Violet's four children were ever in her full-time care for a significant period of time. Although we agree no evidence supported Violet affirmatively acted to physically or emotionally abuse any of the children, the proofs were much stronger than the court's characterization that they amounted to simply an "amorphous generalized thing." In fact, we determine the evidence presented multiple instances where Violet disregarded the potential danger threatening her children such that any reasonable parent faced with the same facts would have been alerted to the dangers.

We determine the trial judge's conclusion following his evaluation of the underlying facts and the implications to be drawn therefrom, are "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotations omitted). We conclude the Division met its burden to show Violet's conduct constituted grossly or wantonly negligent behavior, meeting the statutory requisites of N.J.S.A. 9:6-8.21(c)(4).

The Law Guardian's challenge to the trial court's denial of the request for a sex offender risk assessment in the context of the factfinding hearing need not be addressed. The parties may present evidence at the dispositional hearings to aid the court's determination of whether the children may safely be released to the custody of their mother. G.M., supra, 198 N.J. at 402.

Finally, we decline to review the denial of the application for a guardian ad litem. The request seeks appointment of an attorney to investigate potential claims in a legal action resulting from Xander's death. The request is insufficiently articulated. No harm results from the denial of the motion as no litigation is pending and any claims of the children will not accrue until they reach the age of majority. See N.J.S.A. 59:8-8(b) (stating under the Tort Claims Act, an action by a minor accrues two years following reaching the age of majority); N.J.S.A. 59:8-8(c) (stating an action by a minor under the Tort Claims Act does not accrue until "coming to or being of full age").

R

eversed and remanded.

1 During a psychological assessment conducted in December 2009, Violet described Della as her step sister. At other times she stated Della was the children's "godmother."

2 This assertion is contained in the Division's complaint. However subsequent pages in the complaint that may have explained this event are missing and the Form 9-7 recording the referral is not included in the record.

3 On the first day she testified, the case worker's surname was spelled "Dasir"; however, when she resumed her testimony it was spelled "Decere." We have chosen to use the former throughout our opinion.

4 Violet married the man she believed was Theo's father. Subsequent genetic testing revealed this belief was unfounded.

5 The record fails to explain the excessive delay occasioned between the limited periods of testimony in the factfinding. "Any adjournment granted in the course of [a Title Nine] proceeding should be for as short a time as possible." N.J.S.A. 9:6-8.49. Also, N.J.S.A. 9:6-8.48 precludes adjournments in factfinding hearings for periods beyond thirty days.

6 We need not address the question of whether any disposition follows the court's dismissal of allegations of abuse or neglect. However, there may be circumstances where the children's immediate return to their parents is neither practical nor possible. In this matter, Violet had insufficient housing to accommodate her children. We observe the statute suggests final disposition may also be adjourned "to enable [the court] to make inquiry into the surroundings, conditions, and capacities of the persons involved in the proceedings." N.J.S.A. 9:6-8.48(b).

7 In the absence of claims pursuant to N.J.S.A. 30:4C-12, the Division would be required to file a new complaint.

8 The record suggests this position was advocated by the Division, which presumably favored a finding of abuse and neglect under Title Nine.