NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.J.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.J.,

Defendant-Appellant,

and

E.W.,

Defendant.

__________________________________

IN THE MATTER OF J.J.W and

J.J.W., Minors.

__________________________________

Argued March 24, 2015 Decided June 15, 2015

Before Judges Reisner and Higbee.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-140-13.

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

Steven Hahn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Hahn, on the brief).

Damen J. Thiel, Designated Counsel, argued the cause for the minors, J.J.W. and J.J.W. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Thiel, on the brief).

PER CURIAM

Defendant, J.J.1, appeals a November 4, 2013 order of the family court, finding that she neglected her daughter, Jane, pursuant to N.J.S.A. 9:6-8.21c. We reverse.

The facts underlying the court's neglect finding are as follows. J.J. and Joe (father), the biological parents of two children, Jane and James, separated prior to the Division of Child Protection and Permanency's (Division) involvement in this matter. The two children resided with J.J. after the parent's separation.

On October 8, 2012, the police received a call at approximately 2:30 a.m., notifying them that a young child had been crying outside of a residence. Officer Hollain responded, finding Jane, then two years old, and two other officers outside of the home. The officers observed that Jane was alone on the porch, crying, and dressed in short-sleeved pajamas with no shoes or socks. Officer Hollain testified that it was forty-two degrees outside, but that Jane was physically unharmed and did not require any medical attention.

After finding Jane on the porch, the officers placed her in the back seat of a patrol vehicle to keep her warm. The officers asked her how she got outside, for which she had no explanation. She did, however, tell the officers that her mom's car was across the street and "she gone." Thereafter, the officers attempted to get someone's attention inside by knocking on the door and shining flashlights in the windows. They also had dispatch call J.J.'s known telephone numbers, and attempt to contact her. Despite those efforts, the officers were unsuccessful in getting anyone's attention in the home.

Having elicited no response, Officer Hollain used his pocket knife to gain entry to the house. The officers then searched the apartment and found J.J. and James, then four years old, asleep together in the same bed. Officer Hollain explained that J.J. was in a deep sleep, and that it was difficult to wake her. When J.J. woke up, the officers informed her that Jane had been found outside by herself. J.J. responded that Joe had probably come into the apartment and let Jane get outside. She indicated that Jane had been sleeping in bed with her. J.J. assured the officers that she had locked and chained the door, and that her daughter was too small to open the door on her own. J.J. averred that Jane had never before left the house by herself.

With regard to the officers' observations that night, they noted the chain lock on the door was intact, and did not appear to be damaged. Officer Hollain testified that after speaking with J.J. and looking around in the apartment, the police placed J.J. under arrest for endangering the welfare of a child. J.J. was then transferred to the police department for processing, and the case was referred to the Division.

Division worker Toshia Gresham responded to the referral by the police. She initially interviewed J.J., who acknowledged that Jane woke up and left the home without her knowledge. J.J. explained again that she believed Jane's father, Joe, had stolen a police report off her living room table, and left the home leaving the door open.2 Gresham also spoke to Joe, who denied being at J.J.'s home that night.

Finally, Gresham interviewed Jane. Gresham explained that Jane told her she woke up and left the home on her own that night. Jane continued that she opened the door by herself, and that she did not see her dad that night. Also according to Gresham, Jane explained that she had opened the door by herself before, but did not specify whether she had done so without adult supervision. Jane told Gresham that she thought the police came that night because she was "cold."

At the conclusion of Gresham's investigation, she decided that a Dodd removal3 was necessary. The following day, the Division visited J.J.'s home to conduct an inspection and serve her with the Dodd notice, and both of J.J.'s children were removed from her care. During the inspection, the Division worker noted that J.J. "showed this worke[r] that it would be difficult for [Jane] to open the door."

Thereafter, on October 10, 2012, the Division filed an order to show cause and a verified complaint for custody, care, and supervision of Jane and James. The court concluded that Jane and James should remain in the Division's care. On October 17, 2012, Division Caseworker Dody Bullerman interviewed J.J. and inspected her home. At that time, J.J. continued to assert that Joe had placed Jane on the front porch so that she would get in trouble with the police. J.J. told Bullerman that Jane "often gets up in the night to get something to drink."

As part of the investigation, Bullerman measured the locks from the floor, took pictures, and compared them to Jane's height. Bullerman testified that "it's twelve to 13 centimeters from the door lock to the flip lock. And there's fifty-nine centimeters from the bottom of the door to the chain lock." She noted that Jane was ninety-nine centimeters tall at the time. Based on those measurements, she concluded that Jane could reach the door lock. Bullerman finally noted that the door opened easily when not locked, but had to be forced shut when being closed.

On November 28, 2012, the court heard the return on the order to show cause. There, it was noted that J.J. tested negative for any illicit substances both prior to, and on the day of the return hearing. During the hearing, J.J. requested custody of her children be restored, which was denied despite the fact that she had moved to a new apartment with safer door locks. The court did, however, grant unsupervised visitation with both children.

On April 25, 2013, a consent order was executed restoring custody of the children to J.J. Subsequent to that order, on April 30, 2013 and May 1, 2013, the court held a fact-finding hearing to determine whether J.J. abused or neglected Jane under Title 9. The court heard the testimony of Hollain, Gresham, and Bullerman, as described above. Thereafter, the litigation was terminated, pending only the court's fact-finding decision, which was eventually issued on November 4, 2013.

The court found by a preponderance of the evidence that J.J. neglected the child based on the court's findings of fact and conclusions of law, pursuant to N.J.S.A. 9:6-8.21(c), as set forth in the fact finding order

[J.J.] failed to take the cautionary act of securing the locks in her home, thus the 2-year-old child [Jane], who mother knew gets up at night, was able to leave the home, exposing the child to imminent risk of substantial harm due to the proximity to the street and the child was inappropriately attired as it was 42 degrees outside.

The court also issued an oral decision, which summarized the testimony and recited the measurements and depiction of the door and locks. In finding that J.J. had neglected Jane under N.J.S.A. 9:6-8.21(c), the court noted that the police found the chain-link lock intact, and therefore concluded J.J. never secured the same. The court continued that

[b]ased upon the measurements taken, the child was capable of opening that lock due to her height. [She] was clearly tall enough to reach the doorknob and open the door. The fact that the child may have never previously opened the door, although she claims she has, does not mean that [J.J.] did not act with reckless disregard. Precautionary action failed to perform is making sure the door was fully secured, particularly when she acknowledged she was a heavy sleeper and the child was tall enough to open the door, and [J.J.] admitted that the child often gets up at night. . . . The child was placed at imminent risk of substantial harm. The porch abutted the street, the child was dressed in inappropriate clothing, in consideration that it was 42 degrees out.

In this appeal, J.J. essentially makes two arguments. First, she argues that as a matter of law, the events of October 8, 2012, as alleged by the Division, do not amount to neglect. She also argues that the trial court erred in its findings of fact, and there was no substantial and credible evidence supporting a finding of neglect. We agree.

A reviewing court will not disturb a trial court's abuse and neglect finding as long as it is supported by adequate, substantial and credible evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.T., 269 N.J. Super., 172, 188 (App. Div. 1993)). Nonetheless, a trial court's findings are not entitled to deference when they are "so wide of the mark that the judge was clearly mistaken." Ibid. If the allegations included alleged "'error in the trial judge's evaluation of underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." Ibid. (quoting J.T., supra, 269 N.J. Super. at 188-89).

Title 9 governs abuse and neglect actions. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). The underlying purpose of Title 9 is to "provide for the protection of children under 18 years of age who have had serious injury inflicted upon them." N.J.S.A. 9:6-8.8(a). Title 9 defines "abused or neglected child" as a

child less than eighteen years of age 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, as herein defined, 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.

[N.J.S.A. 9:6-8.21(c) (emphasis added).]

"'In the absence of actual harm, a finding of abuse and neglect must be based on proof of imminent danger and substantial risk of harm.'" N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 416 (App. Div.) (quoting N.J. Dept. of Child. & Families v. A.L., 213 N.J. 1, 23 (2013)), certif. granted, 220 N.J. 41 (2014). Yet, the Division only needs to show that it was more likely than not that the defendant abused or neglected the child. N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010). Although a court does not need to wait for a child to actually be irreparably impaired by a parent, "the Division must show imminent danger or a substantial risk of harm to a child by a preponderance of the evidence." A.L., supra, 213 N.J. at 36 (citing N.J.S.A. 9:6-8.21(c)(4)(b), -8.46(b)).

A "minimum degree of care," as required by N.J.S.A. 9:6-8.21(c)(4)(b), does not refer to mere negligent conduct, but "'refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.'" N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 300 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999)). The Court in G.S., supra, noted that conduct is willful or wanton if it is "done with the knowledge that injury is likely to, or probably will result." 157 N.J. at 178. The essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179.

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 . . . . [T]he 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.

[Id. at 181-82.]

In the present case, Jane was not actually harmed, and therefore the Division must prove that she was in imminent danger or at a substantial risk of harm. To do so requires the State show that J.J. failed to exercise a "minimum degree of care." The failure to lock a chain lock does not reach that level of neglect. It is not a reckless act and is not indicative of grossly or wantonly negligent conduct.

We further agree with J.J. that the court went wide of the mark in assessing the evidence presented. Even if believed, the child's statements did not establish neglect. The court also relied on the measurements testified to during the hearing and repeated them in its oral decision. These measurements on their face are plainly inaccurate. According to the testimony at trial and photographs in the record, the door knob was measured at thirty-two to thirty-three centimeters off the ground; the flip-lock twelve to thirteen centimeters above the door knob; and the chain lock at fifty-nine centimeters above the floor. Since one foot is approximately thirty and one-half centimeters, the door knob would have been approximately one foot off the ground, the flip lock less than two feet, and the chain lock at approximately two feet off the ground. It is these measurements that were relied upon to establish the child could open the door. Further, even if the child was tall enough to open the door, the fact that a two-year old child discovered how to open the apartment's front door, and unexpectedly did so in the middle of the night, does not justify a finding that her mother was grossly negligent.

Because we do not find there was sufficient credible evidence to support the finding of neglect as defined under Title 9, and further find that even accepting the allegations made by the Division to be true, they do not support a finding of abuse or neglect under the applicable law, we reverse the fact finding order. We remand to the trial court for the limited purpose of entering an order vacating the finding of abuse or neglect and directing that defendant's name be removed from the Central Registry.

Reversed and remanded to vacate the order.

1 Abbreviations and fictitious names are used to protect the parties involved in this matter.

2 J.J. and Joe had a history of custody and domestic violence disputes.

3 A "Dodd removal" refers to the emergency removal of a child from the home without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.