DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.M IN THE MATTER OF M.C a minor

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NOT FOR PUBLICATION WITHOUT THE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.

S.M.,

Defendant-Appellant.

____________________________

IN THE MATTER OF M.C.,

a minor.

____________________________

February 10, 2016

Submitted January 11, 2016 Decided

Before Judges Accurso and Suter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-87-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Diane H. Kim, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant S.M. (Shaune) appeals from an April 12, 2013 fact-finding order, now final, that she neglected her one-and-a-half-year-old infant M.C. (Marco), in violation of N.J.S.A. 9:6-8.21c, by failing to make appropriate arrangements for him over a weekend.1 Because we conclude the Division of Child Protection and Permanency did not prove imminent danger or a substantial risk of harm to the child by a preponderance of the evidence, N.J.S.A. 9:6-8.21c(4)(b), -8.46b, we reverse.

These are the facts the Division presented at the fact-finding hearing. Defendant did not testify or present any witnesses. Shaune was sixteen when she gave birth to Marco. The Division had no involvement with this family until Saturday night December 22, 2012 when it received a call from the child's paternal aunt that she had Marco, and Shaune was not answering her phone. According to the aunt, on December 20, Shaune left Marco in Paterson with Shaune's sixteen-year-old friend, Minnie, and Minnie's mother to baby-sit Marco overnight so Shaune could go to work. The aunt claimed that Minnie said Shaune was supposed to return to pick up Marco at 11:00 p.m. on Saturday night, that she had not done so, and that Minnie could not care for Marco any longer. The aunt claimed when Minnie was unable to reach Shaune by telephone, she brought Marco to her to care for the baby.

When Division workers responded to the aunt's home, they found Marco healthy and happy, appropriately dressed in footed pajamas and showing no signs of neglect or ill-treatment. The aunt told the Division workers that Shaune brought Marco to her home immediately after his birth and left him there. She claimed Shaune only visited the baby once a month for about five minutes. The aunt assumed responsibility for the child and petitioned the court for custody. When Shaune got notice of the filing, she came to the aunt's home with police to retrieve the baby. The aunt claimed to have heard nothing from Shaune and not seen Marco since that incident, which she reported occurred two months before. The aunt told the workers that because "things were good and [Shaune] was taking care of [Marco] she did not pursue custody." When the workers could not contact Shaune at the phone number provided by the aunt and no one answered the door at her home, the workers effected an emergency removal, leaving the child in the aunt's care.

Two other Division workers the next morning tried to locate Shaune to serve her with the removal papers. The workers tried contacting her at another phone number they obtained from State sources to no avail. They also went to her home. After knocking repeatedly, the door was finally answered by Shaune's mother, who told them Shaune did not live there and she did not know how to contact her.

When the workers made contact with the aunt late in the day to see if she had had any contact with Shaune, the aunt said Shaune had been "calling her 'off the hook'" all day very upset. Using the cell number Shaune was using to call the aunt, the workers finally made contact with her. Shaune told the worker that her son should not have been placed with his aunt, that he "is well cared for" and that she had left him with a baby-sitter whom she had paid to care for her son while she was at work. Shaune told the worker she would catch a bus home from East Orange and meet with the worker in the morning at the Division's office.

Although the worker who met with Shaune the next day did not testify at the hearing, we draw what occurred at the meeting from the Division's investigative summary in evidence. Shaune explained that she took Marco on Friday night around 8:30 p.m. to stay with her friend Minnie, who was sixteen or seventeen years old, and Minnie's sister, who lived in the aunt's building. She left Minnie with pampers, food, clothing and ten dollars in case she needed to buy anything for the baby.

Shaune said she had gotten a job that same day with a temp agency in East Orange. She explained "you just go and fill out a form and they obtain employment for you at factories." She told the worker that she worked Friday night at a cookie factory from 10:00 p.m. until 5:00 a.m. She then worked a second shift from 9:00 a.m. until 3:00 p.m. on Saturday. She claimed she checked in with Minnie late Friday night and again after her shift ended on Saturday afternoon. When she texted Minnie on Saturday, Minnie replied that Marco was fine and they were at the mall.

Shaune related that Minnie asked her whether she could keep Marco for another night and that she agreed. She claimed that when she texted and called Minnie on Sunday morning, however, she got no response. She went to Minnie's sister's apartment later that afternoon, but no one answered the door. Shortly afterwards, she got a call from her mother reporting that the Division was looking for her. Shaune could not explain to the worker why her mother would claim she did not live at her home. She did offer that her mother had a history with the Division, however, and may not have wanted "to be bothered" with workers from the Division visiting her home.

Shaune denied ever leaving Marco with his aunt, denying the aunt's account that the baby lived there after his birth. She claimed she and the baby lived with her grandmother for the first five months of his life. She admitted living at the aunt's house for three months with the aunt's brother, Marco's father, and Marco when the baby was five months old. Shaune claimed the aunt kicked her out and has been "out to get her" and to get custody of Marco.

Shaune was confused as to how Marco ended up with the aunt after Shaune left him with Minnie. She told the worker she had a "gut feeling" that the aunt "just went upstairs and intimidated her friend and just 'took the baby.'" She provided Minnie's phone number to the worker but said Minnie had not been taking her calls. When Shaune reached Minnie on Sunday using another number, "all [Minnie] could say was 'I'm sorry' and hung up the phone." Shaune agreed to cooperate with the Division and to submit to a drug screen.

The Division never interviewed Minnie, her mother or sister. A worker did contact Minnie but because she was a minor, wanted to secure permission from her mother before interviewing her. Minnie provided her mother's name and number but the worker was unable to contact her. The aunt provided the worker with the location of Minnie's sister's apartment, but no one answered the door. The Division's record reveals that the aunt had a history of charges of harassment and terroristic threats but no details were provided. Shaune's urine screen was positive for marijuana.

At the conclusion of the hearing, Shaune's counsel argued the Division had fallen far short of proving that Shaune placed Marco at a substantial risk of harm. He claimed the Division's investigation was incomplete and unreliable because based almost entirely on hearsay provided by the baby's aunt, "a very interested third party." He argued that Minnie, the "key player, the person most likely to tell the whole story," was never interviewed.

He also argued the Division had failed to prove that leaving Marco with Minnie, who was of typical age for a baby-sitter, and her mother was not an appropriate arrangement. He discounted the single positive drug screen, as there was no proof Shaune had ever used drugs while caring for Marco. Finally, he noted the aunt's admission that Shaune had called the aunt "off the hook" on Sunday upset and worried about her son. Instead of inquiring into why the aunt had not immediately contacted the Division after the first call and interviewing the baby-sitter, her mother and sister, "the investigation was closed and the aunt's side of the story, the referral, was basically wholesale adopted by the Division."

The Law Guardian, although arguing that Shaune exercised "poor judgment" in leaving Marco, only one and a half years old "with a 16 year old an entire weekend, including two overnights," agreed the Division's investigation was "very incomplete" and that it had failed to meet its burden of proving abuse and neglect under the statute.

The Division argued that "the mother could have easily brought the babysitter . . . to testify" and "[s]o to say . . . that the Division didn't bring the babysitter, who's a minor, I should add, it's not fair." The Division also argued the mother "could have presented to the court evidence that she was working that weekend. She didn't do that." Contending that "at the time the Division became involved, this child needed a placement," that leaving the child with a sixteen-year-old girl for the weekend is not the same as doing so "for a couple of hours," and that the urine screen "really raises concern as to [Shaune's] ability, then, to safely care for the child," the Division argued "the court [had] more than sufficient information to make a finding by a preponderance of the evidence that [Shaune] failed to provide proper supervision to her child pursuant to N.J.S.A. 9:6-8.21c(4)(b)."

The judge "agre[ed] with the Division." Reminding the parties the Division's burden was only a preponderance of the evidence, the judge concluded, "I think there's enough here." The judge determined there were "very bad judgment calls made here by the defendant." He found nothing to show "that a 16 year old girl was able to take care of this child overnight. And not only for one night, but for two nights." We quote the remainder of the judge's opinion.

Number two, . . . I find it incredible that [defendant] does not know . . . where she went to work. . . . She doesn't know the name of the company. She doesn't know where the babysitter lives.

She accepts . . . a text that everything is okay. We don't know what she's done between the hours of 4:00 and 9 o'clock in between the two shifts. I think there's . . . a complete lack of some kind of supervision by this mother, under these circumstances.

We can't . . . I just think . . . I think it's negligent to leave your child with someone under these circumstances. I find the Division has met its burden.

Defendant and the Law Guardian argue on appeal that the judge erred in concluding that the Division met its burden of proving defendant abused or neglected Marco under N.J.S.A. 9:6-8.21c(4)(b). We agree.

We begin our analysis by emphasizing that defendant had no obligation to call witnesses or to prove anything in this proceeding. The burden of proving that defendant abused or neglected her child by a preponderance of the evidence was on the Division. N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22 (2013).

Moreover, mustering proof of a parent's bad judgment or mere negligence, the only explicit findings the court made in this case, is not enough to establish abuse or neglect under N.J.S.A. 9:6-8.21c. That statute defines an "abused or neglected child" as

a child less than 18 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 . . . 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 . . . .

[N.J.S.A. 9:6-8.21c(4)(b).]

Our Supreme Court has explained that "a minimum degree of care," denotes

a lesser burden on the actor than a duty of ordinary care. If 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.

[G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999).]

The Court has recently again emphasized that "[t]he text of N.J.S.A. 9:6-8.21c(4)(b) is designed to capture grossly negligent conduct that has harmed or poses a risk of imminent harm to a child." N.J. Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 186 (2015). Grossly negligent or reckless behavior by a parent may support an inference that the child is subject to future danger, but "where a parent is merely negligent there is no warrant to infer that the child will be at future risk." Dep't of Children & Families v. T.B., 207 N.J. 294, 307 (2011).

Applying those standards here, we have no hesitation in concluding that the Division's proofs fell short of establishing that defendant failed to exercise a minimum degree of care for her son, and the court's findings that defendant exercised "very bad judgment" and was "negligent" in leaving Marco with Minnie, are insufficient to establish child abuse or neglect.

An abuse or neglect proceeding implicates a parent's substantial rights. Thus "it is of great importance that the evidence upon which judgment is based be as reliable as the circumstances permit and that the answering parent be given the fullest possible opportunity to test the reliability of the [Division's] essential evidence by cross-examination." In re Cope, 106 N.J. Super. 336, 343 (App. Div. 1969). Here, unfortunately, defendant and the Law Guardian are correct that the Division's investigation left much to be desired. The Division appeared to have accepted without question the report of the aunt, which was based largely on hearsay, and whom the Division had reason to suspect might not have been a completely objective reporter. The Division did not interview the baby-sitter, nor her mother or sister.

The Court has stressed that "the question of whether a particular event is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one." T.B., supra, 207 N.J. at 309. The cases are fact sensitive, and "[t]he parent's conduct must be evaluated in context based on the risks posed by the situation." Ibid. Categorical conclusions in "all but the most obvious instances" must be avoided." E.D.-O., supra, 223 N.J. at 180.

A full investigation may have revealed that this young parent was negligent or even grossly negligent in making plans for her child. A determination on that point, however, was not possible on this record, as there was no way of assessing the risks posed by defendant's conduct given the dearth of evidence presented by the Division. The trial court's findings do not establish abuse or neglect in violation of N.J.S.A. 9:6-8.21c.

Reversed.

1 The names of defendant, her child and defendant's friend, the baby-sitter, are all fictitious. We assign fictitious names in order to protect the child's privacy.