DIVISION OF YOUTH AND FAMILY SERVICES v. F.M. and L.M IN THE MATTER OF K.R. and K.R Minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0600-10T2

A-0601-10T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

F.M. and L.M.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF

K.R. and K.R.,

Minors.

February 7, 2012

Submitted October 31, 2011 - Decided

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FN-21-0115-09.

Joseph E. Krakora, Public Defender, attorney forappellant F.M.(John A.Salois, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant L.M. (Chanima K. Odoms, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sandra L. Ostwald, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for Minors K.R. and K.R. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated appeals, defendants L.M. and F.M. appeal the March 5, 2009 determination that they abused or neglected K.R., who was then sixteen years old, as defined by N.J.S.A. 9:8.21(c)(4)(b), after a fact-finding hearing. See N.J.S.A. 9:6-8.44. For the reasons that follow, we reverse.

The relevant facts are undisputed. In the late afternoon or early evening of September 16, 2008, K.R. became embroiled in an argument with her older sister, E.R., at the sister's home, over babysitting money K.R. claimed E.R. owed her. At the time, K.R. was under the influence of marijuana and Klonopin, a prescription anti-anxiety medication. K.R. had been abusing drugs for an unspecified period of time prior to this episode. Since the prior year, the Division had provided services, including counseling for K.R. L.M. is K.R.'s mother; F.M. is her step-father.

E.R. called L.M., who drove over with F.M., to intercede in the quarrel. L.M.'s recollection was that she and her husband were in the midst of running an errand when they were contacted by E.R. They drove to E.R.'s apartment, and L.M. was able to convince K.R. to leave with her and F.M. L.M. wanted K.R. to return home, while K.R. insisted on being driven to a friend's house.

L.M. attempted to force K.R. into the car while F.M. waited and eventually succeeded in doing so, after K.R. got out of the vehicle at least once. In the struggle, L.M. left finger marks on K.R.'s upper arm and K.R. hit her face, causing a small bruise. When K.R. finally got in the car, she refused to tell her parents the friend's address, and as they drove away, she demanded that she be dropped off at a nearby corner. K.R. got out of the car and disappeared down an alley.

Shortly thereafter, at approximately 7:00 p.m., K.R. called the Phillipsburg police, claiming that her mother had hit her, pushed her into a car, and bruised her arm. She was taken to the station, where police photographed her bruised arm and face, and called the Division. During the interview by the Division worker, K.R. denied that her mother had struck her and said she thought the bruise occurred when L.M. and she were wrestling as L.M. attempted to force her into the car. K.R. said that her mother had never hit her but that she was nonetheless afraid to go home, would run away if forced to go home, and was afraid of her mother.

When the episode occurred, L.M. and F.M. had the phone numbers for K.R.'s counselor and a local mobile crisis unit and called neither resource. At approximately 10:00 p.m., they were contacted by the Division worker from the police station. L.M. told her that K.R. should be placed in a drug rehabilitation facility.

The key issue in this case concerns L.M.'s and F.M.'s failure to act after K.R. got out of the car. The trial judge found that their lack of response constituted abuse and neglect because, despite knowing their child was under the influence, once she walked away, they did not "attempt to get help for her . . . ." The judge concluded that the Division had proven its case by a preponderance of the evidence because "no one went after this child, no one tried to get her help after she disappeared out of this car. Nobody acted to protect her." She went on to state:

[O]nce . . . the child left the car, she was left . . . on her own in a state, in a mental and psychological state on drugs, which could have put her at serious risk of harm.

We don't know . . . where [she was] and what was she going to do with whom and what trouble could she have gotten? She could have gotten hurt.

Defendants contend that, contrary to the judge's determination, their conduct did not constitute failure to exercise a minimum degree of care, was not grossly or wantonly negligent, and did not meet the statutory standard.

When error in the fact-finding of a judge sitting without a jury is alleged, the scope of appellate review is limited. The court may only decide "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record. This involves consideration of the proofs as a whole . . . ." State v. Locurto, 157 N.J. 463, 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The appellate court must defer to the trial court's findings that were "influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case," State v. Mann, 203 N.J. 328, 336 (quoting Johnson, supra, 42 N.J. at 161), particularly "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).

Additionally, a trial court's conclusions are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1984). Any conclusions that flow from the findings of fact must be given deference. Ibid.

The deference we accord the trial court, however, is less expansive when challenges are raised such as the one in this case not that the judge erred in deciding credibility, but that she erred in "evaluat[ing] . . . the underlying facts and the implications to be drawn therefrom . . . ." Matter of Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993) (quoting Snyder Reality, Inc. v. BMW of N. Amer., Inc., 233 N.J. Super. 65 (App. Div.), certif. denied, 117 N.J. 165 (1989)). Deference is inappropriate if the trial court's findings derive from a misunderstanding of applicable legal principles. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007); N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002).

The relevant statute reads that an "[a]bused or neglected child" is:

(4) [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 or guardian; as herein defined, to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship [or] by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, . . . 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)(4)(b).]

In other words, the conduct must equate to gross or wanton negligence. G.S. v. Dep't of Human Servs., N.J. Div. of Youth & Family Servs., 157 N.J. 161, 178 (1999). Gross or wanton negligence requires knowledge "that injury is likely to, or probably will, result." Ibid. (quoting McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)).

The conduct need not be intentional, but the potentially harmful consequences must be reasonably foreseeable. See id. at 179-80. The proper focus of the inquiry must be on the potential of harm to the child. Id. at 180. Examples cited by the Court in G.S. included recklessly creating the risk of gouging a child's eyes by striking him in the face with long nails, or adding boiling water to a child's bath without testing the temperature. Ibid. Furthermore, when a cautionary act by a guardian "would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum of care as a matter of law." Id. at 182.

The standard "is not whether some potential for harm exists." N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168 (App. Div. 2009) (emphasis added). In J.L., a mother allowed her children, then five years old and three years old, to walk unsupervised from a playground to their nearby condominium to change their clothing. Id. at 161. The children somehow locked themselves into the home and called 911. Id. at 162. The mother returned home a half hour later and only realized something was amiss when she saw police officers at her door. Ibid. We did not find leaving a five-year-old and a three-year-old alone for a minimum of half an hour to be the type of gross or wantonly negligent conduct included within the purview of the statute. Id. at 169.

Similarly, in Department of Children & Families, Division of Youth & Family Services v. T.B., a mother put her four-year-old child to bed, and then left the home, assuming that the child's grandmother was upstairs. 207 N.J. 294, 297 (2011). The child's mother did not confirm the presence of any other adults in the house prior to her departure. Id. at 298. The child awakened, found he was alone, and crossed a busy street to reach neighbors. Id. at 297. Because it was the norm for the grandmother to be home at that hour of the evening, and it was not unreasonable for the mother to assume she was present, the conduct was not found to be grossly or wantonly negligent. Id. at 310.

Lastly, in New Jersey Division of Youth & Family Services v. R.S., ___ N.J. ___, ___ (2011), a father visited his eleven-year-old child twice, supervised by the Division, while under the influence of marijuana and cocaine, as verified by subsequent drug screens. Id. (slip op. at 5-6). The visits were unexceptional, id. (slip op. at 15), and the Division learned he had been under the influence only when the test results came back positive. Id. (slip op. at 5-6). We therefore concluded that the behavior did not inherently create a substantial risk of harm to the child. Id. (slip op. at 14-15). As we explained, despite the father's ingestion of cocaine and marijuana, no testimony was presented as to the effect the specific level of use would have had on the father's behavior. Id. (slip op. at 15). Because the potential for harm attributable to his drugged condition was speculative, it was found to be merely negligent conduct. See ibid. It was not grossly negligent and therefore did not fall within the statute's purview. Ibid.

Thus in order to determine whether a parent's conduct has made a child an abused or neglected child as defined by the statute, we must inquire "into the surroundings, conditions, and capacities of the persons involved in the proceedings." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 163-64 (App. Div. 2003) (quoting N.J.S.A. 9:6-8.48(b)). In this instance, the age of the child, the fact that the family had lived with K.R.'s drug use for some unspecified period of time, the daylight hour in which the incident occurred, that mother and child engaged in a major conflict in order to get K.R. in the car, and the fact that K.R. was in her own community, are circumstances that weigh towards the conclusion that although L.M. and F.M. were negligent in their response to the crisis, their conduct was not gross negligence. The determination "of whether a particular event is to be classified as merely negligent, grossly negligent, or reckless can be a difficult one . . . . There exists a continuum between actions that are grossly negligent and those that are merely negligent. The parents' conduct must be evaluated in context based on the risks posed by the situation." T.B., supra, 207 N.J. at 309.

In this case, although it is undisputed that K.R. was under the influence, we have nothing establishing this teenager's level of intoxication at the moment she walked away from the car. The record does not indicate that K.R.'s intoxication was so extreme that in and of itself it posed a risk to her well-being requiring the parents to obtain professional or police intervention before she left the car. Nothing in the record leads us to conclude that the possibility of harm in this situation is more than mere speculation. And the truth of the matter is that, other than shielding themselves from charges of neglect, had the parents called for assistance, the call would not have protected the child from harm, as they did not know where she went once she got out of the car and, short of brute force, they had no means to keep her there. Indeed, L.M.'s initial efforts to compel K.R. to get in the car and go home resulted in the ultimately futile, nearly physical confrontation between mother and daughter.

We therefore find that in these unique and unusual circumstances, L.M. and F.M.'s failure to contact anyone with regard to K.R.'s condition for a minimum of three hours does not rise to the level of gross negligence. Certainly it was a less than satisfactory response, demonstrative of ordinary negligence. But it was not conduct engaged in with knowledge that injury would probably result. See G.S., supra, 157 N.J. at 179. We therefore do not agree that the failure to respond to the potential for harm, given the time, place, and circumstances of the event constituted abuse and neglect within the meaning of the statute.