NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.W.

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NOT FOR PUBLICATION WITHOUT THE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.

P.W.,

Defendant-Appellant.

______________________________

IN THE MATTER OF B.H.,

Minor.

______________________________

February 19, 2014

Submitted January 15, 2014 Decided

Before Judges Grall and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-479-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Anna F. Patras, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor B.H. (Hector Ruiz, Designated Counsel, on the brief).

PER CURIAM

P.W. appeals a determination that she neglected a child contrary to N.J.S.A. 9:6-8.21(c)(4). The Division of Child Protection and Permanency (Division) filed a complaint alleging that due to P.W.'s failure to adequately supervise her granddaughter, the child left her apartment and was found alone and wandering on a street in Newark. At the conclusion of the fact-finding hearing, the judge conducted a dispositional hearing and returned the child to her grandmother.

The only testimony the Division offered to establish neglect was given by John Green, an investigator assigned to the Division's Special Response Unit. Using the dates included in the Division's records, the incident at issue occurred about two months before the child's fourth birthday. The factual statement that follows is based on Green's records and the Division's records admitted into evidence.

On receiving a report that a "good [S]amaritan" had reported a girl wandering in the neighborhood and that the authorities took the girl to the hospital, Green and his co-worker met the child and the man, Mr. B., at the University of Medicine and Dentistry of New Jersey. Hospital records reflect that police officers, Mr. B. and the child arrived there at 7:18 p.m. The record includes the following additional information "as per" Mr. B. "[S]omeone rang his doorbell many times. When he answered the door, he found the child alone on the doorstep." He and his wife had given the child something to eat and drink before leaving for the hospital. Hospital notes also indicate that the child was in "emotional distress" and clinging to Mr. B. when they arrived. A medical examination was done and the report indicates no sign of injury or abnormal condition. Green obtained no information from the child, who uttered a few words but was not talking much. Green thought that the child's family reported her missing at about 9:30 or 10:00 p.m., but the Division's records reflect that the child was reported missing at about 9:00 p.m. The Division later determined that P.W. is the child's grandmother and had custody of the child at the time.

Green took the child to a foster home, and then he and his co-worker went to P.W.'s home to meet with her. The two-story apartment building had front and back entries and neither door was locked or guarded. P.W.'s apartment was on the second floor of that building. Green "probably" arrived at the apartment sometime after midnight.

By Green's account, P.W. was disheveled and panicked and did not appear to be under the influence of anything, but was scared. She told him that she and the child lived there alone.

P.W. told Green that she and the child had been out that day. They got home at about five or six o'clock, and P.W. was expecting a friend who was going to take her and the child out for dinner. She and the child had something to eat and took a shower. They then took a nap in the back room of the apartment, which is where the child slept.

Green went to the back room and noted an odor of urine. Elsewhere in the apartment there was an odor of bleach. The smell of bleach and bags piled up led Green to conclude that the apartment had been cleaned up in anticipation of his visit.

P.W. told Green that she awoke when her friend arrived at about 8:00 p.m. At that point she realized that the child was not in the bed. She went through her apartment room by room but could not find the child. After that P.W. and her friend canvassed the neighborhood, and then called the police. According to the Division's investigation summary, the police received the call at 9:00 p.m.

P.W. did not testify, but according to Green she had no idea how the child had left the apartment and could not explain why the child had her jacket and shoes on when found. The door to the apartment was equipped with a deadbolt lock. Green could not recall the child's height and could not say whether she could have reached the deadbolt. Nevertheless, he was confident that she was tall enough to reach the doorknob, which was lower than the deadbolt. Green acknowledged that he did not know how the child got out.

Although P.W.'s attorney objected to the admission of inadmissible hearsay included in the Division's screening and investigation summaries, in his closing argument he relied on some of that included hearsay a reference to "a homeless man that lives in the neighborhood that rings the door bells from time to time" as being the person who rang Mr. B.'s bell that night. The attorney argued that the Division had not established that the child left the apartment on her own, suggesting that the homeless man could have taken her outside.

At the conclusion of the hearing, the judge placed his finding of facts and conclusions on the record. He explained:

[P.W.], as the child's guardian or caretaker, had the responsibility to

make sure that [the child] was safe and in order to ensure that a young child is safe and secure in a home the home has to be properly equipped with locks. I think there was testimony from Mr. Green that the house did contain a deadbolt, and I don't think we were clear whether or not [the child] was tall enough to reach the deadlock or not, so we don't know if the deadlock deadbolt was locked or not locked. But the fact of the matter is the house was not safe enough to prevent [the child] from leaving the house alone, and there's no testimony in the in the record at all that somebody abducted her, came into the house, and perhaps took her.

. . . I think it's also important that we focus in on the standard here. The standard in this case requires the Division to prove by a preponderance of the evidence. The preponderance of the evidence is the lowest standard of proof we have. It's just proof that something is more likely true than not true.

. . . The [c]ourt is satisfied that the Division has established by a preponderance of the evidence not by clear and convincing, but by a preponderance of the evidence that [the child] was neglected by [P.W.] by the fact that she was in essence permitted to exit her apartment, go down the stairs and into the streets.

I think what's significant, also and this wasn't raised by anybody here but in [the Division's investigation summary] . . . [Green and his co-worker were at the apartment when] the police officers arrived, and . . . I believe there's competent evidence that the police officers indicated that they explained that [P.W.] appeared to be incoherent and disoriented. She could not provide them with a time frame for when her grandchild was missing and reported that she had fell asleep. They explained they being the police officers explained that they felt that she was high on drugs and passed out. It was reported that the home was cleaned up prior to the officers getting there, there was no food in the refrigerator or freezer, and the cabinets and two cans of vegetables and a jar of peanut butter. The rooms were reported to be cluttered and having a strong stench of urine. [One detective] was very upset that [P.W.] did not ask how her granddaughter was doing or in what state she was found. She was described as being really out of it and unsuitable to care for the child.

. . . .

All right. The fact of the matter is this child, who was the responsibility of [P.W.] at the time, left [P.W.'s] apartment, went undetected for a number of hours, and based upon those facts regardless of who found her, who didn't find her the [c]ourt finds that that would qualify for neglect under 9:6-8.21C(4)(b), in that she failed [P.W.] failed to provide adequate or proper supervision or guardianship, and subjected [the child] to a substantial risk of harm as a result of that. Okay, so that's the [c]ourt's decision. Now we now we should talk about disposition here. 1

The portion of the judge's determination emphasized above rests, in part, on opinions of police officers about P.W.'s condition that were summarized in the Division's investigation summary. It is clear that the judge considered those opinions for the truth of the matters asserted that P.W. did not ask about the child; that "she was really out of it"; and that she was, in the officers' opinion, "unsuitable to care for the child."

That was error. First, the imbedded hearsay assertions were not competent evidence. Statutory and decisional law makes it clear that a finding of neglect must rest on competent evidence. N.J.S.A. 9:6-8.46b(2) (precluding reliance on incompetent evidence); N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 167 (App. Div. 2003) (same). Second, the opinions of the officers were in conflict with Green's testimony about his observations of P.W. and his opinion of her condition. The difficulty is that the judge had no basis for finding the lay opinions of the non-testifying officers more credible than Green's testimony. See N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 183-84 (App. Div. 2005) (noting the need for testimony where resolution of disputed facts requires an assessment of credibility).

Given the paucity of the Division's evidence, we cannot conclude that the foregoing error is harmless. In order to establish the alleged neglect, the Division had to prove, by a preponderance of the evidence that the child was neglected by P.W. Pursuant to the statute, a child is neglected if his or her "physical, mental, or emotional condition . . . 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) (emphasis added).

The critical question is whether the Division proved that

P.W. failed to exercise a minimal degree of care. "The phrase 'minimum degree of care' denotes a lesser burden on the actor than a duty of ordinary care. . . . [S]omething more than ordinary negligence is required to hold the actor liable." G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 178 (1999). Thus, the Supreme Court has held that "the phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178.

As the Court subsequently explained, "'failure . . . to exercise a minimum degree of care' at least requires grossly negligent or reckless conduct." N.J. Div. of Youth and Family Servs. v. T.B., 207 N.J. 294, 306 (2011).

While the theory of the Division's case charging P.W. with failure to exercise a minimum degree is less than clear, the evidence at most suggests failure to take cautionary action that would have prevented the child from leaving the apartment. Where an omission of that sort is at issue, if "the failure to perform a cautionary act is merely negligent, it does not trigger [the provision] of the abuse or neglect statute" at issue here. Id. at 306-07. "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." G.S., supra, 157 N.J. at 181-82; see also T.B., supra, 207 N.J. at 306.

The distinction between ordinary negligence and the gross or wanton form of negligence that is necessary to establish a failure to exercise a minimum degree of care, was not discussed by the judge. Instead, the judge simply noted facts and circumstances that were not known and found neglect on the ground "that the house was not safe enough to prevent [the child] from leaving" and the child "was in essence permitted to exit her apartment, go down the stairs and into the streets."

The evidence of the situation, however, was that this child had never left the home before, got up from napping with her grandmother, opened the door to the apartment and left. The only cautionary action P.W. failed to take was locking the deadbolt or installing a doorknob a child could not open. In short, there is no competent evidence that suggests that P.W.'s failure to do either evidenced a "reckless disregard" for the child's safety. There was no competent evidence that P.W. had reason to expect the child's departure or that the child could leave the back room and get to the front door without waking her. Absent evidence of the sort, the Division's evidence at best permitted a finding of ordinary negligence, which simply is not enough. Accordingly, we reverse.

It is worth noting that the judge's finding of neglect suggests that the failure to exercise a minimum degree of care was presumed. We recognize that "proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of, or who is the responsibility of such person is an abused or neglected child . . . ." N.J.S.A. 9:6-8.46a(2). The statutory rebuttable presumption cannot be applied without regard to the distinction between ordinary negligence and the gross or wanton negligence that is required to establish liability for neglect pursuant to N.J.S.A. 9:6-8.21c(4)(b).

1 Despite those findings, at the conclusion of the hearing, the judge returned the child to P.W.'s custody under the supervision of the Division. Three months later, another judge dismissed the Title Nine litigation, leaving the child in P.W.'s custody.