DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.W and D.G

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NOT FOR PUBLICATION WITHOUT THE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.

A.W.,

Defendant-Appellant,

and

D.G.,

Defendant.

___________________________________

IN THE MATTER OF T.W.-L., a minor.

___________________________________

June 10, 2016

Argued May 25, 2016 Decided

Before Judges Ostrer and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-304-14.

Janet A. Allegro, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Allegro, on the briefs).

Mary L. Harpster, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Harpster, on the brief).

Caitlin A. McLaughlin, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. McLaughlin, on the brief).

PER CURIAM

Defendant A.W. appeals from a May 5, 2014 order finding that she abused or neglected her son, T.W.-L. (Trevor).1 The court found that defendant subjected Trevor to a "substantial risk of harm" by leaving him home alone for at least fifteen minutes. Trevor was eight years old at the time.2

Defendant argues that the court's finding is unsupported by competent and credible evidence. She also contends the court failed to make specific and essential findings of fact and conclusions of law. Although the Law Guardian sided with the Division of Child Protection and Permanency (Division) at the fact-finding hearing, the Law Guardian supports defendant's appeal.

Having reviewed defendant's arguments in light of the record and applicable principles of law, we reverse.

I.

At the May 5, 2014 fact-finding hearing, the Division presented the testimony of investigator Kia Dailey in support of its claim that Trevor was abused or neglected when he was left home alone.3 A.W. testified in her own defense. The court admitted into evidence screening summaries, contact sheets, investigation summaries, and a Child Welfare Services (CWS) assessment, excluding embedded hearsay. We discern the following facts from this record.

The Division became involved in defendant's family in May 2011, after a reporter, apparently a teacher, alleged that Trevor had a large bruise on his arm a few weeks earlier, engaged in disruptive behavior, exercised little self-control, and threatened to harm himself. An investigation concluded that the allegation of neglect was unfounded. An assessment concluded Trevor was not a danger to himself or others.

According to a CWS Assessment Summary approved June 19, 2013, defendant informed Dailey that Trevor was receiving special education services, including behavioral counseling for his Attention Deficit Hyperactivity Disorder (ADHD). She said that he was going to attend "mainstream" classes, based on a Child Study Team evaluation in May 2013. Although Dailey noted that there were housekeeping issues, the CWS Summary concluded that Trevor was currently safe in the home.

Around noon on July 23, 2013, Dailey made a surprise visit to A.W.'s home and discovered that Trevor was home alone. Consistent with the Screening Summary, which she used to refresh her recollection, Dailey testified that Trevor said he was home alone for an hour and a half. Defense counsel did not object to Trevor's hearsay statement. Dailey testified there was limited food in the house. She described Trevor as an "active 7 year old." However, she did not assert Trevor was distraught, hungry, or physically harmed.4

Dailey testified that she was "at the home for like 15 minutes" when defendant arrived. D.G. was with her. Dailey asserted that defendant claimed she had been around the corner at a laundromat. However, she didn't observe a laundry bag or any laundry detergent. Dailey stated that defendant had a small bag. She asked defendant where her laundry was. She said defendant responded that she only washed out a shirt, had put it in the bag, but did not want to remove the shirt to show her.5

Defendant testified that she left Trevor in the home with D.G. while she went around the corner to the laundromat. She said she went there to wash a single Harlem Globetrotters shirt for Trevor to wear at a Globetrotters basketball camp that day. She said she called D.G. from the laundromat to say she might need change for the dryer, but she did not then ask D.G. to leave the home to bring her change. She asserted that as she headed back to the house, she saw D.G. walking in her direction, apparently ready to give her change. He was still close to the house. She testified that she and D.G. met Dailey and the superintendent on the porch. The superintendent had unlocked the door to defendant's apartment. Defendant disputed Dailey's testimony that her home lacked sufficient food.

In summation, defense counsel argued that there was no proof that Trevor suffered any actual harm, or that he faced the risk of likely or probable harm. Counsel also argued that defendant's actions did not rise to willful, wanton, or reckless conduct. The Division argued that it was not safe to leave Trevor home alone, noting (erroneously) he was seven years old, and he was very active.

The trial judge did not find credible defendant's testimony that she called D.G. because she may have needed change at the laundromat. However, he credited her testimony that she left Trevor with D.G., but later prompted him to leave Trevor alone.

What I think is credible is that she left the child with [D.G.], that when the Division worker was let into the home by the Super, neither [D.G.], the person who the mother entrusted to watch the child, nor the mother were present. It appears that they weren't present because [defendant] called the very person she left in care of her child out of the home leaving the child to suffer or to risk suffering harm at the hands of both [D.G.] and [defendant].

. . . She's aware of the fact that the child isn't with [D.G.] and they do nothing about it for at least 15 minutes, according to the Division worker. And it may have been longer than that.

The court concluded that this constituted abuse or neglect

[A]s a result of those circumstances the Court finds that both [D.G.] and [defendant] exposed the child to substantial risk of harm making the child an abused or neglected child pursuant to Title 9. I make those findings by a preponderance of the evidence.

II.

We accord deference to the Family Part's fact-finding in part because of the court's "special jurisdiction and expertise in family matters . . . ." Cesare v. Cesare, 154 N.J.394, 413 (1998). We shall uphold the court's fact findings if supported by "adequate, substantial and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007) (citation omitted). We defer to a trial court's fact findings because the judge has had the opportunity to observe witnesses, weigh their credibility, and develop a "feel of the case." Id.at 293 (internal quotation marks and citation omitted). However, we exercise an expanded scope of review of the "trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.596, 605 (2007). We also are not required to defer to a legal conclusion based on the Family Part's fact finding. N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super.538, 542-43 (App. Div. 2011).

The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J.17, 32 (2011) (quoting N.J.S.A.9:6-8.46(b)). "The main goal of Title 9 is to protect children. . . ." G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999). Whether a parent has failed to exercise a minimum degree of care "is fact-sensitive and must be resolved on a case-by-case basis." Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 192 (2015). Courts undertaking this analysis "must avoid resort to categorical conclusions." Id.at 180 (citing Dep't of Children & Families v. T.B., 207 N.J.294, 309 (2011)).

The court should base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). "[T]he elements of proof are synergistically related. Each proven act of neglect has some effect on the [child]. One act may be 'substantial' or the sum of the acts may be 'substantial.'" Id. at 329-30 (quoting Dep't of Children & Families v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011)).

A child is abused or neglected if the child's

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 . . . (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 thecourt . . . .

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

The statute requires the Division to make two showings. First, "[t]o find abuse or neglect, the parent must 'fail[] . . . to exercise a minimum degree of care.'" E.D.-O., supra, 223 N.J.at 179 (quoting N.J.S.A.9:6-8.21(c)(4)(b)). "The statute makes clear that parental fault is an essential element for a finding of abuse or neglect under N.J.S.A.9:6-8.21(c)(4)(b)." N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J.165, 180 (2014). This requires conduct that is at least grossly negligent or reckless. Ibid.; G.S., supra, 157 N.J.at 178. To satisfy that standard, conduct must be willful or wanton, but not necessarily intentional. Y.N., supra, 220 N.J.at 180. "Willful or wanton" conduct is "done with the knowledge that injury is likely to, or probably will, result." G.S., supra, 157 N.J.at 178. Conduct that is "arguably inattentive or even negligent" is not enough. N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J. Super.159, 168-69 (App. Div. 2009).

Second, the Division must prove that the parent "unreasonably inflicted or allowed to be inflicted harm, or created a substantial risk of inflicting harm." Y.N., supra, 220 N.J.at 180 (citing N.J.S.A.9:6-8.21(c)(4)(b)). "[W]hen there is no evidence of actual harm, the focus shifts to whether there is a threat of harm." E.D.-O., supra, 223 N.J.at 178. While courts need not wait until a child is actually injured, "the Division must show imminentdanger or a substantialrisk of harm to a child . . . ." Ibid.

The Court in E.D.-O.rejected a "categorical rule that any parent or caretaker, who leaves a young child unattended for any length of time . . . has failed to exercise a minimum degree of care that places the child in imminent danger of impairing that child's physical, emotional, or mental well-being." Id.at 193. The Court remanded for a hearing after reversing a finding that the mother abused or neglected her ten-month-old child when she left the child asleep in a locked automobile for ten minutes while she rushed into a store. Id.at 194-95.

The E.D.-O.Court also reviewed prior decisions reversing findings of abuse or neglect where parents left a child alone at home. Id.at 181-85. The Court noted that in T.B., supra, 207 N.J.294, 309-10 (2011), a mother who left her four-year-old son unsupervised for two hours, mistakenly believing his grandmother was home, was plainly negligent, but not grossly negligent or reckless so as to constitute a failure to exercise a minimum degree of care. Id.at 180-81. The E.D.-O.Court also reviewed our decision in J.L., supra, 410 N.J. Super.at 161, in which we reversed a final judgment of neglect where a mother allowed her three-year-old and five-year-old to walk unattended from the outdoor play area of their condominium complex to their home, where there was no adult present. Id.at 183-84. She watched the children as they headed home, but they accidentally locked themselves inside the apartment and called 9-1-1. J.L., supra, 410 N.J. Super.at 161-62. We held that the parent's conduct was not grossly negligent. Id.at 166. Furthermore, we noted, "the standard is not whether some potential for harm exists." Id.at 168.

Applying these standards, we are constrained to reverse the trial court's decision. First, the court made no explicit finding regarding parental fault, which is an essential element of the Division's claim. While the trial judge rejected part of defendant's testimony as incredible, he found that defendant initially left Trevor in the care of D.G. Therefore, she left Trevor alone indirectly, by calling D.G. and asking him to meet her. As a result, Trevor was left alone for at least fifteen minutes. Eschewing a categorical approach to the case, and in the absence of an essential trial court finding, we are unprepared to conclude that defendant's actions constituted gross negligence or recklessness.

Turning to the second element, we agree with defendant and the Law Guardian that the record evidence did not support the court's conclusion that Trevor faced a "substantial risk of harm" while home alone for at least fifteen minutes. Trevor was eight years old at the time, not seven as the Division continued to assert in its brief. The record does not support the conclusion that an eight-year-old boy, left home alone in the middle of the day, for fifteen minutes or perhaps more, faced imminent danger or a substantial risk of harm. The court obviously did not rely on Trevor's hearsay statement about the length of time he was left alone, whether it was "over an hour" or an hour-and-a-half.

The evidence demonstrated that the apartment was unkempt. But there was no evidence that the physical surroundings were dangerous. Although the trial court did not address the issue of food, the Division's documentary evidence reflected that Trevor was fed, and the home was well-stocked with food. The record simply does not support the Division's argument that Trevor lacked a telephone number to contact defendant, or other means to reach an adult in case of an emergency. The Division concedes that Trevor was directed not to open the door to strangers and to wait inside the home. Dailey gained access to the home only with the superintendent's assistance. Finally, although the record included defendant's admission that Trevor was diagnosed with ADHD, and received special education services, there was no competent evidence that he faced a greater risk of harm than a typical eight-year-old.

We recognize that an abuse or neglect case may often be presented without expert testimony. N.J. Dep't of Children & Families v. A.L., 213 N.J.1, 29 (2013). However, expert testimony would have been required to establish the nature of Trevor's disabilities, and whether they significantly heightened his risk of harm if left alone. See, e.g., N.J. Div. of Child Prot. & Permanency v. N.D., 435 N.J. Super.488, 497 (App. Div. 2014) (requiring expert testimony to establish causal connection between parental cocaine use and child's health); N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-23 (App. Div. 2004) (finding expert necessary to assess psychological impact of domestic violence upon twenty-month-old child), certif. denied, 182 N.J.426 (2005).

We note that the Division relies on embedded hearsay in the Division documents, notwithstanding the court's exclusion of it, to establish that Trevor "was in need of constant supervision due to his activity level and lack of focus and that he had suicidal urges in the past." Those assertions were apparently based on the hearsay statements of a reporter, memorialized in a May 2011 Investigation Summary. Furthermore, in response to the allegations of suicidal tendencies, the Division assessed Trevor and concluded he did not pose a danger to himself or others.

Reversed. Absent an alternative basis for including defendant in the child abuse registry, we direct that defendant's name be removed within fourteen days.

1 "Trevor" is a pseudonym.

2 The court also found that defendant's paramour, D.G., abused or neglected Trevor by leaving him alone. The court did so although the Division of Child Protection and Permanency did not initially seek a finding against D.G. for that incident. The finding against D.G. is not before us.

3 The Division also presented the testimony of intake investigator Janine Evans-Taylor. We need not review Taylor's testimony, as it pertained to the Division's separate allegation that defendant and D.G. abused or neglected Trevor by exposing him to domestic violence. The court found insufficient evidence to support this allegation.

4 Several discrepancies are apparent with respect to Dailey's testimony and among the documentary records of her visit. The Screening Summary, upon which Dailey relied to refresh her memory, was apparently authored by a screening worker, not Dailey. It erroneously reported that the date of the incident was July 26, 2013, and that Trevor was seven years old although the record reflects he was born in May 2005. The Screening Summary also reported that "the mother was out shopping" an assertion made nowhere else in the record. In contrast, a Contact Sheet that Dailey created the day after the incident, on July 24, 2013, reported that Trevor stated he had "been in the house for over an hour," and his mother "went to the library." Dailey also reported in that document, contrary to her testimony, that she "observed plenty of food in the refrigerator and kitchen cabinets." She also reported that Trevor was not hungry, and had no signs of physical injury. A third document, an Investigation Summary, reported that Trevor stated in a subsequent interview that he was not scared of being left home alone.

5 In the Contact Sheet, Dailey stated that defendant "showed Investigator a small plastic bag with clothes."