DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.K.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3927-15T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

L.K.,

        Defendant-Appellant,

and

J.K., JR.,

     Defendant.
_________________________________

IN THE MATTER OF S.K., M.K., and
J.K., III, MINORS.
_________________________________

              Submitted October 23, 2017 – Decided December 11, 2017

              Before Judges Whipple and Rose.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex
              County, Docket No. FN-12-0100-15.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Jill Alintoff, Designated
              Counsel, on the briefs).
          Christopher S. Porrino, Attorney General,
          attorney for respondent (Melissa Dutton
          Schaffer, Assistant Attorney General, of
          counsel; James R. Griffin, Jr., Deputy
          Attorney General, on the brief).

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

PER CURIAM

     Defendant L.K.1 appeals from a March 4, 2015 order2 of the

Family Court finding defendant abused or neglected her children

by failing to provide them with safe and adequate shelter, and by

leaving them unattended in the family's van.   We affirm.

                                I.

     We derive the salient facts from the record developed at the

fact-finding hearing.   Defendant, and her husband J.K., Jr., 3 are

the biological parents of three children, S.K., born in September

2006, M.K., born in September 2008, and J.K., III, born in November

2010.   The family has a history with the Division of Child

Protection and Permanency ("Division") since 2008.



1
   We use initials to protect the privacy of the parties.    See R.
1:38-12(d)(12).
2
  This order became appealable as of right after the trial court
entered a final order terminating litigation on April 5, 2016.
3
  J.K., Jr. does not appeal from the March 4, 2015 order that
determined he also abused or neglected the children.

                                 2                          A-3927-15T4
     In August 2014, the Division received a referral regarding,

among other things, inadequate housing and supervision of the

children.   A Division caseworker, who responded to defendant's

trailer home, testified that the bedroom J.K., III shared with his

parents was cluttered without sufficient space to walk, and the

bathroom was dirty and smelled of mildew.   Defendant admitted the

home had a roach and fly problem, and the family's propane tank

had been repossessed for nonpayment.   Defendant was employed part-

time, but J.K., Jr. had been unemployed since June 2014, and the

family did not have health insurance.       The children were not

removed from the home at this time because defendant and J.K., Jr.

were willing to clean the house.

     However, in September 2014, the Division received another

referral reporting concerns about the conditions of defendant's

home.   One of the caseworkers who responded to the home testified

that the conditions were "deplorable."   For example, "[t]here were

roaches everywhere, and there [were] holes in the walls where

roaches were coming out."    Defendant informed the caseworker a

pile of fifteen to twenty dead roaches on the countertop was likely

a result of her attempt at extermination.

     The caseworker testified further that the living room couches

had "a very sticky film" over them.    The cushions were torn apart

with "roaches coming in and out" of them.   The children's clothing

                                 3                          A-3927-15T4
was strewn on top of the couches.     Defendant told the caseworkers

the children often fall asleep on the couches.          The workers

observed the children drinking from juice boxes and eating from

an open bag of chips on the floor in close proximity to roaches.

     While the caseworker observed many roaches in the living

room, most of the roaches were located in the bathroom.    Mold was

visible on the falling bathroom ceiling, and the bathroom smelled

of mildew.    There were also two large holes in the bathroom floor

that were large enough for the children to place their feet

through, and deep enough that the grass under the trailer was

visible.     If the children stepped into the holes, they would be

"up to their knees."     She estimated the hole by the washer and

dryer was approximately twelve inches, and the hole by the toilet

was approximately six inches.         Although there were half-inch

boards covering the holes, the caseworker testified they were

easily moveable.

     The caseworker testified further the mattresses on the beds

were dirty with "little pellets" that, based on her experience,

"appeared to be like rat stools."       The floors were dirty with

cigarette butts, dirt, grime and roaches.     Hanging from the wall,

there was an exposed electrical socket covered only by a piece of

cellophane tape.



                                  4                          A-3927-15T4
     At the conclusion of the inspection, the caseworkers created

a safety protection plan.    Defendant and J.K., Jr. agreed the

children would stay with a maternal aunt until the Division

determined the home was sufficiently safe and clean for the

children to return.

     Later that month, the Division received a third referral

about the family after five-year-old M.K. drove the family's van

into a neighbor's mailbox.     Defendant told the caseworker who

responded to the home that she left all three children unattended

in the vehicle with the motor running.    Defendant also admitted

the children were not restrained in child safety seats, although

S.K. may have been restrained with a seat belt.      Defendant ran

inside to retrieve something from the house and thought her adult

brother or her husband, who were outside, would watch the children.

However, M.K. climbed over the back seat, "turned the wheel and

backed into the mailbox."

     Following this incident, the Division executed an emergency

Dodd removal4 of defendant's three children pursuant to 
N.J.S.A.

9:6-8.28, and placed the children with their maternal aunt.



4
  A Dodd removal is an emergent removal of a minor without a court
order pursuant to 
N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd
Act. N.J. Div. of Youth & Fam. Servs. v. P.W.R., 
205 N.J. 17, 26
n.11 (2011).


                                 5                          A-3927-15T4
     In addition to the testimony of four caseworkers5 adduced at

the three-day fact-finding hearing, the Division entered into

evidence    documents      and   multiple   photographs    depicting     the

condition     of   the   home.    The   Division's   factual   proofs   were

substantially unrefuted.         Defendant did not testify nor call any

witnesses.
6 On March 4, 2015, Judge Barbara Clarke Stolte issued

an order and comprehensive oral opinion.

     The judge found the Division's witnesses credible.            Relying

on the testimony of those witnesses, the facts established in the

documents submitted into evidence, and the photographs depicting

the condition of the home, the judge concluded the Division proved,

by a preponderance of the evidence, the children were abused and

neglected by their parents' inability to provide adequate shelter.

The judge also determined the Division proved defendant and J.K.,

Jr. were grossly negligent by allowing the children to remain in

the unattended family van, resulting in M.K.'s driving the vehicle

into a mailbox.

     On appeal, defendant contends there was insufficient evidence

to support the court's findings defendant abused or neglected her



5
  The testimony of one of the caseworkers was limited                      to
authentication of the Division's investigation summary.
6
  By stipulation, defendant introduced twenty-nine photographs of
the condition of the apartment as of December 2014.

                                        6                           A-3927-15T4
children.    Specifically, defendant contends the court: failed to

explain   how   the   children    were   at   imminent    risk   of   physical

impairment; erred in finding she was financially able to provide

shelter for her children; and erred in finding she was grossly

negligent   for   leaving   the    children    in   the   running     vehicle.

Defendant also argues the conditions that led to the children's

removal were substantially remediated by the time the fact-finding

hearing commenced on December 10, 2014.             The Division and law

guardian urge us to affirm the court's order.            After reviewing the

record in light of the contentions advanced on appeal, we affirm.

                                    II.

     We begin with a review of the applicable legal principles

that guide our analysis in abuse or neglect matters, as set forth

by our Supreme Court:

            [A]ppellate courts defer to the factual
            findings of the trial court because it has the
            opportunity to make first-hand credibility
            judgments about the witnesses who appear on
            the stand; it has a feel of the case that can
            never be realized by a review of the cold
            record. Indeed, we recognize that [b]ecause
            of the family courts' special jurisdiction and
            expertise in family matters, appellate courts
            should accord deference to family court fact
            [-]finding.

            [N.J. Div. of Youth & Fam. Servs. v. M.C. III,
            
201 N.J. 328, 342-43 (2010) (second alteration
            in the original) (internal quotation marks and
            citations omitted).]


                                     7                                 A-3927-15T4
     "[I]f there is substantial credible evidence in the record

to support the trial court's findings, we will not disturb those

findings."    N.J. Div. of Youth & Fam. Servs. v. L.L., 
201 N.J.
 210, 226 (2010).      However, "if the trial court's conclusions are

'clearly mistaken or wide of the mark[,]' an appellate court must

intervene to ensure the fairness of the proceeding."          Id. at 227

(alteration in original) (quoting N.J. Div. of Youth & Fam. Servs.

v. E.P., 
196 N.J. 88, 104 (2008)).        We also owe no deference to

the trial court's legal conclusions, which we review de novo.

State v. Smith, 
212 N.J. 365, 387 (2012), cert. denied, 
568 U.S. 1217, 
133 S. Ct. 1504, 
185 L. Ed. 2d 558 (2013).

     In   a   Title   9   action,   the   Division   must   prove     by    a

preponderance of "competent, material, and relevant evidence" that

a child is abused or neglected.         
N.J.S.A. 9:6-8.46(b).       Title 9

cases are fact-sensitive, and the court should "base its findings

on the totality of circumstances."         N.J. Div. of Youth & Fam.

Servs. v. V.T., 
423 N.J. Super. 320, 329 (App. Div. 2011).

     An "abused or neglected child" under Title 9 means, in

pertinent part

          [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 . . . to exercise a
          minimum degree of care (a) in supplying the
          child with . . . shelter . . . though
          financially able to do so or though offered

                                    8                               A-3927-15T4
          financial or other reasonable means to do
          so[.]

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

     Here, one of the findings of abuse and neglect centers on

defendant's purported "failure . . . to exercise a minimum degree

of care," in supplying her children with adequate shelter.       Our

Supreme Court has held that:

          The phrase "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. Therefore, we believe the phrase
          "minimum degree of care" refers to conduct
          that is grossly or wantonly negligent, but not
          necessarily intentional.

          [N.J. Div. of Youth & Fam. Servs. v. T.B., 207
          N.J. 294, 305 (2011) (quoting G.S. v. Dep't
          of Human Servs., 
157 N.J. 161, 177-78
          (1999)).]

     In turn, "'willful and wanton misconduct implies a person has

acted with reckless disregard for the safety of others.'"    Id. at

306 (citations omitted) (quoting G.S., supra, 
157 N.J. at 179).

"[W]here a parent or guardian acts in a grossly negligent or

reckless manner, that deviation from the standard of care may

support an inference that the child is subject to future danger."

Id. at 307.   However, "where a parent is merely negligent there


                                9                           A-3927-15T4
is no warrant to infer that the child will be at future risk."

Ibid.

     Moreover,     the   statute   does   not   require   that   the     child

experience actual harm.       N.J.S.A. 9:6-8.21(c)(4)(b).         See also

Dep't of Children & Families, Div. of Child Prot. & Permanency v.

E.D.-O., 
223 N.J. 166, 178 (2015) (recognizing a court "need not

wait to act until a child is actually irreparably impaired by

parental inattention or neglect.") (quoting In re Guardianship of

D.M.H., 
161 N.J. 365, 383 (1999)).          In cases where there is an

absence of actual harm, but there exists a substantial risk of

harm or imminent danger, the court must consider whether the parent

exercised a minimum degree of care under the circumstances.              G.S.,

supra, 
157 N.J. at 171.      Because there was no "actual impairment

to the child[ren]" here, "the focus shifts to whether there is a

threat of harm."    E.D.-O., supra, 
233 N.J. at 178.       In this regard,

a court can make a finding of abuse or neglect "based on proof of

imminent danger and a substantial risk of harm."             N.J. Div. of

Youth & Fam. Servs. v. A.L., 
213 N.J. 1, 23 (2013).

     Here, Judge Stolte's finding the children were exposed to a

risk of imminent harm is fully supported by the record.          The judge

referenced, at length, the undisputed "deplorable" conditions of

the home, determining they were "dangerous conditions, [which

placed] the children at imminent risk."          Specifically, the court

                                    10                                 A-3927-15T4
cited:   the two large holes that the children "easily . . . could

fall into or get into;" mold on the falling bathroom ceiling;7 an

exposed electrical socket pulled from the wall; roaches on the

couch where the children slept and ate; and dead roaches and rat

droppings on the girls' mattresses.

     In so ruling, the court recognized defendant and J.K., Jr.

had been struggling financially, but found the condition of the

home was not the result of poverty.   The court elaborated

           You don't have to be a millionaire to [make a
           home safe]; to nail the board in on top of the
           hole. To put duc[t] tape to surround a socket
           so . . . no one can get into that socket.

           These are things that could easily have been
           done, as one of the cases said, a little elbow
           grease, soap and water.

           Those are things that . . . you don't need to
           be a millionaire.    You don't need to have
           hundreds of dollars. These are things that
           . . . mom and dad could have absolutely done.
           But didn't do. And we know they could have

7
  On appeal, defendant contends there was no evidence of mold
adduced at the hearing. However, defense counsel did not object
to admission of this evidence at trial. In fact, the Division's
investigative summary, which was admitted into evidence without
objection except for inadmissible hearsay, contains defendant's
explanation "that the mold is coming from the vent." In any event,
"the making of contemporaneous objections [is] the principal and
almost exclusive means of preserving an issue for appeal." State
v. Robinson, 
200 N.J. 1, 20 (2009). In the absence of an objection,
we retain the inherent authority to "notice plain error not brought
to the attention of the trial court[,]" provided it is "in the
interests of justice" to do so. R. 2:10-2. Here, the introduction
of the evidence of mold was not plain error because it was not
"clearly capable of producing an unjust result." Ibid.

                                11                           A-3927-15T4
          because they did it before . . . in the summer
          of 2013.

          The home was not clean. There [were] clothes
          all over.   Food and dirt all over.     And I
          don't find that these are conditions that were
          imposed by poverty, but by mom and dad and
          their failure to exercise a minimum degree of
          care.

     Finding the condition of the home was not the result of

poverty, Judge Stolte distinguished the present case from Doe v.

G.D., 
146 N.J. Super. 419, aff'd sub nom. Doe v. Downey, 
74 N.J.
 196 (1977) and its progeny.     See N.J. Div. of Child Prot. &

Permanency v. L.W., 
435 N.J. Super. 189, 195 (App. Div. 2014)

(citing G.D., supra, 
146 N.J. Super. at 430-31) ("It is well-

settled that poverty alone is not a basis for a finding of abuse

or neglect."). However, "a failure to provide for a child's needs,

when a parent is capable of doing so, can support actionable

neglect where a child's condition has been demonstrated to be

impaired or in imminent danger of being impaired."   P.W.R., supra,


205 N.J. at 35.   Here, we agree the conditions of the home could

have been remedied with physical effort, that is, self-cleaning

the home, and self-repairing the obvious hazards cited by the

trial court.   We see no reason to disturb those findings.

     We are also satisfied there was substantial credible evidence

defendant was grossly negligent by leaving the children in an

unattended car, resulting in M.K.'s accident.   Indeed, defendant

                               12                            A-3927-15T4
admitted she left the children in the car with the motor running

and they were not restrained in child safety seats.    Thus, five-

year-old M.K. was able to climb over the rear seat, position

herself behind the wheel, and drive into a mailbox.   Judge Stolte

concluded defendant's actions "transcend[] negligence and move[]

right into gross negligence" by failing to exercise the minimal

degree of care.   Specifically, she said, "You stop the car.     You

take the keys out.   You have the [kids] in safety seats.    That's

the minimum degree of care."   We agree.

     Finally, defendant's argument that the trial court should

have considered the imminent risk to her children at the time of

the fact-finding hearing is misplaced.     To support her argument

defendant erroneously relies on our decision in N.J. Div. of Child

Prot. & Permanency v. M.C., 
435 N.J. Super. 405, 418 (App. Div.

2014), certif. granted, 
220 N.J. 41 (2014), appeal dismissed by,

remanded by, 
223 N.J. 160 (2015).8    Subsequent to our decision,

however, the Court clarified that the evaluation of a parent's

conduct for abuse or neglect should not be determined by the risk

the parent poses at the time of the fact-finding.     See E.D.-O.,

supra, 
223 N.J. at 170.   Rather, the analysis should focus on the



8 In August 2016, we revised our original decision in M.C. See
N.J. Div. of Child Prot. & Permanency v. M.C., No. A-2398-12 (App.
Div. Aug. 4, 2016), aff'g in part, rev'g in part, 
435 N.J. Super. 405 (App. Div. 2015).

                                13                          A-3927-15T4
events up through the time of the conduct.           Id. at 170.    A trial

court's focus on the parent's status as of the time of the fact-

finding hearing, "has the obvious potential to overlook [earlier]

conduct, even aberrational conduct, that had the clear capacity

to produce a catastrophic result.         Such an approach contravenes

the legislative determination that child protective services and

a court may intervene before a child experiences actual harm."

Id. at 189.

     The Court instructed in         E.D.-O. that a trial court may

consider for limited purposes the risk a parent poses at the time

of the fact-finding, but only in the context of determining future

services and the disposition of the children, not for making the

abuse-or-neglect determination itself. Ibid.          The Court explained

"[t]he myriad dispositions available to the trial court after it

enters a finding of abuse or neglect are fashioned based on current

circumstances."    Ibid. (emphasis added).      Therefore, the focus in

an abuse-or-neglect fact-finding must be on the harm, or risk of

harm, to the children at the time of the incident, and not the

positive steps that the parent may have taken after the Division

responded to the incident and provided services.

     While we commend defendant for her cooperation with the

Division's    services   and   her   post-incident   efforts   to   provide

adequate shelter for her children, these measures do not erase the

                                     14                             A-3927-15T4
imminent danger she created by allowing her children to live in

deplorable conditions, and leaving them in an unattended car with

the motor running.

     We conclude Judge Stolte's findings of abuse or neglect are

supported by substantial credible evidence and the totality of the

circumstances.   We,   therefore,   affirm   substantially   for   the

reasons expressed in her oral decision.

     Affirmed.




                               15                             A-3927-15T4