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

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                        NOT FOR PUBLICATION WITHOUT THE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-5510-15T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

K.D.,

        Defendant-Appellant,

and

W.D.,

     Defendant.
______________________________

IN THE MATTER OF S.D. and A.D.,

     Minors.
______________________________

              Argued November 27, 2017 – Decided December 11, 2017

              Before Judges Sabatino and Whipple.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County,
              Docket No. FN-07-0520-15.

              Ryan T. Clark, Designated Counsel, argued the
              cause for appellant (Joseph E. Krakora, Public
              Defender, attorney; Ryan T. Clark, on the
              briefs).
           Michelle Mikelberg, Deputy Attorney General,
           argued the cause for respondent (Christopher
           S. Porrino, Attorney General, attorney; Andrea
           M. Silkowitz, Assistant Attorney General, of
           counsel; Michelle Mikelberg, on the brief).

           Linda Vele Alexander, Designated Counsel,
           argued the cause for minors (Joseph E.
           Krakora, Public Defender, Law Guardian,
           attorney; Linda Vele Alexander, on the brief).

PER CURIAM

     After   a    fact-finding   hearing         at    which       several      witnesses

testified, the Family Part judge found that appellant had committed

child neglect in violation of 
N.J.S.A. 9:6-8.21(c) by leaving her

toddler and her infant son unattended in their apartment for

several   hours    while   she   left       to    take        a    nursing      assistant

examination.       Applying   our   limited           scope       of   review    and   due

deference to the trial judge's emphatic credibility findings, we

affirm.

     The record shows that appellant K.D. is the mother of a young

daughter, S.D., who was born in December 2012, and her infant son

A.D., who was born in July 2014. The children lived with appellant

in an upstairs apartment in a multi-level building in Irvington.

The children's father, W.D., did not reside with them. This appeal

solely concerns litigation against K.D. by the Division of Child

Protection and Permanency ("the Division").




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     On June 19, 2015, at approximately 2:58 p.m., the Irvington

Police   Department   were   alerted   to   a   potential   child   neglect

situation.    A repairman working in the apartment building had

heard children in appellant's apartment crying.             He alerted the

police when it did not seem like anyone was attempting to help.

The repairman did not notice any caretakers present. Two Irvington

police officers responded to the call.            They heard crying and

screaming coming from the apartment.            The officers noticed the

door was unlocked.     They entered to check on the welfare of the

children.    Once inside, the officers found two children that were

later identified as S.D. and A.D.      At the time, S.D. was two-and-

a-half years old and A.D. was eleven months old.

     One of the officers testified at the hearing that everything

in the apartment was "all over the place" and food and pencils

were on the floor.    The officers confirmed that the children were

alone in the apartment.      The officers observed A.D. crawling on

the floor, wearing a dirty diaper with food in his hair.            S.D. was

found alone on the couch.        Fortunately, the children were not

physically injured.

     Because the officers were unsuccessful in reaching appellant,

they removed the children and took them to the police station.

Multiple voice messages were left on appellant's phone, but she



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did not respond until later that afternoon because she had been

taking an examination to become a certified nurse's assistant.

     After receiving the notifications, appellant went down to the

police station, where she was interviewed.     The police did not

charge her with any criminal violations.    However, the Division

was notified, and placed the children with their father.         The

Division then filed a complaint in the Family Part asserting that

she had committed child neglect in violation of Title 9.

     In her interviews with police and the Division and in her

testimony at the fact-finding hearing, appellant contended that

she had made arrangements with a downstairs neighbor to watch the

children that afternoon while she took the exam. Appellant claimed

that she had shouted out down the stairwell to the neighbor, who

had baby-sat for the children in the past, before appellant left

the apartment at or around 1:00 or 1:15 p.m.

     The neighbor, an elderly woman in her eighties who is hard

of hearing, testified for the Division and refuted appellant's

account.   The neighbor acknowledged that she had watched the

children in the past, but denied that she had been asked by

appellant or had agreed to do so for this particular occasion.

Notably, the neighbor also testified that prior to the fact-finding

hearing, appellant had contacted her.   According to the neighbor,

appellant urged her to support appellant's version of the sequence

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of events, and to tell the court that she had forgotten to watch

the children.

     Upon carefully considering the proofs, Presiding Judge David

Katz issued a detailed bench opinion on October 16, 2015, along

with companion written findings.         The judge concluded that the

Division had proven, by the required preponderance of the evidence,

that appellant had abused or neglected her children, as that term

is defined in the law.      Among other things, Judge Katz found that

both the police officer and the Division caseworker who testified

were credible.    The judge further found that appellant's neighbor

in particular was "very credible," noting in his oral decision

that the neighbor, herself a "concerned grandmother," presented

to the court as "a loving, caring person," who "does not forget

things."    The judge found it was not credible that the neighbor

would have "turn[ed] her back" on appellant's children on the day

in question.

     By stark contrast, the judge found appellant's own testimony

was not credible.      As the judge noted, "[h]er account of what

happened that day did not make sense." The judge found appellant's

answers    to   questions   "very   convenient   and   expedient."      He

specifically disbelieved her claim that she had made arrangements

for her neighbor, who is indisputably very hard of hearing, by

shouting to her down a stairwell.

                                     5                           A-5510-15T3
     Given    these      definitive     credibility        findings,      the     judge

concluded    that    appellant    had    engaged      in    "wanton      and   willful

conduct" by leaving her very young children alone for several

hours with the apartment door partially open.                   The judge readily

found that appellant's neglectful conduct "clearly create[d] a

substantial risk of imminent harm."

     On appeal, K.D. contends that the trial judge's findings were

erroneous,    that       the   Division      failed        to   prove     inadequate

supervision of the children, and that the court's finding of abuse

or neglect is contrary to the aims of the Title 9 statute.                           The

Law Guardian joins with the Division in opposing the appeal.

     We accord substantial deference and defer to the factual

findings of the Family Part when they are sustained by "adequate,

substantial, and credible evidence" in the record.                      N.J. Div. of

Youth & Family Servs. v. R.G., 
217 N.J. 527, 552 (2014) (citation

omitted).     Deference must be accorded               to "the trial judge's

findings unless it is determined that they went so wide of the

mark that the judge was clearly mistaken."                  N.J. Div. of Youth &

Family   Servs.     v.   G.L.,   
191 N.J.   596,    605      (2007)    (citations

omitted); see also N.J. Div. of Youth and Family Servs. v. N.S.,


412 N.J. Super. 593, 617 (App. Div. 2010).

     Applying this deferential standard of review, we affirm the

trial court's decision, substantially for the sound reasons set

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forth in Judge Katz's decision.   The neglectful and irresponsible

conduct of appellant was well supported by ample evidence in the

record.   Her conduct undoubtedly placed these unsupervised very

young children at substantial risk of harm.

     We reject appellant's claim that the situation is comparable

to other cases involving unattended minors in which the parent's

conduct did not rise to the level of abuse or neglect.             In

particular, N.J. Div. of Youth & Family Servs. v. T.B., 
207 N.J.
 294, 309-10 (2011), is factually distinguishable because the child

in that case left alone at home was four years old, and the mother

had a reasonable basis to believe that her own mother was home in

bed at the residence while the child was there.     Similarly, N.J.

Div. of Youth & Family Servs. v. J.L., 
410 N.J. Super. 159, 161-

62 (App. Div. 2009), is distinguishable because the mother in that

case, who had let her five-year-old and three-year-old children

walk briefly out of their condo's residential area to change their

clothes and use the bathroom inside the condo unit, had a view of

the children as they walked home.     The facts here are simply not

comparable.   Appellant's behavior was inexplicable and clearly

irresponsible.

     Affirmed.




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