DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.M.M., JR

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                        NOT FOR PUBLICATION WITHOUT THE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-0058-16T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

              Plaintiff-Respondent,

v.

M.M.M., JR.,

              Defendant-Appellant,

and

R.W.,

          Defendant.
_____________________________________

IN THE MATTER OF M.M.M., III,
S.N.A.M, and A.T.M.,

          Minors.
______________________________________

              Argued April 26, 2018 – Decided May 4, 2018

              Before Judges Simonelli, Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County,
              Docket No. FN-07-0314-14.

              Deric Wu, Assistant Deputy Public Defender,
              argued the cause for appellant (Joseph E.
          Krakora, Public Defender, attorney; Deric Wu,
          of counsel and on the brief).

          Lisa J. Rusciano, Deputy Attorney General,
          argued the cause for respondent (Gubir S.
          Grewal, Attorney General, attorney; Jason W.
          Rockwell, Assistant Attorney General, of
          counsel; Erin O'Leary, Assistant Attorney
          General, on the brief).

          James J. Gross, Designated Counsel, argued the
          cause for minors (Joseph E. Krakora, Public
          Defender, Law Guardian, attorney; James J.
          Gross, on the brief).

PER CURIAM

     Defendant M.M.M., Jr.1 appeals from a September 30, 2014

Family Part order2 determining that he abused or neglected his

infant daughter, S.N.A.M. (Sally), within the meaning of 
N.J.S.A.

9:6-8.21(c)(4) by failing to provide adequate medical care for her

following the child's birth.   Sally's Law Guardian supports the

trial judge's finding that the Division of Child Protection and

Permanency (Division) met its burden of proving abuse or neglect

by a preponderance of the evidence.   Based upon our review of the

record and applicable law, we affirm.





1 Pursuant to Rule 1:38-3(d), we use initials and fictitious names
to protect the confidentiality of the participants in these
proceedings.
2
   This order became appealable as of right after the trial court
entered a final order terminating the litigation on July 25, 2016.


                                2                          A-0058-16T2
     At the September 30, 2014 fact-finding hearing, defendant

entered into the following voluntary stipulations of fact.3       R.W.

gave birth to Sally at University Hospital on August 15, 2013.

Sally was premature at thirty-four weeks gestation, and weighed 5

pounds, 1.2 ounces at birth.     She remained until August 24, 2013.

When she was released, she weighed 4 pounds, 14.7 ounces.

     Before   her   discharge,     the   hospital   staff   scheduled

appointments for Sally with a pediatrician on August 27, 2013, and

with the hospital's high-risk clinic on October 20, 2013.          The

record is not clear whether either parent took Sally to the August

27, 2013 appointment, but it is undisputed that all subsequent

hospital appointments, including the October 20 clinic appointment

and an October 30, 2013 appointment at the hospital, were missed.4

Defendant was aware of the high-risk nature of Sally's condition.

     Following Sally's discharge from the hospital, R.W. and the

baby lived for three or four weeks with maternal relatives in



3
    Sally's mother, defendant R.W., also agreed to similar
stipulations. However, unlike defendant, R.W. admitted that her
conduct in failing to provide care for Sally constituted abuse or
neglect under 
N.J.S.A. 9:6-8.21(c)(4). Based on that stipulation,
the trial judge entered an order on September 30, 2014, finding
that R.W. abused or neglected the child. R.W. has not appealed
from that order and, therefore, she is not a party to the present
appeal.
4
   When the parents missed the October 30 appointment, it was
rescheduled for November 2, 2013.

                                   3                          A-0058-16T2
Passaic County. Defendant remained at the couple's home in Newark,

where he cared for their other child, M.M.M., III (Martin), who

was one year old.

     When R.W. and Sally returned to the family home, she told

defendant that a doctor had examined Sally while she was in Passaic

County, and had no concerns about her condition.                However, R.W.

did not reveal the date of the examination or the doctor's name,

and the record does not otherwise show that this visit actually

occurred.    Between the date in September 2013, when Sally returned

to defendant's care, and October 30, 2013, defendant did not seek

any medical attention for Sally despite her premature status, her

failure to gain weight, and her high-risk condition.

     Defendant    did   not    take     Sally   to   her   scheduled    hospital

appointment on October 30, 2013.                During the day, defendant

observed that Sally was warm, lethargic, not eating, and having

trouble breathing.

     After    observing       Sally's     condition    for    several     hours,

defendant eventually called 911 after midnight and traveled with

the infant by ambulance to Newark Beth Israel Medical Center.                   At

the time of admission, Sally was unresponsive and experiencing

respiratory arrest.     She weighed 4 pounds, 1 ounce, reflecting a

reduction in weight of almost a full pound, or twenty percent of

her body weight, since leaving the hospital after birth.

                                         4                               A-0058-16T2
      The hospital staff suspected that Sally had broken ribs and

notified the Division.        A subsequent x-ray revealed that her ribs

were not broken.          However, photographs taken at the time of

admission, and on November 5, 2013, which were entered into

evidence, showed that Sally was severely emaciated, and that the

baby's ribs were showing through her extremely loose skin.

      Sally was released from the hospital on November 14, 2013,

weighing 5 pounds, 6.4 ounces.                   Her discharge diagnosis was

"failure to thrive."        The Division placed the baby in a foster

home, but she was re-hospitalized on November 20, 2013 because she

was still medically fragile.               Sally was later transferred to

Division supervision at "St. Clare's, a medically staffed foster

placement," where she remained until shortly before the fact-

finding hearing.5

      At   the   conclusion     of   the       hearing,    Judge    Marysol    Rosero

rendered    an   oral   decision,     concluding          that   the    Division   had

established by a preponderance of the evidence that defendant

abused or neglected Sally by "creating and allowing to be created

a   substantial    risk    of   harm       to    the   health      of   the   child."


5
  By this time, the Division had also assumed care and custody of
Martin. In May 2015, R.W. gave birth to another child, A.T.M.,
who was also placed in the Division's custody.      The Division
subsequently filed an action to terminate defendant and R.W.'s
parental rights to all three children.     That matter is not a
subject of this appeal.

                                           5                                  A-0058-16T2
Specifically,   the   judge   found    that   "[t]he    child    was     with

[defendant] for a month and a half.      The child lost weight during

the time that [s]he was with [hi]m," but her condition improved

once she was removed from defendant's care.             Thus, the judge

determined there was "a direct and causal relationship between the

acts of . . . neglect of [defendant] and their substantial effect

upon his child[.]"

     Judge Rosero also found that defendant was aware that Sally's

condition required treatment at the high-risk clinic, but he did

not obtain this necessary care for her.       Thus, the judge held that

defendant "failed to act in a manner which would avoid the harm

caused to the child[,]" and that his "omission rose to the level

. . . of conduct that created an unsafe condition for the child

and caused physical injury . . . [to her]."       This appeal followed.

     On appeal, defendant contends that:        (1) the Division failed

to prove that his conduct constituted abuse or neglect under


N.J.S.A.   9:8-21(c)(4),   and   (2)   the    trial    judge    "improperly

place[d] the burden of proof on [him] and ignore[d] the actions

[he] undertook to save his daughter's life."          We disagree.

      Our task as an appellate court is to determine whether the

decision of the family court is supported by substantial credible

evidence in the record and is consistent with applicable law.

Cesare v. Cesare, 
154 N.J. 394, 412 (1998).            We owe particular

                                  6                                  A-0058-16T2
deference    to    "the   family   courts'    special   jurisdiction    and

expertise[.]"      Id. at 413.     Unless the judge's factual findings

are "so wide of the mark that a mistake must have been made[,]"

they should not be disturbed, even if we would not have made the

same decision if we had heard the case in the first instance.          N.J.

Div. of Youth & Family Servs. v. M.M., 
189 N.J. 261, 279 (2007)

(quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 
233 N.J.

Super. 65, 69 (App. Div. 1989)).          "It is not our place to second-

guess or substitute our judgment for that of the family court,

provided    that   the    record   contains   substantial   and   credible

evidence to support" the judge's decision.          N.J. Div. of Youth &

Family Servs. v. F.M., 
211 N.J. 420, 448-49 (2012).

     Through the admission of "competent, material and relevant

evidence," the Division must prove by a preponderance of the

evidence that the child was abused or neglected.            
N.J.S.A. 9:6-

8.46(b).    In pertinent part, 
N.J.S.A. 9:6-8.21(c)(4) defines an

"abused or neglected child" as:

            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 (a) in supplying the child with
            adequate food, clothing, shelter, education,
            medical or surgical care though financially
            able to do so or though offered financial or
            other reasonable means to do so, or (b) in
            providing the child with proper supervision

                                      7                            A-0058-16T2
              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 the court. . . .

       Thus,    to   find     abuse   and     neglect     under   
N.J.S.A.     9:6-

8.21(c)(4), the parent must fail to "exercise a minimum degree of

care."    A parent "fails to exercise a minimum degree of care when

he or she is aware of the dangers inherent in a situation and

fails adequately to supervise the child or recklessly creates a

risk of serious injury to that child."                  G.S. v Dep't of Human

Servs., 
157 N.J. 161, 181 (1999).              "Where an ordinary reasonable

person would understand that a situation poses dangerous risks and

acts without regard for the potentially serious consequences, the

law holds him responsible for the injuries he causes."                     Id. at

179.   In addition, "[w]hen a cautionary act by the guardian would

prevent   a    child   from    having   his    or   her   physical,   mental      or

emotional condition impaired, that guardian has failed to exercise

a minimum degree of care as a matter of law."                Id. at 182.

       The Supreme Court has interpreted the statutory language to

mean "conduct that is grossly or wantonly negligent, but not

necessarily intentional."         N.J. Div. of Youth & Family Servs. v.

E.D.-O., 
223 N.J. 166, 179 (2015) (quoting G.S., 
157 N.J. at 178).

"Conduct is considered willful or wanton if done with the knowledge


                                        8                                  A-0058-16T2
that injury is likely to, or probably will, result."             G.S., 
157 N.J. at 178.     "[T]he concept of willful and wanton misconduct

implies that a person has acted with reckless disregard for the

safety of others."    Id. at 179.

     Applying    these   standards,     we   are   satisfied   there    was

sufficient competent, credible evidence in the record to support

Judge Rosero's finding that defendant abused or neglected Sally

by failing to seek needed medical attention for this fragile

infant.    Sally lived with defendant for over a month before he

finally took her to the hospital.       He did not take the baby to at

least two scheduled medical appointments, even though he was fully

aware of the high-risk nature of Sally's condition.

     During the period following the child's release from the

hospital to defendant and R.W.'s care, Sally lost 20% of her

already-low birth rate.      The photographs submitted in evidence

graphically depict the baby's dire condition.          Sally's ribs were

poking through her extremely loose and wrinkled skin.             This is

certainly not a case where defendant could have been unaware that

his child was in desperate need of medical attention.             Yet, he

never sought assistance until Sally went into respiratory arrest.

     Under these circumstances, defendant's argument that the

Division   was   required   to   introduce    expert   medical    evidence

concerning Sally's condition is clearly without merit.             As our

                                    9                              A-0058-16T2
Supreme Court noted in New Jersey Department of Children and

Families v. A.L., "[i]n many [abuse or neglect] cases, an adequate

presentation of actual harm or imminent danger can be made without

the use of experts."    
213 N.J. 1, 29 (2013).      Based upon the clear

photographic evidence of Sally's harrowing physical condition and

defendant's stipulation as to her equally distressing diagnoses,

there is ample support in the record for Judge Rosero's conclusion

that defendant failed to provide a minimum degree of care to his

helpless   daughter    within   the    intendment    of   
N.J.S.A.   9:6-

8.21(c)(4).

     Finally, we reject defendant's contention that the judge

improperly shifted the burden of proof to him.             Judge Rosero

specifically stated at the beginning of her oral opinion that the

Division bore the burden of proving defendant abused or neglected

Sally by a preponderance of the evidence.      As discussed above, the

Division plainly met that burden here.

     Affirmed.




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