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

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                        NOT FOR PUBLICATION WITHOUT THE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-0700-16T2

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

        Plaintiff-Respondent,

v.

K.C.,

        Defendant-Appellant,

and

M.B.,

     Defendant.
_________________________________

IN THE MATTER OF D.C.,

     Minor.
_________________________________

              Submitted January 9, 2018 – Decided April 24, 2018

              Before Judges Fasciale, Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Bergen County,
              Docket No. FN-02-0063-16.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Marina Ginzburg, Designated
              Counsel, on the brief).
           Gurbir S. Grewal, Attorney General, attorney
           for respondent (Andrea M. Silkowitz, Assistant
           Attorney   General,   of   counsel;   Victoria
           Kryzsiak, Deputy Attorney General, on the
           brief.)

           Joseph E. Krakora, Public Defender, Law
           Guardian, attorney for minor (Rachel E.
           Seidman, Assistant Deputy Public Defender, on
           the brief).


PER CURIAM

      Defendant K.C. appeals the trial court's decision that he

abused or neglected his eleven-year-old daughter D.C. (Denise)1

when she was left unattended in a retail store after she had been

left unattended in a trailer park the day before.      He contends the

Division of Child Protection and Permanency (Division) failed to

prove he abused or neglected her under 
N.J.S.A. 9:6-8.21(c)(4) by

not providing her a minimum degree of care and thereby placing her

in imminent risk of future harm.       Defendant blames the unreliable

care of a babysitter for leaving Denise unattended at the trailer

park.   In regards to the store incident, he acknowledges that,

even though he was at work, he should have done something when

Denise did not answer the cell phone he gave her.     Yet, he believes

he was not reckless because he provided her with the phone and

money to buy food.    After a thorough review of the record and



1
    We use pseudonyms to protect the identity of the minor victim.

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Judge Jane Gallina-Mecca's findings, we affirm substantially for

the reasons reflected in her well-reasoned oral decision.

    We begin by noting that prior to the incidents in dispute,

the Division had extensive contact with defendant and Denise's

mother, who is not a party to this litigation, resulting in

multiple removals.       In 2011, on the eve of a guardianship trial,

the Division agreed to return Denise to defendant's care because

he had just married and was willing to participate in services.

Nonetheless,    referrals         continued     regarding      the     care    and

supervision    provided    to     Denise,     before    and    after   defendant

separated   from   his    wife.      However,    no    abuse   or    neglect   was

substantiated or established until August 2015.

    On August 6, the Moonachie Police Department responded after

defendant's purported friend Lucy called, reporting:

            [Denise] was . . . unattended [in a trailer
            park and that] [s]he had been watching her for
            a while, but that she was not supposed to be
            in her care. She was familiar with the child
            and [defendant], and that someone dropped her
            off there earlier in the morning and after a
            while she became concerned, [and] called [the
            police] . . . because her father did not
            return.


According to the investigating Division worker, Denise indicated

that when her summer camp ended in July, she was dropped off at

the trailer park for Lucy to watch her while defendant went to


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work.   When Denise arrived at Lucy's home that morning, Lucy told

her to go to Denise's friend's home, which she did.    A few hours

later, she returned to Lucy's home but was refused entrance and

was told to go back to her friend's home. Instead, Denise wandered

through the trailer park until she was picked up by the police.

According to the responding police officer, it was inconclusive

"whether or not there was [a child-care] arrangement . . . with

the caller, [Lucy] and [defendant]" which is why the matter was

deferred to the Division.

     While at the police station, the Division worker noted Denise

had a body odor and very matted hair.      Denise stated that she

could not recall the last time she showered; probably a week and

a half ago.   Defendant assured the worker that he would find an

appropriate caregiver moving forward.   He also informed the worker

that he left Denise in Lucy's care, and thought she was at Lucy's

home the entire time. Defendant claimed he did not check on Denise

all day because he was too busy at work.   He also told the worker

that Denise was old enough to know that she needed to bathe and

that he was too busy to remind her each day.

     The next day, defendant left Denise with a male friend while

he went to work.    The friend took Denise to a local "big box"

retail store but lost track of her; she wandered through the store

from about 8:30 a.m. until around 3:00 p.m.    When she got hungry,

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she purchased a sandwich inside the store with the ten dollars

given to her.     Someone notified the police, who saw that Denise

was unattended and took her to the police station to figure out

who was caring for her.       Denise stated she was unsure who was

supposed to watch over her that day.     She claimed that her dad's

friend told her someone would pick her up from the store later but

did not know when or where.    She had her dad's cell phone but did

not know how to contact him, his friend or anyone else.           She

disclosed that her dad worked in Little Ferry but did not know

where.

     Sometime after police had picked up Denise, defendant went

looking for her at the store. He indicated his friend was supposed

to take Denise to buy a few items from the store and then take her

to his job.     When they did not show-up, his calls to the friend

and Denise went unanswered.    Despite having no idea what was going

on with Denise, defendant remained at work explaining that he

needed to make money.     Thereafter, the Division removed Denise

from defendant's care, and placed her in a resource home.      Seven

months later, defendant pled guilty in criminal court to fourth-

degree cruelty and neglect of children, 
N.J.S.A. 9:6-3.

     Following a two-day fact-finding hearing, Judge Gallina-Mecca

found that "based upon a totality of the circumstances, . . .

[defendant's actions] fully satisfies the statutory standard of

                                  5                          A-0700-16T2
gross[] negligen[ce] or reckless . . . conduct that created an

imminent risk of harm to [Denise]."         In support of her decision,

the judge reasoned:

                   While an ordinary, reasonable parent
              would have been frantic with worry, the
              defendant father had no remorse or concern
              whatsoever for the safety and well-being of
              his daughter. His utter lack of insight can
              be gleaned from his remark that he had to work
              and what was he supposed to do.           Most
              concerning is the fact that the defendant
              father's complete lack of judgment comes just
              one day after a similar incident where he
              failed to make an adequate plan for [Denise]
              and she was picked up by the police because
              she was wandering unattended in a trailer
              park.    The defendant father assured the
              Division that he would have an appropriate
              plan to care for his daughter the following
              day, which clearly he did not.


She further added "certainly leaving the child to fend for herself

without knowing her whereabouts for an entire workday fell so wide

of the mark of what an ordinary, reasonable person would understand

in terms of the potentially dangerous consequences, [which] is

nothing short of reckless disregard."

         To prevail in a Title Nine proceeding, the Division must show

by   a    preponderance   of   the   competent,   material,   and   relevant

evidence that the parent or guardian abused or neglected the

affected child.      
N.J.S.A. 9:6-8.46(b).        "This includes proof of

actual harm or, in the absence of actual harm, the Division [is]


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obligated to present competent evidence adequate to establish [the

child   was]      presently   in   imminent   danger     of    being    impaired

physically, mentally or emotionally."          N.J. Div. of Youth & Family

Servs. v. S.I., 
437 N.J. Super. 142, 158 (App. Div. 2014) (second

alteration in original) (citation omitted).

      
N.J.S.A. 9:6-8.21(c)(4) provides a child is "[a]bused or

neglected" if he or she is one:

             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 . . . 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 or guardianship, by unreasonably
             inflicting or allowing to be inflicted harm,
             or substantial risk thereof . . . .


The term "'minimum degree of care' refers to conduct that is

grossly or wantonly negligent, but not necessarily intentional."

G.S. v. Dep't of Human Servs., 
157 N.J. 161, 178 (1999) (citing

Miller v. Newsweek, 
660 F. Supp. 852, 858-59 (D. Del. 1987)).                        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."             Id. at 181.        When determining


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whether a child is abused or neglected, the focus is on the harm

to the child, and whether that harm should have been prevented had

the guardian performed some act to remedy the situation or remove

the danger.    Id. at 182.

     "Abuse and neglect cases are fact-sensitive."         N.J. Div. of

Child Prot. & Permanency v. E.D.-O., 
223 N.J. 166, 180 (2015)

(citation omitted).    We give considerable deference to the family

court's factual determinations because it has "the opportunity to

make first-hand credibility judgments about the witnesses who

appear on the stand . . . [and] a 'feel of the case' that can

never be realized by a review of the cold record."         N.J. Div. of

Youth & Family Servs. v. E.P., 
196 N.J. 88, 104 (2008) (citing

N.J. Div. of Youth & Family Servs. v. M.M., 
189 N.J. 261, 293

(2007)).    "Only when the trial court's conclusions are so 'clearly

mistaken' or 'wide of the mark' should an appellate court intervene

and make its own findings to ensure that there is not a denial of

justice."     Ibid. (quoting N.J. Div. of Youth & Family Servs. v.

G.L., 
191 N.J. 596, 605 (2007)).

     Guided by these principles, we are convinced that Judge

Gallina-Mecca's findings of abuse or neglect are supported by

adequate,   substantial,     and   credible   evidence.   As   the   judge

thoroughly and thoughtfully explained in her decision, defendant's

gross negligence consistently put his eleven-year-old daughter in

                                     8                           A-0700-16T2
"imminent danger and substantial risk of harm" by leaving her with

or forcing her in the hands of uncaring or incompetent adults,

compounded with him being more concerned about his job than her

welfare.

     Affirmed.




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