DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.S.

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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1101-16T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

T.S.,

        Defendant-Appellant,

and

P.Q.,

     Defendant.
__________________________________

IN THE MATTER OF G.S.,

     Minor.
___________________________________

              Argued January 23, 2018 – Decided           February 2, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Camden County,
              Docket No. FN-04-0154-16.

              Deric Wu, Assistant Deputy Public Defender,
              argued the cause for appellant (Joseph E.
              Krakora, Public Defender, attorney; Deric Wu,
              of counsel and on the briefs).
            Ashley L. Davidow, Deputy Attorney General,
            argued the cause for respondent (Gurbir S.
            Grewal, Attorney General, attorney; Melissa H.
            Raksa, Assistant Attorney General, of counsel;
            Ashley L. Davidow, Deputy Attorney General,
            on the brief).

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

PER CURIAM

      T.S. (the mother) appeals from a November 17, 2015 order

finding that she abused and neglected her child, G.S. (the child)

who was born in December 2014, by placing him in imminent risk of

danger.    The mother contends that the Division of Child Protection

and Permanency (Division) produced insufficient evidence at the

fact-finding hearing to support the judge's finding of abuse and

neglect.    We disagree and affirm.

      In July 2015, the Division received a referral from the

manager of the shelter in which the mother and the child resided.

The manager expressed her concerns of the mother's behavior and

care for the child.       The manager informed the Division that the

mother was currently participating in methadone treatment and at

times   "nodding"   off   when   caring   for   the   child.     The    mother

explained that she was on many different medications in addition

to   the   methadone   treatment   and    her   doctor   had   adjusted     her


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medication to resolve the issue.             The Division investigated and

found that the mother did not appear to be under the influence of

any drugs that placed the child in imminent danger.

      In August 2015, the Division received another referral from

an assistant at the shelter.            The shelter assistant found the

child crying and wedged between the mother's bed and the wall.

The   mother   was    found     unresponsive   and   had   to   be   physically

awakened.      The child was removed from the mother's custody and

assessed at a hospital for a head injury.            The mother and Division

consented to an order granting the Division care and supervision

of the child, who was placed in the custody of his maternal

grandmother.

      The judge conducted a fact-finding hearing on November 17,

2015.    The Division produced testimony from three witnesses:

shelter workers, Damesha Adams and Natasha Cesar; and caseworker,

Susan McGrath.       The mother testified at the hearing.            The judge

found the Division's witnesses to be credible, rendered a thorough

oral opinion, and issued the order under review.

      The scope of our review of an order finding abuse or neglect

is limited.     N.J. Div. of Youth & Family Servs. v. R.D., 
207 N.J.
 88, 112 (2011).      We must uphold "factual findings undergirding the

trial   court's      decision    if   they   are   supported    by   'adequate,

substantial and credible evidence' on the record."               N.J. Div. of

                                        3                               A-1101-16T1
Youth & Family Servs. v. M.M., 
189 N.J. 261, 279 (2007) (quoting

In re Guardianship of J.T., 
269 N.J. Super. 172, 188 (App. Div.

1993)).   Even where there are alleged errors in the judge's

evaluation of underlying facts, "we will accord deference unless

the trial court's findings 'went so wide of the mark that a mistake

must have been made.'"   Ibid. (quoting C.B. Snyder Realty, Inc.

v. BMW of N. Am., Inc., 
233 N.J. Super. 65, 69 (App. Div. 1989)).

     An "abused or neglected child," as defined by 
N.J.S.A. 9:6-

8.21(c)(4), is a child who is less than eighteen years of age and

          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 . . . ; or by any
          other acts of a similarly serious nature
          requiring the aid of the court.

     "'Whether a parent or guardian has failed to exercise a

minimum degree of care' in protecting a child is determined on a

case-by-case basis and 'analyzed in light of the dangers and risks

associated with the situation.'"     N.J. Div. of Youth & Family

Servs. v. N.S., 
412 N.J. Super. 593, 614 (App. Div. 2010) (quoting

G.S. v. Dep't of Human Servs., 
157 N.J. 161, 181-82 (1999)).

                                4                           A-1101-16T1
"[T]he phrase 'minimum degree of care' refers to conduct that is

grossly or wantonly negligent, but not necessarily intentional."

G.S., 
157 N.J. at 178. "[A] guardian [or 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.     Courts have recognized that a parent's

inaction or unintentional conduct may amount to a finding of abuse

or neglect, if there is evidence that the child was injured.           Id.

at 175-77.

     Ms. Adams testified that on August 2, 2015, she was alerted

by another shelter resident that a child was heard crying for a

long period of time.     Ms. Adams determined the crying was coming

from the mother's room and "banged on the door" multiple times

with no response.    She then entered the room and searched for the

child, finding him "stuck between the bed and . . . the wall."

She also testified that the mother was unresponsive, only woke up

after she "shook" her, and once awakened, the mother appeared "out

of it."

     Ms.   McGrath   testified   that   she   interviewed   the    mother

following the child being found wedged between the bed and the

wall.   She testified that the mother's room did not contain a crib

or other accommodation for the child to sleep alone.        Ms. McGrath

                                   5                              A-1101-16T1
testified that another Division caseworker previously discussed

with the mother the Division's concerns about the mother and the

child co-sleeping, and advised that the child should not sleep in

the mother's bed with her.          She noted the mother's previous room

contained a Pak'n Play, which accommodated the child to sleep

independently, and the room at the time of incident did not.

Lastly, she testified that the mother was very rough with the

child and was unaware of a bump on the child's head at the time

of the interview.

       The mother testified that the incident at issue did not result

in the child being wedged between the bed and the wall.               She stated

that   she   was   on   various   medications    while       participating      in

methadone treatment.      She reasoned that the combination of drugs

made it difficult for her to awake and that the child may have

been crying for some time, but did not fall from the bed.

       The judge found the Division's witnesses credible and that

their testimony "corroborated each other."            The judge did not find

the    mother's    testimony   to    be    credible    and    found    "several

inconsistencies."

       The judge found that the mother's actions and inattentiveness

fell below the requisite standard for care.               Specifically, the

judge found the mother's use of strong medications, and her

previous notice that she and the child should not be sleeping in

                                       6                                 A-1101-16T1
the same bed were significant in finding for the Division.      The

judge explained that

          [a]ll three of the workers testified to the
          same thing, that they heard a baby crying,
          some as much as 20 minutes. Ms. Adams knocked
          on the door at least two times. [The mother
          w]as completely unresponsive.      [Ms. Adams
          c]ould not find the baby. Whether [the baby]
          was actually on the floor or wedged in between
          the bed and the wall near the floor . . . is
          of no moment. The fact is a baby fell off a
          bed and was stuck there.

                 . . . .

          [The mother] could have brought the Pak'n Play
          into the room with her. There was testimony
          that that was a problem before. She chose to
          put the child in bed with her.

               [The mother] was taking methadone, by her
          own admission, as well as four strong
          medications, . . . and based on these things,
          that the child was placed in an imminent
          danger and a substantial risk of injury and
          in imminent risk of harm.

     We conclude that there is sufficient credible evidence to

support the judge's findings that the mother abused and neglected

the child by failing to properly supervise and provide adequate

sleeping accommodations to ensure his safety, which ultimately

resulted in a head injury.

     Affirmed.




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