DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.H.

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                        NOT FOR PUBLICATION WITHOUT THE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-3513-15T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

A.H.,

        Defendant-Appellant,

and

C.G.,

     Defendant.
____________________________________

IN THE MATTER OF E.G. and M.G.,

     Minors.
____________________________________

              Submitted January 8, 2018 – Decided June 7, 2018

              Before Judges Accurso and Vernoia.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County,
              Docket No. FN-07-0408-15.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Anthony Van Zwaren, Designated
              Counsel, on the briefs).
          Christopher S. Porrino, Attorney General,
          attorney for respondent (Andrea M. Silkowitz,
          Assistant Attorney General, of counsel; Lisa
          J. Rusciano, Deputy Attorney General, on the
          brief).

          Joseph E. Krakora, Public Defender, Law
          Guardian, attorney for minors (Noel C. Devlin,
          Assistant Deputy Public Defender, of counsel
          and on the brief).

PER CURIAM

     Defendant A.H.1 appeals from a Family Part order finding she

abused or neglected her daughter, Mary, by failing to obtain well-

child checkups and immunizations, and delaying seeking medical

attention for Mary's broken arm.      Because we find there was

insufficient evidence showing Mary suffered actual harm or was at

imminent risk of harm, we reverse.

                                I.

     On March 20, 2015, the New Jersey Division of Child Protection

and Permanency filed a notice of emergency removal of six-year-

old Emma and one-and-one-half-year-old Mary from their parents,

defendant and co-defendant C.G., in accordance with the Dodd act.2



1
   We employ initials and first-name pseudonyms to protect the
privacy of the parties, children and juvenile witness.
2
   A "Dodd removal" is the emergency removal of a child without a
court order, pursuant to N.J.S.A. 9:6-8:29 of the Dodd Act,
codified in N.J.S.A. 9:6-8:21 to -8:82.     N.J. Div. of Youth &
Family Servs. v. N.S., 
412 N.J. Super. 593, 609 n.2 (App. Div.
2010).

                                2                           A-3513-15T1
Four days later, the Division filed a complaint and order to show

cause for custody of the children, and the court entered an order

granting the requested relief.

     The    evidence     during   the   subsequent    fact-finding      hearing

showed   Division      investigator     Tamika   S.   Dickey    first    became

involved with defendant, Emma and Mary in January 2015, based on

a referral Emma was not attending school.3            On February 17, 2015,

Dickey interviewed defendant and C.G.,4 and determined Mary had

not been seen by a doctor since birth.           C.G. explained he did not

believe in immunizations for religious reasons, but could not

identify his religion when asked to do so.                Defendant had no

objection    to   Mary    receiving     immunizations,    and    said    Emma's

immunizations were up-to-date.

     Defendant told Dickey she had not taken Mary to the doctor

because the child's name and date of birth on her Medicaid card




3 On October 16, 2013, the Division first became involved with
C.G. when a Family Part judge ordered home assessments for C.G.'s
son with another woman.
4
   The Family Part judge found C.G. abused or neglected Mary and
Emma by placing the children at substantial risk of harm by
exposing them to a pattern of domestic violence. C.G. does not
appeal the court's finding, and it is therefore unnecessary to
address the evidence concerning his domestic violence history.
The finding of abuse or neglect as to defendant was based solely
on her alleged medical neglect of Mary.       Thus, we limit our
discussion of the relevant evidence to defendant's alleged neglect
of Mary's medical needs.

                                        3                               A-3513-15T1
were incorrect. Dickey advised Mary to contact the social services

office to correct the card.         Defendant signed a family agreement

stating she would take the children to a doctor within two weeks

for physical examinations and any necessary immunizations.             C.G.

refused to sign the agreement.

       In early March 2015, defendant told Dickey she had been unable

to take the children to the doctor because she was required to

take Emma to school by 8:00 a.m., and could not make it to the

clinic to get Mary examined.        Dickey again directed defendant to

take the children to the doctor, and instructed defendant to take

Mary    to   the   doctor   after   taking   Emma   to   school.    Dickey

subsequently learned defendant and C.G. had a physical altercation

on March 14, 2015, which prompted defendant to move into a domestic

violence shelter.

       Dickey and defendant agreed to meet at Emma's school on March

20, 2015, to pick the child up and go together to the domestic

violence shelter to discuss a case plan.            Upon arriving at the

school, Dickey learned defendant is often late in picking Emma up,

and that a domestic violence incident between defendant and C.G.

occurred outside of the school earlier that morning.

       Dickey called defendant, who said she was at Newark Beth

Israel Hospital with Mary for the physical examination Dickey had

directed.      Defendant explained she took Mary to the hospital

                                      4                            A-3513-15T1
because she missed an appointment earlier that day with a doctor.

Believing defendant's statement she was at the hospital only for

Mary's physical examination, Dickey told defendant to leave the

hospital to pick Emma up at school.5   Defendant left the hospital

with Mary and went to Emma's school where Dickey waited.

     Dickey received a phone call from the hospital's domestic

screening department advising that Mary had a possible fracture

of her right arm and defendant left the hospital without following

its recommendation that Mary's arm be X-rayed.   It was then that

Dickey first learned Mary had suffered an injury to her right arm.

     After defendant and Mary arrived at Emma's school, Dickey

took defendant and the children back to the hospital.       X-rays

showed Mary had two broken bones in her right arm above her wrist.

The evidence presented at the hearing did not describe in detail

the nature or extent of the fractures.    Mary's arm was put in a

cast and defendant was directed to follow-up with an orthopedist

within two weeks.

      At the hospital, defendant offered two versions of how Mary

was injured.   She first told Dickey that Mary fell on her arm at

approximately midnight on March 14, 2015, while playing in the



5
  Although Dickey was at the school at the time, she could not
pick up Emma at school because the Division did not have an order
granting it the care and custody of the child.

                                5                          A-3513-15T1
living room.         She also offered another version of the events,

stating Mary hurt her arm after defendant's twelve-year-old nephew

Ian dropped Mary while they played in the kitchen.

       Defendant also provided Dickey with conflicting explanations

for her delay in seeking medical attention.                   She first told Dickey

that although she noticed on March 15 that Mary was not bearing

any    weight   on    her    right    arm,       a   doctor   previously    told   her

"children's bones are flexible and they heal fast."                         She also

stated she was unable to take Mary to the doctor because she did

not have a babysitter for Emma.                  She did not explain why she did

not take Mary to the doctor while Emma was in school on the days

following the incident.

       Defendant's nephew Ian testified about how Mary was injured

on March 14, 2015.          He said he put Mary on a chair in the kitchen

and she fell when he looked away for a moment.                    A few days later,

he noticed Mary was not using her right arm to crawl, so he told

his    mother   what    had    happened          and   she    immediately   informed

defendant.

       Defendant testified she did not witness Mary's March 14, 2015

fall, but the following day noticed the child was not bearing any

weight on her right arm.             She said Mary did not cry or show any

discomfort, and she did not see any redness or swelling on Mary's

arm.

                                             6                                A-3513-15T1
     Defendant testified she first learned about Mary's fall on

March 18, when Ian's mother called and told her what happened.

Defendant explained that on March 19, she dropped Emma off at

school and asked the school nurse to look at Mary's arm. Defendant

said she took Mary later that day to a pediatrician who refused

to provide any services because of the problems with Mary's

Medicaid card.

     Defendant further testified she scheduled an appointment with

another doctor for the morning of March 20, but could not find the

doctor's office, so she took Mary to Newark Beth Israel Hospital

that afternoon.   Defendant told a doctor at the hospital that Mary

needed her shots and had hurt her arm.    Defendant testified that

when she spoke to Dickey on the phone she did not say Mary's arm

was fractured or broken because that diagnosis had not yet been

made.   She also feared that if she did not follow Dickey's

directive and leave to pick up Emma from school, the Division

would take her children away. Defendant admitted lying when Dickey

first asked what happened to Mary.   She testified she lied because

she "knew they were [going to] find a reason to take [her]

children."

     The Family Part judge found defendant was not a credible

witness because she told Dickey conflicting versions about what

occurred.    He determined defendant knew about Mary's injury by

                                 7                          A-3513-15T
1 March 15, 2015, when she observed Mary could not bear any weight

on her right arm.     The judge found that defendant had never

previously brought the child to a pediatrician, and delayed seeking

medical care for Mary's arm.   The judge did not make any findings

that defendant's delay in seeking medical care caused actual harm

or created an imminent danger or significant risk of harm.       The

judge concluded defendant abused or neglected Mary based on medical

neglect by failing to take the child for well-child visits and

immunizations during the first one-and-one-half years of her life,

and by delaying seeking treatment for Mary's fractured arm.6

     Defendant appealed, and offers the following arguments for

our consideration:

          POINT I

          THE LOWER COURT ERRED IN FINDING ABUSE OR
          NEGLECT BECAUSE THERE WAS NO EVIDENCE THAT THE
          MOTHER'S ACTIONS HARMED THE CHILDREN OR PLACED
          THEM IN IMMINENT DANGER – SHE DID NOT
          KNOWINGLY CAUSE AN UNREASONABLE DELAY IN HER

6
  Although the Law Guardian argues to the contrary, we agree with
the Division that it did not allege, and the judge did not find,
defendant abused or neglected Mary or Emma by exposing them to
domestic violence.     See, e.g., N.J. Div. of Child Prot. &
Permanency v. I.H.C., 
415 N.J. Super. 551, 582-84 (App. Div. 2010)
(explaining that evidence showing parents exposed their children
to domestic violence in a grossly or wantonly negligent manner
supports a finding of abuse or neglect where there is also
competent evidence showing the children suffered harm from the
exposure). Instead, the court found C.G. abused or neglected Emma
and Mary based on his domestic violence history. Again, C.G. has
not appealed the court's finding, and we therefore neither address
it nor the fact-findings upon which it is based.

                                 8                          A-3513-15T1
            DAUGHTER'S TREATMENT, AND THE DELAY DID NOT
            IMPACT HER RECOVERY[.]

            POINT II

            THE TRIAL JUDGE ERRED IN CONCLUDING THAT THE
            MOTHER ABUSED OR NEGLECTED THE CHILDREN BASED
            ON ACTS OF DOMESTIC VIOLENCE INFLICTED BY THE
            FATHER UPON HER[.]

                                  II.

       Our review of a trial court's findings of fact is limited and

"findings by the trial court are binding on appeal when supported

by adequate, substantial, credible evidence."               Cesare v. Cesare,


154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v.

Inv'rs Ins. Co., 
65 N.J. 474, 484 (1974)).                   Family courts in

particular have "broad discretion because of [their] specialized

knowledge      and   experience   in       matters        involving      parental

relationships and the best interests of children."                  N.J. Div. of

Youth & Family Servs. v. F.M., 
211 N.J. 420, 427 (2012).                 However,

"[a]   trial   court's   interpretation      of     the   law     and   the     legal

consequences that      flow from established facts [is] not entitled

to any special deference." Manalapan Realty, LP v. Twp. Comm. of

Manalapan, 
140 N.J. 366, 378 (1995).

       
N.J.S.A.   9:6-8.21(c)(4)(b)       defines    a    child    as   abused       or

neglected where the child's

            physical, mental, or emotional condition has
            been impaired or is in imminent danger of
            becoming impaired as the result of the failure

                                      9                                       A-3513-15T1
            of his parent or guardian . . . to exercise a
            minimum degree of care . . . in providing the
            child with proper supervision or guardianship,
            by unreasonably inflicting or allowing to be
            inflicted harm, or substantial risk thereof[.]

The failure to exercise a "'minimum degree of care' refers to

conduct that is grossly or wantonly negligent, but not necessarily

intentional."    Dep't of Children & Families v. E.D.-O., 
223 N.J.
 166, 179 (2015) (quoting G.S. v Dep't of Human Servs., 
157 N.J.
 161, 178 (1999)).

     Whether conduct is merely negligent, as opposed to grossly

or wantonly negligent, is determined by a fact-sensitive inquiry

where the conduct is "evaluated in context based on the risks

posed by the situation."     Dep't of Children & Families, Div. of

Youth & Family Servs. v. T.B., 
207 N.J. 294, 309 (2011).     A parent

or guardian "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."    E.D.-O., 
223 N.J. at 179 (quoting

G.S., 
157 N.J. at 181).

     A finding of abuse or neglect under 
N.J.S.A. 9:6-8.21(c)(4)

"can be based on proof of imminent danger and a substantial risk

of harm."    Id. at 178 (quoting N.J. Dep't of Children & Families

v. A.L., 
213 N.J. 1, 22 (2013)).      Actual harm need not be shown,



                                 10                           A-3513-15T1
only the substantial risk thereof, by virtue of the caregiver's

failure to exercise a minimum degree of care.        Ibid.

      Defendant argues the court erred by finding Mary was abused

or   neglected   under   
N.J.S.A.   9:6-8.21(c)(4)    based   on   medical

neglect.   She claims she was not grossly or wantonly negligent in

obtaining medical treatment for Mary's arm injury because she was

not immediately aware of the injury when it occurred, she first

learned of the cause of the injury on March 18, 2015, and she

tried obtaining medical treatment on March 19, but the doctor did

not accept Mary's Medicaid coverage.     She argues she then promptly

took Mary to the hospital on March 20.       In addition, she contends

there was no evidence Mary suffered actual harm or a substantial

risk of harm by the delay in obtaining medical treatment for Mary's

broken arm or by her failure to obtain well-child examinations and

immunizations for Mary prior to March 20, 2015.

      Defendant's   argument    concerning    her    delay    in   seeking

treatment for Mary's arm injury is founded on a version of the

facts the court found not credible. The judge rejected defendant's

testimony and determined she was aware of Mary's injury on March

15, 2015, when she observed that Mary could not place any weight

on her right arm.   Mary had not yet learned to walk in March 2015,

and thus relied on her arms and legs to crawl.       Defendant admitted

that on March 15, 2015, she observed that Mary could not place any

                                    11                             A-3513-15T1
weight on her right arm, but she took no action to examine the

child, investigate the problem or seek medical attention until

March 20. We defer to the trial court's credibility determination,

see State v. Kuropchak, 
221 N.J. 368, 382 (2015), and are satisfied

the credible evidence supports the court's determination defendant

delayed seeking medical treatment for Mary's arm injury until

immediately before she was to meet with Dickey who, for a month,

had been directing that Mary and Emma be taken for physical

examinations.

       The court's determination that defendant delayed seeking

medical treatment for Mary's arm injury does not end the inquiry.

"Each determination of whether the conduct of a parent or caretaker

constitutes child abuse or neglect pursuant to 
N.J.S.A. 9:6-

8.21(c)(4)(b)   requires    a   determination   of   whether   the     child

suffered actual physical, mental, or emotional harm or whether the

conduct exposed the child to an imminent risk of such harm." E.D.-

O., 
223 N.J. at 185.       The statute does not require that a child

experience actual harm.      Id. at 178.   (citing A.L., 
213 N.J. at
 23).    Instead, a court may find a child has been abused and

neglected if his or her physical, mental, or emotional condition

has been "impaired or is in imminent danger of becoming impaired."


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



                                   12                                A-3513-15T1
     "Judges at the trial and appellate level cannot fill in

missing information on their own or take judicial notice of harm.

Instead, the fact-sensitive nature of abuse and neglect cases

turns on particularized evidence."             A.L., 
213 N.J. at 28 (internal

citation omitted).          In A.L., the evidence showed the defendant

mother used cocaine during her pregnancy and the child had cocaine

metabolites in his meconium.             Id. at 27.      The Court, however,

reversed the finding of abuse or neglect based on the mother's

prenatal drug use.         Id. at 34.    The Court determined that although

the evidence established the defendant used cocaine during her

pregnancy, the Division failed to "establish proof of imminent

danger or substantial risk of harm" because it failed to present

evidence showing "the degree of future harm posed to the child."

Id. at 27-28.     The Court noted that where "the evidence presented

does not demonstrate actual or imminent harm, expert testimony may

be helpful."     Id. at 28.

     Similarly, in New Jersey Division of Youth & Family Services

v. S.I., 
437 N.J. Super. 142, 146 (App. Div. 2014), we considered

a trial court determination that the failure of a guardian to

follow   a    Division     recommendation      to   obtain    a    mental    health

evaluation     following       a   child's      threat   to       commit    suicide

constituted abuse or neglect.           We reversed the finding because the

Division     failed   to    present     any   evidence   "demonstrat[ing]        the

                                         13                                 A-3513-15T1
child's physical, mental, or emotional condition was impaired or

that she was in imminent danger of harming herself as a result of

[the defendant's] decision to decline the recommendation for an

immediate evaluation."   Id. at 157.

     We further noted the "need for evidence to support a claim

of abuse or neglect," including "proof of actual harm or, in the

absence of actual harm, 'the Division was obligated to present

competent evidence adequate to establish [the child was] presently

in imminent danger of being impaired physically, mentally or

emotionally.'" Id. at 158 (alteration in original) (quoting N.J.

Div. of Child Prot. & Permanency v. M.C., 
435 N.J. Super. 405, 409

(App. Div. 2014)).   The Division's "essential proofs cannot merely

be based on the Division's view that the parent or guardian's

decision was ill-advised."   Ibid.   The Division must establish the

child suffered actual "harm or show the likelihood of an imminent

substantial risk of harm rising above mere negligence."     Ibid.

     Measured against these standards, we are convinced the court

erred by finding the Division satisfied its burden.      The record

is bereft of any evidence showing defendant's ill-advised delay

in seeking medical attention caused Mary actual harm or that there

was a likelihood of imminent risk of harm due to the delay.       The

Division failed to introduce any evidence showing the nature and

extent of the fracture and, more importantly, whether defendant's

                                14                           A-3513-15T1
delay in obtaining medical attention resulted in any actual harm

or created an imminent risk of substantial harm.

       The court did not find that actual harm or an imminent risk

of harm resulted from the delay in seeking medical treatment, the

record is devoid of any evidence supporting such a finding, and

we cannot bridge the gaps in the Division's proofs and assume harm

where the Division opted not to present any evidence demonstrating

harm.   A.L., 
213 N.J. at 28.       Lacking any evidence showing actual

harm    or   an   imminent   risk   of    harm,   we   reverse   the   court's

determination that defendant abused or neglected Mary by not

seeking treatment for the child's arm injury prior to March 20,

2015.

       For the same reason, we reverse the court's determination

defendant abused or neglected Mary by failing to take her for

well-child examinations or immunizations prior to March 20, 2015.

Again, although we agree that well-child visits and immunizations

are important to a child's health and well-being, the Division

failed to present any evidence showing defendant's failure caused

actual harm or an imminent risk of harm to Mary.




                                     15                                A-3513-15T1
     Reversed.7




7
   Because we reverse the court's abuse or neglect finding based
on medical neglect, and agree the Court did not find defendant
abused or neglected the children by exposing them to C.G.'s
domestic violence, it is unnecessary that we consider defendant's
contention, raised for the first time in her reply brief, that the
court erred by relying on Dr. Johnson's testimony concerning the
risks posed to the children by C.G.'s domestic violence.        We
observe, however, that an issue not raised in a party's initial
merits brief is deemed to be waived on appeal, Drinker Biddle &
Reath LLP v. N.J. Dept. of Law & Pub. Safety, 
421 N.J. Super. 489,
496 n.5 (App. Div. 2011), and we generally decline to address
arguments that were not "properly presented to the trial court"
and do not "go to the jurisdiction of the trial court or concern
matters of great public interest," State v. Robinson, 
200 N.J. 1,
20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 
62 N.J. 229,
234 (1973)).

                               16                          A-3513-15T1