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

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                        NOT FOR PUBLICATION WITHOUT THE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-5349-15T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

A.M.,

        Defendant-Appellant,

and

T.M.,

     Defendant.
______________________________

IN THE MATTER OF A.M. and M.M.,

     Minors.
___________________________________

              Submitted March 5, 2018 – Decided March 15, 2018

              Before Judges Sabatino and Ostrer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex
              County, Docket No. FN-12-0280-13.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (John A. Albright, Designated
              Counsel, on the briefs).
             Gurbir S. Grewal, Attorney General, attorney
             for respondent (Melissa Schaffer, Assistant
             Attorney General, of counsel; Danielle P.
             Counts, Deputy Attorney General, on the
             brief).

             Joseph E. Krakora, Public Defender, Law
             Guardian, attorney for minors (Todd Wilson,
             Designated Counsel, on the brief).

PER CURIAM

       This child welfare case returns after an additional fact-

finding hearing we ordered in an unpublished opinion.              N.J. Div.

of Child Prot. & Permanency v. A.M., No. A-4122-13 (App. Div. July

30, 2015).    The trial court's original finding of defendant A.M.'s

abuse or neglect of her two children was essentially based upon

stipulated factual contentions.          In our 2015 opinion, we ruled

there was "no evidence that defendant made a knowing and informed

relinquishment of her right to a fact-finding hearing . . . ."

Id.    at   3-4.    We   also   noted    the   then-limited    record     was

"insufficient to establish that [defendant's] conduct was wanton

and willful . . . ."     Id. at 4.      The finding of abuse and neglect

accordingly was vacated without prejudice, pending the outcome of

the fact-finding hearing on remand.         Id. at 6.

       The amplified record in this case reveals that defendant, a

single mother, left her two-year old and three-year old children

unattended in her residence for several hours when she went to

work   mid-afternoon.     Although      defendant   claims   she   left   the

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children asleep in cribs and that she had locked the doors to the

house as she departed, the two minors somehow were able to get

outside.    The children were observed around 4:30 p.m. walking down

the street about 120 feet from their home.         A concerned individual

picked them up and notified the police.

     The police contacted defendant and arrested her for child

neglect.    The Division of Child Protection and Permanency ("the

Division") removed the children from defendant's care, and brought

the present case in the Family Part charging her with abuse or

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

     On remand, the trial court heard testimony from the police

officer who returned the children to safety, a police detective

who investigated the incident, and a Division worker.           Defendant

elected    not   to   testify.   However,   the    court   considered   the

statements she made during interviews.             In those interviews,

defendant stated she left the children alone for a few hours

because she had been unable to arrange for someone else to watch

them.   She explained she had been under financial pressure to pay

her delinquent mortgage, and that she was fearful of losing her

job if she did not report to work that afternoon.

     After considering the evidence on remand, the trial judge

made several pertinent findings of fact.          He found that defendant

deviated from her "usual schedule" on the date of the incident

                                    3                              A-5349-15T2
"due to not having a babysitter, or more correctly not trying to

find a babysitter on that day," and "made the informed and knowing

decision to go to work" so as not to "exacerbate her already grim

financial situation."         "Recognizing the dangers and risks of

leaving these minor children alone at home," defendant changed her

work schedule from 3:00 p.m. to 11:00 p.m. to 3:00 p.m. to 6:00

p.m.   She "tried to tire [the children] out" by taking them to the

park in the morning, and then she put each child in their own

crib, closed and locked the doors, and left for work at 2:45 p.m.,

believing   the    children   were   asleep   and   would   remain   asleep.

Including travel time, defendant "made the decision to leave the

children alone in the home, with the doors locked for approximately

three and a half hours."       The exterior door to the home was "not

baby proof."      About two hours after defendant left, the children

had found a way of exiting the home and were walking along the

roadway where they were found.

       Additionally, the trial judge found that, due to their very

young ages, the children were not able to identify themselves.

They were identified only "due to [a] dog that happened to come

by, which had tags on it . . . ." The judge further noted defendant

initially had lied to police about falling asleep and finding the

children gone when she awoke.        In her later interviews, defendant



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retracted that narrative and admitted that she left the children

at home in order to go to work.

     Given these critical findings of fact, the trial judge found

that defendant "purposely and intentionally planned to leave the

children at home for over three hours[,]" and these children "could

not communicate with others, could not call for or ask for help."

Therefore, "she failed to exercise the minimum degree of care as

required by law[,]" and the Division sustained its burden of proof.

     Although    the       judge   recognized     defendant's     "difficult"

financial circumstances, he found this was not an "emergency

situation,"    but   was    a   "planned   event,   where   she    purposely,

knowingly left these children alone in the home."           The judge found

the facts here are distinguishable from mere negligence cases

involving unattended children that did not rise to a Title Nine

violation.    Defendant's children were too young to be verbal.             She

knew there was no one else home and no one would be checking in

on them.      The judge reasoned this conduct was "deliberate and

reckless to the children . . . regardless of whether or not the

children actually exited the home."         He noted the discovery of the

children walking on the roadway was "just evidence of the real and

substantial    and   [imm]inent    risk    that   [defendant]     exposed   her

children to . . . ."



                                      5                                A-5349-15T2
     In her present appeal, defendant contends the trial court

erred by failing to identify any actual risks involved and that

her children were not placed in imminent danger.             She contends the

court relied on inadmissible hearsay in making its decision, and

that her conduct was neither grossly negligent nor reckless.

Finally, she argues that it was error to include her name on the

child abuse registry for what she characterizes as a "single

isolated incident."        We are unpersuaded.

     In   reviewing     an     adjudication    of   abuse    and   neglect,    we

generally afford great deference to the trial court's findings of

fact and conclusions of law.          N.J. Div. of Youth & Family Servs.

v. V.M., 
408 N.J. Super. 222, 235 (App. Div. 2009).                     We will

"uphold   the    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 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)).

We intervene in circumstances where the court's "conclusions are

'clearly mistaken' or 'wide of the mark.'"             Parish v. Parish, 
412 N.J. Super. 39, 48 (App. Div. 2010) (quoting N.J. Div. of Youth &

Family Servs. v. E.P., 
196 N.J. 88, 104 (2008)).               Only the trial

court's interpretation of the law and its legal conclusions are



                                         6                              A-5349-15T2
subject to de novo review.   Manalapan Realty, LP v. Twp. Comm. of

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

     We adhere in abuse and neglect cases to the conduct standards

set forth in Title Nine of the New Jersey statutes.   N.J. Div. of

Child Prot. & Permanency v. E.D.-O., 
223 N.J. 166, 177 (2015).

The Division has the burden of proving abuse and neglect at the

fact-finding hearing by a preponderance of the evidence.        N.J.

Div. of Youth & Family Servs. v. A.L., 
213 N.J. 1, 23 (2013).

     The purpose of the fact-finding hearing in Title Nine cases

is to protect children from acts or conditions that threaten their

welfare.   G.S. v. Dep't of Human Servs., 
157 N.J. 161, 176 (1999).

Because the safety of children is of paramount concern, a "court

'need not wait to act until a child is actually irreparably

impaired by parental inattention or neglect.'"   A.L., 
213 N.J. at
 23 (quoting In re Guardianship of D.M.H., 
161 N.J. 365, 383

(1999)); N.J. Div. of Youth & Family Servs. v. S.S., 
372 N.J.

Super. 13, 24 (App. Div. 2004).

     An abused or neglected child 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 . . . 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 . . . .

                                  7                         A-5349-15T2
            [N.J.S.A. 9:6-8.21(c)(4).]

Courts have interpreted the phrase "failed to exercise a minimum

degree of care" standard set forth in 
N.J.S.A. 9:6-8.21(c)(4) as

capturing     a   "middle   standard"   between    intent   and    ordinary

negligence.       G.S., 
157 N.J. at 177.   Thus, "the phrase 'minimum

degree of care' refers to conduct that is grossly or wantonly

negligent, but not necessarily intentional." Id. at 178. "Conduct

is considered willful or wanton if done with the knowledge that

injury is likely to, or probably will, result" and "actions taken

with reckless disregard for the consequences also may be wanton

or willful."      Ibid. (citations omitted).      "So long as the act or

omission that causes injury is done intentionally, whether the

actor actually recognizes the highly dangerous character of her

conduct is irrelevant.      Knowledge will be imputed to the actor."

Ibid. (internal citation omitted). "[A] 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."   Id. at 181.

     In order to distinguish between "merely negligent conduct and

wanton and willful misconduct" the court in a Title Nine case must

evaluate the "seriousness of the actor's misconduct."             G.S., 
157 N.J. at 178 (citing McLaughlin v. Rova Farms, Inc., 
56 N.J. 288,

                                    8                               A-5349-15T2
306 (1970)).       "Essentially, the concept of willful and wanton

misconduct implies that a person has acted with reckless disregard

for the safety of others"       Id. at 179 (citing Fielder v. Stonack,


141 N.J. 101, 123 (1995); McLaughlin, 
56 N.J. at 305).           Under this

standard, "a person is liable for the foreseeable consequences of

her actions, regardless of whether she actually intended to cause

injury."   Ibid.    In cases where the child has not suffered actual

harm, as in this case, "the Division must 'demonstrat[e] some form

of . . . threatened harm to a child.'"         E.D.-O., 
223 N.J. at 181

(quoting A.L., 
213 N.J. at 25) (alteration in original).

      Applying these standards here, we readily affirm the trial

court's findings of abuse or neglect based on the expanded record

developed on remand at the fact-finding hearing.                The court's

determination was soundly based upon substantial credible evidence

and consistent with the applicable law.

      Although we appreciate defendant may have been coping with

difficult circumstances, it did not justify her grossly negligent

behavior in leaving her three-year-old child and two-year-old

child unattended at home for several hours.             The mere fact the

children fortunately were found on the street unharmed does not

eradicate the very serious risk of harm they experienced.

      We reject defendant's contention that the trial court relied

on   inadmissible    hearsay.     The    records   of   the   Division   were

                                     9                               A-5349-15T2
admissible as business records and public records, respectively,

under N.J.R.E. 803(c)(6) and (8).     See also R. 5:12.    In addition,

defendant's   own   statements   reported   in   those    records   were

admissible as statements by a party opponent.             See N.J.R.E.

803(b)(1) (party opponent admissions) and N.J.R.E. 805 (regarding

hearsay within hearsay).

     Mindful that the Division eventually returned the children

to defendant's care, we discern no injustice in placing her on the

registry to recognize her substantiated neglect.          We appreciate

defendant is remorseful.    Even so, her remorse and post-incident

responsible behavior do not ameliorate the gross negligence that

she committed, which the Division amply proved at the hearing.

E.D.-O., 
223 N.J. at 189.

     Affirmed.




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