NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.W and C.L IN THE MATTER OF N.L

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                                 NOT FOR PUBLICATION WITHOUT THE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-5577-17T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

A.W.,

          Defendant-Appellant,

and

C.L.,

          Defendant.


IN THE MATTER OF N.L.,

          a Minor.


                   Submitted October 8, 2019 – Decided October 29, 2019

                   Before Judges Gilson and Rose.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Essex County, Docket
            No. FN-07-0439-16.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Kevin G. Byrnes, Designated Counsel, on
            the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason Wade Rockwell, Assistant Attorney
            General, of counsel; Sara K. Bennett, Deputy Attorney
            General, on the brief).

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

PER CURIAM

      Defendant A.W. appeals a finding in this Title Nine action that she abused

or neglected her eleven-year-old child, N.L. (Natalie), 1 by leaving her

unattended at a Division of Child Protection and Permanency office for

placement in foster care. Because we conclude there was sufficient credible

evidence in the record supporting the judge's decision, we affirm.

      At a two-day fact-finding hearing, the Division presented the testimony

of its investigator, Heather Nutter, and intake supervisor, Heather Watts.




1
  We use initials and pseudonyms to identify the parties for ease of reference
and to preserve the confidentiality of these proceedings. R. 1:38-3(d)(12).
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Defendant testified on her own behalf, and presented the testimony of her

nineteen-year-old daughter, N.D. (Nora).

      The allegations of abuse or neglect arise from defendant's frustrated

attempts to redress Natalie's undisputed, long-standing behavioral problems.

According to Nutter, the family's history with the Division began in 2011. A

few years later, when Natalie was nine years old, defendant brought her to a

Division office, "asking for the child to be placed because [defendant] was

overwhelmed with [Natalie's] behavior." Apparently, Nutter and Watts then

became involved with the family. The Division provided services, including

counseling for Natalie. The child refused to listen to her mother and teacher,

often running away from home and school.

      On the incident date, a Division clerical worker brought Natalie to Nutter's

office on the second floor of the Wilentz Justice Complex. Natalie had three

bags containing clothing, toiletries and a towel in her possession, but she was

unaccompanied by defendant or a guardian. Nutter testified Natalie appeared to

be "very confused about why she was being placed" in foster care, but she said

"her mother was exhausted with her behaviors." Natalie told Nutter she had

been "woken up that morning and her mother brought her to the front of the




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building and told her to report to the fourth floor and look for Ms. Nutter."

Natalie told Nutter "she walked into the building alone."

      Nora told a different story at the hearing. She claimed Natalie asked

defendant to take her to the Division, which was a request Natalie had made

frequently for "years" when she was "really upset." Defendant could not find

parking when the family arrived at the Complex, so she parked in a pedestrian

crosswalk and instructed Nora to bring Natalie to the office on the third floor

and ask for "Ms. Heather." A security guard directed Nora to the fourth floor,

where Nora "watched [Natalie] walk to the door and put her hand on the door."

Natalie told Nora she was "a little bit" nervous. Nora did not accompany Natalie

to "Heather's" office.

      On the day of the incident, Nutter and Watts spoke with defendant

telephonically. Defendant, who remained outside in her parked car, confirmed

she wanted the Division to place Natalie in foster care. Defendant told Nutter

and Watts she could no longer tolerate her daughter's recalcitrant behavior and

did not have relative resources to care for her. She refused the workers' attempts

to provide reunification services, acknowledging her conduct would sp ur an

investigation and court action.




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      Defendant's testimony at the hearing largely corroborated Nora's account.

Assuming parking would be difficult at the Complex, defendant instructed Nora

to accompany Natalie "to the third floor, to ask for Mrs. Watts." Apparently,

defendant "didn't remember" Nutter's first name, but she knew the first name of

"the supervisor and the worker . . . was Heather . . . [and defendant]

remember[ed] Mrs. Watts's last name. So that's specifically who [defendant]

told [Nora] to ask for." Defendant said she remained in the car because it was

parked in the crosswalk and Nora was not a licensed driver.

      At the conclusion of the hearing, the judge rendered an oral decision and

issued the order under review. The judge credited the testimony of the Division's

witnesses, concluding they were credible. Because Nora was "very protective

of her mother" the judge found her account was "somewhat not credible." Citing

defendant's detailed description of her efforts to change Natalie's behavior, the

judge noted defendant was "an extremely compelling witness." But, the judge

determined defendant's actions on the day of the incident were inexcusable.

      The judge elaborated:

                   Whether it was out of frustration, a last resort, a
            desperate act, . . . leaving an [eleven-]year[-]old child
            to make her way is just not an appropriate way to handle
            it. Assuming the mother's testimony is accurate that the
            child threatened to go to [the Division], does not mean

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             that the child should [ha]ve been dropped off at [the
             Division] in the same manner.

                     ....

                   When [Natalie] was dropped off, she was alone.
             No one stayed with her. No one watched her go into
             the offices. No one helped her find Ms. Nutter or Ms.
             Watts. No one called the Division to say that this
             [eleven-]year[-]old girl was coming. Again, this is an
             [eleven-]year[-]old girl who was left alone with three
             backpacks in which she had her underwear, toiletries,
             clothing just like she was going somewhere to stay.

      The judge determined defendant's "act was willful and want[on], and [she

had] reckless disregard for the care of her child." Citing Natalie's track record

for defiance and running away, the judge reasoned the child "could [ha]ve gotten

involved in any number of dangerous situations." According to the judge, "[j]ust

because th[e] building has officers in it . . ., there are other things going on here,

and there [wa]s no guarantee that the child would [ha]ve walked in[to]" the

Division's office.

      The judge further found defendant's conduct was intentional and created

a substantial risk of harm to Natalie:

                   This [c]ourt feels the frustration of [defendant].
             It was evident in everything she said. But this is clearly
             no way to handle such a situation . . . . I do [not] doubt
             that her actions were out of frustration. But this [c]ourt
             is constrained to find that this was the intentional act of


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            [defendant]. It had happened once before. She knew
            exactly what she was doing.

                  [Defendant's] plan that morning was to take
            [Natalie] with her backpack, her three backpacks full of
            her clothing needs and drop her off at the Division's
            offices to find a former worker so that someone else
            c[ould] take care of her child. Unfortunately, that act
            alone, that act of dropping her off with no provisions
            being made for her, put this child at a substantial risk
            of harm.

     On appeal, defendant presents the following contentions for our

consideration:

            [POINT I]

            [THE DIVISION] FAILED TO PROVE THAT
            [DEFENDANT] WAS GROSSLY NEGLIGENT AND
            PUT [NATALIE] IN IMMINENT DANGER WHEN
            [ELEVEN]-YEAR-OLD [NATALIE] WAS LEFT
            BRIEFLY UNATTENDED ON THE FOURTH
            FLOOR OF THE WILENTZ JUSTICE COMPLEX BY
            [DEFENDANT]'S       [NINETEEN]-YEAR-OLD
            DAUGHTER

            A. [The Division] Failed to Prove that [defendant] did
            not Exercise a Minimum Degree of Care as Required
            by the Abuse and Neglect Statute.

            B. [Natalie] was not Harmed and was not in Imminent
            Danger of Being Harmed when Left Briefly Without
            Supervision on the Fourth Floor of the Wilentz Justice
            Complex.




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      We find insufficient merit in these arguments to warrant extended

discussion in our written opinion. R. 2:11-3(e)(1)(E). We affirm substantially

for the reasons expressed in the judge's cogent decision. We add the following

remarks.

      Our standard of review of the Family Part's fact-finding determination is

limited. N.J. Div. of Youth & Family Servs. v. R.D.,  207 N.J. 88, 112 (2011).

On appeal from orders issued in Title Nine cases, we accord considerable

deference to the trial court's credibility determinations and findings of fact, as

long as those findings are supported by "competent, material and relevant

evidence."  N.J.S.A. 9:6-8.46(b); see also N.J. Div. of Child Prot. & Permanency

v. A.B.,  231 N.J. 354, 369-70 (2017).

      We intervene only "if the trial court's conclusions are 'clearly mistaken or

wide of the mark . . . .'" N.J. Div. of Youth & Family Servs. v. L.L.,  201 N.J.
 210, 227 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P.,  196 N.J.
 88, 104 (2008)). We also owe no deference to the trial court's legal conclusions,

which we review de novo. State v. Smith,  212 N.J. 365, 387 (2012).

      Title Nine cases are fact-sensitive, and the court should "base its findings

on the totality of circumstances . . . ." N.J. Div. of Youth & Family Servs. v.

V.T.,  423 N.J. Super. 320, 329 (App. Div. 2011). Notably, the Title Nine proof


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standard is less stringent than in guardianship cases for the termination of

parental rights, which instead must be proven by clear and convincing evidence.

See R.D.,  207 N.J. at 113.

      Pertinent to this appeal, an "abused or neglected child" under Title Nine

means

            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 . . . 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 . . . .

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

      A court need not wait until a child is actually harmed or neglected before

it can act in the welfare of that minor. N.J. Div. of Youth & Family Servs. v.

V.M.,  408 N.J. Super. 222, 235 (App. Div. 2009) (Carchman, J., concurring).

"In the absence of actual harm, a finding of abuse and neglect can be based on

proof of imminent danger and substantial risk of harm." N.J. Div. of Youth &

Family Servs. v. A.L.,  213 N.J. 1, 23 (2013) (citing N.J.S.A. 9:6-8.21(c)(4)(b)).

"Any allegation of child neglect in which the conduct of the parent or caretaker

does not cause actual harm is fact-sensitive and must be resolved on a case-by-




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case basis."   N.J. Dep't of Children & Families, Div. of Child Prot. &

Permanency v. E.D.-O.,  223 N.J. 166, 192 (2015).

      "'[M]inimum 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). "[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." A.B.,  231 N.J. at 369 (citing G.S.,  157 N.J. at 181). In

essence, a parent is held to what "an ordinary reasonable person would

understand" when considering whether the situation posed a risk and whether

the parent nevertheless acted "without regard for the potentially serious

consequences . . . ." G.S.,  157 N.J. at 179.

      Defendant primarily argues Natalie was not in imminent danger when

Nora briefly left her unattended on the fourth floor of the Complex. Defendant

attempts to shift the blame to Nora, claiming the nineteen-year-old did not

follow her instructions. Defendant also claims "[t]he only reason why [Nora]

was given care of [Natalie] is because [defendant] had to find parking" and Nora

was not licensed to drive. Defendant's arguments misapprehend the totality of




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the judge's decision, her own admissions, and her failure to provide Natalie with

proper supervision.

      Although the judge cited the imminent danger Natalie faced when she was

left unattended in the Complex, Nora's actions were not under scrutiny. Rather,

it was defendant, who failed to adequately supervise her eleven-year-old

daughter. At the very least, defendant's conduct was grossly negligent. Well-

aware of her daughter's tendency to run from authority, defendant nonetheless

failed to make prior arrangements with the Division or personally accompany

Natalie to the office, thereby subjecting her daughter to substantial risk of harm.

      More telling, this incident was not defendant's first attempt to place her

daughter in foster care, evincing – as the judge found – her actions were

intentional. This time, however, defendant was unwilling to permit Natalie to

return home or engage in reunification services. Instead, defendant shunned her

parental responsibility by leaving Natalie at the Complex without, at a

minimum, first ensuring she was safely in the Division's care and custody.

      Applying our limited scope of review and well-established legal

standards, we are satisfied there was competent, credible evidence in the record

to support the judge's finding that defendant abused or neglected Natalie by

leaving her unsupervised at the Division's office to be placed in foster care. The


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totality of the circumstances cited by the judge support her conclusion that the

child was abused or neglected within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b).

      Affirmed.




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