NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.L.L and T.C.P., SR., and C.C.

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RECORD IMPOUNDED

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6041-17T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Appellant,

T.L.L.,

Defendant-Respondent,

and

T.C.P., SR., and C.C.,

Defendants.
____________________________

IN THE MATTER OF K.P., L.P.,
D.L., and P.R.L.,

Minors.
____________________________

Submitted March 16, 2020 – Decided June 25, 2020

Before Judges Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-0285-18.

Gurbir S. Grewal, Attorney General, attorney for
appellant (Jason Wade Rockwell and Donna Sue Arons,
Assistant Attorneys General, of counsel; Lisa J.
Rusciano, Deputy Attorney General, on the briefs).

Joseph E. Krakora, Public Defender, attorney for
respondent (Deric D. Wu, Assistant Deputy Public
Defender, on the brief).

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

PER CURIAM

In this Title 9 Action, N.J.S.A. 9:6-8.21 to -8.73, plaintiff, the New Jersey

Division of Child Protection and Permanency (Division), appeals from the

Family Part's July 18, 2018 order dismissing its complaint alleging abuse or

neglect of the subject four children by their mother, T.L.L. (Terry). 1 A Family

Part judge entered the order after a fact-finding hearing in which she determined

that the Division failed to prove, by a preponderance of the evidence, that the

children were abused or neglected even though the evidence established that

there were issues with the mother's maintaining a clean home and separate

1
Pseudonyms are used to protect the family's confidentiality.
A-6041-17T3
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sanitary sleeping arrangements for the children. According to the judge, the

Division failed to prove that the mother's actions rose to the level of gross

negligence, and thus that the children were subject to the risk of imminent

danger needed to support a finding of abuse or neglect.

On appeal, the Division argues that the judge "erred as a matter of law in

limiting [her] analysis and the Division's proofs . . . to the scope of the

Division's investigative findings rather than considering all of the relevant

facts." It also contends that the judge's "determination . . . was based on [her]

misunderstanding and misapplication of controlling precedent." We disagree

and affirm.

Terry has four minor children: K.P. (Karen), who was born in 2001; L.P.

(Lisa), born in 2002; D.L. (Dara), born in 2008; and P.R.L. (Paula) , born in

2011. Prior to the Division filing its complaint in January 2018, Terry and her

family were known by the Division since 2005, based upon numerous referrals

received about her children's hygiene as well as the unsanitary conditions of

their home. It was alleged then that the children's clothing was filthy, they were

unwashed, and Terry failed to maintain her home in a sanitary condition. When

those referrals were substantiated, the children were removed from the home

A-6041-17T3
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and services were provided, ultimately leading to the return of the children and

the closing of the cases.

The present action arose from a December 2017 referral focusing on Lisa's

hygiene, alleging she wore filthy clothing to school every day and was not being

subjected to proper hygiene. Lisa Piggot-Lafond, a Division case worker,

investigated the referral by first visiting Terry's home. At th at time, Terry's

mother, as well as Terry's two adult sons, were living in the home with Terry

and the four minors.

At the home, Piggot-Lafond sensed the smell of urine throughout the

premises and observed dirty mattresses. In addition, she noted that the house

was strewn with filthy clothing and garbage, the refrigerator contained rotten

food, and there was evidence of insect infestation. The one bathroom servicing

the home was also filthy and she observed six cats and litter boxes that required

cleaning. According to Piggot-Lafond, the one bedroom shared by the four

minors had one bed that was obviously damaged, and their room was just as

filthy.

At the time of the investigation, Terry informed Piggot-Lafond that she

was not working and relied upon the receipt of approximately $800 per month

that she received from social security as a result of her children's disabilities. In

A-6041-17T3
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addition, Terry explained she received food stamps and her mother was

receiving disability of approximately $2000 per month. Her rent for the

premises, which was approximately $1300 per month, was current as were all of

the bills for her utilities.

When asked about her children's lack of hygiene, Terry denied that her

children wore dirty clothing, did not shower daily, or did not have their laundry

done. She acknowledged that Lisa still wet the bed although she had been taking

medication to address the problem, but it did not work and she chose to

discontinue its use. Terry also acknowledged that her daughter Karen had

asthma, but Terry did not believe that her maintaining cats in the home was a

problem.

Piggot-Lafond spoke to Lisa who denied that she wore soiled clothing to

school, although Piggot-Lafond observed during their conversation that Lisa's

clothing was dirty. Piggot-Lafond inquired about Lisa's attendance at school

and did not receive any response about why she had as many absences as she

did. Lisa also confirmed that she was responsible for doing her own laundry ,

which she estimated she attended to approximately twice per month.

In subsequent interviews with Karen, Dara, and Paula, they too denied

wearing soiled clothing to school, but again Piggot-Lafond observed that the

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clothing they were wearing was unclean. Those children also stated that they

showered and changed their clothes regularly, but confirmed that both Dara and

Lisa continued to urinate in their bed.

Piggot-Lafond persuaded Terry to enter into an agreement addressing the

deficiencies in the home's cleanliness and requiring Terry to participate in

services for the children that included following up with a doctor about the bed-

wetting issues and Karen's asthma condition. Terry also agreed to have the cats

removed from her home, to undergo a psychological evaluation, and to comply

with any other recommendations for services to assist her and her family.

Thereafter, when Piggot-Lafond returned to the home five days later to

follow up, she found that although some progress was made in cleaning up the

house, it was insufficient. For that reason, the Division determined that the

allegations of neglect had been established.

The Division filed its complaint on January 26, 2018, alleging that the

children were abused or neglected. In paragraph eight, the Division alleged the

facts upon which the complaint was based. The complaint then described the

various referrals that were made from 2005 through 2015 and the events leading

up to the Division's case being closed in 2016. That history included allegations

A-6041-17T3
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of medical and educational neglect 2 that related only to Terry's now adult

children, who are not the subject of this action.

Turning to the present allegations, the complaint described the December

2017 referral that led to Piggot-Lafond's investigation and her findings as to the

cleanliness of the home and the children. The allegations did not reference any

educational or medical neglect.

The order to show cause, filed by the court with the filing of the complaint

that same day, stated the Family Part judge found, based on Piggot-Lafond's

testimony, that "the children are living in unsanitary conditions and are not

attending school regularly. [Terry] is not attending to their medical needs ."

2 Under N.J.S.A. 9:6-8.21(c)(4)(a), an abused or neglected child includes 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 . . . education,
medical or surgical care though financially able to do
so or though offered financial or other reasonable
means to do so.

"The reference to education contained in N.J.S.A. 9:6-8.21(c)(4)(a) concerns
parental encouragement to truancy of a school age child, or other interference
with normal educative processes." Doe v. G. D., 146 N.J. Super. 419, 431
(App. Div. 1976), aff'd sub nom. Doe v. Downey, 74 N.J. 196 (1977).

A-6041-17T3
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Piggot-Lafond had testified at the hearing for the order to show cause that the

children were frequently absent from school and that despite Terry's recognizing

that her daughter had asthma, there were still cats present in the home that acted

as a trigger for that asthma. In her oral decision that day, the judge stated that

she had concerns based upon allegations made by the Division about "the

unsanitary conditions and the appearance[s] of the children as well as their

sleeping arrangements and their medical needs," citing to Terry keeping cats in

the home while her daughter suffered from asthma. There was no mention of

educational or medical neglect in the judge's oral findings.

At the return of the order to show cause, the judge continued to express

concern about the effect of the presence of the cats on Karen's asthma. The

judge asked for "something from the pulmonologist or otherwise" regarding the

problem, if any, with the presence of the cats in the home. Terry's attorney

advised the judge that Terry already had appointments scheduled, had been to a

pulmonologist prior to the hearing, and that they would endeavor to get an

opinion from one of the doctors, but that the timing of it was "out of her control."

At the conclusion of the hearing the court entered an order directing that a

recommendation be obtained from the appropriate doctor.

A-6041-17T3
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By the next hearing in May 2018, the opinion from the doctor had not yet

been received. However, the cats had been temporarily removed from Terry 's

residence. At the conclusion of the hearing, the judge ordered Terry to get the

information from the doctors and schedule and attend all the children 's medical

and dental appointments, as well as meetings at school regarding the children's

attendance and progress.

On July 18, 2018, the judge conducted the fact-finding hearing. Prior to

the commencement of the hearing, Terry objected to the admission of the

children's school records. Among other objections, Terry asserted that the

records were irrelevant because the Division's complaint did not include

allegations of educational neglect. According to the Division, the records were

admissible because they were part of the totality of the circumstances and related

to whether the children were being abused or neglected. In addition, the

Division argued that the documents were relevant because the claims to which

they related came within the purview of the statutory grounds for abuse and

neglect. In response, the judge held that the information was not "relevant to a

finding of basic needs in and of itself. There[ is] other evidence that the Division

has put forward that is specifically relating to the failure to provide basic needs.

So I am not going to allow [the evidence] in on relevant grounds."

A-6041-17T3
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At the hearing, the only witness to testify was Piggot-Lafond. She

testified to Terry's involvement with the Division, and her and the Division's

investigation regarding the specific allegations of abuse or neglect. Neither

Terry's counsel nor the Law Guardian cross-examined her, and neither of them

offered any witnesses or other evidence in response.

After considering the testimony and documents that were admitted into

evidence, the judge placed her findings on the record. The judge reviewed

Terry's history dating back to 2005 and noted that it included a substantiation

for educational and environmental neglect. Turning to the present matter , the

judge observed that it was initiated as a result of the December 2017 referral

that related to the children's hygiene. The judge found that the initial

investigation revealed the home was filthy as described by Piggot-Lafond but

"that the utilities were working [and] [t]here was sufficient food in the home and

the rent was up-to-date."

The judge recounted the case worker's findings as to her initial interviews

with the children concerning their bed-wetting issues that resulted in problems

with the cleanliness of their bedroom and their clothing. The judge also found

that Karen told Piggot-Lafond "she misses school because of her asthma and has

allergies to cats" and other animals. However, the judge found that the reports

A-6041-17T3
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from the school about the children's hygiene indicated that Dara appeared in

school "clean and neat," and Paula was "well-groomed, well-rested, clean and

dressed nicely."

The judge then explained the purposes of Title 9 and its intent to protect

children from actual or threatened harm. Turning to the Division's burden of

proof, the judge stated that it was up to the Division to prove, by a preponderance

of the evidence where, as here, there was no actual harm, "imminent danger or

substantial risk of harm to a child." And, that it was the judge's obligation to

"consider the totality of the circumstances to determine whether a child has been

placed at an unacceptable risk by the conduct of the parent."

The judge then found that there was no question that Terry's home "was

dirty and the children's hygiene . . . [was] not properly maintained." However,

she also found that two of the children were "reported to be clean and well-

groomed." Moreover, the judge determined that Terry had been cooperative

with services provided through the Division. The judge also found that allowing

the four children to sleep in one bed, especially when two of them were

continually urinating during the night, was inappropriate, but, she stated that

"the issue here is whether [Terry] failed to provide basic needs for her children."

A-6041-17T3
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Citing to G.D., 146 N.J. Super. at 433, the judge concluded that "a dirty

home does not establish abuse or neglect." For that reason, "[b]ased on the

totality of the circumstances, despite the fact that [Terry] has a history . . . [with

the] cleanliness of the home, the [c]ourt does find that the Division has not met

its burden of proof." The judge concluded that Terry's "failure to ensure the

cleanliness of her home and the hygiene of her children does not rise to the level

of gross negligence" and therefore "the children are not abused or neglected

under Title 9."

The judge then continued the matter under Title 303 with the Division

providing services as needed by the family. The judge also directed that the

Division's administrative finding that abuse or neglect was established be

removed from the Division's records.

The judge entered an order that day reflecting her decision. In a separate

order entered the same day, the judge terminated the litigation because the

children remained in the home and the "conditions have been remediated." This

appeal followed.

3
Where there is no finding of abuse or neglect under Title 9, but there is a need
for services, the matter may proceed under a Title 30 action for care and
supervision. See N.J.S.A. 30:4C-12.
A-6041-17T3
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On appeal, in its initial argument, the Division contends that the judge

improperly rejected evidence of medical and educational neglect by improperly

limiting the scope of the evidence to the Division's investigative findings.

According to the Division, "the trial judge's constrained view of the law is

inconsistent with the plain language and purpose of Title [9] and should be

reversed." We disagree.

In a Title 9 action, the admissibility of evidence is governed by statute,

court rules, and the rules of evidence. N.J.S.A. 9:6-8.46(b) provides that only

"competent, material and relevant" evidence may be admitted in such actions .

Here, because the complaint did not allege medical or educational neglect, the

judge excluded the preferred records based on relevance.

In reviewing a Family Part judge's evidentiary ruling, we consider it for

an abuse of discretion. N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J.

Super 478, 492 (App. Div. 2016). We reverse discretionary determinations , as

with all rulings on the admissibility of evidence, only "when the trial judge's

ruling was 'so wide of the mark that a manifest denial of justice resulted.'" N.J.

Div. of Youth & Family Servs. v. M.G., 427 N.J. Super 154, 172 (App. Div.

2012) (quoting State v. Carter, 91 N.J. 86, 106 (1982)). Applying this standard

to the circumstances here, we do not discern any abuse of the trial judge's

A-6041-17T3
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discretion because the Division failed to assert, as the judge found, any claims

related to the documents.

The judge properly excluded the evidence because Terry was not on notice

of the claims such evidence was intended to substantiate. A defendant in a Title

9 action is entitled to receive notice of the facts upon which the Division relies

in asserting a claim of abuse or neglect in order to ensure that the defendant has

an opportunity to meet and rebut proofs of the fact-finding hearing. See N.J.

Div. of Youth & Family Servs. v. P.C., 439 N.J. Super 404, 414-15 (App. Div.

2015); N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265

(App. Div. 2002). At a minimum, "[t]he complaint must adequately notify a

defendant of all charges," P.C., 439 N.J. Super. at 413 (citing N.J. Div. of Youth

& Family Servs. v. P.W.R., 205 N.J. 17, 36-37 (2011)), and the defendant must

be given "an adequate opportunity to prepare and respond," N.J. Div. of Youth

& Family Servs. v. B.M., 413 N.J. Super. 118, 126 (App. Div. 2010) (quoting

H.E.S. v. J.C.S., 175 N.J. 309, 321-22 (2003)). Because a "fact-finding hearing

is a critical element of the abuse and neglect process," P.C., 439 N.J. Super. at
413, it must be conducted "with scrupulous adherence to procedural safeguards,"

ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 401

(2009)). The Division's failure to notify a defendant that a trial would be based

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upon allegations of educational or medical neglect "cannot be found to be

harmless error." B.M., 413 N.J. Super. at 127.

That does not mean a court cannot allow the evidence to go beyond that

which is set forth in the complaint. "That reality is not inconsistent with

affording defendants the protections of due process to which they are entitled."

J.D. v. M.D.F., 207 N.J. 458, 479 (2011) (addressing the introduction of

evidence of prior acts of domestic violence that were not included in a

complaint). However, a court must recognize that if it allows expansion of the

allegations in the complaint, "it has permitted an amendment to the complaint

and must proceed accordingly." Id. at 479-80. In a Title 9 action, "if the proof

does not conform to the specific allegations of the complaint, the court may

amend the allegations to conform to the proof; provided, however, that in such

case the [defendant] shall be given reasonable time to prepare to answer the

amended allegations." N.J.S.A. 9:6-8.50(b).

A court allowing an amendment must consider whether the expansion

prejudiced the defendant and whether an adjournment or other remedy is

warranted.

To be sure, some defendants will know full well the
history that plaintiff recites and some parties will be
well-prepared regardless of whether the testimony
technically expands upon the allegations of the

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complaint. Others, however, will not, and in all cases
the trial court must ensure that defendant is afforded an
adequate opportunity to be apprised of those allegations
and to prepare.
[J.D., 207 N.J. at 480.]

Here, the Division's complaint did not assert either educational or medical

neglect as the underlying basis for its filing. Although in its recitation of its

history of involvement with Terry, it noted past allegations of educational

neglect, there was nothing in the complaint to give Terry notice that her conduct

at the time of the complaint's filing included those claims. Moreover, when the

Division sought to introduce the records to support a new claim of abuse and

neglect, it did not seek to amend its complaint at that time. Nor did it seek

amendment later, after the judge ruled the records were inadmissible.

The fact that the judge addressed issues involving one child's asthma and

her not attending school because of her condition did not change the contents of

the complaint. Nor, as argued by the Division, did the Division's letter,

transmitting evidence to both Terry and the Law Guardian and including a

statement that the Division would be relying upon Terry's past history , give

notice to Terry that the Division was asserting medical or educational neglect of

her four young children. Under these circumstances, the judge did not abuse her

discretion.

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We turn our attention to the Division's contention that the judge's finding

of no abuse or neglect was legally incorrect, considering her factual findings.

We disagree.

Our review of a Family Part judge's findings is limited. We "defer to the

factual findings of the trial court," N.J. Div. of Youth & Family Servs. v. E.P.,

196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction

and expertise in family matters," N.J. Div. of Youth & Family Servs. v. M.C.

III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413

(1998)). It is "[o]nly when the trial court's conclusions are so 'clearly mistaken'

or 'wide of the mark,'" E.P., 196 N.J. at 104 (quoting N.J. Div. of Youth &

Family Servs. v. G.L., 191 N.J. 596, 605 (2007)), that we will intervene and

make our own findings "to ensure that there is not a denial of justice," ibid.

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

conclusions that flow from established facts are not entitled to any special

deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995). The court's interpretation of the law or its legal conclusions

are reviewed de novo. State ex rel. A.B., 219 N.J. 542, 554-55 (2014).

The Division asserts that the trial judge's interpretation of G.D. was

incorrect. According to the Division, rather than analyzing the totality of the

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circumstances in order to determine whether the situation represented an

imminent danger to the children's physical condition and that Terry acted

without regard for the potentially serious consequences, the trial judge found

that the dirty home could not satisfy the definition of abuse or neglect under

G.D.

In G.D. we reversed a trial judge's finding of abuse or neglect that was

based in part upon the conditions of the home. There, we held that a finding of

abuse or neglect could not be based only upon the conditions of a home caused

by poverty. We stated the following:

Wholly apart from the judge's articulation of his
understanding of the statutory standard, it is clear from
an examination of his findings and the emphasis in his
opinion that he misconceived the nature and basis for
the proceeding. First, he emphasized the
unacceptability of substandard, dirty and inadequate
sleeping conditions. While they may be unfortunate
incidents of poverty, they do not establish child neglect
or abuse. Adoption of such facts as a basis for a finding
of child neglect or abuse might result in mass transfers
of children from ghettos and disadvantaged areas into
more luxurious living accommodations but with
resultant destruction of the natural parental bond. This
clearly was not the design of the statute nor the intent
of the legislature.

[G.D., 146 N.J. Super. at 430-31.]

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As we recognized in G.D., "[i]t is well-settled that poverty alone is not a

basis for a finding of abuse or neglect." N.J. Div. of Child Prot. & Permanency

v. L.W., 435 N.J. Super. 189, 195 (App. Div. 2014). Our holding did not

indicate that abuse or neglect cannot be found when such conditions are not the

result of poverty, but rather were intentionally caused by a parent or guardian or

the result of their gross negligence as contemplated under Title 9.

Where there is no proof of actual harm to a child, the Division can meet

its burden by proving that the parent, through conduct that amounts to gross

negligence, has created a substantial risk of harm to the child. "[A] failure to

provide for a child's needs, when a parent is capable of doing so, can support

actionable neglect where a child's condition has been demonstrated to be

impaired or in imminent danger of being impaired." P.W.R., 205 N.J. at 35.

A failure to provide the "minimum degree of care," N.J.S.A. 9:6-

8.21(c)(4), that a parent must provide to their child does not refer to merely

negligent conduct, but "refers to conduct that is grossly or wantonly negligent,

but not necessarily intentional," N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 300 (2011) (quoting G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 178 (1999)). "Conduct is considered willful or wanton if done with

the knowledge that injury is likely to, or probably will, result," G.S., 157 N.J. at

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178, and can apply to situations ranging from "slight inadvertence to malicious

purpose to inflict injury," ibid. (quoting McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)).

The essence of gross or wanton negligence is that it "implies that a person

has acted with reckless disregard for the safety of others." Id. at 179. While

gross negligence requires "an indifference to [the] consequences," Banks v.

Korman Assocs., 218 N.J. Super 370, 373 (App. Div. 1987) (quoting State v.

Gooze, 14 N.J. Super. 277, 282 (App. Div. 1951)), a parent's actual intent to

cause harm is not necessary, G.S., 157 N.J. at 179. However, if the act or

omission is intentionally done, "whether the actor actually recognizes the highly

dangerous character of [his or] her conduct is irrelevant," and "[k]nowledge will

be imputed to the actor." Id. at 178. Such knowledge is imputed "[w]here an

ordinary reasonable person would understand that a situation poses dangerous

risks and acts without regard for the potentially serious consequences." Id. at

179.

The evaluation of a parent's conduct for abuse or neglect should not be

determined by the risk the parent poses to the child at the time of the fact-finding

hearing. See N.J. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166,

170 (2015). Rather, the analysis should focus on the events up through the time

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of the conduct. See ibid. A trial court's focus on the risk that a parent's conduct

poses to their child, at the time of the fact-finding hearing, "has the obvious

potential to overlook [earlier] conduct, even aberrational conduct, that had the

clear capacity to produce a catastrophic result. Such an approach contravenes

the legislative determination that child protective services and a court may

intervene before a child experiences actual harm." Id. at 189. A trial court may

consider, for limited purposes, the risk a parent poses at the time of the fact-

finding hearing, but only in the context of determining future services and the

disposition of the children, not for making the abuse or neglect determination

itself. Ibid.

Here, although there was no dispute about the uncleanliness of the home,

the trial judge found that shortly after the time of the filing of the complaint, the

school reported that some of the children were "clean" and "well-groomed," the

rent and utilities were paid, and Terry had cooperated with the services provided

by the Division that helped her improve the home's poor conditions.

The judge also found that Terry's behavior did not give rise to an act of

gross negligence nor was it intentional behavior that created an imminent risk

of harm to the children. The judge reached her conclusions after conducting a

review of the totality of the circumstance that included Terry's attempt to parent

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all of her children, including the two cognitively disabled adult children in her

care, using funds derived through government benefits.

The judge's findings were supported by the evidence. Under our

deferential standard of review, we are bound by them. And, her determination

that under the circumstances, our holding in G.D. prevented a finding of abuse

or neglect was legally correct. There was an absence of any evidence of gross

negligence, despite the fact that minimally, some of the conditions of the home

could have been remedied with physical effort, that is, self-cleaning the home

and sanitizing it as required.

Affirmed.

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