New Jersey Division of Child Protection and Permanency v. A.B.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

              New Jersey Division of Child Protection and Permanency v. A.B. (A-27-16) (077664)

Argued September 26, 2017 -- Decided December 21, 2017

TIMPONE, J., writing for the Court.

         In this appeal as of right, the Court considers determinations that defendant A.B. abused or neglected A.F.,
her sixteen-year-old daughter; that A.B. willfully abandoned A.F.; and that remarks attributed to A.B.’s sister, J.F.,
were subject to suppression as embedded hearsay.

          Sixteen-year-old A.F. and her infant son lived with her biological mother, A.B., in an apartment owned by
A.B.’s sister, J.F. On October 2, 2012, the New Jersey Division of Child Protection and Permanency (the Division)
received a referral that A.F. had run away with her infant son in September 2012. The Division dispatched a
caseworker to interview A.B. at her apartment. A.B. disclosed that A.F. had run away several days earlier when
A.B. took away A.F.’s laptop and cellphone as punishment for being suspended from school. The caseworker went
to the high school and met with A.F. During this meeting, A.F. related that she had been staying with various
friends since leaving home. A.F. indicated that she had previously returned home to reconcile with A.B. and that
they had gone together to the school to have A.F. reinstated. Near the end of the conference, A.F. expressed that she
had “no intention of returning to her mom’s home,” and in fact did not.

         Later that day, the caseworker discovered that A.F. and her infant son were staying with a friend, L.V.,
whose residence lacked electricity. The caseworker attempted to gain entry to the residence to assess its suitability
for a young runaway and her infant. She was refused entry. The caseworker immediately conveyed to A.B. her
apprehensions regarding the safety of A.F. and her infant son, as well as the suitability of A.F.’s living arrangement.
A.B. voiced concern but was “still not willing to allow the children to come back and reside with her.” A.B.
asserted that she lived with her sister, J.F., who owned the apartment and was unwilling to allow A.F. back into the
home “as well.” A.B. could think of no one else with whom A.F. could stay. She was also unwilling to consent to
an order of emergency removal for A.F. The Division placed A.F. and her son in a resource home.

          The Division then filed a verified complaint in the Family Part of the Superior Court, Chancery Division,
seeking legal custody of A.F. The court conducted a fact-finding hearing to determine whether A.B. abused,
neglected, or willfully abandoned A.F. Defense counsel objected to the admission of embedded hearsay in the form
of statements attributed to J.F., A.B.’s sister, within the Division’s referral, reports, and documents. The court
sustained that objection. During the Law Guardian’s cross-examination of the caseworker, the Law Guardian asked
if J.F. ever told her that “she was not willing to let A.F. stay in her house.” Defense counsel objected on the basis of
inadmissible hearsay; the judge sustained the objection. During the defense’s summation, the Division objected
when defense counsel attempted to reference J.F.’s refusal to allow A.F. into her home. The judge similarly
sustained the objection on hearsay grounds. The judge determined that A.B. neglected A.F. in violation of
subsections (4)(a) and (5) of 
N.J.S.A. 9:6-8.21(c), explaining that “refusing to allow a 16 year old child into her
home who has an infant herself would be gross negligence. It’s just reckless disregard for the safety of her child.”

          A divided Appellate Division panel affirmed. The panel majority rejected A.B.’s contention that a finding
of abuse or neglect under 
N.J.S.A. 9:6-8.21(c)(4) could not be sustained because A.F. was not actually harmed in
any way. “[T]he risks inherent in barring a sixteen-year-old child from the family home without arranging any
alternative source of shelter or support are obvious,” the majority observed. The panel majority affirmed the judge’s
finding of willful abandonment under 
N.J.S.A. 9:6-8.21(c)(5), holding that the record contained substantial and
credible evidence that A.B. willfully abdicated any responsibility for her daughter: A.B. refused to permit A.F. to
return home despite being informed by the Division that A.F.’s living arrangement was ill-advised and failed to
make other arrangements for A.F.’s care and support. Lastly, the panel majority found no error in the judge’s
conclusion that the hearsay testimony regarding A.B.’s sister was unreliable.

                                                           1
         The dissenting panel member disagreed with the majority’s refusal to consider evidence of the sister’s
ownership of the apartment and her decision not to re-admit A.F., contending that the caseworker’s testimony on the
matter was competent, material, and relevant evidence. The dissent further took issue with the panel majority’s
finding of abuse or neglect because there was neither evidence of actual harm to A.F. nor the threat of harm. The
dissent further disputed the panel majority’s finding of abandonment under the statute because A.B. gave no
indication that she intended to permanently bar her daughter or was abdicating her parental rights and duties. A.B.
appealed to the Court as of right. See R. 2:2-1(a)(2).

HELD: The Division met its burden of proof concerning A.B.’s abuse or neglect of A.F. under 
N.J.S.A. 9:6-8.21(c)(4).
The Court finds insufficient proof of willful abandonment under 
N.J.S.A. 9:6-8.21(c)(5) and reverses on that issue. The
hearsay evidence was properly suppressed.

1. The hearsay statements at issue were the subject of objection and were excluded early in the proceedings.
Importantly, it was defense counsel who objected at the commencement of the fact-finding hearing to “any hearsay
statements from . . . [J.F.].” The Court has long recognized the doctrine of invited error, which operates to bar a
disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party
urged the lower court to adopt the proposition now alleged to be error. A.B. succeeded in having the trial court take a
certain course of action; she cannot now condemn the very determination for which she advocated merely because the
consequences of that determination have proved unfavorable. (pp. 14-16)

2. Hearsay may not be admitted into evidence unless it falls into a recognized exception. When a hearsay statement
contains another hearsay statement, the embedded hearsay must independently fall within one of the exceptions to
be admissible. Here, J.F.’s purported refusal to allow A.F. to return to the apartment was referenced in documents
about which the caseworker was asked. Although the documents themselves benefitted from an exception to the
hearsay rule, it was not an abuse of the trial court’s discretion to find that the remarks within those reports attributed
to J.F.—who did not testify—were hearsay within hearsay that did not fall within an independent exception. Thus,
even absent invited error, the judge did not abuse her discretion in excluding the hearsay statements. (p. 17)

3. To prove abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(a), the Division must establish by a preponderance of the
evidence that: (1) the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of
becoming impaired; and (2) the impairment or imminent impairment results from the parent’s failure to exercise a
minimum degree of care. A.F. was sixteen years old and caring for a premature infant. When A.F.’s school became
aware that she had run away, the school referred the issue to the Division. The Division then asked A.B. to contact
them pertaining to A.F.; A.B. never did so. Only later did A.B. concede that she was unaware of A.F.’s
whereabouts. The caseworker then unearthed that A.F. was living in a residence lacking electricity, so she visited
the home to determine its adequacy. When the caseworker concluded that the home was unsuitable, she implored
A.B. to sign an emergency removal or to allow the children to return home; A.B. refused both entreaties. A.B. failed
to exercise the minimum degree of care. That failure placed A.F.’s physical, mental, and emotional condition in
imminent danger of becoming impaired. The Court affirms the panel majority’s finding of A.B.’s abuse or neglect
of A.F. per 
N.J.S.A. 9:6-8.21(c)(4). (pp. 17-22)

4. In Lavigne v. Family & Children’s Society, the Court set forth the standard required for the State to prove
abandonment under 
N.J.S.A. 9:6-8.21(c)(5) as “any conduct on the part of the parent which evinces a settled
purpose to forego all parental duties and relinquish all parental claims to the child.” 
11 N.J. 473, 480 (1953). The
facts here do not support that A.B.’s conduct amounted to a “settled purpose” to forego her parental rights. The
dissent suggested several factors from the record indicating that A.B. had no intention of abdicating her parental
rights and duties: A.B. periodically permitted A.F. back into the dwelling; A.B. accompanied A.F. to school to help
her get reinstated after suspension; and A.B., upon receiving her own housing, permitted A.F. to return to live with
her. The Court reverses the finding of the panel majority and holds that the State did not meet its burden in proving
that A.B. willfully abandoned A.F. per 
N.J.S.A. 9:6-8.21(c)(5). (pp. 22-24)

         The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART.

       CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.


                                                            2
                                     SUPREME COURT OF NEW JERSEY
                                       A-
27 September Term 2016
                                                077664

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

    Plaintiff-Respondent,

         v.

A.B.,

    Defendant-Appellant.


IN THE MATTER OF A.F.,

    Minor.


         Argued September 26, 2017 – Decided December 21, 2017

         On appeal from the Superior Court, Appellate
         Division.

         Clara S. Licata, Designated Counsel, argued
         the cause for appellant (Joseph E. Krakora,
         Public Defender Parental Representation,
         attorney; T. Gary Mitchell, Deputy Public
         Defender, of counsel, and Clara S. Licata,
         of counsel and on the briefs).

         Sara M. Gregory, Deputy Attorney General,
         argued the cause for respondent New Jersey
         Division of Child Protection and Permanency
         (Christopher S. Porrino, Attorney General,
         attorney; Andrea S. Silkowitz, Assistant
         Attorney General, of counsel, and Joyce
         Calefati Booth, Deputy Attorney General, on
         the brief).

         Melissa R. Vance, Assistant Deputy Public
         Defender, argued the cause for respondent
         A.F. (Joseph E. Krakora, Public Defender Law


                               1
         Guardian, attorney; Melissa R. Vance, on the
         brief).

         Mary M. McManus-Smith argued the cause for
         amicus curiae Legal Services of New Jersey
         (Melville D. Miller, Jr., President,
         attorney; Mary M. McManus-Smith, Melville D.
         Miller, Jr., and Jeyanthi C. Rajaraman, on
         the brief).


    JUSTICE TIMPONE delivered the opinion of the Court.

    This case comes before us as a matter of right from a

divided Appellate Division panel.   The panel majority upheld the

trial court’s determinations that defendant A.B. abused or

neglected A.F., her sixteen-year-old daughter; that A.B.

willfully abandoned A.F.; and that remarks attributed to A.B.’s

sister, J.F., were subject to suppression as embedded hearsay.

The dissenting panelist disagreed with all three determinations.

    We now affirm the panel majority’s judgment that the New

Jersey Division of Child Protection and Permanency met its

burden of proof concerning A.B.’s abuse or neglect of A.F.     We

find, however, insufficient proof of willful abandonment and

therefore reverse on that issue.    We also find that the hearsay

evidence was properly suppressed.

                               I.

    We marshal the following facts from the record.

    Sixteen-year-old A.F. and her infant son lived with her

biological mother, defendant A.B., in an apartment owned by


                                2
A.B.’s sister, J.F.   A.F. and A.B. had a tumultuous

relationship, which spurred the incidents that resulted in this

case.

    On October 2, 2012, the New Jersey Division of Child

Protection and Permanency (the Division) received a referral

that A.F. had run away with her infant son in September 2012.

The referral included concerns that A.F. smoked marijuana,

consumed alcohol, and exhibited inadequate parenting.         The

Division dispatched a caseworker to interview A.B. at her

apartment, where she told the caseworker she had been having

difficulty with A.F., who was very disrespectful.      A.B.

disclosed that A.F. had run away with her infant son several

days earlier when A.B. took away A.F.’s laptop and cellphone as

punishment for being suspended from school for cursing at a

teacher.   A.B. tried to reach A.F. by cellphone but, when she

refused to answer, A.B. cancelled A.F.’s cellphone service.

    In October 2012, in response to a call from A.F.’s high

school, the caseworker went to the high school and met with A.F.

During this meeting, A.F. related that she had been staying with

various friends since leaving home.   A.F. indicated that she had

previously returned home to reconcile with A.B. and that they

had gone together to the school to have A.F. reinstated.            During

the conference with the school’s Management Crisis Team, A.F.

and A.B. got into an argument, and A.B. “made statements that

                                 3
she was close to kicking [A.F.] out of her home.”    Near the end

of the conference, A.F. expressed that she had “no intention of

returning to her mom’s home,” and in fact did not.

    Later that day, the caseworker discovered that A.F. and her

infant son were staying with a friend, L.V., whose residence

lacked electricity.     The caseworker attempted to gain entry to

the residence to assess its suitability for a young runaway and

her infant.    She was refused entry.   The caseworker immediately

conveyed to A.B. her apprehensions regarding the safety of A.F.

and her infant son, as well as the suitability of A.F.’s living

arrangement.   A.B. voiced concern but was “still not willing to

allow the children to come back and reside with her,”

emphasizing “she was not willing to take [A.F.] back” given that

A.F. “was very disrespectful.”

    A.B. asserted that she lived with her sister, J.F., who

owned the apartment and was unwilling to allow A.F. back into

the home “as well.”     A.B. could think of no one else with whom

A.F. could stay.     She was also unwilling to consent to an order

of emergency removal for A.F.     The Division resorted to an

emergency removal process and placed A.F. and her son in a

resource home.     The Division then filed a verified complaint in

the Family Part of the Superior Court, Chancery Division,

seeking continued legal custody of A.F.     At an order to show

cause hearing, the court determined that the Division’s removal

                                   4
was proper and that the Division would retain custody of A.F.

The court later continued the Division’s custody of A.F.

    On February 19, 2013, the court conducted a fact-finding

hearing to determine whether A.B. abused, neglected, or

willfully abandoned A.F. within the meaning of Title 9, 
N.J.S.A.

9:6-8.21 to -8.73.   As a preliminary matter, defense counsel

objected to the admission of embedded hearsay in the form of

statements attributed to J.F., A.B.’s sister, within the

Division’s referral, reports, and documents.    The court

sustained that objection.

    At the fact-finding hearing, the Division’s caseworker was

its only witness.    During the Law Guardian’s cross-examination

of the caseworker, the Law Guardian asked if J.F. ever told her

that “she was not willing to let A.F. stay in her house.”

Defense counsel objected on the basis of inadmissible hearsay;

the judge sustained the objection.   During the defense’s

summation, the Division objected when defense counsel attempted

to reference J.F.’s refusal to allow A.F. into her home.    The

judge similarly sustained the objection on hearsay grounds.

During defense counsel’s cross-examination of the caseworker,

the Division objected when defense counsel intimated that J.F.

refused to allow A.F. back into the apartment, arguing that it

was not a proper question for that witness to answer.     The judge

sustained the objection.

                                 5
    In an oral decision rendered on the record, the judge

determined that A.B. neglected A.F. in violation of subsections

(4)(a) and (5) of 
N.J.S.A. 9:6-8.21(c), explaining that

“refusing to allow a 16 year old child into her home who has an

infant herself would be gross negligence.    It’s just reckless

disregard for the safety of her child.”

    A divided Appellate Division panel affirmed in an

unpublished opinion.   The panel majority rejected A.B.’s

contention that a finding of abuse or neglect under 
N.J.S.A.

9:6-8.21(c)(4) could not be sustained because A.F. was not

actually harmed in any way, reasoning that “the statute makes

expressly clear that actual impairment of the child is not

required to support a finding of neglect.”    The panel majority

similarly dismissed A.B.’s argument that the judge failed to

make an explicit finding that A.F. was in imminent danger as

defined by 
N.J.S.A. 9:6-8.21(c)(4).    “[T]he risks inherent in

barring a sixteen-year-old child from the family home without

arranging any alternative source of shelter or support are

obvious,” the majority observed.

    The panel majority affirmed the judge’s finding of willful

abandonment under 
N.J.S.A. 9:6-8.21(c)(5), holding that the

record contained substantial and credible evidence that A.B.

willfully abdicated any responsibility for her daughter.     The

panel majority found support for that finding in evidence that

                                   6
A.B. refused to permit A.F. to return home despite being

informed by the Division that A.F.’s living arrangement was ill-

advised, as well as A.B.’s failure to make other arrangements

for A.F.’s care and support.

    Lastly, the panel majority rebuffed the dissent’s argument

that A.B.’s due process rights were violated by the suppression

of hearsay testimony concerning J.F.’s alleged refusal to allow

A.F. back into the apartment.   The panel majority noted that the

judge had discretion to determine the credibility of the

evidence adduced at the fact-finding hearing and found no error

in the judge’s conclusion that the hearsay testimony regarding

A.B.’s sister was unreliable.

    The dissenting panel member disagreed with the majority’s

refusal to consider evidence of the sister’s ownership of the

apartment and her decision not to re-admit A.F., contending that

the caseworker’s testimony on the matter was competent,

material, and relevant evidence.

    The dissent further took issue with the panel majority’s

finding of abuse or neglect, reasoning that even if A.B. had

precluded A.F. from returning home, that act does not justify an

abuse or neglect finding because there was neither evidence of

actual harm to A.F. nor the threat of harm.   The dissent noted

that A.F. ran away on other occasions and each time returned

home unscathed.

                                   7
    The dissent further disputed the panel majority’s finding

of abandonment under the statute.     The dissenting panelist

maintained that abandonment required a finding that a parent

must exhibit a willful forsaking of her parental

responsibilities, whereas A.B. gave no indication that she

intended to permanently bar her daughter or was abdicating her

parental rights and duties.

    A.B. appealed to this Court as of right.      See R. 2:2-

1(a)(2).   We granted leave to Legal Services of New Jersey

(LSNJ) to appear as amicus curiae.

                                II.

                                A.

    A.B. advances three arguments on appeal and urges this

Court to reverse the decision of the panel majority.     First, she

asserts that it was error to exclude hearsay testimony alleging

that her sister J.F. was instrumental in prohibiting A.F. from

returning to her apartment.   A.B. argues that the panel

majority’s reliance on Division of Youth & Family Services v.

J.Y., 
352 N.J. Super. 245 (App. Div. 2002), to support exclusion

of the hearsay statements was misplaced.     Rather, A.B. argues

that the J.Y. decision established a shield to protect against

the State’s misuse of hearsay and casual non-evidential

assertions as evidence in a Title 9 case and that the Family

Part judge flouted J.Y.’s demand for “fairness and formality in

                                 8
a Title 9 trial.”   A.B. also adopts the dissenting judge’s

assertion that the exclusion of the hearsay statements

constituted a due process violation.

    Second, A.B. argues that the Division did not present

sufficient evidence to sustain a finding of abuse or neglect

against her under 
N.J.S.A. 9:6-8.21(c)(4).   Specifically, A.B.

contends that the Division was required to show:

         (1) that A.F.’s physical, mental, or emotional
         condition was impaired or in imminent danger
         of becoming impaired; (2) that A.B. failed to
         exercise a minimum degree of care in providing
         her daughter with adequate shelter[;] and (3)
         that she was financially able to do so or had
         been offered the financial means to do so.

    A.B. maintains that the Division did not meet its burden of

proving any of those elements.    As to the harm or impairment

prong, A.B. argues that the panel majority created a categorical

rule in holding that “the risks inherent in barring a sixteen-

year-old from the family home without arranging any alternative

source of shelter are obvious.”   A.B. asserts that this Court

condemned such rules in the Title 9 context in Division of Child

Protection & Permanency v. E.D.-O., 
223 N.J. 166, 192-93 (2015).

A.B. maintains that even if V.L.’s home lacked electricity, that

alone would not indicate that A.F. was in danger of impairment.

A.B. argues that the Division did not make the requisite showing

of imminent peril to A.F.   A.B. further asserts that the



                                  9
Division failed to provide evidence of her financial ability to

provide shelter.

    Lastly, A.B. argues that the trial court’s finding of

abandonment under Title 9 must be reversed because there were no

proofs presented to demonstrate that she intended to willfully

forego her parental responsibilities.   A.B. stresses that the

record indicates she had no intent of abandoning A.F. as

evidenced by the fact that she allowed A.F. to return to the

family home on several occasions.

                               B.

    The Division counters that it demonstrated abuse or neglect

of A.F. by A.B. by a preponderance of the evidence and asks this

Court to affirm the panel majority.   The Division echoes the

trial court’s finding that A.B.’s refusal to allow A.F. back

into the apartment amounted to gross negligence and evidenced

her reckless disregard for A.F.’s safety.   The Division also

adopts the panel majority’s holding that “the risks of leaving a

teenager without a source of shelter are 'obvious.’”   The

Division notes that A.B. refused services offered to her,

including substance abuse treatment, and failed to seek

assistance even after A.F. had left the home.   In addition, the

Division alleges that A.B. thwarted its attempts to provide her

with assistance when she failed to apprise the Division of her

issues with A.F.

                               10
    The Division underscores that the trial court acted within

its discretion in excluding the hearsay statements at issue

because those statements were not credible and A.B. sought and

was granted their exclusion.     A.B. cannot now argue that

precluding the statements was error, the Division argues, under

the doctrine of invited error.     The Division notes that A.B.’s

argument was not raised below.

    The Division urges this Court to affirm the panel

majority’s finding of abandonment under 
N.J.S.A. 9:6-8.21(c)(5).

The Division contends that A.B.’s refusal to allow A.F. back

into the home amounted to a “willful or intentional act” under

the statute.

                                  C.

    The Law Guardian, appearing on behalf of A.F., argues that

the court properly excluded as hearsay statements regarding

J.F.’s refusal to allow A.F. to return to the apartment,

stressing that those statements did not qualify for an

enumerated exception because they were unreliable and lacked

corroboration.   The Law Guardian agrees that the Division

properly showed, by a preponderance of the evidence, A.B.’s

abuse or neglect of A.F. under subsections (4) and (5) of


N.J.S.A. 9:6-8.21.   The Law Guardian submits that the risks that

arise from “leaving a child without adequate shelter need not be

explained” and are plainly evident.     The Law Guardian also

                                  11
supports the finding of abandonment under 
N.J.S.A. 9:6-

8.21(c)(5), arguing that A.B. had an obligation to “provide or

arrange housing for her child” and her not doing so amounted to

a failure to “provide for her child’s safety and well-being.”

                               D.

    As amicus curiae, LSNJ urges this Court to reverse the

panel majority’s holding and argues that the Division should not

have initiated abuse or neglect proceedings.   Rather, LSNJ

contends, the Division should have performed its “duty to

provide the resources necessary to ensure adequate housing”

instead of placing the onus on A.B. for not “seek[ing] help from

the Division to shelter her daughter.”   LSNJ advocates that for

the Division to meet its burden of proof under 
N.J.S.A. 9:6-

8.21(c)(4)(a), it must prove either that the parent had the

financial means to provide for his or her child or that the

Division affirmatively offered the financial or other resources

necessary to secure adequate housing.    LSNJ additionally

contends that the Division could have provided shelter for A.F.

under the New Jersey Homeless Youth Act, codified in relevant

part at 
N.J.S.A. 9:12A-1.

    LSNJ advances that A.B.’s refusal to allow A.F. to return

home was simply an acknowledgment of her lack of options.

According to LSNJ, A.B. exhibited her intent to continue to



                               12
parent A.F.; LSNJ therefore takes issue with the panel

majority’s finding of willful abandonment.

                               III.

                                A.

    The New Jersey Constitution dictates that the Superior

Court include a family part.   N.J. Const. art. VI, § 3, ¶ 3.

Accordingly, our Constitution assigned to the Family Division

the formidable task of adjudicating some of the most sensitive

and precarious issues within contemporary society.   See, e.g.,

Div. of Youth & Family Servs. v. I.S., 
214 N.J. 8, 14 (2013)

(“Family courts are expected to address many difficult

situations . . . .”).

    The United States Supreme Court has long recognized the

fundamental right of individuals to “establish a home and bring

up children” as “essential to the orderly pursuit of happiness.”

Meyer v. Nebraska, 
262 U.S. 390, 399 (1923).   The Supreme Court

later stated that “the interest of parents in the care, custody,

and control of their children -- is perhaps the oldest of the

fundamental liberty interests recognized by this Court.”    Troxel

v. Granville, 
530 U.S. 57, 65 (2000).   The sacrosanct

obligations involved in childrearing extend beyond even

longstanding legal doctrine.   The bearing and raising of

children is one of the most intimate endeavors society pursues.

It is for this very reason that we have “invest[ed] the family

                                13
court with broad discretion because of its specialized knowledge

and experience in matters involving parental relationships and

the best interests of children.”     Div. of Youth & Family Servs.

v. F.M., 
211 N.J. 420, 427 (2012); see also Cesare v. Cesare,


154 N.J. 394, 413 (1998) (“Because of the family courts’ special

jurisdiction and expertise in family matters, appellate courts

should accord deference to family court factfinding.”); Div. of

Youth & Family Servs. v. M.C. III, 
201 N.J. 328, 343 (2010).

Indeed, we defer to family part judges “unless they are so wide

of the mark that our intervention is required to avert an

injustice.”   F.M., 
211 N.J. at 427.

                                B.

    We first consider whether the judge properly excluded the

embedded hearsay statements at issue.     “Trial judges are given

wide discretion in exercising control over their courtrooms” and

have “the ultimate responsibility of conducting adjudicative

proceedings in a manner that complies with required formality in

the taking of evidence and the rendering of findings.”     Div. of

Youth & Family Servs. v. J.Y., 
352 N.J. Super. 245, 264 (App.

Div. 2002).   Appellate courts review evidentiary determinations

by a trial court, including hearsay determinations, for abuse of

discretion.   See Carmona v. Resorts Int’l Hotel, Inc., 
189 N.J.
 354, 379 (2007).



                                14
    Before the fact-finding hearing, defense counsel objected

to the admission of embedded hearsay contained in the referral

document and the Division’s reports, and, specifically, to any

hearsay statements from J.F.’s boyfriend and J.F.   The judge

concurred and sustained the objection.   During the fact-finding

hearing, defense counsel raised a hearsay objection when the Law

Guardian referenced J.F.’s refusal to allow A.F. back into her

apartment.   Later, the Division objected on the same grounds

when defense counsel referenced the refusal in his summation.

The Division similarly objected when defense counsel implied in

cross-examining the caseworker that J.F. refused to allow A.F.

back into the apartment, arguing that it was not a question for

the witness to answer -- an apparent shorthand for a hearsay

objection.   As with defense counsel’s preliminary objection, the

court sustained all three objections and excluded the challenged

testimony as inadmissible hearsay.   The panel majority affirmed.

    The dissenting judge, citing to Smith v. Delaware &

Atlantic Telegraph & Telephone Co., 
63 N.J. Eq. 93, 95 (Ch.

1902), aff’d, 
64 N.J. Eq. 770 (E. & A. 1902), concluded that

this Court’s jurisprudence requires that “hearsay evidence not

objected to should be considered evidential.”   The dissent wrote

that “A.B.’s statement that her sister objected to A.F.’s return

to the home entered the record without objection and should have

been given its natural and logical probative effect”

                                15
particularly because “if the decision to bar A.F. was made by

J.F., A.B. cannot be held responsible for not allowing her

daughter to return to the home.”      Those arguments were largely

adopted by A.B. on appeal to this Court.

    The reasoning underpinning those arguments is problematic.

The hearsay statements at issue were the subject of objection

and were excluded early in the proceedings.      Importantly, it was

defense counsel who objected at the commencement of the fact-

finding hearing to “any hearsay statements from . . . [J.F.].”

    This Court has long recognized the doctrine of invited

error, which “operates to bar a disappointed litigant from

arguing on appeal that an adverse decision below was the product

of error, when that party urged the lower court to adopt the

proposition now alleged to be error.”      Brett v. Great Am.

Recreation, 
144 N.J. 479, 503 (1996); accord State v. Jenkins,


178 N.J. 347, 358 (2004).   A.B. succeeded in having the trial

court take a certain course of action; she cannot now condemn

the very determination for which she advocated merely because

the consequences of that determination have proved unfavorable.

The doctrine of invited error is predicated “on considerations

of fairness and preservation of the integrity of the litigation

process.”   Brett, 
144 N.J. at 503.    Here, A.B. attempts to

accomplish precisely what our jurisprudence prohibits.



                                16
    Hearsay, which may not be admitted into evidence unless it

falls into a recognized exception, N.J.R.E. 802, is defined as

“a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.”    N.J.R.E. 801(c).   When a

hearsay statement contains, in turn, another hearsay statement,

the embedded hearsay must independently fall within one of the

exceptions set forth in N.J.R.E. 803 or 804 to be admissible.

Div. of Child Prot. & Permanency v. N.T., 
445 N.J. Super. 478,

497 (App. Div. 2016); see also N.J.R.E. 805.

    Here, J.F.’s purported refusal to allow A.F. to return to

the apartment was referenced in documents about which the

caseworker was asked.    Although the documents themselves

benefitted from an exception to the hearsay rule, it was not an

abuse of the trial court’s discretion to find that the remarks

within those reports attributed to J.F. -- who did not testify -

- were hearsay within hearsay that did not fall within an

independent exception.    Thus, even absent invited error, the

judge did not abuse her discretion in excluding the hearsay

statements, and we affirm the panel majority’s determination on

that point.

                                 B.

    We next turn to the findings of abuse or neglect and of

abandonment, both in violation of Title 9.     The focus of Title 9

                                 17
“is not the 'culpability of parental conduct’ but rather 'the

protection of children.’”   E.D.-O., 
223 N.J. at 178 (quoting

G.S. v. Dep’t of Human Servs., 
157 N.J. 161, 177 (1999)).        Title

9 delineates the standards for adjudicating cases of abuse or

neglect.   The act provides interim relief for children at risk

and defines “the standards for abuse and neglect proceedings

against parents and guardians.”     Div. of Youth & Family Servs.

v. A.L., 
213 N.J. 1, 18 (2013).     The “paramount concern” of

Title 9 is to ensure the “safety of the children,” so that “the

lives of innocent children are immediately safeguarded from

further injury and possible death.”       
N.J.S.A. 9:6-8.8.

    Title 9 defines an abused or neglected child as

           a child less than 18 years of age . . . 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 . . . 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.

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

Included under Title 9 is a separate category of abuse or

neglect:   “willful abandonment.”      A child less than 18 years of

age may be found to be abused or neglected if the child has been

willfully abandoned by his parent or guardian.       
N.J.S.A. 9:6-

8.21(c)(5).


                                  18
    The panel majority affirmed the judge’s findings that A.B.

abused or neglected A.F. under subsections (4)(a) and (5) of


N.J.S.A. 9:6-8.21.    We analyze each finding in turn.   In doing

so, we review the judge’s legal conclusions de novo.     Manalapan

Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 
140 N.J. 366,

378 (1995).   As we have stressed, however, “appellate courts

should accord deference to family court factfinding” in

recognition “of the family courts’ special jurisdiction and

expertise in family matters.”    Cesare, 
154 N.J. at 413; see also

M.C. III, 
201 N.J. at 343.

                                 1.

    We turn first to the finding that A.F. was abused or

neglected under N.J.S.A. 9:6-8.21(c)(4)(a).     To prove abuse or

neglect under that subsection, the Division must establish by a

preponderance of the evidence that:     (1) the child’s physical,

mental, or emotional condition has been impaired or is in

imminent danger of becoming impaired; and (2) the impairment or

imminent impairment results from the parent’s failure to

exercise a minimum degree of care.

    In G.S., we elaborated on the standard required to meet the

“minimum degree of care” element.     We adopted the intermediary

position between simple negligence and the intentional

infliction of harm.    G.S., 
157 N.J. at 179.   Simply put, we have

held that “a guardian fails to exercise a minimum degree of care

                                 19
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.

To determine if a parent or guardian failed to exercise a

minimum degree of care, we must additionally “account for the

surrounding circumstances,” E.D.-O., 
223 N.J. at 180 (citing

G.S., 
157 N.J. at 181–82), given that “[a]buse and neglect cases

'are fact-sensitive,’” ibid. (citing Div. of Youth & Family

Servs. v. T.B., 
207 N.J. 294, 309 (2011)).

    In A.L., we considered whether a newborn whose stool tested

positive for cocaine metabolites was abused or neglected by his

mother under Title 9 if she used drugs during pregnancy.      
213 N.J. at 8–9.   We explained that circumstances in which actual

impairment is lacking will still meet the impairment element if

there is “evidence of imminent danger or substantial risk of

harm.”   Id. at 22.     Intuitively, a court need not sit idly by

until a child is actually impaired by parental inattention or

neglect.   Id. at 23.     The plain language of the statute reveals

that if the Division can prove by a preponderance of the

evidence that a child faces imminent danger of impairment, the

statutory element will be satisfied.      See ibid.

    Guided by this framework, we find sufficient support for

the determination that A.B. neglected A.F. under 
N.J.S.A. 9:6-

8.21(c)(4).    A.F. was sixteen years old and caring for a

                                   20
premature infant.    When A.F.’s school became aware that she had

run away, the school referred the issue to the Division.     The

Division then asked A.B. to contact them pertaining to A.F.;

A.B. never did so.   Only later did A.B. concede that she was

unaware of A.F.’s whereabouts.   The caseworker then unearthed

that A.F. was living in a residence lacking electricity, so she

visited the home to determine its adequacy.     When the caseworker

concluded that the home was unsuitable, she implored A.B. to

sign an emergency removal or to allow the children to return

home; A.B. refused both entreaties.

    Viewing those facts collectively, we agree with the panel

majority regarding 
N.J.S.A. 9:6-8.21(c)(4) and hold that A.B.’s

conduct here was grossly negligent because she was clearly aware

of the dangers inherent in the situation.     The perils facing a

sixteen-year-old caring for a four-month-old infant, who is left

to fend for herself, bereft of any parental supervision,

guidance, or care, are self-evident.   A.B. not only failed to

adequately supervise A.F. but exacerbated the existing dangers

to her daughter by terminating A.F.’s cellphone service and

refusing to allow the children back into the apartment after the

Division caseworker explicitly delineated the hazards they

faced.   The panel majority correctly concluded that “the risks

inherent in barring a sixteen-year-old child from the family

home without arranging any alternative source of shelter or

                                 21
support are obvious.”     Clearly, A.B. failed to exercise the

minimum degree of care.     That failure placed A.F.’s physical,

mental, and emotional condition in imminent danger of becoming

impaired.

    We affirm the panel majority’s finding of A.B.’s abuse or

neglect of A.F. per 
N.J.S.A. 9:6-8.21(c)(4).

                                  2.

    Finally, we address the Division’s allegation that A.F. was

abandoned under 
N.J.S.A. 9:6-8.21(c)(5).

            Abandonment of a child shall consist in any of
            the following acts by anyone having the
            custody or control of the child:           (a)
            willfully forsaking a child; (b) failing to
            care for and keep the custody and control of
            a child so that the child shall be exposed to
            physical or moral risk without proper and
            sufficient protection; (c) failing to care for
            and keep the control and custody of a child so
            that the child shall be liable to be supported
            and maintained at the expense of the public,
            or by child caring societies or private
            persons not legally chargeable with its or
            their care, custody and control.

            [N.J.S.A. 9:6-1.]

    The Division argues that A.B.’s actions, including her

refusal to allow A.F. and her infant son to return home,

amounted to a “willful or intentional act” that qualified as

abandonment under the statute.     The judge found that the State

had met its burden of proof and that A.B. had abandoned A.F.

The panel majority affirmed.


                                  22
    In Lavigne v. Family & Children’s Society, Chief Justice

Vanderbilt, writing for the Court, set forth the standard

required for the State to prove abandonment under 
N.J.S.A. 9:6-

8.21(c)(5):

            [t]he statutory notion of abandonment does not
            necessarily, we think, imply that the parent
            has deserted the child, or even ceased to feel
            any concern for its interests. It fairly may,
            and in our judgment does, import any conduct
            on the part of the parent which evinces a
            settled purpose to forego all parental duties
            and relinquish all parental claims to the
            child.

            [
11 N.J. 473, 480 (1953) (emphasis added)
            (quoting Winans v. Luppie, 
47 N.J. Eq. 302,
            304 (E. & A. 1890)).]

    Conduct by a parent that evinces a settled purpose to

forego all parental duties and relinquish all parental claims to

the child is an extremely high bar.    The facts here do not

support that A.B.’s conduct amounted to a “settled purpose” to

forego her parental rights.    The dissent suggested several

factors from the record indicating that A.B. had no intention of

abdicating her parental rights and duties:    A.B. periodically

permitted A.F. back into the dwelling; A.B. accompanied A.F. to

school to help her get reinstated after suspension; and A.B.,

upon receiving her own housing, permitted A.F. to return to live

with her.

    While A.B. undoubtedly took questionable actions and had

bouts of ambivalence concerning her daughter that we hold to be

                                 23
neglectful under 
N.J.S.A. 9:6-8.21(c)(4), the facts here give no

indication that she willfully relinquished her parental rights.

Stated plainly, to find abandonment under 
N.J.S.A. 9:6-

8.21(c)(5), the trial court must make specific findings

concerning the conduct of the parent or guardian evidencing a

true forsaking of the child.   No such conduct is present here.

    For those reasons, we reverse the finding of the panel

majority and hold that the State did not meet its burden in

proving that A.B. willfully abandoned A.F. per 
N.J.S.A. 9:6-

8.21(c)(5).

                                IV.

    The panel majority’s judgment affirming the finding that

A.B. abused or neglected A.F. under 
N.J.S.A. 9:6-8.21(c)(4)(a)

is affirmed.   The judgment affirming the finding that A.B.

abandoned A.F. per 
N.J.S.A. 9:6-8.21(c)(5) is reversed.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s
opinion.




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