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N.J.S.A. 9:6-8.21c(4)(b), and placement of her name in the Central Registry of substantiated child abusers
maintained by plaintiff Division of Youth and Family Services (the Division) pursuant to N.J.S.A. 9:6-8.11.
We affirm. Defendant is the biological mother, and T.S. is the biological father, of A.S. (Anna),2 born in
October 2009. At approximately 11:50 p.m. on June 30, 2011, defendant called T.S. and asked him to come
home to their apartment located on Waldo Avenue in Jersey City because she wanted to go out and get
something to eat. Defendant did not wait for T.S. to arrive. She left the apartment at approximately 12:00
a.m., leaving Anna, then twenty-one months old, in the apartment alone and unsupervised. Defendant
walked to a nearby White Castle, but then changed her mind and boarded a train at Journal Square to go
"downtown" to a "Fried Chicken Place" on Newark Avenue. "> Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3738-11T3
NEW JERSEY DIVISION OF
YOUTH AND FAMILY SERVICES,1
Plaintiff-Respondent,
v.
N.S.,
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Defendant-Appellant.
IN THE MATTER OF A.S., a
minor.
January 7, 2013
Submitted November 28, 2012 - Decided
Before Judges Simonelli and Accurso.
On appeal from the Superior Court of New Jersey, Chancery Division, Family
Part, Hudson County, Docket No. FN-09-0104-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry,
Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M.
Silkowitz, Assistant Attorney General, of counsel; Lindsay Puteska, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.S.
(Melissa R. Vance, Assistant Deputy Public Defender, on the brief).
PER CURIAM
Defendant N.S. appeals from the trial judge's determination that she abused or neglected her daughter
pursuant to N.J.S.A. 9:6-8.21c(4)(b), and placement of her name in the Central Registry of substantiated
child abusers maintained by plaintiff Division of Youth and Family Services (the Division) pursuant to
N.J.S.A. 9:6-8.11. We affirm.
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Defendant is the biological mother, and T.S. is the biological father, of A.S. (Anna),2 born in October 2009.
At approximately 11:50 p.m. on June 30, 2011, defendant called T.S. and asked him to come home to their
apartment located on Waldo Avenue in Jersey City because she wanted to go out and get something to eat.
Defendant did not wait for T.S. to arrive. She left the apartment at approximately 12:00 a.m., leaving Anna,
then twenty-one months old, in the apartment alone and unsupervised. Defendant walked to a nearby
White Castle, but then changed her mind and boarded a train at Journal Square to go "downtown" to a
"Fried Chicken Place" on Newark Avenue.
T.S. arrived at the apartment at approximately 12:30 a.m. and found Anna alone. Defendant did not contact
T.S. to advise where she was or when she would return. When defendant returned at 2:00 a.m., she and
T.S. argued loudly outside the apartment about defendant leaving Anna alone. Defendant initially told a
Division caseworker that T.S. dragged her upstairs to the apartment, where they continued arguing, and
T.S. hit her in the face in Anna's presence. The police responded to the apartment after a neighbor
reported the arguing. The police arrested T.S. and charged him with simple assault, and arrested defendant
and charged her with endangering the welfare of a child for leaving Anna alone and unattended.
The police reported the incident to the Division. A Division caseworker interviewed defendant and T.S. at
police headquarters. The interview revealed that in addition to defendant leaving Anna alone, the parties
had a history of domestic violence. The Division effected an emergency removal and placed Anna in a
resource home. On July 5, 2011, the Division filed a verified complaint and order to show cause (OTSC),
seeking custody of Anna.
On that same date, the trial judge held a hearing. Defendant appeared with counsel and testified, as did
the Division caseworker and T.S. The trial judge found the emergency removal was proper based on the
imminent danger and risk of harm to Anna's safety or health resulting from being left alone and
unattended, the arrest of her parents, and the parties' history of domestic violence. The judge granted the
Division custody of Anna, finding it was in the child's best interests to do so under the circumstances. The
judge ordered Anna's placement with a paternal relative, and ordered defendant to attend psychological
and substance abuse evaluations and comply with their recommendations, submit to random drug and
alcohol screens, and attend domestic violence counseling and parenting skills classes. The judge also
ordered supervised visitation.
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Thereafter, defendant attended a psychological evaluation, completed drug treatment, and engaged in
domestic violence counseling and parenting skills classes. After a hearing on October 12, 2011 on the
return of the OTSC, the judge granted the Division continued custody of Anna, ordered defendant to
continue complying with services, and ordered supervised overnight visitation. Anna remained with paternal
relatives.
After a fact-finding hearing on November 3, 2011, the judge concluded the Division proved that defendant
abused or neglected Anna pursuant to N.J.S.A. 9:6-8.21c(4)(b). The judge found "it was not reasonable
and it's grossly negligent" for defendant to have left Anna alone and unattended, and defendant's conduct
placed Anna at substantial risk of harm. After a compliance review the same day, the judge ordered the
transfer of physical custody of Anna to defendant and T.S., which occurred the next day. The judge also
ordered the parties to continue engaging in services under the Division's supervision.
In a February 14, 2012 order, the judge transferred legal custody of Anna to defendant and T.S., thereby
terminating the litigation. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
THE [DIVISION] DID NOT PRESENT EVIDENCE SUFFICIENT TO DEMONSTRATE
THAT IT MET THE STANDARDS REQUIRED FOR A FINDING UNDER N.J.S.A. 9:6-
8.21[c](4)(b).
POINT II
THE JUDGE'S DETERMINATION THAT [DEFENDANT] ABUSED OR NEGLECTED
ANNA MERITS NO DEFERENCE BECAUSE IT WAS BASED ON A SIMPLE
NEGLIGENCE STANDARD.
POINT III
[DEFENDANT'S] CONSTITUTIONAL RIGHT TO RAISE HER DAUGHTER WAS
VIOLATED: (A) WHEN [THE DIVISION] IMPROPERLY FAILED TO ADHERE TO
N.J.S.A. 9:6B-4 WHEN IT REMOVED ANNA, AND (B) WHEN THE UNREASONABLE
GAP IN TIME BETWEEN THE SHOW CAUSE HEARING AND THE RETURN
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HEARING PROLONGED THE SEPARATION.
POINT IV
[DEFENDANT'S] NAME SHOULD BE ORDERED REMOVED FROM THE CENTRAL
REGISTRY BECAUSE THE CONCLUSION OF NEGLECT IS NOT SUPPORTED BY
THE EVIDENCE AND THE STIGMA ON [DEFENDANT] WILL DISADVANTAGE
ANNA.
We reject these arguments.
Our Supreme Court has set forth the standards that govern our review of abuse or neglect matters as
follows:
[A]ppellate courts defer to the factual findings of the trial court because it has
the opportunity to make first-hand credibility judgments about the witnesses
who appear on the stand; it has a feel of the case that can never be realized by
a review of the cold record. Indeed, we recognize that because of the family
courts' special jurisdiction and expertise in family matters, appellate courts
should accord deference to family court factfinding.
[N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010)
(internal quotation marks and citations omitted).]
"[I]f there is substantial credible evidence in the record to support the trial court's findings, we will not
disturb those findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). However, "if
the trial court's conclusions are 'clearly mistaken or wide of the mark[,]' an appellate court must intervene
to ensure the fairness of the proceeding." Id. at 227 (quoting N.J. Div. of Youth & Family Servs. v. E.P.,
196 N.J. 88, 104 (2008)). We owe no deference to the trial court's legal conclusions, which we review de
novo. State v. Smith, 212 N.J. 365, 387 (2012); Manalapan Realty v. Manalapan Twp. Comm., 140 N.J.
366, 378 (1995).
An "abused or neglected child" means, in pertinent part, a child under the age of eighteen
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 providing the child
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with proper supervision or guardianship, by unreasonably inflicting or allowing to
be inflicted harm, or substantial risk thereof, including the infliction of excessive
corporal punishment; or by any other acts of a similarly serious nature requiring
the aid of the court[.]
[N.J.S.A. 9:6-8.21c(4)(b).]
Interpreting N.J.S.A. 9:6-8.21c(4)(b), our Supreme Court held that mere negligence does not trigger the
statute. Dep't of Children & Families v. T.B., 207 N.J. 294, 306-07 (2011); G.S. v. Dep't of Human Servs.,
157 N.J. 161, 177-78 (1999). Rather, the failure to exercise a minimum degree of care refers "to conduct
that is grossly or wantonly negligent, but not necessarily intentional." T.B., supra, 207 N.J. at 305 (quoting
G.S., supra, 157 N.J. at 177-78). The failure to exercise a minimum degree of care "at least requires
grossly negligent or reckless conduct." Id. at 306.
Although the distinction from ordinary negligence cannot be precisely defined, 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." G.S., supra, 157 N.J. at 179. Further, willful or
wanton conduct is that which is "done with the knowledge that injury is likely to, or probably will, result,"
and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Id. at
178 (quoting McLaughlin, supra, 56 N.J. at 305). However, if the act or omission is intentionally done,
"whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant," and
"[k]nowledge will be imputed to the actor." Ibid. 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.
A determination of whether a parent's or guardian's conduct "is to be classified as merely negligent, grossly
negligent, or reckless can be a difficult one." T.B., supra, 207 N.J. at 309. "Whether a parent or guardian
has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks
associated with the situation." G.S., supra, 157 N.J. at 181-82. "When a cautionary act by the guardian
would prevent a child from having his or her physical, mental or emotional condition impaired, that
guardian has failed to exercise a minimum degree of care as a matter of law." Id. at 182. The mere lack of
actual harm to the child is irrelevant, as "[c]ourts need not wait to act until a child is actually irreparably
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impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
Governed by these standards, we are satisfied there is substantial credible evidence to support the
conclusion that defendant abused or neglected Anna under N.J.S.A. 9:6-8.21c(4)(b) and applicable caselaw.
See, e.g., G.S., supra, 157 N.J. at 181 (providing, by way of example, "if a parent left a two-year old child
alone in a house and went shopping, the child would be considered a neglected child within the meaning of
Title 9 regardless of whether the parent intended to impair the child's well-being or harm the child")
(citations omitted). In our view, leaving an infant alone, unsupervised and unattended in a home exposed
the child to more than a mere potential for harm. Such parental inattention creates an actual and imminent
risk of serious harm. That Anna did not suffer actual harm, physical or otherwise, is immaterial. See D.M.H.,
supra, 161 N.J. at 383. Moreover, nothing in the circumstances surrounding this incident necessitated
defendant's actions. The situation was clearly non-emergent. By taking the simple precautionary act of
waiting for T.S. to arrive, defendant could have prevented exposing Anna to these risks altogether. That
omission evidences the failure to exercise a minimum degree of care in protecting Anna. Under the
circumstances, we are satisfied defendant's conduct constituted grossly or wantonly negligent behavior.
We are not persuaded by defendant's arguments that the short delay between the OTSC hearing on July 5,
2011, and the return on the OTSC on October 12, 2011, and Anna's placement outside the home, compels
reversal. Although the delay was unfortunate, there  was  no  evidence  that  reunification  would  have
occurred  sooner.  Defendant  does  not  dispute  she  required  services  in  order  for  reunification  to
occur,  including  drug  treatment,  domestic  violence  counseling,  and  parenting  skills  classes.
Clearly,  it  would  not  have  been  safe  to  return  Anna  to  the  home  absent  defendant's  completion  of
those  services.  Reunification  occurred  on  November  4,  2011,  when  the  judge  apparently  determined
there  was  no  longer  a  danger  to  Anna's  life,  safety  or  health,  and  the  child  could  safely  return
home.
Further, although N.J.S.A. 9:6B-4a requires the Division to make reasonable efforts to prevent a child's
placement outside the home, there is an exception. The Division
shall  not  be  required  to  provide  reasonable  efforts  to  prevent  placement
of  the  child  if  a  court  of  competent  jurisdiction  has  determined  that
both  of  the  following  criteria  are  met:
a.  One  of  the  following  actions  has  occurred:
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(4)  removal  of  the  child  was  required  due  to  imminent  danger  to  the
child's  life,  safety  or  health;  and
b.  Efforts  to  prevent  placement  were  not  reasonable  due  to  risk  of  harm
to  the  child's  health  or  safety.
[N.J.S.A.  30:4C -11.2.]
The  record  in  this  case  amply  supports  application  of  the  exception.  The  Division  had  to  remove
Anna  due  to  the  imminent  danger  to  her  life,  safety  or  health  resulting  from  being  left  alone  and
unattended;  and  efforts  to  prevent  placement  were  not  reasonable  due  to  the  serious  risk  of  harm
to  her  health  or  safety.
The finding of abuse and neglect is affirmed. Defendant's name shall remain in the Central Registry.
1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the
Department of Children and Families, which includes the renaming of the Division
as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29,
2012.
2 This name is fictitious.
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