DCPP VS. S.R., IN THE MATTER OF L.J.R. (FN-07-0428-16, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-4350-17T4
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.R.,
Defendant-Appellant.
_____________________________
IN THE MATTER OF L.J.R.,
a Minor.
_____________________________
Submitted September 10, 2019 – Decided September 27, 2019
Before Judges Ostrer and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-0428-16.
Joseph E. Krakora, Public Defender, attorney for
appellant (John A. Salois, Designated Counsel, on the
briefs).
Gurbir R. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Carlos J. Martinez, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Cory Hadley Cassar,
Designated Counsel, on the brief).
PER CURIAM
Defendant S.R. (Sally) 1 appeals from the Family Part's final order,
following an August 17, 2016 fact-finding hearing, determining that she
neglected her then two-month-old son, L.J.R. (Lawrence), by providing him
inadequate supervision. The Law Guardian joins the Division of Child
Protection and Permanency in opposing the appeal. We are satisfied that
sufficient, substantial, credible evidence in the record supports the court's fact-
finding, and the court properly applied the governing law. We therefore affirm.
Sally also challenges a February 2018 permanency order, determining that
termination of parental rights followed by adoption was an appropriate plan.
Two months later, the court entered an order terminating the Title Nine
litigation, because a complaint for termination of parental rights had been filed.
We dismiss as moot that aspect of Sally's appeal, inasmuch as she executed an
1
For the reader's convenience, we use pseudonyms for defendant and her son.
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unconditional voluntary surrender of her parental rights in January 2019.
Therefore, the permanency order has no ongoing adverse consequences, and our
review of it could have "'no practical effect on the existing controversy.'" See
N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div.
2009) (quoting Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58
(App. Div. 2006)) (stating that an issue is moot when the decision sought would
have no practical effect on the dispute, and the party suffers no adverse
consequences from the challenged order).
Therefore, we focus our attention on the neglect finding. The Division
presented its case through a Division caseworker, Avion Vernon, and a Nutley
police officer, Matthew Murphy. The court admitted into evidence the officer's
report, and the Division's screening and investigative summaries, excluding
embedded hearsay not subject to a hearsay exception. Sally did not testify nor
did she present any witnesses.
Vernon testified that Sally travelled to New Jersey from South Carolina
when Lawrence was one-month-old, to pursue a relationship with a man she met
on Instagram. Sally had no plan regarding where she would live. About a month
after she arrived, Lawrence's father reported to Nutley police that he was
concerned that Lawrence was at risk. Late that April evening, Officer Murphy
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ultimately found Sally and Lawrence in a home in Belleville. The officer
testified that the house was crowded with numerous adults who had no apparent
relation to Sally or Lawrence. The house was in disarray; the kitchen was messy;
and open soda cans spilled on the floor. The house also lacked electricity. The
first floor was illuminated by several candles on a coffee table. Nearby,
Lawrence was asleep on a couch, without any barriers to prevent him from
rolling onto the hardwood floor, or jostling the candles on the table.
Sally was unable to explain coherently where she was living with her son.
She gave Murphy two different addresses other than the house in Belleville.
Upon investigation, the police found that the first one did not exist, and the
second one was vacant. Sally also appeared to Murphy to be under the influence
of a narcotic. She was lethargic; frequently lost her train of thought; and
appeared to fall asleep mid-sentence. She initially denied taking any narcotic.
However, she later admitted she took a prescription pill not prescribed for her.
Testing disclosed she had taken benzodiazepine. Sally stated that she suffered
from Bell's Palsy, which accounted for a slight distortion of her face. A
subsequent examination of Lawrence at a nearby hospital disclosed that he was
in good health.
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Judge Linda Lordi Cavanaugh credited the caseworker's and officer's
testimony. Based on their recitation of the events, which we have just described,
the judge found that Sally neglected Lawrence under N.J.S.A. 9:6-8.21(c),
because she exposed Lawrence to a substantial risk of harm by providing him
inadequate supervision and shelter.2
On appeal, Sally contends that her conduct did not rise to the level of gross
negligence required to support a finding of abuse or neglect. She contends that
she neither harmed Lawrence, nor placed him at imminent risk of harm. We
disagree.
We apply a deferential standard of review. We will not disturb the trial
judge's factual findings, as long as they are supported by substantial credible
evidence. N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010);
N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007).
However, "[w]here the issue to be decided is an 'alleged error in the trial judge's
evaluation of the underlying facts and the implications to be drawn therefrom,'
we expand the scope of our review." N.J. Div. of Youth & Fam. Servs. v. G.L.,
191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 26 N.J. Super.
2
The court issued an order on May 30, 2018, documenting its findings, because
the order issued immediately following the hearing was lost.
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172, 188-89 (App. Div. 1993)). We exercise de novo review of issues of law.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
In particular, the finding that conduct constitutes gross negligence, as opposed
to simple negligence, is a "'conclusion of law to which we are not required to
defer.'" Dep't of Children & Families v. T.B., 207 N.J. 294, 308 (2011) (quoting
N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App.
Div. 2011)).
As Lawrence did not suffer actual harm, the Division had the burden to
prove by a preponderance of "competent, material and relevant evidence,"
N.J.S.A. 9:6-8.46(b), that his "physical, mental, or emotional condition . . . [was]
in imminent danger of becoming impaired as the result of [Sally's] failure . . . to
exercise a minimum degree of care." N.J.S.A. 9:6-8.21(c)(4); see also N.J. Dep't
of Children & Families v. E.D.-O., 223 N.J. 166, 178 (2015) (noting that the
Division need not prove actual harm). The failure to exercise a minimum degree
of care here mainly pertained to "providing the child with proper supervision,"
N.J.S.A. 9:6-8.21(c)(4)(b).
A "minimum degree of care" encompasses "conduct that is grossly or
wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human
Servs., 157 N.J. 161, 178 (1997). A parent is wantonly negligent when he or
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she engages in conduct that he or she knew, or a reasonable person would know,
would likely or probably result in injury. Id. at 178-79. In other words, "willful
and wanton misconduct implies that a person has acted with reckless disregard
for the safety of others." Id. at 179. Mere negligence does not suffice to
establish abuse or neglect under the statute. T.B., 207 N.J. at 306-07; G.S., 157
N.J. at 172-73. Whether a parent has failed to exercise a minimum degree of
care where there is no actual harm "is fact-sensitive and must be resolved on a
case-by-case basis." E.D.-O., 223 N.J. at 192. The Supreme Court warned that
in undertaking this analysis, trial and appellate courts "must avoid resort to
categorical conclusions." Id. at 180 (citing T.B., 207 N.J. at 309).
Applying these principles, we discern no error in the trial court's
conclusion that Sally neglected Lawrence. We focus on the inadequate
supervision finding.3
3
The evidence supported the court's finding that Sally provided inadequate
shelter for her infant son. She had no confirmed residence. She and Lawrence
were found in a house that lacked electricity, was occupied by numerous
strangers, and was lit by candles that posed a fire hazard. The infant was asleep
on a couch, without any barriers to prevent him from rolling off and injuring
himself. However, the court did not expressly address the essential element of
neglect based on inadequate shelter – a finding that the parent had the financial
ability or access to the financial wherewithal to provide adequate shelter. See
N.J.S.A. 9:6-8.21(c)(4)(a); see also N.J. Div. of Youth & Family Servs. v.
P.W.R., 205 N.J. 17, 37 (2011).
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The record supports the court's conclusion that Sally inadequately
supervised her infant son. Officer Murphy found Sally outside the Belleville
house while Lawrence was asleep inside, unattended. Furthermore, Sally
appeared incapable of attending to Lawrence's needs. She appeared to be under
the influence of a narcotic. She was inattentive, and unable to converse without
losing her train of thought, and seemed to fall asleep mid-sentence. She later
admitted that she ingested a pill without a prescription. A drug screen indicated
she had taken benzodiazepine. The evidence supports a finding that Sally was
not in the right condition to supervise and attend to the needs of a two-month-
old infant; and this failure to supervise posed an imminent threat of injury,
particularly in light of the child's placement on a couch, without barriers, near
burning candles.
We are unpersuaded by Sally's attempt to equate these facts to those in
N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1 (2013), in which the
Court reversed a finding of abuse or neglect. The Court held that the Division
failed to prove by preponderance of evidence that a mother who tested positive
for cocaine during pregnancy, but whose child did not test positive upon birth,
had placed her child in imminent danger or a substantial risk of harm. Id. at 27-
28. Here, Judge Lordi Cavanaugh did not ground her finding solely on Sally's
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use of an unprescribed medicine. The court based its findings on Sally's
incapacity to supervise her infant, as Office Murphy described in detail.
It is also not dispositive that Lawrence was unharmed and in good health,
as Sally highlights. "Courts need not wait to act until a child is actually
irreparably impaired by parental inattention or neglect." In re Guardianship of
D.M.H., 161 N.J. 365, 383 (1999). The trial judge's determination finds support
in N.J. Div. of Youth & Family Servs. v. A.R., in which we found a parent
grossly negligent because he left an infant on a bed without rails or other
protection to prevent the child from touching a hot radiator. 419 N.J. Super.
538, 545-46 (App. Div. 2011). We recognize that the child in that case suffered
actual injuries, after rolling over and lodging against the radiator. Id. at 540.
However, our view of the nature of the parent's conduct applies with equal force
here, where Sally left her infant son asleep unattended on a couch, without rails
or other barriers to prevent him from falling to a hard floor or toppling candles
burning nearby.
Finally, we give no weight to Sally's explanations of her medical
condition; the circumstances surrounding her visit to New Jersey; her housing
plans; and her plans to care for Lawrence. These were not presented at the
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hearing, where they could be subject to cross-examination, and the court's
assessment of their credibility.
Dismissed in part and affirmed in part.
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