DCPP VS. N.R. IN THE MATTER OF J.S., M.L., JR., C.E. AND K.E.(FN-08-77-15, GLOUCESTER COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-0410-15T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
N.R.,
Defendant-Appellant.
__________________________
IN THE MATTER OF J.S., M.L.,
JR., C.E., and K.E., minors.
________________________________________________________________
Submitted April 4, 2017 – Decided August 18, 2017
Before Judges Espinosa and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester
County, Docket No. FN-08-77-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Norma Davis, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Katrina A. Sansalone, Deputy Attorney General,
on the brief).
PER CURIAM
Defendant N.R. (Nancy)1 appeals from an adjudication of abuse
and neglect, N.J.S.A. 9:6-8.21, as to her four-year-old child,
M.L. (Moe). She argues there was insufficient evidence to support
this conclusion and the trial court erred in relying upon
documentary evidence to support its decision. We disagree and
affirm.
I.
Nancy is the mother of four children. In addition to Moe
(d.o.b. 11/21/90), she has J.S. (Jack) (d.o.b. 1/28/05), and twins,
C.E. and K.E. (Clark and Kim) (d.o.b. 9/2/14). M.L. (Mark) is
Moe's father; Jack's father is deceased and B.E. (Bob) is the
father of Clark and Kim.
On October 7, 2014, the Division of Child Protection and
Permanency (the Division) was alerted to a domestic violence
incident between Nancy and Bob that occurred while the children
were present and resulted in Nancy being charged with simple
assault. Nancy admitted Jack witnessed the incident. However,
1 We use fictitious names to protect the privacy of the parties.
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both Jack and Moe told the Division caseworker they saw Nancy and
Bob arguing and saw Bob break a window and go through it. Jack
reported seeing Bob choke Nancy. Moe told the caseworker Bob had
hurt Nancy "a lot of times."
The Division instituted a Safety Protection Plan in which Bob
would not return to the home and was not permitted to have contact
with the children. Both Nancy and Bob agreed to the terms of the
plan.
On October 14, 2014, the Division received a referral from a
Franklin Township police officer, reporting that Moe was observed
by a neighbor wandering around outside at approximately 9:15 a.m.,
alone and clad only in his underwear. The neighbor questioned
Moe, who stated no one was at home. Nancy and Bob returned to the
home ten minutes after they were contacted by police.
The Division interviewed Nancy, who stated she ran to the
store while her mother, D.B. (Dina), was in the basement doing
laundry. Moe was sleeping at the time. Nancy stated Dina had
been staying at the home to help with the babies. She had arrived
and spent the night before at the home. She claimed Dina then
left around 10:30 a.m. to go to work. Nancy stated she did not
know how Bob got to the home, and thought he got a ride.
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When interviewed by the Division caseworker, Bob stated, "I
can't lie to you. [Dina] wasn't here. She is going to tell you
that she was here but she wasn't." He told the caseworker Nancy
had picked him up at the library and had only Clark and Kim in the
car. Bob also admitted to being in the home in violation of the
Safety Protection Plan.
The Division also interviewed Moe and Jack. Moe had not seen
Dina that day. Jack also stated Dina did not spend the night
before at the home, and that he had not seen Dina the morning of
the incident.
Dina told the Division caseworker she was at the home that
morning. She stated Moe was sleeping when she went into the
basement to do laundry. She was in the basement for approximately
fifteen minutes when her boss called to say she had to come to
work. Bob and Nancy returned home, so Dina left at approximately
10:30-10:45 a.m. Dina reported she had a friend pick her up from
Nancy's house but declined to disclose the name of her friend.
Dina stated she had briefly interacted with Moe after Nancy
returned home, and denied seeing the police outside of the home.
The caseworker told Dina her timeline did not make sense, as Moe
was outside at approximately 9:15 a.m., not 10:15 a.m. Dina later
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called the Division caseworker to say she got the time wrong and
she was in the basement at 9:15 a.m., not 10:15 a.m.
The Division caseworker checked Nancy's call history, which
showed Nancy called Dina at 10:56 a.m., and made six more calls
thereafter to her phone.
After determining Nancy had left Moe home alone, the Division
conducted an emergency removal of the four children pursuant to
N.J.S.A. 9:6-8.29 and 9:6-8.30. The Division also determined Nancy
and Bob had violated the Safety Protection Plan that prohibited
Bob from being in the home.2
A Safety Protection Plan was instituted for Moe, who was taken
to Mark's house. Jack, Clark, and Kim were placed in resource
care with the maternal grandfather and step-grandmother. The
following day, the Division interviewed the neighbor who called
the police about Moe. She reported she had gone outside around
9:15 a.m. and saw Moe outside wearing only a t-shirt and underwear.
Moe told her Nancy was not home, and the neighbor stayed outside
with him for approximately fifteen minutes. Nancy then returned
home with Bob driving the car, and Nancy told Moe that Dina was in
the basement. Nancy took Moe inside and dressed him, and then
2 The trial judge found this allegation did not rise to the level
of a Title 9 finding.
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they all left. The neighbor stated she stayed outside out of
curiosity and never saw Dina leave or any cars pick her up.
On October 15, 2014, the Division filed a complaint for the
care and supervision of Moe, and for the custody, care, and
supervision of the three other children.
A hearing was held on October 16, 2014, at which Nancy, Mark,
Dina and a Division caseworker testified. The caseworker, Michelle
Leyman, who responded to the home following the referral, recounted
her interviews with Nancy, Dina, Bob, Moe, and the neighbor who
called the police. Moe told her when "he woke up, he looked in
several of the rooms of the house. No[]one was home. He went
outside. He said at no time did he see his . . . maternal
grandmother. And then, his mom came home in the yard."
Nancy testified Moe woke up early and was sick. She put him
back to sleep. Her mother was present when she left to do an
errand, taking the twins with her. When she returned, Moe was in
the yard and her neighbor scolded her, saying, "What are you doing?
Nobody's here. [Moe] was looking for you. He came outside."
Nancy explained that her mother had come late the previous night
and neither Moe nor Jack knew she was there. Nancy said she went
into the house and told her mother Moe was outside. She said Dina
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had been in the basement doing laundry and was still there when
Nancy returned.
Dina provided testimony that was largely corroborative of
Nancy's version of events. Mark, a non-dispositional defendant,
was present and advised the court he had filed for custody of Moe.
The trial judge acknowledged there was "a lot of conflicting
testimony" but resolved that conflict by finding, "[Moe] was left
unattended." He concluded "the Division has made its case with
regard to removing the children," and issued an order placing Moe
in the care and supervision of the Division and the three other
children under the custody, care, and supervision of the
Division. An order to show cause why the children should not
continue under the custody, care, and supervision of the Division
was entered. That order was continued; a preliminary fact-
finding hearing was held on March 6, 2015, and the fact-finding
hearing was held on April 17, 2015.
At the outset of the fact-finding hearing conducted on April
17, 2015, the Deputy Attorney General advised the court there was
an agreement as to several exhibits: an Investigation Summary dated
October 7, 2014; an Investigation Summary dated October 14,
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2014; and four Safety Protection Plans, and stated further that
"the Division will rest on the papers." Nancy's attorney consented
to the admission of those exhibits into evidence.
The trial judge reviewed the documentary evidence, noting it
had been admitted without objection. He cited specific statements
in the documentary evidence, including the following.
The neighbor, who observed Moe standing outside in his
underwear on October 14, 2014, asked Moe, "Are you all right,
Honey?" He replied, "Mommy's not here," and "[Bob] took mommy to
work." She stated she asked if he had checked the bedrooms and
bathrooms and stayed with Moe until Nancy and Bob returned
approximately fifteen minutes later. She remained outside to
continue her observation and stated at no time did she see the
maternal grandmother leave the house on October 14, 2014.
Bob admitted that Nancy picked him up that morning on October
14, 2014, and had the twins in the car. He stated Nancy's mother
was not at home. Bob "couldn't believe [Nancy] left [Moe] home
alone," stating, "She's messed up."
Dina stated she was in the basement doing laundry for about
fifteen minutes at the time that Moe wandered outside and left for
work at about 10:30-10:45 a.m. that morning. Although she said
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she had interacted with Moe that morning, she could not recall
what she said to him.
Nancy denied leaving Moe home alone on October 14, 2014,
maintaining her mother was there.
Jack reported he did not see Dina the prior night or in the
morning before he got on the bus for school at about 7:52 a.m.
Moe stated he did not find anyone in the house when he woke
up and he was scared. He did not see his grandmother the prior
evening or at all that morning. He also said Bob had been in the
home over the weekend.
The trial judge noted inconsistencies in Dina's statements
and found Nancy's account not credible in light of the statements
from Bob, Jack and Moe. He concluded the Division had proven by
a preponderance of the evidence that four-year-old Moe was left
alone unattended, warranting an adjudication of abuse and neglect
under N.J.S.A. 9:6-8.21.
In her appeal, Nancy argues the Division failed to prove
neglect because her conduct was not grossly or wantonly negligent
and did not constitute a failure to exercise a minimum degree of
care, and because the record fails to show that Moe was at a
substantial risk of harm. She further argues the trial judge erred
in relying exclusively upon documentary evidence.
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II.
To support a finding of abuse and neglect, the Division must
prove by a preponderance of "competent, material and relevant
evidence," N.J.S.A. 9:6-8.46(b), that the parent failed
to exercise a minimum degree of care . . . in
providing the child with proper supervision or
guardianship, by unreasonably inflicting or
allowing to be inflicted harm, or substantial
risk thereof, 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. 9:6-8.21(c)(4)(b).]
A parent fails to exercise a "minimum degree of care" when
the parent engages in "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, 305 (2011) (emphasis added)
(quoting G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161,
178 (1999)). Such misconduct occurs when "an ordinary reasonable
person would understand that a situation poses dangerous risks and
acts without regard for the potentially serious consequences." Id.
at 306 (quoting G.S., supra, 157 N.J. at 179). Each case of
alleged abuse "requires careful, individual scrutiny" and is
"generally fact sensitive." N.J. Div. of Youth & Family Servs.
10 A-0410-15T3
v. P.W.R., 205 N.J. 17, 33 (2011). We accord deference to the trial
judge's findings of fact "unless . . . they went so wide of the
mark that the judge was clearly mistaken." N.J. Div. of Youth &
Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
The Supreme Court has noted that "[l]eaving a child unattended
in a car or a house is negligent conduct. N.J. Div. of Child Prot.
& Permanency v. E.D.-O., 223 N.J. 166, 170 (2015); G.S., supra,
157 N.J. at 180-181 ("For example, if a parent left a twoyear old
child alone in a house and went shopping, the child would be
considered a neglected child within the meaning of Title 9. . .
."). Whether such "conduct is negligent or grossly negligent
requires an evaluation of the totality of the circumstances."
E.D.-O., supra, 223 N.J. at 170.
Nancy's argument that the proofs are insufficient rely upon
the premise that she believed her mother was present when she left
Moe home, and therefore, her lapse was only negligence and did not
rise to the level of grossly or wantonly negligent conduct
necessary to sustain a finding of neglect. She relies for support
upon T.B., supra, in which a mother and her four-year-old son lived
in an in-law suite in her parents' home. 207 N.J. at 296. One
evening, the mother put the child to bed and went out for dinner,
believing her mother was at home because her car was in the
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driveway, she had been ill, and she was "always home" on Sunday
nights. Id. at 297. Unbeknownst to the mother, the grandmother
had "made an impromptu decision to go" to New York with her husband.
Ibid. The child woke up, discovered he was alone in the home and
crossed a busy street to go to a neighbor's home. Ibid. Calling
it a "close case," the Court noted, "[t]his is not a situation in
which [the mother] left her four-year-old son at home alone knowing
there was no adult supervision." Id. at 309. Although the mother's
failure to confirm her mother's presence before leaving "was
clearly negligent," the Court concluded "it did not rise to the
level of gross negligence or recklessness." Id. at 310.
Nancy was well aware her assertion that her mother was home
was refuted by Bob, both Moe and Jack, and her neighbor, and that
the trial judge had earlier rejected her testimony in finding Moe
had been left alone. Ordinarily, a trial judge should not make
findings of fact based upon conflicting statements without the
benefit of testimony. See Gilhooley v. Cty. of Union, 164 N.J.
533, 545 (2000). But here, Nancy was present at the fact-finding
hearing, available to testify and, yet, waived the right to
challenge these opposing versions of events by consenting to the
admission of documentary evidence without testimony. As a result,
she is precluded from claiming the trial judge erred in relying
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upon documentary evidence. See State v. A.R., 213 N.J. 542, 561
(2013) (holding "trial errors that 'were induced, encouraged or
acquiesced in or consented to by defense counsel ordinarily are
not a basis for reversal on appeal.'" (quoting State v. Corsaro,
107 N.J. 339, 345 (1987)). It follows that Nancy cannot now
complain the evidence was insufficient based upon the version of
the facts she gave – that had been rejected by the trial judge and
was refuted by the statements of other witnesses.
The facts as found by the trial judge are supported by
evidence in the record. For T.B. to lend any support for her
argument, Nancy had to have a reasonable belief that she was not
leaving four-year-old Moe at home unattended. The trial judge did
not find that to be the case. As a result, T.B. provides no
support for her argument.
As the Court found in E.D.-O., supra, 223 N.J., at 170,
leaving a child alone constitutes negligence. The next inquiry is
whether the circumstances support a finding "of gross negligence
or recklessness." T.B., supra, 207 N.J. at 310.
The trial judge found the following "aggravating
circumstances" present here: Nancy knew the lock on the front door
was not working properly, allowing Moe to leave the house without
adult assistance; at four years old, Moe did not know how to call
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anyone or do anything and was left without any messages; although
Moe was not injured when he wandered outside, there was "certainly"
a "possibility of injury."
The trial judge's findings have ample support in the record
and provide a sufficient basis for the adjudication of neglect
under N.J.S.A. 9:6-8.21.
Affirmed.
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