DCPP VS. J.S. AND F.S.IN THE MATTER OF J.S.(FN-09-0188-15, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-2735-15T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.S.,
Defendant-Appellant,
and
F.S.,
Defendant.
_________________________________
In the Matter of J.S.,
a Minor.
__________________________________
Submitted October 17, 2017 – Decided October 26, 2017
Before Judges Fisher and Fasciale.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0188-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Ryan T. Clark, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Arriel
Rubinstein, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Cory H. Cassar,
Designated Counsel, on the brief).
PER CURIAM
J.S. (the mother) appeals from an April 2, 2015 order finding
that she abused and neglected her child, J.S. (the child),1 who
was born in March 2013, by inadequately supervising him and failing
to properly care for him while he was hospitalized. The mother
argues that although she may have failed to supervise the child,
her failure amounted to simple negligence. She contends therefore
that the Division of Child Protection and Permanency (Division)
produced insufficient evidence at the fact-finding hearing. We
disagree and affirm.
In August 2014, the Division learned from a referral that the
child suffered a skull fracture and subdural hematoma from falling
down a set of concrete stairs at an outdoor barbeque. He remained
in the hospital for more than a month due to surgery and a related
infection. The Division investigated the circumstances of the
fall and obtained additional information during the
1
The mother and child share the same initials.
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hospitalization as to the mother's interaction with the child.
The Division then substantiated the abuse and neglect allegations,
and conducted an emergency Dodd2 removal after the hospital
discharged the child.
The judge held a fact-finding hearing over three days. The
Division produced testimony from three witnesses: caseworkers,
Madeline Liriano and Zoe Casanova; and Dr. Madesa Espana, a
pediatrician and the chief of child protection and safety center
at St. Joseph's hospital. The mother did not testify. The judge
found the Division's witnesses to be credible, rendered a thorough
oral opinion, and issued the order under review.
The scope of our review of an order finding abuse or neglect
is limited. N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J.
88, 112 (2011). We must uphold "factual findings undergirding the
trial court's decision if they are supported by 'adequate,
substantial and credible evidence' on the record." N.J. Div. of
Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting
In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div.
1993)). Even where there are alleged errors in the judge's
evaluation of underlying facts, we "will accord deference unless
2
A "Dodd removal" refers to the emergency removal of a child
from the home without a court order, as authorized by N.J.S.A.
9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.
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the trial court's findings went so wide of the mark that a mistake
must have been made." Ibid. (citation omitted).
An "abused or neglected child," is defined by N.J.S.A. 9:6-
8.21(c)(4), as a child who is less than eighteen years of age and
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 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,
or (b) in providing the child with proper
supervision or guardianship, by unreasonably
inflicting or allowing to be inflicted harm,
or substantial risk thereof[;] . . . or by any
other acts of a similarly serious nature
requiring the aid of the court.
"'Whether a parent or guardian has failed to exercise a
minimum degree of care' in protecting a child is determined on a
case-by-case basis and 'analyzed in light of the dangers and risks
associated with the situation.'" N.J. Div. of Youth & Family
Servs. v. N.S., 412 N.J. Super. 593, 614 (App. Div. 2010) (quoting
G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999)).
"'[M]inimum degree of care' refers to conduct that is grossly or
wantonly negligent, but not necessarily intentional." G.S.,
supra, 157 N.J. at 178. "[A] guardian [or parent] fails to
exercise a minimum degree of care when he or she is aware of the
dangers inherent in a situation and fails adequately to supervise
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the child or recklessly creates a risk of serious injury to that
child." Id. at 181.
This standard "implies that a person has acted with reckless
disregard for the safety of others." Id. at 179. Moreover, a
parent may be found to have abused or neglected a child when the
parent creates a substantial risk of harm, since a court "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). Courts have recognized that a parent's
inaction or unintentional conduct may amount to a finding of abuse
or neglect, if there is evidence that the child was injured. G.S.,
supra, 157 N.J. at 175-77.
The mother admitted to Ms. Liriano that prior to the incident
the child "was always running around or getting into something and
she had to always watch him." According to Ms. Liriano, the child
was hyperactive. The mother told Ms. Liriano that she was not
directly supervising the child immediately before the fall. The
judge determined that the mother should have known of the danger
associated with the steps from which the child had fallen. As the
judge stated "knowing that a child is as hyper as [the child] is,
a reasonable person would understand the danger surrounding the
concrete steps." The judge explained that the mother failed to
adequately supervise the child.
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The judge also found that the mother's actions during the
child's hospitalization fell below the required degree of minimum
care. Ms. Liriano visited the child in the hospital multiple
times, but the mother was not present. Ms. Casanova testified
that when the mother was present in the hospital with the child,
the mother failed to properly bathe and feed her son. The judge
further found that the mother failed to provide timely
authorization for medical procedures. The judge explained
Dr. Espana . . . saw [the child in the
hospital] and there were no family members
that were present. That during the course of
[the child's] . . . hospitalization, there
were times [when the mother] was there[,] but
. . . did not soothe him when [he] had cried.
Dr. Espana testified that it is comforting for
a child to see [his or her] mother after coming
out [of] surgery and it prevents the elevation
of the child's blood pressure.
She testified that it is standard to get the
patient's history from the parent. However,
[the mother] was not available in person to
provide these details. She testified that it
is common that parents are at their child's
bedside [twenty-four] hours a day to care for
their child's needs and also to provide
consent for any additional procedures the
child may need.
Dr. Espana testified that [the child's]
transfer to another facility was impeded when
[the mother] was not present to sign the
consent forms. It was delayed. She testified
she was able to get a hold of [the mother] on
the phone . . . to discuss [his] medical
history and the incident that brought [him]
to the hospital. She testified that, although
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[the mother] answered all of her questions,
[the mother] seemed detached and showed no
rapport with [the child].
We conclude therefore that there is sufficient credible
evidence to support the judge's findings that the mother abused
and neglected the child by providing inadequate supervision during
the time of the fall and by her interactions with him during his
hospitalization.
Affirmed.
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