DCPP VS. R.O. AND J.C., IN THE MATTER OF L.C. (FN-12-0297-16, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-2862-16T1
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
R.O.,
Defendant-Appellant,
and
J.C.,
Defendant.
__________________________________
IN THE MATTER OF L.C., a minor.
__________________________________
Submitted January 22, 2018 – Decided August 24, 2018
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FN-12-0297-16.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lauren Derasmo, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Melissa H. Raksa, Assistant
Attorney General, of counsel; Joshua Bohn,
Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor L.C. (Todd
Wilson, Designated Counsel, on the brief).
PER CURIAM
Defendant R.O. (Rachel)1 appeals from the Family Part's
January 27, 2017, final order, following a fact-finding hearing,
determining that she abused or neglected her then two-year-old
daughter, L.O. (Laura). The court concluded that Rachel was
"grossly negligent," by failing to supervise her daughter "for a
minimum of forty minutes." While Rachel was behind her bedroom's
closed door, Laura bypassed a child-safety gate in the living
room, opened the exterior door, slipped through a gap in the
backyard fence, and wandered the street until a neighbor found
her. Although Rachel's actions were no doubt negligent, they were
not "grossly or wantonly negligent." G.S. v. Dep't of Human
Servs., 157 N.J. 161, 178 (1999). Therefore, we reverse.
I.
The Division of Child Protection and Permanency presented its
case through three witnesses: the neighbor who found Laura, one
1
For the reader's convenience, we use pseudonyms for defendant,
her daughter, and her daughter's father.
2 A-2862-16T1
of the responding police officers, and the Division caseworker.
The Division also introduced into evidence a redacted version of
the caseworker's investigative summary, a Google map of the
neighborhood where Laura lives and was found, and the police
report. The Law Guardian and Rachel did not present any witnesses.
The neighbor testified that while on her way to work on a
late afternoon in April, she spotted Laura walking alone in the
middle of an internal roadway of the mobile home community. She
was dressed in one-piece pajamas with "feet." The neighbor stopped
her car about seventy-five feet from the child. As the neighbor
started toward Laura, she ran away toward an intersection with
another road, which in turn led to Route 1. At that point, Laura
was 200 to 250 feet from her home, according to the officer.
The neighbor testified she saw a pick-up truck about 100 feet
from Laura. She said the driver stopped "in front" of the child,
and blew his horn. Laura halted, and the neighbor scooped up the
child. She described Laura's face as red and "mucusy" but she was
not crying. Laura could not communicate where she lived. After
searching for Laura's parents for about seven minutes, the neighbor
left Laura with another neighbor in the community, whom she
believed worked for the Division, and then left for work. That
second neighbor called the police, which dispatched officers at
4:32 p.m.
3 A-2862-16T1
The responding patrol officer testified that his sergeant
recognized the child from a previous first-aid call. Laura was
playful and appeared unharmed. This was confirmed by EMTs who
subsequently arrived on the scene. The patrol officer proceeded
down the block with Laura to Rachel's home, arriving at 5:07 p.m.
When Rachel responded to the door, she was unaware why the police
were there. She became hysterical after the officer informed her
that Laura was found near Route 1.
Rachel told the officer that she was in the back bedroom with
the door shut, talking on the phone. The bedroom door opened to
a kitchen which was not separated by a doorway from the adjoining
living room. Rachel had erected a baby safety gate to keep Laura
in the living room. However, the officer testified, "It appeared
she maneuvered past the gate and then exited the back door that's
in the kitchen and then once in the backyard there's fencing
missing and it appeared she went through there."
The officer detected a strong odor of marijuana. He entered
the apartment and saw marijuana and paraphernalia in plain view.
Rachel explained that Laura's father, J.C. (Jack), had smoked the
marijuana before leaving for work. The officer testified that
Rachel did not appear to be under the influence of drugs. Once
Rachel informed Jack what happened, he sent his parents to the
4 A-2862-16T1
house. He arrived soon after and took responsibility for the
marijuana.
The caseworker testified that she arrived at the home around
6:30 p.m. In her interview, Rachel disclosed she had just returned
that day from a week of residential drug treatment. After Jack
left for work at 3:45 p.m., Rachel set Laura up with a movie in
the living room, secured the baby gate, and proceeded to make some
phone calls in her bedroom. She closed the door because she was
smoking a cigarette and did not want Laura exposed to the smoke.
The caseworker testified that the Division found it
"established" that Rachel neglected Laura based on inadequate
supervision. The Division found two mitigating factors: (1) there
was no physical, psychological, or emotional impact due to Rachel's
inadequate supervision, and (2) it was an isolated or aberrational
incident.
The fact-finding hearing focused on the precautions Rachel
took, or failed to take, to assure Laura's safety. Rachel had
installed the baby gate between the living room wall and sofa.
The caseworker asserted, based on her own test, that the gate was
not securely attached, because of the sofa's soft surface. There
was also some uncertainty about whether Laura toppled the gate,
or squeezed around it somehow. The officer did not testify about
the position of the gate when he arrived. He testified that Laura
5 A-2862-16T1
had maneuvered around it. However, according to the investigative
summary, Rachel told the caseworker "[She] . . . heard the knocking
on the door; and as she left her bedroom she noticed that [t]he
gate was down on the floor."
Rachel also claimed, in her interview with the caseworker,
that she monitored Laura from the bedroom every ten minutes with
a "nanny cam." Neither the caseworker nor the officer spotted the
nanny cam in the apartment, but they did not confidently assert
it did not exist. In any event, Rachel could not have seen Laura
on the nanny cam for at least forty-two minutes – consisting of
the seven minutes it took the first neighbor to deliver Laura to
the second neighbor, plus the thirty-five minutes between the
police dispatch, and their arrival at Rachel's home. Rachel told
the caseworker that while she was in the bedroom, she made a
fifteen-minute call to her sister, and a twenty-minute call to her
father.
The hearing also addressed the foreseeability of Laura's
exploits. According to the investigative summary, Rachel told the
caseworker that "[Laura] . . . never got the gate down prior to
this date." Rachel also reported that Laura "never went to the
backdoor before; but her family had informed her on this date
[Laura] had shown interest in it the week she was at [treatment]."
As for the security of the fenced-in yard, the officer declined
6 A-2862-16T1
to say that a whole section of fencing was missing, but asserted
that there was a "gap" through which Laura could have passed to
reach the street.
The court found that Rachel had abused or neglected Laura by
failing to exercise a minimum degree of care in providing Laura
with proper supervision resulting in a risk of imminent harm.
II.
Rachel appeals the finding that she abused or neglected her
daughter, and presents the following points for our consideration:
POINT I: THE TRIAL COURT'S FINDING OF ABUSE
AND NEGLECT IS NOT SUPPORTED BY THE EVIDENCE
A. The Standard Of Review Is De Novo.
B. The Finding Of Abuse and Neglect Is
Wide Of The Mark.
C. The Case Law Applied By The Trial
Court Is Easily Distinguished From the
Instant Matter.
POINT II: THE TRIAL COURT INAPPROPRIATELY
FILLED IN THE GAPS IN THE DIVISION'S CASE
A. The Lower Court Based Its Findings On
Rachel's Knowledge Of The Danger When No
Such Knowledge Existed.
B. The Lower Court Made Unsupported
Findings Regarding The Child Safety Gate.
C. The Lower Court Made Findings Of
Additional Dangers To The Child Not Based
On The Evidence.
7 A-2862-16T1
The Law Guardian joins the Division in urging us to affirm
the trial court's order.
III.
We defer to a 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). "This
court accords deference to the Family Part's findings of fact
'because it has the superior ability to gauge the credibility of
the witnesses who testify before it and because it possesses
special expertise in matters related to the family.'" N.J. Div.
of Child Prot. & Permanency v. S.G., 448 N.J. Super. 135, 143
(App. Div. 2016) (quoting N.J. Div. of Youth & Family Servs. v.
F.M., 211 N.J. 420, 448 (2012)). However, we owe less deference
to findings drawn from the papers, as opposed to live testimony
and credibility determinations based on a witness's demeanor.
Ibid.We will not hesitate to set aside a ruling that is "so wide
of the mark that a mistake must have been made." N.J. Div. of
Youth & Family Servs. v. P.W.R., 205 N.J. 17, 38 (2011). "Where
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.
8 A-2862-16T1
of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation
omitted).
We exercise de novo review of issues of law. Manalapan Realty
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)).
We begin with a review of the trial court's factual findings.
We are convinced the trial court premised its decision on some
findings of fact that lack sufficient support in the record.
Although some of the errors are harmless, others undermine the
court's conclusion that Rachel was grossly negligent.
There was sufficient support in the record for the trial
court's finding that Laura "had knocked down the baby gate, had
opened the back door, and had gone down the stairs leading from
the home . . . ." However, Laura did not "exit[] the yard via a
broken fence panel"; the officer testified that a panel was not
missing, and that there was simply a gap in the fence. Unlike a
"broken fence panel," a mere gap may have been more likely to have
escaped Rachel's notice.
9 A-2862-16T1
We do not quarrel with the findings that Laura was out of the
house for "a minimum of forty minutes" without Rachel's knowledge;
and Rachel did not use the nanny cam, assuming she had one. But,
there is no support for the court's conclusion that Rachel misled
the court. Her implausible contention was made to the caseworker.
We are constrained to defer to the court's finding that Rachel
was so "oblivious to the potential harms to her child that she did
not even realize that the knocked down baby gate could mean that
her daughter was no longer safe." However, it is equally plausible
that Rachel was so focused on responding to a police officer at
her door that she did not immediately appreciate the significance
of the downed gate. The officer testified that Rachel first
realized that something was amiss with Laura when he informed her
that Laura was found near the highway.
There was ample support for the court's conclusion that Laura
faced a risk of imminent harm while she wandered about the mobile
home community. She was walking in the middle of a roadway.
However, the court erred in concluding that Laura was "found" 200
to 250 feet from her home. The neighbor found her some distance
before the intersection that was 200 to 250 feet from her home.
But, that does not matter. Calamity could have befallen Laura,
had it not been for several fortunate events, beginning with a
neighbor spotting her. She and the other neighbor sought to
10 A-2862-16T1
protect the child. The pick-up truck driver attentively stopped
in front of her. Laura did not wander into Route 1 before she was
found. And, the sergeant recognized the child, avoiding a
prolonged and anxious search for Laura's home.
However, the record does not support the court's conclusion
that when Rachel retreated to her bedroom, she was aware that
Laura had "expressed interest in exploring the area outside of the
home via the backdoor of the mobile home and a broken fence that
surrounded the yard." Based on that finding, the court concluded
that Rachel intentionally disregarded the risk that Laura would
try to leave by the backdoor. The only possible basis for the
court's finding is the statement in the investigative summary that
on the day Laura was found, Rachel's "family had informed her
. . . [that Laura] had shown interest in" the backdoor.
Yet, the investigative summary did not state whether Rachel
was so informed before Laura got away, or afterwards. During the
almost hour-and-a-half between Laura's return, and the
caseworker's interview, Jack and his parents arrived in the home,
and may have passed on to Rachel what Laura had done during the
week Rachel was gone. Furthermore, the investigative summary does
not support the conclusion that Laura had expressed an interest
in exploring the outside by passing through the fence, let alone
11 A-2862-16T1
that Rachel was aware of such interest, or that she was aware of
a "gap" in the fence, as the officer described it.
As Laura 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 Laura's "physical,
mental, or emotional condition . . . [was] in imminent danger of
becoming impaired as the result of the failure of [Rachel] . . .
to exercise a minimum degree of care . . . in providing the child
with proper supervision . . . by unreasonably inflicting or
allowing to be inflicted harm, or substantial risk thereof . . . ."
N.J.S.A. 9:6-8.21(c)(4)(b); 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).
A "minimum degree of care" encompasses "conduct that is
grossly or wantonly negligent, but not necessarily intentional."
G.S., 157 N.J. at 178. A parent is wantonly negligent when he or
she engages in conduct knowing that "injury is likely to, or
probably will, result." Ibid. In other words, "willful and wanton
misconduct implies that a person has acted with reckless disregard
for the safety of others." Ibid. 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. Furthermore, "every failure
to perform a cautionary act is not abuse or neglect." T.B., 207
12 A-2862-16T1
N.J. at 306. A "merely negligent" failure "does not trigger
section (c)(4)(b) of the abuse or neglect statute." Id. at 307.
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
Court has 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 to the facts that are supported by
the record, the Division failed to meet its burden. Rachel did
not know that injury was likely, or a probable consequence of her
actions. She took the cautionary step of placing her daughter
behind a safety gate. She may have negligently installed the
gate, but there was no proof that she knew it was not secure. She
said it had never failed before.
The Division did not establish that family members told
Rachel, before Laura left the home, that Laura expressed interest
in the back door. Rachel's statement to the caseworker could
support the conclusion that Rachel learned of Laura's interest
after the incident. There also was no proof that Rachel was aware
the back door was unlocked after Jack left for work, or that there
was a gap in the fenced yard.
13 A-2862-16T1
Mindful that these are fact-sensitive cases, it is difficult
to infer general principles from other cases in which findings of
abuse or neglect have been affirmed or reversed. Yet, parallels
may be drawn between this case and T.B. In that case, a mother
who negligently left her four-year-old son unsupervised under the
mistaken belief that his grandmother was home, was found not to
have abused or neglected her son. Id. at 296. Similarly, Rachel
negligently failed to check on her daughter for at least forty
minutes, under the mistaken belief that Laura was safe behind a
gate, in a small mobile home in which Rachel was just a room away.
Also, like the incident in T.B., which was "totally out of the
ordinary," id. at 310, even the Division concluded that Laura's
escape from the living room and the home was an "isolated and
abberational incident."
Rachel did not knowingly leave her daughter alone in the
home; she left her alone in a room of a small house while she was
present. In contrast, the parent in E.D.-O., 223 N.J. at 169,
left a nineteen-month-old child alone in a car with the motor
running while she ran into a store. Yet, even in that case, the
Supreme Court reversed the appellate panel's conclusion of abuse
or neglect, remanding for an evidentiary hearing to explore such
facts as the mother's proximity to the child, how long the car and
14 A-2862-16T1
child were out of view, the ability of someone to gain access to
the vehicle, and other extenuating circumstances. Id. at 194.
We do not condone Rachel's decision to leave Laura out of
sight for over forty minutes. No extenuating circumstances
justified retreating behind a closed door to make phone calls.
Rachel could have talked on the phone with an eye on the child.
She could have smoked a cigarette in a few minutes, or done so
with the bedroom door slightly ajar. She should have properly
secured the child safety gate, and assured that the door was
locked. No doubt, Rachel was negligent. However, we are
unpersuaded she was grossly negligent.
Reversed.
15 A-2862-16T1