DCPP VS. M.K. AND Y.R.B., IN THE MATTER OF R.K. (FN-13-0090-19, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

D
                                      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                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1989-19

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

M.K.,

          Defendant-Appellant,

and

Y.R.B.,

     Defendant.
________________________

IN THE MATTER OF R.K.,
a minor.
________________________

                   Submitted February 10, 2021 – Decided May 4, 2021

                   Before Judges Accurso and Enright.
              On appeal from the Superior Court of New Jersey,
              Chancery Division, Family Part, Monmouth County,
              Docket No. FN-13-0090-19.

              Joseph E. Krakora, Public Defender, attorney for
              appellant (Laura M. Kalik, Designated Counsel, on the
              briefs).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent (Melissa H. Raksa, Assistant Attorney
              General, of counsel; Amy Melissa Young, Deputy
              Attorney General, on the brief).

              Minor has not filed a brief.

PER CURIAM

      Defendant M.K.1 appeals from a March 11, 2019 order finding she abused

or neglected her thirteen-year-old son, R.K. (Ryan), by failing to arrange for his

care when she left him home for multiple days in September and October 2018.

We reverse.




1
  We use initials and fictitious names for the parties involved in this matter to
protect their privacy and preserve the confidentiality of these proceedings. R.
1:38-3(d)(12).


                                                                            A-1989-19
                                         2
                                        I.

      Ryan was born in 2005 and raised by his maternal grandfather, W.K.

(Wayne), and step-grandmother, D.D. (Dina). When Wayne passed away in

March 2018, defendant assumed physical custody of Ryan.2

      On October 3, 2018, defendant's next-door neighbor, M.L. (Mae), called

the Division of Child Placement and Permanency to report Ryan "resides with

his mother . . . and adult cousin [Iris]," but defendant "left the home on Sunday,

[September 30, 2018] . . . and did not come home until [October 2, 2018]."

Further, Mae informed the Division that when she initially learned Ryan was

home without his mother, she told Iris she would maintain the child's schedule

by picking him up and dropping him off at school if defendant did not return.

Additionally, Mae reported that when defendant returned home on October 2,

she was "under the influence," so Ryan stayed with Dina that night.

      Amber Cannon, a Division caseworker, went to defendant's home twice

on the evening of October 3 to speak with defendant. No one answered the door.

That same night, Cannon interviewed Dina and Ryan. Ryan told Cannon his

mother left home the previous Saturday, after they had gone out to lunch for her


2
   Ryan's biological father, Y.R.B, is not a party to this appeal and was not
involved in the fact-finding hearing.


                                                                            A-1989-19
                                        3
birthday. His mother told him she was going to a friend's house and would

return around eight or nine o'clock that night. Because she did not come home

as planned, Ryan called his mother's cell phone. She answered, crying, and told

him she would be home soon. Ryan also told Cannon that on Sunday, Iris was

home "for a little bit but then [Mae] came to the home and had her leave."

Additionally, Ryan claimed he "spent Sunday at [Mae's] house" and after he

attended school the following day, he stayed at Dina's house. Ryan told Cannon

that when he called his mother on October 2, she again was crying and did not

know when she would be home. He reported no other contact with his mother

during her absence. Further, Ryan "denied that his mother left him with a plan

for a caregiver while she was gone." When Cannon asked Dina who else resided

in defendant's home, Dina informed her defendant's cousin, Iris, "was residing

in the home but no longer live[d] there."

      On October 4, 2018, Cannon met with defendant. Defendant "admitted to

leaving [Ryan] home" on September 29 and not returning until October 2.

Cannon asked her "who she had planned to be a caregiver for her son. She said

that she did not have a plan, as her plan was to return home that Saturday

evening, but she never returned, so she did not make a plan for her son."

Defendant also admitted to using heroin and cocaine during her time away. She


                                                                         A-1989-19
                                       4
tested positive for cocaine, opiates and buprenorphine on October 4 .

Additionally, she agreed to a safety protection plan, allowing Dina to care for

Ryan while defendant addressed her mental health and substance abuse issues.

                                       II.

      On November 13, 2018, the Division filed a Title Nine complaint and

order to show cause, alleging defendant abused or neglected Ryan by leaving

him home alone and failing to arrange for a caregiver in her absence. The

Division requested care, custody and supervision of Ryan and asked that

defendant submit to a substance abuse evaluation and comply with any treatment

recommendations. The trial court granted the Division's application and allowed

defendant liberal, supervised visits with Ryan.       Subsequently, defendant

relocated to Virginia to "get clean." Ryan lived with Mae until September 2019,

when he ultimately reunited with defendant in Virginia.

                                     III.

      The trial court conducted a fact-finding hearing on March 11, 2019.

Defendant appeared telephonically for the hearing because she lived in Virginia

at that time. Cannon was the sole witness to testify at the proceeding.




                                                                          A-1989-19
                                        5
      During direct examination, Cannon confirmed the Division established

defendant for neglect following her investigation. 3 Cannon also described the

steps she undertook to investigate Mae's referral, and testified about what

defendant, Ryan, and Dina told her during her first interviews with them in

October 2018. In response to the Division's question about whether Cannon

asked Ryan who else lived in his home at the time of the incident, she stated,

"he didn't confirm that [Iris] was still living in the home, but did say that she

was there for a short period of time on Sunday." When asked by Ryan's law

guardian where Ryan slept on September 29, 2018, Cannon testified Ryan stated

he slept at home, but did not tell her "if anyone else was in the home that night."

      Defendant's attorney asked Cannon during cross-examination if she knew

Iris previously "had been used as a caretaker for" Ryan. Cannon replied she was

not aware of that fact. However, she admitted she had been told Iris "was home


3
   "An allegation [of neglect] shall be 'established' if the preponderance of the
evidence indicates that a child is an 'abused or neglected child' as defined in
N.J.S.A. 9:6-8.21, but the act or acts committed or omitted do not warrant a
finding of 'substantiated.'" N.J.A.C. 3A:10-7.3(c)(2). An allegation of neglect
is deemed "substantiated" when "the preponderance of the evidence indicates
that a child is an 'abused or neglected child' as defined in N.J.S.A. 9:6-8.21 and
either the investigation indicates the existence of any of the circumstances in
N.J.A.C. 3A:10-7.4 or substantiation is warranted based on consideration of
aggravating and mitigating factors listed in N.J.A.C. 3A:10-7.5." N.J.A.C.
3A:10-7.3(c)(1).


                                                                             A-1989-19
                                        6
for a little bit" on Sunday, September 30, but then Mae "came to the home and

had her leave."      Defendant's counsel asked Cannon, "[s]o, from your

investigation and . . . mainly what [Ryan] told you, Ryan never told that he was

alone without an adult, correct?" Cannon stated she never asked Ryan that

question. Defense counsel inquired, "[w]ouldn't that have been an important

question to ask a 13-year-old?" Cannon responded affirmatively. She also

conceded on cross-examination that when she interviewed Ryan, he appeared

"well cared for." Further, she stated she never entered defendant's home or

spoke to Iris. Cannon explained no one answered the door when she went to

defendant's home. Moreover, because Cannon was told Iris "was no longer in

the residence, and she was not a perpetrator on the case," Cannon "did not make

attempts to locate her."

      Additionally, during cross-examination, Cannon acknowledged the

Division's screening summary contained Mae's report that Ryan "resides with

his mother . . . and adult cousin, [Iris]" but Cannon did not investigate how long

Iris lived in the home. Asked if she thought it was important to know whether

Iris "was living in the home . . . on September 30th when [Ryan] said he was

left there," Cannon answered affirmatively. Cannon also testified she did not

have Iris's contact information, could not recall asking anyone for that


                                                                            A-1989-19
                                        7
information, and did not remember if she asked Ryan what he meant when he

told her Mae had Iris leave Ryan's home.

      Defense counsel asked Cannon about Mae's October 3 report to the

Division that defendant left Ryan alone, but that "the cousin [Iris] was there."

Cannon admitted these contradictory statements were reflected in the Division's

records, but she did not "have any additional information to know which of

[Mae's] statements is accurate."

      As one point in the proceeding, the judge instructed defense counsel,

"[y]ou should be focusing on what the real issues are. The real issues, as the

court sees them anyway, is that you've got a child that says he was left alone

. . . and you've got a mother who's confirmed it." Defense counsel responded,

"[t]hat's not the testimony." He then had the following exchange with Cannon:

            Defense counsel: You testified that [defendant] told
            you she didn't have a plan, correct?

            Cannon: Correct.

            Defense counsel: But she never told you that she left
            the child alone, did she?

            Cannon: No.

            Defense counsel: In fact, she mentioned [Iris], correct?

            Cannon: I - - I don't recall.


                                                                          A-1989-19
                                        8
      Throughout the proceeding, counsel for the parties addressed the

admissibility of the Division's screening and investigation summaries. Defense

counsel objected to the court considering certain statements in these documents,

citing to relevancy and hearsay concerns. The judge initially declined to admit

the screening summary offered by the Division, but he subsequently admitted it,

"subject to some objections, if any." The judge explained, "the redacted portions

may now have a greater relevance for the fact that they were said." Additionally,

the judge sustained some of defendant's objections to statements referenced in

the investigation summary. When defense counsel stated he was unclear about

the totality of the judge's evidentiary rulings, the judge responded, "I'm going to

make it very clear in my opinion what . . . I'm relying on."

      During his closing remarks, defense counsel argued "the evidence was

. . . that the child said he was in the care of his cousin until [Mae] came and told

her to go away. Now, we don't know why she told her to go away, but it doesn't

matter. The important thing is that [Ryan] went from one adult caretaker who

was competent and approved, to another caretaker."               Defense counsel

acknowledged his client should have called Iris or Mae to alert them she was not

coming home, but her mistake in not doing so "does not mean that she committed

an act of gross negligence." Defendant's attorney then sought to admit two


                                                                              A-1989-19
                                         9
contact sheets from July 26, and September 5, 2018 "to show that the cousin was

in the home on both these occasions, and . . . was believed to be living in the

home according to the notes."       The Division objected to their admission,

asserting the contact sheets were irrelevant. The judge sustained the objection.

      At the conclusion of the hearing, the judge credited Cannon's testimony,

finding it consistent with the screening summary. He also referred to defendant's

admission that

            she had gone, I'll assume on a Saturday night thinking
            that she was only going to be gone for a few hours, and
            that [Ryan] would be alright. But she . . . got involved
            with drugs . . . and did not return till the following
            Tuesday night. During that period of time, she did not
            make any arrangements for [Ryan's] care. That implies
            that she knew that there was nobody there immediately
            in the house to care for him. She . . . would not have
            had to make arrangements if the cousin was in the house
            on a regular basis. It wouldn't have been necessary.

                  ....

            [T]his failure to attend for [Ryan's] care over this period
            of time and failure to plan for his safety and his
            wellbeing amounts to gross negligence. And therefore,
            I will enter a finding . . . that [Ryan] was, in fact, an
            abused or neglected child, having suffered the risk of
            serious harm.




                                                                           A-1989-19
                                       10
                                      IV.

         On appeal, defendant raises the following arguments:

   I.      THE TRIAL COURT'S DECISION MUST BE
           REVERSED BECAUSE THERE WAS INSUFFICIENT
           EVIDENCE TO SUPPORT A FINDING THAT [RYAN]
           WAS AN ABUSED OR NEGLECTED CHILD.

           a. THE RECORD BELOW DOES NOT PROVIDE
              SUFFICIENT COMPETENT EVIDENCE THAT
              [DEFENDANT]'S CONDUCT WAS GROSSLY
              NEGLIGENT OR RECKLESS WHEN SHE LEFT
              HER TEENAGE SON AT HOME FOR A SHORT
              PERIOD OF TIME ON ONE OCCASION WITHOUT
              MAKING EXPLICIT ARRANGEMENTS FOR HIS
              CARE.

           b. [THE DIVISION] FAILED TO PROVE BY A
              PREPONDERANCE        OF       ADEQUATE,
              SUBSTANTIAL, CREDIBLE EVIDENCE THAT
              [RYAN] FACED A SUBSTANTIAL RISK OF HARM
              OR IMMINENT DANGER WHILE BEING CARED
              FOR    BY    OTHER     ADULTS    DURING
              [DEFENDANT]'S ABSENCE.

   II.     THE TRIAL COURT IMPROPERLY RELIED UPON
           INCOMPETENT   HEARSAY   EVIDENCE   AND
           EXCLUDED RELEVANT PROBATIVE EVIDENCE.

         We need not reach defendant's evidentiary argument in Point II because

we are persuaded there was insufficient credible evidence in the record for the

trial court to find the Division proved by a preponderance of evidence that

defendant abused or neglected Ryan.


                                                                         A-1989-19
                                        11
      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 & Fam. 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 & Fam.

Servs. v. L.L., 

201 N.J. 210

, 226 (2010). But "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)) (alteration in original). 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, L.P. v. Manalapan

Twp. Comm., 

140 N.J. 366

, 378 (1995).




                                                                              A-1989-19
                                        12
      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 with proper
            supervision or guardianship.

            [N.J.S.A. 9:6-8.21(c)(4)(b).]

      Interpreting N.J.S.A. 9:6-8.21(c)(4)(b), our Supreme Court has instructed

that mere negligence does not trigger the statute. Dep't of Child. & Fam. 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., 207 N.J. at 305

(quoting 

G.S., 157 N.J. at 177-78

). Stated differently, 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., 157 N.J. at 179

. Further,

willful or wanton conduct is that which is "done with the knowledge that injury

                                                                            A-1989-19
                                       13
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, 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., 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., 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 impaired by parental inattention or neglect." In re Guardianship of

D.M.H., 

161 N.J. 365

, 383 (1999).


                                                                                  A-1989-19
                                            14
      Governed by these standards, we are satisfied the Division's proofs fell

short of establishing defendant abused or neglected Ryan. Leaving aside that

the record is devoid of evidence Ryan suffered harm when his mother left him

home, the Division also failed to establish Ryan was left without a caregiver in

the home or that defendant knew this to be true. Indeed, according to the

screening and investigation summaries the Division introduced into evidence,

which were minimally redacted, Mae notified the Division on October 3 that

Ryan resided with his mother "and adult cousin [Iris]." Additionally, Iris was

listed in both summaries as sharing the same home address as Ryan and

defendant, with a notation in the screening summary that she was a "household

member – secondary caregiver." Both summaries also reflected Iris "has a job

so she cannot care for the child full-time," but there was no evidence provided

to the court regarding Iris' hours or days of employment, nor did the judge make

any findings about whether Iris still lived with defendant.

      We also view as significant Cannon's admission she never asked Ryan if

he was left alone without adult supervision after his mother left home. Similarly,

she conceded this would have been "an important question to ask a 13-year-old."

Moreover, Cannon testified defendant never specifically told her she left Ryan

alone. Additionally, Cannon admitted she did not speak to Iris because she did


                                                                            A-1989-19
                                       15
not have her contact information and could not recall asking anyone for that

information. Further, she did not remember if she asked Ryan what he meant

when he told her Mae had Iris leave Ryan's home.

      Despite this critical testimony from Cannon, as well as the entries in the

Division's summaries reflecting Iris lived in defendant's home and was Ryan's

"secondary caregiver," the judge found defendant admitted she did not make any

arrangements for Ryan's care and "[t]hat implies . . . she knew that there was

nobody there immediately in the house to care for him. She . . . would not have

had to make arrangements if the cousin was in the house on a regular basis."

      Given Cannon's concessions on the stand, that most of her testimony was

hearsay-based, and the contradictory proofs in the Division's two summaries, we

cannot conclude that finding is supported by competent evidence, particularly

because Cannon failed to ask Ryan if he was alone in his home or if Iris cared

for him during his mother's absence. While we concur with defense counsel's

closing remarks that defendant exercised poor judgment when she did not

actively arrange for Ryan's care in her absence, we are similarly persuaded the

Division failed to prove by a preponderance of evidence that defendant's conduct

constituted gross negligence. In sum, the Division failed to prove Iris was not

living in defendant's home as a "secondary caregiver" as indicated in the


                                                                          A-1989-19
                                      16
Division's records, and thus that defendant left Ryan home knowing Iris was not

available to care for Ryan. Accordingly, the fact-finding order is reversed.

      Reversed and remanded.




                                                                          A-1989-19
                                      17

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