RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2521-21 A-0391-22
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION Plaintiff-Respondent, September 6, 2024 APPELLATE DIVISION v.
C.R.A.G.,
Defendant,
and
R.G.,
Defendant-Appellant /Cross-Respondent. _____________________________
IN THE MATTER OF J.G., J.G., and J.G., minors,
Cross-Appellants. _____________________________
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent, v.
Defendant-Appellant,
Defendant. ______________________________
IN THE MATTER OF J.G., J.G., and J.G., minors. ______________________________
Argued May 24, 2024 – Decided September 6, 2024
Before Judges Sumners, Smith and Perez Friscia.
On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. FN-07-0152-21.
Beth Anne Hahn, Designated Counsel, argued the cause for appellant/cross-respondent R.G. in A-2521- 21 (Jennifer Nicole Sellitti, Public Defender, attorney; Beth Anne Hahn, on the briefs).
Catherine Wilkes, Assistant Deputy Public Defender, argued the cause for appellant C.R.A.G. in A-0391-22 (Jennifer Nicole Sellitti, Public Defender, attorney; Arthur David Malkin, Designated Counsel, and Catherine Wilkes, on the briefs).
Mary L. Harpster, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Donna Arons and Janet Greenberg
A-2521-21 2 Cohen, Assistant Attorneys General, of counsel; Mary L. Harpster, on the briefs).
David B. Valentin, Assistant Deputy Public Defender, argued the cause for minors/cross-appellants (Jennifer Nicole Sellitti, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; David B. Valentin, of counsel and on the briefs).
The opinion of the court was delivered by
SUMNERS, C.J.A.D.
Following a joint trial, the family court found defendants R.G. (Rick) 1
and C.R.A.G. (Cynthia), husband and wife, abused or neglected two-year-old
M.R. (Michael), who was unrelated to them but under their care, causing him
actual harm. The court in turn determined defendants' actions or inactions
against Michael resulted in the abuse or neglect of their children J.G (James),
born in 2007, J.G. (Jessie), born in 2019, and J.G. (Jasper), in 2020, by
"creating [im]minent danger or a substantial risk of being impaired due to their
failure to exercise a minimum degree of care."
Defendants' back-to-back appeals raising several issues are consolidated
in this one opinion. They contend the family court lacked jurisdiction over
them because they were not Michael's legal caretakers under N.J.S.A. 9:6 -2
1 We use pseudonyms and initials the privacy and confidentiality of the children and their families. R. 1:38-3(d)(12).
A-2521-21 3 and N.J.S.A. 9:6-8.21, and Michael was not named as a subject child in the
complaint. Assuming the court had jurisdiction, they contend there was
insufficient evidence to support a prima facie case of abuse or neglect of
Michael. Moreover, despite that finding, they contend there was insufficient
evidence to support the court's determination that their conduct towards
Michael placed their children at risk of imminent harm.
Cynthia separately argues the record demonstrates she appropriately
cared for Michael. She also contends the Division of Child Protection &
Permanency (DCPP) failed to present a sufficient cause of action for abuse and
neglect of her children. Relatedly, she contends that the court improperly
relied on her treatment of Michael to support its findings on behalf of her
biological children, as it constituted inadmissible other crimes evidence.
The Law Guardian cross-appeals, joining Rick's contention that he was
not Michael's guardian under N.J.S.A. 9:6-8.21(a). The Law Guardian argues
the family court engaged in impermissible burden shifting by concluding that
defendants actually harmed Michael. The Law Guardian also argues there was
insufficient evidence to support the court's finding that Rick abused or
neglected his children.
Given our review of the record and applicable law, we reverse and
remand. As to Rick, we conclude the family court did not have jurisdiction
A-2521-21 4 over him because there was insufficient evidence that he was Michael's
guardian under Title 9. As to Cynthia, we conclude the family court had
jurisdiction over her because there was sufficient evidence that she was
Michael's guardian under Title 9, but there was insufficient evidence that she
caused Michael actual harm and/or placed her children at risk of imminent
harm. We therefore remand for the court to remove defendants' names from
DCPP's child abuse registry maintained under N.J.S.A. 9:6-8.11.
I.
DCPP's Investigation
On February 19, 2021, 2 Michael was pronounced dead at the Newark
Beth Israel Medical Center. DCPP promptly commenced an investigation,
focusing on whether: Cynthia, who was caring for Michael before he was
taken to the hospital, abused or neglected him; and N.D. (Nadine), Michael's
mother, inadequately supervised him. This subsequently led to an
investigation by the Essex County Prosecutor's Office against Cynthia
regarding Michael's death. Two days later, Cynthia was arrested and charged
with second-degree child endangerment of Michael. She was subsequently
charged with second-degree aggravated manslaughter.
2 Unless specifically noted, all dates hereafter took place in 2021.
A-2521-21 5 Following its investigation, DCPP substantiated the following
allegations against defendants: (1) medical neglect of Michael; (2) inadequate
supervision of Michael; and (3) risk of imminent harm to their children, based
on their neglect of Michael. On March 22, DCPP filed an order to show cause
and verified complaint against defendants, seeking care and supervision of
their children due to defendants' alleged actions or inactions leading to
Michael's death. The complaint alleged defendants: (1) were unfit and could
not be entrusted with their children's care and education; (2) failed to provide
their children with "proper protection, maintenance and education"; (3) failed
to ensure their children's "health and safety"; or (4) endangered their children's
welfare. DCPP did not file a complaint against them regarding abuse or
neglect of Michael. The children remained with Rick, and together they
resided with his family members who acted as supervisors, pursuant to a safety
protection plan. This supervision continued through the complaint's
disposition.
Abuse & Neglect Hearing
On October 7, the family court conducted a one-day fact-finding hearing
regarding the allegations against defendants. While DCPP's complaint
addressed the care and supervision of defendants' children, its case focused on
the connection between their conduct and Michael's death. The parties
A-2521-21 6 stipulated to the admissibility of DCPP's screening summaries and
investigation reports, redacted to exclude certain hearsay statements. DCPP
presented two witnesses, Irvington Township Police Officer Daditte Albert and
DCPP Family Service Specialist Lisannia Williams. Defendants neither
testified nor presented any witnesses. We summarize the relevant evidence.
Cynthia's statements to the Essex County Prosecutor's Office detectives
were admitted into evidence. She immigrated from Haiti to the United States
in 2018, and because she did not speak any English, a Creole interpreter
facilitated her interview. Cynthia first became involved with Michael when
her niece, who resided with her, babysat him for three months before moving
out in January. Thereafter, Cynthia assumed the babysitting duties. At some
point, babysitting Michael became overnight care from Monday through
Friday due to Michael's father's changed work schedule. Cynthia said Rick
initially was unaware of the babysitting arrangement and was unhappy when
he found out, because Michael's parents only provided "clothes, diapers and a
gallon of milk," leaving Cynthia to provide food for the child. She noted that
Rick also disliked this arrangement because he knew of "the dangers of
watching other people['s] children."
Cynthia had several concerns about Michael’s physical appearance once
she began caring for him. For instance, she noticed "the side of his head"
A-2521-21 7 appeared swollen, which Nadine said, "was not a problem." Cynthia said
Michael also had a swollen eye one day, which Nadine purportedly treated
with a cream from the doctor. The next time Michael came to Cynthia's home,
he had "bite marks on his back" which, she said, could only have been inflicted
by an adult. Cynthia denied he sustained those marks while in her care and
claimed that when she asked Nadine about the marks, she also denied they had
occurred while in her care. Cynthia also recounted that during a February stay,
Michael had fallen out of bed, bruising his back and chest. Cynthia noted two
occasions when Michael's tongue had looked white, as if his parents had not
brushed his teeth, and he refused to eat. Cynthia otherwise reported that
Michael played well with her children, without crying or having tantrums.
Cynthia said that Nadine had dropped off Michael on Monday, February
15. She did not indicate when Nadine intended to pick up Michael. Cynthia
did not observe any marks or bruises on Michael's body when he first arrived.
Because Michael previously fell off the bed, Cynthia made him a bed on the
living room floor. On Tuesday, she noticed he was not eating. He also began
acting out, having "tantrums" and "throwing himself on the floor." When
questioned about this, Cynthia said Michael would be sitting down and then
would "throw" his body onto the floor "from side to side." Rick witnessed this
behavior. Cynthia said, "whenever she would [e]nter the room [Michael]
A-2521-21 8 would stop throwing himself on the floor." His behavior on Thursday was the
"worst" because he started scratching his face. Rick was home at the time and
witnessed this behavior.
On Friday, February 19, Cynthia gave Michael his morning milk bottle,
which he poured on the floor and "all over himself." Given that Michael's
behavior "was getting out of hand," Cynthia asked her oldest son James, then
fourteen-years old, to watch Michael while she used the bathroom, directing
him to "hold [Michael] if he [went] into another tantrum." While Cynthia was
in the bathroom, James went to the kitchen to get something to eat. She
believed that while she used the bathroom, Michael was "punching and
kicking." She heard James say "no, no, no," followed by a "loud bang." When
she came out of the bathroom, she saw Michael on the floor, blood coming
from his head and mouth. She removed Michael's tee-shirt, wet it with water,
and put it on his face. Because she did not speak English and did not know
who to call for emergency medical services, she telephoned her cousin, who
called for help.
Irvington Township police officer Daditte Albert, one of the officers
dispatched to defendants' home, testified. Cynthia's accounting of the
February 19 events to Albert were consistent with her statement to the
Prosecutor's Office detectives. Cynthia told Albert that Michael had not been
A-2521-21 9 "acting like his normal playful self" and was "erratic and unstable." Per
Albert's police report, Cynthia stated that on Wednesday, February 17, Michael
had difficulty eating, he "would throw his head onto the floor and dig his nails
into his skin until he cut himself," and "scream[ed] and cr[ied] continuously." 3
Albert testified defendants made several attempts to contact Michael's parents,
including via text messages, missed phone calls, and voicemails, but the
parents never responded. Cynthia also told Albert that after Michael hurt
himself and her cousin called 911, she repeatedly attempted to call Nadine.
During cross-examination, Albert agreed that Cynthia's response to Michael's
injuries––wrapping his head and seeking assistance––was appropriate.
Hospital records stated Michael was "unresponsive" when emergency
services arrived at defendants' home, presented as in "cardiac arrest," and was
pronounced dead twenty minutes after his arrival at the hospital. The
following physical injuries were listed: "multiple abrasions and ecchymosis to
[the] face, bilateral upper extremities, and back," which were in various stages
of healing; ecchymosis in the "right scapular region"; "multiple contusions to
mid forehead and bilateral temporal areas with raccoon eye"; swelling of the
right eyelid; "copious bleeding from oral pharynx"; a two centimeter laceration
3 While the police report stated that Michael's self-injurious behavior began on Wednesday, Albert testified that Cynthia reported the behavior as beginning on Monday.
A-2521-21 10 through his bottom right lip; multiple chipped or loose teeth, and "[a]ctive
blee[d]ing in the oral cavity." DCPP presented no evidence establishing when
Michael sustained his various injuries, and through Williams' testimony the
agency acknowledged it did not know at what point defendants should have
sought medical care for Michael.
DCPP investigation records documented Williams' interview with Rick,
four days after Michael's death. Rick, who also used a Creole interpreter,
asserted Cynthia was not Michael's "babysitter" because she was not paid for
her services and "she was only helping" because her niece could no longer
watch him. He stated Cynthia began watching Michael in January 2021 for
"short term" until Nadine was able to obtain another babysitter. Consistent
with Cynthia's statement to the Prosecutor's Office detectives, Rick said he
was unhappy with this arrangement.
According to Rick, Cynthia watched Michael Monday through Friday,
and although Michael was supposed to go home every night, he sometimes
stayed overnight. Rick's contact with Michael was limited because he worked
during the week, from 3:30 p.m. until midnight. Rick also claimed that Nadine
did not provide any food for Michael.
Rick said that on February 8, a week before Michael died, the child had
some bruises on his body from falling off the bed at Rick's home. Rick did not
A-2521-21 11 have more information about this incident other than saying Cynthia called
Nadine and had asked her to pick up Michael earlier. However, Nadine did not
come until two days later.
Rick claimed that Cynthia did not want to continue caring for Michael,
but that Nadine "begged" her to watch him because she had no other help.
Rick stated Nadine had dropped Michael off on Tuesday, February 13, and the
following day, Cynthia told him "she did not like" how Michael "was acting,"
as he was "banging his head and throwing scratching his face [sic]." Rick
advised Cynthia to contact Nadine, and Cynthia had a video call with her to
show her Michael's behavior. Nadine reportedly responded that "she was
already aware [of] this kind of behavior" and "she was not concerned about" it.
Rick related that Nadine was supposed to pick him up that day, but she did not.
Rick was home on Thursday, February 18, and witnessed Michael
"scratching his face and hitting his head." Rick said he sent Nadine a "voice
note on WhatsApp" regarding Michael's behavior but Nadine did not respond.
Before he left for work Friday morning, Rick told Cynthia to again call Nadine
to pick up Michael. He was at work when Michael passed away.
When questioned about his children's reaction to Michael's death and
their mother's incarceration, Rick said that James did not exhibit any
behavioral changes but "was sad about not having his mother in the home and
A-2521-21 12 about what happened." He said James sometimes helped look after his siblings
but denied that James cared for Michael.
Williams also interviewed James, who was fourteen-years old at the
time. James was sad about his mother and Michael, but denied having any
behavioral issues, nightmares, or bedwetting following Michael's death and his
mother's arrest. James said he never watched Michael, helped feed him, or
changed his diapers. DCPP expressed a concern that James may have
developmental delays, noting that he gave short, one-worded answers and
spoke Creole, not English.
As part of its investigation, DCPP contacted defendants' children's
medical providers, who did not report any concerns following Michael's death.
The children's physical examinations were "unremarkable," but the Routine
Diagnostic Treatment Center opined that James may "benefit from therapy to
help process his experience relat[ed] to the death of [Michael]" and
recommended an evaluation for any potential developmental delays.
Following its investigation, DCPP substantiated the allegations of
medical neglect and inadequate supervision against defendants for Michael but
found the physical abuse allegations "not established" and the inadequate
supervision allegations against Nadine "unfounded." The agency also
concluded that while defendants' children "were not found to be directly
A-2521-21 13 abused and neglected, the parents['] failure to act on behalf of another minor
child in their care placed their children at risk of harm," and that they "failed
to appropriately plan for the care and well-being of their children" because
they were excluded from their home after Cynthia's arrest. Thus, DCPP
substantiated against defendants the allegation of their risk of harm to the
children.
Family Court's Decision
On October 12, the family court issued an oral decision. The court
initially determined defendants were Michael's legal guardians under N.J.S.A.
9:6-8.21(a). The court found defendants "took over babysitting" Michael after
his parents stopped relying on Cynthia's niece. When Michael was with
defendants, the court found, he was "one hundred percent dependent on [them]
for everything a child that age needs; each and all aspects of shelter and food."
Noting that Cynthia watched Michael for extended periods of time, including
overnights, the court determined defendants were not merely engaging in "a
brief or occasional caretaking function." Rather, the court found that during
the week of February 15, Michael "was solely and exclusively in the care of
[defendants]." While finding both defendants were responsible for Michael
because they both saw Michael in medical distress and failed to intervene, the
court's findings related primarily to Cynthia.
A-2521-21 14 The court then found defendants abused or neglected Michael by causing
him "actual harm"—a finding not specifically alleged by DCPP—concluding
that his injuries could not have occurred absent abuse or neglect by defendants.
The court also determined defendants abused or neglected Michael under
N.J.S.A. 9:6-8.21(c)(4) due to their failure to provide him medical care, and
that this "failure to exercise the minimum degree of care caused immediate
danger or a substantial risk of harm to the child." The court next found
defendants' failure to seek medical attention for Michael placed their children
in imminent danger for substantial risk of harm.
That same day, the court entered an order on fact-finding reflecting its
findings. The order stated defendants' "failure to seek proper medical attention
for [Michael] clearly constitutes medical neglect" and "their failure to get
[Michael] help also put [defendants'] three children at a risk of harm." The
court also entered an order of disposition, continuing DCPP's care and
supervision of defendants' children. 4
II.
4 The case remained open while DCPP assisted defendants with incidental educational and therapeutic issues for James. Once those issues were resolved, on March 9, 2022, a different family court dismissed the litigation, granted full custody of the children to Rick with no restrictions, and limited the incarcerated Cynthia to supervised contact only.
A-2521-21 15 As noted, defendants raise separate and common contentions. Before
addressing them, we briefly discuss some general principles governing a
court's abuse or neglect findings and subsequent appellate review.
Given that "[a]buse and neglect cases 'are fact-sensitive,'" Dep't of
Child. & Fams., Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166,
180 (2015) (quoting Dep't of Child. & Fams., Div. of Youth & Fam. Servs. v.
T.B., 207 N.J. 294, 309 (2011)), appellate review affords deference to the
family court's factual determinations because it makes "first-hand credibility
judgments," N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008).
"This deferential standard of review is appropriate because the [family court
is] presumed to have a 'specialized knowledge and experience in matters
involving parental relationships and the best interests of children.'" N.J. Div.
of Child Prot. & Permanency v. S.K., 456 N.J. Super. 245, 261 (App. Div.
2018) (quoting N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 427
(2012)). Accordingly, we only disturb the family court's factual findings that
are "clearly mistaken" or "wide of the mark." N.J. Div. of Youth & Fam.
Servs. v. G.L., 191 N.J. 596, 605 (2007). However, "[a] trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference." N.J. Div. of Youth & Fam.
A-2521-21 16 Servs. v. R.G., 217 N.J. 527, 552-53 (2014) (quoting Manalapan Realty v.
Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).
After conducting a fact-finding hearing, a family court must determine
by a preponderance of evidence considering "only competent, material and
relevant [admissible] evidence" that a child is abused or neglected. N.J.S.A.
9:6-8.46(b)(2). Relevant here, an "[a]bused or neglected child" is one whose
parent or guardian:
(1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; . . . (4) or a child 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, as herein defined, 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, 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).]
A-2521-21 17 "[E]vidence of actual impairment to the child will satisfy the statute, but
in a case where there is no such proof, the critical focus is on evidence of
imminent danger or substantial risk of harm." N.J. Dep't of Child. & Fams.,
Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 22 (2013). 5 Proof of harm
can come from any number of competent sources, including "medical and
hospital records, health care providers, caregivers, or qualified experts." Id. at
23.
III.
We first address defendants' contention that the family court lacked
jurisdiction to conduct the abuse or neglect hearing. Because their arguments
and the outcomes differ, we discuss them separately.
Jurisdiction Over Rick
Rick argues the court erred in qualifying him as Michael's guardian
under N.J.S.A. 9:6-8.21(a) because he was neither Michael's babysitter nor
5 Following oral argument, we requested the parties to submit supplemental briefs addressing our recent Supreme Court's decision in N.J. Division of Child Protection & Permanency v. B.P., 257 N.J. 361, 366 (2024), which addressed the meaning of "imminent danger of becoming impaired" within N.J.S.A. 9:6- 8.21(c)(4)(a). Upon review of B.P. and the parties' submissions, we do not find the decision impacts our reasoning as it relates to Michael, but briefly address this holding when reversing the court’s findings on the biological children.
A-2521-21 18 approved of the care arrangement for Michael. The Law Guardian supports his
argument.
An allegation of child abuse or neglect under Title 9 "generally requires
that the offender have a responsibility or legal duty to care for the child or
protect the child's welfare." Fall & Romanowski, New Jersey Family Law:
Child Custody, Protection & Support § 30:2-1(b) (2022-2023). N.J.S.A. 9:6-
8.21(c) describes abuse or neglect as actions or inactions committed by a
"parent or guardian." In pertinent part, a child's parent or custodian is defined
as follows:
"Parent", as used in this chapter, shall include the stepfather and stepmother and the adoptive or resource family parent. "The person having the care, custody and control of any child", as used in this chapter, shall mean any person who has assumed the care of a child, or any person with whom a child is living at the time the offense is committed, and shall include a teacher, employee or volunteer, whether compensated or uncompensated, of an institution . . . who is responsible for the child's welfare, and a person who legally or voluntarily assumes the care, custody, maintenance or support of the child.
[N.J.S.A. 9:6-2]
A "parent or guardian" includes "any natural parent, adoptive parent,
resource family parent, stepparent, paramour of a parent, or any person, who
has assumed responsibility for the care, custody, or control of a child or upon
whom there is a legal duty for such care." N.J.S.A. 9:6-8.21(a).
A-2521-21 19 Consequently, a parent or guardian includes "those who have assumed a
general and ongoing responsibility for the care of the child." N.J. Div. of
Child Prot. & Permanency v. B.H., 460 N.J. Super. 212, 220 (App. Div. 2019)
(quoting State v. Galloway, 133 N.J. 631, 661 (1993)). This "'general and
ongoing responsibility' need not be based on a 'legal and formal' relationship
with the child, and instead 'may arise from informal arrangements.'" Ibid.
(quoting Galloway, 133 N.J. at 661). However, a distinction exists between a
parent/guardian and someone who "assumes 'temporary, brief, or occasional
caretaking functions, such as irregular or infrequent babysitting.'" Ibid.
(quoting Galloway, 133 N.J. at 661-62).
Based on our review of the record, we are constrained to conclude the
family court's finding that Rick's relationship with Michael rose to the level of
a guardian under Title 9 is factually and legally unsupported. The
preponderance of evidence does not support the court's finding that Rick was
Michael's guardian under N.J.S.A. 9:6-2 and N.J.S.A. 9:6-8.21 because he
"took over babysitting" Michael with his wife.
The hearing testimony and admitted documents demonstrate it was
Cynthia who cared for Michael both day and night. Despite finding that both
defendants were responsible for Michael, the court's findings primarily related
to Cynthia. Significantly, there was no testimony that Rick fulfilled any
A-2521-21 20 caregiving responsibilities for Michael, such as feeding him, changing his
diapers, bathing him, or watching him. Rick did not arrange for babysitting
Michael, initially was unaware of the arrangement, and then opposed it when it
came to his attention. There was no evidence that Rick cared for Michael
during the week of his death, and his work schedule placed him out of the
home from approximately 1:00 p.m. until midnight. At most, Rick told DCPP
that he observed Michael's tantrums on one occasion, prompting him to notify
the child's parents.
There is no merit to DCPP's arguments that Rick's minor involvement
with Michael––such as purchasing groceries for the household, complying
with Cynthia's request to look at Michael's mouth, or asking Michael's parents
to pick Michael up––rendered him the child's guardian. Rick's contacts with
Michael should not be conflated as exercising a caretaking role. The record
does not support the family court's determination that Rick was Michael's
guardian because he "took over babysitting" Michael with his wife.
We find support in two of our prior decisions. In B.H., the mother asked
her boyfriend, the defendant, to take her child to a fast-food restaurant while
she ran an errand. 460 N.J. Super. at 215. While driving under the influence,
the defendant got into a single-car accident. Ibid. We concluded the
defendant was not a parent or guardian under Title 9 because he "did not
A-2521-21 21 assume a general and ongoing responsibility for regular supervision or care"
for the child, given that, at most, he had supervised the child himself on two
"limited occasions." Id. at 221. Likewise, there is no evidence that Rick had
any individual interactions with Michael during which he was responsible for
the child, let alone where he assumed a general and continuing responsibility
for Michael.
In State v. Still, we rejected the trial court's sentencing determination
that the defendant had a parental duty for the victim under the child
endangerment statute merely because he was the child's babysitter's grandson. 6
257 N.J. Super. 255, 259-60 (App. Div. 1992). We concluded "the defendant
was not a parent and was not even the baby[]sitter herself, and no legal duty is
asserted to have been owed by him to the victim." Ibid. Similarly, Rick's
marriage to and co-habitation with Cynthia—Michael's dedicated babysitter—
does not transpose a caregiver responsibility over Michael, especially given his
minimal involvement with Michael.
Because we conclude that Rick was not Michael's guardian during the
child's stay at Rick's home, the family court lacked jurisdiction under Title 9 to
6 Because the duty to care for a child under "the language in Title 9" is comparable to "the related context of criminal child endangerment," B.H., 460 N.J. Super. at 220 (citing N.J.S.A. 2C:24-4(a)), it is logical to consider a criminal case to assess who qualifies as a caregiver.
A-2521-21 22 consider that Rick abused or neglected Michael. Consequently, we need not
address his and the Law Guardian’s other arguments that there was insufficient
evidence to support a finding against him for the abuse or neglect of Michael.
Jurisdiction Over Cynthia
Cynthia argues the family court erred in finding she was Michael's
guardian under N.J.S.A. 9:6-2 because she was not paid to care for him, she
reluctantly agreed to watch him to assist his family, and she repeatedly asked
his parents to take him home. She also argues the court lacked jurisdiction to
determine she abused or neglected Michael because he was not named in the
complaint. Unlike our conclusion as to Rick, we find the family court had
jurisdiction over the complaint against Cynthia.
The record supports the family court's finding that Cynthia watched
Michael for extended periods of time, including overnights, and that she was
not merely engaging in "a brief or occasional caretaking function," during the
week of Michael's death, including the ill-fated day he died. It is insignificant
that she was not compensated for caring for Michael or was a reluctant
babysitter who sought to end the babysitting session earlier. The
preponderance of evidence established that Cynthia assumed "the kind of
ongoing and continuous caretaking or supervisory responsibilities" to render
her Michael's caregiver. Galloway, 133 N.J. at 662.
A-2521-21 23 As to the argument related to DCPP's failure to name Michael in the
complaint, she failed to raise this argument before the family court. 7
Normally, we would not consider the argument. See Neider v. Royal Indem.
Ins. Co., 62 N.J. 229, 234-35 (1973). Because the issue was not raised below,
the plain error rule provides that "[a]ny error or omission shall be disregarded
by the appellate court unless it is of such a nature as to have been clearly
capable of producing an unjust result." R. 2:10-2. If there is a due process
violation, a new trial may be required unless the reviewing court finds that "the
constitutional violation was harmless beyond a reasonable doubt." State v.
Jones, 224 N.J. 70, 85 (2016). We conclude no unjust result occurred by not
specifying in the complaint that Michael was abused or neglected.
"A complaint . . . is not required to spell out the legal theory upon which
it is based." Farese v. McGarry, 237 N.J. Super. 385, 390 (App. Div. 1989).
"Its necessary contents are only 'a statement of the facts on which the claim is
based, showing that the pleader is entitled to relief, and a demand for judgment
for the relief to which he deems himself entitled.'" Ibid. (quoting R. 4:5-2).
7 Rick raised the same argument on appeal, but also failed to argue it before the family court. As noted, because we conclude Rick was not Michael's guardian resulting in the court's lack of jurisdiction, we do not address his other arguments.
A-2521-21 24 "[M]inimum[] 'due process requires that a parent charged with abuse or
neglect have adequate notice and opportunity to prepare and respond.'" N.J.
Div. of Youth & Fam. Servs. v. P.C., 439 N.J. Super. 404, 412 (App. Div.
2015) (quoting N.J. Div. of Youth & Fam. Serv. v. T.S., 429 N.J. Super. 202,
213 (App. Div. 2013)). "There can be no adequate preparation [for trial]
where the notice does not reasonably apprise the party of the charges, or where
the issues litigated at the hearing differ substantially from those outlined in the
notice." N.J. Div. of Youth & Fam. Serv. v. B.M., 413 N.J. Super. 118, 127
(App. Div. 2010) (alteration in original) (quoting H.E.S. v. J.C.S., 175 N.J.
309, 322 (2003)). Because "[t]he fact-finding hearing is a critical element of
the abuse and neglect process," it "must be conducted 'with scrupulous
adherence to procedural safeguards.'" P.C., 439 N.J. Super. at 413 (first
quoting N.J. Div. of Youth & Fam. Servs. v. R.M., 411 N.J. Super. 467, 474-
75 (App. Div. 2010); and then quoting N.J. Div. of Youth & Fam. Servs. v.
G.M., 198 N.J. 382, 401 (2009)).
Michael's death triggered a DCPP investigation against Cynthia for her
purported abuse or neglect of Michael. While the investigation was pending,
DCPP filed a complaint against her for the care and supervision of her own
children. The complaint detailed the circumstances of Michael's death, and the
ensuing investigation related to her biological children. Although the
A-2521-21 25 complaint did not name Michael as a subject child, nor did it seek a finding
against Cynthia on his behalf, she was on fair notice that the allegations related
to her children derived from Michael's death. And from the record, because the
litigation centered on Michael's behavior, defendant's conduct, and his death, it
does not appear she was prejudiced in any way by DCPP's initial
inattentiveness in not pleading that Michael was abused or neglected by
defendants.
IV.
We next address Cynthia's contention that the family court erred in
finding there was sufficient evidence that she abused or neglected Michael,
and in doing so, violated her due process rights. 8 She maintains she
appropriately cared for Michael by contacting his parents, documenting his
behavior, and, through her cousin, seeking emergency services when he
injured himself.
Preliminarily, Cynthia contends that the court's finding of actual harm
constituted an erroneous sua sponte finding of physical abuse. The court's oral
decision did not articulate whether its finding of actual harm to Michael was
8 Rick and the Law Guardian, on his behalf, raise similar contentions. As noted, because we conclude the family court lacked jurisdiction over Rick, we do not address their other arguments. That said, the same reasoning we apply to Cynthia's insufficient evidence arguments would also apply to Rick.
A-2521-21 26 based on defendant's physical abuse of the child, N.J.S.A. 9:6-8.21(c)(1), or
medical neglect resulting in actual harm or imminent risk of harm, N.J.S.A.
9:6-8.21(c)(4). Yet, the decision and the fact-finding order make no mention
of physical abuse, and clearly reflects the court's finding that defendant's
medical neglect of Michael caused him both actual harm and placed him at
imminent risk of harm. To the extent that the court's decision is unclear, there
is otherwise sufficient information in the record from which to assess whether
Cynthia's actions or inactions caused Michael actual harm or placed him at
imminent risk of harm. N.J. Div. of Child Prot. & Permanency v. Y.A., 437
N.J. Super. 541, 546 (App. Div. 2014) (citing F.M., 211 N.J. at 448-49). With
this as a backdrop, we conclude there was insufficient evidence that Cynthia
abused or neglected Michael.
"[E]vidence of actual impairment to the child will satisfy [N.J.S.A. 9:6 -
8.21(c)(4)], but in a case where there is no such proof, the critical focus is on
evidence of imminent danger or substantial risk of harm." A.L., 213 N.J. at
22. Proof of harm can come from any number of competent sources, including
"medical and hospital records, health care providers, caregivers, or qualified
experts." Id. at 23. The court's findings here are intertwined, as it apparently
relied on the same evidence to determine both actual harm and imminent risk
of harm.
A-2521-21 27 The court relied on N.J.S.A. 9:6-8.46(a)(2) to determine that Cynthia's
actions or inactions resulted in "actual harm" to Michael. The statute states:
[P]roof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of, or who is the responsibility of such person is an abused or neglected child[.]
"[P]rima facie evidence [is] [e]vidence that will establish a fact or sustain a
judgment unless contradictory evidence is produced." N.J. Div. of Child Prot.
& Permanency v. J.R.-R., 248 N.J. 353, 370 (2021) (alterations in original)
(quoting Black's Law Dictionary 701 (11th ed. 2019)). However, establishing
a prima facie case of abuse does not automatically establish culpability.
Rather, DCPP maintains the burden of proving the abuse or neglect by a
preponderance of the evidence. Id. at 359 (citing N.J.S.A. 9:6-8.46(b)(1)).
Where there is prima facie evidence of abuse or neglect, pursuant to the
traditional doctrine of res ipsa loquitur, a factfinder can then draw an inference
of abuse or neglect unless there is evidence to the contrary. Id. at 370-71.
In this case, the family court's finding of actual harm was based on the
nature of Michael's injuries and his death. Indeed, a child's sudden death and
accompanying physical injuries may support a prima facie finding of abuse or
neglect. See Div. of Youth & Fam. Servs. v. Robert M., 347 N.J. Super. 44,
A-2521-21 28 66-67 (App. Div. 2002) (recognizing the trial court's prima facie finding of
neglect against the parents of their deceased adopted child, where a doctor
testified about the extent of the child's injuries, opined that the parents' claim
that the injuries were self-inflicted were unfounded, and concluded that the
parents' failure to seek medical attention for the child's various injuries and
behavioral issues constituted medical neglect). There is no question that
Michael sustained multiple injuries. However, the court's finding that his
injuries constituted prima facie proof of abuse or that Cynthia's actions or
inactions resulted in his actual harm or placed him at imminent risk harm was
unsupported in the record and contrary to DCPP's case.
It appears the court found that because Michael presented with numerous
physical injuries and then went into cardiac arrest and died, Cynthia was
neglectful in caring for him—either allowing him to sustain physical injuries
or failing to protect him from the risk of injury. However, "[t]he record
contains no expert evidence or even admissible documentary evidence
supporting" this conclusion. N.J. Div. of Youth & Fam. Servs. v. S.I., 437 N.J.
Super. 142, 157 (App. Div. 2014). Expert testimony is not required in abuse
or neglect cases when "an adequate presentation of actual harm or imminent
danger can be made without the use of experts." A.L., 213 N.J. at 29.
A-2521-21 29 Nevertheless, when "the evidence presented does not demonstrate actual or
imminent harm, expert testimony may be helpful." Id. at 28.
Thus, while not required, DCPP often presents expert testimony to
support a prima facie finding of abuse or neglect based on a child's physical
injuries. See, e.g., Robert M., 347 N.J. Super. at 50-51 (finding by trial court
of a prima facie case of medical neglect, where a doctor testified about the
scope of the child's injuries, that they did not appear self-inflicted, and that the
parents' failure to obtain medical care contributed to the child's death); N.J.
Div. of Youth & Fam. Serv. v. N.S., 412 N.J. Super. 593, 611, 625 (App. Div.
2010) (affirming determination that child's injuries were prima facie evidence
of abuse, where a doctor testified about child's "blunt force trauma" to his
stomach, and said it was "consistent with being punched by an adult" and there
was no plausible accident that could have caused the injury); Div. of Youth &
Fam. Servs. v. J.L., 400 N.J. Super. 454, 459-61, 470-71, 473 (App. Div. 2008)
(holding where there was a prima facie case of child abuse based on infant's
multiple leg fractures and expert testimony that the injuries appeared "'highly
suspicious' of child abuse," the trial court correctly determined defendants had
"overcome" "the inference of abuse" due to their expert testimony about the
fragility of the bones and how the child's fractures could be the result of
accidental injury); N.J. Div. of Youth & Fam. Serv. v. A.C., 389 N.J. Super.
A-2521-21 30 97, 102-03, 109 (Ch. Div. 2006) (affirming finding of neglect where child's
skull fractures constituted prima facie proof of abuse or neglect, where an
expert testified about the extent, nature, and effect of the injury, and opined
that the injury was not consistent with the proffered explanation).
DCPP did not present expert testimony here, despite the lack of clarity
surrounding the circumstances of Michael's various injuries and death.
Defendants reported that during his five-day stay at their home, Michael
engaged in tantrums, scratched himself, and banged his body on the floor.
However, their statements did not note any injury from these behaviors prior to
Friday, the day Michael died. At the hospital, Michael exhibited contusions on
his forehead, scalp swelling, lacerations on his lip, scratches and bruises on his
body, a "raccoon eye," and shattered teeth. However, it is unclear which, if
any, of these injuries were sustained prior to that day.
When these injuries were sustained is critical. DCPP requested a finding
of medical neglect based on defendants' failure to obtain medical care for
Michael prior to the day he passed. The testimony indicated that Cynthia had
acted appropriately on the day of Michael's death, when she wrapped his head
and immediately sought emergency care for him. The court, however, did not
clearly articulate whether it also limited its findings to defendants' conduct
before that fateful day. Based on DCPP's concession, however, the assumption
A-2521-21 31 is that if Cynthia had adequately responded to Michael's medical needs on
Friday, then defendants' medical neglect must have occurred prior to that date.
Importantly, the evidence is inconclusive as to whether Michael required
medical care prior to Friday, rendering defendants' neglectful under N.J.S.A.
9:6-8.21(c)(4) for failure to obtain immediate medical care for him. While
Michael presented with extensive physical injuries on Friday, there is no
conclusive evidence as to when he sustained those injuries, including whether
he sustained those injuries prior to Friday. According to defendant's
statements—which DCPP did not dispute—prior to Friday, Michael's tantrums
resulted in no demonstrable injury. Given the lack of evidence of earlier
physical injury, it is unclear whether defendants could have anticipated that
Michael's tantrums would have placed him at imminent risk of harm. Indeed,
DCPP could not identify when defendants should have sought medical care,
prior to Friday. Thus, despite Michael's behavioral issues and some self-
harming behavior, there is no evidence that this resulted in any physical
injuries, let alone injuries that required immediate medical attention.
Moreover, DCPP's evidence did not establish what caused Michael's
death, or whether any earlier-inflicted injuries contributed to his death. There
was no expert testimony interpreting Michael's medical records, opining as to
when he sustained his injuries, identifying which injuries would have required
A-2521-21 32 prompt medical attention, identifying which injuries contributed to his death,
and/or stating what caused Michael to go into cardiac arrest to which he
succumbed.
Thus, evidence is lacking that Cynthia's conduct caused Michael actual
harm, or that her failure to better address Michael's tantrums placed him at
imminent risk of harm. Without evidence as to when Michael sustained his
various injuries, whether his earlier tantrums resulted in any demonstrable
injury, or any evidence to otherwise indicate that defendants should have
sought medical care for Michael earlier, there is nothing in the record to find
that Cynthia's actions or inactions were likely to cause Michael's injury or that
Michael's tantrums constituted a "dangerous risk[]" with "potentially serious
consequences" reasonably necessitating intervention. G.S. v. Dep't of Hum.
Servs., 157 N.J. 161, 179 (1999) (citing McLaughlin v. Rova Farms, Inc., 56
N.J. 288, 305 (1970)).
In fact, Cynthia, as well as Rick, appropriately responded to Michael's
tantrums by repeatedly contacting his parents and recording his behavior for
them. Cynthia testified how she minimized opportunities for Michael to hurt
himself by having him sleep on the floor and asking her teenage son to keep an
eye on him while she used bathroom. We discern nothing unreasonable about
A-2521-21 33 her conduct. There is insufficient evidence that Cynthia placed Michael at
imminent risk of harm.
V.
Finally, we address Cynthia's argument that the family court erred in
relying on her purported abuse of Michael to sustain its finding that she abused
or neglected her own children. She maintains her purported conduct towards
Michael was not properly introduced as other crimes evidence to prove she
abused or neglected her children. Given our conclusion there was insufficient
evidence that she abused or neglected Michael, we in turn conclude there is
insufficient evidence she abused or neglected her children. 9 For the sake of
completeness, however, we consider Cynthia's contention.
Under Title 9, "proof of the abuse or neglect of one child shall be
admissible evidence on the issue of the abuse or neglect of any other child of,
or the responsibility of, the parent or guardian." N.J.S.A. 9:6-8.46(a)(1). A
family court therefore "need not wait to act until a child is actually irreparably
9 As noted, we conclude the family court lacked jurisdiction under Title 9 to consider that Rick abused or neglected Michael. By extension, the court also lacked jurisdiction to consider whether Rick abused or neglected his own children, as this allegation was based on his purported inadequate supervision of Michael. That said, the same reasoning we apply to Cynthia's insufficient evidence arguments would also apply to Rick.
A-2521-21 34 impaired by parental inattention or neglect." In re Guardianship of DMH, 161
N.J. 365, 383 (1999).
In fact, in Robert M. we held that "[a]lthough the absence of past
physical abuse to [defendants'] natural children may infer their future safety,
the alleged treatment of [the adopted child] could be a dangerous harbinger to
one or more of the others." 347 N.J. Super. at 68. Therefore, "[i]f [the
adopted child] was abused by defendants and died as a result, potential abuse
of other children, whether emotional or physical, cannot be discounted." Ibid.
Even so, there "must still [be] a preponderance of the competent, material and
relevant evidence [of] the probability of present or future harm." N.J. Div. of
Youth & Fam. Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (internal
citation omitted).
As to Cynthia's argument that the family court abused its discretion in
admitting other crimes evidence to sustain the charges against her, it is without
merit. See N.J. Div. of Child Prot. & Permanency v. N.B., 452 N.J. Super.
513, 521 (App. Div. 2017) (recognizing we only reverse a trial court's
admission of evidence if there is an "abuse of discretion" (quoting N.J. Div. of
Child Prot. & Permanency v. N.T., 445 N.J. Super, 478, 492 (App. Div.
2016))). Her reliance on N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328
(1992), is misplaced. N.J.R.E. 404(b)(2) provides that evidence of a person's
A-2521-21 35 other crimes is not admissible to provide propensity but can be admissible to
show "proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." Cofield's four factors are
considered to assist a trial court in determining whether evidence of the prior
crime is admissible under N.J.R.E. 404(b). State v. Carlucci, 217 N.J. 129,
140 (2014). Cynthia's purported wrongful conduct was the basis for DCPP's
allegations against her; it was not an additional prior bad act that DCPP sought
to use against her.
On the other hand, we agree with Cynthia that there is insufficient
evidence to support the family court's finding that, assuming it correctly found
she abused or neglected Michael by not seeking medical care for him, there is
insufficient evidence that the inaction placed her children at imminent risk of
harm. Cynthia's relationship with Michael is vastly different than with her
children. DCPP provided no proof she had medical decision-making authority
for Michael or was aware of his pediatric or health insurance information, as
she would have for her children. Nevertheless, she took immediate action
when presented with a true medical emergency on the day Michael died.
DCPP has not shown that Cynthia's reaction to Michael's behavior established
her children's future medical needs would go unattended. See N.J. Div. of
Youth & Fam. Servs. v. F.H., 389 N.J. Super. 576, 615-16 (App. Div. 2007)
A-2521-21 36 (concluding in a termination proceeding, the parents' abuse or neglect of one
child did not support a finding of abuse or neglect of the other children, as
there was no evidence that the other children were abused or neglected, and the
risk of future harm was limited, noting there was no "consistent pattern of
egregious acts of abuse or neglect").
To a support a finding of abuse or neglect based on imminent risk of
harm, "the mere possibility of the child being impaired" is not sufficient. B.P.,
257 N.J. at 379. In this case, the threat of harm to Cynthia's children was
speculative, as there otherwise was no evidence of any harm to them, and the
circumstances surrounding Michael's death were too nuanced to demonstrate a
finding of imminent harm to her children.
Reversed and remanded for the family court to remove defendants'
names from the Central Registry maintained by the DCPP under N.J.S.A. 9:6 -
8.11.
A-2521-21 37