DCPP VS. G.O.-A. AND D E.K., IN THE MATTER OF El.A.-K., Er.A.-K., AND H.A.-K. (FN-03-0020-19, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 31, 2020
• Docket: A-2123-18T3
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2123-18T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent/ Cross-Respondent,

v.

G.O.-A.,

Defendant-Appellant/ Cross-Respondent,

and

E.K.,

Defendant. _______________________________

IN THE MATTER OF El.A.-K., Er.A.-K., and H.A.-K, minors,

Respondents/Cross-Appellants. ________________________________

Submitted March 31, 2020 – Decided August 31, 2020 Before Judges Accurso, Gilson, and Rose.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-0020-19.

Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Robyn A. Veasey, Deputy Public Defender, of counsel; Arthur D. Malkin, Designated Counsel, on the briefs).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors/cross-appellant (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Nancy P. Fratz, Assistant Deputy Public Defender, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent/cross-respondent (Sookie Bae-Park, Assistant Attorney General, of counsel; Jennifer E. St. Mary, Deputy Attorney General, on the brief).

PER CURIAM

Defendant G.O.-A.1 appeals from a December 5, 2018 fact-finding order,

now final, that she and the children's father abused or neglected their three

children, a two-year-old girl, a four-year-old boy, and a six-year-old girl, by

leaving them home alone for an hour after midnight. The law guardian for the

children cross-appeals, arguing with the Division that the finding should be

1 The court found both parents, G.O.-A. and E.K., abused or neglected their children in this instance. Only G.O.-A. appeals. "Defendant" refers to G.O.-A. A-2123-18T3 2 affirmed, and that we should remand to allow the trial court to enter a

"suspended judgment," as well as to consider whether the Division of Child

Protection and Permanency's determination to "substantiate" defendant for

neglect was arbitrary, capricious, or unreasonable. Because there is

substantial credible evidence in the record to support the trial court's finding

that defendant abused or neglected her children, we affirm. See N.J. Div. of

Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010).

The facts are straight-forward and almost entirely undisputed. On a June

night in 2018, Burlington City Police Department received a call around

midnight reporting a screaming child left alone. When police arrived, they

found defendant's front door unlocked and her three small children alone. The

house was in disarray, and the children were scared. The six-year-old knew

her mother's first name but not her last and couldn't tell the officers her father's

name. She thought her mother might have gone to the car to get something.

The kids said they were hungry.

Their parents returned about 1:00 a.m. By that time, emergency medical

services had arrived, checked the children, and placed them in an ambulance to

transport them to the police station. Seeing the ambulance, the parents

immediately asked whether their children were okay, and said they had only

A-2123-18T3 3 been gone an hour. Defendant was in shorts and a shirt and no shoes. When

officers smelled marijuana in the car and saw an open container of alcohol, the

parents were arrested. Each was charged with endangering the welfare of

children and possession of marijuana and released on a summons.

Division workers responded to the police station where they spoke to the

children and their parents. The six-year-old told them that she and her siblings

woke up looking for their mother, could not find her, did not know where she

went, got scared, and started crying. She did not know what to do or who to

call and did not know how to deal with an emergency.

One of the workers testified she spoke with defendant, who admitted she

had left the children at home alone. According to the worker's account of the

conversation, defendant and the children's father made a "quick decision" to

get some chicken at Buffalo Wild Wings in Moorestown. Defendant told the

worker they were gone for about an hour and were arrested when they returned

home.

Defendant said she did not normally leave her children home alone,

explaining that her brother usually would babysit. She claimed she wanted to

stay home that night, but the children's father encouraged her to go with him.

The worker reported that defendant did not appear to be under the influence of

A-2123-18T3 4 drugs or alcohol, which was not true of the children's father. His account

mirrored defendant's, including saying defendant wanted to stay home but he

convinced her to go out, as they would be gone for less than an hour and the

children were asleep. This was the family's first encounter with the Division.

The Division performed an emergency removal of the children and

"substantiated" both parents for neglect for inadequate supervision, but

deemed the allegations of neglect for failure to provide for the children's basic

needs was "not established." By the time of the return date on the order to

show cause for the removal, both parents had submitted to drug screens and

substance abuse evaluations. E.K. tested positive for marijuana, and it was

recommended he seek outpatient drug treatment. Defendant tested negative.

No services were recommended for her.

The law guardian reported the children missed their parents and wanted

to return home. Defendant's brother agreed to be a full-time supervisor in

defendant's home. The court ordered the children returned to their parents ,

requiring defendant to supervise E.K. with the children.

At the fact-finding hearing, the Division's witnesses testified to the facts

related above. One of the workers testified that defendant admitted she had

been drinking the night the children were removed but denied smoking

A-2123-18T3 5 marijuana. Neither defendant nor the law guardian offered any witnesses or

presented any evidence.

During summation, defense counsel acknowledged defendant "made a

mistake" that "had some drastic repercussions," and asked the court for

leniency for that "one-time mistake." Defense counsel emphasized this was

the family's first involvement with the Division, defendant was fully compliant

with services (drug screenings, substance abuse evaluation, and supervised

visitation while separated from the children), and was reunified with the

children without incident. Counsel asked the court to "downgrade the

substantiation to at least establish[ed] or even to not establish[ed] so that

[defendant] is not forced to have to deal with the repercussions involving

employment opportunities, and more importantly, given that she has

demonstrated to the court that she understands . . . the seriousness of what

happened." Counsel represented that defendant wanted to move forward but

did not believe it was "fair for her to be listed as a substantiated perpetrator on

the child abuse registry forever."

The law guardian stated that although this appeared to be an "isolated

incident," the evidence supported a finding of neglect under Title 9.

Acknowledging the Division had met its burden of proof, the law guardian

A-2123-18T3 6 added that he would not have objected had the Division dismissed the Title 9

complaint and proceeded under Title 30.

The Division responded that while the court had the responsibility to

determine whether the Division had proven child abuse or neglect by a

preponderance of the evidence, it retained "the administrative authority to

determine whether an allegation of conduct determined by the court to be

abuse and neglect is established or substantiated." The deputy argued the

Division had established, by a preponderance of the evidence, that defendants

neglected the children by leaving them home alone for at least an hour.

The judge acknowledged it was "an unfortunate situation and perhaps it

could be a scenario where the Division, given the compliance, might resolve

the matter in another fashion other than continuing with substantiation." The

judge concluded, however, that there was no question but that the Division had

proved its case. The judge found the Division's witnesses credible, and, based

on their testimony, that "the children were left alone in a situation where there

was potential of harm and imminent risk." He noted that the evidence

supported the conclusion that the parents were gone for more than an hour,

"[b]ut even if it were only an hour, leaving such young children alone is a

situation where imminent harm can befall them."

A-2123-18T3 7 The judge found "significant" the young ages of the children involved:

"A six-year-old taking care of a two-year-old is really not adequate. In fact,

it's completely inadequate in terms of supervision." He found it was "gross

negligence under [N.J.S.A. 9:6-8.21](c)(4) to leave children that age on their

own even for an hour." The judge also found the parents knowingly left the

children alone without adult supervision, "this is not like those cases where a

child is left alone by mistake thinking someone else was there." As a result, he

concluded:

as much as I do feel there's a certain aspect of leniency that I would like to be able to give, the law is the law and I think there was a gross negligence here. I think the parents have no doubt learned a very hard lesson. And I urge that they continue on the road to having this all behind them.

After the judge rendered his decision, defense counsel asserted the court

had "the authority to essentially change the finding to established," from

"substantiated," which she maintained would still be "under Title 9," but spare

defendant inclusion in the registry, which she asked the judge to do. The

deputy objected, arguing the court obviously had authority to determine

whether the Division had proved its case, but the decision to "substantiate"

abuse or neglect or deem it "established," was an administrative decision

reserved to the agency. The judge denied the request, stating:

A-2123-18T3 8 [T]his is a court of equity, and you know, I am tempted in light of the fact of the dismissal now. It seems very inconsistent with the idea of rewarding folks who do what they're supposed to do. But I do agree with [the deputy], the nature of what is the abuse and neglect is concerning enough. In the case the evaluation is from the time of what happened, so even if I had the authority to change the substantiation, I would not.

Defendant appeals, arguing the trial court erred by finding that she

"neglected" her children pursuant to N.J.S.A. 9:6-8.21(c). She contends the

court's finding was "against the weight of the admitted evidence and

testimony" because any risk to her children was not "substantial" and her

conduct did not constitute "gross negligence." She also argues "the court

should have but failed to consider the totality of the circumstances."

Furthermore, because her children suffered no actual harm as a result of her

poor judgment, she contends that the court's decision upholding the Division's

finding of "substantiated" was excessive and punitive.

We disagree, finding no merit in those arguments. We, of course, are

not free to overturn the factual findings and legal conclusions of a trial judge

"unless we are convinced that they are so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as

to offend the interests of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of

A-2123-18T3 9 Am., 65 N.J. 474, 484 (1974) (citation omitted). Because defendant's children

suffered no actual harm, the trial court's focus, and ours, shifts "to whether

there is a threat of harm, and we look to determine whether the Division has

proven 'imminent danger or a substantial risk of harm to a child by a

preponderance of the evidence.'" N.J. Div. of Child Prot. & Permanency v.

S.W., 448 N.J. Super. 180, 189 (App. Div. 2017) (quoting N.J. Dep't of

Children and Families v. A.L., 213 N.J. 1, 23 (2013)).

Defendant admitted she left her three children, six, four and two, home

alone at night, sleeping, to drive from Burlington to Moorestown and was gone

for an hour. She does not dispute the conduct was negligent and, indeed,

admits it was "a serious mistake." When the children awoke and couldn't find

their mother, they were understandably fearful, so much so that a passerby

reported their screams to the police.

The children were not old enough to be able to respond to an emergency

and could not even advise police of their last name. Although no harm befell

them, that is not the test. As the Supreme Court has noted, "in focusing on the

risk of harm as well as actual harm to a child from grossly negligent conduct

of a parent or guardian, the Legislature sought to squash the notion of a 'free

pass' if the child did not suffer actual harm." Dep't of Children & Families,

A-2123-18T3 10 Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 187 (2015). It

takes little imagination to appreciate the dangers of leaving such small children

to fend for themselves, even for an hour, in an unlocked house at night.

The trial judge clearly considered the totality of the circumstances,

including that this was defendant's first contact with the Division, that no harm

came to the children, and defendant's genuine remorse. But his focus was

properly on the children and their safety and not on the consequences of an

abuse and neglect finding against their parent. As the Court in E.D.-O.

explained:

whether a parent's or caretaker's conduct causes an imminent risk of harm is evaluated through the lens of the statutory standard as interpreted and applied by the Court, rather than through the lens of the consequences of a finding of neglect, specifically, enrollment in the Central Registry. Enrollment in the Registry is a consequence of a finding of abuse or neglect. We are mindful of the consequences of enrollment in the Registry and the duration of those consequences. We are aware that for some acts, enrollment in the Registry may seem draconian. However, it is not the function of this Court to address those seeming excesses by distorting the analysis of the underlying conduct.

[Id. at 195 (citations omitted).]

Faithfully applying the statutory standard is not "punitive." The judge

was not free to ignore the imminent risk of harm defendant's conduct posed to

A-2123-18T3 11 these children by focusing on the potential harm to her from inclusion in the

Registry. We reject defendant's arguments to the contrary.

Defendant also contends she was denied the effective assistance of

counsel in accordance with Strickland v. Washington, 466 U.S. 668 (1984).

She argues her trial counsel's performance "was objectively deficient in several

areas," including: (1) failing to offer any evidence or witnesses and challenge

the allegations of abuse or neglect; (2) conceding that she abused and

neglected her children; (3) failing to remain appropriately informed of the

applicable law; and (4) failing to request dismissal of the Title 9 complaint and

the conversion of the case to Title 30.

A parent in Title 9 and Title 30 litigation has the right to effective

assistance of counsel, N.J. Div. of Youth & Family Servs. v. M.D., 417 N.J.

Super. 583, 609 (App. Div. 2011); N.J. Div. of Youth and Family Servs. v.

B.H., 391 N.J. Super 322, 345-46 (App. Div. 2007), evaluated under the

Strickland standard. B.H., 391 N.J. Super. at 345-46; N.J. Div. of Youth &

Family Servs. v. B.R., 192 N.J. 301, 307 (2007). To succeed on a claim of

ineffective assistance, defendant must establish, first, that "counsel's

representation fell below an objective standard of reasonableness" and, second,

that "there is a reasonable probability that, but for counsel's unprofessional

A-2123-18T3 12 errors, the result of the proceeding would have been different." Strickland,

466 U.S. at 687-88, 694. Defendant cannot establish her claim under that

standard.

Defendant does not identify any evidence her counsel could have

presented or any witness she might have called to establish a defense to the

Division's case. She conceded she left her children alone, and none of the

factors she contends counsel should have argued in her defense, her lack of

prior involvement with the Division, her strong bond with her children, the

lack of harm to them, her remorse and assurances it would not happen again,

was relevant to her conduct at the time of the incident. See E.D.-O., 223 N.J.

at 189.

We do not agree her counsel "conceded" defendant abused or neglected

her children by asking the court to change the Division's internal finding from

"substantiated" to "established." While counsel was incorrect that the judge

had such power, the error did not affect the judge's finding, as the judge had

already announced his ruling when her counsel made the request. More

important, defendant cannot establish prejudice. The court found defendant

left her children unsupervised, and that the conduct constituted gross

negligence based on credible evidence presented at the fact-finding trial, not

A-2123-18T3 13 based on defense counsel's performance. She does not explain how the court's

findings and determinations were erroneous, or provide any support for her

claim that the judge could have granted a motion to dismiss the Title 9

complaint and converted the case to one under Title 30 following the return of

her children. There was simply no "reasonable probability" that, but for

counsel's alleged unprofessional errors, "the result of the proceeding would

have been different," because there was sufficient credible evidence in the

record that defendant neglected her three very young children by having left

them home alone.

The law guardian's cross-appeal requires only brief comment. We

decline to consider the argument that the judge should have considered and

entered a suspended judgment because that relief was not sought in the trial

court. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins.

Co., 62 N.J. 229, 234 (1973). We thus need not consider whether the law

guardian has standing to raise this argument on behalf of defendant, which

defendant urges us to reject in any event.

We likewise reject the law guardian's request that we remand this matter

to determine whether the Division's substantiation was arbitrary, capricious,

and unreasonable for having failed to comply with its own regulations by "not

A-2123-18T3 14 having the child protective investigators determine (or involved in) the finding

of the investigation."

Leaving aside the lack of support for that argument on the facts in the

record, the law guardian's position perplexes us. The law guardian joins with

the Division in recommending we affirm the judgment that defendant abused

or neglected her children. She asserts in her briefs on behalf of the children

that defendant "was grossly negligent and neglected her children when she left

them unattended" and that "the trial court's finding of abuse or neglect was

supported by a preponderance of evidence and [defendant] failed to provide a

basis for reversing that decision." The Law Guardian also argues that

defendant received effective assistance from her counsel. Because we agree

on both counts, we decline the suggestion of a remand to the agency.

Affirmed.

A-2123-18T3 15