RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5370-13T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION v. May 2, 2016 K.G., APPELLATE DIVISION
Defendant-Appellant,
and
V.M., Sr.,
Defendant. _____________________________
IN THE MATTER OF V.M., Jr.,
a Minor. ______________________________
Argued March 15, 2016 - Decided May 2, 2016
Before Judges Reisner, Hoffman and Whipple.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-170-13.
Barbara E. Ungar argued the cause for appellant.
Mary C. Zec, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Zec, on the brief). Damen J. Thiel, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Thiel, on the brief).
The opinion of the court was delivered by
REISNER, P.J.A.D.
Defendant K.G. appeals from a February 21, 2014 fact-
finding order, determining that she abused or neglected her ten-
month-old baby, V.M., Jr. (Valentine or the baby), by leaving
him under the sole supervision of her nineteen-year-old son
Carl,1 who is substantially cognitively impaired. Applying the
totality of the circumstances test, we agree with the trial
judge that defendant's conduct was grossly negligent and we
affirm.
I
The following evidence was presented at the fact-finding
hearing. Defendant lives in a single-family house with Carl and
Valentine. On May 18, 2013, the Division of Child Protection
and Permanency (Division or agency) received a referral from
Carl's father, V.M., Sr., reporting that defendant was leaving
Valentine alone with Carl, who was not capable of caring for
him. On May 19, 2013, Division caseworker Priscilla Garcia
visited defendant's home and spoke to her about the referral.
1 We use initials and pseudonyms to protect the family's privacy.
2 A-5370-13T3 Defendant said there was "nothing wrong" with Carl being the
baby's caretaker and told Garcia that she would leave the baby
in Carl's care if she went to the supermarket or ran other
errands. She told Garcia that Carl was not receiving services
from the Division of Developmental Disabilities (DDD), and that
he was enrolled in school and working at a local hospital.2
However, when Garcia attempted to speak to Carl, he went to his
room, and defendant told Garcia that Carl did not want to talk
to her. Garcia left without completing her investigation. She
later made several attempts to arrange a time when she could
speak to Carl, but defendant told Garcia that "she wasn't able
to accommodate [Garcia's] schedule."
On June 12, 2013, V.M., Sr., phoned the local police
headquarters to express concern for the baby's safety. Officer
Pearson, a uniformed patrol officer, was dispatched to
defendant's residence at about 8:50 p.m. to do a welfare check.
Pearson knocked on the front door, announcing himself as a
police officer, but got no answer. Eventually a man came to a
second floor window and peeked his head out. Pearson attempted
to speak to the man, but still no one came to the door. He
2 Defendant omitted some significant information in her statement to Garcia, including the fact that Carl attended a special school for persons with developmental disabilities and that, as of March 2012, she had Carl evaluated by DDD for continuing services.
3 A-5370-13T3 started knocking again and noticed that the door knob was
unlocked. Pearson opened the door and stepped inside,
announcing his presence. The same man who had been at the
window was in a doorway. When the man saw Pearson, he ran
upstairs and slammed a door shut. Pearson walked around inside
the house, announcing that he needed to talk to someone.
Eventually the man came out and identified himself as Carl.
According to Pearson, Carl was very protective of his baby
brother. He told Pearson that Valentine was upstairs sleeping,
and that Pearson had to be quiet and had to leave. After a
while, Carl let Pearson go upstairs to check on the baby.
Valentine was asleep in a crib; he appeared clean; the physical
environment appeared safe.
Pearson testified that he went back downstairs to talk to
Carl. His initial impression was that Carl seemed childish for
his age — very shy and "a little off with his behavior and
speech." Pearson tried to put Carl at ease by talking about
sports and Carl's favorite teams. Pearson then asked Carl "what
he would do if the house was on fire or if he needed an
ambulance," and Carl replied, "I don't know." When Pearson
asked Carl "if he could call his mother," Carl was "unable to
answer" that question either. Pearson did not feel it would be
appropriate to leave the baby with Carl so he called for backup.
4 A-5370-13T3 After other officers arrived on the scene, Pearson's sergeant
asked headquarters to contact defendant.
Pearson estimated that he was at the house for about an
hour before defendant arrived home. She was very agitated and
cursed at the officers. According to Pearson, Carl asked
defendant what was going on and she replied, "they think you're
too fucking retarded to watch your brother." Carl ran into his
room. Pearson's sergeant then contacted the Division so that
the agency could assess the situation.
Patricia Arroyo, a Division emergency response
investigator, testified that she arrived at defendant's
residence at approximately 10:30 p.m. When defendant refused to
allow Arroyo to interview Carl, Arroyo threatened to conduct a
Dodd removal3 of Valentine. At that point, defendant allowed
Arroyo to speak to Carl. After interviewing him, Arroyo
prepared a report memorializing her observations that Carl had
"a major mental disability[,]" he did not know defendant's phone
number, and he did not have access to a telephone to call 911 in
case of an emergency. Before leaving the home, Arroyo prepared
a safety protection plan, signed by defendant, that required
defendant to make alternate plans for babysitting and to provide
3 Pursuant to N.J.S.A. 9:6-8.29, legislation sponsored by Senator Dodd, the Division is authorized to take custody of a child on an emergency basis in order to protect the child's safety.
5 A-5370-13T3 the Division with the name of any new caregiver.
Garcia testified that after the court granted the Division
care and supervision of Valentine, she was able to speak with
Carl at his school. He attended a specialized school that
teaches life skills to children who are developmentally delayed.
Carl, who was nineteen years old at the time of his interview,
was cooperative but his demeanor was childlike. He appeared
very shy; he giggled and his conversation bounced from topic to
topic. Carl told Garcia that he worked at a hospital cafeteria
on Thursdays and said he liked his job very much. He explained
that when he got home from school he changed his clothes, ate a
snack and played video games. When Garcia asked Carl if he was
ever left in charge of caring for his little brother, he first
said that he did not know and later said, "hold up, hold up, oh
maybe sometimes." He could not recite his mother's phone number
or his home phone number, and had trouble answering the question
whether his mother was there when he got home from school. Carl
did tell Garcia that he loved his mother very much.
Garcia testified that she later met with defendant and
attempted to explain why Carl was not an appropriate independent
caregiver for Valentine. Defendant told Garcia that she
disagreed. At that meeting in July 2013, defendant told Garcia
that there was still no land line in the home and while
6 A-5370-13T3 defendant had a cell phone, Carl did not.
Ronald Wasserman, a Senior Community Program Specialist for
DDD, testified concerning an assessment he performed on Carl in
April 2012. Defendant had called DDD to register Carl so that
he could obtain services once he turned twenty-one, and she
participated in the assessment. Wasserman explained that the
purpose of the assessment was to verify that Carl was
developmentally disabled and eligible for services from DDD, as
opposed to another agency such as the Division of Mental Health.
Wasserman found that Carl has "substantial functional
limitations" in his capacity for independent living, learning,
self-direction, and receptive and expressive language. His full
scale IQ was measured at 51. His overall capacity for
independence was like that of a seven-year-old child. Wasserman
was "[a]bsolutely" satisfied that Carl qualified for DDD
services and that he would receive those services for the rest
of his life. In Wasserman's opinion, Carl will never be able to
live on his own.
Ms. Tillis, an assistant principal at Carl's school,
testified that Carl has attended the school for four-and-a-half
years. His studies include English, Math, Music, Art, Physical
Education, Health and Computers. The school does not offer a
first aid course, but he has studied very basic safety skills in
7 A-5370-13T3 health class. Carl also participates in a community work
program where he is assigned to jobs at an environmental center
and at a local hospital.
According to Tillis, Carl is a very sweet boy who tries
hard and wants to be successful in school. He is
developmentally delayed, has a below average IQ, and functions
well below age level both academically and cognitively. He is
performing well academically but his classes are taught at the
second to third grade level. He has made progress slowly, but
his cognitive ability is that of a second or third grade
student.
Tillis explained that when Carl gets upset he has trouble
expressing himself. He may be confused by questions and can
become emotional when he gets into difficulty. He receives very
strong supervision at school. He is bused to and from school,
and he cannot leave the school grounds unaccompanied. A job
coach stays with him at his work assignments, and does not leave
him alone for more than ten minutes at a time.
Carl was subpoenaed by the Division to testify at the fact-
finding hearing. He was able to identify the town where he
lived, and said he wanted to "find a real job" when he finishes
school. When asked if he ever talked to a policeman, he
responded, "No. Never . . . . Please, next question." He
8 A-5370-13T3 became very upset when asked about the events of June 12, 2013,
saying he did not remember a police officer coming to his house,
but then saying, "I thought a robber." Judge Kenny attempted to
soothe Carl, but the attorneys' arguing increased his agitation.
Carl exclaimed, "I don't want to hear this." At that point,
Judge Kenny took over the questioning to put Carl at ease.
Carl told the judge he likes working at the environmental
center where his job involves "[c]ut—cut, tracing. No. Cut
footprints and–yeah, footprints, a lot of things. . . . [D]o
more ventures outside, pick up leaf, acorn and pinecones." He
said he preferred his job at the hospital where "[y]ou deal with
trays . . . . You do the stocking of drinks and stuff, the
utensils, napkin, fork, knife . . . [s]weeping floors." He said
he was good at basketball and he played "probably defense or
offense."
When the Deputy Attorney General said she would like to ask
Carl some questions about his baby brother, he responded, "Okay.
Do that crap." Carl testified that he likes playing with
Valentine, and he feeds him baby food that he gets from the
pantry at his house. Carl could not remember how old Valentine
is, but did recall that Valentine likes to eat "[t]hat little
vegetable soup." He had trouble explaining what Valentine
drinks. He said that to make a bottle for the baby, he would
9 A-5370-13T3 "[m]easure the formula" and "[h]eat it up in the microwave and
give it to him." He thought that he heated it in the microwave
for "25 minutes."
Carl testified that Valentine has never started coughing
while eating baby food, but if he did, Carl would "give him the
vegetable juice." Carl changes Valentine's diapers without his
mother's help: "I like to change my little baby brother's
diaper." He likes to spend one-on-one time with his brother.
If Valentine cries, Carl gives him a bottle or plays with him.
Carl stated that he "[p]robably" watches Valentine when his
mother is not home. He never leaves the house with the baby.
He testified that he had an iPhone and a house phone and was
able to tell the judge his cell phone number. If something bad
happened while he was watching Valentine, Carl would call 911
and tell them that there is "[a] fire at my house." Carl stated
that if a police officer came to the house, he would not answer
the door. When asked again if he would answer the door for a
police officer, Carl replied, "No. Never. Wow."
Carl became agitated when the Law Guardian started cross-
examination, saying, "Oh, God. Her?" He responded to questions
with "Why you ask that question?", "Now you got the question.
Go ahead. Go ahead. Go ahead.", and "Ask your stupid
questions." He also had a "laughing fit" in the midst of
10 A-5370-13T3 questioning.
Carl was more cooperative with defense counsel, testifying
that there is a baby monitor at his house and that he knows how
to use it. He also described how he would make a call using
numbers stored on his cell phone. He explained Valentine's
feeding schedule, how he bathes the baby, and how he checks the
baby's temperature with a thermometer. He said that Valentine
loves him but is not attached to his mother.
Zachary B., who testified on behalf of defendant, stated
that he has known Carl his entire life and has often seen him
interacting with Valentine. Zachary observed Carl preparing
Valentine's bottle, feeding him, and changing his clothes.
Sometimes defendant would go out, leaving Carl and Valentine
home with Zachary and Zachary's father. During those occasions,
Carl took care of Valentine for the whole day and never asked
for any help.
Elizabeth B., a long-time friend of defendant, also
testified on defendant's behalf. Elizabeth stated that Carl
loves Valentine very much and is good with him. She has seen
Carl taking care of Valentine ever since the baby's birth and
has never observed him doing anything inappropriate. He knows
how to give Valentine a bath and to set up the baby monitor in
Valentine's room.
11 A-5370-13T3 Vincent Nardone testified that he was at defendant's house
on June 12, 2013, doing some maintenance work in the garage and
yard. He recalled that defendant left the house around 7:00
p.m. and returned home with the baby at 7:30 p.m. Nardone left
for the day at 8:00 p.m. At that point, there were no police
officers at the house.
Dr. Lidia Dengelegi Abrams, a psychologist with
considerable relevant experience, evaluated Carl at defendant's
request in October 2013 to assess whether he could safely care
for Valentine. She testified that for the first half hour of
the appointment, she spoke with Carl while he held Valentine on
his lap. Later, Carl gave the baby to defendant so that he
could take a battery of tests that Abrams had prepared.
Abrams observed that Carl was pleasant and cooperative. He
focused on Valentine, held him appropriately, and was very aware
of his needs. In fact, even after Valentine was given back to
defendant, Carl was more attuned to what the baby was doing in
the waiting room than to what Abrams was saying. Abrams
concluded that Carl has an extremely strong bond with Valentine.
Indeed, it appeared to Abrams that the baby was more attached to
Carl than to defendant. At the end of the visit, Carl took
Valentine to defendant's car, locked him into his car seat, and
then waited for defendant to finish speaking to Abrams. She
12 A-5370-13T3 observed that Carl handled the baby very well and there was an
easy relationship between the two.
With regard to the testing, Abrams found that Carl has a
cognitive impairment and that his basic skills in reading,
writing, and math are very poor. She found that he is in the
mildly mentally disabled range with an IQ of 62. According to
Abrams, individuals with Carl's IQ can work and can do many
other things. While some people with cognitive impairments have
other issues such as behavioral outbursts or psychiatric
disorders, Carl does not. He is emotionally and mentally
stable. Abrams testified that a person with a cognitive
impairment may be capable of caring for a baby under the right
circumstances:
A certain amount of cognitive ability is necessary to take care of another person. And the environment where that is done, if it's a more complex environment, then it's harder to take care of that person. If it's a simple environment where the individual has learned how to handle all the potential situations that might come up, then such a high IQ is not required.
Abrams opined that even though Carl's academic skills are
at a second-grade level, he is at an adult level in terms of his
understanding of the importance of keeping his brother safe.
While Abrams agreed with DDD's determination that Carl has a low
IQ and is "substantially functionally limited[,]" she did not
13 A-5370-13T3 think that his limitations impacted his ability to care for
Valentine "within the constraints of his home." She believed
that it was safe for Valentine to be left in Carl's care on June
12, 2013. In rendering that opinion, Abrams stated her
understanding that Carl had "a long history of caring for [the]
baby" and "has never done anything inappropriate." She also
explained her understanding that Carl did not "have panic
attacks."
Abrams further based her opinion on her belief that Carl
was able "to call his mother or 911 if there was something
wrong." She was told by Carl that when caring for the baby, he
"always has his phone in his hand." She explained her
understanding that during the June 12, 2013 incident, Carl saw
one or more strangers at the door, and rather than answering the
door, he locked himself in a closet with the baby monitor and
called his mother. She opined that he did so "[b]ecause he
didn't know who the people were, and he didn't want to deal with
them" and "because he understands his own limitations and
doesn't want to expose himself and his brother to situations
which he may not be able to handle."
Abrams opined that Carl could care for his baby brother by
himself "in his own home . . . with intermittent phone calls at
least from his mother." She recommended that to safely care for
14 A-5370-13T3 the baby, Carl should always have a working phone and defendant
should always be available by phone to respond to a potential
problem.
On cross-examination, Abrams said she thought it was
established that Carl had a cell phone on the day of the
incident, had hidden in the closet, and had called his mother.
However, her understanding of what happened that night was based
on information that defendant had provided. She admitted that
if Carl had been left alone with Valentine without a working
phone it would not be acceptable: "[T]hat would be endangering
the welfare of [the baby] if . . . [Carl] was left in the home
without a phone."
Abrams admitted that Carl had difficulty explaining his
daily routine to her, he had trouble telling time, and he was
very dependent on having a set daily routine. If there were "a
difficulty thrown into that routine," she admitted that "[h]e
might have a problem." She was "not sure" what Carl would do if
there were a fire in the house and a fire fighter came to the
door. She testified that Carl "could be further educated on
that, and then he would know" to open the door for a police
officer or fire fighter. Otherwise, in an emergency, they would
have to "break the door down" to get into the house.
15 A-5370-13T3 When asked what Carl would do if the baby started choking,
Abrams responded: "Not sure what he would do in that case. It's
a good question." When further asked, "Do you think he would
panic?" she replied, "I don't know what he would do." Abrams
also admitted that Carl typically "retreats" when he is "unhappy
with a situation." Nevertheless, she did not think he would
ever leave the baby alone, because his love for the baby would
be stronger than his need to retreat.
Although she based her opinions, in part, on Carl's past
history of successfully caring for the baby, Abrams admitted on
cross-examination that she did not know on how many occasions
prior to June 12, 2013 Carl had been left alone to care for the
baby, or for how long he was left alone with him. Apparently she
never asked defendant or Carl that question. She stated, "I'm
just guessing here."
Defendant also testified at the hearing. According to
defendant, when Garcia visited her home to investigate the May
18, 2013 complaint, Garcia told her that V.M., Sr., had alleged
that she left Carl alone with the baby for days at a time and
left no baby care supplies in the house. According to
defendant, she told Garcia that she only allowed Carl to watch
the baby if she ran out for "an occasional errand or nearby to a
grocery store." Contrary to Garcia's testimony, defendant
16 A-5370-13T3 testified that when Garcia visited her home on May 19, she was
able to interview Carl. Defendant testified that Garcia
inspected her entire house and left without expressing any
concerns. Defendant received a letter from the Division in July
2013 notifying her that the May 18, 2013 allegations were
determined to be unfounded.4
As to the events of June 12, 2013, defendant testified that
she picked Valentine up from daycare at about 7:00 p.m. She got
home with him at 7:30 p.m., started a load of laundry, changed
him into his pajamas, gave him a bottle and put him down for bed
around 7:50 p.m. At that time, Carl and Nardone were loading
trash into Nardone's truck. Defendant got into her car to go to
the grocery store to buy bread and milk. She testified that she
left her house at about the same time that Nardone left.
4 The July letter, which is in the record, stated that the May 18 neglect allegations were unsubstantiated but that the Division would continue to provide services to defendant and her family. However, the Division's contemporaneous reports corroborate Garcia's version of her visit to the home, particularly her inability to interview Carl. Although Garcia was not permitted to testify about details, the allegation about Carl caring for the baby was but a small part of the May investigation. Garcia was also investigating other serious allegations that V.M., Sr. had made about defendant, including that she used illegal drugs, engaged in prostitution, and involved Carl in her prostitution business. We have not considered the substance of any of those allegations; however, in context, the Division's overall determination that child abuse or neglect was not substantiated did not signal approval of defendant leaving the baby alone with Carl.
17 A-5370-13T3 Before she left she told Carl that Valentine was asleep for the
night, she would not be gone long, and he should "just call me"
if he needed her.
Defendant asserted that she always had a working telephone
at her house including on the night of June 12, 2013. She
stated that she had three land-line phones, one in the kitchen,
one in her bedroom and one in Carl's room. According to
defendant, Officer Pearson used one of the kitchen telephones to
call his supervisor that night. She also testified that Carl
had an iPhone with her telephone number and other important
phone numbers pre-programmed into it.
According to defendant, she was only gone from the home for
a total of fifteen minutes; she contended that the Division
report memorializing her admission that she was at the store for
thirty-five to forty minutes was the result of a
"miscommunication." Defendant testified that she left the house
at about 8:00 p.m., and called Elizabeth B. on her cell phone
while she drove to a local ShopRite supermarket. Defendant
testified that she walked into the ShopRite while on the phone
with Elizabeth. A call then came in from Carl, who said that
there was an intruder in the house and he thought it was a
robber. Defendant "clicked" to Elizabeth to tell her that she
had to go and then "clicked" back to Carl but he had already
18 A-5370-13T3 hung up. Defendant testified that she abandoned her groceries
and "jumped" in her car, and was driving home when she got a
call from Pearson. She arrived home at 8:15 or "8:20 at the
max." When she arrived, she found that Carl had locked himself
in his bedroom closet, with the baby monitor and his cell phone.
Defendant testified that she was very angry with Pearson,
and berated him for frightening Carl. She denied ever telling
Pearson that she did not have a land-line phone in the house.
She testified that she had a "miscommunication" with the
Division caseworker, who thought Valentine had been left with
Carl for a longer period than he really was. The caseworker
said that Carl was unfit to supervise the baby, and defendant
signed the safety plan that the caseworker prepared even though
she disagreed with it.
Defendant testified that Carl has been caring for Valentine
ever since the baby was born. Carl is very attuned to the baby,
and loves to play with him. She has observed Carl changing the
baby's diapers, feeding him, and mixing formula. He helps with
the baby's baths and knows how to take the baby's temperature.
He can warm food in the microwave and cook simple things if he
has directions. Further, Carl has known the basic instructions
for emergencies ever since he was seven years old, and knew how
to call her in case of an emergency.
19 A-5370-13T3 Defendant acknowledged that Carl has significant academic
limitations, but insisted that he has strong daily living
skills. He does not wander from the house and does not put
himself in situations that he cannot handle. She testified
that, within the last year, the police were probably at her home
four or five times due to problems she was having with V.M.,
Sr., and when Carl was at home, he reacted appropriately by
taking the baby and going to his room.
Defendant testified that she is a "corporate franchise
representative" who formerly owned three fitness centers. She
testified that she would not be able to find anyone to invest in
her fitness centers now that she has a substantiated finding of
child neglect on her record.
On February 21, 2014, Judge Camille M. Kenny issued a
comprehensive oral opinion, finding by a preponderance of the
evidence that defendant neglected the baby by leaving him alone
with Carl. Judge Kenny noted that everyone agreed that
Valentine was "happy, healthy, clean, fed, bathed, [and]
clothed." However, she found that defendant was grossly
negligent in leaving Valentine home alone with Carl, whom
defendant knew to be cognitively impaired and developmentally
20 A-5370-13T3 disabled.5
In rendering her opinion, the judge found that the
Division's witnesses were credible in their recollections of the
events that occurred on June 12, 2013, and in their observations
and assessments of Carl. On the other hand, the judge found
that defendant's testimony was not credible. The judge also did
not accept the testimony of defendant's expert witness, Dr.
Abrams, because her opinions were premised on defendant's
inaccurate version of events.
The judge noted that her impressions of Carl were
consistent with the observations made by Pearson, Garcia and
Tillis concerning his limited cognitive abilities and his
inability to handle stressful situations. His typical mode of
dealing with difficult situations was to run away and hide, as
he did when Pearson arrived at the house. The judge noted
Carl's testimony that he would "never" allow a police officer to
enter the house.
The judge found that, while Carl could feed, diaper, and
play with the baby "[u]nder his mother's supervision," he was
5 The judge made clear that she did not consider any inadmissible hearsay in reaching her decision. During the trial, the judge stated that she would disregard hearsay statements contained in the Division's case records. She also precluded the Division from admitting in evidence reports containing prejudicial hearsay statements from defendant's former boyfriend, V.M., Sr., with whom defendant had a hostile relationship.
21 A-5370-13T3 unable to safely care for the child alone. The judge found that
Carl did not like confrontation of any sort, had difficulty
communicating when he was upset, and became upset very easily.
Most importantly, Judge Kenny found that Carl would not be able
to handle an emergency situation, should one arise while he was
caring for Valentine, and that defendant exposed the baby to a
serious, unjustified risk by leaving Carl alone with the baby
for an extended period of time.
Judge Kenny credited Pearson's account of the amount of
time defendant was gone from the house on the evening of June
12. She concluded that defendant did not come home until at
least forty minutes after Pearson arrived at the house, meaning
that Carl was alone with the child for more than an hour. The
judge found defendant's testimony on the timing issue to be
completely incredible. She did not believe that defendant was
able to drive from her house in Union County to a ShopRite store
several towns away and then return home within fifteen minutes. 6
Nor did she believe defendant's testimony that she only intended
to run out for a few minutes to buy a few items.
The judge also did not believe defendant's testimony that
6 During defendant's testimony, the judge asked her a series of questions which elicited defendant's turn-by-turn explanation of her route from her home to the ShopRite, including her admission that she needed to pass through at least two other towns between her home and the municipality in which the store was located.
22 A-5370-13T3 Pearson phoned her around 8:15 p.m., shortly after she entered
the ShopRite, to tell her to return home. Rather, she believed
the officer's credible testimony that he did not even arrive at
defendant's home until 8:50 p.m., that a police dispatcher
called defendant after finding her phone number in a police
file, and that it took defendant forty minutes to arrive home.
The judge did not believe defendant's testimony that Carl phoned
her that evening, crediting instead Pearson's testimony that
Carl did not know how to reach his mother or call for help.
Judge Kenny found that there were no extenuating
circumstances to excuse defendant's leaving the baby with Carl
for an extended period of time. She noted that if the baby were
sick, it might be reasonable to leave Carl in the car with the
baby for a few minutes while defendant ran into a pharmacy to
buy medicine. But there was no emergency on the evening of June
12. The judge noted that if defendant needed groceries, she
could have picked them up on the way home with Valentine, whose
daycare center was near the ShopRite.
The judge did not credit Abrams' expert opinion, finding
that it was based on a misapprehension of the facts. Contrary
to what Abrams believed to be the case, the judge found that
Carl did not hide in a closet and call his mother, he did not
know how to call 911 on the evening of June 12, 2013, defendant
23 A-5370-13T3 was not readily available to him by phone and Carl was not able
to communicate with Officer Pearson in any helpful way. The
judge found that Carl was simply unable to handle the situation
with which he was presented. The judge noted that "any
reasonable 12-year-old . . . could have handled that situation
and, in addition, been able to call his mother. [Carl] can't do
that."
The judge concluded that a reasonable person would not have
left Valentine alone with Carl for a prolonged period of time on
June 12, 2013, and that defendant was grossly negligent in doing
so.
II
Under Title 9, an "abused or neglected child" includes a
child whose "physical . . . condition . . . is in imminent
danger of becoming impaired" as a result of his parent's failure
"to exercise a minimum degree of care . . . in providing the
child with proper supervision[.]" N.J.S.A. 9:6-8.21(c)(4)(b).
Even if a child is not actually harmed, "a finding of abuse and
neglect can be based on proof of imminent danger and substantial
risk of harm." N.J. Dep't of Children & Families v. A.L., 213
N.J. 1, 23 (2013). Under those circumstances, "the Division
must show imminent danger or a substantial risk of harm to a
child by a preponderance of the evidence." Ibid. "Moreover,
24 A-5370-13T3 '[c]ourts need not wait to act until a child is actually
irreparably impaired by parental inattention or neglect.'"
Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 178
(2015) (quoting In re Guardianship of DMH, 161 N.J. 365, 383
(1999)).
A parent "'fails to exercise a minimum degree of care'"
when her conduct is grossly negligent or where she "'recklessly
creates a risk of serious injury'" to the child. Id. at 179-80
(citation omitted). "Any allegation of child neglect in which
the conduct of the parent or caretaker does not cause actual
harm is fact-sensitive and must be resolved on a case-by-case
basis." Id. at 192.
In reviewing Judge Kenny's decision in this Title 9 case,
we do not write on a clean slate. We may not disturb the
judge's factual findings so long as they are supported by
sufficient credible evidence. N.J. Div. of Child Prot. &
Permanency v. C.W., 435 N.J. Super. 130, 139 (App. Div. 2014).
And we owe particular deference to the judge's evaluation of
witness credibility. N.J. Div. of Youth and Family Servs. v.
F.M., 211 N.J. 420, 448 (2012).
We afford particular deference "to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family."
25 A-5370-13T3 This "'feel of the case' . . . can never be realized by a review of the cold record." Consequently, a family court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice[.]'"
[C.W., supra, 435 N.J. Super. at 139-40 (citations omitted).]
A trial judge's legal conclusions are subject to plenary
review. Id. at 140 (citing Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995)). We review a trial
judge's evidentiary rulings for abuse of discretion. State v.
J.A.C., 210 N.J. 281, 295 (2012). We also apply the abuse-of-
discretion standard to a judge's decision to grant or deny a
mistrial. State v. Smith, 224 N.J. 36, 47 (2016).
On this appeal, defendant presents the following points of
argument for our consideration:
POINT I.
THE TRIAL COURT'S FINDING OF GROSS NEGLIGENCE AS TO K.G. WAS IN ERROR AND SHOULD BE GROUNDS FOR REVERSAL OF THE FINDING OF ABUSE AND NEGLECT AS TO K.G. UNDER N.J.S.A. 9:6-8.21(c)(4)(b).
A. THE TRIAL COURT'S ANALYSIS OF THE FACTS AS IS APPLIED TO THE LAW WAS IN ERROR.
B. THE TRIAL COURT'S RELIANCE UPON THE COURT'S DECISION IN D.C.P.P. V. E.D.O. WAS IN ERROR AND SHOULD BE GROUNDS FOR REVERSAL OF THE TRIAL COURT'S FINDING AS TO K.G.
26 A-5370-13T3 C. THE TRIAL COURT ERRED IN CONSIDERING THE DDD DETERMINATION OF SUBSTANTIAL COGNITIVE IMPAIRMENT AND THE ECLC CLASSIFICATION OF [CARL] AS A BASIS OF A FINDING OF GROSS NEGLIGENCE AS TO K.G.
D. THE TRIAL COURT ERRED IN DISCOUNTING THE OPINION OF DEFENSE EXPERT, DR. LIDIA ABRAMS, PHD., AND IN FINDING GROSS NEGLIGENCE AS TO K.G. AND, SHOULD BE GROUNDS FOR REVERSAL AS TO K.G.
POINT II.
THE TRIAL COURT'S DETERMINATION THAT THE DIVISION MET ITS BURDEN OF PROOF BASED ON A GROSS NEGLIGENCE STANDARD, WHERE NO ACTUAL HARM, IMMINENT DANGER OR SUBSTANTIAL RISK OF HARM WAS ESTABLISHED, SHOULD BE THE BASIS OF REVERSAL AS TO K.G.
POINT III.
THE TRIAL COURT'S DENIAL OF THE MOTION FOR A MISTRIAL WAS IN ERROR AND THE TRIAL COURT'S DENIAL OF THE DEFENSE'S APPLICATION TO REOPEN CROSS EXAMINATION OF DCPP WORKER GARCIA WAS IN ERROR.
POINT IV.
THE TRIAL COURT ERRED IN NOT PERMIT[T]ING THE DEFENSE TO INTRODUCE CERTAIN TESTIMONY OF WITNESSES AS TO ALL THE DAY CARE RECORDS AND MEDICAL RECORDS OF THE MINOR CHILD AND OF [CARL].
POINT V.
K.G.'S NAME SHOULD BE ORDERED REMOVED FROM THE CENTRAL REGISTRY BECAUSE THE CONCLUSION OF NEGLECT IS NOT SUPPORTED BY THE EVIDENCE AND THE STIGMA WILL DISADVANTAGE HER.
27 A-5370-13T3 We find no merit in any of those contentions. Defendant's
appellate arguments rely heavily on her version of the facts,
which the judge rejected. Having reviewed the record, we find
no basis to disturb Judge Kenny's evaluation of witness
credibility. Her findings of fact are supported by sufficient
credible evidence and her decision is legally correct in light
of those factual findings. See C.W., supra, 435 N.J. Super. at
139-40.
Turning to the central issue in the case, we find no reason
to second-guess the judge's conclusion that defendant was
grossly negligent in leaving the baby alone with Carl, who was
cognitively impaired and unable to safely care for the child.
Carl's incapacity was demonstrated through the testimony of
multiple witnesses, including the assistant principal of his
school, a DDD evaluator, his own trial testimony, and his
conduct on the evening of June 12, 2013. It is clear from this
record that leaving Valentine alone with Carl could have
resulted in serious harm to the baby. The fact that Carl was
able to care for the child under his mother's supervision did
not mean that it was safe to leave Carl in sole charge of the
baby for extended periods of time. Whether defendant's conduct
resulted from extremely poor judgment or willful blindness to
the danger is immaterial; her actions constituted child neglect
28 A-5370-13T3 within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). E.D.-O.,
supra, 223 N.J. at 178-79.7
Moreover, this was neither an isolated lapse in parental
judgment nor a one-time response to an emergency situation.
Rather, based on defendant's own testimony and her statements to
the Division, she made a practice of leaving Carl in sole charge
of the child, while she shopped and ran other errands. That
conduct constituted gross negligence because, as this record
illustrates, Carl lacked the capacity to safely care for the
baby without supervision.
None of the cases on which defendant relies are on point,
because they involved understandable one-time mistakes, simple
as opposed to gross negligence, or insufficient proof of risk to
the child. See Dep't of Children & Families v. T.B., 207 N.J.
294 (2011); N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J.
Super. 159 (App. Div. 2009); A.L., supra, 213 N.J. at 8-9.
For example, in T.B., the court overturned a finding of
child neglect against a mother who, on one occasion, "left her
four-year-old child unsupervised for two hours under the
mistaken belief that his grandmother was home." T.B., supra,
7 The record strongly suggests that defendant was aware of Carl's significant limitations, which she sought to conceal from the Division during its May investigation. See N.J. Div. of Child Prot. & Permanency v. K.N.S., 441 N.J. Super. 392, 399 (App. Div. 2015).
29 A-5370-13T3 207 N.J. at 296. The Court acknowledged that "[t]here exists a
continuum between actions that are grossly negligent and those
that are merely negligent" and a "parent's conduct must be
evaluated in context based on the risks posed by the situation."
Id. at 309.
The Court considered that, while it was "a close case," the
mother's conduct was not grossly negligent. "This is not a
situation in which she left her four-year-old son at home alone
knowing there was no adult supervision." Ibid. Instead, based
on longstanding arrangements with the grandmother, the mother
believed that the grandmother was home in bed, because her car
was parked outside, and therefore believed she could safely
leave the child tucked in bed while she went out to dinner.
However, unknown to the mother, the grandmother had unexpectedly
left the house. "What occurred on the date in question was
totally out of the ordinary." Id. at 310. The Court concluded
that the defendant was negligent in not making absolutely sure
that the grandmother was home, but she was not grossly
negligent. Ibid.
Similarly, in J.L., a mother was negligent but not grossly
negligent in allowing her young children to walk home from a
playground near the family's home. J.L., supra, 410 N.J. Super.
at 161. She was able to see the children at all times on their
30 A-5370-13T3 trip home, but when they entered the house, the door
unexpectedly slammed shut without her knowledge. The children
were frightened and the older child called 911. After
considering the entire context of the incident, we concluded:
[W]e are satisfied, in this case, that J.L.'s conduct, although arguably inattentive or even negligent, did not meet the requisite standard of willful or wanton misconduct. In this regard, we note that the children were almost four and almost six years of age, respectively. They were returning to a home that was within view of their mother, and they were not required to cross any streets to reach it. The home, itself, was deemed safe by [the Division], and with the exception of this incident, J.L.'s conduct toward her children was deemed appropriate.
[J.L., supra, 410 N.J. Super. at 168.]
We also considered that the mother had trained her children
to leave the door ajar if they walked home from the playground
ahead of her, that the door had unexpectedly swung shut and
locked on this occasion, and that the older child knew how to
call 911 and had done so. "These circumstances suggest that the
child exercised good judgment and was well trained by his
parents to deal with the crisis that he perceived to exist."
Id. at 169.
Most recently, in E.D.-O., the Court addressed a case
where, on one occasion, a mother left her sleeping baby
unattended in a car for about ten minutes while she shopped in a
31 A-5370-13T3 nearby store. E.D.-O., supra, 223 N.J. at 169. The Court
rejected the Division's application of "a categorical rule" that
any parent who leaves a child unattended in a car must be found
to have committed gross negligence under Title 9. Id. at 192-
93. Rather, the Court held that the totality of the
circumstances must be considered:
Those circumstances include but are not limited to the actual distance between the vehicle and the store, [the mother's] ability to keep the vehicle in view, the length of time she left the child unattended, the number of vehicles and persons in the area, the ability to gain access to the interior of the car, and the temperature inside and outside the car.
[Id. at 194.]
Based on our reading of the foregoing cases, we derive some
principles appropriate to this case. We acknowledge that
parents are called upon to make many judgment calls in raising
their children, and deciding on a child care provider is one of
them. Under the minimum degree of care standard, in evaluating a
parent's decision that someone is capable of caring for a child
in his or her absence, the age and abilities of the child are
important factors, as are the age and abilities of the potential
caretaker, considered with all other relevant circumstances.
Whether there is an unacceptable risk of harm and whether the
parent has been grossly negligent are fact sensitive issues that
32 A-5370-13T3 must be resolved on a case by case basis, in light of the
legally competent evidence.
In this case, defendant left a helpless infant in the care
of Carl who, while he was a caring and loving brother, had the
functional capacity of a seven-year-old and lacked sufficient
mental capacity to safely care for the baby. There is a quantum
difference between allowing a young child, or a person with a
very limited mental capacity, to act as a mother's helper under
supervision, and leaving that individual alone to care for a
baby.
Unlike T.B., J.L., or E.D.-O., this was not an accidental
or unusual circumstance. Defendant made a practice of leaving
the baby alone with Carl. In this case, she left Carl in sole
charge of the baby for an extended period of time. Further,
unlike A.L., where the Division failed to prove the risk of harm
to the child, here there was ample evidence to support Judge
Kenny's finding that the baby was placed "in peril." See A.L.,
supra, 213 N.J. at 8-9.
Defendant contends that a finding of gross negligence is
unwarranted, and her name should not be placed on the Central
Registry pursuant to N.J.S.A. 9:6-8.11, because no actual harm
befell the baby, and at the time of the fact-finding hearing he
33 A-5370-13T3 was well cared for and in no danger. We cannot agree. As the
Supreme Court recently held:
We reject the interpretation of the definition of abuse and neglect, N.J.S.A. 9:6-8.21(c)(4)(b), advanced by the mother that the statute requires a finding that the parent's conduct presents an imminent risk of harm to the child at the time of fact- finding rather than at the time of the event that triggered the Division's intervention. Such an interpretation is not supported by the text of the statute, the legislative history, the Court's long-standing interpretation and application of the statute, or common sense.
[E.D.-O., supra, 223 N.J. at 170.]
Defendant's remaining appellate arguments are without
sufficient merit to warrant discussion beyond the following
comments. R. 2:11-3(e)(1)(E). We find no abuse of discretion
in the judge's evidentiary rulings and case management
decisions. Defendant's mistrial motion was filed on the second
day of the trial, by a newly-retained attorney who essentially
wanted either a mistrial or a re-run of the first trial day.
The judge appropriately denied the motion, for the reasons she
stated on the record on February 6, 2014. Likewise, the judge
thoroughly addressed defendant's evidentiary arguments, and
based her decision on legally competent evidence.
Finally, we cannot agree with defendant's argument that her
name should not be placed on the Central Registry because it may
34 A-5370-13T3 harm her business interests:
[W]hether 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. N.J.S.A. 9:6-8.11.
[E.D.-O., supra, 223 N.J. at 195.]
Affirmed.
35 A-5370-13T3