Opinion
DOCKET NO. A-5316-12T3
06-09-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.T., Defendant-Appellant. IN THE MATTER OF K.W. and Ka.W., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Schiendlin, Assistant Attorney General, of counsel; Renard L. Scott, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Janet L. Fayter, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-090-13. Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Schiendlin, Assistant Attorney General, of counsel; Renard L. Scott, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Janet L. Fayter, Designated Counsel, on the brief). PER CURIAM
Defendant C.T. (Catherine) appeals the Family Part's March 7, 2013 order finding that she neglected her then five-year-old son K.T. (Kyle) because she allowed him to be left home alone for over fifteen minutes, placing him at risk of harm. We affirm.
We use pseudonyms to refer to the individuals in this case for the purposes of confidentiality and clarity.
I.
We discern the following facts and procedural history from the record on appeal.
On October 23, 2012, the Division of Child Protection and Permanency (Division) received a referral from the West Deptford Police Department reporting that Kyle had been found by a neighbor crying in a courtyard outside of Catherine's apartment. The Division's investigation disclosed that Catherine had left her two children in her brother's care while she was working. She told her brother to leave Kyle asleep in the apartment while he took four-year-old daughter Ka.T (Karen) to preschool, which was approximately two miles from the apartment. Kyle, who was wearing only boxer shorts, had apparently woken up and walked out of the apartment into the courtyard, where he was found by the neighbor. The courtyard was not totally enclosed, and Kyle could have, but did not, leave the grounds of the apartment complex. Kyle told a Division caseworker that this was not the first time he had been left alone.
The record reflects that the family had been the subject of two prior referrals, both of which had been determined to be unfounded. As a consequence, they are not relevant to this appeal.
The Division effectuated an emergency removal that day, and placed both children in a resource home. A verified complaint seeking custody, care, and supervision was filed on October 25, and the Family Part issued an order to show cause (OTC) giving the Division temporary custody of the children. The order also provided for parenting classes and a family team meeting with Catherine to discuss safety and child-care issues. The children were to be returned to Catherine by October 29 at the latest.
Although the children's father was named in the complaint, he is not a party to this appeal.
The judge continued care and supervision with the Division on November 29, the return date of the OTC. At a status conference on January 30, 2013, Catherine agreed to accept services from the Division, including a psychological evaluation and follow-up counselling.
The fact-finding hearing was held on March 7. The Division offered its case documents, and a West Deptford police officer to authenticate several police reports. The judge found, by a preponderance of the evidence, that Catherine neglected Kyle when she instructed her brother to leave him "unsupervised and home alone[,] exposing the child to risk of harm." The implementing order, which terminated the litigation, was filed that day. This appeal followed.
II.
On appeal, Catherine argues that there was insufficient evidence in the record to support the trial judge's finding of neglect under the applicable legal standard.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless 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. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
Title Nine is concerned with "noncriminal proceedings involving alleged cases of child abuse or neglect." N.J.S.A. 9:6-8.22. The purpose of the act is
to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.The standard of proof in a Title Nine case is "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1).
[N.J.S.A. 9:6-8.8(a).]
According to Title Nine, an abused or neglected child includes one
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 . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof.
[N. J.S.A. 9:6-8.21(c)(4).]The language in N.J.S.A. 9:6-8.21(c)(4) concerning failure "to exercise a minimum degree of care" has been interpreted by our Supreme Court as referring to "conduct that is grossly or wantonly negligent, but not necessarily intentional" and as the "reckless disregard for the safety of others." N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305-06 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-79 (1999)); see also N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 254-56 (App. Div. 2012). Simple negligence, however, does not qualify as abuse or neglect. T.B., supra, 207 N.J. at 306-07.
There is no requirement that the parent actually anticipate that harm will result from the conduct at issue.
Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result. McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970). Because risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful. Ibid.; Egan v. Erie Railroad Co., 29 N.J. 243, 254-55 (1959). So long as the act or omission that causes injury is done intentionally, whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant. See McLaughlin, supra, 56 N.J.
at 305. Knowledge will be imputed to the actor.
As our previous cases have recognized, the difference between merely negligent conduct and wanton and willful misconduct cannot be described with mathematical precision. Ibid. "Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use." Fielder v. Stonack, 141 N.J. 101, 124 (1995). The label turns on an evaluation of the seriousness of the actor's misconduct. McLaughlin, supra, 56 N.J. at 306. Although it is clear that the phrase implies more than simple negligence, it can apply to situations ranging from "slight inadvertence to malicious purpose to inflict injury." Id. at 305; Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 277 (1960) (stating wantonness is an advanced degree of negligent misconduct).
Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Fielder, supra, 141 N.J. at 123; McLaughlin, supra, 56 N.J. at 305. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes. Ibid.
[G .S., supra, 157 N.J. at 178-79.]
The necessary inquiry into whether an act or omission is grossly negligent or reckless can be difficult to make at times and is extremely fact sensitive. See id. at 178. In New Jersey Department of Youth & Family Services v. J.L., 410 N.J. Super. 159, 161-62, 168-69 (App. Div. 2009), we found that a mother, who allowed her young sons to walk home alone from a playground to their condominium, which she could see from the playground, was inattentive or perhaps negligent, but her conduct did not meet the standard of gross negligence or recklessness.
In T.B., supra, 207 N.J. at 309-10, our Supreme Court determined that a mother who left her four-year-old child unsupervised in her home under the mistaken assumption that his grandmother was there, although plainly negligent for not verifying that assumption, was not grossly negligent or reckless in her actions. However, the Court clearly differentiated the facts of that case from a fact pattern that almost exactly mirrors the undisputed facts of the case before us. "This is not a situation in which [the mother] left her four-year-old son at home alone knowing there was no adult supervision." Id. at 309.
In this case, Judge Mary K. White evaluated the undisputed evidence and found that Catherine had instructed her brother, who was supervising her children while she was at work, to leave five-year-old Kyle at home, sleeping and without adult supervision, while he took Karen to preschool approximately two miles away from the home. As a result, Kyle was able to wander out of the apartment into a courtyard, from which he could have left the property and gone into the street. The legal principles outlined above, especially the holding in T.B., fully support Judge White's conclusion that Catherine's conduct amounted to neglect under N.J.S.A. 9:6-8.21(c)(4)(b).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION