Opinion
DOCKET NO. A-1640-14T3
06-03-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.B., Defendant-Appellant, and C.M. and S.W., Defendants. IN THE MATTER OF Sh.B., A.B., Q.W. and M.W., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Salois, Designated Counsel, on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Renard L. Scott, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Gooden Brown. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-131-13. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Salois, Designated Counsel, on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Renard L. Scott, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant S.B. appeals from the Family Part's June 25, 2014 order finding that she had abused or neglected her four young children, Sh.B., Q.W., M.W., and A.B., by leaving them home unsupervised while she went to work. The children ranged in age from eighteen months to seven years at the time of the incident that forms the basis of this appeal. Defendant argues that the trial court's finding of abuse or neglect is not supported by the evidence presented at trial. The Division of Child Protection and Permanency (Division) and the children's Law Guardian join in opposing the appeal. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm.
I.
We derive the following facts from the record. On January 8, 2013, the Division received a referral from defendant's babysitter, M.U. The babysitter told the Division that she had a disagreement with defendant and consequently she would no longer be watching the children when defendant went to work that evening. M.U. further reported that the children's feet and clothes were dirty, they did not sleep in their beds, and she had witnessed defendant hit Q.W. in the mouth, causing him to bleed.
Division caseworker Brian Jakubowski testified at the fact-finding hearing that he responded to defendant's home at approximately 4:50 p.m. There was no answer when he knocked on the door, but he was able to speak to the eldest child, Sh.B., through the window. He asked if defendant was home and Sh.B. shook her head "no." Sh.B. told Jakubowski she could not open the door because "she would get in trouble" and would be "beat" if she did. Sh.B. also indicated there was no one coming to babysit that evening.
Jakubowski contacted his supervisor and the Division decided to conduct an emergency removal of the children due to concerns about inadequate supervision. The local police were summoned and, upon their arrival, Sh.B. unlocked the door. Jakubowski entered the home and found all four children "running around the front room." He asked Sh.B. when defendant would be returning home, and Sh.B. responded around 10 or 11:00 p.m.
After removing the children from the home, Jakubowski called defendant at work to ask why the children were home without adult supervision. He left a message on her voicemail and she returned the call shortly thereafter. Defendant informed Jakubowski there was supposed to be a babysitter at the home. She then told him she would call right back and hung up. After a few more phone calls, defendant told Jakubowski that she ran into a friend from college, Jasmine, at a Rite Aid store earlier that day and asked her if she could watch the children. Defendant said that Jasmine agreed, and they met outside defendant's home where she gave Jasmine fifty dollars and then left to take a bus to work.
Jakubowski asked defendant for any identifying information about Jasmine, such as a last name and phone number, but defendant was unable to provide any. He then asked Sh.B. whether Jasmine had come to the home and Sh.B. said she had not. He also asked whether Sh.B. or any of the children had ever met Jasmine and they could not recall.
Jakubowski met with defendant the next morning at the Division's office. Defendant told the caseworker that she had asked her friend, Monet, to watch the children the previous day, but Monet said she was unable to babysit. Defendant then told Jakubowski that Monet came to her home at the same time Jasmine was there.
Jakubowski called Monet at 11:50 a.m. on January 9, 2013. Monet stated that she went to defendant's house the previous afternoon to "see what was going on" because she had been unable to reach defendant. Monet claimed she saw defendant hand Jasmine the money but that she never saw Jasmine enter the home.
Defendant also testified at the fact-finding hearing. She stated that she originally planned to send the children to their usual babysitter, M.U., while she went to work the evening of January 8, 2013. However, she had a "heated argument" with M.U., who would then no longer watch the children. Defendant stated that the argument started because M.U. "kept doing stuff that I didn't approve to my children, like giving my son Nyquil, and he's only five; and [] [sending] my daughter home without panties on."
Defendant testified that, following this argument, she called around to find someone to watch the children and that it was almost time for her to catch the bus. Eventually she saw her friend Jasmine at Rite Aid. Jasmine agreed to babysit after defendant informed her that she was on "D-Day," meaning she would be fired from her job if she took another sick day.
According to defendant, Monet "came walking around the corner" at the same time Jasmine arrived at the house. Defendant told Monet that Jasmine was going to watch the children, and she asked if Monet could "check up on the kids . . . too[.]" Defendant claimed that Monet agreed to do so. On direct examination, defendant testified:
Q. . . . Now going back to Jasmine, where did you last see Jasmine prior to you going to work? Where [] was she physically at that point?
A. At the Rite-Aid . . .
Q. Okay. Did you not see her later at any point, prior to going to work?
A. No.
Q. So, how was it that you gave her [] the $50?
A. You mean — oh, I'm confused. You're confusing me.
Q. Okay. I'm sorry to confuse you . . . did you ever see Jasmine at your home?
A. Yeah, in the front. In front.
Q. Okay. And, what happened at that point?
A. I gave her the money and . . . I gave her my information, because she doesn't own a cell phone. . . I gave her the money, gave her a list with all the stuff on there, told her what the kids liked to eat, and what time they should go to bed, and that they shouldn't drink after 6:00 o'clock. And then, I ran.
Q. Okay. And, did you have the understanding she was going to go in your house and babysit the children?
A. [] Yes.
Q. All right. And, why did you run?
A. Because, the bus was coming.
Defendant later testified that, after giving Jasmine the fifty dollars, she went back into the house and told the children she was going to work and that her friend was going to watch them. The following exchange took place:
Q. You didn't go back into the house to let your children know who was going to be watching them; correct?
A. No. I didn't tell them who; but, I did go in the house.
. . .
A. I did go back in [] and tell them that I was going to work, somebody's going to watch them. My — I said my friend's going to watch them. You ask my daughter. I said, "My friend's going to watch ya'll, I got to go. Give me kiss." And, I ran to the bus stop.
. . .
Q. So you did go back in the house?
A. Uh-huh.
Q. You just [] testified you didn't go back in the house.
A. I didn't go in the house. I opened the door and I told them.
Defendant further testified that while she was at work that evening, she received a call from the caseworker and believed it was in reference to a prior case that was open against her. After she called the caseworker back and he told her that the Division was taking her children, defendant stated that her "first reaction" was "What, the babysitter's there."
Defendant claimed she had told Jakubowski that Monet would be able to come and take care of the children so there was no need to remove them. He replied that it was too late and the children were already being placed. According to defendant, she made multiple efforts to locate Jasmine, but was unable to do so. When questioned whether she had any information besides her testimony to confirm that Jasmine existed, defendant answered she did not. Neither Jasmine nor Monet testified at the hearing.
The court found defendant's testimony was inconsistent with both her telephone conversation with Jakubowski the night of the incident and Sh.B.'s candid response when asked if anyone was coming to babysit. The court also found that defendant's testimony that Monet witnessed her give Jasmine the money, and that Monet said she was going to check on the children, was inconsistent with what actually occurred and what Jakubowski reported. Rather, defendant had left the home at approximately 4:30 p.m. and the caseworker arrived about an hour later and was present for approximately another hour. Neither Monet nor any other adult or babysitter appeared at the home during that two-hour period. The judge found:
It doesn't make a lot of sense to me when [defendant] [] testified that when Jasmine went from Rite Aid to her house, she told the children, "Oh, there is somebody here. See you, I love you, got to run." But Jasmine and Monet are both out there, but neither of the women walk in the house.
The judge stated that, although she did not believe defendant would normally take a job knowing she did not have a babysitter and thereby place her children at risk, defendant made a "bad call on this day." The judge continued,
And I'm not talking about hiring somebody she barely knew. I'm talking about really not hiring anybody. Because [] I'm just not convinced that that happened. The only evidence I have that it happened is really hearsay. Even [defendant's] testimony is hearsay; because she's telling me what somebody out of court agreed to do.The judge concluded that the Division demonstrated by a preponderance of the evidence that defendant left her children home alone and that her actions constituted abuse and neglect because there was a foreseeable risk of harm to the children. Defendant now appeals this finding.
II.
Defendant argues on appeal that she provided the requisite degree of care to her children and that her conduct did not rise to the level of gross negligence necessary to sustain a finding of abuse or neglect. Defendant further contends that there is no evidence that the children were either harmed or placed in imminent risk of harm by her actions.
Our standard of review on appeal is narrow. We defer to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "'[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Even where there are alleged errors in the trial court's evaluation of underlying facts, a reviewing court "will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation and internal quotation marks omitted).
Abuse and neglect cases are fact sensitive and "[e]ach case requires careful, individual scrutiny" as many cases are "idiosyncratic." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). The burden is on the Division to prove abuse or neglect by a preponderance of the "competent, material and relevant evidence[.]" N.J.S.A. 9:6-8.46(b); see also N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013).
Where there is no evidence of actual harm to the children, like here, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)). While the Division must demonstrate "the probability of present or future harm" to the child, "the court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 182 N.J. 426 (2005).
N.J.S.A. 9:6-8.21(c)(4)(b) provides that an "abused or neglected child" means an individual under the age of eighteen years
whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]A parent "fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 181 (1999). Thus, it is "grossly or wantonly negligent" behavior that falls below the "minimum degree of care." Id. at 178.
Although the distinction from ordinary negligence cannot be precisely defined, McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970), the essence of gross or wanton negligence is that it "implies that a person has acted with reckless disregard for the safety of others." G.S., supra, 157 N.J. at 179. Further, willful or wanton conduct is that which is "done with the knowledge that injury is likely to, or probably will, result[,]" and "can apply to situations ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Id. at 178 (quoting McLaughlin, supra, 56 N.J. at 305). However, if the act or omission is intentionally done, "whether the actor actually recognizes the highly dangerous character of her conduct is irrelevant," and "[k]nowledge will be imputed to the actor." Ibid. Such knowledge is imputed "[w]here an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences." Id. at 179.
Also, "[o]ne act may be substantial or the sum of many acts may be substantial" to prove abuse or neglect. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011) (citation and internal quotation marks omitted). However, if an isolated act "appears to be aberrational," labeling the parent a child abuser may be inappropriate. N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 512-13 (App. Div. 2010), appeal dismissed, 208 N.J. 355 (2011). See also N.J.A.C. 10:129-7.5(b)(3) (recognizing the isolated or aberrational nature of the conduct as a mitigating factor when determining if abuse or neglect is established).
Under the totality of the circumstances, we affirm the Family Part's findings because they are supported by adequate, substantial, and credible evidence. Here, the Family Part Judge rejected, as a matter of credibility, defendant's testimony that she had arranged for Jasmine to babysit the children or for Monet to come check on them. Simply put, the judge did not believe that defendant engaged anyone to supervise the children that evening. Consequently, she was aware they were left home unsupervised. We owe particular deference to the judge's assessment of a witness' credibility. N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 448 (2012).
In finding that defendant's actions caused a risk of harm, the judge noted the children were "scared." The judge remarked: "I don't need an expert to tell me a seven-year-old watching an [eighteen]-month-old for five hours, and locking themselves in, because that's what they knew they had to do, is anything but a very foreseeable risk of harm." Again, we find valid support in the record for this finding.
Defendant also asserts that her children were not at imminent risk of harm at the time of the fact-finding hearing. She contends that, pursuant to our decision in N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405 (App. Div. 2014), even if there was evidence that the children were at risk of harm at the time of the incident that spurred the Title 9 proceeding, she had rectified the reason for the Division's involvement by the time of the fact-finding hearing. Our Supreme Court recently considered such an argument in N.J. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166 (2015). In E.D.-O., the Court explicitly rejected the notion that courts should consider the substantial risk of harm that children face at the time of an abuse or neglect proceeding; rather, the Court held that trial courts should focus on the substantial risk of harm that children faced at the time of the incident giving rise to the Title 9 proceeding. Id. at 187-90. We accordingly reject defendant's argument.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION