Opinion
DOCKET NO. A-1408-14T4
07-26-2016
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Pastacaldi, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Benjamin H. Zieman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd S. Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-265-14. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Pastacaldi, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Benjamin H. Zieman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd S. Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant S.G. appeals from a June 30, 2014 order finding that she abused or neglected her then twenty-month-old son by leaving the child unattended in her car for over two hours while she was at work. We affirm because the Family Part found that under the totality of the circumstances the mother's conduct created a significant risk of harm to the child.
I.
The facts were established at an evidentiary hearing, and are largely undisputed. On February 23, 2014, Police Officer Joseph Quinn and his partner responded to a call regarding a child locked in a car at an assisted living facility. Upon arrival at 12:14 p.m., Quinn found P.W., a twenty-month-old child, sitting in a car seat in the back seat of a vehicle. The vehicle was locked, with one window opened two inches, and it was parked approximately 500 feet from the entrance to the facility. The temperature outside was estimated to be in the high 60's degrees Fahrenheit.
Quinn used his baton to reach through the window and open the car door. The officer noted that the temperature in the car was warm and the child was wearing a heavy coat, a knit hat, two pairs of pajamas, and slippers. Quinn saw that the child was sweating, removed the child from the car, and took off the heavy coat to allow the child to cool down. The officer also noted that P.W. smelled of excrement and his partner proceeded to change the toddler. The car was in disarray, with no food or water within reach of P.W. and a purse and cellphone were left in plain view on the front seat of the car.
Approximately fifteen minutes after the officers arrived, S.G., the child's mother, came out of the assisted living facility. S.G. initially told the officers that P.W.'s father left the child in the car. After questioning, however, she admitted she left P.W. in the car since 10:00 a.m. that morning because she could not find a babysitter and she was scared she would lose her job if she did not go to work. S.G. also admitted that she did not check on P.W. in the more than two hours she left him in the car. S.G. was placed under arrest for endangering the welfare of a child, and she and the child were taken to the police station.
P.W.'s father T.W. was not located during this proceeding and there is no record that he received notice. --------
Lauren Huze, a worker for the Division of Child Protection and Permanency (Division), responded to the police station and met with S.G. and P.W. S.G. told Huze that she normally used a babysitter who was not available that morning, she had no family support, and she left the child in the car out of fear that she would lose her job. S.G. also informed Huze that she was going to be evicted because she owed back rent.
The Division executed a Dodd removal, N.J.S.A. 9:6-8.29, and filed for care, custody, and supervision of P.W., which the Family Part granted. S.G was granted visitation and ordered to attend parenting classes. Over the next several weeks the Division worked with S.G. to provide her with services. During this time, the Division learned that S.G and P.W. had become homeless before the February 23, 2014 incident, and after P.W.'s removal, S.G. began living at Homeless Solutions.
Following several court proceedings, the parties negotiated a consent order transferring legal and physical custody of P.W. back to S.G. Four days later, the court clarified that the Division was granted continuing care and supervision of P.W., and S.G. was ordered to continue with parenting classes and to coordinate with the Division to find permanent housing.
On June 18, 2014, a fact-finding hearing was held before Judge Arnold L. Natali, Jr. The Division presented testimony from Officer Quinn and three Division workers, including Huze. The Division also submitted documents into evidence, including a Screening Summary, an Investigation Summary, a Safety Assessment, and the police records. S.G. did not testify, she called no witnesses, and she submitted one document into evidence, a Division Family Risk Assessment.
On June 30, 2014, Judge Natali entered an order finding that S.G. had abused or neglected P.W. The judge also issued a fifty-page written opinion detailing his findings of fact and conclusions of law. Judge Natali found that S.G. had failed to exercise a minimum degree of care, and thereby exposed her child to imminent danger and substantial risk of harm by leaving the child unattended in a car for over two hours without checking on the child and without leaving the child food or water. The judge also evaluated both the risk of harm that was present at the time of the incident and the circumstances as they existed at the time of the fact-finding hearing. In that regard, Judge Natali reasoned:
[T]he court made its decision by considering not any one fact in isolation or in a vacuum but rather it evaluated the totality of the circumstances and their "synergistic relationship." Stated differently, when evaluating whether [P.W.] is currently in imminent danger the risk to him that was demonstrated by [S.G.'s] past conduct was evaluated through the prism of those actions since taken by [S.G.] to address past dangerous parenting.
Thereafter several compliance hearings were held and, ultimately, the litigation was terminated in October 2014, with the child remaining in the custody of S.G.
S.G. now appeals the finding of abuse or neglect. Both the Division and the Law Guardian oppose S.G.'s appeal and support the finding of abuse or neglect.
II.
On appeal, S.G. makes two arguments: (1) there was insufficient evidence of a present risk of harm to the child; and (2) the court improperly shifted the evidentiary burden to defendant.
Title Nine was adopted by the New Jersey Legislature out of a "paramount concern" for the "health and safety" of children. N.J.S.A. 9:6-8.8(a). Abuse or neglect, as defined by N.J.S.A. 9:6-8.21(c), occurs when
a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his [or her] 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, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court . . . .
[N. J.S.A. 9:6-8.21(c)(4)(b).]
The Division bears the burden of proving a child is abused or neglected by a preponderance of the evidence. See N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). The trial court determines whether the child is abused or neglected by "the totality of the circumstances." Dep't of Children & Families v. G.R., 435 N.J. Super. 392, 401 (App. Div. 2014).
The statute does not require that the child experience actual harm. See N.J.S.A. 9:6-8.21(c)(4)(b); see also Dep't of Children & Families v. E.D.-O., 223 N.J. 166, 178 (2015) (stating that a court does not need to "wait to act until a child is actually irreparably impaired by parental inattention or neglect" (quoting In re Guardianship of DMH, 161 N.J. 365, 383 (1999))). Instead, a child can be considered abused or neglected if his or her "physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4). The primary focus of the court's evaluation is to preserve the safety of the child. N.J.S.A. 9:6-8.8(a).
The Supreme Court has held that the abuse or neglect standard is satisfied when the Division demonstrates that a parent "has failed to exercise a minimum degree of care." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). A "minimum degree of care" encompasses conduct that was "grossly or wantonly negligent, but not necessarily intentional." Id. at 178. Wanton negligence is conduct that was "done with the knowledge that injury is likely to . . . result." Ibid. A parent's action or inaction can rise to the level of wanton negligence even if he or she did not intend to cause injury. See id. at 179. Moreover, a parent can be "liable for the foreseeable consequences of [his or] her actions." Ibid.
"In cases where the child has not suffered actual harm, the Division must 'demonstrat[e] some form of . . . threatened harm to a child.'" E.D.-O., supra, 223 N.J. at 181 (alteration in original) (quoting N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 25 (2013)). The determination of whether a "risk of harm" exists should focus on the time of the incident and not on the risk posed at the time of the fact-finding or trial. Id. at 187-90.
"Leaving a child unattended in a car or a house is negligent conduct. However, [our Supreme Court] has emphasized that whether a parent's conduct is negligent or grossly negligent requires an evaluation of the totality of the circumstances." Id. at 170. Thus, the Court has highlighted several factors that should be considered when evaluating whether leaving a child in a locked car rises to the level of gross negligence, including:
[T]he distance between the store and the parked car, the [parent's] ability to keep the car in sight, how long the car was out of view, how long the child remained unattended, and any extenuating circumstances. We note that the weather on the day the child is left unattended and the ability of someone to enter the vehicle are also relevant considerations.
[Id. at 193-94 (citation omitted).]
Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We defer to the judgments of the Family Part if those findings are "supported by adequate, substantial, and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). A decision should be reversed or modified on appeal only if the findings were "so wholly unsupportable as to result in a denial of justice." Colca v. Anson, 413 N.J. Super. 405, 413 (App. Div. 2010) (quoting Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). We review de novo a trial court's legal conclusions. N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 152 (App. Div. 2014).
Applying this scope of review and the law, we conclude that substantial credible evidence exists in this record to support the finding that S.G. abused or neglected her child. Judge Natali made specific and detailed findings of fact. The credible evidence established that S.G. left her twenty-month-old child in a locked car without food or water. The child was left for over two hours and may well have been left for a longer period of time had someone not reported the situation. The car was parked approximately 500 feet from the facility where the mother worked. Thus, the child was at risk both to what might happen to the child when left alone in the car and what might have happened had someone tried to break into the car to take the child or do the child harm. In short, the fact-finding made by Judge Natali in his comprehensive and thorough written opinion is supported by competent evidence in the record.
We add some additional comments since the Supreme Court has recently clarified how to evaluate the risk of harm by focusing on the time of the incident. See E.D.-O., supra, 223 N.J. at 170. Defendant argues that "the court erred in failing to consider the evidence subsequent to [P.W.'s] removal in assessing the likelihood of repetition of [S.G.'s] past conduct at the fact-finding." This argument has been rejected by our Supreme Court. In E.D.-O. the Court evaluated the plain language of N.J.S.A. 9:6-8.21(c)(4)(b), its legislative history, and the case law and determined that the analysis of whether a risk of harm exists should focus on the time of the incident and not on the risk posed at the time of a fact-finding or trial. Specifically, the Court 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 also argues that the trial judge shifted the burden of persuasion when he noted that "the [c]ourt was not provided with specific information regarding . . . daycare or [S.G.'s] recent full time employment." The lack of information regarding daycare concerned Judge Natali because S.G. was "not able to provide critical information regarding her babysitter, including her last name, address or an accurate telephone number." Despite this concern, Judge Natali still considered defendant's full time employment and P.W.'s daycare finding that "even considering the recent day care for [P.W.] and [S.G.'s] full-time employment, the [c]ourt does not believe those facts, when viewed in context and in light of all other evidence, mandate a finding that [P.W.] would not be in imminent risk of harm." Just as critically, the evidence put forward by the Division established that at the time of the incident S.G. placed her child at a risk of substantial harm by leaving him in a locked car for over two hours. Defendant has not argued that the child was not at risk of harm when he was left in the car, but that the court did not fully appreciate the mitigating factors of her new employment and the child's daycare. We find no improper burden shifting.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION