DCPP VS. L.L. AND J.N., SR. IN THE MATTER OF B.N., J.N., JR. AND J.N. (FN-12-86-15, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2017 )


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  •                              RECORD IMPOUNDED
    NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R.1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2563-15T3
    NEW JERSEY DIVISION
    OF CHILD PROTECTION
    AND PERMANENCY,
    Plaintiff-Respondent,
    v.
    L.L.,
    Defendant-Appellant,
    and
    J.N., Sr.,
    Defendant.
    _________________________________________
    IN THE MATTER OF B.N., J.N., Jr. and
    J.N., minors.
    _________________________________________
    Submitted May 31, 2017 – Decided July 20, 2017
    Before Judges Suter and Grall.
    On appeal from the Superior Court of New
    Jersey, Chancery Division, Family Part,
    Middlesex County, Docket No. FN-12-86-15.
    Joseph E. Krakora, Public Defender, attorney
    for appellant (Mary Potter, Designated
    Counsel, on the brief).
    Christopher S. Porrino, Attorney General,
    attorney for respondent (Melissa H. Raksa,
    Assistant Attorney General, of counsel;
    Arielle E. Katz, Deputy Attorney General, on
    the brief).
    Joseph E. Krakora, Public Defender, Law
    Guardian, attorney for minors (Noel C.
    Devlin, Assistant Deputy Public Defender, of
    counsel and on the brief).
    PER CURIAM
    Following a fact-finding hearing, the judge determined the
    Division of Child Protection and Permanency (Division)
    established L.L. neglected her three sons by failing to exercise
    a minimum degree of care in supervising them.       N.J.S.A. 9:6-
    8.21(c)(4)(b), -8.44, -8.46(b).1       L.L. appeals and argues the
    Division failed to establish imminent danger or substantial risk
    of injury to her sons' physical, mental or emotional condition.
    For the reasons that follow, we reverse.2
    The Division removed the boys from L.L.'s care in the early
    hours of August 14, 2014, pursuant to N.J.S.A. 9:6-8.29 and
    1
    Initials are used to maintain confidentiality consistent with
    Rule 1:38-3(d)(12); the hearing was conducted on December 12,
    2014, and the judge issued a written opinion and order on April
    15, 2015.
    2
    L.L. also urges us to reverse because she was not the
    children's primary caretaker. Her argument on that point has
    insufficient merit to warrant discussion in a written opinion.
    R. 2:11-3(e)(1)(E).
    2                          A-2563-15T3
    -8.30.   L.L.'s first son, B.N., was twelve years old; her second
    son, Ju.N., was nine; and her third son, Jo.N., was four.        Where
    necessary to distinguish among L.L.'s sons, we refer to them as
    the first, second or third son, based on date of birth.
    I.
    During the December 12, 2014 fact-finding hearing, the
    testimony of two Division employees, Thomas Josil, the family's
    caseworker, and Latia Williams, who removed the children, was
    presented.   Additionally, photographs and documentary evidence
    were admitted into evidence.   L.L. did not testify or present
    any witness or documentary evidence.
    In April and May 2014, the Division received, investigated
    and determined that three referrals alleging abuse and neglect
    were all unsubstantiated or not established.    Nevertheless, the
    Division asked L.L. and her sons' father, J.N., Sr., to undergo
    evaluations for substance abuse.     L.L. agreed and complied.
    J.N., Sr., who was on parole, also agreed, but he left his
    family and moved to Texas.
    L.L. was evaluated by Catholic Charities - CPSAI Group on
    June 23, 2014.   L.L.'s drug test was positive for
    opiates/morphine, and that result was not explained by L.L.'s
    use of prescribed benzodiazepines, Xanax and Ambien.    The intake
    counselor identified psychological and environmental problems
    3                           A-2563-15T3
    L.L. faced including:   the loss of her cash benefits from
    welfare, inability to pay rent, recent break-up with her
    children's father and the Division's involvement with her
    family.   She recommended out-patient treatment with the Center
    for Great Expectations (Center), and L.L. went to the Center for
    an intake interview on July 30, 2014.
    Following L.L.'s intake interview, the counselor contacted
    Josil because she thought L.L. was under the "influence."
    Although L.L. kept the appointment, she could not complete the
    process because she was "nodding off," slurring her words, and
    unable to hold a pen or provide a urine sample.
    Josil went to L.L.'s home on July 31.   L.L. was able to
    communicate without slurring her words and exhibited no signs of
    intoxication.   Although her apartment was "in disarray" (clothes
    and toys all over and food in the kitchen sink), Josil told L.L.
    "to clean up," and she complied.
    L.L.'s mother, R.L., was present.   Because of the Center's
    report and prior referrals alleging L.L.'s abuse of substances,
    Josil prepared a "safety protection plan" (SPP), which L.L. and
    R.L agreed to and signed.
    The SPP listed two safety issues:   L.L.'s "use and abuse of
    prescription medications" and "emotional instability."   The SPP
    identified "specific safety action[s]" to address those issues.
    4                            A-2563-15T3
    Regarding "emotional instability," L.L. agreed to "attend mental
    treatment and undergo medication monitoring," and the Division
    agreed to "supervise."     Regarding substance abuse, L.L. agreed
    to, "refrain from using and abusing prescription medications";
    her mother R.L. agreed to "supervise and monitor" L.L.'s
    children "at all times"; and, the Division agreed to
    "supervise."   As Josil testified, R.L. was obligated to
    supervise L.L. at home with the children, not to serve as her
    grandsons' primary caregiver.    The SPP does not mention the
    condition of L.L.'s apartment, because L.L. had addressed the
    disarray Josil observed.
    The SPP does not address L.L.'s financial difficulty
    either.   It is not clear Josil was aware of L.L.'s finances on
    July 31, but he knew about it by August 5, 2014, when he
    reviewed and signed the report from Catholic Charities, which
    noted her loss of cash welfare benefits.    At 10:00 a.m. on
    August 13, Josil went to L.L.'s home and brought L.L. "to
    Welfare."   He did not go inside the apartment that day.
    On the same day, August 13, at 10:45 p.m., the Division
    received the referral that led to the children's removal.
    According to the screener's summary, the caller ("reporter")
    advised that R.L., who was supposed to be supervising L.L. and
    her children, had "asked [her] for a ride home [that] evening."
    5                         A-2563-15T3
    The reporter explained:   "the children are out of control and
    the grandmother could not take it anymore"; "there is no
    electricity in the home [, and L.L.] is running a wire from a
    neighbor's home."   Although the reporter had not been inside the
    apartment for a week, she reported that it was filthy, with
    rotting food in the refrigerator and dishes in the sink.     The
    reporter also stated L.L. did laundry once a month and was being
    evicted on August 27.3
    Latia Williams, a family service specialist for the
    Division, arrived at L.L.'s apartment to investigate the
    referral at about 2:00 a.m. on August 14.   On Williams's
    arrival, L.L. was "reluctant" to let her in and explained that
    her sons were sleeping and her house was "messy."    When Williams
    entered, the boys were in fact asleep and the apartment was
    indeed messy.
    To document her observations, Williams photographed L.L.'s
    three sons asleep on a sofa bed in the littered living room.
    There were wires protruding from the sofa bed, which Williams
    acknowledged were not shown in the photographs.     Apart from
    3
    The caller did not testify at the fact-finding hearing; the
    screener's summary of the call was in evidence for the limited
    purpose of explaining the Division's early morning visit.
    6                           A-2563-15T3
    stating that the wires were from the bed and not electrical,
    Williams did not describe the wires.
    To Williams, L.L. "appeared to have slurred speech" and her
    affect was "flat."   L.L. denied being under the influence and
    said she had taken her prescribed Xanax at 8:00 p.m.     Based on
    her observations, Williams could not "confirm" that L.L. was
    under the influence.   However, Williams did notice "marks" on
    L.L.'s arms that "appeared to be marks you would have if you
    were" injecting drugs, "like track marks."   According to
    Williams, L.L. told her the marks on her arms were from her
    sleeping on the sofa bed with the exposed wires.
    L.L. was using electricity from a neighbor, a refrigerator
    in the kitchen was leaking and "wires were actually in the leaky
    water that was [seeping] into the carpet."   Using the
    photographs she took, Williams pointed out the extension cord
    conveying electricity from her neighbor's home that was crossing
    a dark spot on the floor, which was water leaked from the
    refrigerator.   There was no evidence, testimonial or
    photographic, suggesting the extension cord was worn or
    unsuitable for outdoor use.
    Williams noted other problematic features.     There was an
    unwrapped sandwich on a littered kitchen table.    Williams did
    not know how long the sandwich had been there and was concerned
    7                           A-2563-15T3
    because it was uncovered.     There were also photos of a dirty
    bathroom with dirty fixtures.
    Photographs of one bedroom showed it had one bed with a
    bare mattress.     A disconnected air conditioner, trash and
    clothing were on the floor.     Pictures of a second bedroom showed
    a bunk bed, with a bare mattress and a pile of clothing on the
    lower bunk and a mattress on the upper bunk, which was covered
    with a sheet that had a pair of folded pants and balled up
    fabric on top of it.    None of the pictures showed furniture that
    could be used to hold clothing, papers or other belongings.
    Josil was shown the photographs of the apartment during his
    testimony.     Although he had been to L.L.'s apartments several
    times before August 14, he had not seen it in the condition
    depicted.     In his words, the pictures showed the home "at its
    worst."
    Williams asked L.L. about the children's medical/emotional
    conditions.    L.L. accurately reported that her first son had a
    diagnosis of ODD/ADHD.    Her first son reported, and L.L
    confirmed:    the third son went to bed with a bottle; the second
    and third son both wet their beds at times; and, the third son
    sometimes used a diaper at night.     No evidence linking the
    children's conditions to parental neglect was presented.
    8                            A-2563-15T3
    The children were given physical examinations following
    their removal.     Their respective immunizations were current, and
    there were no indications of abuse or of problems attributable
    to poor hygiene.    However, the children were not problem free.
    The third son was found to have speech delays, a stutter and
    irregular eye movement.    A dental exam was recommended, not to
    address decay or infection, but to determine whether he needed
    care because of his prolonged use of a bottle.
    Williams identified the following reasons for removing the
    children during the early hours of August 14:    R.L.'s departure
    violating the SPP; L.L.'s slurred speech and flat affect; and
    the apartment's deplorable condition.     Williams admitted she did
    not know whether L.L. had the funds to remedy the sofa bed and
    was aware that R.L. left of her own accord, not at L.L.'s
    request and despite L.L.'s first son urging R.L. to stay.
    L.L. was still struggling with drug addiction on August 14.
    A letter from the Center for Great Expectations dated September
    5, 2014 reports L.L. "engaged in treatment on [August 5, 2014]
    and attends the IOP group on Mondays, Tuesdays and Thursdays"
    and "demonstrates motivation for treatment" by her "consistent
    attendance."   Noting her positive drug tests, including a test
    on August 14 disclosing benzodiazepines and opiates, the
    Center's letter advises it is "evaluating" whether L.L.'s
    9                         A-2563-15T3
    prescribed benzodiazepines are "the best medication to manage
    her symptoms of anxiety and depression as well as her substance
    use disorder diagnosis."     The Center noted L.L. is "struggling
    with sobriety and presents with an inability to achieve
    abstinence at this level of care."
    L.L.'s children were not in her custody or care between
    their removal and the fact-finding hearing, and L.L. had not
    resolved her substance abuse when the hearing commenced.       A
    letter from the Primary Clinician for the Center dated October
    28, 2014, just short of two months before the hearing, described
    L.L.'s effort and failure.     L.L. had completed a detoxification
    (detox) program on September 21, 2014, but she continued to
    submit samples testing positive for opiates (one positive for
    heroin as well) and was "not actively seeking inpatient
    treatment independently of [the Center]."     In the closing
    paragraph, as it had in its September letter, the Center
    explained:
    [L.L.] is currently struggling with
    sobriety and presents with an inability to
    achieve abstinence at this level of care.
    Therefore, I am recommending that she
    complete a Level III. 7 [inpatient] short
    term rehab program. [L.L.] may return to
    CGE Outpatient treatment once she completes
    short term [inpatient] treatment.
    10                            A-2563-15T3
    At the hearing, Josil testified to L.L.'s participation in
    a seven-day detox inpatient program and her continued, regular,
    daily and unsuccessful phone calls to obtain a spot for
    inpatient treatment.
    II.
    The judge credited Williams's and Josil's testimony.     He
    found that L.L. was subject to and violated the SPP when her
    mother left her unsupervised with her children for over three
    hours, "and likely longer since her mother left during the
    'day.'"   He concluded L.L. should have but failed to immediately
    contact the Division when R.L. left, and that L.L. knew R.L.'s
    departure "would likely result in the children's removal."     The
    judge further found L.L.'s drug abuse remained unabated, as
    evidenced by the positive test on August 14.   He also found that
    L.L. exposed her sons to a risk of danger by allowing them to
    sleep on the sofa bed when she knew the bed's wires injured her.
    The judge wrote:   "Here, the evidence when considered
    appropriately in context establishes that [L.L.], with an active
    substance abuse problem, was caring for her minor children
    unsupervised and in violation of a SPP."   In a footnote
    accompanying the preceding sentence, the judge explained that he
    was not relying "exclusively on . . . [L.L.'s] slurred speech
    and flat affect," but on "the combination of her active
    11                          A-2563-15T3
    substance abuse problem, lack of appropriate supervision and
    active risks to the children[.]"
    The judge further wrote:
    The violation of that SPP was known to
    [L.L.] both by her admission and her [first]
    son's actions [presumably referring to that
    son's attempt to get R.L. to return] on
    August 13, 2014. In violation of the [SPP],
    the trial evidence does not establish that
    she made any attempt to contact the Division
    or seek other appropriate care for her
    children that day or night after her mother
    left the home. On the night of removal, her
    speech was slurred, and she had a flat
    affect. Later testing confirmed her active
    drug use on August 14, 2014, the date of the
    removal. The condition of the home was
    indisputabl[y] deplorable and contained
    general and specific dangers to the
    children. Most notably the admitted
    projection of "wires" from the sofa [bed]
    where the children were sleeping and which
    wires were stated to have caused injury to
    [L.L.]. Her unauthorized supervision of her
    children, with an active drug problem,
    subjected her children to the dangerous
    conditions of the home, including harmful
    wires protruding from the bedding and
    extension cords traversing through wet and
    damp conditions, when combined, in toto,
    supports a finding that [L.L.] was grossly
    negligent and acted with a reckless
    disregard for the safety of her children,
    thereby exhibiting a failure to exercise a
    minimum degree of care in their supervision.
    Such failure placed the children at
    substantial risk of harm.
    In reaching the determination, the
    [c]ourt considered whether [L.L.] could have
    performed some act to remedy the situation
    or remove the danger understanding that not
    12                         A-2563-15T3
    every failure constitutes abuse or neglect.
    Here [L.L.'s] failures to act were numerous.
    First, she was caring for her children
    without an appropriate supervisor while
    knowingly violating a [SPP] and while she
    had an active substance abuse problem. Her
    inability to properly supervise was
    evidenced by the dangerous conditions of the
    home and the specific decision to permit the
    children to sleep on a bed with exposed
    wires that caused injury to herself.
    In evaluating the totality of the
    circumstances, the [c]ourt also considered
    [Josil's testimony that the apartment was at
    its worst on August 14.] It is a reasonable
    conclusion, based on this testimony, that
    the situation in the home and the
    circumstances that led to the Division's
    involvement were getting worse. In sum, that
    [L.L.] and any supervisor were not
    addressing the situation. She still had an
    active drug issue. The home environment was
    devolving[,] and she placed her children in
    a situation where they were at risk of harm
    due to the sleeping conditions and other
    risks in the home, at a minimum.
    . . . .4
    Finally, it should be noted that the
    [c]ourt reviewed all the trial evidence in
    its appropriate context and concludes its
    decision here is not based on [L.L.'s]
    economic or social circumstances . . . .
    Rather, the [c]ourt's decision is based on
    the actions and decisions of [L.L.] when she
    placed her chid[ren] in substantial risk of
    harm while acting as a caretaker in
    violation of a safety protection plan
    4
    The judge's rejection of L.L.'s argument that her mother was
    solely responsible under the SPP is omitted, because that claim,
    which she repeats on appeal, has insufficient merit to warrant
    discussion in this written opinion. R. 2:11-3(e)(1)(E).
    13                         A-2563-15T3
    without an appropriate supervisor. She was
    observed to have a flat affect and slurred
    speech. [L]ater testing confirmed that on
    the day of the removal, she tested positive
    for opiates. Most critically, the condition
    of the home as previously detailed, and the
    decision to place the children in a bed with
    exposed wires — which had caused injury to
    her — was, in the totality of the
    circumstances, grossly negligent. In this
    regard, it is important to note that there
    were a number of beds in the home . . . .
    [None] contained a dangerous condition such
    as the bed in which all three children were
    permitted to sleep. As such, any claim that
    the children sleeping on the sofa bed was a
    result of [L.L.'s] inability to purchase
    another bed or sofa is misplaced as there
    were other options available in the home for
    the children to sleep in a setting safer
    than that selected by [L.L.].
    III.
    Our standard of review is deferential.   In recognition of
    the special expertise of Family Part judges in matters of
    parental abuse and neglect, this court defers to findings
    supported by substantial credible evidence in the record.     N.J.
    Div. of Youth & Family Servs. v. L.L., 
    201 N.J. 210
    , 226 (2010).
    In evaluating the sufficiency of the credible evidence, "Judges
    at the trial and appellate level cannot fill in missing
    information on their own or take judicial notice of harm.
    Instead, the fact-sensitive nature of abuse and neglect cases,
    turns on particularized evidence."   N.J. Div. of Youth & Family
    Servs. v. A.L., 
    213 N.J. 1
    , 28 (2013) (citation omitted).
    14                            A-2563-15T3
    Nevertheless, we intervene to ensure fairness if the judge's
    "conclusions are 'clearly mistaken or wide of the mark.'"      
    L.L., supra
    , 201 N.J. at 227 (quoting N.J. Div. of Youth & Family
    Servs. v. E.P., 
    196 N.J. 88
    , 104 (2008)).    Moreover, our
    deference does not extend to a "trial court's interpretation of
    the law and the legal consequences that flow from established
    facts[.]"   Manalapan Realty, L.P. v. Twp. Comm., 
    140 N.J. 366
    ,
    378 (1995); accord N.J. Div. of Youth and Family Servs. v. R.G.,
    
    217 N.J. 527
    , 552 (2014) (quoting Manalapan in a case involving
    termination of parental rights).
    The judge in this case relied, in part, on this court's
    decision in New Jersey Division of Child Protection and
    Permanency v. M.C., 
    435 N.J. Super. 405
    (App. Div.), which was
    pending before the Supreme Court on a grant of certification at
    the time of his decision, 
    220 N.J. 41
    (2014).   After the judge
    issued that opinion, the Supreme Court remanded M.C. "to the
    Superior Court, Appellate Division for reconsideration in light
    of the Court's recent opinion in Department of Children &
    Families v. E.D.-O., 
    223 N.J. 166
    (2015)."   N.J. Div. of Child
    Protec. & Permanency v. M.C., 
    223 N.J. 160
    (2015).
    In E.D.-O., the Court rejected our reading of N.J.S.A. 9:6-
    8.21(c)(4)(b) in M.C., which interpreted the same provision to
    require an assessment of the "risk of harm to any child at the
    15                            A-2563-15T3
    time the complaint seeking care and supervision of her children
    is heard or the Director renders a decision."   
    E.D.-O., supra
    ,
    223 N.J. at 174-75.   The Supreme Court explained its disapproval
    of our reliance on circumstances as they are at the time of the
    hearing in M.C.:
    The myriad dispositions available to the
    trial court after it enters a finding of
    abuse or neglect are fashioned based on
    current circumstances. For example, N.J.S.A.
    9:6-8.50(e) expressly permits a trial court
    to suspend a dispositional hearing
    indefinitely to permit the Division to
    report the current status of the parent and
    child and whether any further services or
    supervision are required.
    [Id. at 189-90.]
    We review this case in light of E.D.-O..
    The Division alleged and the judge found neglect as defined
    in N.J.S.A. 9:6-8.21(c)(4)(b).
    Title 9 defines an "abused or neglected
    child," in pertinent part, as
    a child less than 18 years of age
    . . . 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[.]
    16                       A-2563-15T3
    [N.J.S.A. 9:6-8.21(c)(4)(b).]
    Accordingly, Title 9 initially looks for
    actual impairment to the child. However,
    when there is no evidence of actual harm,
    the focus shifts to whether there is a
    threat of harm. Thus, "a finding of abuse
    and neglect can be based on proof of
    imminent danger and a substantial risk of
    harm." Under those circumstances, "the
    Division must show imminent danger or a
    substantial risk of harm to a child by a
    preponderance of the evidence." Moreover,
    "[c]ourts need not wait to act until a child
    is actually irreparably impaired by parental
    inattention or neglect."
    [
    E.D.-O., supra
    , 223 N.J. at 178 (citations
    omitted).]
    With respect to "substantial risk of harm," the Court
    explained:   "Each determination of whether the conduct of a
    parent or caretaker constitutes child abuse or neglect pursuant
    to N.J.S.A. 9:6-8.21(c)(4)(b) requires a determination of
    whether the child suffered actual physical, mental, or emotional
    harm or whether the conduct exposed the child to an imminent
    risk of such harm."   
    E.D.-O., supra
    , 223 N.J. at 185 (emphasis
    added).   The risk required to establish neglect is "a risk of
    serious injury to that child."    
    Id. at 179
    (quoting G.S. v.
    Dep't of Human Servs., 
    157 N.J. 161
    , 181 (1999)).
    Addressing the showing required to prove a failure to
    exercise a "minimum degree of care," the Court explained:       "The
    17                         A-2563-15T3
    text of N.J.S.A. 9:6-8.21(c)(4)(b) is designed to capture
    grossly negligent conduct that has harmed or poses a risk of
    imminent harm to a child."   
    Id. at 186
    (emphasis added).    Where
    "[a]n ordinary reasonable person would understand the perilous
    situation in which [a] child [has been] placed, . . . [a]
    defendant's conduct amount[s] to gross negligence."    
    Id. at 185
    (quoting N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J.
    Super. 538, 546 (App. Div. 2011)).   Alternatively, 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."    
    Id. at 175
    (quoting 
    G.S., supra
    , 157 N.J. at 181).
    To the extent the judge's finding of imminent danger or
    substantial risk of harm rests on the sofa bed's wires, it is
    not supported by credible evidence in the record.     The only
    basis for finding those wires dangerous is Williams's recitation
    of L.L.'s explanation for the marks on her arms.    Even though
    the judge found Williams's testimony credible, the probative
    value of L.L.'s explanation of the marks on her arms relevant to
    danger of injury from the sofa bed's wires is dependent on the
    reliability of L.L.'s statement, not the credibility of
    Williams's testimony repeating what L.L. claimed.     Nothing in
    18                           A-2563-15T3
    the record suggests that L.L.'s statement was anything other
    than a creative explanation for what appeared to be "track
    marks."
    Even if we were to assume adequate support for the judge's
    determination that L.L.'s explanation for marks on her arms was
    reliable, those injuries were minor, punctures resembling track
    marks.    If not caused by drug use, such "marks" are not injuries
    of the sort "[a]n ordinary reasonable person would understand"
    as "perilous."    
    Id. at 185
    (quoting 
    A.R., supra
    , 419 N.J. Super.
    at 546).   Similarly, L.L.'s awareness of a risk of such minor
    injury could not establish that she recklessly created an
    imminent danger or a substantial risk of serious injury.     Cf.
    
    E.D.-O., supra
    , 223 N.J. at 185 (discussing 
    A.R., supra
    , 419
    N.J. Super. at 541, 543, 545-46, a case involving a father
    placing his ten-month-old son to sleep, unattended for several
    hours, on a twin bed without railings adjacent to a radiator hot
    enough to burn him).   Therefore, L.L.'s decision about the sofa
    bed situation cannot support a finding of gross negligence or
    recklessness.    
    Id. at 175
    , 185.
    We recognize, as the judge did, that
    [w]hen determining whether or not a
    child has been abused or neglected, [courts'
    findings should be based] on the totality of
    the circumstances, since "[i]n child abuse
    and neglect cases the elements of proof are
    19                          A-2563-15T3
    synergistically related. Each proven act of
    neglect has some effect on the [child]. One
    act may be 'substantial' or the sum of many
    acts may be 'substantial.'"
    [N.J. Div. of Youth & Family Servs. v. V.T.,
    
    423 N.J. Super. 320
    , 329-30 (App. Div. 2011)
    (emphasis added) (quoting N.J. Div. of Youth
    & Family Servs. v. C.H., 
    414 N.J. Super. 472
    , 481 (App. Div. 2010), certif. denied,
    
    207 N.J. 188
    (2011) (internal quotations
    omitted)).]
    Consideration of the totality of the circumstances,
    however, must focus on the competent evidence.   As previously
    noted, "Judges at the trial and appellate level cannot fill in
    missing information on their own or take judicial notice of
    harm.   Instead, the fact-sensitive nature of abuse and neglect
    cases, turns on particularized evidence."   
    A.L., supra
    , 213 N.J.
    at 28 (citation omitted).   Because the competent evidence did
    not establish use of the sofa bed posed a danger, that situation
    adds nothing that could raise other risks to the level of a
    substantial risk of serious injury.   By other risks we refer to,
    L.L.'s failure to report R.L.'s sudden departure, her active
    drug use, or use of an extension cord, not shown to be
    unsuitable, by design or condition, for conveyance of
    electricity.5
    5
    L.L.'s use of the extension cord to convey electricity, unlike
    the use of the bed, had to be considered in light of L.L.'s
    20                          A-2563-15T3
    Before turning to L.L.'s failure to notify the Division of
    her mother's departure, we stress that R.L.'s departure time was
    not established.   The summary of the 10:45 p.m. referral was not
    admitted for the truth of what the caller said, and viewed in
    context, the references to "day" and "that day" elsewhere in the
    record are too ambiguous to permit an inference about the time
    R.L. left L.L.'s apartment on August 13.
    L.L.'s failure to notify the Division after R.L. left her
    apartment establishes neglect but not gross negligence.    As
    Josil explained, R.L.'s supervision was a cautionary measure
    imposed because L.L.'s history of substance abuse.
    The Supreme Court emphasized in E.D.-O., "[f]ailing to
    perform a cautionary act . . . is not necessarily abuse or
    
    neglect." 223 N.J. at 180
    (citing Dep't of Children & Families
    v. T.B., 
    207 N.J. 294
    , 306-07 (2011)).     In the totality of these
    circumstances, R.L.'s sudden departure was "extenuating," and,
    as such, had to be considered in determining whether L.L.'s
    conduct was grossly negligent.    
    Id. at 174.
      There was no
    evidence establishing unreasonable delay; the children were
    efforts to obtain assistance in meeting her bills, which was an
    aspect of the situation relevant to the question of gross
    negligence. The shut-off of power occurred despite her efforts,
    and that was an extenuating circumstance that had to be
    considered. 
    E.D.-O., supra
    , 223 N.J. at 174.
    21                            A-2563-15T3
    asleep and the record does not permit a finding as to when R.L.
    left.   Moreover, despite L.L.'s slurring and flat affect when
    Williams arrived at 2:00 a.m. on August 14, L.L. was fully aware
    of the situation.   She knew her children were sleeping and her
    house was messy, and she was able to describe the event that led
    to R.L.'s departure and her first son's diagnosis.   While there
    was evidence that she submitted to a drug test on August 14 that
    was positive for her prescribed medication and un-prescribed
    opiates, there was no expert evidence explaining what, if
    anything, the drug levels present in her tested sample indicated
    about the time of her drug use or her degree of impairment.      See
    
    A.L., supra
    , 213 N.J. at 28.   "Addiction is not easy to
    successfully remediate; a failure to successfully defeat drug
    addiction does not automatically equate to child abuse or
    neglect."   
    V.T., supra
    , 423 N.J. Super. at 331.   The evidence
    did not establish that L.L. was impaired or took drugs knowing
    she would be unsupervised.
    The judge found gross negligence based on L.L.'s awareness
    of the risk the Division would likely remove her children if she
    was unsupervised.   L.L.'s awareness of that risk is clearly
    supported by the record, but removal by the Division is not a
    risk cognizable as gross negligence.   As previously noted, a
    failure to perform a cautionary act amounts to gross negligence
    22                           A-2563-15T3
    if a parent is aware of imminent danger or a substantial risk of
    harm to a child's physical, mental or emotional condition.       In
    any event, L.L.'s notification of the Division about R.L.'s
    departure would not have diminished the risk of removal.
    Alternatively, gross negligence can be shown by evidence
    establishing a situation that an ordinary reasonable person
    would recognize as perilous for a child.    
    E.D.-O., supra
    , 223
    N.J. at 175, 185.6   However, the judge did not determine that an
    ordinary person in L.L.'s situation would recognize her failure
    to notify the Division she was caring for the children without
    supervision while continuing to struggle with addiction created
    a risk of serious injury to the children.    And, as the Court
    explained in E.D.-O., "[i]n all but the most obvious instances,
    that assessment must avoid resort to categorical conclusions."
    
    Id. at 180.
    6
    Removal by the Division is undoubtedly difficult for children.
    But parental incapacity and the harm of separation that
    accompanies it are pertinent to questions that arise when
    termination of parental rights is at issue, and capacity to
    parent, time needed to acquire or regain it and withdrawal of
    parental attention in the interim are important. N.J.S.A.
    30:4C-15.1(a)(1)-(4). In abuse and neglect proceedings, such
    matters are addressed at disposition hearings. See 
    E.D.-O., supra
    , 223 N.J. at 189-90.
    23                         A-2563-15T3
    Because the Division failed to establish neglect pursuant
    to N.J.S.A. 9:8-6.21(c)(4)(b), we reverse.
    Reversed.
    24                        A-2563-15T3