New Jersey Division of Child Protection and Permanency v. K.N.S. , 441 N.J. Super. 392 ( 2015 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4394-13T3
NEW JERSEY DIVISION APPROVED FOR PUBLICATION
OF CHILD PROTECTION
AND PERMANENCY, July 17, 2015
Plaintiff-Respondent, APPELLATE DIVISION
v.
K.N.S.,
Defendant-Appellant.
______________________________
IN THE MATTER OF E.J.S.,
a minor.
______________________________
Submitted May 20, 2015 – Decided July 17, 2015
Before Judges Fuentes, Ashrafi, and Kennedy.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Camden County, Docket No. FN-04-423-13.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jennifer L. Gottschalk,
Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel; Reid
Adler, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Caitlin A.
McLaughlin, Designated Counsel, on the
brief).
The opinion of the court was delivered by
ASHRAFI, J.A.D.
This is an appeal from an order finding abuse or neglect of
a seven-month-old boy who was severely injured by the boyfriend
of defendant-mother K.N.S. The issue is whether defendant-
mother neglected the child by allowing the boyfriend to be his
babysitter for several hours while she worked. We conclude
there was sufficient evidence for the trial court's finding of
neglect, and so, we affirm.
I.
Defendant gave birth to the child when she was nineteen
years old. The biological father, who was eighteen, initially
did not acknowledge paternity, and he is not involved in this
case. A few months after the child was born, defendant began
living with a man who was nine years older than she was.
Defendant knew the man had been convicted of a drug offense.
She did not know he had also been convicted of a sexual offense
against a very young child.
The boyfriend was unemployed. Defendant had a job at a
McDonald's restaurant near her apartment. The child had been
enrolled in a daycare program until November 16, 2012, when he
was diagnosed with croup. Following the illness, defendant did
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not have medical clearance for him to return and also lacked
convenient transportation to take the child to daycare. For a
period of about three weeks, defendant left the child in the
boyfriend's care when she worked.
Shortly before Thanksgiving in 2012, the boyfriend left the
child alone in the bathtub, and the child fell and hurt his
head. When defendant came home from work, she saw that the
child had a large bump on his head.
On December 9, 2012, defendant came home from her job
during a break and saw that the boyfriend was bathing the child,
but the child was blue and shivering. He was very cold to the
touch. For about twenty minutes, she tried to heat the child's
body by holding him near a heater. Defendant called a friend
for advice and then decided to take the child to a hospital
emergency room, but she first walked back to the McDonald's to
tell the manager she would have to miss the rest of her work
shift. She returned to her apartment and called a taxi for
transportation to the hospital.
At the hospital, the child's body temperature was eighty-
eight degrees. Doctors determined that he had severe injuries.
His skull was fractured, as well as several ribs and parts of
his vertebrae. He had healing fractures of his forearm and leg
indicating that some of the injuries had occurred at least days
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in the past. The hospital made a child abuse referral to the
Division of Child Protection and Permanency (the Division).
When interviewed at the hospital, defendant was extremely
distraught about the nature and severity of her son's injuries.
She said she did not know how or when the injuries occurred,
except the incident a few weeks earlier when the child fell in
the bathtub. Since the child was born, she had taken him to
doctors' appointments as necessary, including on November 16,
2012, for treatment of his croup. The doctors had not detected
any injuries. She also said the child was usually a happy baby
but had been whining and crying and not sleeping through the
night for the past few days. She and her boyfriend were the
only caretakers for the child during the past several weeks.
Once she learned the child was injured, she insisted that the
boyfriend would leave her apartment and not have any further
contact with the child.
The Division obtained a court order to take temporary
custody of the child. Upon the child's release from the
hospital a week later, the Division placed him in the care of a
registered nurse. Subsequently, the Division placed the child
with defendant's sister while defendant enrolled in parenting
classes and counseling.
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On April 10, 2013, the Family Part conducted a fact-finding
hearing pursuant to N.J.S.A. 9:6-8.44 to adjudicate the charges
of abuse or neglect against defendant and the boyfriend. The
Division relied on documentary evidence, specifically, the
Division caseworker's detailed report, medical records from the
hospital, and the report of a physician who specialized in child
abuse. Defendant and the boyfriend did not testify. The only
witness was the Division caseworker.
The Family Part found that the boyfriend had physically
abused the child and had caused the injuries. The court further
found that defendant had neglected the child in that she left
him in the care of the boyfriend with knowledge that he had a
criminal past, that he had allowed the child to fall and hit his
head in the bathtub, and that he had repeatedly cursed and made
derogatory comments about the child in defendant's presence. In
addition, the court found that defendant had neglected the child
by failing to act expeditiously in getting him medical attention
when she found him blue, cold, and shivering on December 9,
2012. The court was skeptical that defendant had no idea that
the child had suffered injuries at the hands of the boyfriend
before that date, given the extent and severity of the injuries
found at the hospital.
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II.
On appeal, defendant argues she did not harm the child
herself, and the evidence gave no indication that she knew the
boyfriend had physically abused him.
A reviewing court must 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)). This
deferential standard of review is especially appropriate because
of the Family Part’s "specialized knowledge and experience in
matters involving parental relationships and the best interests
of children." N.J. Div. of Youth & Family Servs. v. F.M., 211
N.J. 420, 427 (2012).
An appellate court may expand its highly deferential scope
of review when the alleged error does not involve credibility of
witnesses but turns on the trial court's application of the law
to the underlying facts. G.L., supra, 191 N.J. at 605.
Nonetheless, an appellate court should only disturb the trial
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court's findings and conclusions if they are "so wide of the
mark that the judge was clearly mistaken." Ibid.
N.J.S.A. 9:6-8.21(c)(4) defines a child as abused or
neglected when the child's
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 . . .
(b) in providing the child with proper
supervision or guardianship . . . or by any
other acts of a similarly serious nature
requiring the aid of the court . . . .
The Division must prove abuse or neglect by a preponderance of
the evidence. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family
Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010).
In G.S. v. Department of Human Services, 157 N.J. 161, 176
(1999), the Court reviewed the meaning of the quoted statutory
language and held it did not require that the parent intended to
harm the child. "[T]he phrase 'minimum degree of care' refers
to conduct that is grossly or wantonly negligent, but not
necessarily intentional." Id. at 178. Conduct that can be
described as ordinary negligence is not sufficient to prove
abuse or neglect of a child within the meaning of the statute.
Dep't of Children & Families, Div. of Youth & Family Servs. v.
T.B., 207 N.J. 294, 306-07 (2011).
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Defendant contends the boyfriend's cursing and derogatory
comments about the child were not sufficient to have alerted her
to the danger of physical harm such that she can be found to
have acted grossly negligently in leaving the child with him
while she worked. She adds that she had regularly taken
appropriate steps to assure the child's health and well-being,
including prenatal care and regular doctors' appointments. She
emphasizes that, until December 9, 2012, even the doctors that
saw the child did not detect he had suffered injuries.
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., supra, 157 N.J. at
181. As we stated, the Division is not required to prove
defendant intentionally abused or neglected the child. It is
sufficient to show that defendant was grossly negligent in
preventing or eliminating the risk of harm to the child. Id. at
176, 178.
Negligence falls on a continuum of conduct from ordinary to
gross based on the level of risk created, and it is determined
on a case-by-case basis. T.B., supra, 207 N.J. at 309. In New
Jersey Division of Youth & Family Services v. A.R., 419 N.J.
Super. 538 (App. Div. 2011), we applied the following
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formulation of gross negligence: "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." Id. at 544 (quoting G.S., supra, 157 N.J. at 179).
In this case, defendant's knowledge of the boyfriend's
impatience and lack of attention to the child's safety, other
negative character traits of the boyfriend, and the actual prior
injury to the child made it grossly negligent for defendant to
leave the child alone with him. Defendant had met and begun a
relationship with the boyfriend just a few months earlier. She
did not know enough about his reliability and responsibility
such that she could leave the infant in his care for hours at a
time. In fact, the boyfriend had shown in at least three ways
that he was not a safe person to whom the seven-month-old infant
could be entrusted. He had a criminal record, he cursed at the
child and made comments indicating he was impatient when the
child cried or whined, and he left the infant alone in a bathtub
such that the child fell and struck his head.
In addition, the child was "not himself" for several days
before December 9, 2012, crying and whining and not sleeping at
night. Defendant should have detected a problem that made it
particularly risky to leave the child alone with the boyfriend
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on that day. Failing to protect a child against risk of harm by
another can constitute neglect of the child. See F.M., supra,
211 N.J. at 450; N.J. Div. of Youth & Family Servs. v. M.M., 189
N.J. 261, 289 (2007); see also N.J. Div. of Youth & Family
Servs. v. S.V., 362 N.J. Super. 76, 80 (App. Div. 2003)
(termination of parental rights affirmed where one aspect of the
defendant-mother's unfitness was her failure to keep her
children protected against physical and sexual abuse by her
boyfriend).
Defendant's delay in seeking medical attention may not have
been sufficient to warrant a finding of gross negligence if
viewed in isolation. She attempted to warm the child herself,
then returned to her job to report to her manager, and finally
called a taxi instead of an ambulance. These mistakes might not
rise to the level of gross negligence. But in conjunction with
the precipitating act of leaving the child in the boyfriend's
care, they were evidence of grossly inadequate attention to the
child's safety and health. While not purposeful conduct,
defendant's actions on the day that she found the child blue,
shivering, and cold added to the demonstration of gross
negligence in the care of a helpless, severely ill infant.
We conclude the proofs were sufficient for the Family Part
to find by a preponderance of the evidence that defendant
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neglected her child by placing him in the care of an
untrustworthy and impatient man about whom she knew very little,
and by delaying the emergency medical aid that the child needed.
III.
Despite her mistakes, defendant proved after the incident
that she was capable of being a good parent. She complied with
the counseling and services that the Division arranged for her,
and the child was returned to her custody in August 2013. Her
naïve trust in the responsibility of another person for the
well-being of an infant made her a neglectful parent. Her
learning from the experience and removing the boyfriend from her
and the child's lives showed a likelihood that she is capable of
providing the care and nurture the child needs.
The finding of neglect will now permanently stain the
reputation of this remorseful and rehabilitated mother. She
will be considered unfit for certain types of employment,
volunteer work, or personal relationships that involve children.
A finding of abuse or neglect under the statute requires
the inclusion of the person's name in the Central Registry
maintained by the New Jersey Department of Children and Families
of those found to have abused or neglected a child. Pursuant to
N.J.S.A. 9:6-8.11, reports of child abuse or neglect must be
forwarded to the child abuse registry operated by the Division,
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which "shall be the repository of all information regarding
child abuse or neglect that is accessible to the public pursuant
to State and federal law."
Such reports are confidential except as provided by
statute. N.J.S.A. 9:6-8.10a. The statute contains a lengthy
list of institutions, governmental entities, and persons to whom
the Division may release information contained in the registry.
N.J.S.A. 9:6-8.10a(b)-(g). In addition, the Department of
Children and Families must check the registry before granting
approval for the employment, volunteer services, and household
relationships of certain caregivers for children and others.
N.J.S.A. 9:6-8.10c, -8.10e; N.J.S.A. 30:5B-25.3.
Inclusion of defendant's name in the registry will not only
prevent her from participation in a field that involves children
but is also likely to disqualify her from such potential
developments in her life as designation by a court or by the
Division as a caregiver for a child that is related to her. See
generally W. Todd Miller, The Central Registry Statute for Abuse
and Neglect Matters Is Constitutionally Flawed, 8 Rutgers J.L. &
Pub. Pol'y 651, 654-56 (2011). Thus, for example, a person such
as defendant who was found to have neglected her child at the
age of twenty, or any parent whose momentary loss of patience
resulted in an isolated incident of excessive punishment or
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neglect, may be precluded twenty-five or thirty years later from
serving as the caretaker or guardian of her own grandchild, even
if she demonstrates during those years that she is a caring and
attentive parent and never again could be accused of having
abused or neglected a child. See id. at 652-56.
The registry is a sensible measure for protecting children
against harm, but one might reasonably question whether its
disqualifications should last a lifetime in every case where
abuse or neglect is found. Nothing in the statutes provides for
expungement of substantiated reports of child abuse or neglect,
or removal of a person's name from the registry at an
appropriate time despite rehabilitation and years of good
conduct. This absence of an expungement or removal remedy
contrasts sharply with our Criminal Code of Justice, which
provides for expungement of many types of criminal and lesser
offenses, N.J.S.A. 2C:52-1 to -32, and even with registration of
sex offenders under Megan's Law, N.J.S.A. 2C:7-1 to -23, which
contains a provision for an offender to apply after fifteen
years of good behavior for relief from the obligations of the
registration law, N.J.S.A. 2C:7-2(f). Considering the youth of
this defendant and her motivation to correct her mistakes and
prevent future harm to her child, a lifetime of "enormous
implications upon careers or reputations" may be a harsh and
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unjust punishment. Miller, supra, 8 Rutgers J.L. & Pub. Pol'y
at 652.
Nevertheless, the trial court did not err in finding that
defendant's past mistakes amounted to neglect of the child as
defined in N.J.S.A. 9:6-8.21(c)(4)(b). We reach that conclusion
on the record presented and pursuant to our standard of review
from the trial court's decision. We also seek to draw the
attention of the other branches of our government and any other
interested parties to the seeming disparity of the registration
law under the abuse or neglect statutes. Unlike other such
laws, the Central Registry provides no opportunity for the
rehabilitated and reformed individual ever to clear her name and
reputation, regardless of the degree of abuse or neglect in a
particular case and regardless of future unblemished conduct and
character.
Affirmed.
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