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RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-1454-14T2

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent, v.

S.N.,

Defendant-Appellant.

_________________________________________ IN THE MATTER OF B.N. and A.N.,

Minors.

_________________________________________

Argued June 7, 2016 – Decided June 21, 2016 Before Judges St. John and Vernoia.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0105-14.

Elizabeth Burke, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Burke, on the briefs).

Ellen Buckwalter, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Buckwalter, on the

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Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minors B.N. and A.N. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Janet L. Fayter, Designated Counsel, on the brief).

PER CURIAM

Defendant-mother, S.N.,1 appeals from a Family Part order, entered following a fact-finding hearing, which determined she had abused or neglected her children, B.N. and A.N. On appeal, defendant contends that her actions were merely negligent, thus the Division of Child Protection and Permanency's (Division) evidence was insufficient to meet the requirements of N.J.S.A. 9:6-8.21(c)(4)(b). We have considered the arguments advanced in light of the record and governing law and conclude the record contains substantial credible evidence defendant's conduct met the statutory threshold of gross negligence supporting a finding of abuse or neglect. Accordingly, we affirm.

I.

The record establishes the following facts and procedural history. S.N. is the mother two children: B.N., born October 15, 2011, and A.N., born May 23, 2013. S.N. testified that J.R. is the father of B.N., but he had abandoned them. D.A. is the biological father of A.N.

1 We use initials to protect the confidentiality of the parties.

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The family has a history with the Division dating back to September 22, 2011, due to concerns about S.N.'s mental health, however there are no prior substantiations of abuse or neglect. The Division received a referral on September 9, 2013, from a staff member at Shelter Our Sisters (SOS), a domestic violence shelter for women and children, with allegations that S.N. was neglecting B.N. and A.N.

A Division intake worker was assigned the case and spoke to SOS staff member Marta Levy. Levy stated that S.N. and her

children had been residing in the shelter for about one and half weeks and that she had "serious concerns for [S.N.'s] mental stability and her ability to appropriately care for her two children." Levy reported that S.N. was "erratic, combative, aggressive and challenging to everyone around her" and she

observed this behavior to be "escalating over the past three to four days."

Levy indicated that S.N. leaves her children unattended in the shelter while she goes outside to smoke cigarettes. Levy had observed B.N., who was not yet two-years-old, running around the parking lot unattended and playing with large bicycles that had fallen near him, and when she asked S.N. to supervise B.N., she "became aggressive and combative." Levy informed the

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complained that S.N. leaves B.N. in soiled diapers all day and leaves A.N., a three-month-old, unattended with a bottle propped up on a pillow. Further, Levy expressed concerns that S.N.

abuses prescription medications.

The next day, caseworkers Stephanie Wilson and Nicole Zeccardi responded to SOS. Wilson spoke with Wendy Marroquin, S.N.'s social worker at SOS. Marroquin related that during her intake at SOS, S.N. asked Marroquin for Xanax and when she was advised to see a psychiatrist to obtain it, S.N. stated that she wanted Xanax immediately. Marroquin found S.N. to be "mentally unstable" and "unable to appropriately care for her children." She stated that S.N. would leave B.N. in a soiled diaper for the entire day and ignore the children when they cry or are in need of something. Overall, Marroquin found S.N. did not "understand the needs of her children and does not attend to her children appropriately."

Wilson and Zeccardi went to speak with S.N. in her room. Wilson observed that B.N. was walking around the room wearing only a diaper and smelled of urine and feces. A.N. was fully dressed, in a bouncer seat on the floor, however she appeared unwashed and her hair was messy. Zeccardi observed that S.N.'s pupils were dilated, her hair was disheveled, and she was

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S.N. stated that she was about to give B.N. a bath and invited Wilson to join her in the bathroom located down the hall. S.N. left A.N. in the bouncer when she left the room. When Wilson asked S.N. if she was going to take A.N. with them, S.N. returned to the room to get the baby monitor. S.N.

indicated she was "allowed to leave the baby alone in the room as long as she used baby monitors to listen in to how the baby is doing." Wilson noted the monitor did not appear to be

working.

S.N. returned to the bathroom with Wilson and placed B.N. in the middle of the floor. Wilson observed B.N. crying and screaming and urine and feces were running down his leg, however S.N. did not appear to notice. While bathing B.N., Zeccardi called for S.N. because A.N. would not stop crying. S.N. left the bathroom with B.N. standing in the bathtub crying and

screaming. S.N. allowed Levy to care for A.N. and returned to the bathroom to dry B.N.

Back in the room, S.N., her children, and the workers were joined by Lilian Corcoran, Associate Executive Director of SOS. Corcoran indicated that S.N. would be discharged that day.

Further, Corcoran told Wilson that S.N.'s children "are at high risk currently" due to S.N.'s neglect. She expressed the

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putting cereal in A.N.'s bottle. She stated that S.N. often leaves her children in the care of other residents and will be unavailable by phone or text. Moreover, B.N. is often left outside unsupervised despite S.N. being told multiple times she needs to supervise her children.

Zeccardi observed S.N. leave A.N. in her bouncer seat for about two hours and leave B.N. unattended several times while S.N. went outside to smoke. Zeccardi also noted that S.N. had not fed either of the children breakfast or lunch.

That day, Division workers transported S.N., B.N., and A.N. to Hackensack University Medical Center (HUMC) for physical

examinations of the children. Dr. Egan observed that B.N. had a rash that appeared to be from eating citrus type foods and two scratches on his nose. A.N. appeared to be overfed and her head circumference appeared large and should be monitored. No other medical concerns were noted as to either child.

The family was transported back to SOS to get their

belongings. S.N. planned to return to her grandmother's house in Saddle Brook and the Division arranged to provide a homemaker to assist and supervise her. While at the shelter, the Division workers discussed the concern about S.N. abusing medications. S.N. indicated that she was prescribed Percocet (Oxycodone) for bursitis and showed the prescription bottle which was filled the

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prior day for twenty pills. The worker observed that the instructions were to take one to two pills every six hours as needed and that there were only eleven pills remaining.

Upon arriving in Saddle Brook, S.N. was unable to gain entry into the home and stated that her grandmother must have changed the locks. Throughout that day, Wilson and Zeccardi were with S.N. and her children for about ten hours. During that time, S.N. did not change A.N.'s diaper once, and only changed B.N.'s diaper one time. She did not interact with either child. She left the children unattended on multiple occasions to smoke or talk on the phone.

That day, the Division performed an emergency Dodd removal2 of B.N. and A.N. based on their concerns regarding S.N.'s mental stability, prescription drug use, concerns of neglect of the children, and S.N.'s inability to provide housing for herself or the children.

2 A "Dodd removal" is the removal of a child from a home, on an emergent basis and without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 149 n.4 (App. Div. 2014) (quoting N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011)).

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On September 12, 2013, the Division filed a verified

complaint3 seeking custody, care and supervision of two-year-old B.N. and three-month-old A.N. Caseworkers Wilson and Zeccardi verified the complaint. The Division's order to show cause was heard on the same day, authorizing the Division's continued

custody, care and supervision of the children, as removal of the children was necessary to avoid "imminent risk of harm" to their health or safety.

Further, the court ordered S.N. to undergo counseling at Alternatives to Domestic Violence (ADV) and comply with its recommendations, attend a substance abuse evaluation and comply with any recommendations, provide the Division with the identity and whereabouts of the children's fathers, and submit to random urine screenings including one that day. S.N. was allowed

visitation of the children. At that time, defendant completed a urine screen which was positive for Benzodiazepines, Oxycodone, and marijuana.

On October 23, 2013, the return date of the order to show cause, the court conducted a hearing. S.N. appeared with

counsel. Legal and physical custody of the children continued

3 The verified complaint was against defendants S.N., D.A., the biological father of A.N., and the biological father of B.N., who had not yet been identified. Only S.N. is a party to this appeal.

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with the Division and the court ordered a psychological

evaluation of the maternal grandmother, L.N., to determine if she would be suitable for placement. The court ordered S.N. to complete a psychological evaluation for dispositional purposes, submit to random urine screens, and attend substance abuse

treatment and ADV. S.N. was allowed to continue her visitation with the children. Thereafter, two case management conferences were also held.

A fact-finding hearing began on March 17, 2014, and concluded on April 1, 2014. The Division presented six

witnesses: caseworker Wilson and caseworker Zeccardi; Marroquin, Corcoran, and Levy from SOS; and Stacey Bosso from Preferred Children's Services (PCS). Likewise, the Division moved

fourteen exhibits into evidence, without objection, including Division screening summaries from prior incidents with S.N. dating back to September 2011, the Division's investigation summary from September 9, 2013, the PCS Substance Abuse

evaluation, and a lab report for the September 12, 2013 urine screen.

Wilson testified as to S.N.'s extensive history with the Division. Further, she testified as to the events in September 2013, where the Division received the referral contained in her report. Wilson testified that based on the conversations with

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S.N., and her observations of S.N.'s interactions with B.N. and A.N, the Division was concerned about S.N.'s mental health and her neglect of B.N. and A.N. This concern arose from S.N.'s rapid speech, not letting anyone finish a sentence without being cut off and speaking "in circles" about the same things

repeatedly. Further, S.N. left the children unattended, B.N. had a rash on his genital area, and S.N. ignored the children when they were crying and screaming.

On cross-examination, Wilson testified that during the day she spent with S.N. and the children, there were multiple times S.N. left either or both children unattended for up to thirty minutes. Wilson testified that S.N. fed three-month-old A.N. with a bottle propped up with a pillow and walked away, leaving the baby alone. Throughout the course of the day, Wilson

observed S.N. to be erratic and verbally aggressive, consistent with what the SOS staff had reported. Further, until the

Division informed S.N. that it was to remove the children, S.N. showed no affection towards the children.

Levy testified that she is the Director of the Children's Program at the Bergen County SOS location. S.N. was a resident at SOS from August 29, 2013 through September 10, 2013, with her children. Levy testified that B.N. was often left attended in the common spaces and this was a safety concern. Levy had

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spoken to S.N. about it, but S.N. continued to leave B.N. unattended. Similarly, S.N. left A.N. in her car carrier

unattended several times, and when Levy addressed this, S.N. did not comply. Levy testified that based on her observations, she was concerned for the children's physical and emotional safety and that is why she called the Division.

Marroquin testified that she was S.N.'s case manager while at SOS. Marroquin conducted S.N.'s intake, explaining the rules of the shelter. During intake, A.N. was upstairs alone

sleeping, already violating the shelter rule of having the child or a baby monitor with you. S.N. also asked for Xanax at this time.

Marroquin recounted an incident where, after helping take B.N. from his car seat and giving B.N. to S.N., S.N. came into the shelter with only A.N. B.N. was eventually located five to ten minutes later alone in the parking lot.

Corcoran testified that she was the Associate Executive Director of SOS for twenty-one years. She testified her level of interaction with S.N. was more than she typically had with residents. Based on what was reported and her observations, Corcoran felt that B.N. and A.N. were at risk because S.N. did not seem aware of where the children were or capable of juggling the two children sometimes. Further, in all twenty-three years'

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experience, Corcoran had only contacted the Division approximately two to four times a year.

Zeccardi testified that she assisted Wilson in the

investigation of the neglect allegations of B.N. and A.N. by S.N. She testified as to the events contained in the report. Zeccardi testified that during the day she spent with S.N. and the children, she observed no interaction between S.N. and the children and little affection. Zeccardi never observed S.N. change either child's diaper. Further, Zeccardi had to tell S.N. that B.N. needed to eat. She testified that S.N. fed

three-month-old A.N. with a bottle propped up with a pillow and walked away to smoke a cigarette, leaving the baby alone

unattended.

Stacey Bosso testified that she is a substance abuse assessment counselor intern with PSC. S.N.'s urine screen of September 12, 2013 was positive for THC,4 Oxycodone, and

Benzodiazepines. Bosso conducted a substance abuse evaluation of S.N. on September 24, 2013. Bosso asked S.N. if she was prescribed any medication and S.N. reported that she was not. When confronted with the results of the urine screen, S.N. stated she took an unknown pill from her medicine cabinet that

4 THC, tetrahydrocannabinol, is the active chemical in marijuana.

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could have been a Benzodiazepine; she denied using marijuana, but stated she was in the car with someone using it forty days before, and explained that she was prescribed Oxycodone.

The defense presented two witnesses, Lawrence Rosen and S.N. The medical records from HUMC for B.N. and A.N. were also admitted into evidence. The court determined that Rosen did not have personal knowledge of S.N. and her conduct, and disregarded Rosen's testimony "in toto."

S.N. testified that when the Division came to her room, there was an odor of urine because the garbage contained dirty diapers she had just changed. S.N. claimed she asked someone to supervise A.N. while she bathed B.N. and that the baby monitor was working. She claimed the only time she ever propped a

pillow up with a bottle for A.N. was when she was seated next to her.

On cross-examination, S.N. testified that during the time she was bathing B.N., A.N. was not crying but content, and Zecarrdi did not call for her to tend to A.N. She testified that it was not true that she had failed to change the

children's diapers during the time the workers were with them. S.N. also maintained that she had not left A.N. in the bouncer chair alone and was in close proximity. S.N. testified that during that day, she fed A.N. a bottle every three hours and she

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did not prop a bottle up to feed her. Further, S.N. testified that she never left B.N. alone in the bathtub.

The Law Guardian presented no witnesses and offered no

documentary evidence, but supported the Division's position that S.N. neglected B.N. and A.N.

Judge Margaret Foti issued her oral decision and entered an accompanying order, finding by a preponderance of the evidence that S.N. abused or neglected B.N. and A.N. as defined by

N.J.S.A. 9:6-8.21(c)(4)(b). Further, S.N. was ordered to attend a psychiatric evaluation.

The court found all Division witnesses to be credible. Conversely, S.N.'s testimony was not found to be reliable or credible. The court found that:

What I do know based upon the testimony is that these children were not actively supervised and this mother placed the children at risk of harm. Based upon the mountain of evidence that has been . . . presented by the Division both through witnesses and documents over two days of hearings, the Court is satisfied that the Division has shown by a preponderance of the evidence that [S.N.] neglected her children by virtue of her failure to properly supervis[e] them: leaving them unattended in common areas of the shelter; leaving them

unattended while disembarking a car

resulting in [B.N.] wandering around in a parking lot; leaving them unattended in various rooms of the shelter, her bedroom, the bathroom.

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I also noted that there's a — there was a failure to properly care for the children. Dirty diapers, cereals — cereal in a bottle. There was a failure to make an adequate plan for the children. There was disruption of the placement where she and her children were to the detriment of her children. And this disruption occurred because of her failure to cooperate with shelter rules, and in engaging in arguments with the SOS staff, to the point where SOS had to call [the Division] and ask [S.N.] to leave.

Further, the court concluded "[t]his is not benign neglect. This is not mere negligence. This is gross negligence."

The court continued S.N.'s children in the custody of the Division through the conclusion of the litigation on October 7, 2014, when the guardianship proceeding commenced. This appeal ensued.

II.

On appeal from an order finding abuse or neglect, the appellate court must determine whether the trial judge's

decision was based on evidence supported by the record before the court. See N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 25—26, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013); see also N.J. Dep't of Children &

Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013) ("The Division bears the burden of proof at a

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factual findings "unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citations and internal quotation marks omitted).

Even when a party appealing a decision "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be accorded unless the court "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) (citations and internal quotation marks omitted). That is because, "by virtue of its specific

jurisdiction, the Family Part possess[es] special expertise in the field of domestic relations." N.J. Div. of Youth and Family Services v. R.G., 217 N.J. 527, 553 (2014) (alteration in

original) (citation and internal quotation marks omitted). "Nevertheless, the trial judge's findings are not entitled to that same degree of deference if they are based upon a

misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Title Nine, N.J.S.A. 9:6-8.21 to -8.73, sets forth the controlling standards for adjudicating cases of abuse and

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neglect. N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011). Title Nine's main precept is to protect

children from circumstances and actions that threaten their welfare. G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999). The statute defines an "abused or neglected child" as one:

[W]hose 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 . . . .

[N.J.S.A. 9:6-8.21(c)(4)(b).]

At the statutorily-required fact-finding hearing, the Division bears the burden of proof. N.J. Div. of Child Prot. &

Permanency v. Y.N., 220 N.J. 165, 178-79 (2014). Generally, "any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and [] only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b).

However, where there is no evidence of actual harm to the child, "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)). Our Supreme

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Court has noted that "we do not require expert testimony in abuse and neglect actions. In many cases, an adequate

presentation of actual harm or imminent danger can be made without the use of experts." Id. at 29.

A "minimum degree of care," as required by the statute, does not refer to merely negligent conduct, but rather "'to conduct that is grossly or wantonly negligent, but not

necessarily intentional.'" T.B., supra, 207 N.J. at 305

(quoting G.S., supra, 157 N.J. at 178). "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." G.S., supra, 157 N.J. at 178 (citation omitted). The essence of gross or wanton

negligence is that it "implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citations omitted).

Whether conduct is merely negligent, as opposed to grossly or wantonly so, is determined by a fact-sensitive inquiry where the conduct is "evaluated in context based on the risks posed by the situation." T.B., supra, 207 N.J. at 309. While the

Division must demonstrate "the probability of present or future harm" to the child, "[a] court 'need not wait to act until a child is actually irreparably impaired by parental inattention

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or neglect.'" A.L., supra, 213 N.J. at 23 (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).

The Division and Law Guardian argue that S.N.'s repeated failure to attend to B.N. and A.N.'s basic needs, such as properly feeding them, changing their diapers, and failing to supervise them in common areas of the shelter placed them at substantial risk of harm and rose to the level of gross

negligence. Defendant asserts that the court's finding that she failed to actively supervise B.N. and A.N. is not supported by the record, and that her actions were merely negligent, making it improper to substantiate her for abuse or neglect.

Here, the judge carefully weighted the testimony of the witnesses and the documentary evidence. She assessed the

witnesses' credibility, and in considering the totality of the circumstances, found that S.N. neglected her children pursuant to N.J.S.A. 9:6-8:21(c)(4)(b) when she failed to properly

supervise them, frequently left them unattended, and failed to properly care for them. There was sufficient credible evidence to support this conclusion.

There is no evidence that the testimony from the employees of SOS chronicling S.N. leaving the children unattended was not credible. In fact, this testimony was supported by the Division workers' observations when they went to investigate the

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referral. S.N. left several times throughout the day to smoke cigarettes and talk on the phone without making sure the

children were supervised. The workers observed that S.N. did not change the babies' diapers and did not properly feed them. Further, there was no positive interaction or nurturing behavior exhibited during the workers' time spent with S.N. and the

children. The children here were very young, needing consistent supervision and care. As testified by the various SOS employees and Division caseworkers, S.N. failed to meet the children's needs, amounting to gross negligence. The evidence also

supports the court's finding that defendant exhibited signs of a substance abuse issue.

Viewing defendant's actions in their totality, the Division provided sufficient credible evidence that defendant was grossly negligent in failing to provide the minimum degree of care for her two very young children. In light of the record and

governing law, we conclude the trial court did not err in determining defendant abused or neglected B.N. and A.N.

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