New Jersey Division of Child Protection and Permanency vs.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2436-13T3

NEW JERSEY DIVISION OF CHILD APPROVED FOR PUBLICATION
PROTECTION AND PERMANENCY,
June 8, 2015
Plaintiff-Respondent,
APPELLATE DIVISION
v.

J.C.,

Defendant-Appellant,

and

C.M.,

Defendant.
_____________________________________

IN THE MATTER OF
T.M., a minor.
__________________________________________

Submitted May 4, 2015 – Decided June 8, 2015

Before Judges Sabatino, Simonelli, and
Guadagno.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Essex County, Docket No. FN-07-456-12.

Joseph E. Krakora, Public Defender, attorney
for appellant (Beth Anne Hahn, Designated
Counsel, on the brief).

John J. Hoffman, Acting Attorney General,
attorney for respondent (Andrea M.
 Silkowitz, Assistant Attorney General, of
counsel; Thomas Ercolano, III, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor T.M. (Lisa M.
Black, Designated Counsel, on the brief).

The opinion of the court was delivered by

GUADAGNO, J.A.D.

Following a Title Nine fact-finding hearing, a Family Part

judge determined that defendant J.C. (Jenny)1 abused or neglected

her then three-year-old son, T.M. (Tom). The judge found that

on July 19, 2012, Jenny drank alcohol and remained in her

bedroom through the following morning with the bedroom door

closed, while Tom was in the next room unsupervised, wearing a

dirty diaper, with the apartment door ajar.

On appeal, Jenny claims that the Division of Child

Protection and Permanency (Division) failed to prove that she

neglected her child. The Division and the child's Law Guardian

urge us to affirm the judge's finding. Because Tom was not

injured and Jenny's conduct did not rise to the level of gross

negligence or reckless disregard for Tom's safety, we reverse.

1
We employ pseudonyms to protect the privacy of the parties and
for ease of reference.

2 A-2436-13T3
 I.

The Division first became involved with this family in

August 2010, when it received a referral that Tom, who was then

one year old, was living with Jenny and her mother, D.C.

(Denise), in unsanitary conditions. The allegations were

substantiated and the Division began to provide services for the

family. It is not disputed that Jenny attended all recommended

evaluations including psychological evaluations with Drs. Briana

Cox and Mark Singer, a psychiatric evaluation with Dr. Samiris

Sostre, a substance abuse evaluation with Catholic Charities,

and a neuropsychological evaluation with Dr. Jonathan Mack.

Jenny told Dr. Cox that she smoked marijuana before Tom was

born and drank alcohol occasionally. Cox recommended that Jenny

submit to a substance abuse evaluation and a urine screening.

Dr. Sostre concluded that Jenny had no acute symptoms of mood

disorder, anxiety disorder, or psychiatric disorder that would

require treatment and no psychiatric care was indicated. Dr.

Mack recommended individual counseling by a psychologist and

parent training. Neither Cox, Sostre, nor Mack made any finding

of alcohol abuse.

Jenny submitted to a substance abuse evaluation with

Catholic Charities on April 5, 2011. On several occasions in

the report, the following comment is repeated:

3 A-2436-13T3
 Client reports that she was 21 years of age
when she first drank alcohol and will have
an occasional social drink. Client reports
one experimental use of marijuana when she
was age 19, no more since that time.

Catholic Charities did not diagnose Jenny with a drug or alcohol

disorder. Rather, it deferred diagnosis without further

explanation.

In August 2011, Jenny submitted to a drug screen that was

negative for drugs and positive for alcohol. After she again

tested positive for alcohol in January 2012, the Division filed

an order to show cause on March 8, 2012, seeking care and

supervision of Tom pursuant to Title Thirty, N.J.S.A. 30:4C-12.

The Family Part judge granted the application and told defendant

that the Division wanted her to comply with the recommendations

contained in Dr. Mack's report, specifically that she engage in

counseling, cooperate with a home health aide, and receive

parenting skills training. Defendant agreed.

Defendant returned to court on April 2, 2012 for a hearing

on the return of the order to show cause. The caseworker told

the judge that defendant's parenting class would begin on the

following day and counseling within a few weeks. Although there

had been no diagnosis of any alcohol-related disorder by any of

Jenny's evaluators, the deputy attorney general (DAG) advised

the court of an "update" that the Division had arranged for

4 A-2436-13T3
Jenny to participate in an alcohol treatment program that was

scheduled to begin on April 12, 2012. The DAG then requested

that Jenny submit to a urine screen in the courthouse that day

to screen for alcohol, even though the DAG was not sure the

courthouse urine screens could detect alcohol. The judge asked

Jenny if she would submit to the on-site urine screen. She

replied that she would prefer to wait until her treatment began

in ten days.

Jenny then asked why she was being required to participate

in more services than were originally proposed at the March 8,

2012 hearing. Without questioning the basis of the DAG's

recommendation, the judge told Jenny that the Division had

alleged that she was "involved with using alcohol and [her]

drinking . . . [was] of significant concern[] to them." The DAG

then incorrectly represented to the court that Dr. Mack had

recommended that Jenny participate in alcohol treatment.

Even though Jenny had not refused to participate in any of

the services offered, the judge, perhaps relying on the

misstatement by the DAG about Dr. Mack's recommendations,

suggested that the Division "should be taking the child away

from [Jenny] if she doesn't participate in all those services."

The judge then characterized Jenny's questioning of the

additional services as "wanting to fight back[.]" Although

5 A-2436-13T3
Jenny had agreed to participate in all recommended services, the

judge characterized her wish to postpone the urine screen as

being "reluctant to participate in services[.]" The judge then

suggested that the matter be converted from a Title Thirty to a

Title Nine litigation and offered to list the matter for a fact-

finding.

Around noon on July 20, 2012, Jordan Brown, a therapist

assigned to provide counseling to Jenny, accompanied caseworker

Kimberly Chalmers to Jenny's apartment for an intake

appointment. They noticed that the door to Jenny's apartment

was ajar, and when they knocked on the door and called for

Jenny, there was no response. Chalmers pushed open the door and

entered the apartment. She observed Tom walking around wearing

a dirty diaper.

Jenny emerged from the bedroom, and Chalmers noticed she

appeared disheveled and had alcohol on her breath. After

Chalmers mentioned Tom's dirty diaper, Jenny initially told the

child to "go get a Pamper and change yourself." When Chalmers

suggested that Tom should be cleaned, Jenny went into the

bathroom with the child, cleaned him up, and put a new diaper on

him. When asked about the alcohol smell, Jenny stated that she

had some of her girlfriends over the night before and they drank

wine. She claimed that Tom had been with his father, who

6 A-2436-13T3
dropped him off around 11:00 p.m. Jenny claimed her friends

left and she had stopped drinking by 10:30 p.m. When asked

about the door, Jenny explained that one of her girlfriends had

been there earlier that morning and must have left it open.

After conferring with her supervisor, Chalmers told Jenny

that the Division was going to remove Tom from her custody

because of inadequate supervision and place him with Jenny's

mother, Denise.

The Division filed a Title Nine complaint for custody on

July 24, 2012, and sought a finding of abuse or neglect against

Jenny. A fact-finding hearing was initially scheduled for

August 16, 2012. On August 3, 2012, the court entered an order

postponing the fact-finding to October 22, 2012. On October 22,

2012, Jenny appeared but the fact-finding was again postponed

until November 9, 2012. On that day, Jenny did not appear and

her counsel requested an adjournment as she had been unable to

contact Jenny. Counsel explained that Jenny did not have a

phone but she had attended that last hearing and thought she

would want to attend the fact-finding. A Division supervisor,

Kerline Fils-Aime, told the judge that the caseworker had gone

to Jenny's home the day before but was not able to get in the

building. The judge denied the adjournment, noting that the

7 A-2436-13T3
fact-finding had already been postponed because of a hurricane2

and he had to address an "enormous amount" of fact-findings and

permanency hearings.

Fils-Aime testified based primarily on reports filed by

Chalmers. She confirmed that after Jenny submitted to a

substance abuse evaluation, there was no recommendation for

follow-up care.

The Division also called Jordan Brown, who testified that

when she and Chalmers entered the apartment, she noticed that it

was dirty and smelled of alcohol. She also described Tom's

diaper as "filthy," but explained that it was a white pull-up

diaper, and appeared dirty on the outside. Brown did not

observe the condition of the inside of the diaper. Brown also

smelled alcohol on Jenny's breath.

At the conclusion of the Division's case, Jenny's counsel

again asked the judge to continue the matter so that Jenny could

testify. Counsel indicated that Jenny disputed the allegations

and wanted to testify. Counsel also noted that Jenny had been

present on October 22, 2012, when the matter was last scheduled

for fact-finding. The judge denied the application, noting that

Jenny "knew we needed to move this case. . . . She knew that

this case was coming up. She knew that it had to be heard. If

2
Hurricane Sandy struck New Jersey on October 29, 2012.

8 A-2436-13T3
she wanted an opportunity to testify she should have been here,

she should have known."

The judge rendered an oral decision, finding both witnesses

called by the Division "very credible," even though Fils-Aime

was not present on July 20, 2012, had no first-hand knowledge of

the events of that day, and did little more than recite

information contained in Division reports. The judge observed

that the caseworker found that Jenny's apartment had roaches and

was "filthy," although he acknowledged that this may be a better

indicator of poverty than child abuse.

The judge also found that the Division had provided

services to Jenny "to address issues of alcohol . . . as well as

drugs." The judge concluded that Jenny "was familiar

with . . . [t]he fact that there was a drug and alcohol

problem." The judge noted that when the caseworker and Brown

spoke with Jenny, they noticed alcohol on her breath. Jenny

told the caseworker that she had stopped drinking when her

friends left at 10:30 p.m., and she did not drink after Tom was

returned to her at 11:00 p.m. The judge rejected this statement

based on a sua sponte calculation of Jenny's alcohol metabolism:

Alcohol generally burns off a[t] one ounce
of alcohol per hour. Four ounces of wine,
one ounce of vodka. If you stop drinking at
10:30 the night before you would not still
have alcohol on your breath and still be in
bed by noon the following day. [Y]ou might

9 A-2436-13T3
 be there with a hangover, but you wouldn't
have alcohol fresh on your breath.

Employing this analysis, the judge concluded that Jenny "had

been drinking and had been drinking much later during a period

of time while this child was in her sole custody." The judge

also noted that, because the door to the apartment was ajar, Tom

could have walked out and fallen down the steps without Jenny

knowing because her bedroom door was closed.

The judge was also critical of Jenny's initial decision to

have Tom change his own pull-up diaper, "without any sort of

hygiene to address what may very well have been on a two-year

old over an extended period of time."3 The judge concluded that

it

seems [a] fair and reasonable inference to
make if the diaper was so old and dirty on
the outside, that it must have been on there
for a long period of time. And children
need to use facilities more often than that.
So that it would have been important, at
least for her, as a mother to check and see
whether the child needed some care before
simply placing another diaper on the child.

The judge found that the Division had proven that Jenny

abused or neglected Tom and entered an order with the following

conclusions:

3
Chalmers testified at the hearing on the order to show cause
that, after she urged Jenny to clean Tom, Jenny took the child
into the bathroom, cleaned him up, and he came out wearing a
clean Pamper.

10 A-2436-13T3
 [Jenny] has failed to attend her court
ordered substance abuse treatment on a
consistent basis. [Jenny's] apartment
smelled of alcohol, she admitted to drinking
alcohol until 10:30 p.m. the night before
and she still had alcohol on her breath at
12 p.m. on July 20, 2012 when the Division
worker and a therapist arrived for a
scheduled appointment. [Jenny] was not
dressed and asleep behind a closed bedroom
door and the apartment door was left open.
The child was wandering around the
apartment, unsupervised and with a dirty
diaper. [Jenny] failed to appreciate the
risk of harm that the situation presented to
her child.

Jenny attended thirty-two group and individual sessions at

The Bridge Addiction Services (Bridge). On October 19, 2012,

Bridge provided a report to the Division indicating that

"[Jenny] has attended all scheduled activities and continued to

submit negative urine drug screens. Based on her level of

participation she is on track to complete treatment on November

20, 2012."

The parties next appeared in court on February 25, 2013,

for a compliance review. Based on the Division's

recommendation, the judge ordered that Tom could be reunified

with Jenny and legal and physical custody of him could be

transferred to her without further of the court. In spite of

this order and Jenny's completion of services, Tom was not

reunified with Jenny until August 22, 2013. Litigation was

terminated in December 2013 and this appeal followed.

11 A-2436-13T3
On appeal, defendant raises the following arguments:

THE APPELLANT WAS DENIED DUE PROCESS AND THE
DIVISION FAILED TO PROVE BY A PREPONDERANCE
OF THE EVIDENCE THAT THE APPELLANT NEGLECTED
HER CHILD.

POINT I

THE APPELLANT WAS DENIED DUE PROCESS.

A. THE COURT INAPPROPRIATELY
THREATENED THE APPELLANT AT THE
ORDER TO SHOW CAUSE FOR CARE AND
SUPERVISION.

B. THE TRIAL COURT ERRED IN
DENYING APPELLANT THE RIGHT TO
TESTIFY.

POINT II

THE DIVISION FAILED TO PROVE THAT APPELLANT
NEGLECTED HER CHILD.

A. INADEQUATE SUPERVISION

B. MEDICAL NEGLECT

C. ENVIRONMENTAL CONDITIONS

D. INDIVIDUALS WITH INTELLECTUAL
DISABILITIES

II.

An "abused or neglected child" is defined as:

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 parent or
guardian, as herein defined, to exercise a
minimum degree of care . . . (b) in
providing the child with proper supervision
or guardianship, by unreasonably inflicting

12 A-2436-13T3
 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).]

Where, as here, there is no actual harm alleged, the court

must focus on "the likelihood of future harm," taking into

consideration events after the removal "if causes for concern

have been significantly alleviated." N.J. Div. of Youth &

Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004),

certif. denied, 182 N.J. 426 (2005). We therefore must

determine whether Jenny failed to exercise a minimum degree of

care when she drank on the evening of July 19, 2012, and slept

late the next morning, leaving Tom unsupervised, wearing a dirty

diaper, and with her apartment door ajar.

In G.S. v. Department of Human Services, 157 N.J. 161, 177-

78 (1999), the Court discussed the "minimum degree of care"

standard and determined that it refers to conduct that is

grossly or wantonly negligent, but not necessarily intentional.

We applied this standard in New Jersey Department of Youth &

Family Services v. J.L., 410 N.J. Super. 159, 161 (App. Div.

2009), in reversing a finding of abuse or neglect against the

mother of a three-year-old and a five-year-old who allowed them

to walk from a playground to their home while she remained at

13 A-2436-13T3
the playground. After the children entered their home, a child-

proof door closed behind them, locking them in. Id. at 161-62.

They called 9-1-1 and the police arrived to unlock the door.

Id. at 162. Although the children were upset, they were

unharmed. Ibid. In reversing, we found that the mother's

conduct, "although arguably inattentive or even negligent," did

not meet the requisite standard contemplated by G.S. Id. at

168.

The Supreme Court considered a similar case of inadequate

supervision in Department of Children & Families, Division of

Youth & Family Services v. T.B., 207 N.J. 294 (2011). In T.B.,

the Court reversed a finding of neglect against the mother of a

four-year-old, who left the child in his grandparents' home

mistakenly believing that the grandparents, who frequently cared

for the child, were home. Id. at 296. The child woke up, found

that no one was home, and walked across a street to a neighbor's

house. Id. at 297. The police were contacted and the Division

was notified. Ibid. The Division later determined that the

mother had neglected the child. Id. at 298-99. The Court held

that the mother's failure to check to see if the grandparents

were home before she left was negligent but did not rise to the

level of gross negligence. Id. at 309.

14 A-2436-13T3
 Here, the March 8, 2012 order granting the Division care

and supervision of Tom directed the Division to refer Jenny for

parenting skills, individual therapy, and a substance abuse

evaluation. Evaluations of Jenny by Doctors Cox, Singer,

Sostre, Mack, and Catholic Charities failed to identify any drug

or alcohol abuse problem.

In March 2012, when the judge concluded that Jenny was

aware that she had "a drug and alcohol problem," there was

nothing in the record to support either the existence of a

problem or her awareness of same.4 Not only did the evaluators

find no alcohol issue, but Jenny consistently maintained that

she drank in moderation and not when Tom was around. The

judge's conclusion that the smell of alcohol on Jenny's breath

was proof that she continued to drink alcohol after Tom was

returned home was speculation. Even if Jenny had continued to

drink, as the judge surmised, and slept in late the next morning

as a result, there is no proof that her behavior created a

substantial risk of harm to Tom. See N.J. Div. of Youth &

Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011)

(reversing finding of neglect against father who refused to

attend substance abuse treatment and tested positive for cocaine

4
On April 12 and 16, 2012, Jenny tested positive for THC, the
primary component of marijuana.

15 A-2436-13T3
and marijuana during supervised visits because there was no

proof of actual harm to child and no expert evidence that father

posed a risk during visits).

Tom never left the apartment and Jenny changed his diaper,5

albeit after being prompted by the caseworker. Further, there

was no proof that Jenny was aware that her apartment door was

left ajar and her explanation that a friend who visited earlier

that day left the door open was not challenged.

To hold that a parent who, on a single occasion, has too

much to drink and sleeps in late the next day while his or her

child walks around in a dirty diaper commits child abuse would

classify many otherwise responsible parents as child abusers.

See ibid. ("The Division would be quickly overwhelmed if law

enforcement was required to report every individual under the

influence who had children."). Simply put, there was no proof

of harm to Tom, or that Jenny's conduct met the statutory

standard of abuse or neglect. Even if we accepted the court's

finding that Jenny "failed to attend her court ordered substance

5
We are aware of the importance of providing proper hygiene to
children and that the failure to change a toddler's diaper can
result in complications. See Ch Li, Zh Zhu, & Yh Dai, Diaper
Dermatitis: a Survey of Risk Factors for Children Aged 1 – 24
Months in China, 40 J. Int'l Med. Res. 1752 (2012). However, no
proof was presented that Tom suffered any resultant health
consequences from wearing the dirty diaper.

16 A-2436-13T3
abuse treatment on a consistent basis," that does not constitute

abuse or neglect as a matter of law. Id. at 332.

As we find the evidence insufficient to support a finding

of neglect, we need not consider the other claims raised.

However, we feel compelled to address the following issues.

When the DAG informed the court on April 2, 2012, that Dr.

Mack had recommended alcohol treatment services and the Division

had arranged for Jenny to participate in a treatment program,

the court accepted the representation without question.6 When

Jenny understandably asked why she was being required to

complete additional services, the judge commented that she was

fighting back and suggested that her child would be taken away

"if she doesn't participate in all those services."

Services provided by the Division should be designed to

address an area of legitimate concern and not imposed

arbitrarily. See N.J. Div. of Youth & Family Servs. v. I.S.,

6
We stress the importance of accuracy in representations made to
the court by the Division's attorneys about an evaluator's
treatment recommendations. The judges who hear children-in-
court cases typically handle high volumes and must make
critical, fact-sensitive decisions about the welfare of children
under significant time pressures. Their judicial functions are
surely hampered where, as here, the DAG misrepresented the
services that an expert evaluator had recommended a parent to
receive. This case illustrates how such a misstatement,
although presumably unintended, can materially affect a case and
divert it down the wrong path, resulting in this child's removal
and separation from his mother for more than a year.

17 A-2436-13T3
202 N.J. 145, 178 (2010) (criticizing Division for requiring

father who had successfully raised four children to complete

"utterly irrelevant" parenting classes). Before ordering

compliance with a particular service recommended by the

Division, a judge should be satisfied that there is a legitimate

basis and real need for it. Failure to do so may cause

unnecessary delays and discourage otherwise willing parents from

compliance with needed services. The Division's claim and the

judge's conclusion that Jenny had an alcohol problem is

untethered to any record evidence in this case and thus formed

an inappropriate basis for the finding of neglect.

We reject the Division's argument that a defendant in a

Title Nine fact-finding hearing does not have a right to

testify. Due process is a constitutional right that must be

"scrupulously protected" by our courts. N.J. Div. of Youth &

Family Servs. v. G.M., 198 N.J. 382, 397 (2009). At a minimum,

due process requires that a parent charged with abuse or neglect

have "adequate notice and an opportunity to prepare and

respond[.]" N.J. Div. of Youth & Family Servs. v. N.D., 417

N.J. Super. 96, 109 (App. Div. 2010).

The request for a continuance to allow Jenny to testify

required more than a conclusory reference to the court's backlog

in denying her application. This error was amplified when the

18 A-2436-13T3
court categorically rejected Jenny's "version of the events"

that she stopped drinking at 10:30 p.m., without at least

hearing her testimony and evaluating her credibility and

demeanor.

Finally, we reject the Division's argument that because

"[Jenny] was reunified with her son and legal custody was

transferred back to [her, she] suffered no harm by not being

able to testify[.]" As to the child, given the questionable

circumstances surrounding this removal and the excessive delay

in reunification, we are compelled to reemphasize the harmful

effects that improvident removal can have on young children.

N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610

(1986) (citation omitted). As to Jenny, our courts have

repeatedly acknowledged the "significant and longstanding

adverse consequences" that may result from a parent's placement

on the child abuse registry. N.J. Div. of Child Prot. &

Permanency v. Y.N., 220 N.J. 165, 179 (2014); N.J. Dep't of

Children & Families v. A.L., 213 N.J. 1, 25 (2013).

Reversed. The Division is directed to remove defendant's

name from the Child Abuse Registry within ten days of the date

of this opinion.

19 A-2436-13T3