New Jersey Division of Child Protection and Permanency v. K.N.S.

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NOT FOR PUBLICATION WITHOUT THE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

3 A-4394-13T3
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.

4 A-4394-13T3
 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.

5 A-4394-13T3
 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

6 A-4394-13T3
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).

7 A-4394-13T3
 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

8 A-4394-13T3
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

9 A-4394-13T3
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

10 A-4394-13T3
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,

11 A-4394-13T3
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

12 A-4394-13T3
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

13 A-4394-13T3
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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