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NOT FOR PUBLICATION WITHOUT THE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-4618-15T1
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
F.S.,
Defendant-Appellant,
and
M.F. and D.B.,
Defendants.
——————————————————————————————
IN THE MATTER OF A.S, D.S., and
D.B.,
Minors.
———————————————————————————————
Submitted September 26, 2017 – Decided October 5, 2017
Before Judges Reisner and Hoffman.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FN-03-0116-16.
Joseph E. Krakora, Public Defender, attorney
for appellant (Sarah M. Dingivan, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent, (Melissa H. Raksa,
Assistant Attorney General, of counsel; Hannah
F. Edman, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor D.S. (Charles
Ouslander, Designated Counsel, on the brief).
PER CURIAM
Defendant F.S. appeals from a February 12, 2016 fact finding
order determining that she neglected her son D.S. (Daniel)1 within
the meaning of Title 9, N.J.S.A. 9:6-8.21(c)(4)(a), by failing to
provide proper dental care.2 We affirm.
The Division of Child Protection and Permanency (Division)
first became involved with defendant and her children in 2008,
upon receipt of an allegation of illegal drug use, followed by
four reports of abuse or neglect over the next six years. These
allegations were all deemed unfounded. At the time the Division
filed its complaint for custody in October 2015, defendant was the
mother of five children between the ages of two and ten, including
then four-year-old Daniel.
1
We refer to D.S by a pseudonym for anonymity and ease of
reference.
2
The February 12, 2016 order was perfected for appeal when the
trial court entered a final order on May 19, 2016 terminating
litigation.
2 A-4618-15T1
The case under review began on October 13, 2015, when the
Division received an allegation defendant was abusing her oldest
son. After speaking with him at his school, the Division completed
an emergency removal of all five children. Upon entering
defendant's home, the Division workers found the children dirty,
without adequate clothing. The workers also noted the children
had rotten teeth, and Daniel's teeth were "really in bad shape."
The Division substantiated defendant for neglect of all five
children.
At an October 16, 2015 hearing, the court ordered Daniel and
one of his siblings returned to defendant's custody,3 with the
Division to retain care and supervision. The court further
ordered, "All the children shall be seen by a dentist."
At the fact finding hearing, a photograph admitted into
evidence showed Daniel's teeth were rotten and his gums black.
Defendant testified Daniel's teeth were rotten due to lack of
calcium. Defendant further testified Daniel had been to the
dentist and the dentist recommended Daniel see a pediatric dentist.
However, defendant failed to take Daniel to the recommended dentist
because it was "far out of [the] way." Defendant did take Daniel
to the dentist after the court ordered her to do so, and Daniel's
3
At the same hearing, defendant consented to the placement of her
remaining children with relatives.
3 A-4618-15T1
front baby teeth were removed. Defendant's oldest son also
experienced the same issues and had his front baby teeth removed
when he was about the same age as Daniel. Defendant admitted a
dentist told her she should brush the children's teeth to prevent
rotting.
At the end of the fact finding hearing, the judge rendered
an oral opinion, concluding defendant neglected Daniel, "pursuant
to the definitions of Title 9," by "grossly neglect[ing] to tend
to [Daniel's] dental needs."4 The judge found defendant's
explanations regarding the state of Daniel's teeth lacking in
credibility. He reasoned that defendant was told how to rectify
the problem with Daniel's teeth and failed to do so; allowing
Daniel's teeth to get to the rotten state they were in constituted
neglect.
On this appeal, we are bound to accept the trial judge's
factual findings so long as they are supported by sufficient
credible evidence. N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 448-49 (2012). While we review a trial judge's
legal conclusions de novo, we owe particular deference to the
judge's expertise in family-related issues. Id. at 448; Cesare
v. Cesare, 154 N.J. 394, 413 (1998). However, we grant no
4
The judge found the Division did not sustain its burden of
establishing neglect regarding defendant's four other children.
4 A-4618-15T1
deference to the Family Part if the judge's findings "went so wide
of the mark that the judge was clearly mistaken." N.J. Div. of
Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Based
on our review of the record, we find no basis to disturb the trial
judge's decision.
Defendant argues the record lacks adequate credible evidence
to support the trial judge's finding of neglect. Specifically,
defendant argues the judge erred in finding defendant failed to
meet the "minimum degree of care" required by N.J.S.A. 9:6-
8.21(c)(4), asserting the Division needed an expert to prove Daniel
suffered harm or was at substantial risk of harm.
The focus in abuse and neglect cases is to protect children
who have been abused or are at risk of being harmed. N.J. Div.
of Youth & Family Servs. v. A.L., 213 N.J. 1, 18 (2013). Under
Title 9, an abused or neglected child is defined 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 (a) in supplying the
child with adequate food, clothing, shelter,
education, medical or surgical care though
financially able to do so or though offered
financial or other reasonable means to do so
. . . .
[N.J.S.A. 9:6-8.21(c).]
5 A-4618-15T1
"[T]he phrase 'minimum degree of care' refers to conduct that
is grossly or wantonly negligent, but not necessarily
intentional." G.S. v. N.J. Div. of Youth & Family Servs., 157
N.J. 161, 178 (1999). Such misconduct occurs when "an ordinary
reasonable person would understand that a situation poses
dangerous risks and acts without regard for the potentially serious
consequences . . . ." Id. at 179. "[A] failure to provide for a
child's needs, when a parent is capable of doing so, can support
actionable neglect where a child's condition has been demonstrated
to be impaired or in imminent danger of being impaired." N.J.
Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 35 (2011).
Defendant argues her conduct did meet the "minimum degree of
care" required by N.J.S.A. 9:6-8.21(c)(4). Defendant relies on
P.W.R., supra, 205 N.J. at 38, where a step-parent failed to take
her sixteen-year-old step-daughter to the pediatrician for two
years, but the step-daughter showed no signs of harm. However,
the facts here are distinguishable from the facts of P.W.R., where
the child sustained no harm; here, we have clear evidence of harm:
Daniel's rotten teeth, and their subsequent removal. Further,
defendant knew of the consequences of failing to care for Daniel's
teeth as her oldest child experienced the same problem, requiring
the removal of his teeth when he "was [three] and a half." The
record also contains no evidence that defendant lacked the means
6 A-4618-15T1
or ability to provide Daniel with proper dental care. Clearly,
defendant's failure to seek dental care for Daniel's teeth
constitutes a failure to provide a minimum degree of care under
the neglect statute.
As noted, defendant argues the Division presented
insufficient evidence to establish neglect, asserting a medical
expert was necessary to prove either actual harm or a substantial
risk of harm to Daniel. Defendant relies on A.L., supra, 213 N.J.
at 28, which states, "When . . . the evidence presented does not
demonstrate actual or imminent harm, . . . [c]ompetent expert
testimony, stipulations, or other evidence could shed light on the
facts introduced." However, A.L. goes on to state, "In many cases,
an adequate presentation of actual harm or imminent danger can be
made without the use of experts." Id. at 29. "If scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in
issue," expert testimony is permissible. N.J.R.E. 702. However,
"expert testimony is not necessary when the subject can be
understood . . . utilizing common judgment and experience."
Campbell v. Hastings, 348 N.J. Super. 264, 270 (App. Div. 2002).
The facts of this case are distinguishable from A.L. in that
an average person can surmise the harm from rotten and missing
front teeth. In contrast, the child in A.L. had a positive blood
7 A-4618-15T1
test for a chemical unknown to the average person and no outward
physical impairment. A.L., supra, 213 N.J. at 26-27. Daniel is
missing his two front teeth because they rotted away and were
removed at the age of four. For this type of harm, we discern no
need for expert testimony.
Finally, defendant argues the trial court impermissibly
shifted the burden of proof to defendant to prove there was not
neglect. This argument lacks merit. While the court discussed
the credibility of defendant's testimony, the court did not place
the burden of proof on defendant. The Division presented extensive
testimony of Division workers who observed and spoke with the
children. The court also carefully reviewed and described the
picture of Daniel's teeth in making its finding of neglect. We
are satisfied the trial court relied on evidence presented by the
Division and did not shift the burden of proof to defendant.
Any arguments not addressed lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). In summary,
we conclude the record contains sufficient credible evidence
supporting the trial judge's determination of neglect under
N.J.S.A. 9:6-8.21(c).
Affirmed.
8 A-4618-15T1