DCPP VS. L.F. AND I.W., IN THE MATTER OF L.W. (FN-07-0596-14, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-1306-16T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

L.F.,

Defendant-Appellant,

and

I.W.,

Defendant.

_________________________________

IN THE MATTER OF L.W., a minor.

_________________________________

Argued May 30, 2018 – Decided August 1, 2018

Before Judges Carroll, Mawla, and DeAlmeida.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FN-07-0596-14.

Adrienne M. Kalosieh, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
 Kylie A. Cohen, Assistant Deputy Public
Defender, on the briefs).

Fatime Meka, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal,
Attorney General, attorney; Jason W. Rockwell,
Assistant Attorney General, of counsel; Fatime
Meka, Deputy Attorney General, on the brief).

Nancy P. Fratz, Assistant Deputy Public
Defender, argued the cause for minor (Joseph
E. Krakora, Public Defender, Law Guardian,
attorney; Nancy P. Fratz, on the brief).

PER CURIAM

Defendant L.F.1 appeals from the September 30, 2014 order of

the Family Part finding she abused and neglected her daughter L.W.

Having concluded that the record contains insufficient evidence

to support the trial court's finding that L.F. created a

substantial risk of harm to her child, we reverse.

I.

The following facts are taken from the record. L.F. gave

birth to L.W. in May 2014. Both L.F. and her daughter had negative

drug screens at the time the child was born. Although the child

was not medically compromised, medical staff had concerns for her

safety because L.F. disclosed to them that she had a history of

substance abuse and prior involvement with the Division of Child

Protection and Permanency (DCPP or the Division), including the

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

2 A-1306-16T3
termination of her parental rights to other children. Based only

on L.F.'s reported history, hospital officials made a referral to

the Division the day after the child's birth.2

After receiving the referral, DCPP conducted an

investigation, during which L.F. and I.W., the child's father,

agreed to cooperate with any recommended services. L.F. stated

that she had not used drugs since 2007. The Division elected to

leave the child in the care of L.F. and I.W. subject to

implementation of a safety protection plan.

On June 3, 2014, the Division filed a complaint in the Family

Part for care and supervision, but not custody, of the child, and

to implement a safety protection plan. On the same day, the trial

court held an order to show cause hearing on the complaint. Both

parents were present. L.F.'s history with the Division was

detailed for the court. She admitted to not having attended

substance abuse treatment and claimed to have detoxed from drugs

during a 2007 incarceration. She testified that she refrained

2
The Division, then known as the Division of Youth and Family
Services, first became involved with L.F. in 1997, shortly after
she gave birth to a daughter. Nine additional referrals concerning
L.F.'s substance abuse and other issues followed. L.F.'s parental
rights to six of her children were terminated between 1997 and
2009. During the periods relevant to this appeal, another child
of L.F. was living with a relative out of state. In 1999, 2001,
and 2007, L.F. was found to have abused or neglected a recently
born child, born underweight after no prenatal care, and who tested
positive at birth for methadone, heroin, and/or cocaine.

3 A-1306-16T3
from using drugs since that time. L.F. admitted to having had

only two prenatal medical visits prior to delivering L.W. because

she did not know she was pregnant during the early part of her

pregnancy. She also acknowledged that while she was pregnant with

the child, I.W. was on probation for receiving stolen property,

and was arrested for theft and forgery.

A written safety protection plan was not introduced as

evidence. A Division representative, however, described the plan

as permitting the child to reside with her parents, provided that

"the paternal great grandmother would reside with them and be a

primary caretaker for that child." The plan also required the

parents to submit to psychological evaluations and periodic drug

screens. The court granted care and supervision of the child to

the Division, and released the child to her parents' custody,

conditioned on the safety protection plan.

A drug test administered to L.F. at the hearing was positive

for marijuana. I.W.'s drug screen was negative. As a result of

the positive drug screen, the Division referred L.F. to a certified

alcohol and drug counselor evaluation and placed Family

Preservation Services (FPS) in the home.

On June 10, 2014, L.F. submitted to a psychological evaluation

by Dr. Albert Griffith. She admitted to having a history of

substance abuse, and that she did not complete formal drug

4 A-1306-16T3
treatment. Dr. Griffith noted that L.F.'s affect was appropriate

and that she did not show physical signs of drug use or withdrawal

during the evaluation. He found L.F.'s narcissism scale to be

elevated.

Dr. Griffith made the following findings:

1. Given her recent use of marijuana and
insistence that she has been drug-free since
2007, there is both substance abuse and
willingness to tell an obvious lie. At the
very least this implies that her recovery is
a work in progress.

2. [L.F.'s] resistance to treatment makes
recovery difficult. The fact that she is now
age [forty] and still using, suggests that
prognosis for recovery is even poorer. When
this is combined with narcissism it makes
willingness to conform to normal standards of
behavior more difficult still.

3. [L.F.] is in her second long-term
relationship with a gentleman with little
regard for the law. In view of the fact that
her partner insists on committing the same
crimes and getting annual incarcerations, it
is unlikely that stability can become part of
this family picture.

4. [L.F.'s] continued substance abuse, lack
of treatment, and entrenched denial system
give her little chance of being able to
consistently care for the needs of an infant
without danger of neglect.

5. Were [L.F.] to be serious about recovery,
she would have to complete an IOP (sic), have
[six] months of aftercare, with consistent
urine monitoring over the entire period. In
addition[,] she would have to enter
psychotherapy to deal with some of her

5 A-1306-16T3
 abandonment and anger issues. Finally[,] she
would have to complete parenting classes.

Dr. Griffith made the following recommendations:

1. Given [L.F.'s] history and present
pattern of lying, there is little probability
that she can successfully parent the newborn.

2. The absence of her older child from her
care gives further reason for concern about
her day-to-day functioning.

3. The combination of [L.F.'s] untreated
addiction and narcissistic personality
disorder suggest that she is unlikely to be a
reasonable parent for this infant and that the
child would be placed at risk in her sole care.

On June 13, 2014, DCPP amended its complaint to seek custody

of L.W., in addition to her care and supervision. The Division

relied on Dr. Griffith's report, L.F.'s June 3, 2014 positive drug

test, her history with the Division, prior substance abuse, and

past noncompliance with Division-recommended services.

That day, the trial court held an emergent hearing on the

Division's amended complaint. Drug screens for both parents on

the day of the hearing were negative. L.F. objected to the

admission of Dr. Griffith's report, arguing that his opinion is

not reliable evidence because there is "no connection . . . between

whatever [he] is finding and actual harm or risk of harm to the

child," and because the report contains hearsay opinion. The

trial court overruled L.F.'s objection.

6 A-1306-16T3
 In addition, L.F.'s counsel argued that the court should

accept the fact that on June 3rd, the date
that [L.F.] allegedly tested positive in a
court instant test she actually has competing
documentation. She went to a clinical
laboratory and had herself tested and she's
negative. Would Your Honor accept this as
evidence to repeat that test in the file?

DCPP's counsel objected to admission of the independent test

results obtained by L.F., which he described as incomplete and

uncertified. The trial court declined to consider the test results

proffered by L.F.

The court concluded that "based on Dr. Griffith's analysis

that the Division should be granted custody" of the child. When

addressing L.F.'s objection to admission of Dr. Griffith's report

without testimony and the opportunity for cross-examination, the

court found that the Division merely needed to establish a prima

facie case to be granted temporary custody of the child and that

"[t]hey do[ not] have to prove their case today. They will do

that at a factfinding, not today. But . . . they might need the

expert to come in and testify at that time."

Notably, when discussing the safety protection plan in place

at L.F.'s home, the court noted that the child's paternal great

grandmother would be "[a] primary [caregiver] – a, not the –

because there's a difference . . . [t]here's a big difference."

7 A-1306-16T3
 The trial court granted the Division the care, custody, and

supervision of L.W. The Division placed the child in non-relative

foster care.3

On July 31, 2014, the Division determined the allegations of

abuse and neglect were substantiated. This determination was

based on the conclusion that there was a substantial risk of harm

to L.W. due to her age, L.F.'s long history of drug use and related

issues, prior terminations of parental rights, history with the

Division, the June 3, 2014 positive drug test, and alleged

violations of the safety protection plan.

On September 30, 2014, the trial court held a fact-finding

hearing. The court admitted the Division's evidence without

objection from L.F., although, as noted above, she objected to the

admission of Dr. Griffith's report without his testimony at the

June 13, 2014 hearing. A DCPP investigator testified regarding

L.F.'s extensive history with the Division, her having exposed her

children, other than L.W., to drugs and homelessness, and her

longtime use of heroin and cocaine.

3
Ultimately, L.F. completed all recommended services including
individual therapy, parenting skills, and substance abuse
treatment, and was reunified with the child. L.F. has not appealed
the trial court's decisions regarding the care, custody, and
supervision of L.W.

8 A-1306-16T3
 The investigator testified that L.F. did not seek prenatal

care while pregnant with L.W. because she thought she could not

conceive as a result of a prior surgical procedure. The

investigator also testified that L.F. was compliant with all

services offered by the Division after the child's birth. She

testified, however, that L.F. violated the safety protection plan.

According to the investigator, the plan required that L.W.'s

paternal great grandmother be present in the home "at all times,"

but was not present on three occasions when representatives

providing in-home counseling services were at the home. This

testimony contradicted testimony at earlier proceedings in which

the safety protection plan described the great grandmother as "a

primary caretaker" of the child, and not as someone who had to be

present in the home at all times. The written plan again was not

offered as evidence.

On cross-examination, the investigator admitted that on each

occasion that a Division representative visited the home, the

child's living conditions were deemed satisfactory, no drugs were

present, and no corrective action was taken or recommended by the

Division. In addition, no Division representative observed or

suspected drug or alcohol use by either parent on any home visit.

The investigator further testified that Dr. Griffith

recommended L.F. comply with a substance abuse program due to her

9 A-1306-16T3
history and positive marijuana test. The investigator was unaware,

however, of L.F. having completed any drug treatment or other

program addressing her substance abuse issues. Finally, the

investigator testified that L.F. tested positive for "gin,"

although she did not identify the date or circumstances of the

test, or explain how the test identified the type of alcohol L.F.

had consumed.

A second Division caseworker testified that she was advised

L.F. tested positive for suboxone during initial assessment after

the Division filed its complaint. No evidence of a drug test

positive for suboxone was offered as evidence. As a result of

receiving this information, the Division referred L.F. to

intensive outpatient treatment at Integrity House. The caseworker

testified that L.F.'s drug counselor informed her that L.F. tested

positive for alcohol on a number of occasions at the commencement

of the treatment program. In response to receiving this

information, the caseworker advised L.F. to abstain from all

intoxicating substances. The record contains no evidence of

alcohol use by L.F. after that advice was given.

The caseworker testified that it was the Division's intention

to refer L.F. to a domestic violence liaison at a future date

because L.F.'s drug treatment counselor noticed a bruise on L.F.

and suspected she was the victim of domestic abuse. She also

10 A-1306-16T3
testified that the Division recommended that L.F. participate in

drug treatment, parenting skills, and individual therapy services.

At the conclusion of the September 30, 2014 hearing, the

trial court issued an oral decision, finding the Division had met

its burden of proving by a preponderance of the evidence that

L.F.'s actions put L.W. at a substantial risk of harm. The court

held:

It is not necessary the Division prove actual
harm, only the . . . substantial risk of harm.

Here[,] we have an extensive, very extensive,
long[-]term history with the Division, long
term[-]us[e] of drugs. We have positive
screens, both for alcohol and for marijuana
involved here. We have the Division allowing
custody under these circumstances, even with
six [terminations of parental rights] and the
prior substantiations, allowing the mother to
have custody under strict provisions of Family
Preservation and a safety protection plan.

What do we have? We have a violation of that
plan. Continued testing positive afterwards.
This is clearly -- there was a substantial
risk of harm here. I'm satisfied the Division
has shown that in their case . . . there was
a need for services based on the history and
based on the psychological evaluations.
There's still a continued need for services
or a lot of services still have to be done and
completed.

This is not a case where it is now safe as he
indicates, where it's now safe to return the
child because of the fact that there are still
a number of services that need to be
completed.

11 A-1306-16T3
 We have the Division involved. We have the
Division in litigation. We [are] still
getting positive tests. We still get a
violation of [the] plan. This really is . .
. on the defendants at that point. They had
the opportunity at that point to keep the
child in their custody. And because of their
behavior and failure to comply . . . they still
continue in (sic) risk of harm and bad
judgment.

The court thereafter entered an Order memorializing the abuse

and neglect finding against L.F. This appeal followed.

L.F. challenges the sufficiency of the evidence supporting

the trial court's abuse and neglect finding. The Law Guardian

supports L.F.'s appeal.4

II.

N.J.S.A. 9:6-8.21(c)(4)(b) defines a child as abused or

neglected where 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 . . . in providing the
child with proper supervision or guardianship,
by unreasonably inflicting or allowing to be
inflicted harm, or substantial risk thereof .
. . .

4
"[T]he Law Guardian's position [is] of particular significance
because" the Law Guardian "has to advocate for the best interests
of [children] too young to speak for [themselves], and represents
neither adversary in the case." N.J. Div. of Youth & Fam. Servs.
v. A.R., 405 N.J. Super. 418, 433-34 (App. Div. 2009).

12 A-1306-16T3
 A failure to exercise a "minimum degree of care refers to

conduct that is grossly or wantonly negligent, but not necessarily

intentional." Dep't of Children & Families v. E.D.-O., 223 N.J

166, 179 (2015) (quoting G.S. v. Dept. of Human Servs., 157 N.J.

161, 178 (1999)). A parent or guardian "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." E.D.-O., 223 N.J. at 179 (quoting G.S., 157 N.J. at 181).

A finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4) "can

be based on proof of imminent danger or a substantial risk of

harm." Id. at 178 (quoting N.J. Dep't of Children & Families v.

A.L., 213 N.J. 1, 23 (2013)). Actual harm need not be shown.

Ibid.

"[T]he burden of proof" is "on [the Division] to establish

the elements of abuse and neglect by a preponderance of the

evidence." N.J. Div. of Youth & Fam. Servs. v. J.Y., 352 N.J.

Super. 245, 266 (App. Div. 2002) (citing N.J.S.A. 9:6-8.46(b)).

A finding of abuse and neglect must be based on "particularized

review of a parent's or caretaker's actions and the impact of any

act or omission on the child." E.D.-O., 223 N.J. at 180.

L.F. argues that the trial court erred by relying too heavily

on her history with the Division, her drug use before L.W.'s birth,

13 A-1306-16T3
and the termination of her parental rights to prior children, and

not on the circumstances present when L.W. was born. She argues

that the negative drug screens for L.F. and the child at birth

establish that she did not expose the child to actual harm or a

substantial risk of harm. In addition, L.F. argues that the trial

court gave too much weight to her positive test result for

marijuana, the veracity of which she contests, and alcohol after

L.W.'s birth. According to L.F., the trial court failed to draw

a distinction between the substances for which she tested positive

and the more dangerous drugs she habitually used in the past. She

also argues that the Division produced no evidence that she used

marijuana, alcohol or any other intoxicant while in the presence

of her child, or when she was responsible for caring for L.W.

L.F. also argues that the record contains no evidence that

she violated the safety protection plan. L.F. points out that the

record does not contain a written version of the plan, and that

all witnesses agreed that the plan stated only that the child's

great grandmother was to be a primary caregiver. There is no

evidence in the record that the Division required that the great

grandmother be present in the home at all times, or that L.F. be

supervised when with the child. She points out that on each

occasion when the great grandmother was found to be absent from

14 A-1306-16T3
the home, the child was found to be in good condition, and no

concern was raised regarding L.F.'s care for the child.

Our review of a trial court's findings of fact is limited and

"findings by the trial court are binding on appeal when supported

by adequate, substantial, credible evidence." Cesare v. Cesare,

154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v.

Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Family courts have

"broad discretion because of [their] 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). However, a "trial court's

interpretation of the law and the legal consequences that flow

from established facts [is] not entitled to any special deference."

Manalapan Realty, LP v. Twp. Comm., 140 N.J. 366, 378 (1995).

Having carefully reviewed the record in light of the

applicable legal standards, we conclude that the trial court erred

in concluding that the Division established by a preponderance of

the evidence that L.F. put her child at a substantial risk of

harm.

In A.L., our Supreme Court held that a mother's history of

drug use alone is insufficient to establish a substantial risk of

harm to a child. 213 N.J. at 23. In that case, the Court examined

facts similar to those presently before us. There, the mother

15 A-1306-16T3
tested positive for cocaine upon her admission to the hospital to

give birth to her child. Id. at 9. The child's meconium, or

first stool, showed the presence of "cocaine metabolites,"

suggesting ingestion of the drug by the mother during pregnancy.

Ibid. A referral by hospital personnel resulted in an

investigation by the Division, which revealed that in addition to

testing positive for cocaine just prior to delivery, the mother

had a positive drug screen for marijuana four months before the

child was born. Id. at 10. The mother denied ever using drugs,

offering patently incredible excuses for the positive test

results. Ibid. The child was determined to be in good health.

He was released to his grandparents' home, where the parents also

lived. Id. at 11.

The Division substantiated a finding that the mother had

abused and neglected the child based on her drug use during

pregnancy and filed a complaint for his care and supervision.

Ibid. At a fact-finding hearing, the Division conceded the mother

did not inflict actual harm on the child, and relied on an alleged

substantial risk of harm because of her history of drug use. Id.

at 9. The trial court record consisted entirely of Division

records focusing on the mother's prenatal drug use. Id. at 12.

The trial court found that the mother's prenatal drug use,

as corroborated by the presence of cocaine metabolites in the

16 A-1306-16T3
child's meconium, proved by a preponderance of the evidence that

she had abused and neglected the child. Id. at 13. We affirmed,

finding that the mother's use of cocaine two days before the

child's birth "created the very risk of harm that N.J.S.A. 9:6-

8.21(c)(4)(b) is designed to prevent." Id. at 14.

The Supreme Court reversed. The Court began its analysis by

noting that "evidence of actual impairment to the child will

satisfy the statute" but "where there is no such proof, the

critical focus is on evidence of imminent danger or substantial

risk of harm." Id. at 22. The Court cautioned that

not every instance of drug use by a parent
during pregnancy, standing alone, will
substantiate a finding of abuse and neglect
in light of the specific language of the
statute. The proper focus is on the risk of
substantial, imminent harm to the child, not
on the past use of drugs alone.

[Id. at 23 (footnote omitted).]

Test results showing the presence of drugs in a mother, and

remnants of past drug use in a newly born child do "not establish

proof of imminent danger or substantial risk of harm." Id. at 27-

28. "Instead, the fact-sensitive nature of abuse and neglect

cases turns on particularized evidence" establishing imminent

danger or substantial risk of harm. Id. at 28 (citations omitted).

Competent expert testimony based on reliable scientific theories

and sound methodologies can illuminate the presence of a risk of

17 A-1306-16T3
harm through analysis of the facts. Ibid. In the absence of such

testimony, the Court concluded that the Division had not met its

evidentiary burden and, as a result of that conclusion, vacated

the finding of abuse and neglect. Id. at 30. See also N.J. Div.

of Youth & Fam. Servs. v. V.T., 423 N.J. Super. 320, 331 (App.

Div. 2011) (reversing a trial court finding that a father abused

and neglected a child by ingesting drugs two days prior to a visit

with child, holding that "Title 9 is not intended to extend to all

parents who imbibe illegal substances at any time.").

Here, both L.F. and the child tested negative for illegal

substances at the time of the child's birth. After the Division

had been awarded custody of the child, and while the child's great

grandmother was serving as a primary caregiver, L.F. tested

positive for marijuana and alcohol.5 While recreational use of

marijuana is illegal, consumption of alcohol is not. Neither test

result indicated L.F.'s level of intoxication. And, neither was

taken when L.F. had sole custody and control of the child.

Notably, L.F. did not test positive for heroin, cocaine, or

methadone, the substances she used in the past. Nor is there any

evidence that L.F. used drugs or alcohol in the presence of the

5
Although one witness testified that she was told that L.F. tested
positive for suboxone at a drug treatment program, the trial
court's findings refer only to positive test results for marijuana
and alcohol.

18 A-1306-16T3
child, or while she was caring for the child. The positive test

results, standing alone, are insufficient to prove a likelihood

of relapse or that L.F. posed a substantial risk of harm to L.W.

The expert report offered by the Division also was

insufficient to meet the Division's evidentiary burden. Dr.

Griffith, relying primarily on L.F.'s history of drug abuse, the

more recent positive marijuana test, and his apparent diagnosis

of L.F. as having a narcissistic personality, opined that she is

unlikely to be able to parent the child successfully. He did not

opine that L.F. posed a substantial risk of harm to the child at

the time that the Division intervened in this matter. Instead,

he offered the opinion that the child would be at risk were L.F.

to have sole custody. At no point after the birth of her daughter

did L.F. have sole custody of the child. In fact, both I.W., who

continually tested negative for drug use, and the child's paternal

great grandmother, shared custody of the child with L.F., with

supportive services provided by the Division. The expert's opinion

is more in the nature of a recommendation that L.F. not be given

sole custody of the child without substance abuse treatment than

an observation that L.F. posed a substantial risk of harm to the

child in the short period between her birth and the formulation

of Dr. Griffith's opinion.

19 A-1306-16T3
 Because Dr. Griffith did not testify, his opinion was not

subject to cross-examination, and the basis for his conclusion was

not explained. Although L.F. and the child's Law Guardian did not

object to the admission of Dr. Griffith's report at the September

hearing, an objection was made three months earlier when the

Division's request for temporary custody was heard. At that time,

the trial court noted that the Division "might" have to call Dr.

Griffith as a witness at the fact-finding hearing. Yet, the

Division was permitted to admit Dr. Griffith's report, including

his opinion on the risk of harm posed by L.F., without testimony.

According to N.J.R.E. 808:

[e]xpert opinion which is included in an
admissible hearsay statement shall be excluded
if the declarant has not been produced as a
witness unless the trial judge finds that the
circumstances involved in rendering the
opinion, including the motive, duty, and
interest of the declarant, whether litigation
was contemplated by the declarant, the
complexity of the subject matter, and the
likelihood of accuracy of the opinion, tend
to establish its trustworthiness.

As we have explained, while an expert report may be admissible as

a business record of the Division, "when the expert is not produced

as a witness, the rule requires the exclusion of his or her expert

opinion, even if contained in a business record, unless the trial

judge made specific findings regarding trustworthiness." N.J.

Div. of Child Protection and Permanency v. N.T., 445 N.J. Super.

20 A-1306-16T3
478, 501 (App. Div. 2016) (quoting N.J. Div. of Youth & Fam. Servs.

v. M.G., 427 N.J. Super. 154, 174 (App. Div. 2012)). Here, the

trial court adopted the expert's opinion without making findings

regarding his credibility. The absence of testimony from Dr.

Griffith leaves the trial record bare of evidence on which the

trial court could have evaluated the trustworthiness of the opinion

he offered. We find this error to be of sufficient significance

to warrant reversal of the abuse and neglect finding.

We also find that the record does not contain sufficient

evidence supporting the trial court's conclusion that L.F.

violated the safety protection plan. As noted above, the record

does not contain a copy of the written plan. It is, therefore,

not possible to determine with precision its terms. The witnesses

agreed that the child's paternal great grandmother was to serve

as a primary caregiver. No one, however, testified that the plan

prohibited L.F. from being unsupervised when with the child.

Indeed, the trial court noted that designating the great

grandmother as "a primary caregiver" suggests non-exclusivity, as

opposed to "the primary caregiver," a difference the court found

to be significant.

Moreover, on each occasion when Division representatives

observed L.F. in the home without the great grandmother, the child

was determined to be safe and no referral was made. Notably, a

21 A-1306-16T3
family preservation services representative was present at the

home every time the great grandmother's absence was observed,

raising the possibility that she left L.F. with the child knowing

that supportive services were expected to be at the home.

Reversed.

22 A-1306-16T3