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NOT FOR PUBLICATION WITHOUT THE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-2123-18T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent/
Cross-Respondent,
v.
G.O.-A.,
Defendant-Appellant/
Cross-Respondent,
and
E.K.,
Defendant.
_______________________________
IN THE MATTER OF El.A.-K.,
Er.A.-K., and H.A.-K, minors,
Respondents/Cross-Appellants.
________________________________
Submitted March 31, 2020 – Decided August 31, 2020
Before Judges Accurso, Gilson, and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FN-03-0020-19.
Joseph E. Krakora, Public Defender, attorney for
appellant/cross-respondent (Robyn A. Veasey, Deputy
Public Defender, of counsel; Arthur D. Malkin,
Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors/cross-appellant (Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Nancy
P. Fratz, Assistant Deputy Public Defender, of counsel
and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent/cross-respondent (Sookie Bae-Park,
Assistant Attorney General, of counsel; Jennifer E. St.
Mary, Deputy Attorney General, on the brief).
PER CURIAM
Defendant G.O.-A.1 appeals from a December 5, 2018 fact-finding order,
now final, that she and the children's father abused or neglected their three
children, a two-year-old girl, a four-year-old boy, and a six-year-old girl, by
leaving them home alone for an hour after midnight. The law guardian for the
children cross-appeals, arguing with the Division that the finding should be
1
The court found both parents, G.O.-A. and E.K., abused or neglected their
children in this instance. Only G.O.-A. appeals. "Defendant" refers to
G.O.-A.
A-2123-18T3
2
affirmed, and that we should remand to allow the trial court to enter a
"suspended judgment," as well as to consider whether the Division of Child
Protection and Permanency's determination to "substantiate" defendant for
neglect was arbitrary, capricious, or unreasonable. Because there is
substantial credible evidence in the record to support the trial court's finding
that defendant abused or neglected her children, we affirm. See N.J. Div. of
Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010).
The facts are straight-forward and almost entirely undisputed. On a June
night in 2018, Burlington City Police Department received a call around
midnight reporting a screaming child left alone. When police arrived, they
found defendant's front door unlocked and her three small children alone. The
house was in disarray, and the children were scared. The six-year-old knew
her mother's first name but not her last and couldn't tell the officers her father's
name. She thought her mother might have gone to the car to get something.
The kids said they were hungry.
Their parents returned about 1:00 a.m. By that time, emergency medical
services had arrived, checked the children, and placed them in an ambulance to
transport them to the police station. Seeing the ambulance, the parents
immediately asked whether their children were okay, and said they had only
A-2123-18T3
3
been gone an hour. Defendant was in shorts and a shirt and no shoes. When
officers smelled marijuana in the car and saw an open container of alcohol, the
parents were arrested. Each was charged with endangering the welfare of
children and possession of marijuana and released on a summons.
Division workers responded to the police station where they spoke to the
children and their parents. The six-year-old told them that she and her siblings
woke up looking for their mother, could not find her, did not know where she
went, got scared, and started crying. She did not know what to do or who to
call and did not know how to deal with an emergency.
One of the workers testified she spoke with defendant, who admitted she
had left the children at home alone. According to the worker's account of the
conversation, defendant and the children's father made a "quick decision" to
get some chicken at Buffalo Wild Wings in Moorestown. Defendant told the
worker they were gone for about an hour and were arrested when they returned
home.
Defendant said she did not normally leave her children home alone,
explaining that her brother usually would babysit. She claimed she wanted to
stay home that night, but the children's father encouraged her to go with him.
The worker reported that defendant did not appear to be under the influence of
A-2123-18T3
4
drugs or alcohol, which was not true of the children's father. His account
mirrored defendant's, including saying defendant wanted to stay home but he
convinced her to go out, as they would be gone for less than an hour and the
children were asleep. This was the family's first encounter with the Division.
The Division performed an emergency removal of the children and
"substantiated" both parents for neglect for inadequate supervision, but
deemed the allegations of neglect for failure to provide for the children's basic
needs was "not established." By the time of the return date on the order to
show cause for the removal, both parents had submitted to drug screens and
substance abuse evaluations. E.K. tested positive for marijuana, and it was
recommended he seek outpatient drug treatment. Defendant tested negative.
No services were recommended for her.
The law guardian reported the children missed their parents and wanted
to return home. Defendant's brother agreed to be a full-time supervisor in
defendant's home. The court ordered the children returned to their parents ,
requiring defendant to supervise E.K. with the children.
At the fact-finding hearing, the Division's witnesses testified to the facts
related above. One of the workers testified that defendant admitted she had
been drinking the night the children were removed but denied smoking
A-2123-18T3
5
marijuana. Neither defendant nor the law guardian offered any witnesses or
presented any evidence.
During summation, defense counsel acknowledged defendant "made a
mistake" that "had some drastic repercussions," and asked the court for
leniency for that "one-time mistake." Defense counsel emphasized this was
the family's first involvement with the Division, defendant was fully compliant
with services (drug screenings, substance abuse evaluation, and supervised
visitation while separated from the children), and was reunified with the
children without incident. Counsel asked the court to "downgrade the
substantiation to at least establish[ed] or even to not establish[ed] so that
[defendant] is not forced to have to deal with the repercussions involving
employment opportunities, and more importantly, given that she has
demonstrated to the court that she understands . . . the seriousness of what
happened." Counsel represented that defendant wanted to move forward but
did not believe it was "fair for her to be listed as a substantiated perpetrator on
the child abuse registry forever."
The law guardian stated that although this appeared to be an "isolated
incident," the evidence supported a finding of neglect under Title 9.
Acknowledging the Division had met its burden of proof, the law guardian
A-2123-18T3
6
added that he would not have objected had the Division dismissed the Title 9
complaint and proceeded under Title 30.
The Division responded that while the court had the responsibility to
determine whether the Division had proven child abuse or neglect by a
preponderance of the evidence, it retained "the administrative authority to
determine whether an allegation of conduct determined by the court to be
abuse and neglect is established or substantiated." The deputy argued the
Division had established, by a preponderance of the evidence, that defendants
neglected the children by leaving them home alone for at least an hour.
The judge acknowledged it was "an unfortunate situation and perhaps it
could be a scenario where the Division, given the compliance, might resolve
the matter in another fashion other than continuing with substantiation." The
judge concluded, however, that there was no question but that the Division had
proved its case. The judge found the Division's witnesses credible, and, based
on their testimony, that "the children were left alone in a situation where there
was potential of harm and imminent risk." He noted that the evidence
supported the conclusion that the parents were gone for more than an hour,
"[b]ut even if it were only an hour, leaving such young children alone is a
situation where imminent harm can befall them."
A-2123-18T3
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The judge found "significant" the young ages of the children involved:
"A six-year-old taking care of a two-year-old is really not adequate. In fact,
it's completely inadequate in terms of supervision." He found it was "gross
negligence under [N.J.S.A. 9:6-8.21](c)(4) to leave children that age on their
own even for an hour." The judge also found the parents knowingly left the
children alone without adult supervision, "this is not like those cases where a
child is left alone by mistake thinking someone else was there." As a result, he
concluded:
as much as I do feel there's a certain aspect of leniency
that I would like to be able to give, the law is the law
and I think there was a gross negligence here. I think
the parents have no doubt learned a very hard lesson.
And I urge that they continue on the road to having
this all behind them.
After the judge rendered his decision, defense counsel asserted the court
had "the authority to essentially change the finding to established," from
"substantiated," which she maintained would still be "under Title 9," but spare
defendant inclusion in the registry, which she asked the judge to do. The
deputy objected, arguing the court obviously had authority to determine
whether the Division had proved its case, but the decision to "substantiate"
abuse or neglect or deem it "established," was an administrative decision
reserved to the agency. The judge denied the request, stating:
A-2123-18T3
8
[T]his is a court of equity, and you know, I am
tempted in light of the fact of the dismissal now. It
seems very inconsistent with the idea of rewarding
folks who do what they're supposed to do. But I do
agree with [the deputy], the nature of what is the
abuse and neglect is concerning enough. In the case
the evaluation is from the time of what happened, so
even if I had the authority to change the
substantiation, I would not.
Defendant appeals, arguing the trial court erred by finding that she
"neglected" her children pursuant to N.J.S.A. 9:6-8.21(c). She contends the
court's finding was "against the weight of the admitted evidence and
testimony" because any risk to her children was not "substantial" and her
conduct did not constitute "gross negligence." She also argues "the court
should have but failed to consider the totality of the circumstances."
Furthermore, because her children suffered no actual harm as a result of her
poor judgment, she contends that the court's decision upholding the Division's
finding of "substantiated" was excessive and punitive.
We disagree, finding no merit in those arguments. We, of course, are
not free to overturn the factual findings and legal conclusions of a trial judge
"unless we are convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as
to offend the interests of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of
A-2123-18T3
9
Am., 65 N.J. 474, 484 (1974) (citation omitted). Because defendant's children
suffered no actual harm, the trial court's focus, and ours, shifts "to whether
there is a threat of harm, and we look to determine whether the Division has
proven 'imminent danger or a substantial risk of harm to a child by a
preponderance of the evidence.'" N.J. Div. of Child Prot. & Permanency v.
S.W., 448 N.J. Super. 180, 189 (App. Div. 2017) (quoting N.J. Dep't of
Children and Families v. A.L., 213 N.J. 1, 23 (2013)).
Defendant admitted she left her three children, six, four and two, home
alone at night, sleeping, to drive from Burlington to Moorestown and was gone
for an hour. She does not dispute the conduct was negligent and, indeed,
admits it was "a serious mistake." When the children awoke and couldn't find
their mother, they were understandably fearful, so much so that a passerby
reported their screams to the police.
The children were not old enough to be able to respond to an emergency
and could not even advise police of their last name. Although no harm befell
them, that is not the test. As the Supreme Court has noted, "in focusing on the
risk of harm as well as actual harm to a child from grossly negligent conduct
of a parent or guardian, the Legislature sought to squash the notion of a 'free
pass' if the child did not suffer actual harm." Dep't of Children & Families,
A-2123-18T3
10
Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 187 (2015). It
takes little imagination to appreciate the dangers of leaving such small children
to fend for themselves, even for an hour, in an unlocked house at night.
The trial judge clearly considered the totality of the circumstances,
including that this was defendant's first contact with the Division, that no harm
came to the children, and defendant's genuine remorse. But his focus was
properly on the children and their safety and not on the consequences of an
abuse and neglect finding against their parent. As the Court in E.D.-O.
explained:
whether a parent's or caretaker's conduct causes an
imminent risk of harm is evaluated through the lens of
the statutory standard as interpreted and applied by the
Court, rather than through the lens of the
consequences of a finding of neglect, specifically,
enrollment in the Central Registry. Enrollment in the
Registry is a consequence of a finding of abuse or
neglect. We are mindful of the consequences of
enrollment in the Registry and the duration of those
consequences. We are aware that for some acts,
enrollment in the Registry may seem draconian.
However, it is not the function of this Court to address
those seeming excesses by distorting the analysis of
the underlying conduct.
[Id. at 195 (citations omitted).]
Faithfully applying the statutory standard is not "punitive." The judge
was not free to ignore the imminent risk of harm defendant's conduct posed to
A-2123-18T3
11
these children by focusing on the potential harm to her from inclusion in the
Registry. We reject defendant's arguments to the contrary.
Defendant also contends she was denied the effective assistance of
counsel in accordance with Strickland v. Washington, 466 U.S. 668 (1984).
She argues her trial counsel's performance "was objectively deficient in several
areas," including: (1) failing to offer any evidence or witnesses and challenge
the allegations of abuse or neglect; (2) conceding that she abused and
neglected her children; (3) failing to remain appropriately informed of the
applicable law; and (4) failing to request dismissal of the Title 9 complaint and
the conversion of the case to Title 30.
A parent in Title 9 and Title 30 litigation has the right to effective
assistance of counsel, N.J. Div. of Youth & Family Servs. v. M.D., 417 N.J.
Super. 583, 609 (App. Div. 2011); N.J. Div. of Youth and Family Servs. v.
B.H., 391 N.J. Super 322, 345-46 (App. Div. 2007), evaluated under the
Strickland standard. B.H., 391 N.J. Super. at 345-46; N.J. Div. of Youth &
Family Servs. v. B.R., 192 N.J. 301, 307 (2007). To succeed on a claim of
ineffective assistance, defendant must establish, first, that "counsel's
representation fell below an objective standard of reasonableness" and, second,
that "there is a reasonable probability that, but for counsel's unprofessional
A-2123-18T3
12
errors, the result of the proceeding would have been different." Strickland,
466 U.S. at 687-88, 694. Defendant cannot establish her claim under that
standard.
Defendant does not identify any evidence her counsel could have
presented or any witness she might have called to establish a defense to the
Division's case. She conceded she left her children alone, and none of the
factors she contends counsel should have argued in her defense, her lack of
prior involvement with the Division, her strong bond with her children, the
lack of harm to them, her remorse and assurances it would not happen again,
was relevant to her conduct at the time of the incident. See E.D.-O., 223 N.J.
at 189.
We do not agree her counsel "conceded" defendant abused or neglected
her children by asking the court to change the Division's internal finding from
"substantiated" to "established." While counsel was incorrect that the judge
had such power, the error did not affect the judge's finding, as the judge had
already announced his ruling when her counsel made the request. More
important, defendant cannot establish prejudice. The court found defendant
left her children unsupervised, and that the conduct constituted gross
negligence based on credible evidence presented at the fact-finding trial, not
A-2123-18T3
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based on defense counsel's performance. She does not explain how the court's
findings and determinations were erroneous, or provide any support for her
claim that the judge could have granted a motion to dismiss the Title 9
complaint and converted the case to one under Title 30 following the return of
her children. There was simply no "reasonable probability" that, but for
counsel's alleged unprofessional errors, "the result of the proceeding would
have been different," because there was sufficient credible evidence in the
record that defendant neglected her three very young children by having left
them home alone.
The law guardian's cross-appeal requires only brief comment. We
decline to consider the argument that the judge should have considered and
entered a suspended judgment because that relief was not sought in the trial
court. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins.
Co., 62 N.J. 229, 234 (1973). We thus need not consider whether the law
guardian has standing to raise this argument on behalf of defendant, which
defendant urges us to reject in any event.
We likewise reject the law guardian's request that we remand this matter
to determine whether the Division's substantiation was arbitrary, capricious,
and unreasonable for having failed to comply with its own regulations by "not
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14
having the child protective investigators determine (or involved in) the finding
of the investigation."
Leaving aside the lack of support for that argument on the facts in the
record, the law guardian's position perplexes us. The law guardian joins with
the Division in recommending we affirm the judgment that defendant abused
or neglected her children. She asserts in her briefs on behalf of the children
that defendant "was grossly negligent and neglected her children when she left
them unattended" and that "the trial court's finding of abuse or neglect was
supported by a preponderance of evidence and [defendant] failed to provide a
basis for reversing that decision." The Law Guardian also argues that
defendant received effective assistance from her counsel. Because we agree
on both counts, we decline the suggestion of a remand to the agency.
Affirmed.
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DCPP VS. G.O.-A. AND D E.K., IN THE MATTER OF El.A.-K., Er.A.-K., AND H.A.-K. (FN-03-0020-19, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
Combined Opinion