                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2186-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

D.A.,

          Defendant-Appellant/
          Cross-Respondent,

and

F.M.,

     Defendant.
______________________________

IN THE MATTER OF N.A., a Minor,

     Respondent/Cross-Appellant.
______________________________

                    Argued June 4, 2019 – Decided July 10, 2019

                    Before Judges Messano, Gooden Brown and Rose.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Essex County, Docket
            No. FN-07-0505-14.

            Laura M. Kalik, Designated Counsel, argued the cause
            for appellant/cross-respondent (Joseph E. Krakora,
            Public Defender, attorney; Laura M. Kalik, on the
            briefs).

            Noel Christian Devlin, Assistant Deputy Public
            Defender, argued the cause for respondent/cross-
            appellant (Joseph E. Krakora, Public Defender, Law
            Guardian, attorney; Noel Christian Devlin, of counsel
            and on the brief).

            Joseph Jude Maccarone, Deputy Attorney General,
            argued the cause for respondent (Gurbir S. Grewal,
            Attorney General, attorney; Jason Wade Rockwell,
            Assistant Attorney General, of counsel; Joseph Jude
            Maccarone, on the brief).

PER CURIAM

      Defendant appeals from a July 14, 2014 Family Part order entered after a

fact-finding hearing where it was determined that he abused or neglected his

then twelve-year-old son, N.A.,1 within the meaning of N.J.S.A. 9:6-8.21(c).

The Family Part judge concluded that by taking N.A. off "psychotropic

medications" and "fail[ing] to follow up with mental health services" following

"several incidents" of N.A. "inappropriate[ly] touching" other children,


1
  We use initials to protect the identity of those involved and to preserve the
confidentiality of these proceedings. R. 1:38-3(d)(12).
                                                                       A-2186-17T4
                                      2
including his then four-year-old half sister, D.A., defendant "placed his son and

daughters [2] at risk of harm." The fact-finding order was perfected for appeal by

a December 8, 2017 order, terminating the litigation.

      Defendant contends "there was [in]sufficient evidence to support a

conclusion that [he] failed to exercise a minimum degree of care within the

meaning of [N.J.S.A. 9:6-8.21(c)(4)(b)]." In a cross-appeal, the Law Guardian

supports defendant's position, adding that the evidence failed to "support a

finding of medical neglect under [N.J.S.A. 9:6-8.21(c)(4)(a)]." In contrast, the

Division of Child Protection and Permanency (Division) asserts that "[b]ecause

the trial court correctly concluded that [defendant's] actions objectively failed

to meet the minimum degree of care under N.J.S.A. 9:6-8.21(c)(4), and that his

inaction both actually impacted and placed his children at substantial risk of

harm, [we] should affirm."     Because we agree the record lacks substantial

credible evidence that defendant's conduct constituted gross negligence or

recklessness, we reverse.




2
  In addition to D.A., defendant had another daughter residing in the home, then
three-year-old J.A. Defendant's live-in girlfriend was the biological mother of
D.A. and J.A., but not N.A. It was unclear in the record why N.A. resided with
defendant and his paramour as opposed to his biological mother.
                                                                          A-2186-17T4
                                        3
      The fact-finding hearing followed the Division's emergency removal of

N.A. on March 28, 2014, based on allegations of his sexual misconduct.

Ultimately, the Division obtained custody of N.A. under N.J.S.A. 9:6-8.21 to -

8.73 and N.J.S.A. 30:4C-12.       At the hearing conducted on July 14, 2014,

Division caseworker Yosef Hegazy and defendant's sister, R.P., testified for the

Division.   Documentary exhibits consisting of the Division's investigation

summary and N.A.'s medical records were admitted into evidence. Defendant

did not testify or call any witnesses.

      Hegazy testified that the Division initially became involved with the

family in February 2014, 3 after receiving a referral from the school "that [N.A.]

had some marks on him." N.A. reported that his father hit him "for posting

something on Facebook."         During the ensuing investigation, defendant

acknowledged the use of corporal punishment and told Hegazy "that N.A. was

a pretty good kid[,]" but he "had some trouble with him being disobedient." The

referral was ultimately ruled "[n]ot established." The following month, the

Division received a new referral that "[N.A.] had inappropriately touched his

sister" and exhibited "sexualized behavior."      The referral was made by "a



3
  The Division had received a prior referral in 2010 alleging drug use by the
parents. However, that allegation was ruled "unfounded."
                                                                          A-2186-17T4
                                         4
member of PerformCare[,]" who had been contacted for therapeutic services by

the social worker at N.A.'s school. Defendant had contacted the social worker,

seeking professional help for N.A.

      When Hegazy responded to the home, N.A. admitted "that he had touched

[D.A.] in her vaginal area with his finger." N.A. was "very apologetic" and

remorseful. However, when interviewed, D.A. gave a different account. She

stated that while "she was lying flat on her stomach" in the bedroom, N.A.

"pulled down her pants and put his thing in her butt." She denied that this had

ever happened before. The girls' maternal grandmother lived in the home and

cared for the children when the parents were not present. She had witnessed the

incident between D.A. and N.A. and informed defendant.

      Upon further questioning, N.A. disclosed to Hegazy that he had previously

inappropriately touched "three other girls." According to N.A., "[t]he first

incident occurred when he was seven years old; . . . the second incident occurred

when he was ten years old; and the third [incident occurred] . . . in January of

2014." N.A. said the girls were six, four, and two-years-old, respectively. N.A.

told Hegazy "his father had disciplined him" after each incident, by "hit[ting]

him with a belt" and "[telling] him not to do it again." However, N.A. believed




                                                                         A-2186-17T4
                                       5
"something [was] wrong with [him]" and asked his father to get him

"psychological help."

      Defendant, who was present during N.A.'s interview, confirmed the

accuracy of N.A.'s account. Defendant also acknowledged for the first time that

"one of the reasons" he had hit N.A., prompting the prior February 2014 physical

abuse referral, was because of the January 2014 touching incident, during which

N.A. had removed a child's diaper and touched her inappropriately. Defendant

explained that to ensure continuous adult supervision in the home, the girls'

grandmother watched them in the afternoon after 3:00 p.m. when they returned

from school. In addition, N.A. and the girls had separate bedrooms. Defendant

stated that upon learning of the incident with his daughter, he had contacted the

school social worker for help and was going to contact PerformCare that night

to assess N.A. Defendant acknowledged "he had [n]ever . . . taken N.A. to get

mental health services or . . . counseling" previously because he thought N.A.

was just curious. However, he was now concerned that there was a more serious

problem.

      As an alternative to the Division removing N.A., defendant told Hegazy

that "his plan . . . to address the behavior" was to "send N.A. to Haiti" to stay

with relatives. When Hegazy rejected that plan, defendant offered to have his


                                                                         A-2186-17T4
                                       6
mother come from Haiti to take N.A., or for him (defendant) to leave the home

with N.A. However, according to Hegazy, these were not viable options because

"[t]here was no specific timeframe on when exactly [N.A.'s paternal

grandmother] was going to come" and "[defendant] did[ not] have a plan as to

where he was going to go or who he was going to stay with." Defendant also

told Hegazy that N.A. had been "getting mental health services, as well as

medication" while he was residing with his sister, R.P., in southern New Jersey.

Defendant explained he had reached out to R.P., who was a registered nurse, for

help with N.A. However, defendant acknowledged that, without consulting a

doctor, he "took [N.A.] off the medication" once he returned home because

"N.A. was doing better."

      R.P. confirmed that N.A. resided with her from the "end of August 2010"

until "the last week of December [2010]." According to R.P., when defendant

told her "that he needed some help with N.A.," she "volunteered" to take N.A.

to expose him to "a different environment" because "he was getting [into]

trouble at school" and "getting suspended a lot" for "[f]ighting, bullying[,] and

not behaving."   However, after spending time with N.A., she believed the

problem was something other than "the environment" and took N.A. to see a

psychiatrist. As a result, N.A. was diagnosed with oppositional defiant disorder


                                                                         A-2186-17T4
                                       7
(ODD), received outpatient treatment at Underwood Hospital, and was

prescribed "Risperdal."    R.P. testified that the medication improved N.A.'s

behavior significantly. When R.P. returned N.A. to defendant's home, she told

defendant that "the discharge instruction[] was to continue the medication and

to follow up with all the doctors." However, she later learned that defendant

discontinued the medication because he thought it made N.A. "gain weight."

      Following the hearing, in a terse oral decision, the judge determined he

was "satisfied that the Division ha[d] proven its case by a preponderance of the

evidence." The judge explained:

            You have a child who has serious problems going on
            for years. You allow it to go on until it really hits home
            and a family member gets injured and . . . hurt. That[
            is] when you come forward.

                   You . . . deal with it by hitting the kid. You deal
            with it by sending him off to live with [your] sister, who
            did, by the way, really get him services for the first
            time, real services that he needed and medication. And
            as soon as he gets home, well, we do[ not] need any
            services anymore. We do[ not] need any medication.

                    And then, it[ is] not until after the child touches
            and gets involved with one of his children that he
            finally wakes up. This should have been done the first
            time it was a problem, not . . . when the fourth child . . .
            is molested. It[ is] a little late then. You . . . not
            realizing that maybe this child needed help. Not
            realizing that [your] own children were at risk. This is
            just . . . sticking your head in the sand.

                                                                           A-2186-17T4
                                         8
                 . . . I[ am] satisfied this is not appropriate
           behavior, that this did put them at risk, did cause injury
           to one of his children . . . .

The judge entered a conforming order and these appeals followed.

     On appeal, defendant raises the following points for our consideration:

           THE TRIAL COURT'S DECISION MUST BE
           REVERSED     BECAUSE      THERE    WAS
           INSUFFICIENT EVIDENCE TO SUPPORT A
           FINDING THAT [DEFENDANT] ABUSED OR
           NEGLECTED [N.A.] BY FAILING TO PROCURE
           ADEQUATE MENTAL HEALTH CARE AND
           MEDICATION FOR HIM FOLLOWING INCIDENTS
           OF HIS INAPPROPRIATE[] TOUCHING OTHER
           CHILDREN[.]

           A.    THE RECORD BELOW DOES NOT PROVIDE
                 SUFFICIENT  COMPETENT     EVIDENCE
                 THAT [DEFENDANT] FAILED TO EXERCISE
                 A MINIMUM DEGREE OF CARE BY
                 NEGLECTING TO PROVIDE ADEQUATE
                 MENTAL HEALTH CARE TO [N.A.]

                 1.    [DEFENDANT]'S DECISION TO STOP
                       [N.A.]'S MEDICATION DID NOT
                       CONSTITUTE MEDICAL NEGLECT[.]

                 2.    [DEFENDANT]'S    PROACTIVE
                       EFFORTS TO ADDRESS [N.A.]'S
                       MENTAL HEALTH NEEDS, WHICH
                       OCCURRED ON MORE THAN ONE
                       OCCASION, WAS NOT GROSSLY
                       NEGLIGENT     OR  RECKLESS
                       CONDUCT[.]



                                                                        A-2186-17T4
                                       9
            B.    THERE WAS INSUFFICIENT EVIDENCE TO
                  SUPPORT A CONCLUSION THAT [N.A.]
                  WAS AT SUBSTANTIAL RISK OF HARM OR
                  FACING IMMINENT DANGER AS A RESULT
                  OF   [DEFENDANT]'S  DECLINING   TO
                  CONTINUE [N.A.] ON MEDICATION OR
                  SECURE ADDITIONAL MENTAL HEALTH
                  SERVICES[.]

            C.    THE TRIAL COURT IMPROPERLY RELIED
                  UPON     INCOMPETENT       HEARSAY
                  TESTIMONY AND UNCORROBORATED
                  OUT-OF-COURT STATEMENTS[.]

      In the cross-appeal, the Law Guardian makes the following arguments:

            A FINDING OF MEDICAL NEGLECT IS NOT
            SUPPORTED      WHEN     THE     PARENT
            AFFIRMATIVELY SEEKS PROFESSIONAL HELP
            AFTER UNSUCCESSFULLY ADDRESSING THE
            ISSUE FOR A REASONABLE PERIOD THROUGH
            LESS INTRUSIVE MEANS.

            A.    [DEFENDANT]'S       REQUEST     FOR
                  PROFESSIONAL HELP FOR [N.A.] IN
                  [MARCH] 2014, AS OPPOSED TO JANUARY
                  2014, DOES NOT CONSTITUTE MEDICAL
                  NEGLECT[.]

            B.    [DEFENDANT]'S       DECISION     TO
                  DISCONTINUE [N.A.]'S MEDICATION WAS
                  NOT SHOWN TO PLACE HIM AT IMMINENT
                  RISK OF HARM[.]

      We begin with a review of the applicable legal principles that guide our

analysis. We accord deference to the Family Part's fact finding in part because


                                                                       A-2186-17T4
                                     10
of the court's "special jurisdiction and expertise in family matters." Cesare v.

Cesare, 154 N.J. 394, 413 (1998). We will uphold the trial court's fact finding

if supported by sufficient, substantial, and credible evidence in the record , N.J.

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007), because the

judge has had the opportunity to observe witnesses, weigh their credibility, and

develop a "'feel' of the case." Id. at 293 (quoting State v. Johnson, 42 N.J. 146,

161 (1964)). However, we will not hesitate to set aside a ruling that is "so wide

of the mark that a mistake must have been made." N.J. Div. of Youth & Family

Servs. v. P.W.R., 205 N.J. 17, 38 (2011) (quoting M.M., 189 N.J. at 279)

(reversing a court's "medical neglect" finding for lack of sufficient evidential

support). We also accord no deference to the trial court's "interpretation of the

law and the legal consequences that flow from established facts." Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

      At the fact-finding hearing, the burden is on the Division to prove abuse

or neglect "by a preponderance of the competent, material[,] and relevant

evidence." N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 62

(App. Div. 2012); N.J.S.A. 9:6-8.46(b). "Under the preponderance standard, a

litigant must establish that a desired inference is more probable than not. If the




                                                                           A-2186-17T4
                                       11
evidence is in equipoise, the burden has not been met." Liberty Mut. Ins. Co. v.

Land, 186 N.J. 163, 169 (2006) (internal quotation marks and citation omitted).

      In pertinent part, an "[a]bused or neglected child" is a child under the age

of eighteen

              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 [or her] parent
              . . . to exercise a minimum degree of care (a) in
              supplying the child with adequate . . . medical . . . care
              . . . , or (b) in providing the child with proper
              supervision or guardianship, by unreasonably inflicting
              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)(a) to (b).]

By requiring proof that a parent failed to exercise a "minimum degree of care"

and "unreasonably inflicted or allowed to be inflicted harm, or created a

substantial risk of inflicting harm," "[t]he statute makes clear that parental fault

is an essential element for a finding of abuse or neglect under N.J.S.A. 9:6 -

8.21(c)(4)(b)." N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165,

178-80 (2014).

      Our Supreme Court has defined the phrase "minimum degree of care" as

              a lesser burden on the actor than a duty of ordinary care.
              If a lesser measure of care is required of an actor, then

                                                                             A-2186-17T4
                                         12
            something more than ordinary negligence is required to
            hold the actor liable. The most logical higher measure
            of neglect is found in conduct that is grossly negligent
            because it is willful or wanton. Therefore, . . . the
            phrase "minimum degree of care" refers to conduct that
            is grossly or wantonly negligent, but not necessarily
            intentional.

            [G.S. v. Dep't of Human Servs., Div. of Youth &
            Family Servs., 157 N.J. 161, 178 (1999).]

      "Conduct is considered willful or wanton if done with the knowledge that

injury is likely to, or probably will, result[,]" and "can apply to situations

ranging from 'slight inadvertence to malicious purpose to inflict injury.'" Ibid.

(quoting McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). "Because

risks that are recklessly incurred are not considered unforeseen perils or

accidents in the eyes of the law, actions taken with reckless disregard for the

consequences also may be wanton or willful." Ibid. Even if the parent is

unaware of the "highly dangerous character of [his or] her conduct," if "the act

or omission that causes injury is done intentionally," "[k]nowledge will be

imputed to the actor[,]" and the parent will be liable. Ibid.

      A determination of whether a parent's conduct "is to be classified as

merely negligent, grossly negligent, or reckless can be a difficult one[,]" and is

a question of law that is not afforded deference. Dep't of Children & Families,

Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 308-09 (2011). "Whether

                                                                          A-2186-17T4
                                       13
a parent or guardian has failed to exercise a minimum degree of care is to be

analyzed in light of the dangers and risks associated with the situation." G.S.,

157 N.J. at 181-82. "When a cautionary act by the [parent] would prevent a

child from having his or her physical, mental[,] or emotional condition impaired,

that [parent] has failed to exercise a minimum degree of care as a matter of law."

Id. at 182. The mere lack of actual harm to the child is irrelevant, as "[c]ourts

need not wait to act until a child is actually irreparably impaired by parental

inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

      A finding of gross negligence depends on the totality of the circumstances

and "is determined on a case-by-case basis."        N.J. Div. of Child Prot. &

Permanency v. K.N.S., 441 N.J. Super. 392, 398 (App. Div. 2015). See N.J.

Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 146-47 (App. Div.

2014) (finding no abuse or neglect where the custodial grandmother, believing

her twelve-year-old granddaughter who expressed suicidal thoughts was simply

"acting out," failed to take the child to the hospital for an immediate psychiatric

evaluation); K.N.S., 441 N.J. Super. at 400 (affirming a finding of abuse or

neglect based on the mother "placing [her child] in the care of an untrustworthy

and impatient man about whom she knew very little, and by delaying the




                                                                           A-2186-17T4
                                       14
emergency medical aid that the child needed" when the child exhibited signs of

illness).

      Here, we agree that the Division's proofs fell short of establishing that

N.A.'s inappropriate touching of children occurred as a result of culpable

conduct on defendant's part. Although the judge determined that defendant's

failure to administer Risperdal to N.A. following the touching incidents harmed

D.A., and placed N.A. and J.A. at risk of harm, a causal link was never

established between the two by the Division's proofs. There was no evidence

presented regarding the effects of Risperdal, the condition it was intended to

treat, or the consequences of discontinuing its use. Although N.A.'s medical

records were admitted into evidence, the judge made no mention of its contents

to support his decision.

      Instead, the only evidence elicited in that regard was R.P.'s lay testimony

that Risperdal was prescribed to treat N.A.'s ODD. See N.J. Div. of Youth &

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

expert testimony to explain whether the level of marijuana shown on a parent's

test result demonstrated impairment to the point of posing a risk to the child).

Because there was no medical evidence, expert or otherwise, that Risperdal

curbed sexualized behavior, or that discontinuing its use placed N.A. at risk of


                                                                         A-2186-17T4
                                      15
harm, the judge's determination that defendant's actions were grossly negligent

and the direct cause of N.A.'s sexual misconduct was based on an assumption,

rather than proof. However, our Supreme Court has cautioned that judges

"cannot fill in missing information on their own or take judicial notice of harm. "

N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213

N.J. 1, 28 (2013).    It was the Division's burden to present "particularized

evidence," which, in this case, it did not. Ibid.

      Further, the judge's findings that defendant failed to follow up with mental

health services for N.A., did not have a viable plan to address N.A.'s behavior,

and was essentially "sticking [his] head in the sand" are belied by the record.

On the contrary, when defendant found out about each incident, he took action.

Initially, defendant disciplined N.A. through corporal punishment and verbal

admonitions.    He later sought help from his sister, a registered nurse.

Ultimately, once he realized that the incidents were not a sign of mere curiosity

but indicative of a more serious problem, he called the school social worker

seeking professional help. Indeed, it was defendant's action that effected the

Division's involvement.

      Based on the totality of the circumstances, the record simply does not

support a finding of abuse or neglect.       The Division failed to prove by a


                                                                           A-2186-17T4
                                       16
preponderance of the evidence that defendant's actions, consisting of a series of

progressive interventions, rise to the level of recklessness or gross negligence

as required under the statute. Not "every failure to perform a cautionary act is

. . . abuse or neglect. When the failure to perform a cautionary act is merely

negligent, it does not trigger section (c)(4)(b) of the abuse or neglect statute. "

T.B., 207 N.J. at 306-07. Further, based on this record, defendant's actions do

not "reasonably rise to actionable 'medical neglect,' and the trial court findings

to that effect are so wide of the mark as to be unsustainable." P.W.R., 205 N.J.

at 38.

         Therefore, the finding of abuse and neglect is reversed. Based on our

decision, we need not address defendant's remaining arguments. The Division

shall take appropriate steps to remove defendant's name from the Central Child

Abuse Registry, N.J.S.A. 9:6-8.11, within thirty days of the date of this opinion.

         Reversed. We do not retain jurisdiction.




                                                                           A-2186-17T4
                                        17
