                             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                        NOT FOR PUBLICATION WITHOUT THE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-2862-16T1

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

        Plaintiff-Respondent,

v.

R.O.,

        Defendant-Appellant,

and

J.C.,

     Defendant.
__________________________________

IN THE MATTER OF L.C., a minor.
__________________________________

              Submitted January 22, 2018 – Decided August 24, 2018

              Before Judges Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex
              County, Docket No. FN-12-0297-16.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Lauren Derasmo, Designated
              Counsel, on the briefs).
            Gurbir S. Grewal, Attorney General, attorney
            for respondent (Melissa H. Raksa, Assistant
            Attorney General, of counsel; Joshua Bohn,
            Deputy Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law
            Guardian, attorney for minor L.C. (Todd
            Wilson, Designated Counsel, on the brief).

PER CURIAM

       Defendant   R.O.   (Rachel)1   appeals   from   the   Family    Part's

January 27, 2017, final order, following a fact-finding hearing,

determining that she abused or neglected her then two-year-old

daughter, L.O. (Laura).        The court concluded that Rachel was

"grossly negligent," by failing to supervise her daughter "for a

minimum of forty minutes."      While Rachel was behind her bedroom's

closed door, Laura bypassed a child-safety gate in the living

room, opened the exterior door, slipped through a gap in the

backyard fence, and wandered the street until a neighbor found

her.   Although Rachel's actions were no doubt negligent, they were

not "grossly or wantonly negligent."            G.S. v. Dep't of Human

Servs., 157 N.J. 161, 178 (1999).          Therefore, we reverse.

                                      I.

       The Division of Child Protection and Permanency presented its

case through three witnesses: the neighbor who found Laura, one



1
  For the reader's convenience, we use pseudonyms for defendant,
her daughter, and her daughter's father.

                                      2                               A-2862-16T1
of the responding police officers, and the Division caseworker.

The Division also introduced into evidence a redacted version of

the   caseworker's   investigative       summary,   a   Google   map   of   the

neighborhood where Laura lives and was found, and the police

report. The Law Guardian and Rachel did not present any witnesses.

      The neighbor testified that while on her way to work on a

late afternoon in April, she spotted Laura walking alone in the

middle of an internal roadway of the mobile home community.                 She

was dressed in one-piece pajamas with "feet." The neighbor stopped

her car about seventy-five feet from the child.             As the neighbor

started toward Laura, she ran away toward an intersection with

another road, which in turn led to Route 1.             At that point, Laura

was 200 to 250 feet from her home, according to the officer.

      The neighbor testified she saw a pick-up truck about 100 feet

from Laura.   She said the driver stopped "in front" of the child,

and blew his horn.    Laura halted, and the neighbor scooped up the

child.   She described Laura's face as red and "mucusy" but she was

not crying.   Laura could not communicate where she lived.               After

searching for Laura's parents for about seven minutes, the neighbor

left Laura with another neighbor in the community, whom she

believed worked for the Division, and then left for work.                   That

second neighbor called the police, which dispatched officers at

4:32 p.m.

                                     3                                 A-2862-16T1
     The responding patrol officer testified that his sergeant

recognized the child from a previous first-aid call.       Laura was

playful and appeared unharmed.        This was confirmed by EMTs who

subsequently arrived on the scene.      The patrol officer proceeded

down the block with Laura to Rachel's home, arriving at 5:07 p.m.

When Rachel responded to the door, she was unaware why the police

were there.    She became hysterical after the officer informed her

that Laura was found near Route 1.

     Rachel told the officer that she was in the back bedroom with

the door shut, talking on the phone.      The bedroom door opened to

a kitchen which was not separated by a doorway from the adjoining

living room.    Rachel had erected a baby safety gate to keep Laura

in the living room.   However, the officer testified, "It appeared

she maneuvered past the gate and then exited the back door that's

in the kitchen and then once in the backyard there's fencing

missing and it appeared she went through there."

     The officer detected a strong odor of marijuana.     He entered

the apartment and saw marijuana and paraphernalia in plain view.

Rachel explained that Laura's father, J.C. (Jack), had smoked the

marijuana before leaving for work.        The officer testified that

Rachel did not appear to be under the influence of drugs.        Once

Rachel informed Jack what happened, he sent his parents to the



                                  4                          A-2862-16T1
house.     He arrived soon after and took responsibility for the

marijuana.

     The caseworker testified that she arrived at the home around

6:30 p.m. In her interview, Rachel disclosed she had just returned

that day from a week of residential drug treatment.               After Jack

left for work at 3:45 p.m., Rachel set Laura up with a movie in

the living room, secured the baby gate, and proceeded to make some

phone calls in her bedroom.     She closed the door because she was

smoking a cigarette and did not want Laura exposed to the smoke.

     The     caseworker   testified       that   the   Division   found     it

"established" that Rachel neglected Laura based on inadequate

supervision.    The Division found two mitigating factors: (1) there

was no physical, psychological, or emotional impact due to Rachel's

inadequate supervision, and (2) it was an isolated or aberrational

incident.

     The fact-finding hearing focused on the precautions Rachel

took, or failed to take, to assure Laura's safety.                Rachel had

installed the baby gate between the living room wall and sofa.

The caseworker asserted, based on her own test, that the gate was

not securely attached, because of the sofa's soft surface.             There

was also some uncertainty about whether Laura toppled the gate,

or squeezed around it somehow.        The officer did not testify about

the position of the gate when he arrived.          He testified that Laura

                                      5                              A-2862-16T1
had maneuvered around it.   However, according to the investigative

summary, Rachel told the caseworker "[She] . . . heard the knocking

on the door; and as she left her bedroom she noticed that [t]he

gate was down on the floor."

     Rachel also claimed, in her interview with the caseworker,

that she monitored Laura from the bedroom every ten minutes with

a "nanny cam."   Neither the caseworker nor the officer spotted the

nanny cam in the apartment, but they did not confidently assert

it did not exist.   In any event, Rachel could not have seen Laura

on the nanny cam for at least forty-two minutes – consisting of

the seven minutes it took the first neighbor to deliver Laura to

the second neighbor, plus the thirty-five minutes between the

police dispatch, and their arrival at Rachel's home.   Rachel told

the caseworker that while she was in the bedroom, she made a

fifteen-minute call to her sister, and a twenty-minute call to her

father.

     The hearing also addressed the foreseeability of Laura's

exploits.   According to the investigative summary, Rachel told the

caseworker that "[Laura] . . . never got the gate down prior to

this date."   Rachel also reported that Laura "never went to the

backdoor before; but her family had informed her on this date

[Laura] had shown interest in it the week she was at [treatment]."

As for the security of the fenced-in yard, the officer declined

                                 6                          A-2862-16T1
to say that a whole section of fencing was missing, but asserted

that there was a "gap" through which Laura could have passed to

reach the street.

     The court found that Rachel had abused or neglected Laura by

failing to exercise a minimum degree of care in providing Laura

with proper supervision resulting in a risk of imminent harm.

                               II.

     Rachel appeals the finding that she abused or neglected her

daughter, and presents the following points for our consideration:

          POINT I: THE TRIAL COURT'S FINDING OF ABUSE
          AND NEGLECT IS NOT SUPPORTED BY THE EVIDENCE

               A. The Standard Of Review Is De Novo.

               B. The Finding Of Abuse and Neglect Is
               Wide Of The Mark.

               C. The Case Law Applied By The Trial
               Court Is Easily Distinguished From the
               Instant Matter.

          POINT II: THE TRIAL COURT INAPPROPRIATELY
          FILLED IN THE GAPS IN THE DIVISION'S CASE

               A. The Lower Court Based Its Findings On
               Rachel's Knowledge Of The Danger When No
               Such Knowledge Existed.

               B. The Lower Court Made Unsupported
               Findings Regarding The Child Safety Gate.

               C. The Lower Court Made Findings Of
               Additional Dangers To The Child Not Based
               On The Evidence.



                                7                          A-2862-16T1
     The Law Guardian joins the Division in urging us to affirm

the trial court's order.

                              III.

     We defer to a trial judge's factual findings, as long as they

are supported by substantial credible evidence.       N.J. Div. of

Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010); N.J. Div.

of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007).     "This

court accords deference to the Family Part's findings of fact

'because it has the superior ability to gauge the credibility of

the witnesses who testify before it and because it possesses

special expertise in matters related to the family.'"     N.J. Div.

of Child Prot. & Permanency v. S.G., 448 N.J. Super. 135, 143

(App. Div. 2016) (quoting N.J. Div. of Youth & Family Servs. v.

F.M., 211 N.J. 420, 448 (2012)).     However, we owe less deference

to findings drawn from the papers, as opposed to live testimony

and credibility determinations based on a witness's demeanor.

Ibid.

     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).       "Where

the issue to be decided is an 'alleged error in the trial judge's

evaluation of the underlying facts and the implications to be

drawn therefrom,' we expand the scope of our review."     N.J. Div.

                                8                             A-2862-16T1
of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation

omitted).

      We exercise de novo review of issues of law. Manalapan Realty

v.   Twp.   Comm.   of   Manalapan,   140   N.J.   366,   378   (1995).     In

particular, the finding that conduct constitutes gross negligence,

as opposed to simple negligence, is a "'conclusion of law to which

we are not required to defer.'"           Dep't of Children & Families v.

T.B., 207 N.J. 294, 308 (2011) (quoting N.J. Div. of Youth & Family

Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011)).

      We begin with a review of the trial court's factual findings.

We are convinced the trial court premised its decision on some

findings of fact that lack sufficient support in the record.

Although some of the errors are harmless, others undermine the

court's conclusion that Rachel was grossly negligent.

      There was sufficient support in the record for the trial

court's finding that Laura "had knocked down the baby gate, had

opened the back door, and had gone down the stairs leading from

the home . . . ."        However, Laura did not "exit[] the yard via a

broken fence panel"; the officer testified that a panel was not

missing, and that there was simply a gap in the fence.              Unlike a

"broken fence panel," a mere gap may have been more likely to have

escaped Rachel's notice.



                                      9                              A-2862-16T1
     We do not quarrel with the findings that Laura was out of the

house for "a minimum of forty minutes" without Rachel's knowledge;

and Rachel did not use the nanny cam, assuming she had one.     But,

there is no support for the court's conclusion that Rachel misled

the court.   Her implausible contention was made to the caseworker.

     We are constrained to defer to the court's finding that Rachel

was so "oblivious to the potential harms to her child that she did

not even realize that the knocked down baby gate could mean that

her daughter was no longer safe." However, it is equally plausible

that Rachel was so focused on responding to a police officer at

her door that she did not immediately appreciate the significance

of the downed gate.      The officer testified that Rachel first

realized that something was amiss with Laura when he informed her

that Laura was found near the highway.

     There was ample support for the court's conclusion that Laura

faced a risk of imminent harm while she wandered about the mobile

home community.    She was walking in the middle of a roadway.

However, the court erred in concluding that Laura was "found" 200

to 250 feet from her home.    The neighbor found her some distance

before the intersection that was 200 to 250 feet from her home.

But, that does not matter.    Calamity could have befallen Laura,

had it not been for several fortunate events, beginning with a

neighbor spotting her.     She and the other neighbor sought to

                                10                          A-2862-16T1
protect the child.    The pick-up truck driver attentively stopped

in front of her.   Laura did not wander into Route 1 before she was

found.   And,   the   sergeant   recognized   the   child,    avoiding    a

prolonged and anxious search for Laura's home.

     However, the record does not support the court's conclusion

that when Rachel retreated to her bedroom, she was aware that

Laura had "expressed interest in exploring the area outside of the

home via the backdoor of the mobile home and a broken fence that

surrounded the yard."   Based on that finding, the court concluded

that Rachel intentionally disregarded the risk that Laura would

try to leave by the backdoor.      The only possible basis for the

court's finding is the statement in the investigative summary that

on the day Laura was found, Rachel's "family had informed her

. . . [that Laura] had shown interest in" the backdoor.

     Yet, the investigative summary did not state whether Rachel

was so informed before Laura got away, or afterwards.         During the

almost   hour-and-a-half    between    Laura's      return,    and     the

caseworker's interview, Jack and his parents arrived in the home,

and may have passed on to Rachel what Laura had done during the

week Rachel was gone.   Furthermore, the investigative summary does

not support the conclusion that Laura had expressed an interest

in exploring the outside by passing through the fence, let alone



                                  11                              A-2862-16T1
that Rachel was aware of such interest, or that she was aware of

a "gap" in the fence, as the officer described it.

     As Laura did not suffer actual harm, the Division had the

burden to prove by a preponderance of "competent, material, and

relevant evidence," N.J.S.A. 9:6-8.46(b), that Laura's "physical,

mental, or emotional condition . . . [was] in imminent danger of

becoming impaired as the result of the failure of [Rachel] . . .

to exercise a minimum degree of care . . . in providing the child

with proper supervision . . .        by unreasonably inflicting or

allowing to be inflicted harm, or substantial risk thereof . . . ."

N.J.S.A. 9:6-8.21(c)(4)(b); see also N.J. Dep't of Children &

Families v. E.D.-O., 223 N.J. 166, 178 (2015) (noting that the

Division need not prove actual harm).

     A "minimum degree of care" encompasses "conduct that is

grossly or wantonly negligent, but not necessarily intentional."

G.S., 157 N.J. at 178.   A parent is wantonly negligent when he or

she engages in conduct knowing that "injury is likely to, or

probably will, result." Ibid. In other words, "willful and wanton

misconduct implies that a person has acted with reckless disregard

for the safety of others." Ibid. Mere negligence does not suffice

to establish abuse or neglect under the statute.     T.B., 207 N.J.

at 306-07; G.S., 157 N.J. at 172-73.    Furthermore, "every failure

to perform a cautionary act is not abuse or neglect."     T.B., 207

                                12                          A-2862-16T1
N.J. at 306.    A "merely negligent" failure "does not trigger

section (c)(4)(b) of the abuse or neglect statute."   Id. at 307.

     Whether a parent has failed to exercise a minimum degree of

care where there is no actual harm "is fact-sensitive and must be

resolved on a case-by-case basis."   E.D.-O., 223 N.J. at 192.   The

Court has warned that in undertaking this analysis, trial and

appellate courts "must avoid resort to categorical conclusions."

Id. at 180 (citing T.B., 207 N.J. at 309).

     Applying these principles to the facts that are supported by

the record, the Division failed to meet its burden.     Rachel did

not know that injury was likely, or a probable consequence of her

actions.   She took the cautionary step of placing her daughter

behind a safety gate.     She may have negligently installed the

gate, but there was no proof that she knew it was not secure.    She

said it had never failed before.

     The Division did not establish that family members told

Rachel, before Laura left the home, that Laura expressed interest

in the back door.     Rachel's statement to the caseworker could

support the conclusion that Rachel learned of Laura's interest

after the incident.   There also was no proof that Rachel was aware

the back door was unlocked after Jack left for work, or that there

was a gap in the fenced yard.



                                13                          A-2862-16T1
     Mindful that these are fact-sensitive cases, it is difficult

to infer general principles from other cases in which findings of

abuse or neglect have been affirmed or reversed.    Yet, parallels

may be drawn between this case and T.B.    In that case, a mother

who negligently left her four-year-old son unsupervised under the

mistaken belief that his grandmother was home, was found not to

have abused or neglected her son.   Id. at 296.   Similarly, Rachel

negligently failed to check on her daughter for at least forty

minutes, under the mistaken belief that Laura was safe behind a

gate, in a small mobile home in which Rachel was just a room away.

Also, like the incident in T.B., which was "totally out of the

ordinary," id. at 310, even the Division concluded that Laura's

escape from the living room and the home was an "isolated and

abberational incident."

     Rachel did not knowingly leave her daughter alone in the

home; she left her alone in a room of a small house while she was

present.   In contrast, the parent in E.D.-O., 223 N.J. at 169,

left a nineteen-month-old child alone in a car with the motor

running while she ran into a store.   Yet, even in that case, the

Supreme Court reversed the appellate panel's conclusion of abuse

or neglect, remanding for an evidentiary hearing to explore such

facts as the mother's proximity to the child, how long the car and



                               14                           A-2862-16T1
child were out of view, the ability of someone to gain access to

the vehicle, and other extenuating circumstances.             Id. at 194.

    We do not condone Rachel's decision to leave Laura out of

sight   for   over   forty   minutes.      No   extenuating   circumstances

justified retreating behind a closed door to make phone calls.

Rachel could have talked on the phone with an eye on the child.

She could have smoked a cigarette in a few minutes, or done so

with the bedroom door slightly ajar.            She should have properly

secured the child safety gate, and assured that the door was

locked.       No   doubt,   Rachel   was   negligent.    However,   we    are

unpersuaded she was grossly negligent.

    Reversed.




                                      15                             A-2862-16T1
