                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4863-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,
v.

P.M.,

          Defendant-Appellant,
and

S.M.,

     Defendant.
_____________________________

IN THE MATTER OF M.M.
and L.M.,

     Minors.
_____________________________

                    Submitted September 11, 2019 – Decided September 17, 2019

                    Before Judges Haas and Enright.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Essex County, Docket
            No. FN-07-0378-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Janet Anne Allegro, Designated Counsel,
            on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Travis A. Provost, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors (Olivia Belfatto Crisp, Assistant
            Deputy Public Defender, on the brief).

PER CURIAM

      Defendant P.M.1 appeals from an August 10, 2017 Family Part order 2

determining that he abused or neglected his two children by leaving his nine -

month-old daughter L.M. (Lisa) laying naked and face-down outside on the

porch in freezing temperatures, and his two-year-old son M.M. (Michael) on a

bed near a broken window in his ransacked apartment. P.M. challenges the trial

judge's finding that this conduct constituted abuse or neglect under N.J.S.A. 9:6-


1
 We refer to P.M. and his wife S.M. by initials, and to their children by fictitious
names, to protect their privacy. R. 1:38-3(d)(12).
2
  This order became appealable as of right after the trial court entered a final
order terminating the litigation on May 14, 2018.


                                                                            A-4863-17T4
                                         2
8.21(c)(4)(b). The Law Guardian supports the judge's finding that the Division

of Child Protection and Permanency (Division) met its burden of proving abuse

or neglect by a preponderance of the evidence. Based upon our review of the

record and applicable law, we affirm.

      On December 22, 2016, the Newark Police Department made a referral to

the Division regarding P.M. According to the referral, S.M. had returned home

from work 3 and discovered that her and P.M.'s apartment had been ransacked.

There were traces of blood and broken glass everywhere. S.M. found Michael

sitting under a blanket on a bed upstairs and close to a broken window. S.M.

was initially unable to locate Lisa, but after noticing and following a trail of

blood, she discovered the infant laying naked outside on the porch. After the

police arrived, the children were taken to the hospital. The hospital released

Michael later that evening, but Lisa, whose body temperature was only 84.5

degrees when she was found, had to remain in the hospital overnight due to

hypothermia and a head contusion.4




3
  P.M. had been alone with, and in charge of, the children while S.M. was at
work.
4
  Upon returning home, the children continued in S.M.'s care, and P.M. was not
permitted to have unsupervised contact with them.
                                                                        A-4863-17T4
                                        3
      A Division Special Response Unit worker responded to the scene and

investigated the complaint. S.M. informed the worker that although she left the

children in P.M.'s care, he was missing when she returned home from work.

After police located P.M. attempting to break into a school later that evening,

he was also transported to the hospital. At the hospital, P.M. presented as

irritable and paranoid and was found to be "a danger to [him]self, others, and

property by reason of mental illness." P.M. remained in the hospital until his

discharge on December 25, 2016.

      S.M. told the Division worker that P.M. had been having trouble sleeping

the past few nights and had previously been hospitalized for a mental health

issue. Division worker Chrissy Fitz later interviewed P.M., who told her that he

had no memory of the December 22 incident, but he had episodes like this about

once a year. P.M. also stated that he had an "undiagnosed" mental illness.

Although the hospital recommended that P.M. schedule an appointment with its

behavioral health department, P.M. told Fitz he did not need to speak to anyone

or take any medication for his condition.




                                                                        A-4863-17T4
                                       4
      Following a fact-finding hearing at which this evidence was presented, 5

the trial judge found that the Division had established by a preponderance of the

evidence that P.M. abused or neglected his children by leaving them unattended

in an apartment amid blood and broken glass, and exposing them to freezing

winter temperatures.    As a result, Lisa suffered hypothermia and a head

contusion and, although Michael escaped Lisa's fate, he was nevertheless placed

in danger of sustaining similar harm. As the judge explained in his thorough

oral opinion:

            [P.M.] acted in a grossly negligent or reckless manner
            by failing to address his mental health issues and
            leaving two very young children alone in frigid
            temperatures.     Such conduct by [P.M.] posed a
            substantial risk of harm to his children and plac[ed]
            [them] at risk of imminent danger -- and, in fact, in
            [Lisa's] case, actual harm.

      Following further proceedings, P.M. left the country and advised the court

that he did not intend to return. Accordingly, the judge terminated the Title 9

proceedings, and this appeal followed.

      On appeal, P.M. contends that the trial judge "erred in finding that P.M.

committed an act of abuse or neglect" against the children. We disagree.



5
  Fitz was the only witness at the hearing. P.M. did not testify or present any
witnesses on his behalf.
                                                                         A-4863-17T4
                                         5
      Our task as an appellate court is to determine whether the decision of the

family court is supported by substantial credible evidence in the record and is

consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We

owe particular deference to a trial judge's credibility determinations and to "the

family courts' special jurisdiction and expertise[.]"    Id. at 413. Unless the

judge's factual findings are "so wide of the mark that a mistake must have been

made[,]" they should not be disturbed, even if we would not have made the same

decision if we had heard the case in the first instance. N.J. Div. of Youth &

Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty,

Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)). "It is

not our place to second-guess or substitute our judgment for that of the family

court, provided that the record contains substantial and credible evidence to

support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211

N.J. 420, 448-49 (2012).

      Through the admission of "competent, material and relevant evidence,"

the Division must prove by a preponderance of the evidence that the child was

abused or neglected. N.J.S.A. 9:6-8.46(b). In pertinent part, N.J.S.A. 9:6-

8.21(c)(4)(b) defines an "abused or neglected child" as:

            a child whose physical, mental, or emotional condition
            has been impaired or is in imminent danger of

                                                                          A-4863-17T4
                                        6
            becoming impaired as the result of the failure of his [or
            her] 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, including the infliction of excessive corporal
            punishment; or by any other acts of a similarly serious
            nature requiring the aid of the court[.]

      The statute thus requires the Division to make two showings: (1) the

parent failed "to exercise a minimum degree of care" and (2) the parent

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

risk of inflicting harm." Dep't of Children & Families v. E.D.-O., 223 N.J. 166,

179 (2015); N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 180

(2014). Accordingly, each case of alleged abuse "requires careful, individual

scrutiny" and is "generally fact sensitive" and "idiosyncratic." N.J. Div. of

Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). Both the nature of

the injury inflicted and the conduct should be reviewed within the context of the

family's circumstances at that moment. See Dep't of Children & Families, Div.

of Youth & Family Servs. v. C.H., 416 N.J. Super. 414, 416 (App. Div. 2010).

      Our Supreme Court has interpreted a failure to exercise a minimum degree

of care to mean parental conduct that is "grossly negligent or reckless." Y.N.,

220 N.J. at 180 (quoting N.J. Div. of Child Prot. & Permanency v. T.B., 207

N.J. 294, 306 (2011)). For that reason, conduct that is merely inattentive or only

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                                        7
negligent is insufficient to support a finding of abuse or neglect. Ibid. (citing

N.J. Dep't of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 168-69 (App.

Div. 2009)). Determining "[w]hether a particular event is to be classified as

merely negligent or grossly negligent defies 'mathematical precision.'" E.D.-O.,

223 N.J. at 185 (alteration in original) (quoting Div. of Youth & Family Servs.

v. A.R., 419 N.J. Super. 538, 544 (App. Div. 2011)).

      Under certain circumstances, leaving children alone or unsupervised can

rise to the level of gross negligence or recklessness. For example, this court

found neglect where a parent left his ten-month-old child unsupervised on a twin

bed without a railing near a hot radiator. N.J. Div. of Youth & Family Servs. v.

A.R., 419 N.J. Super. 538, 545-46 (App. Div. 2011). There, an older sibling

discovered the infant on the floor against the radiator with severe burns all over

his body. Id. at 540-41. Even though there was evidence that the parent had

attempted to prevent the child from falling off the bed with blankets, this court

determined that "'an ordinary reasonable person' would understand the perilous

situation in which the child was placed, and for that reason, [the] defendant's

conduct amounted to gross negligence." Id. at 546.

      By contrast, this court found that a parent's conduct did not rise to the

level of gross negligence where she inadvertently, and under the mistaken belief


                                                                          A-4863-17T4
                                        8
his grandmother was home, left her four-year-old son unsupervised for two

hours. T.B., 207 N.J. at 307. Because the mother saw the grandmother's car in

the driveway and the two had an established childcare routine, this court

reasoned that the mother's conduct was an isolated incident that "did not rise to

the level of gross negligence or recklessness." Id. at 309-10. Even under those

facts, however, this court acknowledged that it was a "close case." Id. at 300.

      With respect to the second element, the Division must show that the parent

"unreasonably inflicted or allowed to be inflicted, or created a substantial risk

of inflicting harm." Y.N., 220 N.J. at 180 (citing N.J.S.A. 9:6-8.21(c)(4)(b)). If

no evidence of actual harm exists, the question becomes whether a threat of harm

exists. E.D.-O., 223 N.J. at 178. Although courts need not wait until a child is

actually injured "the Division must show imminent danger or a substantial risk

of harm to a child." Ibid. (citing N.J.S.A. 9:6-8.21(c)(4)(b), -8.46(b)).

      Applying these principles to the facts of this case, we are satisfied that the

trial judge properly concluded that the Division met its burden of demonstrating

that P.M. abused or neglected both of his children by failing to exercise a

minimal degree of care in adequately supervising them. As was the case in A.R.,

when P.M. left his infant children unattended on the night of December 22, he

exposed both of them to a substantial risk of harm because they were both


                                                                            A-4863-17T4
                                         9
exposed to the elements on a frigid evening. Indeed, Lisa sustained actual harm

in the form of hypothermia after P.M. left her alone and naked on the outside

porch. While defendant left Michael on a bed inside the apartment, he too was

exposed to the icy temperatures because the bed was near a broken window.

Given the young age of the children and the conditions in which P.M. left them,

"'an ordinary reasonable person' would understand the perilous situation in

which the child was placed."       A.R., 419 N.J. Super. at 546. Under these

circumstances, the judge's conclusion that P.M. abused or neglected his children

is unassailable.

      P.M.'s reliance on T.B. in support of his contrary position is misplaced

because that case is readily distinguishable from the matter at hand. Unlike in

T.B., where the mother mistakenly believed she was leaving her child in his

grandmother's care, here, there was no evidence that P.M.'s decision to leave the

children unattended and exposed to the elements was accidental. Therefore, we

reject P.M.'s contention on this point.

      P.M. also argues that there was "no credible evidence [presented] to

support the trial [judge's] finding that P.M.'s untreated mental illness resulted in

actual or imminent harm to the children." However, the judge did not base his

finding of abuse or neglect solely upon P.M.'s admitted failure to treat the mental


                                                                            A-4863-17T4
                                          10
illness he disclosed he had. Rather, the judge found that P.M. left his two young

children alone on a freezing night without proper protection from the frigid

temperatures. This finding, which is amply and unquestionably supported by

the record, was more than sufficient to support the judge's conclusion that P.M.

abused or neglected his children. Thus, the Division did not need to present an

expert witness to demonstrate that P.M.'s mental illness presented an alternate

or additional ground for this determination.

      For this same reason, we also reject P.M.'s contention that the judge erred

in relying on information contained in his medical records in his oral decision.

The judge made only one fleeting comment about P.M.'s admission to hospital

personnel that he engaged in bizarre behavior on an annual basis. As stated

above, however, the judge concluded that P.M. abused or neglected the two

infants by leaving them unsupervised and helpless against the elements on the

night of December 22. Thus, the judge's brief reference to the medical record

was, at most, a harmless error that was not "clearly capable of producing an

unjust result." R. 2:10-2.

      Affirmed.




                                                                         A-4863-17T4
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