                                    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                            NOT FOR PUBLICATION WITHOUT THE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-5434-15T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

T.L.,

        Defendant-Appellant.


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


                Argued October 1, 2018 – Decided November 15, 2018

                Before Judges Fasciale, Gooden Brown and Rose.

                On appeal from Superior Court of New Jersey,
                Chancery Division, Family Part, Essex County, Docket
                No. FN-07-0527-15.

                T. Gary Mitchell, Deputy Public Defender, argued the
                cause for appellant (Joseph E. Krakora, Public
                Defender, attorney; T. Gary Mitchell, of counsel and on
                the brief).
              Sara K. Bennett, Deputy Attorney General, argued the
              cause for respondent (Gurbir S. Grewal, Attorney
              General, attorney; Jason W. Rockwell, Assistant
              Attorney General, of counsel; Sara K. Bennett, on the
              brief).

              Danielle Ruiz, Designated Counsel, argued the cause
              for minor (Joseph E. Krakora, Public Defender, Law
              Guardian, attorney; Danielle Ruiz, on the brief).

PER CURIAM

        Defendant T.L.1 appeals from a July 7, 2016 Family Part order concluding,

after a fact-finding hearing, that he abused or neglected M.W., his three-year-

old stepson and biological child of his wife, R.W. 2 We affirm substantially for

the reasons set forth in Judge Linda Lordi Cavanaugh's written opinion that

accompanied the order.

                                          I.

        The allegations of abuse and neglect in this case are unrelated to an act or

omission by defendant in caring for M.W. Rather, this appeal has its genesis in




1
    We use initials to protect the privacy of the parties. See R. 1:38-3(d)(12).
2
    In the same decision, the trial judge determined the abuse and neglect
allegations against R.W. were not substantiated.



                                                                            A-5434-15T2
                                          2
the death of N.T., defendant's then three-year-old daughter, who was killed at

the hands of defendant five years before defendant resided with R.W. and M.W.

      Specifically, N.T. died in November 2009 of battered child syndrome

while living with defendant and his then wife, S.L. 3 In June 2010, a Family Part

judge determined defendant had abused N.T. and caused her death. 4 Thereafter,

defendant was arrested and indicted for first-degree murder, N.J.S.A. 2C:11-

3(a)(1), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-

4(a). The circumstances of N.T.'s death, defendant's guilty plea to an amended

charge of second-degree manslaughter, N.J.S.A. 2C:11-4,5           his subsequent

denial of guilt, and his inability to deal with the "stressors" that led to N.T.'s

death, underscored the reasons for Judge Cavanaugh's determination that

defendant presented a substantial risk of harm to M.W.


3
 S.L. is referenced in the record as defendant's girlfriend, fiancé and wife; she
was not the biological mother of N.T.
4
 Following N.T.'s death, defendant's and S.L.'s parental rights to their then five-
year-old biological daughter, K.T., were terminated. We affirmed the trial
court's decision on appeal. N.J. Div. of Child Prot. & Permanency v.
S.E.L. and T.S.D.L., Nos. A-6200-11, A-6201-11 (App. Div. May 1,
2014).
5
  Defendant was sentenced to a five-year prison term followed by a three-year
period of parole supervision, pursuant to the No Early Release Act, N.J.S.A. 43-
7.2.


                                                                           A-5434-15T2
                                        3
      Judge Cavanaugh's twenty-five-page opinion sets forth the facts and

procedural history in detail, and we incorporate by reference those findings here.

In sum, a few months after he was released from prison, defendant married R.W.

and lived with her and M.W. Notably, the Division of Parole (DOP) "initially

approved [that] living situation then determined [it] made a mistake and order[ed

defendant] to leave the home." Nonetheless, noting concerns about M.W.'s

safety while defendant had been living in R.W.'s home, the DOP contacted the

Division of Child Protection and Permanency (Division). The Division then

"began its assessment of the family considering [R.W.] as the primary caregiver

and [defendant] not residing in the home."

      Initially, the Division determined the abuse and neglect allegations against

defendant and R.W. were "not established," but the case remained open "for

short-term supervision at a minimum." Following administrative review, th e

Division changed its findings to "[s]ubstantiated" for defendant and

"[e]stablished" for R.W. 6 Thereafter, the Division filed an order to show cause

and verified complaint for the care and supervision of M.W. Following the



6
  Sometime before the Division amended its findings, the Department of
Children and Families Office of Legal Affairs (OLA) informed the Division that
N.T.'s biological mother had filed a lawsuit against the State of New Jersey and
OLA had "requested documents relating to [defendant's] [p]arole [s]tipulations."
                                                                          A-5434-15T2
                                        4
hearing, the judge ordered defendant to have no contact with M.W. During the

ensuing litigation, defendant was evaluated by the Division's psychology expert,

Dr. Mark Singer, Ed.D., and defense expert, Dr. Matthew B. Johnson, Ph.D.

      Pertinent to this appeal, following a three-day fact-finding hearing, Judge

Cavanaugh considered the testimony of Dr. Singer and two caseworkers on

behalf of the Division, the testimony of Dr. Johnson on behalf of defendant, and

multiple documents, including the experts' reports. Although the judge found

both experts credible and well-versed in their fields, she ultimately rejected Dr.

Johnson's opinion that defendant did not present a risk to M.W. because the

doctor's "evaluations and recommendations [were] predicated on an acceptance

of and full belief in [defendant's] version of the events of [N.T.'s] death." In

doing so, the judge considered, but rejected Dr. Johnson's opinion that defendant

pled guilty to manslaughter "purely on 'pragmatic grounds[]' . . . [un]related to

any risk that [defendant] might present in the home."

      Conversely, the judge credited Dr. Singer's testimony noting the doctor

            faced a dilemma in assessing [defendant]; on one hand
            [defendant] had voluntarily pled guilty to a crime in
            court but on the other hand he [was] indicating that
            although he read a statement prepared for him at his
            plea colloquy, he insist[ed] he [was] not responsible for
            the death of his child, [N.T.]. The contradiction
            presented by these statements is of great significance to
            Dr. Singer's analysis, findings and recommendations.

                                                                          A-5434-15T2
                                        5
                   Dr. Singer opined that the most reliable indicator
            of future behavior is past behavior and without
            appropriate intervention there is no basis for him to
            determine that such behavior will not occur again. Dr.
            Singer stated that if [defendant were] responsible and
            there have been no intervening factors to address the
            variables that led to [N.T.]'s death then the behavior is
            likely to repeat itself in the future. Dr. Singer maintains
            that [defendant] had risk factors surrounding [N.T.]'s
            death that have not been addressed and, as a result, he
            should not have unsupervised contact with [M.W.] until
            those risk factors are properly addressed as they are
            likely to continue to exist.

                   Dr. Singer repeatedly stated that the risk factors
            that existed at the time of [N.T.]'s death are unknown
            to him but that based on the totality of the data that he
            considered and having no evidence to suggest that those
            risk factors were mitigated, [defendant] would present
            a risk of harm to [M.W.]. Dr. Singer recommended that
            [defendant] participate in therapy to identify and
            address those risk factors that were present in 2009 in
            an effort to mitigate the risk to [M.W.] today.

                  On cross-examination, Dr. Singer stressed that
            the risk factor is not [defendant]'s guilty plea. He
            acknowledged that currently, [defendant] has several
            positive factors. . . . But, the expert continued, those
            positive factors do not mitigate the presence of risk
            factors and stressors that likely led to [N.T.]'s death in
            2009.

      Judge Cavanaugh concluded the Division established by a preponderance

of the evidence that defendant abused and neglected M.W. as proscribed by

N.J.S.A. 9:6-8.21(c)(4)(b). The judge elaborated:

                                                                          A-5434-15T2
                                        6
       Pursuant to N.J.S.A. 9:6-8.46(a)(1), the proof of
abuse and neglect of [N.T.] is admissible as to the abuse
and neglect of [M.W.]. When considering [N.T.]'s
death even if looking at those facts in the light most
favorable to [defendant], the [c]ourt finds that
[defendant] was at a minimum complicit in and
responsible for her death. The [c]ourt is simply not
convinced that [defendant] had no involvement in
[N.T.]'s death. He admitted to same when he pled
guilty. . . . Counsel for [defendant] consistently argued
that the [c]ourt should look beyond the guilty plea to
the possible reasons therefore.         She argued that
[defendant]'s statements during his evaluations that he
was not the party responsible for the child's death
should be persuasive to the [c]ourt. They simply are
not. Furthermore the [c]ourt is constrained from doing
so as [defendant] is collaterally estopped from asserting
any claims of innocence now. In Re Guardianship of
J.O., 327 N.J. Super. 304, 309 (App. Div. 2000) . . . .

      ....

      Additionally, [defendant] has been substantiated
for the death of [N.T.], a finding of abuse and neglect
has been entered and his parental rights to his daughter
[K.T.] were terminated. Regardless of any reasons
offered as to why a plea was entered, the [c]ourt must
also accept the facts of the plea entered, consider the
admissions made at the time and the sentence for the
second-degree manslaughter.

      The [c]ourt finds it is unfortunate that the conduct
and actions or inactions of [defendant] that led to
[N.T.]'s death have yet to be addressed but this is solely
due to [defendant] and his failure to truly accept
responsibility for his actions. He has not dealt with the
"stressors" to which Dr. Singer referred that existed at
the time of [N.T.]'s death, the ones that may explain

                                                             A-5434-15T2
                            7
            what happened and why, the ones that should be
            addressed to insure such an act never happens again.
            [Defendant] has not given this [c]ourt any reason to
            believe that he is not a substantial risk of harm to
            [M.W.]. The [c]ourt puts little weight in the argument
            that Dr. Johnson thinks [defendant] is at a low[]risk of
            reoffending and that he has lived with [R.W.] and
            [M.W.] for four months without prior involvement by
            the Division. This is not competent or material proof
            that [M.W.] is not at risk of harm[ because R.W. stated
            that before defendant was] removed from the home
            [defendant] primarily had supervised access to [M.W.]
            because of the convenience of the house schedule thus
            reducing his exposure and access to [M.W.].

                  At the present time the cautionary steps that may
            be necessary to prevent [M.W.] from a risk of harm are
            unknown to the [c]ourt. Again, this is primarily laid at
            the feet of [defendant] and his inability or
            unwillingness to acknowledge that he played a role in
            the death of his daughter.

      Defendant now appeals. He primarily argues that the record is insufficient

to establish he posed an imminent danger and substantial risk of harm to M.W.

based on his daughter's death six years earlier. He also contends the court

abused its discretion by denying his application to determine the basis for the

change in the Division's findings from not established to substantiated, and by

barring Dr. Johnson from testifying about the discrepancy between defendant's

plea allocution and his subsequent denial that he caused N.T.'s death.        In

conjunction with those arguments, defendant claims the Division concealed


                                                                        A-5434-15T2
                                       8
documents during the litigation of this matter. M.W.'s law guardian joins the

Division in urging us to affirm.

                                       II.

      Our standard of review of the Family Part's fact-finding determination is

limited. On appeal from orders issued in Title 9 cases, we accord considerable

deference to the trial court's credibility determinations and findings of fact, as

long as those findings are supported by adequate, substantial, and credible

evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79

(2007). "[I]f there is substantial credible evidence in the record to support the

trial court's findings, we will not disturb those findings." N.J. Div. of Youth &

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

Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); N.J.S.A. 9:6-8.46(b) (A

court's finding of abuse or neglect in a Title 9 action must be proven by a

preponderance of "competent, material, and relevant evidence . . . .").

      However, "if the trial court's conclusions are 'clearly mistaken or wide of

the mark[,]' an appellate court must intervene to ensure the fairness of the

proceeding." L.L., 201 N.J. at 227 (alteration in original) (quoting N.J. Div. of

Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We also owe no




                                                                          A-5434-15T2
                                        9
deference to the trial court's legal conclusions, which we review de novo. State

v. Smith, 212 N.J. 365, 387 (2012).

      Title 9 cases are fact-sensitive, and the court should "base its findings on

the totality of circumstances . . . ." N.J. Div. of Youth & Family Servs. v. V.T.,

423 N.J. Super. 320, 329 (App. Div. 2011). Notably, the Title 9 proof standard

is less stringent than in guardianship cases for the termination of parental rights,

which instead must be proven by clear and convincing evidence. See N.J.S.A.

30:4C-15.1(a).

      N.J.S.A. 9:6-8.21(c) defines various circumstances that can comprise the

abuse or neglect of a child. Among other things, the statute specifically covers:

            [A] child 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
            parent or guardian, as herein defined, 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
            ....

            [N.J.S.A. 9:6-8.21(c)(4)(b) (emphasis added).]

      Our Supreme Court has noted, "The law's paramount concern is the safety

of the children, and not the culpability of parental conduct." N.J. Div. of Youth


                                                                            A-5434-15T2
                                        10
& Family Servs. v. A.L., 213 N.J. 1, 18 (2013) (citations and internal quotation

marks omitted); see also G.S. v. Div. of Youth & Family Servs., 157 N.J. 161,

177 (1999). "The focus in abuse and neglect matters . . . is on promptly

protecting a child who has suffered harm or faces imminent danger." A.L., 213

N.J. at 18 (citing N.J.S.A. 9:6-8.21(c)(4)).

      Relevant here, a court need not wait until a child is actually harmed or

neglected before it can act in the welfare of that minor. N.J. Div. of Youth &

Family Servs. v. V.M., 408 N.J. Super. 222, 235 (App. Div. 2009) (citing In re

Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). Thus, "[i]n the absence of

actual harm, a finding of abuse and neglect can be based on proof of imminent

danger and substantial risk of harm." A.L., 213 N.J. at 23 (citing N.J.S.A. 9:6-

8.21(c)(4)(b)).

      Further, our courts have recognized that "[p]redictions as to probable

future conduct can only be based upon past performance. . . ." N.J. Div. of

Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 482 (App. Div. 2010)

(alteration in original) (quoting J. v. M., 157 N.J. Super. 478, 493 (App. Div.

1978)). "We cannot conceive that the Legislature intended to guarantee to

parents at least one chance to kill or abuse each child." J. v. M., 157 N.J. Super.

at 493. Nonetheless, our Supreme Court has cautioned that where, as here, an


                                                                           A-5434-15T2
                                       11
"allegation of child neglect in which the conduct of the parent or caretaker does

not cause actual harm is fact-sensitive and must be resolved on a case-by-case

basis." N.J. Dep't of Children & Families, Div. of Child Prot. & Permanency v.

E.D.-O., 223 N.J. 166, 192 (2015).

      Applying our limited scope of review and these standards, here, we are

satisfied there was competent, credible evidence in the record to support Judge

Cavanaugh's finding that defendant abused or neglected R.W. We add the

following comments.

      The evidence of imminent danger and substantial risk of harm is readily

apparent from the record. Notwithstanding defendant's claims of innocence

here, defendant pled guilty in 2013 to causing his three-year-old daughter's

death, detailing, in his own words, how he caused her death. In particular,

defendant stated:

            I lost my temper with my daughter [N.T.] when she
            went to the bathroom in -- I shook her hard, scolded her,
            and pushed her into the corner . . . .

                   However, when I pushed her, I pushed her too
            hard and her head hit the wall hard and she had taken a
            fall to the floor, striking her head. Immediately, I
            picked her up and thought she was okay. Hours later, I
            went to the store when I thought she was taking a nap.

                 After I got home, my wife, [S.L.] said [N.T.] was
            having trouble breathing. We tried to aid [N.T.] on our

                                                                         A-5434-15T2
                                      12
            own and delayed call[ing] 9-1-1 . . . for a significant
            period of time.

      Moreover, defendant never challenged his conviction.           Specifically,

defendant did not file a motion to vacate his guilty plea, a post-conviction relief

petition, or an appeal of his conviction or sentence. Indeed, in response to the

court's inquiry after his plea allocution, defendant confirmed he was pleading

guilty to manslaughter because he was "in fact" guilty.

      While evidence of defendant's prior abuse of N.T. and K.T. is "admissible

evidence on the issue of the abuse or neglect of [M.W.]," N.J.S.A. 9:6-

8.46(a)(1), J. v. M., 157 N.J. Super. at 493, the trial judge astutely recognized

defendant's manslaughter conviction, alone, would not trigger a substantial risk

of harm to M.W. Rather, defendant failed to address the risk factors that led to

N.T.'s death.    Further, as the judge observed, defendant's "inability or

unwillingness to acknowledge that he played a role in the death of his daughter"

was his own doing. In essence, because defendant did not address the factors

that led to N.T.'s death, those factors could not be identified by the experts.

Thus, defendant's argument that Dr. Singer failed to identify the risk factors and,

as such, the judge improperly "fill[ed] in missing information on [her] own[,]"

A.L., 213 N.J. at 28, is unavailing.



                                                                           A-5434-15T2
                                       13
      More importantly, however, defendant's failure to address the factors that

resulted in N.T.'s death likewise placed M.W. in imminent danger and

substantial risk of harm. In this regard, defendant's reliance on New Jersey

Division of Child Protection & Permanency v. S.W., 448 N.J. Super. 180 (App.

Div. 2017), is misplaced. In S.W., we reversed the trial court's determination

that defendant's relapse and use of cocaine after an arrest exposed his children

to imminent danger. Id. at 194. Conversely, here, because defendant refused to

address the risk factors that led to N.T.'s death, M.W. was exposed to imminent

danger and a substantial risk of harm. Thus the judge correctly based her

decision on defendant's failure to address the "stressors" that previous ly led to

his manslaughter conviction for causing N.T.'s death.

      We also find unpersuasive defendant's argument that the court failed to

permit his expert to explain the discrepancy between his guilty plea allocution

and his later statements of denial. Clearly, the judge considered the defense

argument that she "should look beyond the guilty plea to the possible reasons

therefore[,]" based on defendant's exculpatory statements to both experts.

Instead, the judge properly accepted defendant's sworn testimony under oath on

the prior criminal proceedings in disallowing defendant's contrary explanation

here. See Townsend v. Pierre, 221 N.J. 36, 52 (2015) ("The admission or


                                                                          A-5434-15T2
                                       14
exclusion of expert testimony is committed to the sound discretion of the trial

court.").

      Contrary to defendant's next contention, the circumstances surrounding

the Division's determination to change its abuse and neglect finding from "not

established" to "substantiated" are not relevant to these proceedings. Those

findings are administrative, see N.J.A.C. 3A:10-7.3, and, as the judge correctly

noted, "the findings that the Division makes are separate from the findings of

[the trial court]." Accord In re an Allegation of Physical Abuse Concerning

R.P., 333 N.J. Super. 105, 117 (App. Div. 2000) (citation omitted) ("A finding

by [the Division] that child abuse charges have not been substantiated, but that

there is some indication a child was harmed or placed at risk of harm, is purely

investigatory in nature, with none of the procedural protections of an

adjudicatory proceeding."). Importantly, here, as the judge observed, "the initial

investigation assumed [defendant] was not and would not be residing in the

home." We thus find no abuse of discretion in the court's denial of defendant's

application to determine the basis for the change in the Division's findings. See,

e.g., Hisenaj v. Kuehner, 194 N.J. 6, 10 (2008) (noting evidentiary rulings are

reviewed for abuse of discretion).




                                                                          A-5434-15T2
                                       15
      Nor are we persuaded by defendant's argument that the Division withheld

the final page of defendant's criminal judgment of conviction (JOC), which sets

forth the court's findings at sentencing as to aggravating and mitigating factors,

N.J.S.A. 2C:44-1(a) and (b). The record reveals the entire JOC was furnished

to defendant in discovery. Further, because the sentencing transcript is not part

of the record before us, it is unclear why the judge found "defendant's conduct

was the result of circumstances unlikely to recur." See N.J.S.A. 2C:44-1(b)(8).

      Under the totality of these circumstances, we discern no basis for

disturbing Judge Cavanaugh's determination that T.L.'s past abuse and neglect

of N.T. and his failure to address the stressors that led to her death, placed M.W.

at risk of serious harm and constituted abuse and neglect within the meaning of

N.J.S.A. 9:6-8.21(c)(4).

      To the extent not addressed, defendant's remaining arguments lack

sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                           A-5434-15T2
                                       16
