                             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                        NOT FOR PUBLICATION WITHOUT THE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-4784-16T2
                                                  A-4786-16T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

K.M. and B.M.L.,

        Defendants-Appellants.


IN THE MATTER OF B.L., JR.,
a Minor.
________________________________

              Submitted May 24, 2018 – Decided June 28, 2018

              Before Judges Reisner and Mayer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Morris County,
              Docket No. FN-14-0076-16.

              Joseph E. Krakora, Public Defender, attorney
              for appellant K.M. (Celeste Dudley-Smith,
              Designated Counsel, on the brief).

              Joseph E. Krakora, Public Defender, attorney
              for appellant B.M.L. (Anthony Van Zwaren,
              Designated Counsel, on the brief).
              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Jason W. Rockwell, Assistant
          Attorney    General, of counsel; Susan J.
          Saraiva,    Deputy Attorney General, on the
          brief).

          Joseph E. Krakora, Public Defender, Law
          Guardian, attorney for minor (Maria Emilia
          Borges, Assistant Deputy Public Defender, on
          the brief).

PER CURIAM

     Defendants    K.M.   (Kate)   and   B.M.L.    (Bob)1   appeal   from    a

December 15, 2016 fact-finding order determining they abused or

neglected their son, B.L., Jr. (Billy).2          We affirm.

     The following facts are derived from the record of the fact-

finding hearing.     On February 22, 2016, the Division of Child

Protection and Permanency (Division) received a referral from a

hospital social worker, alleging that Kate overdosed and tested

positive for marijuana and opiates.         The hospital records from

that date indicated Kate tested positive for both substances.             The

information lead to an investigation by the Division. The Division

was informed that Kate had relocated from Pennsylvania to New

Jersey, and was living in New Jersey with her son Billy, who was




1
   We use initials and pseudonyms to protect the parties' privacy
interests. R. 1:38-3(d).
2
   The December 15, 2016 order was appealable as a result of the
June 1, 2017 order terminating the litigation.

                                    2                                A-4784-16T2
one and a half years old at that time, Bob, Billy's father, and

Bob's parents, Billy's paternal grandparents.

       The same day as the referral, a Division caseworker went to

the paternal grandparents' home to check on Billy.              Shortly after

the caseworker arrived, Kate and Bob returned from the hospital.

Kate yelled profanities at the caseworker and refused to answer

questions.     Bob declined to speak with the caseworker.                     The

caseworker was unable to observe Billy during her visit.

       The next day, Division caseworker Almira Esen returned to the

paternal grandparents' home.      The paternal grandmother told Esen

that Kate, Bob, and Billy lived in a camper parked on the side of

her home. The paternal grandmother allowed Esen to see the camper.

Esen observed Kate and Billy inside the camper, but Esen was not

permitted to enter the camper or the home.             Kate began yelling at

Esen   that   the   Division   would       need   an   order   to   conduct    an

investigation.      Kate also informed Essen she intended to return

to Pennsylvania and would be leaving Billy in New Jersey with Bob.

       Bob arrived while Esen was at the home.                 Bob refused to

discuss Kate's substance abuse and hospitalization.                 Esen asked

Bob whether he thought Kate would leave New Jersey while the

investigation was pending.      Bob responded that Kate did not have




                                       3                                A-4784-16T2
a car, did not drive, and he "would do anything to protect his

son."

     Due    to   the   lack   of   compliance   with   the     Division's

investigation, a Division caseworker telephoned Kate to explain

that the Division was seeking a court order to compel the parents'

cooperation.     Kate again yelled at the caseworker, stating the

Division had no jurisdiction because Kate was an out-of-state

resident.      Kate claimed she had returned to Pennsylvania and

refused to give the caseworker her address.        Subsequent to this

communication between Kate and the caseworker, Kate left New Jersey

with Billy.

     The Division filed a complaint seeking care and supervision

of Billy, which was granted.       In addition, Kate was ordered to

return to New Jersey with Billy within twenty-four hours.

     Bob repeatedly told the Division caseworkers that he lacked

an address or telephone number for Kate and was unable to bring

Kate and Billy back to New Jersey.      Bob also told the caseworkers

that he had no concerns regarding Kate's ability to care for Billy.

     In a follow up conversation with the Division, Bob confirmed

that he spoke with Kate, and told her about the court order

requiring her to return to New Jersey with Billy.            According to

Bob, Kate refused to return to the state.          Bob also told the



                                    4                             A-4784-16T2
caseworker he did not trust the Division and "only if the Division

will sign that [Billy] will not be removed" would he provide Kate's

address.     Bob maintained that he did not know Kate's whereabouts

with Billy.

     Kate eventually appeared in court on April 8, 2016.           Billy

was found at his paternal grandparent's home on that date, and the

Division conducted an emergency removal of Billy.         As of April 8,

Billy was missing from the state for thirty-two days.

     After      completing   its       investigation,    the    Division

substantiated Kate and Bob for neglect of Billy.            The Division

noted that Kate and Bob failed to comply with court orders, Kate

was hospitalized for a suspected drug overdose and tested positive

for marijuana while she was caring for Billy, Bob tested positive

for marijuana, and Bob failed to recognize the risk to his son

while Billy was in Kate's care.    The Division also considered that

Kate neglected Billy due to her failure to return Billy to the

state in accordance with a court order.

     On December 15, 2016, the judge issued a written opinion

after the fact-finding hearing was completed.           The judge deemed

Kate's testimony not credible because her trial testimony was

inconsistent with previous statements she made to the hospital,

the Division, and the evaluators.         The judge found that Kate's



                                   5                             A-4784-16T2
testimony also varied from Bob's statements to the Division, the

court, and the evaluators.            The judge observed that Kate was

"vague, evasive and, at times, defensive."                    During her direct

testimony, when Kate was questioned about her prior admissions,

she responded that she "did not recall."                   On cross-examination,

Kate responded "I don't remember," "I guess," or "I think so."

The   judge    found    the   testimony       of   the   Division's   caseworkers

credible      and    their    testimony       consistent    with    the    evidence

submitted during the fact-finding hearing.

      In   her      written   opinion,    the      judge    found   the    Division

established the allegations of abuse and neglect by a preponderance

of the evidence in accordance with N.J.S.A. 9:6-8.21(c)(4)(b).

The judge determined that Kate and Bob "failed to exercise a

minimum degree of care and were aware of the dangers inherent in

the situation."         The judge concluded Bob "failed to adequately

supervise [Billy]" and Kate "recklessly created a risk of serious

injury to [Billy]."

      Specifically, the judge found the Division proved Kate had

"untreated substance abuse issues at the time of the initial

referral and at the time of [Billy's] removal and that she was in

a caretaking role during both of those time periods."                     The judge

further found Kate placed Billy at substantial risk of harm when



                                          6                                 A-4784-16T2
she absconded with Billy knowing the Division had         a pending

investigation and a court hearing scheduled for care and custody

of Billy.

     As for Bob, the judge found his statements to the Division

caseworker that Kate would not leave the state because Kate did

not drive and did not have a car and that he would do anything to

protect Billy were not truthful.     The judge concluded Bob allowed

Kate to leave the state with Billy and then professed his ignorance

of Kate's whereabouts for more than a month.    The judge found Bob

knew where Kate and Billy resided, especially because Bob attempted

to negotiate with the Division concerning Billy's location in

return for a promise by the Division not to remove Billy.

     Kate and Bob appeal from the December 15, 2016 order finding

they neglected Billy.   We consolidated their separate appeals.

     The scope of our review of an order finding abuse and neglect

is limited.   N.J. Div. of Child Prot. & Permanency v. Y.A., 437

N.J. Super. 541, 546 (App. Div. 2014).     We will uphold the trial

judge's factual findings and credibility determinations if they

are supported by "adequate, substantial, and credible evidence."

N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605

(2007).   We will only overturn the judge's findings if they "went

so wide of the mark that the judge was clearly mistaken."     Ibid.



                                 7                           A-4784-16T2
      However, we do not give "special deference" to the trial

court's interpretation of the law.    D.W. v. R.W., 212 N.J. 232,

245 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202

N.J. 145, 183 (2010)).   We apply a de novo standard of review to

legal issues.   Id. at 245-46.

      The adjudication of abuse and neglect is governed by Title

9.   N.J.S.A. 9:6-8.8; N.J.S.A. 9:6-8.21 to -8.73.   Under Title 9,

an abused and neglected child is defined as:

           a child less than [eighteen] years of age
           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 or
           guardian . . . to exercise a minimum degree of
           care . . . (b) in providing the child with
           proper   supervision   or   guardianship,   by
           unreasonably inflicting or allowing to be
           inflicted    harm,   or    substantial    risk
           thereof . . . .

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

      The Supreme Court has instructed that the abuse and neglect

standard under Title 9 is satisfied when the Division demonstrates

that a parent has failed to exercise a minimum degree of care.

G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 181

(1999).    "'Minimum degree of care' refers to conduct that is

grossly or wantonly negligent, but not necessarily intentional."

Id. at 178.   In G.S., the Court held "a [parent] fails to exercise



                                 8                          A-4784-16T2
a minimum degree of care when he or she is aware of the dangers

inherent in a situation and fails adequately to supervise the

child or recklessly creates a risk of serious injury to that

child."   Id. at 181.

     When determining whether a parent has failed to exercise a

minimum degree of care and has therefore neglected or abused a

child,

          the inquiry should focus on the harm to the
          child and whether that harm could have been
          prevented had the [parent] performed some act
          to remedy the situation or remove the danger.
          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 Division must prove by a preponderance of competent,

material, and relevant evidence that a child is an abused or

neglected child.   N.J.S.A. 9:6-8.46(b).    See also N.J. Div. of

Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011).        This

burden of proof requires the Division to demonstrate a "probability

of present or future harm."   N.J. Div. of Youth & Family Servs.

v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004).

     On appeal, Kate and Bob allege that there was insufficient

evidence to support a finding of abuse and neglect. In particular,



                                9                           A-4784-16T2
Kate alleges there is no evidence in the record of her overdosing

and, particularly, no evidence of her overdosing when Billy was

in her care.

     Here, substantial, credible evidence in the record amply

supports the judge's finding of neglect.      The evidence supports

the judge's decision that Billy's physical, mental, or emotional

condition was impaired or was in imminent danger of becoming

impaired as a result of Kate and Bob's failure to exercise the

minimum degree of care under N.J.S.A. 9:6-8.21(c)(4)(b).         Bob

allowed Kate to flee the state with Billy despite her ongoing

substance abuse and mental health issues.     Bob took no action to

protect his son from risk once Kate left the state despite knowing

Kate's whereabouts with the child.      Kate intentionally fled the

state to avoid the court's jurisdiction and to interfere with the

Division's investigation regarding Billy.     Both parents knew the

Division was searching for Billy for over a month, yet they refused

to cooperate with the Division's efforts to ensure Billy's safety.

The actions and inactions of Kate and Bob, under the totality of

the circumstances in this case, constituted abuse or neglect

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

     Kate argues the judge erred in finding it was not safe to

return Billy to her physical custody.     The dispositional hearing



                               10                           A-4784-16T2
was   conducted   immediately   following   the   judge's   fact-finding

determination of abuse or neglect as to both parents.          Kate did

not appear at the dispositional hearing and did not request that

Billy be returned to her physical custody. Nor was there a request

by Kate's counsel during the dispositional hearing for custody of

Billy to be returned to Kate. Because the matter was not presented

to the judge, we disregard Kate's appeal argument on this issue.

See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328,

339 (2010). Moreover, Kate's argument is moot based on the judge's

November 20, 2017 order transferring custody of Billy to Bob. Kate

has not appealed from that order.

      Affirmed.




                                  11                             A-4784-16T2
