                             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                        NOT FOR PUBLICATION WITHOUT THE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-2044-16T2


NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

H.L.

     Defendant-Appellant.
______________________________

IN THE MATTER A.L. and
A.L., Minors.
______________________________

              Submitted June 5, 2018 – Decided June 26, 2018

              Before Judges Moynihan and Natali.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Union County,
              Docket No. FN-20-0057-16.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Marc R. Ruby, Designated
              Counsel, on the brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Jason W. Rockwell, Assistant
              Attorney General, of counsel; Mary C. Zec,
              Deputy Attorney General, on the brief).
           Joseph E. Krakora, Public Defender, Law
           Guardian, attorney for minors (Karen A.
           Lodeserto, Designated Counsel, on the brief).

PER CURIAM

      H.L. appeals the trial court's finding of abuse or neglect,

N.J.S.A. 9:6-8.21(c)(4), based on grossly negligent conduct that

exposed her children, Chloe and Charlie1 – both under the age of

five – to a substantial risk of harm.            She argues, "[n]either

Chloe nor Charlie were harmed, or even in danger.            And there was

insufficient competent evidence supporting the finding that [she]

failed to exercise a minimum degree of care at the time of the

incident" when she left the children "in the supervised care of

an adult, inside a home with dirty dishes, and a roach problem,

while she drank a few beers, before visiting her dying husband's

hospital bedside."     We are unpersuaded and affirm.

      Following   a   fact-finding     hearing   conducted    pursuant    to

N.J.S.A. 9:6-8.44, the trial judge found the Special Response Unit

(SPRU) investigator and intake supervisor who testified for the

New   Jersey   Division   of   Child   Protection   and   Permanency   were

"extremely prepared" and testified "from personal knowledge."             He

characterized the SPRU investigator's "recall and preparation [as]

compelling," concluding she "testified so very credibly."


1
  We use the same pseudonyms for the children – including H.L.'s
adult son — as did H.L. in her merits brief.

                                       2                           A-2044-16T2
     From that testimony, as confirmed by H.L.'s merits brief, the

Division commenced this action after it received a referral from

the hospital at which H.L. visited her dying husband in October

2015, leaving the children in the care of her adult son, Jackson.

Hospital workers informed the SPRU investigator that they observed

blood on H.L.'s forehead – which she attributed to nail polish –

and that she appeared intoxicated.    After receiving information

that H.L. – who was no longer present at the hospital – had an

open case with the Division and that there were concerns about her

alcohol use, the investigator proceeded to H.L.'s residence to

check on her younger children.2

     The trial judge found from the investigator's testimony that

the condition of H.L.'s apartment when she arrived had changed

drastically from that reported just two months prior; it was

littered with food and clothes, infested with roaches and flies,

and wires were "all over" the children's bedrooms.   The children

were found "smelly [and] dirty."

     The judge, crediting the investigator's testimony, found

Chloe told the investigator that she saw H.L. and Jackson "drink

beer all the time" and that H.L. "gets crazy and she falls down."



2
  The judge admitted the evidence the SPRU investigator gathered
at the hospital only to show how it informed the investigator's
further actions.

                                  3                        A-2044-16T2
The investigator also observed H.L. when she returned to the

apartment "walking [in the middle of the street] from side to side

like . . . she was about to fall."     Recalling Chloe's statement

about her mother falling after drinking, the judge rejected H.L.'s

attribution of her wobbly gait to an ankle injury or "chronic

ankle trouble," also noting she did not report an ankle problem

until she was later interviewed by the intake supervisor.   He also

observed that H.L. completed "an hour walk to a hospital" that

morning.   When the investigator approached H.L., she observed a

cut on her forehead and that H.L. smelled like alcohol.         H.L.

related that she had fallen at the hospital and had consumed two

beers that morning; she denied that she was drunk or had a drinking

problem. H.L. later told the intake supervisor she did not realize

that her face was bleeding and that she had just one beer that

morning to settle her stomach before going to the hospital.

     The judge also found unavailing that Jackson was an acceptable

caretaker for the children while H.L. was at the hospital.       The

judge opined Jackson, who lived in the apartment,

           better have a better clue about what's
           acceptable. There has to be boxes of soap.
           There has to be sinks you can wash things in.
           There have to be garbage cans where old food
           can be thrown out, so you have less
           opportunity for flies and roaches . . . .

                It's not healthy and it's creating a more
           significant, substantial risk of harm to the

                                 4                          A-2044-16T2
            children to have the presence of roaches and
            flies and food out.

     From this evidence the judge properly inferred defendant had

a drinking problem for which she did not seek help from the

Division's   "treasure     chest"    of    available     resources.3      H.L.'s

drinking,    he   found,   resulted       in   bizarre    behavior     including

medically treating an upset stomach with beer and failing to

recognize her head injury.          Moreover, he found her drinking and

failure to address that problem resulted in the unacceptable "way

[the children] smelled, the way they were clothed, the mess and

disarray of the house," conditions that would reoccur until H.L.

addressed her drinking problem.           The judge concluded the Division

proved the children were abused and neglected as provided under

N.J.S.A. 9:6-8.21(c)(4)(b), which defines such a child as one

under the age of eighteen years:

            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 . . . 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

3
  The trial judge considered that H.L. was referred in August 2015
for a substance abuse evaluation that resulted – based on negative
urine screens and H.L.'s self-reported history – in a
recommendation that no treatment was necessary, only as evidence
that H.L. knew services were available from the Division to address
an alcohol problem.


                                      5                                  A-2044-16T2
          . . . or by any other acts of a similarly
          serious nature requiring the aid of the court.

     We measure a "minimum degree of care" by the Supreme Court's

definition: "grossly or wantonly negligent, but not necessarily

intentional" conduct, G.S. v. Dep't of Human Servs., 157 N.J. 161,

178 (1999), such that a parent, "aware of the dangers inherent in

a situation . . . fails adequately to supervise the child or

recklessly creates a risk of serious injury to that child," id.

at 181.

     As we recognized in N.J. Div. of Child Prot. & Permanency v.

J.A., 436 N.J. Super. 61, 69 (App. Div. 2014):

          Our Supreme Court later illuminated G.S.'s
          interpretation,   explaining    that   "every
          failure to perform a cautionary act is not
          abuse or neglect"; "[w]hen the failure to
          perform a cautionary act is merely negligent,
          it does not trigger" the statute. N.J. Div.
          of Youth & Family Servs. v. T.B., 207 N.J.
          294, 306-07 (2011). The focus on the parent's
          level of culpability in assessing whether a
          minimum degree of care has been exercised

               is   in   synchronicity   with   the
               Legislature's expressed purpose to
               safeguard children. Indeed, where a
               parent or guardian acts in a grossly
               negligent or reckless manner, that
               deviation from the standard of care
               may support an inference that the
               child is subject to future danger.
               To the contrary, where a parent is
               merely negligent there is no warrant
               to infer that the child will be at
               future risk.



                                6                          A-2044-16T2
                 [Id.   at   307         (alteration   in
                 original).]

      When we apply this legal standard to our standard of review,

deferring to the trial judge's fact findings that are rooted in

the   judge's   familiarity   with   the    case,   opportunity   to   make

credibility findings based on live testimony, and family judges'

expertise in handling these cases, Cesare v. Cesare, 154 N.J. 394,

411-413 (1998), we affirm the trial court's finding of abuse and

neglect which is supported by the substantial, credible evidence

in the record, N.J. Div. of Youth and Family Servs. v. E.P., 196

N.J. 88, 104 (2008).    Reviewing, as we must in abuse and neglect

cases, the totality of the circumstances, N.J. Div. of Youth and

Family Servs. v. P.W.R., 205 N.J. 17, 39 (2011), we do not conclude

the trial court's fact-findings or inferences were erroneously

drawn, N.J. Div. of Child Prot. & Permanency v. S.I., 437 N.J.

Super. 142, 152 (App. Div. 2014).

      H.L.'s drinking sufficiently impaired her judgment so that –

as evidenced by the children's condition and that of their home –

there was a substantial risk of harm.         See N.J. Dep't of Children

& Families v. A.L., 213 N.J. 1, 23 (2013) (holding "a finding of

abuse and neglect can be based on proof of imminent danger and

substantial risk of harm").    Even absent proof of actual harm, her

failure to recognize and then address her problem, especially when


                                     7                             A-2044-16T2
services were available from the Division, created a risk of

serious injury to the children.          "Courts 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).

     The findings by the trial judge did not fully detail the

sordid conditions found by the SPRU investigator.             The record

reflects a "really foul odor" emanated from the apartment; food

was present in dishes in the sink, stove-top pots and on the table;

the apartment walls were "filthy" and "[v]ery dirty [with] black

stains"; the refrigerator was dirty and stained; the children's

sleeping quarters were hazardous.        The judge found the household

– and the children's – conditions would continue; there is no

evidence they would be remediated in light of the judge's findings

that the mother chose alcohol over the care of her children.            His

findings were sufficient to elevate this case to one of gross

negligence.    As the judge found, H.L. was aware of the dangers her

continued drinking presented but failed to adequately supervise

her children and recklessly created a risk of serious injury to

them.

     Affirmed.




                                     8                             A-2044-16T2
