                       RECORD IMPOUNDED

                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5370-13T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

      Plaintiff-Respondent,
                                          APPROVED FOR PUBLICATION
v.
                                                 May 2, 2016
K.G.,
                                            APPELLATE DIVISION

      Defendant-Appellant,

and

V.M., Sr.,

     Defendant.
_____________________________

IN THE MATTER OF V.M., Jr.,

     a Minor.
______________________________

          Argued March 15, 2016 - Decided May 2, 2016

          Before Judges Reisner, Hoffman and Whipple.

          On appeal from the Superior Court of New
          Jersey, Chancery Division, Family Part,
          Union County, Docket No. FN-20-170-13.

          Barbara E.    Ungar    argued    the    cause   for
          appellant.

          Mary C. Zec, Deputy Attorney General, argued
          the cause for respondent (Robert Lougy,
          Acting Attorney General, attorney; Andrea M.
          Silkowitz, Assistant Attorney General, of
          counsel; Ms. Zec, on the brief).
               Damen J. Thiel, Designated Counsel, argued
               the cause for minor (Joseph E. Krakora,
               Public Defender, Law Guardian, attorney; Mr.
               Thiel, on the brief).

       The opinion of the court was delivered by

REISNER, P.J.A.D.

       Defendant      K.G.   appeals   from    a   February    21,    2014    fact-

finding order, determining that she abused or neglected her ten-

month-old baby, V.M., Jr. (Valentine or the baby), by leaving

him    under    the   sole   supervision      of   her   nineteen-year-old         son

Carl,1 who is substantially cognitively impaired.                    Applying the

totality of the circumstances test, we agree with the trial

judge    that    defendant's    conduct     was    grossly    negligent      and   we

affirm.

                                        I

       The following evidence was presented at the fact-finding

hearing.       Defendant lives in a single-family house with Carl and

Valentine.       On May 18, 2013, the Division of Child Protection

and Permanency (Division or agency) received a referral from

Carl's father, V.M., Sr., reporting that defendant was leaving

Valentine alone with Carl, who was not capable of caring for

him.      On May 19, 2013, Division caseworker Priscilla Garcia

visited defendant's home and spoke to her about the referral.

1
    We use initials and pseudonyms to protect the family's privacy.



                                        2                                 A-5370-13T3
Defendant said there was "nothing wrong" with Carl being the

baby's caretaker and told Garcia that she would leave the baby

in Carl's care if she went to the supermarket or ran other

errands.    She told Garcia that Carl was not receiving services

from the Division of Developmental Disabilities (DDD), and that

he was enrolled in school and working at a local hospital.2

However, when Garcia attempted to speak to Carl, he went to his

room, and defendant told Garcia that Carl did not want to talk

to her.    Garcia left without completing her investigation.                         She

later made several attempts to arrange a time when she could

speak to Carl, but defendant told Garcia that "she wasn't able

to accommodate [Garcia's] schedule."

    On     June   12,     2013,   V.M.,        Sr.,    phoned   the    local     police

headquarters to express concern for the baby's safety.                         Officer

Pearson,    a     uniformed       patrol       officer,     was       dispatched       to

defendant's residence at about 8:50 p.m. to do a welfare check.

Pearson    knocked   on    the    front    door,       announcing      himself    as    a

police officer, but got no answer.                    Eventually a man came to a

second floor window and peeked his head out.                    Pearson attempted

to speak to the man, but still no one came to the door.                                He

2
  Defendant omitted some significant information in her statement
to Garcia, including the fact that Carl attended a special
school for persons with developmental disabilities and that, as
of March 2012, she had Carl evaluated by DDD for continuing
services.



                                           3                                   A-5370-13T3
started       knocking    again     and   noticed      that       the    door     knob    was

unlocked.           Pearson      opened    the       door    and        stepped    inside,

announcing his presence.                The same man who had been at the

window was in a doorway.                  When the man saw Pearson, he ran

upstairs and slammed a door shut.                 Pearson walked around inside

the    house,       announcing    that     he    needed      to    talk     to    someone.

Eventually the man came out and identified himself as Carl.

       According to Pearson, Carl was very protective of his baby

brother.       He told Pearson that Valentine was upstairs sleeping,

and that Pearson had to be quiet and had to leave.                                 After a

while,    Carl      let   Pearson    go    upstairs     to    check       on     the   baby.

Valentine was asleep in a crib; he appeared clean; the physical

environment appeared safe.

       Pearson testified that he went back downstairs to talk to

Carl.     His initial impression was that Carl seemed childish for

his age — very shy and "a little off with his behavior and

speech."        Pearson tried to put Carl at ease by talking about

sports and Carl's favorite teams.                Pearson then asked Carl "what

he    would    do    if   the   house     was   on    fire    or    if    he     needed    an

ambulance," and Carl replied, "I don't know."                              When Pearson

asked Carl "if he could call his mother," Carl was "unable to

answer" that question either.               Pearson did not feel it would be

appropriate to leave the baby with Carl so he called for backup.




                                            4                                      A-5370-13T3
After other officers arrived on the scene, Pearson's sergeant

asked headquarters to contact defendant.

     Pearson estimated that he was at the house for about an

hour before defendant arrived home.                She was very agitated and

cursed   at   the   officers.         According     to   Pearson,    Carl     asked

defendant what was going on and she replied, "they think you're

too fucking retarded to watch your brother."                 Carl ran into his

room.    Pearson's sergeant then contacted the Division so that

the agency could assess the situation.

     Patricia        Arroyo,      a      Division        emergency      response

investigator,       testified     that       she   arrived    at     defendant's

residence at approximately 10:30 p.m.              When defendant refused to

allow Arroyo to interview Carl, Arroyo threatened to conduct a

Dodd removal3 of Valentine.            At that point, defendant allowed

Arroyo   to   speak    to   Carl.        After     interviewing     him,    Arroyo

prepared a report memorializing her observations that Carl had

"a major mental disability[,]" he did not know defendant's phone

number, and he did not have access to a telephone to call 911 in

case of an emergency.          Before leaving the home, Arroyo prepared

a safety protection plan, signed by defendant, that required

defendant to make alternate plans for babysitting and to provide

3
  Pursuant to N.J.S.A. 9:6-8.29, legislation sponsored by Senator
Dodd, the Division is authorized to take custody of a child on
an emergency basis in order to protect the child's safety.



                                         5                                 A-5370-13T3
the Division with the name of any new caregiver.

       Garcia testified that after the court granted the Division

care and supervision of Valentine, she was able to speak with

Carl   at    his    school.       He     attended   a   specialized         school    that

teaches life skills to children who are developmentally delayed.

Carl, who was nineteen years old at the time of his interview,

was cooperative but his demeanor was childlike.                             He appeared

very shy; he giggled and his conversation bounced from topic to

topic.      Carl told Garcia that he worked at a hospital cafeteria

on Thursdays and said he liked his job very much.                        He explained

that when he got home from school he changed his clothes, ate a

snack and played video games.               When Garcia asked Carl if he was

ever left in charge of caring for his little brother, he first

said that he did not know and later said, "hold up, hold up, oh

maybe sometimes."           He could not recite his mother's phone number

or his home phone number, and had trouble answering the question

whether his mother was there when he got home from school.                           Carl

did tell Garcia that he loved his mother very much.

       Garcia      testified      that    she   later   met    with    defendant       and

attempted to explain why Carl was not an appropriate independent

caregiver       for      Valentine.        Defendant     told       Garcia    that    she

disagreed.       At that meeting in July 2013, defendant told Garcia

that   there       was    still    no    land   line    in    the    home    and     while




                                            6                                   A-5370-13T3
defendant had a cell phone, Carl did not.

      Ronald Wasserman, a Senior Community Program Specialist for

DDD, testified concerning an assessment he performed on Carl in

April 2012.         Defendant had called DDD to register Carl so that

he could obtain services once he turned twenty-one, and she

participated in the assessment.                  Wasserman explained that the

purpose        of   the   assessment       was     to     verify    that   Carl      was

developmentally disabled and eligible for services from DDD, as

opposed to another agency such as the Division of Mental Health.

      Wasserman        found    that    Carl      has     "substantial     functional

limitations" in his capacity for independent living, learning,

self-direction, and receptive and expressive language.                        His full

scale     IQ    was    measured    at    51.        His    overall     capacity      for

independence was like that of a seven-year-old child.                         Wasserman

was     "[a]bsolutely"         satisfied    that        Carl   qualified      for    DDD

services and that he would receive those services for the rest

of his life.          In Wasserman's opinion, Carl will never be able to

live on his own.

      Ms.      Tillis,    an    assistant        principal     at    Carl's    school,

testified that Carl has attended the school for four-and-a-half

years.      His studies include English, Math, Music, Art, Physical

Education, Health and Computers.                  The school does not offer a

first aid course, but he has studied very basic safety skills in




                                           7                                   A-5370-13T3
health    class.        Carl    also       participates        in    a       community       work

program where he is assigned to jobs at an environmental center

and at a local hospital.

       According to Tillis, Carl is a very sweet boy who tries

hard     and    wants     to     be    successful          in       school.             He    is

developmentally delayed, has a below average IQ, and functions

well below age level both academically and cognitively.                                  He is

performing well academically but his classes are taught at the

second to third grade level.                 He has made progress slowly, but

his    cognitive      ability    is    that      of    a   second        or     third    grade

student.

       Tillis explained that when Carl gets upset he has trouble

expressing himself.            He may be confused by questions and can

become emotional when he gets into difficulty.                           He receives very

strong supervision at school.                He is bused to and from school,

and he cannot leave the school grounds unaccompanied.                                    A job

coach stays with him at his work assignments, and does not leave

him alone for more than ten minutes at a time.

       Carl was subpoenaed by the Division to testify at the fact-

finding hearing.         He was able to identify the town where he

lived, and said he wanted to "find a real job" when he finishes

school.        When   asked     if    he    ever      talked    to       a    policeman,      he

responded, "No.          Never . . . . Please, next question."                                 He




                                             8                                      A-5370-13T3
became very upset when asked about the events of June 12, 2013,

saying he did not remember a police officer coming to his house,

but then saying, "I thought a robber."            Judge Kenny attempted to

soothe Carl, but the attorneys' arguing increased his agitation.

Carl exclaimed, "I don't want to hear this."               At that point,

Judge Kenny took over the questioning to put Carl at ease.

      Carl told the judge he likes working at the environmental

center where his job involves "[c]ut—cut, tracing.                No.     Cut

footprints and–yeah, footprints, a lot of things. . . .                  [D]o

more ventures outside, pick up leaf, acorn and pinecones."                  He

said he preferred his job at the hospital where "[y]ou deal with

trays . . . .         You do the stocking of drinks and stuff, the

utensils, napkin, fork, knife . . . [s]weeping floors."             He said

he was good at basketball and he played "probably defense or

offense."

      When the Deputy Attorney General said she would like to ask

Carl some questions about his baby brother, he responded, "Okay.

Do   that   crap."     Carl    testified   that   he   likes   playing   with

Valentine, and he feeds him baby food that he gets from the

pantry at his house.         Carl could not remember how old Valentine

is, but did recall that Valentine likes to eat "[t]hat little

vegetable    soup."     He    had   trouble   explaining   what   Valentine

drinks.     He said that to make a bottle for the baby, he would




                                      9                             A-5370-13T3
"[m]easure the formula" and "[h]eat it up in the microwave and

give it to him."      He thought that he heated it in the microwave

for "25 minutes."

      Carl testified that Valentine has never started coughing

while eating baby food, but if he did, Carl would "give him the

vegetable juice."      Carl changes Valentine's diapers without his

mother's    help:     "I   like     to   change   my   little      baby    brother's

diaper."      He likes to spend one-on-one time with his brother.

If Valentine cries, Carl gives him a bottle or plays with him.

      Carl stated that he "[p]robably" watches Valentine when his

mother is not home.          He never leaves the house with the baby.

He testified that he had an iPhone and a house phone and was

able to tell the judge his cell phone number.                   If something bad

happened while he was watching Valentine, Carl would call 911

and tell them that there is "[a] fire at my house."                    Carl stated

that if a police officer came to the house, he would not answer

the door.      When asked again if he would answer the door for a

police officer, Carl replied, "No.            Never.     Wow."

      Carl became agitated when the Law Guardian started cross-

examination, saying, "Oh, God.            Her?"   He responded to questions

with "Why you ask that question?", "Now you got the question.

Go   ahead.      Go   ahead.        Go   ahead.",      and    "Ask    your     stupid

questions."      He   also    had    a   "laughing     fit"   in     the   midst    of




                                         10                                  A-5370-13T3
questioning.

    Carl was more cooperative with defense counsel, testifying

that there is a baby monitor at his house and that he knows how

to use it.      He also described how he would make a call using

numbers stored on his cell phone.            He explained Valentine's

feeding schedule, how he bathes the baby, and how he checks the

baby's temperature with a thermometer.           He said that Valentine

loves him but is not attached to his mother.

    Zachary B., who testified on behalf of defendant, stated

that he has known Carl his entire life and has often seen him

interacting    with   Valentine.   Zachary      observed    Carl    preparing

Valentine's    bottle,   feeding   him,   and    changing     his    clothes.

Sometimes defendant would go out, leaving Carl and Valentine

home with Zachary and Zachary's father.          During those occasions,

Carl took care of Valentine for the whole day and never asked

for any help.

    Elizabeth     B.,    a   long-time    friend   of      defendant,    also

testified on defendant's behalf.          Elizabeth stated that Carl

loves Valentine very much and is good with him.               She has seen

Carl taking care of Valentine ever since the baby's birth and

has never observed him doing anything inappropriate.                He knows

how to give Valentine a bath and to set up the baby monitor in

Valentine's room.




                                   11                                A-5370-13T3
      Vincent Nardone testified that he was at defendant's house

on June 12, 2013, doing some maintenance work in the garage and

yard.    He recalled that defendant left the house around 7:00

p.m. and returned home with the baby at 7:30 p.m.                 Nardone left

for the day at 8:00 p.m.           At that point, there were no police

officers at the house.

      Dr.   Lidia      Dengelegi      Abrams,       a     psychologist      with

considerable relevant experience, evaluated Carl at defendant's

request in October 2013 to assess whether he could safely care

for Valentine.      She testified that for the first half hour of

the appointment, she spoke with Carl while he held Valentine on

his lap.    Later, Carl gave the baby to defendant so that he

could take a battery of tests that Abrams had prepared.

      Abrams observed that Carl was pleasant and cooperative.                  He

focused on Valentine, held him appropriately, and was very aware

of his needs.     In fact, even after Valentine was given back to

defendant, Carl was more attuned to what the baby was doing in

the   waiting   room   than   to    what   Abrams       was   saying.    Abrams

concluded that Carl has an extremely strong bond with Valentine.

Indeed, it appeared to Abrams that the baby was more attached to

Carl than to defendant.        At the end of the visit, Carl took

Valentine to defendant's car, locked him into his car seat, and

then waited for defendant to finish speaking to Abrams.                       She




                                      12                                A-5370-13T3
observed that Carl handled the baby very well and there was an

easy relationship between the two.

    With regard to the testing, Abrams found that Carl has a

cognitive    impairment      and    that     his   basic    skills    in   reading,

writing, and math are very poor.                She found that he is in the

mildly mentally disabled range with an IQ of 62.                     According to

Abrams, individuals with Carl's IQ can work and can do many

other things.      While some people with cognitive impairments have

other     issues   such      as    behavioral      outbursts    or    psychiatric

disorders,    Carl    does    not.      He    is   emotionally       and    mentally

stable.      Abrams    testified      that     a   person    with    a     cognitive

impairment may be capable of caring for a baby under the right

circumstances:

            A certain amount of cognitive ability is
            necessary to take care of another person.
            And the environment where that is done, if
            it's a more complex environment, then it's
            harder to take care of that person. If it's
            a simple environment where the individual
            has learned how to handle all the potential
            situations that might come up, then such a
            high IQ is not required.

    Abrams opined that even though Carl's academic skills are

at a second-grade level, he is at an adult level in terms of his

understanding of the importance of keeping his brother safe.

While Abrams agreed with DDD's determination that Carl has a low

IQ and is "substantially functionally limited[,]" she did not




                                        13                                  A-5370-13T3
think that his limitations impacted his ability to care for

Valentine "within the constraints of his home."                         She believed

that it was safe for Valentine to be left in Carl's care on June

12,     2013.         In    rendering    that    opinion,    Abrams      stated    her

understanding that Carl had "a long history of caring for [the]

baby" and "has never done anything inappropriate."                         She also

explained       her    understanding      that    Carl    did     not   "have     panic

attacks."

      Abrams further based her opinion on her belief that Carl

was able "to call his mother or 911 if there was something

wrong."     She was told by Carl that when caring for the baby, he

"always     has       his   phone   in   his     hand."      She    explained      her

understanding that during the June 12, 2013 incident, Carl saw

one or more strangers at the door, and rather than answering the

door, he locked himself in a closet with the baby monitor and

called his mother.             She opined that he did so "[b]ecause he

didn't know who the people were, and he didn't want to deal with

them"    and    "because       he   understands     his     own    limitations     and

doesn't want to expose himself and his brother to situations

which he may not be able to handle."

      Abrams opined that Carl could care for his baby brother by

himself "in his own home . . . with intermittent phone calls at

least from his mother."             She recommended that to safely care for




                                          14                                A-5370-13T3
the baby, Carl should always have a working phone and defendant

should always be available by phone to respond to a potential

problem.

    On     cross-examination,      Abrams         said    she    thought     it    was

established   that   Carl   had    a   cell       phone    on    the   day   of    the

incident, had hidden in the closet, and had called his mother.

However, her understanding of what happened that night was based

on information that defendant had provided.                     She admitted that

if Carl had been left alone with Valentine without a working

phone it would not be acceptable:             "[T]hat would be endangering

the welfare of [the baby] if . . . [Carl] was left in the home

without a phone."

    Abrams    admitted   that     Carl      had    difficulty     explaining       his

daily routine to her, he had trouble telling time, and he was

very dependent on having a set daily routine.                    If there were "a

difficulty thrown into that routine," she admitted that "[h]e

might have a problem."      She was "not sure" what Carl would do if

there were a fire in the house and a fire fighter came to the

door.    She testified that Carl "could be further educated on

that, and then he would know" to open the door for a police

officer or fire fighter.        Otherwise, in an emergency, they would

have to "break the door down" to get into the house.




                                       15                                    A-5370-13T3
       When asked what Carl would do if the baby started choking,

Abrams responded: "Not sure what he would do in that case. It's

a good question."             When further asked, "Do you think he would

panic?" she replied, "I don't know what he would do."                     Abrams

also admitted that Carl typically "retreats" when he is "unhappy

with a situation."             Nevertheless, she did not think he would

ever leave the baby alone, because his love for the baby would

be stronger than his need to retreat.

       Although she based her opinions, in part, on Carl's past

history of successfully caring for the baby, Abrams admitted on

cross-examination that she did not know on how many occasions

prior to June 12, 2013 Carl had been left alone to care for the

baby, or for how long he was left alone with him. Apparently she

never asked defendant or Carl that question.                    She stated, "I'm

just guessing here."

       Defendant     also     testified     at   the   hearing.    According   to

defendant, when Garcia visited her home to investigate the May

18, 2013 complaint, Garcia told her that V.M., Sr., had alleged

that she left Carl alone with the baby for days at a time and

left    no    baby     care    supplies     in   the   house.      According   to

defendant, she told Garcia that she only allowed Carl to watch

the baby if she ran out for "an occasional errand or nearby to a

grocery      store."        Contrary   to      Garcia's   testimony,   defendant




                                          16                            A-5370-13T3
testified that when Garcia visited her home on May 19, she was

able    to   interview     Carl.         Defendant    testified    that     Garcia

inspected    her   entire    house    and     left    without   expressing      any

concerns.    Defendant received a letter from the Division in July

2013   notifying     her   that    the    May   18,   2013   allegations      were

determined to be unfounded.4

       As to the events of June 12, 2013, defendant testified that

she picked Valentine up from daycare at about 7:00 p.m.                   She got

home with him at 7:30 p.m., started a load of laundry, changed

him into his pajamas, gave him a bottle and put him down for bed

around 7:50 p.m.         At that time, Carl and Nardone were loading

trash into Nardone's truck.          Defendant got into her car to go to

the grocery store to buy bread and milk.               She testified that she

left   her   house   at    about   the     same   time   that     Nardone    left.


4
  The July letter, which is in the record, stated that the May 18
neglect allegations were unsubstantiated but that the Division
would continue to provide services to defendant and her family.
However, the Division's contemporaneous reports corroborate
Garcia's version of her visit to the home, particularly her
inability to interview Carl. Although Garcia was not permitted
to testify about details, the allegation about Carl caring for
the baby was but a small part of the May investigation. Garcia
was also investigating other serious allegations that V.M., Sr.
had made about defendant, including that she used illegal drugs,
engaged in prostitution, and involved Carl in her prostitution
business. We have not considered the substance of any of those
allegations; however, in context, the Division's overall
determination that child abuse or neglect was not substantiated
did not signal approval of defendant leaving the baby alone with
Carl.



                                         17                               A-5370-13T3
Before she left she told Carl that Valentine was asleep for the

night, she would not be gone long, and he should "just call me"

if he needed her.

      Defendant asserted that she always had a working telephone

at her house including on the night of June 12, 2013.                        She

stated that she had three land-line phones, one in the kitchen,

one   in   her   bedroom   and   one   in   Carl's   room.     According      to

defendant, Officer Pearson used one of the kitchen telephones to

call his supervisor that night.             She also testified that Carl

had an iPhone with her telephone number and other important

phone numbers pre-programmed into it.

      According to defendant, she was only gone from the home for

a total of fifteen minutes; she contended that the Division

report memorializing her admission that she was at the store for

thirty-five      to    forty     minutes     was     the     result     of      a

"miscommunication."        Defendant testified that she left the house

at about 8:00 p.m., and called Elizabeth B. on her cell phone

while she drove to a local ShopRite supermarket.                      Defendant

testified that she walked into the ShopRite while on the phone

with Elizabeth.       A call then came in from Carl, who said that

there was an intruder in the house and he thought it was a

robber.    Defendant "clicked" to Elizabeth to tell her that she

had to go and then "clicked" back to Carl but he had already




                                       18                              A-5370-13T3
hung up.     Defendant testified that she abandoned her groceries

and "jumped" in her car, and was driving home when she got a

call from Pearson.         She arrived home at 8:15 or "8:20 at the

max."     When she arrived, she found that Carl had locked himself

in his bedroom closet, with the baby monitor and his cell phone.

      Defendant testified that she was very angry with Pearson,

and berated him for frightening Carl.            She denied ever telling

Pearson that she did not have a land-line phone in the house.

She     testified   that   she   had    a   "miscommunication"   with   the

Division caseworker, who thought Valentine had been left with

Carl for a longer period than he really was.              The caseworker

said that Carl was unfit to supervise the baby, and defendant

signed the safety plan that the caseworker prepared even though

she disagreed with it.

      Defendant testified that Carl has been caring for Valentine

ever since the baby was born.          Carl is very attuned to the baby,

and loves to play with him.        She has observed Carl changing the

baby's diapers, feeding him, and mixing formula.           He helps with

the baby's baths and knows how to take the baby's temperature.

He can warm food in the microwave and cook simple things if he

has directions.      Further, Carl has known the basic instructions

for emergencies ever since he was seven years old, and knew how

to call her in case of an emergency.




                                       19                         A-5370-13T3
       Defendant acknowledged that Carl has significant academic

limitations,        but   insisted      that      he    has     strong     daily       living

skills.      He does not wander from the house and does not put

himself in situations that he cannot handle.                               She testified

that, within the last year, the police were probably at her home

four or five times due to problems she was having with V.M.,

Sr., and when Carl was at home, he reacted appropriately by

taking the baby and going to his room.

       Defendant      testified       that    she      is   a   "corporate          franchise

representative" who formerly owned three fitness centers.                                  She

testified that she would not be able to find anyone to invest in

her fitness centers now that she has a substantiated finding of

child neglect on her record.

       On   February      21,   2014,    Judge       Camille      M.    Kenny       issued    a

comprehensive oral opinion, finding by a preponderance of the

evidence that defendant neglected the baby by leaving him alone

with   Carl.           Judge    Kenny    noted         that     everyone      agreed     that

Valentine      was     "happy,    healthy,          clean,       fed,    bathed,        [and]

clothed."           However,    she     found       that      defendant       was    grossly

negligent      in    leaving     Valentine        home      alone      with    Carl,     whom

defendant knew to be cognitively impaired and developmentally




                                             20                                      A-5370-13T3
disabled.5

      In     rendering     her    opinion,        the    judge     found    that    the

Division's witnesses were credible in their recollections of the

events that occurred on June 12, 2013, and in their observations

and assessments of Carl.            On the other hand, the judge found

that defendant's testimony was not credible.                     The judge also did

not   accept    the   testimony     of     defendant's       expert      witness,    Dr.

Abrams,     because      her    opinions        were    premised    on     defendant's

inaccurate version of events.

      The     judge   noted      that      her     impressions      of     Carl     were

consistent with the observations made by Pearson, Garcia and

Tillis      concerning    his    limited         cognitive    abilities      and     his

inability to handle stressful situations.                    His typical mode of

dealing with difficult situations was to run away and hide, as

he did when Pearson arrived at the house.                          The judge noted

Carl's testimony that he would "never" allow a police officer to

enter the house.

      The judge found that, while Carl could feed, diaper, and

play with the baby "[u]nder his mother's supervision," he was

5
  The judge made clear that she did not consider any inadmissible
hearsay in reaching her decision. During the trial, the judge
stated that she would disregard hearsay statements contained in
the Division's case records. She also precluded the Division
from admitting in evidence reports containing prejudicial
hearsay statements from defendant's former boyfriend, V.M., Sr.,
with whom defendant had a hostile relationship.



                                           21                                 A-5370-13T3
unable to safely care for the child alone.   The judge found that

Carl did not like confrontation of any sort, had difficulty

communicating when he was upset, and became upset very easily.

Most importantly, Judge Kenny found that Carl would not be able

to handle an emergency situation, should one arise while he was

caring for Valentine, and that defendant exposed the baby to a

serious, unjustified risk by leaving Carl alone with the baby

for an extended period of time.

      Judge Kenny credited Pearson's account of the amount of

time defendant was gone from the house on the evening of June

12.   She concluded that defendant did not come home until at

least forty minutes after Pearson arrived at the house, meaning

that Carl was alone with the child for more than an hour.      The

judge found defendant's testimony on the timing issue to be

completely incredible.   She did not believe that defendant was

able to drive from her house in Union County to a ShopRite store

several towns away and then return home within fifteen minutes. 6

Nor did she believe defendant's testimony that she only intended

to run out for a few minutes to buy a few items.

      The judge also did not believe defendant's testimony that

6
  During defendant's testimony, the judge asked her a series of
questions which elicited defendant's turn-by-turn explanation of
her route from her home to the ShopRite, including her admission
that she needed to pass through at least two other towns between
her home and the municipality in which the store was located.



                                  22                     A-5370-13T3
Pearson phoned her around 8:15 p.m., shortly after she entered

the ShopRite, to tell her to return home.                   Rather, she believed

the officer's credible testimony that he did not even arrive at

defendant's     home     until    8:50   p.m.,     that    a     police   dispatcher

called defendant after finding her phone number in a police

file, and that it took defendant forty minutes to arrive home.

The judge did not believe defendant's testimony that Carl phoned

her   that    evening,    crediting      instead    Pearson's       testimony    that

Carl did not know how to reach his mother or call for help.

      Judge     Kenny     found     that       there      were     no     extenuating

circumstances to excuse defendant's leaving the baby with Carl

for an extended period of time.               She noted that if the baby were

sick, it might be reasonable to leave Carl in the car with the

baby for a few minutes while defendant ran into a pharmacy to

buy medicine.     But there was no emergency on the evening of June

12.    The judge noted that if defendant needed groceries, she

could have picked them up on the way home with Valentine, whose

daycare center was near the ShopRite.

      The judge did not credit Abrams' expert opinion, finding

that it was based on a misapprehension of the facts.                        Contrary

to what Abrams believed to be the case, the judge found that

Carl did not hide in a closet and call his mother, he did not

know how to call 911 on the evening of June 12, 2013, defendant




                                         23                                  A-5370-13T3
was not readily available to him by phone and Carl was not able

to communicate with Officer Pearson in any helpful way.               The

judge found that Carl was simply unable to handle the situation

with   which   he   was   presented.    The   judge   noted   that   "any

reasonable 12-year-old . . . could have handled that situation

and, in addition, been able to call his mother.         [Carl] can't do

that."

       The judge concluded that a reasonable person would not have

left Valentine alone with Carl for a prolonged period of time on

June 12, 2013, and that defendant was grossly negligent in doing

so.

                                   II

       Under Title 9, an "abused or neglected child" includes a

child whose "physical . . . condition . . . is in imminent

danger of becoming impaired" as a result of his parent's failure

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

child with proper supervision[.]"        N.J.S.A. 9:6-8.21(c)(4)(b).

Even if a child is not actually harmed, "a finding of abuse and

neglect can be based on proof of imminent danger and substantial

risk of harm."      N.J. Dep't of Children & Families v. A.L., 213

N.J. 1, 23 (2013).        Under those circumstances, "the Division

must show imminent danger or a substantial risk of harm to a

child by a preponderance of the evidence."            Ibid.   "Moreover,




                                   24                           A-5370-13T3
'[c]ourts      need    not       wait   to   act    until   a    child       is   actually

irreparably      impaired         by    parental      inattention       or     neglect.'"

Dep't   of    Children       &    Families    v.    E.D.-O.,     223    N.J.      166,   178

(2015) (quoting In re Guardianship of DMH, 161 N.J. 365, 383

(1999)).

        A parent "'fails to exercise a minimum degree of care'"

when her conduct is grossly negligent or where she "'recklessly

creates a risk of serious injury'" to the child.                         Id. at 179-80

(citation omitted).              "Any 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."      Id. at 192.

    In reviewing Judge Kenny's decision in this Title 9 case,

we do not write on a clean slate.                         We may not disturb the

judge's      factual   findings         so   long    as   they    are    supported        by

sufficient      credible         evidence.         N.J.   Div.   of     Child     Prot.     &

Permanency v. C.W., 435 N.J. Super. 130, 139 (App. Div. 2014).

And we owe particular deference to the judge's evaluation of

witness credibility.              N.J. Div. of Youth and Family Servs. v.

F.M., 211 N.J. 420, 448 (2012).

              We    afford   particular    deference   "to
              factfindings of the family court 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."



                                             25                                    A-5370-13T3
            This "'feel of the case' . . . can never be
            realized by a review of the cold record."
            Consequently,   a  family   court's factual
            findings "should not be disturbed unless
            'they are so wholly insupportable as to
            result in a denial of justice[.]'"

            [C.W., supra, 435 N.J.     Super.   at   139-40
            (citations omitted).]

    A trial judge's legal conclusions are subject to plenary

review.     Id. at 140 (citing Manalapan Realty, L.P. v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995)).         We review a trial

judge's evidentiary rulings for abuse of discretion.          State v.

J.A.C., 210 N.J. 281, 295 (2012).      We also apply the abuse-of-

discretion standard to a judge's decision to grant or deny a

mistrial.    State v. Smith, 224 N.J. 36, 47 (2016).

    On this appeal, defendant presents the following points of

argument for our consideration:

            POINT I.

            THE   TRIAL   COURT'S    FINDING  OF GROSS
            NEGLIGENCE AS TO K.G. WAS IN ERROR AND
            SHOULD BE GROUNDS FOR REVERSAL OF THE
            FINDING OF ABUSE AND NEGLECT AS TO K.G.
            UNDER N.J.S.A. 9:6-8.21(c)(4)(b).

                 A.    THE TRIAL COURT'S ANALYSIS OF THE
                       FACTS AS IS APPLIED TO THE LAW WAS
                       IN ERROR.

                 B.    THE TRIAL COURT'S RELIANCE UPON
                       THE COURT'S DECISION IN D.C.P.P.
                       V. E.D.O. WAS IN ERROR AND SHOULD
                       BE GROUNDS FOR REVERSAL OF THE
                       TRIAL COURT'S FINDING AS TO K.G.




                                  26                          A-5370-13T3
    C.      THE    TRIAL    COURT     ERRED    IN
            CONSIDERING THE DDD DETERMINATION
            OF       SUBSTANTIAL        COGNITIVE
            IMPAIRMENT      AND      THE     ECLC
            CLASSIFICATION OF [CARL] AS A
            BASIS   OF   A   FINDING   OF   GROSS
            NEGLIGENCE AS TO K.G.

    D.      THE    TRIAL   COURT    ERRED   IN
            DISCOUNTING THE OPINION OF DEFENSE
            EXPERT, DR. LIDIA ABRAMS, PHD.,
            AND IN FINDING GROSS NEGLIGENCE AS
            TO K.G. AND, SHOULD BE GROUNDS FOR
            REVERSAL AS TO K.G.

POINT II.

THE TRIAL COURT'S DETERMINATION THAT THE
DIVISION MET ITS BURDEN OF PROOF BASED ON A
GROSS NEGLIGENCE STANDARD, WHERE NO ACTUAL
HARM, IMMINENT DANGER OR SUBSTANTIAL RISK OF
HARM WAS ESTABLISHED, SHOULD BE THE BASIS OF
REVERSAL AS TO K.G.

POINT III.

THE TRIAL COURT'S DENIAL OF THE MOTION FOR A
MISTRIAL WAS IN ERROR AND THE TRIAL COURT'S
DENIAL OF THE DEFENSE'S APPLICATION TO
REOPEN CROSS EXAMINATION OF DCPP WORKER
GARCIA WAS IN ERROR.

POINT IV.

THE TRIAL COURT ERRED IN NOT PERMIT[T]ING
THE DEFENSE TO INTRODUCE CERTAIN TESTIMONY
OF WITNESSES AS TO ALL THE DAY CARE RECORDS
AND MEDICAL RECORDS OF THE MINOR CHILD AND
OF [CARL].

POINT V.

K.G.'S NAME SHOULD BE ORDERED REMOVED FROM
THE CENTRAL REGISTRY BECAUSE THE CONCLUSION
OF NEGLECT IS NOT SUPPORTED BY THE EVIDENCE
AND THE STIGMA WILL DISADVANTAGE HER.



                        27                          A-5370-13T3
     We find no merit in any of those contentions.                     Defendant's

appellate arguments rely heavily on her version of the facts,

which the judge rejected.            Having reviewed the record, we find

no   basis     to    disturb     Judge     Kenny's     evaluation      of   witness

credibility.        Her findings of fact are supported by sufficient

credible evidence and her decision is legally correct in light

of those factual findings.           See C.W., supra, 435 N.J. Super. at

139-40.

     Turning to the central issue in the case, we find no reason

to   second-guess       the    judge's     conclusion       that    defendant      was

grossly negligent in leaving the baby alone with Carl, who was

cognitively impaired and unable to safely care for the child.

Carl's    incapacity     was     demonstrated      through    the     testimony     of

multiple     witnesses,       including    the    assistant    principal     of    his

school,    a   DDD    evaluator,     his    own    trial    testimony,      and   his

conduct on the evening of June 12, 2013.                   It is clear from this

record     that     leaving    Valentine       alone   with    Carl    could      have

resulted in serious harm to the baby.                  The fact that Carl was

able to care for the child under his mother's supervision did

not mean that it was safe to leave Carl in sole charge of the

baby for extended periods of time.                Whether defendant's conduct

resulted from extremely poor judgment or willful blindness to

the danger is immaterial; her actions constituted child neglect



                                          28                                A-5370-13T3
within    the   meaning   of     N.J.S.A.    9:6-8.21(c)(4)(b).         E.D.-O.,

supra, 223 N.J. at 178-79.7

     Moreover, this was neither an isolated lapse in parental

judgment    nor   a   one-time    response    to    an   emergency    situation.

Rather, based on defendant's own testimony and her statements to

the Division, she made a practice of leaving Carl in sole charge

of the child, while she shopped and ran other errands.                          That

conduct    constituted    gross    negligence      because,   as     this    record

illustrates, Carl lacked the capacity to safely care for the

baby without supervision.

     None of the cases on which defendant relies are on point,

because they involved understandable one-time mistakes, simple

as opposed to gross negligence, or insufficient proof of risk to

the child.      See Dep't of Children & Families v. T.B., 207 N.J.

294 (2011); N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J.

Super. 159 (App. Div. 2009); A.L., supra, 213 N.J. at 8-9.

     For example, in T.B., the court overturned a finding of

child neglect against a mother who, on one occasion, "left her

four-year-old     child    unsupervised       for    two    hours     under       the

mistaken belief that his grandmother was home."                     T.B., supra,

7
  The record strongly suggests that defendant was aware of Carl's
significant limitations, which she sought to conceal from the
Division during its May investigation.    See N.J. Div. of Child
Prot. & Permanency v. K.N.S., 441 N.J. Super. 392, 399 (App.
Div. 2015).



                                       29                                   A-5370-13T3
207 N.J. at 296.        The Court acknowledged that "[t]here exists a

continuum between actions that are grossly negligent and those

that    are    merely   negligent"      and   a    "parent's     conduct    must        be

evaluated in context based on the risks posed by the situation."

Id. at 309.

       The Court considered that, while it was "a close case," the

mother's      conduct   was    not    grossly     negligent.     "This     is     not    a

situation in which she left her four-year-old son at home alone

knowing there was no adult supervision."                 Ibid.       Instead, based

on longstanding arrangements with the grandmother, the mother

believed that the grandmother was home in bed, because her car

was    parked    outside,     and    therefore     believed    she    could      safely

leave the child tucked in bed while she went out to dinner.

However, unknown to the mother, the grandmother had unexpectedly

left the house.         "What occurred on the date in question was

totally out of the ordinary."             Id. at 310.         The Court concluded

that the defendant was negligent in not making absolutely sure

that    the     grandmother     was    home,      but   she    was    not       grossly

negligent. Ibid.

       Similarly, in J.L., a mother was negligent but not grossly

negligent in allowing her young children to walk home from a

playground near the family's home.                J.L., supra, 410 N.J. Super.

at 161.       She was able to see the children at all times on their




                                         30                                     A-5370-13T3
trip     home,    but    when       they   entered          the    house,     the      door

unexpectedly slammed shut without her knowledge. The children

were     frightened      and    the    older      child      called       911.        After

considering the entire context of the incident, we concluded:

              [W]e are satisfied, in this case, that
              J.L.'s     conduct,     although     arguably
              inattentive or even negligent, did not meet
              the requisite standard of willful or wanton
              misconduct. In this regard, we note that the
              children were almost four and almost six
              years   of  age,   respectively.  They   were
              returning to a home that was within view of
              their mother, and they were not required to
              cross any streets to reach it. The home,
              itself, was deemed safe by [the Division],
              and with the exception of this incident,
              J.L.'s conduct toward her children was
              deemed appropriate.

              [J.L., supra, 410 N.J. Super. at 168.]

       We also considered that the mother had trained her children

to leave the door ajar if they walked home from the playground

ahead of her, that the door had unexpectedly swung shut and

locked on this occasion, and that the older child knew how to

call 911 and had done so.             "These circumstances suggest that the

child    exercised      good    judgment        and   was    well       trained   by    his

parents to deal with the crisis that he perceived to exist."

Id. at 169.

       Most    recently,       in   E.D.-O.,     the   Court       addressed      a    case

where,    on     one    occasion,     a    mother      left       her    sleeping      baby

unattended in a car for about ten minutes while she shopped in a



                                           31                                     A-5370-13T3
nearby   store.    E.D.-O.,    supra,       223   N.J.    at   169.    The     Court

rejected the Division's application of "a categorical rule" that

any parent who leaves a child unattended in a car must be found

to have committed gross negligence under Title 9.                     Id. at 192-

93.      Rather,    the   Court      held     that       the   totality   of    the

circumstances must be considered:

           Those circumstances include but are not
           limited to the actual distance between the
           vehicle   and  the   store,   [the   mother's]
           ability to keep the vehicle in view, the
           length   of   time   she    left   the   child
           unattended, the number of vehicles and
           persons in the area, the ability to gain
           access to the interior of the car, and the
           temperature inside and outside the car.

           [Id. at 194.]

      Based on our reading of the foregoing cases, we derive some

principles   appropriate       to    this    case.        We   acknowledge     that

parents are called upon to make many judgment calls in raising

their children, and deciding on a child care provider is one of

them. Under the minimum degree of care standard, in evaluating a

parent's decision that someone is capable of caring for a child

in his or her absence, the age and abilities of the child are

important factors, as are the age and abilities of the potential

caretaker,   considered       with   all     other   relevant     circumstances.

Whether there is an unacceptable risk of harm and whether the

parent has been grossly negligent are fact sensitive issues that




                                        32                                A-5370-13T3
must be resolved on a case by case basis, in light of the

legally competent evidence.

    In this case, defendant left a helpless infant in the care

of Carl who, while he was a caring and loving brother, had the

functional capacity of a seven-year-old and lacked sufficient

mental capacity to safely care for the baby.   There is a quantum

difference between allowing a young child, or a person with a

very limited mental capacity, to act as a mother's helper under

supervision, and leaving that individual alone to care for a

baby.

    Unlike T.B., J.L., or E.D.-O., this was not an accidental

or unusual circumstance. Defendant made a practice of leaving

the baby alone with Carl.     In this case, she left Carl in sole

charge of the baby for an extended period of time.       Further,

unlike A.L., where the Division failed to prove the risk of harm

to the child, here there was ample evidence to support Judge

Kenny's finding that the baby was placed "in peril." See A.L.,

supra,   213 N.J. at 8-9.

    Defendant contends that a finding of gross negligence is

unwarranted, and her name should not be placed on the Central

Registry pursuant to N.J.S.A. 9:6-8.11, because no actual harm

befell the baby, and at the time of the fact-finding hearing he




                                 33                       A-5370-13T3
was well cared for and in no danger.              We cannot agree.         As the

Supreme Court recently held:

            We   reject   the    interpretation    of   the
            definition of abuse and neglect, N.J.S.A.
            9:6-8.21(c)(4)(b), advanced by the mother
            that the statute requires a finding that the
            parent's conduct presents an imminent risk
            of harm to the child at the time of fact-
            finding rather than at the time of the event
            that triggered the Division's intervention.
            Such an interpretation is not supported by
            the text of the statute, the legislative
            history,     the      Court's     long-standing
            interpretation    and    application   of   the
            statute, or common sense.

            [E.D.-O., supra, 223 N.J. at 170.]

     Defendant's       remaining      appellate    arguments       are     without

sufficient    merit    to   warrant    discussion    beyond    the       following

comments.     R. 2:11-3(e)(1)(E).           We find no abuse of discretion

in   the     judge's    evidentiary      rulings    and     case     management

decisions.     Defendant's mistrial motion was filed on the second

day of the trial, by a newly-retained attorney who essentially

wanted either a mistrial or a re-run of the first trial day.

The judge appropriately denied the motion, for the reasons she

stated on the record on February 6, 2014.              Likewise, the judge

thoroughly     addressed    defendant's       evidentiary     arguments,        and

based her decision on legally competent evidence.

     Finally, we cannot agree with defendant's argument that her

name should not be placed on the Central Registry because it may




                                       34                                 A-5370-13T3
harm her business interests:

         [W]hether a parent's or caretaker's conduct
         causes an imminent risk of harm is evaluated
         through the lens of the statutory standard
         as interpreted and applied by the Court,
         rather   than   through   the   lens of   the
         consequences   of   a   finding   of neglect,
         specifically, enrollment in the Central
         Registry.   Enrollment in the Registry is a
         consequence of a finding of abuse or
         neglect. N.J.S.A. 9:6-8.11.

         [E.D.-O., supra, 223 N.J. at 195.]

    Affirmed.




                               35                        A-5370-13T3
