                                      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                                 NOT FOR PUBLICATION WITHOUT THE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 i s limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0843-18T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

         Plaintiff-Respondent,

v.

S.T.,

         Defendant-Appellant,

and

T.K., Sr.,

     Defendant.
___________________________

IN THE MATTER OF
T.K, Jr. and I.K.,

     Minors.
___________________________

                   Submitted February 26, 2020 – Decided April 7, 2020

                   Before Judges Koblitz and Gooden Brown.
              On appeal from the Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FN-09-0202-18.

              Joseph E. Krakora, Public Defender, attorney for
              appellant (Robyn A. Veasey, Deputy Public Defender,
              of counsel; Marc R. Ruby, Designated Counsel, on the
              brief).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent (Sookie Bae-Park, Assistant Attorney
              General, of counsel; Dana L. Paolillo, Deputy Attorney
              General, on the brief).

              Joseph E. Krakora, Public Defender, Law Guardian,
              attorney for minors (Melissa R. Vance, Assistant
              Deputy Public Defender, on the brief).

PER CURIAM

        S.T.1 appeals from a February 23, 2017 order entered in Essex County

determining that she abused or neglected her then three-year-old son and one-

year-old daughter in large part by spending extended unsupervised time with the

children in October 2016, contrary to a provision of a March 26, 2015 order

terminating litigation.2 Because the March 2015 order, entered by a Hudson


1
    We use initials pursuant to Rule 1:38-3(d)(12).
2
  After the February 2017 fact finding hearing, S.T.'s motion to transfer venue
from Essex to Hudson County was granted due to a conflict posed by S.T.'s
relative who worked for the Division in Essex County. The court order noted
that S.T. "has had an earlier . . . case transferred to Hudson County based on
these same facts."
                                                                       A-0843-18T4
                                         2
County judge, was entered by the court off the record with only the Deputy

Attorney General present, we reverse.

      New Jersey Division of Youth and Family Services (Division)

investigative worker Natasha Daniels testified that the two young children were

living with their father. S.T. had lost her parental rights to two older children

due to her mental health problems. A March 2015 court order, entered before

the younger child was born, afforded her only supervised visitation with the

older child. Caseworker Jennifer Donahue testified that in October 2016, after

looking for the family for about a month, she and another caseworker went to a

daycare center where the son was present. They were informed that the little

girl was no longer attending. When S.T. arrived at the daycare with the little

girl, the caseworkers asked S.T. questions regarding her housing and her history

with the Division. S.T. was evasive and uncooperative, became irate and began

cursing at the daycare staff. She buckled the children into their car seats in her

car and sped away rather than surrender the children to the Division workers.

No other adult was with S.T. A day or two later, both children were located at




                                                                         A-0843-18T4
                                        3
the daycare facility and removed by the Division.3 The daycare reported no

issues concerning the children's care.

      The Division sought a finding of abuse or neglect because, as the Deputy

Attorney General said:

            Your Honor, it's simple. [S.T.] wasn't supposed to have
            unsupervised parenting time with her children. She was
            defying the court order. She was putting her children
            at risk. And for those reasons I'd ask the [c]ourt to
            make a finding of abuse and neglect under Title [Nine].

The factfinding judge stated that S.T. had a "long history with the Division" and

a history of untreated mental illness.       She noted that the parents were

uncooperative with the Division, adding: "And what is of particular concern to

this [c]ourt is the violation of the court order of March [26]." The judge said:

            You know, evidence of the mother's refusal to conform
            to this court ordered condition is not in [and] of itself
            abuse and neglect. But it is an indication to this [c]ourt
            that mom is not capable or has no desire to follow the
            rules. That order made it very clear. And to this [c]ourt
            it's only further evidence of her unwillingness to
            cooperate and act in a manner that was in the best
            interest of her children.


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." N.J. Div. of Child Prot. & Permanency v. K.G.,
445 N.J. Super. 324, 329 n.3 (App. Div. 2016). The children were subsequently
returned to the custody of both parents and the litigation dismissed in September
2018.
                                                                         A-0843-18T4
                                         4
            And I can't state it clear enough that order was very
            clear. Mom had counsel in that matter. I'm assuming
            she participated in that matter, and she still violated the
            order.

      On appeal, S.T. argues that her violation of the March order by picking

her children up from daycare did not constitute abuse or neglect, the trial judge

should have granted an adjournment to allow S.T.'s sister to testify, and the

judge erred in relying on S.T.'s history of mental illness when no competent

evidence of her illness was admitted into evidence. We reverse based on the

first issue raised and need not discuss the others.

      We must "accord 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." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012).

We may not "second-guess or substitute our judgment for that of the family

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

support" the family court's decision. Id. at 448-49.

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

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

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

the following definition:

                                                                          A-0843-18T4
                                         5
             "Abused or neglected child" means 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 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 . . . .

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

      Our Supreme Court has discussed "what standard of care is codified by

the phrase 'failure to exercise a minimum degree of care.'" G.S. v. Dep't of

Human Servs., 157 N.J. 161, 178 (1999). The Court concluded that "'minimum

degree of care' refers to conduct that is grossly or wantonly negligent, but not

necessarily intentional." Ibid. "Essentially, the concept of willful and wanton

misconduct implies that a person has acted with reckless disregard for the safety

of others." Id. at 179. "[A] guardian fails to exercise 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.

      "[A] parent or guardian's past conduct can be relevant and admissible in

determining risk of harm to the child." N.J. Div. of Youth & Family Servs. v.




                                                                          A-0843-18T4
                                        6
I.H.C., 415 N.J. Super. 551, 573 (App. Div. 2010). A new finding of abuse or

neglect may not, however, rely solely on a parent's history.

      We recently emphasized that all proceedings in children in court cases that

result in an order must be held on the record. N.J. Div. of Child Prot. &

Permanency v. P.O. & M.C.D., 456 N.J. Super. 399, 409 (App. Div. 2018).

Although the Essex County factfinding judge assumed that the March 2015 order

restricting S.T.'s contact with her child was entered after S.T.'s participation

with the assistance of counsel, the Hudson County March order, which was

introduced into evidence at the factfinding hearing, on its face belies those

assumptions. The order states in capital letters: "MATTER NOT HEARD ON

THE RECORD." It reflects that no parent, defense lawyer or law guardian was

present, and that the order was entered with the Deputy Attorney General present

based on the Division's letter of the previous day. The order awards sole legal

and physical custody of the child to his father, affording the mother "supervised

visits" with no provision for eventual unsupervised contact should conditions

change.

      The record not only fails to demonstrate that she was given an opportunity

to be heard prior to the March 26, 2015 order, it also fails to substantiate that

S.T. was given notice of the supervision requirement.


                                                                        A-0843-18T4
                                       7
       Under these circumstances, the record does not contain substantial and

credible evidence that S.T. abused or neglected either of her two young children.

We reverse, without opining on whether the violation of a court order in other

circumstances might constitute evidence of abuse or neglect. The Division

should ensure that if S.T.'s name is on the Child Abuse Registry4 due to this

factfinding, her name is removed. See N.J. Dep't of Children & Families v.

L.O., 460 N.J. Super. 1, 11-14 (App. Div. 2019) (describing the consequences

of a finding of abuse or neglect while holding that a parent is entitled to counsel

at an administrative factfinding).

       Reversed. We do not retain jurisdiction.




4
    See N.J.S.A. 9:6-8.11.
                                                                          A-0843-18T4
                                        8
