                      RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0349-13T3



NEW JERSEY DIVISION OF
YOUTH AND FAMILY SERVICES,1
                                      APPROVED FOR PUBLICATION
          Plaintiff-Respondent,
                                         December 24, 2014
v.
                                         APPELLATE DIVISION
N.M.,

          Defendant-Appellant,

and

J.K.,

          Defendant.
______________________________________________

IN THE MATTER OF
J.K., Jr. and J.K., minors.
______________________________________________

          Submitted December 1, 2014 – Decided December 24, 2014

          Before Judges Sabatino, Guadagno, and Leone.

          On appeal from the Superior Court of New
          Jersey, Chancery Division, Family Part,
          Hudson County, Docket No. FN-09-103-13.




1
  Effective June 29, 2012, the Division of Youth and Family
Services was renamed the Division of Child Protection and
Permanency. L. 2012, c. 16.
           Joseph E. Krakora, Public Defender, attorney
           for appellant (Ruth Harrigan, Designated
           Counsel, on the brief).

           John J. Hoffman, Acting Attorney General,
           attorney for respondent (Andrea M.
           Silkowitz, Assistant Attorney General, of
           counsel; Sara M. Gregory, Deputy Attorney
           General, on the brief).

           Joseph E. Krakora, Public Defender, Law
           Guardian, attorney for minors J.K., Jr. and
           J.K. (Margo E.K. Hirsch, Designated Counsel,
           on the brief).

    The opinion of the court was delivered by

GUADAGNO, J.A.D.

    Defendant N.M. (Nina)2 appeals from the trial court's

finding that she abused or neglected her two children by

bringing them to a public park to meet her former boyfriend,

J.B. (Jeffrey), who followed her home and raped her in the

children's presence.   Because the Division of Child Protection

and Permanency (Division) failed to establish that the children

suffered harm as a result of defendant's actions, and because

her conduct was neither reckless nor grossly negligent, we

reverse.

                                I.

    In light of the arguments raised on appeal, we recite the

facts with particularity.   Nina is the mother of J.K., Jr.

2
  We employ pseudonyms to protect the privacy of the minors and
for ease of reference.



                                2                          A-0349-13T3
(James) and J.K. (Jonah).     At the time of the incident which

gave rise to this litigation, James was two years old and Jonah

was one.   J.K., Sr. (Joseph) is the father of both children.       He

was a named defendant in this litigation, but the Division did

not seek a finding of abuse or neglect against him, and he is

not a party to this appeal.

    The Division first became involved with this family in June

2010, when it received a referral from the Bayonne Police

Department that Nina reported that Joseph choked her, threw her

to the ground, and shook James, who was then one month old.

James was later diagnosed with a skull fracture, a subdural

hematoma on the left side of his brain, and retinal hemorrhaging

in both eyes.   Both parents were found to have abused or

neglected James.    Joseph admitted to choking Nina and injuring

James when he threw the child into a car seat.     Nina was found

to have placed James at risk by permitting Joseph to care for

him when she knew or should have known that the Joseph was prone

to violence.    Nina appealed and we affirmed.   N.J. Div. of Youth

& Family Servs. v. N.M., No. A-5808-11 (App. Div. May 10, 2013).

    In 2012, Nina was living in an apartment with her mother,

her brother F.K. (Fred), and the two children.     Joseph remained

incarcerated as a result of his conviction for injuring James.

Nina met Jeffrey in March 2012, and they began a casual dating




                                  3                         A-0349-13T3
relationship, seeing each other on approximately three occasions

until May 2012, when Nina attempted to end the relationship.

    On May 24, 2012, a Bayonne police officer responded to a

report of domestic violence at Nina's home.       When the officer

arrived, he spoke with Fred who explained that he and Nina had

an argument over a cell phone.    The officer entered the

apartment and found Nina sitting on the floor of her bedroom

with her face covered in blood.       Nina explained that after

arguing with Fred, she retreated to her bedroom to avoid further

conflict, but Fred forced the door open, which struck her in the

face, causing a laceration.   Fred was arrested and Nina was

taken to the hospital for treatment.

    On June 24, 2012, Nina called the police again after

arguing with Fred.   Bayonne Police Officer Michael Zajac

responded, but Fred left before he arrived.       Nina, who was not

injured, did not wish to file a complaint.       Nina explained that

she feared that her brother might hit her, and she called the

police to prevent the matter from escalating.      While in the

apartment, Zajac noticed that the children were dirty and the

apartment was in disarray.    He reported the condition to the

Division.

    Pedro Cirino, a member of the Division's Special Protective

Response Unit (SPRU), went to Nina's apartment that evening at




                                  4                           A-0349-13T3
around 8:15 p.m.   After speaking with Nina, Cirino asked to see

the children.   He observed that they were asleep in separate

cribs and appeared "healthy and clean."    In his report, Cirino

noted that "the children's room was found to be somewhat clean

and no health or safety factors were identified."    Other parts

of the apartment had "housekeeping issues" that needed to be

addressed, including clothing strewn throughout the home, a

sticky floor in the kitchen that had not been mopped in some

time, a child's booster seat which was covered in old food, and

dirty dishes in the kitchen sink.    When Cirino looked in the

refrigerator, he noticed "plenty of food," but that the

refrigerator looked as though it had not been cleaned in some

time.

    Cirino told Nina that she would be given some time to clean

the apartment and he would return within one hour to check the

progress.   Nina apologized for the condition of the home and

agreed to begin cleaning immediately.     Before leaving, Cirino

spoke with Fred who told him the apartment was not usually in

this condition.    Fred explained that "things were a mess"

because he and his mother were moving out within a few days.

Fred agreed to assist Nina in cleaning the apartment.

    Cirino returned to the apartment around 10:00 p.m. and

detailed the improved conditions in a report:




                                 5                            A-0349-13T3
          The floors were no longer sticky and the
          living room was much more organized.     The
          family   emptied   out   and   cleaned  both
          refrigerators and all the dark mold had been
          cleaned   and   removed   with   bleach  and
          disinfectant.

     Division caseworker Laura Bulakowski, who had been working

with the family since 2011,3 visited Nina's apartment on the

following day.    Bulakowski observed that "the home was a lot

[cleaner] than the previous day when the . . . referral was

originally received."   Bulakowski noted Nina's compliance,

stating, "[t]he Division gave [Nina] an opportunity to address

the housing concerns, and [Nina] was very compliant with the

Division."

     During Bulakowski's visit, Nina disclosed that she had

dated Jeffrey.    Bulakowski requested Jeffrey's address so she

could conduct a background check, but Jeffrey refused to supply

the information, and Nina did not know where he lived.    As a

result, Bulakowski testified that she advised Nina "that at this

time the Division would not like him to be around the children,

because we don't know his history, his background history.     If

he's violent, how his behaviors could be, and it raised a

concern to us."

3
  After the 2010 matter was dismissed from litigation, the
Division kept its case open to monitor Nina's "compliance."
Bulakowski testified that during this time she had no concerns
with Nina's compliance.



                                 6                          A-0349-13T3
     Nina agreed, but later that day she took the children with

her to a park in Bayonne to meet Jeffrey.     Nina told police that

after Jeffrey refused to cooperate with Bulakowski's attempt to

perform a background check on him, she went to the park

intending to end their relationship.

     After speaking with Jeffrey in the park, Nina returned to

her apartment, pushing her two children in a baby carriage.

Jeffrey walked with or behind her4 to her apartment, which was a

few blocks away.   When she reached her building, Nina unlocked

the front door and pushed the carriage containing the two

children into the hallway.5    Jeffrey followed Nina inside and,

after closing the door, pushed her up against the wall and began

to rub her vagina over her clothes.    Nina attempted to escape up

the stairs to her apartment, but Jeffrey grabbed her and pulled

her back down the stairs.     He then pushed her up against the

wall again and tried to kiss her.     Nina tried to push him off

and hit him repeatedly in the chest and shoulders to no avail.

Jeffrey then ripped off Nina's shorts and underwear and, while


4
  In her initial report to the   police, Nina stated that Jeffrey
"walked [her] and the children   home." Bulakowski testified that
during a subsequent interview,   Nina told police that "while she
was walking home [Jeffrey] was   following her."
5
  Nina's residence is located in a two-story building with a
vacant storefront on the first floor and two apartments on the
second.



                                  7                         A-0349-13T3
pinning her to the wall in a standing position, he penetrated

her vagina with his finger.   Jeffrey then had vaginal

intercourse with Nina and ejaculated inside her.   Before Jeffrey

left, he asked Nina, "Was it good?"    The children remained in

the baby carriage throughout the incident.

     Nina did not report the rape immediately, as she was in

shock and in fear of Jeffrey.   But on June 30, 2012, Nina

reported the incident to the police.   The Division was notified

and Bulakowski responded to the prosecutor's office where she

observed, but did not participate in, an interview with Nina, in

which she recounted the details of the rape.

     At the conclusion of the interview, the Division conducted

a Dodd removal6 of both children.   Bulakowski testified that the

decision to remove the children was prompted by the Division's

          ongoing concerns of the willingness to care
          for the children, and the uncleanliness. We
          had that referral the week prior, that the
          children were dirty at the time.     Also the
          ongoing domestic violence allegations in the
          home, because that was the second one within
          the month that we received information . . .
          that raised a concern to the Division.




6
  A "Dodd removal" is an "emergency removal of a child from the
home without a court order, pursuant to the Dodd Act," N.J.S.A.
9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. N.S.,
412 N.J. Super. 593, 609 n.2 (App. Div. 2010).




                                8                            A-0349-13T3
     The Division sought a finding of abuse or neglect against

Nina.   A fact-finding hearing began on January 30, 2013 and

concluded on August 7, 2013.    The Division offered two theories

supporting their claim.    First, it alleged that Nina's "home

environment was unsuitable to two young children . . . [and

placed them] at an imminent risk of harm."7    In explaining the

second allegation, the deputy attorney general first felt

compelled to disclaim any intention by the Division "to re[-

]victimize a victim."     Nevertheless, she claimed that Nina

abused or neglected her children because "her compromised

judgment, placed her children at a substantial risk of physical

harm, given the statement that [Nina] made, which was that she

was raped in front of her children, while her children were next

to her screaming and crying."

     The Division admitted without objection three Bayonne

Police Department incident reports and four Division reports.

The Division then called Zajac, who briefly recounted his

response on June 24, 2012 and his observations of the condition


7
  The trial court found that the Division did not substantiate
this charge, and we question why the Division pursued it in the
first instance. The record is clear that Nina took immediate
remedial action after being informed of the problem by Cirino.
Within one hour, she had addressed most of the concerns raised
by him. When Bulakowski visited the following day, she
expressed satisfaction at the condition of the apartment and
complimented Nina's compliance with the Division.



                                  9                         A-0349-13T3
of her apartment.   Bulakowski then testified as to her follow-up

visit to Nina's apartment on June 25, 2012; her advice to Nina

that the Division would not like Jeffrey to be around the

children; her observation of Nina's interview with the police on

July 2, 2012; and the removal of the children later that day.

Finally, Cirino testified as to the events surrounding his

response to Nina's apartment on June 24, 2012.    Neither the

defendant nor the law guardian presented any witnesses or

evidence.

    At the conclusion of the hearing, the trial court found

that the "environmental issues" in Nina's apartment did not rise

to the level of "serious risk of substantial harm" by the

requisite preponderance of the evidence standard.

    As to the second allegation, the judge discussed the

incidents of May 24, 2012 and June 24, 2012.     As to the May 24

incident, the judge found that "there was violence in that home

where the children were present" and that Nina had "apparently

underplayed" the incident.   Although the judge noted that the

incident "might not have been abuse and neglect," she

nevertheless concluded that it was "the first indication we have

of a history of domestic violence."

    The judge then noted that despite advice from the

caseworker that she not expose the children to Jeffrey, she




                                10                          A-0349-13T3
            takes these two little infants in the
            stroller to a place to meet a man she's
            afraid of, who may have a gun, after being
            found by a [c]ourt to have committed abuse
            and neglect by exposing one of the children
            to a dangerous person in the past.      As a
            result of her horrible judgment, he follows
            her home, rapes her in the lobby in front of
            the children, causing the children to see
            it, screaming the whole time, see[ing] their
            mother screaming while she's being raped.

                 And then she doesn't call the police.
            So, they're at risk of continued harm.
            Takes five to seven days to call the police.

       The judge then referenced Nina's prior substantiation of

abuse or neglect from 2010, for leaving James with his father

who seriously injured the child:

                 Even if [Nina] did not believe that
            [Jeffrey] would hurt the children, she knew
            her judgment had been wrong in the past for
            that same exact issue.   She knew [Jeffrey]
            had refused to cooperate in giving any
            information to the Division.  That same day
            she's told, "Don't have the children near
            him." And she calls [Jeffrey] and takes the
            children right there.

                 Based on her behavior, her lack of
            appropriate judgment, and her history of her
            exercising poor judgment and exposing these
            children to violence, this [c]ourt finds, by
            a preponderance of the evidence, that . . .
            [Nina] did exhibit reckless disregard for
            the safety of the children, was wantonly
            negligent in exposing them to serious risk
            of harm, and as in the case of D.M.H.[8] there
            was no need for the Division, and there's no
            need for the [c]ourt to wait until the

8
    In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).



                                 11                           A-0349-13T3
            children   are    actually   harmed   to   protect
            them.

    On appeal, Nina argues that there was not substantial

credible evidence in the record to support the trial court's

conclusion that she abused or neglected her children.            She

challenges the Division's proof that she should have known that

Jeffrey presented a risk of harm and also notes that there was

no proof that the children suffered harm from witnessing the

incident.

                                   II.

    N.J.S.A. 9:6-8.21(c) defines an abused or neglected child

as a person 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 . . . to
            exercise a minimum degree of care . . . in
            providing the child with proper supervision
            or    guardianship  [or]    by    unreasonably
            inflicting or allowing to be inflicted harm,
            or substantial risk thereof . . . .

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

"If there is no evidence of actual harm, . . . the statute

requires a showing of 'imminent danger' or a 'substantial risk'

of harm before a parent or guardian can be found to have abused

or neglected a child."       N.J. Dep't of Children & Families v.

A.L., 213 N.J. 1, 8 (2013).




                                    12                             A-0349-13T3
    We note at the outset that the Division offered no proof

and makes no claim now that the children suffered any emotional

harm as a result of witnessing their mother's rape by Jeffrey.

Indeed, such harm "cannot be presumed in the absence of evidence

of its existence or potential."    N.J. Div. of Youth & Family

Servs. v. S.S., 372 N.J. Super. 13, 28 (App. Div. 2004) certif.

denied, 182 N.J. 426 (2005).    Rather, the Division's theory is

that Nina knew or should have known that Jeffrey posed a risk of

harm to her children, and by bringing them with her to the park

to meet him, she placed them at a substantial risk of harm.

    In concluding that Nina should have known not to bring the

children to the park, the court found it significant that

Bulakowski advised her to keep Jeffrey away from them.    It bears

noting that the caseworker's warning was based entirely on

Jeffrey's refusal to provide his address so that she could

conduct a background check.    The Division had no information to

suggest that Jeffrey posed a danger to Nina or the children, and

we reject the conclusion that a person who declines to provide

the Division with personal information should be assumed to be

dangerous.

    In G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999),

the Court held that a gross or wanton negligence standard should

be employed in determining whether the parent or guardian had




                                  13                        A-0349-13T3
failed to exercise a "minimum degree of care" and therefore had

committed an act of child abuse or neglect.     The Court noted

that conduct is willful or wanton if it is "done with the

knowledge that injury is likely to, or probably will, result."

Ibid.

    In her brief relationship with Jeffrey, there was no

history of violence, no indication that he had a criminal

record, and simply no way for Nina to foresee that a daytime

meeting in a public park would result in a brutal and horrific

rape.   Nina told Bulakowski that Jeffrey may have carried a gun

in his job as a security guard, although there is nothing in the

record to indicate that she ever saw a gun or even knew with

certainty that he possessed one.     That is insufficient to

support the court's finding that Nina should have known that

Jeffrey "may have a gun," when she met him in the park.

    In finding that Nina exposed her children to a substantial

risk of harm, the trial judge placed significance on two

domestic disputes, referring to them as "two prior serious

referrals."

    The first event the trial judge noted occurred after Nina

retreated to her room following an argument with her brother.

Nina gave two versions of what occurred next.    She told the

responding police officers that Fred followed her into her room,




                                14                             A-0349-13T3
and she was injured when he forced the door open as she tried to

close it.   She was injured when Fred forced the door open.    She

later told Bulakowski that "her brother accidentally opened the

door [and] hit her in the face which caused her face to bleed."

Nina did not testify but the court appeared to have accepted the

first version and found that Nina "apparently underplayed" the

incident to the Division.

    We need not give deference to the trial court in crediting

one version of this event over the other, since the court did

not have the benefit of Nina's testimony.   Any credibility

findings that the court implicitly made concerning her account

were based on the same written record that is now before us on

appeal.   Where our review of the record "leaves us with the

definite conviction that the judge went so wide of the mark that

a mistake must have been made," we may "appraise the record as

if we were deciding the matter at inception and make our own

findings and conclusions."   Pioneer Nat'l Title Ins. Co. v.

Lucas, 155 N.J. Super. 332, 338 (App. Div.), aff’d, 78 N.J. 320

(1987).   Even assuming that Fred injured Nina when he pushed the

door in, it is undisputed that Nina retreated to her room to get

away from her brother.   Moreover, there is no proof that the

children were exposed to the incident, that they suffered harm




                                15                        A-0349-13T3
as a result, or that Nina was anything other than a victim who

acted reasonably in retreating from the confrontation.

     The second event9 noted by the trial judge involved Joseph,

the father of the children.   The court found Nina's prior

substantiation, for failing to protect James from harm by his

father, was evidence of "her history of her exercising poor

judgment and exposing these children to violence."     The court

concluded that the 2010 incident should have somehow placed Nina

on notice that she should not bring the children with her to

meet Jeffrey because "she knew her judgment had been wrong in

the past for that exact issue."

     N.J.S.A. 9:6-8.46(a)(1) provides that "proof of the abuse

or neglect of one child shall be admissible evidence on the

issue of the abuse or neglect of any other child of . . . the

parent or guardian."   We have held that violence by a defendant

against another parent and other children can be admissible to

prove that a risk of harm to the children was present as long as

the harm is not presumed but established by competent evidence.

See N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.

Super. 551, 557 (App. Div. 2010).      Expert testimony in I.H.C.

provided support for a finding that the children were harmed by


9
  The trial judge acknowledged that she may have reversed these
events chronologically.



                                  16                         A-0349-13T3
the defendant's prior acts of domestic violence, and that these

acts showed the defendant's disposition to commit such violence.

Id. at 576.   However, both the statute and I.H.C. address prior

violence by the same perpetrator, which is not the case here.

Accordingly, we find the holding in I.H.C. inapplicable to the

facts in this case and reject the trial court's conclusion that

Nina's actions in 2010 should have placed her on notice that

taking the children with her to meet Jeffrey would place them in

danger.

    The Division's proof was insufficient to establish that

Nina failed to exercise a minimum degree of care or that she was

in any way aware of the dangers that would follow from taking

her children to the park to meet Jeffrey.   As Nina's conduct may

have been, in hindsight, unwise, it was neither wanton nor

grossly negligent, and cannot support a finding that she abused

or neglected her children.

    Reversed.




                                17                        A-0349-13T3
