RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4950-12T2
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
S.M.,
Defendant-Appellant.
___________________________________
IN THE MATTER OF T.M.,
N.F., and N.T.,
Minors.
____________________________________
Submitted November 13, 2014 – Decided January 8, 2015
Before Judges Ashrafi and Kennedy.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Gloucester County, FN-08-126-12.
Joseph E. Krakora, Public Defender, attorney
for appellant (Joseph F. Kunicki, Designated
Counsel, on the briefs).
John J. Hoffman, Acting Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Victoria R. Ply, Deputy Attorney General, on
the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors T.M., N.F. and
N.T. (Noel C. Devlin, Assistant Deputy
Public Defender, on the brief).
PER CURIAM
Defendant appeals a November 28, 2012 order of the Family
Part,
entered
determining
after
she
had
a
Title
abused
Nine
and
fact-finding
neglected
her
hearing,
three
minor
children by failing to maintain a safe and hygienic home.
On
appeal, defendant argues that the judge's findings of fact are
against
the
weight
of
the
evidence.
We
have
considered
defendant's argument in light of the record and applicable law,
and we affirm.
We need not review at length the fact-findings of the trial
judge set forth in her six page memorandum explaining the basis
for her decision.
Briefly, defendant lived in deplorably filthy
conditions
residence
unsound.
in
a
that
was
patently
structurally
The living quarters were littered with dirty clothes,
half-eaten food, garbage and animal waste.
Roach infestation
was discovered in the refrigerator and what little food was
found therein had been left uncovered.
Defendant
testified
at
the
hearing
and
stated
that
the
conditions observed by caseworkers had not been present when she
left for work that day, and suggested that her older children,
then sixteen and twelve years of age, were likely responsible
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A-4950-12T2
for the grossly insanitary conditions.
The trial judge found
this explanation to be "not credible" and found that the amount
and
nature
of
the
debris
and
garbage
clearly
showed
the
condition had grown "over time."
The trial judge found the living quarters to be "clearly
unhygienic [and] totally obstructed . . . [by] objects, food
remains, animal excrement, trash, broken furniture and fixtures
. . . ."
then
two
She further found that defendant's youngest child,
years
of
age,
would
have
been
unable
to
safely
"negotiate around the refuse and trash, spilled food, roaches
and cat feces" in the living areas.
Our scope of review of a trial court's factual findings is
limited.
N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.
261, 278-79 (2007).
Normally, we must determine "whether the
findings made could reasonably have been reached on substantial
credible evidence present in the record when considering the
proofs as a whole."
N.J. Div. of Youth & Family Servs. v. A.G.,
344 N.J. Super. 418, 442-43 (App. Div. 2001) (citing Rova Farms
Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484
(1974)), certif. denied, 171 N.J. 44 (2002).
is
afforded
to
fact-finding
because
"expertise in family matters[.]"
of
Special deference
the
family
court's
N.J. Div. of Youth & Family
Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v.
3
A-4950-12T2
Cesare,
154
N.J.
394,
413
(1998)
(internal
quotation
marks
omitted)).
The Division filed this case under Title Nine, which sets
forth the controlling standards for adjudicating cases of abuse
or neglect.
N.J.S.A. 9:6-8.21 to 8.73; Dep't of Children &
Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294,
303 (2011).
The purpose of Title Nine is to protect children
from circumstances that threaten their welfare.
G.S. v. Dep't
of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161,
176 (1999).
N.J.S.A.
9:6-8.21(c)(4)(a)
provides
that
an
"abused
or
neglected child" includes:
[A]
child
whose
physical,
mental,
or
emotional condition has been impaired or is
in imminent danger of becoming impaired as
the result of the failure of his [or her]
parent . . . to exercise a minimum degree of
care (a) in supplying the child with
adequate food, clothing, shelter, education,
medical or surgical care though financially
able to do so or though offered financial or
other reasonable means to do so . . . .
The burden is on the Division to prove abuse or neglect by
a
preponderance
evidence[.]"
of
the
"competent,
material
and
relevant
N.J.S.A. 9:6-8.46(b); N.J. Dep't of Children &
Families v. A.L., 213 N.J. 1, 22 (2013).
Where there is no
evidence of actual harm to the child, "a finding of abuse and
neglect can be based on proof of imminent danger and substantial
4
A-4950-12T2
risk of harm."
A.L., supra, 213 N.J. at 23 (citing N.J.S.A.
9:6-8.21(c)(4)(b)).
A "minimum degree of care," as required by statute, does
not refer to merely negligent conduct, but "refers to conduct
that
is
grossly
intentional."
or
wantonly
T.B.,
supra,
negligent,
207
N.J.
quotation marks and citation omitted).
but
at
not
necessarily
299-300
(internal
"Conduct is considered
willful or wanton if done with the knowledge that injury is
likely to, or probably will, result."
178.
Gross
negligence
requires
G.S., supra, 157 N.J. at
"an
indifference
to
the
consequences," Banks v. Korman Assocs., 218 N.J. Super. 370, 373
(App.
Div.
1987)
(internal
quotation
marks
and
citations
omitted), but a parent's actual intent to cause harm is not
necessary.
G.S., supra, 157 N.J. 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."
181.
G.S., supra, 157 N.J. at
"'Where an ordinary reasonable person would understand
that a situation poses dangerous risks and acts without regard
for
the
potentially
serious
consequences,
responsible for the injuries he causes.'"
5
the
law
holds
him
N.J. Div. of Youth &
A-4950-12T2
Family Servs. v. A.R., 419 N.J. Super. 538, 544 (App. Div. 2011)
(quoting G.S., supra, 157 N.J. at 179).
However, it is "well-settled that poverty alone is not a
basis for a finding of abuse or neglect."
N.J. Div. of Child
Prot. and Permanency v. L.W., 435 N.J. Super. 189, 195-96 (App.
Div. 2014) (citing Doe v. G.D., 146 N.J. Super. 419, 430-31
(App. Div. 1976), aff'd sub. nom., Doe v. Downey, 74 N.J. 196
(1977)).
because
In Doe, we reversed a finding of abuse and neglect
the
child's
circumstances
were
incidents
of
poverty.
Id. at 427, 431; see also In re Guardianship of J.E.D., 217 N.J.
Super. 1, 12-13 (1987) (courts should not decide a case because
of a cultural bias or because of the parents' economic or social
circumstances), certif. denied, 111 N.J. 637 (1988).
Defendant
argues
that
application
of
this
principle
requires reversal here because the conditions found by the trial
judge were a result of agency inattention, and the evidence at
trial
only
showed
defendant
"struggling
with
[]
difficult
teenagers; an inattentive landlord and financial circumstances
that resulted at least in part in the conditions in the home."
Given the record before us, we disagree.
The
trial
conditions
in
court's
detailed
defendant's
home
findings
were
not
establish
merely
that
incidents
the
of
poverty, and therefore, the finding of abuse and neglect does
6
A-4950-12T2
not violate the principle set forth in Doe.
Defendant was not
prevented by any economic reason from maintaining her home in a
cleaner
and
more
debris,
animal
hygienic
waste
and
condition,
trash
in
or
the
threatened the health of the children.
from
living
removing
quarters
the
that
Poverty did not prevent
her from discarding leftover food, or from insuring that the
children were at least clean and safely cared for.
Further,
while both defendant and the involved agencies could have taken
greater steps to address the structural deficiencies with the
landlord, the structural deficiencies in the residence do not
explain defendant's maintenance of the premises in deplorable
filth.
These conditions were not the result of poverty, but were
instead the result of an apparent indifference to the potential
harm that such filthy conditions create.
and
debris
defendant
in
defendant's
patently
could
home
have
gave
The extensive filth
rise
to
addressed.
a
peril
that
Defendant's
explanations for these conditions were discredited by the trial
judge, and defendant herself did not ascribe the conditions to
poverty, but rather blamed her children, in large part, for
creating the conditions which she said had not existed when she
had left them earlier in the day.
7
A-4950-12T2
A court cannot sit idly by until actual injury or harm has
occurred;
the
imminence
thereof
is
sufficient.
Indeed,
the
Supreme Court explained in In re Guardianship of D.M.H., 161
N.J. 365, 383 (1999), a court "need not wait to act until a
child is actually irreparably impaired by parental inattention
or
neglect."
We
discern
from
the
trial
judge's
comments
a
recognition of the fact that while harm had not yet ensued, it
was not only inevitable, but imminent in light of the debris,
rotted
food,
animal
waste,
in
the
living
quarters
and
cockroaches running through the refrigerator.
Accordingly, we find no basis to conclude that the trial
judge's findings of fact and conclusions of law were against the
weight of the evidence adduced at the hearing.
N.J. Div. of
Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App.
Div.), certif. denied, 180 N.J. 456 (2004) ("We will not disturb
the factual findings of a trial judge unless 'they are so wholly
unsupportable as to result in a denial of justice,' and we will
uphold such findings whenever they are supported by adequate,
substantial and credible evidence [citations omitted]").
Affirmed.
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A-4950-12T2
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