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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4460-12T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.C.,
Defendant-Appellant,
and
R.G.,
Defendant.
_______________________________________
IN THE MATTER OF L.G., a minor.
_______________________________________
Submitted October 1, 2014 – Decided October 10, 2014
Before Judges Alvarez and Waugh.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Morris County, Docket No. FN-14-111-12.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven E. Braun, Designated
Counsel, on the brief).
John J. Hoffman, Acting Attorney General,
attorney
for
respondent
(Andrea
M.
Silkowitz, Assistant Attorney General, of
counsel; Patricia J. O'Dowd, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor L.G. (Janet L.
Fayter, Designated Counsel, on the brief).
PER CURIAM
Defendant J.C. (Jane)1 appeals the Family Part's June 21,
2012 order finding that she had abandoned and
daughter L.G. (Lisa).
neglected her
We affirm in part and reverse in part.
I.
We discern the following facts and procedural history from
the record on appeal.
Lisa
was
born
in
September
2011
in
Florida,
where
parents, Jane and R.G. (Ron), were living at the time.
her
When
Jane and Ron moved to New Jersey a few months later, they rented
a room on a weekly basis at a motel in Parsippany.
A few weeks
later, Jane's mother, A.C. (Anne), moved into a separate, but
adjacent room at the same motel.
On January 14, 2012, Jane and Ron left Lisa with Anne and
drove to a liquor store in Fairview.
Jane put a bottle in her purse.
leaving the store.
A security guard noticed
He attempted to stop her from
Witnessing the confrontation, Ron entered
the store and grabbed the security guard.
A struggle ensued,
after which Jane and Ron fled the scene, leaving Jane's purse
1
We use initials and pseudonyms to refer to the individuals in
this case for the purpose of confidentiality and clarity.
2
A-4460-12T2
behind.
Jane was arrested at the motel later that evening.
was arrested shortly thereafter.
Ron
When Ron was arrested, he left
Lisa in Anne's care.
In the early morning of January 15, plaintiff Division of
Youth and Family Services2 (Division) received a telephone call
from the Fairview Police Department.
A police sergeant told the
screening worker that the child's parents had been arrested the
day before for shoplifting and assaulting the security guard.
He related that the child was currently at a motel with her
maternal grandmother, that she would care for the child, and
that diapers and baby food were observed in the room.
The
sergeant also informed the screening worker that the parents
were being held in the Bergen County Jail pending the setting of
bail or other conditions for their release.
Two members of the Division's special response unit visited
Anne at the motel later that morning.
They reported seeing Lisa
dressed in a white sleeper, asleep on a queen bed.
The room
contained a bouncy seat, a car seat, clothes in bags and bins,
and a portable playpen that could also be used a crib.
Their
report described the room as "not very clean" and cluttered with
clothing bins, baby items, and other items strewn around the
2
Effective June 29, 2012, the Division of Youth and Family
Services was renamed the Division of Child Protection and
Permanency. L. 2012, c. 16.
3
A-4460-12T2
room.
The room was not equipped with a microwave or anything
else for heating the baby's formula.
Anne told the workers that Jane and Ron had been living in
the motel for approximately three months.
motel
to
help
Jane
and
difficulties of her own.
Ron,
even
though
She moved into the
she
had
financial
She told the workers that she received
$500 a week from unemployment, and that her room cost $288 a
week.
After the arrest, Anne brought her property into Jane and
Ron's room with the help of the police.
was paid through January 17.
The rent for their room
She was concerned because she
would not receive her unemployment check until the day the rent
was due.
She told the workers she did not have the money to
care for the child.
She thought she could afford the room for
the week, but would not be able to pay for food for herself and
Lisa.
She told the workers she had only one container of milk,
four diapers, and needed more formula.
name of Lisa's pediatrician.
Anne did not know the
She also told them she thought
Lisa was in need of some immunizations.
After
consulting
with
their
supervisor,
the
workers
returned and told Anne that they would be taking Lisa because
she did not have the financial means to support her.
Anne
responded that she understood and added that the room was "no
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A-4460-12T2
place for a baby."
She told the workers that she could not
afford
Lisa
to
care
for
on
a
long-term
basis.
Lisa
was
transported to a medical facility for a medical evaluation and
then placed in a temporary foster home.
Another
caseworker
contacted
the
Bergen
County
Jail
and
learned that Jane was charged with robbery, and was being held
on
$20,000
bail.
Ron
was
charged
with
robbery
and
driving
without a license, and was being held on similar bail.
The caseworker met with Jane at the jail that afternoon to
serve her with the emergency removal papers.
Jane told the
worker that her mother was caring for her daughter, and she did
not understand why the child had to be removed.
responded
that
the
Division
did
financially able to care for Lisa.
not
believe
The worker
that
Anne
was
Jane became very emotional
and responded that she made the wrong decision to shoplift.
Jane
claimed
that
she
had
the
money
to
meet
all
of
her
daughter's needs, but that she stole because she needed fifty
dollars to finish paying for the next two weeks at the motel.
Jane identified the medical clinic she used for Lisa and told
the worker that Lisa was scheduled for shots that week.
The
worker also met with Ron.
On
January
18,
the
Division
filed
a
verified
complaint
under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, seeking custody of
5
A-4460-12T2
Lisa because of her "parents' (a) unfitness to be entrusted with
[her] care and education . . . and/or; (b) failure to provide
[her] with proper protection, maintenance and education, and/or;
(c) failure to ensure [her] health and safety . . . and/or (d)
endangering [her] welfare."
The Family Part judge issued an
order
temporarily
to
show
cause
Division's custody.
(OTSC)
placing
Lisa
in
the
The judge found that Lisa's removal was
necessary because of "imminent danger to [her] life, safety or
health."
A return date on the OTSC was set for February 2.
The
Division subsequently alleged that Jane and Ron had abandoned
Lisa.
Ron did not appear at the hearing on February 2, because no
writ had been issued to bring him to the courthouse.
Jane, who
was no longer incarcerated, did not appear because she went to
the wrong location.
Eventually, the judge was able to reach
Jane telephonically and conducted the hearing by telephone.
Jane
had
earlier
complied
with
the
Division's
substance
abuse evaluation, but had tested positive for opiates.
The
judge directed Jane to come to the courthouse for a drug test
that day.
She did so, and again tested positive.
adjourned the matter to February 22.
The Judge
Lisa was moved to a new
foster home the following day.
6
A-4460-12T2
On February 22, neither parent was present for the status
conference.
transferred
Although
to
a
a
writ
different
had
been
facility
issued,
in
the
Ron
had
been
interim.
The
Division's deputy attorney general (DAG) informed the judge that
Jane had tested positive for opiates on January 27, January 31,
and February 16.
She had not provided the Division with proof
of a prescription for an opiate.
Lisa, she was usually late.
Although Jane was visiting
The DAG informed the judge that the
Division was exploring placement with Lisa's godmother.
The
case was adjourned to March 15.
On March 15, both parents appeared for the case management
conference.
The
DAG
reported
that
Jane
continued
to
test
positive for opiates, providing different explanations but no
prescription.
number
of
evaluation,
Jane was also non-compliant with visitation on a
occasions.
and
was
Jane
had
recommended
completed
for
an
a
substance
intensive
abuse
outpatient
program.
However, she did not follow up with the treatment
facility.
Ron failed to attend his substance abuse assessment
after rescheduling his first appointment.
Both parents were
ordered to undergo psychological evaluations.
Following the removal, Lisa was examined and prescribed a
helmet
to
correct
a
flat
head.
The
Division
continued
explore Lisa's placement with her godmother and others.
7
to
The
A-4460-12T2
judge ordered continued visitation and investigation into the
living situations of both parents.
At the conclusion of the
conference, the judge entered an order requiring the parents to
sign medical releases and requiring Jane to provide proof that
her positive drug tests were caused by prescription medication.
A fact-finding hearing was scheduled for May.
On May 17, the judge conducted a fact-finding hearing to
determine
whether
Lisa
had
been
abused
or
parents.
The Division presented the testimony of Maria Perez,
one of the workers assigned to the case.
been
personally
testified
on
involved
the
basis
at
of
the
the
time
neglected
by
her
Because she had not
of
contents
the
of
removal,
the
she
Division's
reports, including those of the workers who visited the motel
and effectuated the removal.
Perez testified concerning Anne's and Jane's statements to
the caseworkers who spoke to them on January 15, as outlined
above.
Jane's
statements
hearsay.
made
attorney
objected
to
caseworkers,
the
to
Perez's
testimony
characterizing
it
to
as
The judge overruled the objections.
When asked why the Division determined that Jane and Ron
did not have an adequate plan for Lisa's care, Perez responded
that they had left the motel to commit a crime, leaving only one
container of formula and four diapers for Anne to care for the
8
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child,
knowing
that
she
was
financially
unstable.
Perez
asserted that an abandonment would not have occurred if the
parents had left Anne sufficient funds to care for the child or
if Anne had had sufficient funds of her own.
The case supervisor, Nicole Neal, then testified for the
Law Guardian.
She confirmed that Lisa received shots at birth,
but had not received any since then.
She testified that Lisa
had been scheduled to see a doctor on November 30, 2011, but did
not
appear.
Neal
also
described
Lisa's
treatment
for
flattened head following her placement in the foster home.
a
The
treatment required her to wear a helmet for twenty-three hours
of the day.
Jane testified on her own behalf.
She described how she,
Ron, and Lisa came to be living in the motel in the early part
of January 2012.
She acknowledged being arrested on January 14.
That day, she left her daughter in the care of her mother with
the intention of returning.
before.
Her mother had watched the child
Jane returned that day, but was subsequently arrested
at the motel.
When she was arrested, she left Lisa in Ron's
care, but he was arrested shortly after she was.
Jane testified she had no concerns about leaving Lisa with
her mother.
She asserted that Anne had about a week's worth of
diapers and two cans of powder-based formula that would have
9
A-4460-12T2
lasted about a week.
She testified that Ron was paying for
their room and contributing to the cost of her mother's room.
According to Jane, Anne received over six hundred dollars a week
in unemployment.
She testified that, following her release on
bail, she had been arrested and was currently incarcerated on a
charge of bank robbery.
Ron also testified on his own behalf.
He explained that he
and Jane had moved to New Jersey because he had a job waiting
for him as a cook at a local restaurant.
His plan was to move
close to work and find an apartment with financial help from his
father.
The
motel
where
he,
Jane,
studio apartments at a weekly rate.
and
Lisa
stayed
offered
Anne moved in to a room in
the motel a few weeks after they did.
According to Ron, they left Lisa with Anne approximately
six or seven times while they both had rooms at the motel.
He
did not think he needed to get someone else to take care of Lisa
when he was arrested, because he thought Anne could take care of
her.
He testified that Anne had sufficient food and diapers.
Ron also testified that Jane was in the process of applying for
public assistance.
immunizations.
He asserted that Lisa was up to date on her
On cross-examination, Ron again asserted that
Anne had plenty of supplies to take care of Lisa, despite the
caseworkers' contrary assertions.
10
A-4460-12T2
The judge issued a written decision on June 18.
She found
a
and
"by
preponderance
abandoned
their
of
child
the
and
evidence
neglected
that
their
[Jane
Ron]
responsibility
as
[Lisa's] parents by creating a situation in which . . . the
child
was
placed
in
substantial
risk
of
imminent
harm."
Concerning abandonment, the judge found that both Jane and Ron
"willfully abandoned [Lisa] when they went to shoplift."
particular,
the
judge
found
they
"knowingly
disregarded
In
the
risks associated with participating in an illegal activity, and
the effects it would have in regards to their ability to care
for their child."
Concerning neglect, the judge found Jane and Ron failed to
exercise a minimum degree of care because they did not plan
ahead
for
Lisa's
care
in
the
incarceration for shoplifting.
inadequate
supplies
caregiver,
to
meet
who
Lisa's
event
of
their
arrest
and
The judge described Anne as an
had
only
needs.
a
The
few
hours
parents
of
also
food
failed
and
to
exercise a minimum degree of care by deciding to commit a crime
instead of obtaining "temporary assistance or WIC assistance" to
meet their financial needs.
Jane
and
Ron's
decisions
In sum, the judge concluded that
"put
[Lisa's]
physical,
mental,
or
emotional condition at imminent risk of being impaired."
11
A-4460-12T2
On
January
14,
2013,
following
further
judicial
proceedings, another Family Part judge approved the Division's
plan
for
adoption.
termination
The
February 22.
of
Division
parental
filed
its
rights
to
be
guardianship
followed
by
complaint
on
On March 21, the judge signed an order terminating
the FN litigation because the guardianship complaint had been
filed.
This appeal followed.3
II.
On
appeal,
Jane
argues
that
the
judge's
finding
of
abandonment is not supported by record, that the judge erred in
relying on the Division's records with respect to the events
surrounding the removal, and that she also erred in relying on
the
immunization
evidence
because
medical
neglect
was
not
charged in the complaint.
A.
The scope of our review of a Family Part judge's factual
findings is limited.
N.J. Div. of Youth & Family Servs. v.
M.M., 189 N.J. 261, 278 (2007).
disturbed
unless
they
are
"so
Those findings may not be
manifestly
unsupported
by
or
3
Ron, who voluntarily surrendered his parental rights on June 6,
is not a party to this appeal.
The record reflects that, on
August 20, the Division withdrew the guardianship complaint and
reopened the present action.
A third judge also issued a
permanency order with the goal of Lisa's reunification with her
mother within six months.
12
A-4460-12T2
inconsistent
with
the
competent,
relevant
and
reasonably
credible evidence as to offend the interests of justice."
Rova
Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474,
484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.
Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963))
(internal quotation marks omitted); see also N.J. Div. of Youth
& Family Servs. v. P.P., 180 N.J. 494, 511 (2004).
"A reviewing
court should uphold the factual findings undergirding the trial
court's decision if they are supported by 'adequate, substantial
and credible evidence' on the record."
M.M., supra, 189 N.J. at
279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172,
188 (App. Div. 1993)).
As a general rule, we also defer to the judge's credibility
determinations.
Ibid.
Such deference is appropriate because
the trial judge has a feel for the case and "the opportunity to
make first-hand credibility judgments about the witnesses who
appear on the stand."
N.J. Div. of Youth & Family Servs. v.
E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at
293.
In New Jersey Division of Youth & Family Services v. M.C.
III, 201 N.J. 328, 343 (2010) (alteration in original), the
Supreme Court reiterated the standard first used in Cesare v.
Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause
of
the
family
courts'
special
13
jurisdiction
and
expertise
in
A-4460-12T2
family
matters,
appellate
courts
should
accord
deference
to
family court factfinding.'"
We have held that, "'where the focus of the
dispute
is
. . . alleged error in the trial judge's evaluation of the
underlying facts and the implications to be drawn therefrom,'
the traditional scope of review is expanded."
J.T., supra, 269
N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW
of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif.
denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth &
Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
Deference is
appropriate even in that circumstance "unless the trial court's
findings 'went so wide of the mark that a mistake must have been
made.'"
M.M.,
supra,
189
N.J.
at
279
(quoting
C.B.
Snyder
Realty, supra, 233 N.J. Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the
application of those conclusions to the facts, are subject to
plenary
review.
Manalapan
Realty,
Manalapan, 140 N.J. 366, 378 (1995).
trial
facts.
court's
legal
conclusions
L.P.
v.
Twp.
Comm.
of
We need not defer to the
reached
from
the
established
See State v. Brown, 118 N.J. 595, 604 (1990).
"If the
trial court acts under a misconception of the applicable law,"
we need not defer to its ruling.
14
Ibid.
A-4460-12T2
Title
Nine
is
concerned
with
"noncriminal
proceedings
involving alleged cases of child abuse or neglect."
9:6-8.22.
N.J.S.A.
In such actions, the Legislature has provided that
"the safety of the children shall be of paramount concern."
Ibid.
The purpose of the act is
to provide for the protection of children
under 18 years of age who have had serious
injury inflicted upon them by other than
accidental means.
The safety of the
children
served
shall
be
of
paramount
concern.
It
is
the
intent
of
this
legislation to assure that the lives of
innocent
children
are
immediately
safeguarded from further injury and possible
death and that the legal rights of such
children are fully protected.
[N.J.S.A. 9:6-8.8(a).]
The standard of proof in a Title Nine case is "a preponderance
of the evidence."
Title
Nine
N.J.S.A. 9:6-8.46(b)(1).
provides
that
an
abused
or
neglected
child
includes one who "has been willfully abandoned by [her] parent
or guardian."
N.J.S.A. 9:6-8.21(c)(5).
Abandonment is further
defined by N.J.S.A. 9:6-1, which states:
Abandonment of a child shall consist in any
of the following acts by anyone having the
custody or control of the child: (a)
willfully forsaking a child; (b) failing to
care for and keep the control and custody of
the child so that a child shall be exposed
to physical or moral risk without proper and
sufficient protection; (c) failing to care
for and keep the control and custody of the
child so that a child shall be liable to be
15
A-4460-12T2
supported and maintained at the expense of
the public, or by child caring societies or
private persons not legally chargeable with
its or their care, custody and control.
"'The statutory notion of abandonment . . . import[s] any
conduct
on
purpose
to
the
part
forego
of
all
the
parent
parental
parental claims to the child.'"
which
duties
evinces
and
a
settled
relinquish
all
Lavigne v. Family & Children's
Soc'y of Elizabeth, 11 N.J. 473, 480 (1953) (quoting Winans v.
Luppie, 47 N.J. Eq. 302, 304 (E. & A. 1890)).
Similarly, in the
context of a termination of parental rights case, "[a]bandonment
requires
a
finding
that
parents,
although
physically
and
financially able to care for their children, willfully forsook
their
parental
entails
a
responsibilities.
willful
surrender
parental rights or duties."
or
The
concept
intentional
of
abandonment
abdication
of
In re Guardianship of K.L.F., 129
N.J. 32, 39 (1992) (citations omitted).
Title Nine also provides that an abused or neglected child
includes one
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.
16
A-4460-12T2
[N.J.S.A. 9:6-8.21(c)(4)(b).]
The language in N.J.S.A. 9:6-8.21(c)(4) concerning failure "to
exercise a minimum degree of care" has been interpreted by our
Supreme
Court
as
referring
to
"conduct
that
is
grossly
or
wantonly negligent, but not necessarily intentional" and as the
"reckless
Children
disregard
&
Families
for
v.
the
safety
T.B.,
207
of
N.J.
others."
294,
Dep't
305-06
of
(2011)
(quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-79
(1999)); see also N.J. Div. of Youth & Family Servs. v. S.N.W.,
428 N.J. Super. 247, 254-56 (App. Div. 2012).
Such conduct can
include failure to take a "cautionary act."
T.B., supra, 207
N.J. at 306-07.
abuse or neglect.
Simple negligence, however, does not qualify as
Ibid.
There is no requirement that the parent actually anticipate
that harm will result from the conduct at issue.
Conduct is considered willful or wanton
if done with the knowledge that injury is
likely
to,
or
probably
will,
result.
McLaughlin v. Rova Farms, Inc., 56 N.J. 288,
305
(1970).
Because
risks
that
are
recklessly
incurred
are
not
considered
unforeseen perils or accidents in the eyes
of the law, actions taken with reckless
disregard for the consequences also may be
wanton or willful. Ibid.; Egan v. Erie
Railroad Co., 29 N.J. 243, 254-55 (1959).
So long as the act or omission that causes
injury is done intentionally, whether the
actor
actually
recognizes
the
highly
dangerous
character
of
her
conduct
is
17
A-4460-12T2
irrelevant.
See McLaughlin, supra, 56 N.J.
at 305.
Knowledge will be imputed to the
actor.
As our previous cases have recognized,
the difference between merely negligent
conduct and wanton and willful misconduct
cannot
be
described
with
mathematical
precision.
Ibid.
"Like
many
legal
characterizations,
willful misconduct is
not immutably defined but takes its meaning
from the context and purpose of its use."
Fielder v. Stonack, 141 N.J. 101, 124
(1995). The label turns on an evaluation of
the seriousness of the actor's misconduct.
McLaughlin, supra, 56 N.J. at 306. Although
it is clear that the phrase implies more
than simple negligence, it can apply to
situations ranging from "slight inadvertence
to malicious purpose to inflict injury."
Id. at 305; Krauth v. Israel Geller and
Buckingham Homes, Inc., 31 N.J. 270, 277
(1960) (stating wantonness is an advanced
degree of negligent misconduct).
Essentially, the concept of willful and
wanton misconduct implies that a person has
acted with reckless disregard for the safety
of others. Fielder, supra, 141 N.J. at 123;
McLaughlin, supra, 56 N.J. at 305. Where an
ordinary reasonable person would understand
that a situation poses dangerous risks and
acts without regard for the potentially
serious consequences, the law holds him
responsible for the injuries he causes.
Ibid.
[G.S., supra, 157 N.J. at 178-79.]
B.
We
first
address
the
issue
of
whether
the
trial
judge
improperly admitted and relied upon hearsay evidence in reaching
her decision.
18
A-4460-12T2
N.J.S.A. 9:6-8.46(a)(3) permits the use of Division records
at a fact-finding hearing, despite the hearsay nature of such
records.
See also R. 5:12-4(d) (permitting the Division to
submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d),
reports
by
staff
personnel).
However,
we
have
limited
admissibility in this context to statements in such records that
are prepared contemporaneously and are premised on the writer's
first-hand knowledge.
Div. of Youth & Family Servs. v. M.C.
III, 405 N.J. Super. 24, 33 (App. Div. 2008), rev'd on other
grounds, 201 N.J. 328 (2010); N.J. Div. of Youth & Family Servs.
v.
I.Y.A.,
400
N.J.
Super.
77,
90
(App.
Div.
2008);
In
re
Guardianship of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969)
(reaching
the
same
rights context).
recognition
qualified
that
conclusion
in
a
termination
of
parental
Our reason for doing so is based upon a
"[r]eports
personnel
of
a
of
this
state
type,
agency
prepared
charged
by
the
with
the
responsibility for overseeing the welfare of children in the
State, supply a reasonably high degree of reliability as to the
accuracy of the facts contained therein."
In re Guardianship of
Cope, supra, 106 N.J. Super. at 344.
We agree with Jane that the two screening summaries, P-1
and P-2 in evidence, contained hearsay statements by the police
officer that were not admissible under N.J.S.A. 9:6-8.46(a)(3)
19
A-4460-12T2
and R. 5:12-4(d).
They reported, respectively, the call from
the police department advising the Division that there was an
issue with respect to Lisa and a telephone call from someone in
the Division's local office, who was requesting that abandonment
be
included
in
the
charges
against
Jane
and
Ron,
P-3
in
and
who
repeated the statements by the police officer.
However,
reflects
spoke
the
investigation
contemporaneous
with
routinely
Jane
and
relied
reports
Anne.
upon
at
summary,
prepared
That
is
by
the
fact-finding
the
type
evidence,
workers
of
who
document
hearings.
We
are
satisfied from our review of the record that competent evidence
from that document was relied upon by the judge in making her
findings
of
fact.
We
are
further
satisfied
that
any
consideration the judge may have given to statements in the two
screening summaries was harmless.
C.
We
now
turn
to
Jane's
arguments
on
the
merits
of
the
import[s]
any
judge's findings with respect to abandonment and neglect.
As
described
conduct
on
purpose
to
the
above,
part
forego
of
all
"abandonment
the
parent
parental
.
which
duties
.
.
evinces
and
a
settled
relinquish
all
parental claims to the child," Lavigne, supra, 11 N.J. at 480,
and "a willful surrender or intentional abdication of parental
20
A-4460-12T2
rights
or
duties,"
K.L.F.,
supra,
129
N.J.
at
39.
Notwithstanding the deference we owe the trial judge, we are
unable to find sufficient support in the record for her finding
of
abandonment.
While
there
is
a
certain
overlap
in
the
language used for the two concepts, abandonment and neglect, the
former requires a level of intent and longevity not found in
this
record.
Consequently,
we
reverse
the
finding
of
abandonment.
With
respect
result.
As
to
neglect,
explained
however,
above,
for
we
reach
present
a
different
purposes,
neglect
includes "reckless disregard for the safety of others."
supra, 207 N.J. at 305-06.
T.B.,
"So long as the act or omission that
causes injury is done intentionally, whether the actor actually
recognizes
the
irrelevant."
The
highly
dangerous
character
of
her
conduct
is
G.S., supra, 157 N.J. at 178-79.
judge's
findings
of
fact,
including
her
characterization of Anne as an inadequate caregiver, find ample
support in the record.
The judge was not required to believe
Jane's and Ron's testimony, and we note that neither defendant
offered testimony from Anne.
because
of
the
Division's
Although no harm came to Lisa
prompt
intervention,
there
was
significant potential for harm in light of Anne's precarious
financial
situation
and
the
incarceration
21
of
both
of
Lisa's
A-4460-12T2
parents
following
their
criminal
activity.
"[A]n
ordinary
reasonable person would understand that [such] a situation poses
dangerous
risks,"
yet
Jane
"act[ed]
potentially serious consequences."
without
regard
for
the
Id. at 179.
We also reject Jane's assertion that the judge erred in
relying, in part, on the immunization issue.
specific
allegation
of
medical
neglect,
While there was no
the
immunization
evidence supported the Division's overall position that Lisa's
position was precarious at best at the time she was left with
someone who was not able to take proper care of her.
For
the
abandonment
reasons
and
affirm
stated,
the
we
finding
reverse
that
the
Jane
finding
neglected
of
Lisa
within the meaning of N.J.S.A. 9:6-8.21(c)(4).
Affirmed in part, reversed in part.
22
A-4460-12T2