NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 is limited. R.1:36-3.

PER CURIAM.

T.F.,1 the mother of an infant child, appeals from a September 16, 2013 order finding that she had abused or neglected her child by drinking alcohol, not taking her prescribed medications, and leaving her child unattended when she stepped outside of her home for approximately fifteen minutes and argued with workers from the Division of Child Protection and Permanency (Division). We reverse because the Division did not establish that T.F.'s actions or inactions placed her child at substantial risk of harm.

I.

T.F. is the mother of Z.J., who was born on August 15, 2012. O.J. is Z.J.'s father. The Division has been involved with the family since the birth of Z.J. Initially, the Division monitored the family due to concerns regarding T.F.'s mental health.

In November 2012, the Division received a report that T.F. was with Z.J. in a Target store and T.F. appeared to be intoxicated. O.J. was also at the store and he was also reported to be under the influence of alcohol or other substances. The Division executed an emergent removal of Z.J. The Family Part initially granted the Division temporary custody of Z.J., but thereafter the Division did not substantiate the allegation of abuse or neglect against T.F., and Z.J. was returned to T.F.'s custody. The Division did, however, continue to monitor the care of Z.J.

In May 2013, there was a second incident that ultimately gave rise to the finding of abuse or neglect. On May 16, 2013, the Division received a report from the Irvington Police Department. A police officer responded to a report that T.F. was seen running on a street while carrying Z.J. and asking for help. The officer reported that when he met with T.F., she "reek[ed] of alcohol," and was not cooperative. The officer also observed that T.F. had bruises on her arms, swelling on her cheek, and scratches on her neck. According to the officer, T.F. stated that her injuries were caused by O.J. and O.J. was charged with simple assault and domestic violence.

The Division followed up on the report from the police by sending investigators to speak with T.F. When the investigators arrived at T.F.'s apartment complex, they observed her outside on the telephone. T.F. eventually allowed the investigators into her apartment, and Z.J. was observed to be in a playpen inside the apartment. One of the investigators detected a "strong odor of alcohol coming from [T.F.]" T.F. denied that she had been in a domestic violence incident with O.J. that day. T.F. also reported that she had only had one beer that day, that she was on three different medications, but she was not taking all of her medications as prescribed.

According to one of the Division investigators, T.F. then ordered the investigators to leave her home. T.F. followed the investigators outside the apartment where she yelled at the investigators and also yelled and cursed at a neighbor. The investigator estimated that T.F. was outside of the apartment for approximately fifteen minutes, while Z.J. was inside the apartment in a playpen. The Division decided to remove Z.J. from T.F.'s care, and the police were summoned to assist in that removal.

Several days after the emergent removal, the Division filed an action under Title 9, N.J.S.A. 9:6-8.21 to-8.73, seeking custody, care and supervision of Z.J. Following a preliminary hearing, the Family Part entered an order granting the Division temporary custody of Z.J. and directing T.F. and O.J. to show cause for the return of custody at a future hearing. The court also ordered T.F. to comply with substance abuse and mental health treatment, to undergo a psychiatric evaluation, and to be screened for drug and alcohol use.

A fact-finding hearing was conducted on September 16, 2013. Two witnesses gave testimony. The Division called one of the investigators who had met with T.F. on May 16, 2013. T.F. also testified. The Division investigator reviewed the Division's history with T.F. and Z.J. He then recounted what he had learned from the police about the incident on May 16, 2013, and his interactions with T.F. on that same day.

T.F. testified that on May 16, 2013, she had an altercation with a woman whom she met on the street, which turned physical and the woman had scratched T.F. According to T.F., she and O.J. had then gotten into an argument and she had left the apartment with Z.J. T.F. also explained that when the police arrived, she did not tell them much because she was upset and crying.

With regard to her interactions with the Division investigators, T.F. testified that she was outside the apartment speaking on her phone when they arrived. Z.J. was inside the apartment in a playpen. T.F. spoke with the investigators, but then became upset and asked them to leave. She acknowledged that she followed the investigators outside the apartment, but explained that Z.J. was in his playpen approximately "[t]wenty-one steps" away from her. On cross-examination, T.F. conceded that she was not supposed to drink alcohol while taking her medications.

The Family Part judge found T.F.'s testimony "absolutely incredible." The judge then made limited fact findings, which in total, consisted of findings that T.F. had been drinking, she had not taken her medications, and she had stepped outside her apartment, leaving her child inside. The judge then found those behaviors to be "very risky behavior[s.]" The judge thereafter entered an order finding that T.F. had abused or neglected Z.J. The order included additional fact findings:

In 2014 and 2015, the Family Part conducted a series of compliance reviews. During that period of time, T.F. received substance abuse treatment and Z.J. was returned to her custody. Ultimately, the litigation was terminated in 2015 because Z.J. had been returned to T.F.'s custody and T.F. was found to be compliant with her substance abuse treatment.

II.

T.F. now appeals the September 16, 2013 order finding that she abused or neglected Z.J. She argues that there was insufficient evidence to support a conclusion that she abused or neglected Z.J. We agree and reverse.

Our scope of review of a family court's findings of fact in an abuse or neglect case is limited. Family courts have special expertise with issues involving the welfare of children; therefore, we accord deference to family courts' fact-finding and credibility determinations. N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011). Nevertheless, "[w]here the issue to be decided is an `alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J.Super. 172, 188-89 (App. Div. 1993)). Thus, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Parish v. Parish, 412 N.J.Super. 39, 47 (App. Div. 2010) (alteration in original) (quoting Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).

The adjudication of abuse or neglect is governed by Title 9, which is designed to protect children "who have had serious injury inflicted upon them by other than accidental means." G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999) (quoting N.J.S.A. 9:6-8.8); see also N.J.S.A. 9:6-8.21 to-8.73 (governing protection of abused and neglected children). An "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c)(4) as:

Whether a parent or guardian has engaged in acts of abuse or neglect is considered on a case-by-case basis and must be "analyzed in light of the dangers and risks associated with the situation." N.J. Dep't of Children & Families v. R.R., 436 N.J.Super. 53, 58 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at 181-82). Title 9 prohibits conduct that is "grossly or wantonly negligent, but not necessarily intentional." N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J.Super. 373, 381 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at 178). The standard "implies that a person has acted with reckless disregard for the safety of others." N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J.Super. 142, 153 (App. Div. 2014) (quoting G.S., supra, 157 N.J. at 179).

A court considering whether a parent or guardian's conduct meets the statutory standard must analyze all facts and base its determination on "the totality of the circumstances[.]" N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J.Super. 320, 329 (App. Div. 2011). The court must then decide whether the parent or guardian exercised a minimum degree of care under the circumstances. N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J.Super. 61, 69 (App. Div. 2014).

A finding of abuse or neglect must be based on a preponderance of the evidence and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b)(2); N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). "Under the preponderance standard, `[the Division] must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met.'" Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (quoting Biunno, Current N.J. Rules of Evidence, comment 5a on N.J.R.E. 101(b)(1) (2005)). Specifically, the Division must "`demonstrate by a preponderance of the competent, material and relevant evidence the probability of present or future harm' to the minor child." S.I., supra, 437 N.J. Super. at 153 (quoting N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J.Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005)).

Here, the Division failed to establish by a preponderance of the evidence that Z.J. was at substantial risk of harm because of the alleged actions or inactions of T.F. The focus of the fact-finding hearing was on the events of May 16, 2013. While the Division presented documents concerning earlier events, the Family Part judge made no findings concerning those events.

With regard to May 16, 2013, the Division presented testimony and documents related to T.F. drinking alcohol, not taking her medication, and leaving Z.J. unattended. The Division investigator testified that he suspected that T.F. was under the influence of alcohol. The Division, however, failed to present any evidence establishing that T.F. was in fact under the influence of alcohol to a point where she was impaired in her ability to care for Z.J.

The Division also presented testimony from its investigator that T.F. was failing to take her prescribed medications. Nevertheless, the Division failed to present any evidence of what impairment would result from such a failure to take the medications.

Finally, the Division presented evidence that T.F. was outside of the apartment on two occasions while Z.J. was inside the apartment. The first occasion was when the investigators first arrived and T.F. was speaking on her phone outside the apartment. There was no evidence presented, however, that during that time Z.J. was at any substantial risk of harm. Indeed, once the investigators went into the apartment, Z.J. was found to be in a playpen and there was no testimony that T.F. could not respond quickly to Z.J. if the need had arisen. The second occasion was when T.F. followed the investigators outside the apartment and argued with them. Here again, there was no evidence that T.F. was separated by any substantial distance from Z.J such that Z.J. was at risk of harm.

The critical point here is that the Division failed to carry its burden of proof. While there were suggestions of reasons for concern, there was insufficient evidence to establish that T.F. put Z.J. at substantial risk of harm. In short, on the record presented in this appeal, we cannot sustain the finding of abuse or neglect.

Reversed.