NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant, E.B., appeals from an order finding he abused or neglected his two children, A.B. and K.B., perfected for appeal by a December 15, 2014 order terminating the litigation. We reverse.
The Division of Child Protection and Permanency (DCPP) initiated an emergency removal of A.B. and K.B. after learning the children were living with their paternal grandmother following their parents' arrest. On August 13, 2012, the children's aunt informed DCPP that defendant and his wife, D.L., were arrested the night of August 9, 2012.1 DCPP sent an investigator to investigate the case. The investigator interviewed A.B., who explained she woke up in the middle of the night on August 9, 2012, and realized her parents were not in their beds. She comforted her younger sibling who was crying and then they went back to sleep. At that time, the family was living with P.P., a family friend of D.L.
The investigator also interviewed defendant. Defendant admitted he and D.L. left the home the night of their arrest, but claimed he left the children with P.P. Defendant alleged he woke P.P. up in the middle of the night to ask him to watch the children. Defendant allegedly left the home to speak with an individual who owed him forty dollars. Defendant explained he drove P.P.'s rental car to the individual's house.2 After the investigation, DCPP substantiated defendant for neglect, inadequate supervision, and substantial risk of physical injury. The verified amended complaint alleged defendant abused or neglected his children under N.J.S.A. 9:6-8.21. A fact-finding hearing was conducted on November 28, 2012 and January 14, 2013.
P.P. testified defendant and his family lived in his home in August 2012. P.P. knew the family through D.L., who was the daughter of P.P.'s deceased friend. The family lived in P.P.'s home for approximately four months. The home had three bedrooms. The children shared an upstairs bedroom across the hall from their parents' bedroom. P.P's bedroom was located on the first floor. On five to seven prior occasions, defendant asked P.P. to watch the children. The children had free roam of the house, including use of the downstairs and kitchen.
P.P. explained on August 8, 2012, he fell asleep on his couch at approximately 9:30 p.m. At 11:30 p.m., P.P. awoke and moved into his bedroom. He woke up the next morning at 8:00 a.m. P.P. denied defendant ever woke him up in the middle of the night or asked him to watch the children that night. The children came downstairs on the morning of August 9, 2012, for breakfast, and A.B. asked P.P. if he saw her parents because they were not in their room. P.P. did not know where her parents were, but told her they "maybe [] went to get, you know, coffee and cigarettes or something." The children stayed with P.P. until he arranged for them to go with a family member around mid-morning.
After the fact-finding hearings, the trial judge found the investigator and P.P. credible and repeated the pertinent facts from their testimony. The trial judge found defendant never asked P.P. to watch the children on August 9, 2012. In making her decision, the trial judge distinguished the facts in the current case from the facts in Department of Children and Families v. T.B., 207 N.J. 294 (2011). In T.B., the Supreme Court found it was not abuse or neglect when a parent left a child alone at home believing the grandmother was present when in fact she had unexpectedly left the property. Id. at 309. In her decision, the trial judge stated the grandmother in T.B. was a regular caregiver and family member to the child, while P.P. was unrelated to the children and only watched them occasionally. She further concluded "unlike [the defendant] in the T.B. case, [defendant in this case] didn't have any idea who was watching the children because he had not asked anybody to watch his children, and that, to me, is a very big distinction in this particular case."
At the hearing's close, the trial judge concluded defendant abused or neglected his children under N.J.S.A. 9:6-8.21(c) because his failure to perform the cautionary act of asking somebody to watch the children rose to a level of gross negligence and clear recklessness. The related January 17, 2013 order stated defendant "exercised reckless disregard while the children were in his care. [Defendant] failed to provide adequate supervision for the children while he left home for several hours."
DCPP subsequently sought to terminate defendant's parental rights, compelling the dismissal of the Title 9 litigation. However, the termination proceedings resulted in reunification, and the abuse or neglect issues were converted back to the Title 9 docket sometime before an August 4, 2014 hearing. The Title 9 matter was officially terminated on December 15, 2014. Defendant filed this appeal on February 2, 2015.
The trial judge's determination of whether a defendant's conduct is grossly negligent, constituting abuse or neglect under N.J.S.A. 9:6-8.21(c), is a question of law, which we review de novo. See N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J.Super. 538, 542-43 (App. Div. 2011).
N.J.S.A. 9:6-8.21(c) states:
"Abused or neglected child" means . . . (4). . . 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 parent or guardian, as herein defined, 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, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court. . . .
[(Emphasis added).]
The Supreme Court concluded a "minimum degree of care"
denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.
[G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999).]
The Supreme Court later explained the wanton and willful negligence standard lacked imprecision and clarified a "`failure. . . to exercise a minimum degree of care' at least requires grossly negligent or reckless conduct." T.B., supra, 207 N.J. at 306 (quoting G.S., supra, 157 N.J. at 177). In determining where an individual's conduct falls on the continuum between negligent and grossly negligent or reckless requires an evaluation of the "context based on the risks posed by the situation." Id. at 309. A determination that a child has been abused or neglected must be based on a preponderance of the evidence. N.J.S.A. 9:6-8.46(b)(1).
Defendant argues on appeal the trial court erred by finding he abused or neglected his children when he left them unsupervised on the night of August 9, 2012. He contends he did not leave his children alone but left them with P.P.
Defendant relies heavily on T.B. to bolster the position that his actions did not rise to the level required to find he abused or neglected his children. In T.B., the defendant lived in a home with her four-year-old son, mother, and step-father. T.B., supra, 207 N.J. at 296. The mother and step-father lived upstairs, and the defendant and her son lived downstairs; however, the entire house was accessible to the son. Ibid. The mother and step-father regularly assisted in caring for the son. Ibid. One Sunday evening, the defendant returned from a trip with her son. Id. at 297. The defendant observed the mother's car in the driveway and assumed she was in the house sleeping because she had been ill and was always in bed early on Sunday night to prepare for work on Monday. Ibid. Relying on this assumption, the defendant put her son to bed and left the home to eat dinner with a friend. Ibid. However, the mother was not home because she took an impromptu trip to New York with the step-father. Ibid. The son woke up, discovered he was alone, and crossed "a 25 mile[-]an[-]hour residential street with constant traffic" to alert a neighbor he could not find the defendant. Ibid. (alterations in original).
The case was referred to DCPP and a neglect allegation against the defendant was substantiated based on inadequate supervision, N.J.S.A. 9:6-8.21(c)(4)(b). Id. at 298-99. After the finding was affirmed by the DCPP Director and the Appellate Division, the Supreme Court granted certification. Id. at 299-300; Dep't of Children & Families v. T.B., 204 N.J. 40 (2010). The Supreme Court reversed the finding. T.B., supra, 207 N.J. at 296. It concluded the defendant was negligent but not grossly negligent or reckless. Id. at 309. The Court stated "[t]his is not a situation in which she left her four-year-old son at home alone knowing there was no adult supervision." Ibid. The Court continued it was out of the ordinary for the mother not to be home on Sunday night, and while it was negligent for the defendant not to call upstairs to confirm the mother's presence, the defendant's "conduct did not constitute a failure to `exercise a minimum degree of care.'" Id. at 310.
After reviewing the legal decision de novo, we hold the facts as found by the trial judge, while not identical to those in T.B., are very similar, and that defendant's conduct here cannot support a finding of reckless or grossly negligent conduct.
Because the children were not harmed, the current case deals within the narrow scope of N.J.S.A. 9:6-8.21(c)(4), requiring a finding of abuse or neglect only if the child "is in imminent danger of becoming impaired as the result of the failure of his parent or guardian." The child in T.B. was subject to the possibility of far greater harm than the children in this case. Unlike T.B., in this case, there was an adult in the home with the children at all times. If an emergency did arise while the children's parents were away, the children would not have to cross a busy residential highway to seek help, they could have walked downstairs and found P.P. This is what actually happened in the morning.
The trial judge stated in her oral opinion the biggest distinction between T.B. and the current case was "unlike [the defendant] in the T.B. case, [defendant in this case] didn't have any idea who was watching the children because he had not asked anybody to watch his children." This statement is incorrect. The defendant in T.B. also never asked anyone to watch her child because she assumed her mother was home. This assumption was later proved false. Defendant in this case negligently acted on the same assumption, that P.P. was in the home with his children when he took P.P.'s car in the middle of the night from the residence. But unlike in T.B., defendant's assumption was correct. As here, the children did seek P.P's assistance, and he acted to care for them. It would be difficult to find defendant placed his children in "imminent danger" when there is no dispute a capable adult was in the home even if the defendant did not verify his presence or ask him to watch the children.
For the above reasons, we reverse the January 17, 2013 order finding defendant abused or neglected his children.
Reversed.
