RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1004-18T1

NEW JERSEY DIVISION 

OF CHILD PROTECTION 

AND PERMANENCY,

Plaintiff-Respondent,

v.

S.M.,

Defendant-Appellant,

and

A.A.,

Defendant.

_____________________________

IN THE MATTER OF THE 

GUARDIANSHIP OF K.Q.,

A.Q., and M.Q., 

Minors.

_____________________________

Submitted September 16, 2019 – Decided

Before Judges Rothstadt and Moynihan.

NOT FOR PUBLICATION WITHOUT THE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.

October 23, 2019
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A-1004-18T1

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Middlesex County, 

Docket No. FN-12-0122-16.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Robyn A. Veasey, Deputy Public Defender, 

of counsel; Phuong Vinh Dao, Designated Counsel, on 

the briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Jane C. Schuster, Assistant Attorney 

General, of counsel; Alicia Y. Bergman, Deputy 

Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minors (Melissa R. Vance, Assistant 

Deputy Public Defender, on the brief).

PER CURIAM

Defendant S.M. appeals from a Family Part order entered after a three-day 

fact-finding hearing, N.J.S.A. 9:6-8.44, determining the Division of Child 

Protection and Permanency (Division) proved she abused or neglected her three 

children of whom she had sole custody: K.Q. (Kenny), A.Q. (Ava) and M.Q. 

(Maya), born November 1999, December 2001 and July 2004, respectively. 1 

Defendant argues the judge's findings of abuse and neglect were erroneous and 

 

1

 To protect their privacy and the confidentiality of these proceedings, and for 

clarity, we use the pseudonyms utilized by the Division in its merits brief—the 

only brief to use pseudonyms—to refer to the parents and their children. R.

1:38-3(d)(12).
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A-1004-18T1

not supported by the evidence and the judge "engaged in impermissible gap 

filling and took judicial notice of harm in reaching" his findings. We disagree 

and affirm.

Under Title Nine, an abused or neglected child is:

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 . . . 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, 

including the infliction of excessive corporal 

punishment; or by any other acts of a similarly serious 

nature requiring the aid of the court[.]

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

The Division has the burden to "prove that the child is 'abused or 

neglected' by a preponderance of the evidence, and only through the admission 

of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family 

Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). In 

making a finding of abuse or neglect, a court must consider "the totality of the 

circumstances, since '[i]n child abuse and neglect cases the elements of proof 

are synergistically related. Each proven act of neglect has some effect on the 

[child]. One act may be "substantial" or the sum of many acts may be 

"substantial."'" N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 
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320, 329-30 (App. Div. 2011) (alterations in original) (quoting Dep't of Children 

& Families, Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 

(App. Div. 2010)). Ultimately, the question is whether the parent failed to 

exercise "a minimum degree of care[,]" such that the child was exposed to "a 

substantial risk." Dep't of Children & Families, Div. of Youth & Family Servs. 

v. T.B., 207 N.J. 294, 303 (2011). 

Under our well-settled standard of review, we are bound by the Family 

Part's factual findings if supported by sufficient credible evidence. N.J. Div. of 

Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577-78 (App. Div. 2010). 

Although we accord particular deference to the family court's factfinding 

because of the court's "special expertise" in family matters, its "feel of the case," 

and its opportunity to assess credibility based on witnesses' demeanor, N.J. Div. 

of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of 

Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)); Cesare v. Cesare, 

154 N.J. 394, 412 (1998), the finding that conduct constitutes gross negligence, 

as opposed to simple negligence, is a "conclusion of law to which we are not 

required to defer," T.B., 207 N.J. at 308 (quoting N.J. Div. of Youth & Family 

Servs. v. A.R., 419 N.J. Super. 538, 543 (App. Div. 2011)).
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Guided by these tenets, we conclude the record supports the judge's 

findings that 

the issue before the [c]ourt is neither a single act [n]or 

omission by [defendant] nor is it alleged by the 

defense that the acts or omissions were simply 

inattentive nor mere negligence. To the contrary, any 

and all actions taken by [defendant] or actions not 

taken by [defendant] regarding the supervision of the 

children were repetitive, intentional and purposeful.

The [c]ourt finds by a preponderance of the 

credible evidence and documentary evidence that 

[defendant] intentionally and knowingly 1) did not 

provide her three children ages [eleven] through 

[sixteen] with a key to the home; 2) did not allow 

them entry into the home and in fact precluded their 

access unless she was present; 3) did not give any of 

the children cell phones; 4) did not give any of the 

children money; 5) knew that without cell phone[s] 

the children could not freely communicate with each 

other or with her and were dependent upon others; 6) 

knew the final restraining order was obtained which 

prevented the father who lived in town from having 

any unsupervised with the child due to the father's 

previous threats to kill the children; 7) that . . . she had 

expressed concerns and fear that the children may try 

to reach out to their father who lived in close 

proximity; 8) was fully aware that [Kenny] had a 

history of mental health issues due to threats of 

hurting himself or others and was hospitalized the 

previous May which required mental health treatment 

including counseling and medication.

Defendant admits in her merits brief that she did not allow her children 

access to their residence unless she was present; as such the children were not 
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provided keys. She also acknowledges there is an active final restraining order 

against the children's father, A.A. (Albert), who is prohibited from having 

unsupervised contact with the children; in obtaining the restraining order, 

defendant had alleged Albert threatened to kill himself and all three children. 

Contrary to defendant's contention that she "had a specific after[-]school 

schedule for her children, the evidence—particularly the testimony of Ava, 

whom the judge found to be a reliable witness and Kenny, whom the court found 

to be largely credible—supported the judge's determination that no real plan for 

the two younger children existed. Although the children frequented the library 

and a pizzeria after school and participated in activities, and Maya often went to 

a friend's house, there was no set schedule. Indeed, the judge looked askance at 

defendant's averment when she was "unable to provide the names of any of these 

children's friends where her children were supposedly at." At times, Ava took 

Maya with her to her babysitting job and picked Maya up from her friend's house 

when defendant was unable to retrieve Maya prior to the friend's family's dinner 

hour. On other occasions, the children would have to leave the library when it 

closed early, forcing them to wait outside until defendant got home. As the 

judge found in his amplified decision, R. 2:5-1(b), defendant "took no action to 
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make legitimate after[-]school arrangements or to confirm that the children were 

at their designated locations." The judge continued, 

these three children were on their own, sometimes at 

friends' houses, sometimes not. Sometimes at the 

library, sometimes not. Sometimes at the pizzeria, 

sometimes not. But in any event, these children were 

completely left to their own devices to care for 

themselves and others. There was no after[-]school 

plan. And the children were limited in their ability to 

speak to their mother. Their mother was limited in her 

ability to speak to the children. And there was 

absolutely no plan in the event of an emergency.

Testimony by Kenny and Ava supported that the children did not always 

have ready access to phones to contact defendant. Moreover, their testimony 

proved they were not always able to reach defendant on her cell phone because 

she did not answer, could not talk at work, or had a full voicemail inbox. Kenny 

also testified there was no emergency plan. And Ava said defendant told her to 

memorize a friend's number in case of emergency or to contact a neighbor to 

whom defendant had introduced Ava. But Ava had no way of making an 

emergent call if a phone was not available, and had no other option if the friend 

or neighbor was unavailable. 

The children's testimony also refutes defendant's argument that the 

occasions when the children had to wait for her were rare. They said that on 

more than one occasion they had to wait for defendant to arrive home, as late as 
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9:00 p.m. and 10:00 p.m., and had to rely on others for food and shelter. They 

even resorted to surreptitiously leaving the residence door unlocked so they 

could access their home.

We fully recognize that not every parent can afford to give a child, much 

less three children, a cell phone. See N.J. Div. of Child Prot. & Permanency v. 

L.W., 435 N.J. Super. 189, 195 (App. Div. 2014). Likewise, we are not 

considering that the children were left without money because there is an 

insufficient record to determine if defendant had the financial ability to provide 

same. But allowing that "[a]t the very least, a minimum degree of care means 

that a parent's conduct must be 'grossly negligent or reckless'" and "a parent's 

negligent conduct is not sufficient to justify a finding of abuse or neglect under 

[Title Nine]," N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 180 

(2014) (quoting T.B., 207 N.J. at 306), defendant's actions here were more than 

"merely negligent." T.B., 207 N.J. at 307.

We agree with the Family Part judge's determination that the "children 

were left in a constant state of uncertainty of what they were going to do after 

school, where they would go, what time they would be allowed back home as 

[defendant] was inconsistent in the time that she returned back to town and was 

on many occasions unreachable." While we are sympathetic to the dilemma 
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single, working mothers face, defendant's policy of denying her children access 

to their home without an established and consistent plan for their shelter, 

sustenance and care left them with no reliable means to communicate with her, 

no safe place at which she knew they would be, and, at times, without food or, 

literally, a roof over their heads. 

As the judge found, defendant's decision necessitated the children go to 

their father, in contravention of the restraining order, for necessities such as 

money or bathroom facilities even though "[t]he trial testimony established that 

[defendant] was afraid that the children would contact their father. And despite 

her stated concern and despite the restraining order, she prevented the children 

from going to their own home[.]" 

The judge also found Kenny was under an 8:30 p.m. curfew which 

defendant was ordered to enforce, and that defendant's "actions caused [Kenny] 

to violate his curfew as she did not pick him up until after 8:30 [p.m.] . . . leaving 

him subject to a violation of probation and penalties." 

The judge also noted defendant knew Kenny was "obtaining mental health 

counseling and medication due to his threat of hurting himself and others." The 

judge decried: defendant's failure to provide supervision to Kenny; leaving him 
10 A-1004-18T1

without a way of communicating with her in the event of an emergency; and her 

nescience of his whereabouts. 

The judge acknowledged not every case of a child's inability to enter her 

or his home or to communicate with a parent would rise to the level of abuse or 

neglect. But the judge found defendant's actions were not inadvertent, but 

"intentional choices" that were not "isolated, but rather were a way of life for 

these children." 

Deferring to the Family Part judge's findings of fact that are wellsupported by the record evidence, we agree that the Division proved by a 

preponderance of the evidence that defendant's gross failure to properly 

supervise her children exposed each of them to imminent danger and a 

substantial risk of harm under the totality of the circumstances, rendering the 

children abused or neglected. See N.J. Dep't of Children & Families, Div. of 

Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013).

To the extent we have not addressed any of defendant's remaining 

arguments, we conclude they are without sufficient merit to warrant discussion 

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.