RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0642-15T3

NEW JERSEY DIVISION OF CHILD 

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.D.,

Defendant-Appellant,

and

S.R. and J.M.,

Defendants.

__________________________________

IN THE MATTER OF 

A.D.-R and N.R., minors.

__________________________________

Submitted February 9, 2017 – Decided

Before Judges Lihotz and O'Connor.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Burlington 

County, Docket No. FN-03-200-15.

Joseph P. Grimes, attorney for appellant.

Christopher S. Porrino, Attorney General, 

attorney for respondent (Melissa Dutton 

NOT FOR PUBLICATION WITHOUT THE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.

March 15, 2017
2 A-0642-15T3

Schaffer, Assistant Attorney General, of 

counsel; James R. Griffin, Jr., Deputy 

Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law 

Guardian, attorney for minors (Todd Wilson, 

Designated Counsel, on the brief).

PER CURIAM

In this Title 9 matter filed by plaintiff, the Division of 

Child Protection and Permanency (the Division), defendant A.D. 

appeals from an order, filed on June 17, 2015. Following a factfinding hearing, the judge concluded A.D.'s conduct rose to neglect

as defined by N.J.S.A. 9:6-8.21(c)(1), resulting in the death of

her four-month old infant. We affirm.

The facts are undisputed. A.D. gave birth to twins, who 

arrived five weeks early. A.D. and other family members resided

in the twins' paternal grandmother's home. On January 22, 2015, 

the twins were cared for by A.D. Sometime after 4:00 a.m., the 

twins' father awoke to use the bathroom. On his way back to bed, 

he checked the twins and observed A.D. asleep on the couch and one 

infant laying face-down on A.D.'s chest. When he lifted the child 

to place her in a crib, her body was unresponsive. He initiated 

mouth-to-mouth resuscitation and emergency personnel were called. 

The infant could not be revived. 

Responding police officers recorded an odor of alcohol 

emanating from A.D.'s breath. A.D. was taken to the hospital and 
3 A-0642-15T3

a blood test was conducted, the results of which were not 

introduced. 

The Burlington County Medical Examiner, Ian Hood, M.D.,

testified as an expert on behalf of the Division, during the factfinding hearing. He stated the infant had been dead for a "few 

hours" when she was discovered, which is why resuscitation efforts 

"were hopeless." The infant's death did not result because she 

was premature; she was determined to be "robust, well-nourished 

and apparently well cared for[,]" with no abnormality, trauma, or 

illness discovered. The cause of death was considered a sudden 

unexplained death of a co-sleeping infant, which resulted from the 

lack of findings of any other cause of death. Dr. Hood stated, 

"the incidence of sudden unexplained death is anywhere from 10 to 

20 times more common when an infant is co-sleeping with somebody 

else," distinguishing those deaths "from regular SIDS where a baby 

dies on its [sic] own . . . ." Although the studies vary on the 

amount of increase, all studies show "a great increase" in the 

incidence of sudden infant death in cases involving co-sleeping. 

This occurs because people move in their sleep, making the likely 

cause of death suffocation or compression. The manner of death 

changes from "natural for [sudden infant death] to undetermined 

because we cannot exclude some kind of accidental overlying or the 

mother's arm going over the child's body while the child was on 
4 A-0642-15T3

her chest." This problem becomes more common when the co-sleeping 

parent is impaired. He understood neonatal units have begun 

instructing parents not to co-sleep and to place the baby on his 

or her back when sleeping. 

Dr. Hood explained he could not state the infant suffocated,

but that cause of death could not be excluded because suffocation

"does not leave findings a pathologist can find at autopsy." One 

sign is discoloration of the brain tissue, which turns "dusky plum 

purple." This was found in his autopsy of the infant; however,

the same condition is observed "in anyone who's had resuscitation 

attempted for nearly an hour," which happened in this case. 

The Division's caseworker, who responded when called by 

police, also testified. In discussing her investigation, she 

recounted her interview with A.D. A.D. had stayed with the twins' 

father's family for several days. The caseworker recalled A.D. 

and her father argued earlier in the day, when he came to the 

twins' father's residence because A.D. had not been home for

several days. The disagreement centered on A.D.'s drinking. 

A.D. remembered consuming alcohol prior to her father's 

visit, in the nature of two "airplane" sized bottles of liquor, 

one of tequila and another of amaretto. She also was drinking 

regularly during the days leading to this event.
5 A-0642-15T3

Following the argument, A.D. went to bed around 6 p.m. and 

woke at 11 p.m. The twins' father retired around 12:30 a.m. and 

asked A.D. to care for the twins because he needed sleep. A.D. 

"remembers being somewhat aggressive with the baby and thinking 

please stop but . . . didn't remember picking the baby up in the 

middle of the night." She also remembered she began drinking 

after the father went to sleep and drank more than she had the 

prior nights. When she awoke the next morning, she saw a halfempty bag from a box of white wine next to the couch. A.D. 

admitted when the father cared for the children, she would "binge 

drink to the point that she was having some issues remembering 

what she was doing." A.D. further reported "she [wa]s a different 

person when she drinks," acting "more aggressive." Finally, A.D.

admitted taking Klonopin1 pills prescribed for the twins' father, 

but denied she did so on the night she was caring for the infants. 

The infants' father was also interviewed and testified during 

the hearing. He arrived home from school at 2:30 p.m. and 

"everything seemed fine." He reported, after A.D.'s father left, 

 

1 Klonopin (clonazepam) is a benzodiazepine, used to treat 

certain seizure and panic disorders. The Food and Drug 

Administration cautions "Klonopin can make you sleepy or dizzy and 

can slow your thinking and motor skills[,]" and specifically 

cautions against drinking alcohol while taking Klonopin. Food & 

Drug Administration, Medication Guides, Ref. No. 4028890, 

Klonopin® Tablets (clonazepam) (2016) at 20.
6 A-0642-15T3

she took a nap. A.D. awoke at 9 p.m., at which time she appeared 

to be "clear, alert and oriented." Before he went to sleep, the 

infants' father made bottles for the twins, who were awake and in 

their respective carriers. He heard the twins, "giggling and 

interacting with [A.D.]" as she watched television while lying on 

the couch. When he awoke and found the baby unresponsive, he 

shook A.D., whose eyes looked like she was "smashed." As he 

administered CPR to the baby, he asked A.D. to call 9-1-1; instead 

she texted 9-2-2. 

The twins' father also reported that, during A.D.'s stay, he 

found empty bottles of alcohol, including two empty bottles of 

wine on one day and an empty six-pack of beer the next. He also 

was concerned because he discovered three of his prescribed 

Klonopin pills were missing. The twins' father stated A.D. was 

drinking the nights prior to the incident, because he was 

responsible to care for the twins. His trial testimony that A.D. 

was not drinking the day of the baby's death differed from his 

interview statements the day his child died. 

Without objection, the Division introduced three reports, the 

infant's autopsy report authored by Dr. Hood; the caseworker's 

investigative summary, and the Division's screening summary. A.D. 

did not testify.
7 A-0642-15T3

Following summations, the judge issued his findings and 

conclusions in a bench opinion. He found Dr. Hood's testimony 

"fair," very credible, articulate, and well prepared. The 

Division's caseworker was also found credible, did not embellish 

her testimony, and "tried to be as accurate as possible." Finally, 

as to the infants' father, the judge noted his responses tended 

to "get as much information as he can to the [c]ourt . . . in the 

framework of the question but tended to go beyond the question. 

And so for that his credibility [wa]s not as strong. . . ." 

Evaluating the evidence, the judge found A.D.'s conduct rose 

to gross negligence because she acted with knowledge her conduct 

was likely to result in serious injury to the infant. A.D.'s 

consumption of alcohol while charged with the care of the infant 

and deciding to co-sleep with the baby on the couch resulted in 

the infant's death. A.D. was aware of her binge drinking and its 

effects: she had attended Alcohol Anonymous, related she becomes 

aggressive when she drinks, and frequently blacks out. 

Notwithstanding her agreement to be responsible to care for the 

infants, she began drinking and placed one crying infant, face 

down, atop her as she fell asleep on the couch.2 

 

2 The judge concluded the Division's evidence was insufficient 

to prove the infants' father engaged in conduct causing abuse or 

neglect. 
8 A-0642-15T3

Thereafter, the judge conducted a dispositional hearing, 

ordering services extended to A.D. and the infants' father. 

Ultimately, the case was concluded on September 1, 2015, and A.D. 

filed this appeal. 

Our standard of review on appeal is narrow. 

"[F]indings by the trial judge are considered 

binding on appeal when supported by adequate, 

substantial and credible evidence." N.J. Div. 

of Youth & Family Servs. v. Z.P.R., 351 N.J. 

Super. 427, 433 (App. Div. 2002) (citing Rova 

Farms Resort, Inc. v. Investors Ins. Co. of 

Am., 65 N.J. 474, 484 (1974)). Deference to 

a trial court's supported factual findings is 

warranted because the trial judge "has the 

opportunity to make first-hand credibility 

judgments about the witnesses who appear on 

the stand [and] . . . has a 'feel of the case' 

that can never be realized by a review of the 

cold record." N.J. Div. of Youth & Family 

Servs. v. E.P., 196 N.J. 88, 104 (2008).

[N.J. Div. of Youth & Family Servs. v. S.I., 

437 N.J. Super. 142, 152 (App. Div. 2014).] 

This scope of review is expanded when "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 . . . .'" 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)). On the other hand, a trial judge's legal 

conclusions and the application of those conclusions to the facts 
9 A-0642-15T3

are always subject to our plenary review. S.I., supra, 437 N.J. 

Super. at 152.

The adjudication of abuse or neglect is 

governed by Title 9, which is designed to 

protect children who suffer serious injury 

inflicted by other than accidental means. 

G.S. v. Dep't of Human Servs., 157 N.J. 161, 

171 (1999) (citing 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). 

"The statute in question addresses harm to a 

child[.]" [N.J. Div. of Youth & Family Servs. 

v. ]A.L., 213 N.J. [1,] 8 [(2013)]. 

[Ibid.]

An "abused or neglected child" is defined in N.J.S.A. 9:6-

8.21(c) as

a child less than 18 years of age whose parent 

or guardian, as herein defined, . . . (2) 

creates or allows to be created a substantial 

or ongoing risk of physical injury to such 

child by other than accidental means which 

would be likely to cause death or serious or 

protracted disfigurement, or protracted loss 

or impairment of the function of any bodily 

organ; . . . (4) or 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 . . . in 

providing the child with proper supervision 

or guardianship, by unreasonably inflicting or 

allowing to be inflicted harm, or substantial 

risk thereof, . . . . 

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 
10 A-0642-15T3

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). The 

Division must prove the conduct is "something more than ordinary 

negligence" to prove liability. G.S., supra, 157 N.J. at 178. 

Indeed, "[o]ne act may be substantial or the sum of many acts may 

be substantial" to prove abuse or neglect. N.J. Div. of Youth & 

Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011) 

(citation omitted). 

A court considering whether a parent or guardian's conduct 

meets the statutory standard must analyze all facts, id. at 329, 

and 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). In 

doing so, we recognize "the elements of proof are synergistically 

related." V.T., supra, 423 N.J. Super. at 329 (citation omitted).

In reviewing N.J.S.A. 9:6-8.21(c)(2),

[t]he phrase "accidental means" in this 

provision refers to "the events leading up to 

the injury and not the resulting injury 

itself." G.S. [supra,], 157 N.J. [at] 174 

(citation omitted). "Where an action is 

deliberate, and the actor can or should 

foresee that his conduct is likely to result 

in injury, as a matter of law, that injury is 

caused by 'other than accidental means.'" Id.

at 175 (citations omitted). The parent's 
11 A-0642-15T3

intent is irrelevant. Ibid. (citations 

omitted).

[N.J. Div. of Child Prot. & Permanency v. 

B.O., 438 N.J. Super. 373, 381 (App. Div. 

2014).]

 

In carrying its burden of proof, the Division's proofs must 

"demonstrate by a preponderance of the competent, material and 

relevant evidence the probability of present or future harm" to 

the minor child. N.J. Div. of Youth & Family Servs. v. S.S., 372 

N.J. Super. 13, 24 (App. Div. 2004) (citation omitted), certif. 

denied, 182 N.J. 426 (2005); see also N.J.S.A. 9:6-8.46(b). Under 

this standard, "[t]he Division need only show that it was more 

likely than not that the defendant abused or neglected the child." 

B.O., supra, 438 N.J. Super. at 380 (citing N.J. Div. of Youth & 

Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010)).

A.D. argues the trial judge erred because there is no proof 

her conduct caused the infant harm, citing A.L., supra, 213 N.J.

1. In a related argument, she states the trial judge misapplied 

the standard for abuse or neglect because there was no actual 

evidence of A.D.'s blood alcohol level to demonstrate gross 

negligence. We reject these contentions. 

The facts presented in A.L., are distinguishable from those 

presented in this matter. In A.L., the Division proved the 

defendant mother used illicit substances, but did not show that 
12 A-0642-15T3

drug use caused actual harm to her baby, which was born without 

any discernable problems. Id. at 9. The Court concluded the 

statutory requirements of N.J.S.A. 9:6-8.21(c) require the 

Division to demonstrate actual harm or to show the likelihood of 

an imminent substantial risk of harm rising above mere negligence, 

by the parent's conduct. Id. at 28. "Judges at the trial and 

appellate level cannot fill in missing information on their own 

or take judicial notice of harm. Instead, the fact-sensitive 

nature of abuse and neglect cases, turns on particularized 

evidence." Ibid. 

Here, Dr. Hood determined the cause of death was co-sleeping, 

sudden infant death. Other direct and circumstantial evidence 

shows, for at least three days, A.D. drank heavily; she took at 

least three Klonopin tablets, a benzodiazepine which was not 

prescribed for her. Even though she agreed to care for the infants

between 12:30 a.m. and the time the baby expired (stated as 

approximately 1:30 to 2:30 a.m.), A.D. drank one-half of a bag of 

boxed wine, drinking more than she had the prior nights. The 

substance abuse caused her to black out, such that she could not 

clearly remember what she did, although she recalled the baby was 

fussy and she wanted her to stop crying. She could not remember 

removing the baby from her carrier, but had a recollection of 

being aggressive with the baby. A.D. lost consciousness and did 
13 A-0642-15T3

not return the baby to her carrier, instead she chose to co-sleep 

with her on the couch, while intoxicated, laying the infant face 

down. Moreover, her intoxication was so pronounced, A.D. never 

realized the baby stopped breathing and could not even summon help

when the infants' father shook her awake.

"Parents who use illegal drugs when caring for an infant 

expose that baby to many dangers due to their impaired judgment." 

B.O., supra, 438 N.J. Super. at 385 (citing V.T., supra, 423 N.J. 

Super. at 331) (commenting infants are susceptible to even slight 

"parental missteps"). "Although a sober parent could also 

inadvertently smother a baby when co-sleeping, a parent who falls 

asleep after ingesting illegal drugs is less likely to exercise 

good judgment in protecting the baby in bed. Just as a sober 

driver may have an automobile accident, an impaired driver is much 

more likely to do so." Ibid. (footnote omitted).

Unlike the mother in A.L., whose baby suffered no proven

effect from prenatal drug use, in this matter, as a result of 

A.D.'s intoxication, she placed the baby face down, which resulted 

in the infant's death. While A.D. may not have intended harm to 

the baby, she deliberately became intoxicated to the point of not 

knowing what she was doing. This non-accidental conduct led to 

the tragically harmful result. See, e.g., G.S., supra, 157 N.J.

at 174; B.O., supra, 438 N.J. Super. at 381.
14 A-0642-15T3

The trial judge's findings are supported by the credible 

evidence in the record. The conclusion of neglect will not be 

disrupted.

Affirmed.