RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1486-19

NEW JERSEY DIVISION 

OF CHILD PROTECTION 

AND PERMANENCY,

Plaintiff-Respondent,

v.

E.K.,

Defendant-Appellant,

and

D.K.,

Defendant.

_________________________

IN THE MATTER OF J.K. 

and K.H., minors.

_________________________

Submitted February 3, 2021 – Decided June 28, 2021

Before Judges Ostrer and Vernoia.

NOT FOR PUBLICATION WITHOUT THE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.
2 A-1486-19

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Monmouth County, 

Docket No. FN-13-0163-17.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Caitlin A. McLaughlin, Designated Counsel, 

on the briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Jane C. Schuster, Assistant Attorney 

General, of counsel; Deirdre A. Carver, Deputy 

Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minors (Meredith Alexis Pollock, Deputy 

Public Defender, of counsel; Nancy P. Fratz, Assistant 

Deputy Public Defender, of counsel and on the brief).

PER CURIAM

In this appeal from a Title Nine fact-finding order, E.K. (Emily) contends 

the trial court relied on insufficient and incompetent evidence, and the evidence 

did not support the court's finding that, by acting without a minimum degree of 

care, she placed her children in imminent danger.1 The Division of Child 

Protection and Permanency, and the Law Guardian representing the children, 

oppose the appeal. 

We affirm. 

1

 We use initials and fictitious names for defendants and the children to protect 

their privacy and preserve the confidentiality of the proceedings. R. 1:38-

3(d)(12).
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I.

The case arises out of the events of one Christmas day. Emily was still 

married to, but separated from, D.K. (David). David and Emily's son J.K. 

(Joseph) was then five years old. Emily's daughter K.H. (Karen) was almost

ten. 

David was the principal witness at the fact-finding hearing. He testified 

that because Emily's driving privileges were recently suspended for driving 

under the influence, he agreed to drive her and the children to Emily's family's 

home in Northern New Jersey for a holiday gathering. David saw Emily 

consume "several drinks" starting around 5:30 or 6:00 p.m. He said she was not 

behaving "in a civil like manner," and gave him "attitude" when he said he had 

to leave soon, because he had to work the next day. They left around 10:30 p.m. 

Once in the car, Emily gave David directions back to the New Jersey 

Turnpike, but he made some wrong turns and then used his GPS. Emily "became 

. . . really irate," yelled, and asked why David wasn't listening to her, since she 

knew the way. Seconds after he entered the Turnpike on the southbound side,

Emily "struck [him] and hit [him]" one time in the face, and he pulled onto the 

shoulder. Both children were awake in the backseat. Joseph was in a child 

safety seat, and Karen sat in the car's regular seat with a seatbelt. 
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Once David stopped the car, Emily continued yelling at him, then left the 

car, and ran to a nearby overpass, about thirty feet away. David told the children 

to stay in the car because he was going to get their mother. Emily tried to climb 

onto the three-and-a-half-foot overpass wall in an apparent attempt to jump to 

the ground one-story below. As she placed her arms over the top of the wall, 

trying to pull her body up, she screamed at David to leave her alone. David 

pleaded with her to stop, seemingly to no avail. He then restrained her in a hug 

and pulled her back to street level. They then walked back to the car. David 

got in as Emily gathered her things that had fallen out of the car. 

Then Emily left again, this time to run onto the turnpike roadway. While 

other cars traveled the turnpike, she crossed all the southbound lanes and 

reached the median. David again told the children to stay in the car, then gave 

chase and caught up to Karen at the median. He pulled her back to the car. 

David was nearly hit by oncoming traffic as they ran back. David said that had

Emily resisted, they "probably both would have been killed." 

When David and Emily returned to the car, the children were upset. David 

resumed driving, Emily continued "yelling and screaming," and the children

asked Emily to stop. Joseph said it was the worst day of his life, and Karen was 

screaming to her mother to please stop. Emily hit David about four more times 
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throughout the ride. David denied ever hitting Emily the entire night. He 

repeatedly asked her to stop, telling her she was going to cause an accident and 

hurt them and the children. He also tried unsuccessfully to call 911 multiple 

times.

Emily "threatened the children and told them that, if they didn't say they 

were sleeping [during the incidents], that she was going to send them away" to 

Texas. This threat "frightened and scared" the children. Karen became "pretty 

distraught." 

To calm Emily down, David said they were driving home, but before he 

reached that destination, he drove to the local police station, where he filed a 

complaint, and police arrested Emily. She was later transferred to a hospital for 

psychiatric screening. 

The Division's Special Response Unit (SPRU) worker Teresa Lesniowski 

recounted her interview with the children the day after the incident and 

confirmed the accuracy of her written report of the interviews, which was 

admitted into evidence. The children largely corroborated David's version of 

events. 

Five-year-old Joseph told Lesniowski that he had a good Christmas "until 

his mom tried to kill herself." He said his parents "were arguing in the car, and 
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mommy was punching daddy while he was driving," but David did not hit Emily. 

Joseph said he pretended to be asleep and stayed in his car seat. Joseph told 

Lesniowski that "[t]hey pulled over the car, mommy got out on the highway. 

She was running in front of cars and tried to jump off the side of the road." 

Joseph told the worker "he was scared that both of his parents were going to 

die." 

Karen told Lesniowski that when her father tried to use the GPS, Emily 

tried to take his phone and was punching him. Once the car pulled over and 

David and Emily got out, Karen and Joseph were "screaming for help because 

they were afraid that somebody was going to get hurt." Karen "said she saw 

mom try to jump off the side of the bridge." Karen said "she was terrified, she 

was scared, and she was really upset." 

Lesniowski did not speak to Emily because the Division could not locate 

her in the days immediately after December 25. Another worker ultimately 

interviewed her.

After the Division rested, the court denied Emily's motion to dismiss. 

Neither the Law Guardian, nor Emily, presented any witnesses. In summation, 

Emily's attorney attempted to rely on Emily's exculpatory statements recorded 

in an investigative summary, although it had been admitted into evidence with 
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the proviso that the court would not consider embedded hearsay not subject to a 

hearsay exception. 

The judge found David's testimony credible, and disregarded Emily's 

recorded statement as inadmissible hearsay. The judge highlighted the amount 

of detail in David's testimony, and noted that the children's statements to the 

worker, "while not exact, clearly corroborates almost everything that [David] 

said." The judge found that the minor inconsistencies between David's and the 

children's versions indicated the children were not coached what to say.

The judge also found Emily's actions "clearly created . . . a substantial 

risk" by forcing David to leave the car with only the hope the children would 

listen to him and remain in the car. The judge said, "This entire situation did 

nothing but cause risk to these chil[dren] – imminent risk that something much, 

much worse could have happened to these children during this situation." 

Although the judge noted it was hard to believe the children did not suffer 

emotional harm witnessing their mother's actions that night, he stated he did not 

need to find emotional harm, as the Division had proved an imminent risk of 

physical harm.

In its accompanying order, the court found Emily abused or neglected the 

children when she "engaged in conduct that created imminent risk to the children 
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while traveling on the NJ Turnpike." The order also noted that the Division

would not place Emily's name on the state Child Abuse Registry. 

This appeal followed. Emily challenges the court's fact-finding, 

contending the court did not base its decision on material and relevant evidence; 

and she contends the court erred in deciding that the facts demonstrated she 

failed to exercise a minimum degree of care that resulted in imminent danger to 

the children.

II.

We defer to the Family Court's fact-finding because of the court's "special 

expertise" in family matters and the court's "superior ability to gauge the 

credibility of the witnesses who testify before it." N.J. Div. of Youth & Fam.

Servs. v. F.M., 211 N.J. 420, 448 (2012). We will not disturb a trial court's factfinding "when supported by adequate, substantial, credible evidence," Cesare v. 

Cesare, 154 N.J. 394, 411-12 (1998), but we scrutinize more closely a "trial 

judge's evaluation of the underlying facts and the implications to be drawn 

therefrom," N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007)

(quoting In re J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). We review 

issues of law de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 

140 N.J. 366, 378 (1995). 
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We discern no merit to Emily's argument that the Division "failed to 

produce sufficient credible, competent evidence to establish exactly what 

occurred." She highlights minor discrepancies between David's testimony and 

the children's recollections; asserts David was biased because of his interest in 

post-divorce custody of the children; and faults the caseworker's failure to 

interview her. 

Yet, "the appraisal of witness credibility is the quintessential . . . function"

of the fact-finder. State v. Gunter, 231 N.J. Super. 34, 42 (App. Div. 1989); see 

also Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 13 (App. Div. 2007). 

As required by N.J.S.A. 9:6-8.46(b), the court applied the preponderance-of-theevidence standard of proof and relied on "only competent, material and relevant 

evidence." The court also appropriately relied upon the caseworker's testimony 

"concerning out-of-court statements made to [her] by [the] child[ren] who 

ha[ve] allegedly been abused," N.J. Div. of Child Prot. & Permanency v. Y.A., 

437 N.J. Super. 541, 547 (App. Div. 2014), because they were corroborated by 

David's testimony, see N.J.S.A. 9:6-8.46(a)(4). Emily identifies no evidentiary 

errors. Therefore, we shall not disturb the trial court's finding about what 

happened on the Turnpike during the drive from Emily's parents' home.
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The more significant issue on appeal is whether Emily's behavior 

supported the court's finding that she abused or neglected her children. A child 

can be abused or neglected without a showing of actual harm; "imminent 

danger" is enough to satisfy the statute. Title 9 defines an "[a]bused or neglected 

child," as "a child whose physical, mental, or emotional condition . . . is in 

imminent danger of becoming impaired as the result of the failure of his parent 

. . . to exercise a minimum degree of care . . . . " N.J.S.A. 9:6-8.21(c)(4). That 

failure may pertain to "providing the child with proper supervision or 

guardianship, by unreasonably inflicting or allowing to be inflicted harm, or 

substantial risk thereof . . . 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 Supreme Court has instructed that "[t]he phrase 'minimum degree of 

care' denotes a lesser burden on the actor than a duty of ordinary care." G.S. v. 

Dep't of Human Servs., Div. of Youth & Fam. Servs., 157 N.J. 161, 178 (1999). 

The phrase "refers to conduct that is grossly or wantonly negligent, but not 

necessarily intentional." Ibid. Although it "implies more than simple 

negligence, it can apply to situations ranging from 'slight inadvertence to 

malicious purpose to inflict injury.'" Ibid. (quoting McLaughlin v. Rova Farms, 

Inc., 56 N.J. 288, 305 (1970)). "Essentially, the concept of willful and wanton 
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misconduct implies that a person has acted with reckless disregard for the safety 

of others." Id. at 179. A court deciding if a parent acted without a minimum 

degree of care must consider "the dangers and risks associated with the 

situation." Id. at 181-82. Put another way, the "inquiry should focus on the 

harm to the child and whether that harm could have been prevented had the 

guardian performed some act to remedy the situation or remove the danger." Id.

at 182. 

The statute involves a two-step analysis: first, determining whether the 

parent's conduct was grossly negligent or reckless; and then, whether the 

conduct caused a risk of imminent harm. See Dept. of Child. and Fam. v. E.D.-

O., 223 N.J. 166, 182-83 (2015) (noting that the second step need not be reached 

if the first is not satisfied).

The facts here support the court's conclusion that Emily failed to exercise 

a minimum degree of care, placing the children's physical condition at imminent 

risk of harm (the court having decided not to reach the issue of the children's

mental or emotion condition). Emily was evidently in the throes of a mental 

health crisis. However, the heart of the court's inquiry is not a parent's 

culpability (or lack of it), but the children's protection. Id. at 178. Twice, Emily

drew David out of the car, leaving the children alone while they observed the 
12 A-1486-19

frightening scenes of their mother first threatening to jump off an overpass, and 

then racing across the Turnpike to the median and then back again, narrowly 

avoiding oncoming traffic. Urging their mother to stop, the children could have 

defied David's order to stay put and tried to intervene, thereby endangering 

themselves. In particular, almost-ten-year-old Karen could have unbuckled 

herself and then her brother, and then the two could have run after their parents, 

either on the highway shoulder or across the traffic lanes. And while the 

children stayed in the car by the side of the road, they remained at risk of a 

passing vehicle side-swiping the parked car. 

This was not a case of a parent leaving children unattended briefly in the 

safety of a locked car in front of a local store. See Dept. of Child. & Fam. v. 

G.R., 435 N.J. Super. 392, 399 (App. Div. 2014) (reviewing facts relevant to 

neglect determination, including the time the parent was away, the distance 

between the parent and child, whether the parent lost sight of the child and for 

how long, and other extenuating circumstances). The trial court here considered 

the exceptional hazards presented when children were left unattended on the side 

of the Turnpike at night, while their mother behaved in a way that threatened to 

draw them out of the vehicle and incur even greater danger. Emily also risked 
13 A-1486-19

harm to the children and everyone else in the car, when she repeatedly struck 

David while he was driving. 

An "ordinary reasonable person would understand" that Emily's behavior 

"pose[d] dangerous risks" to the children. G.S., 157 N.J. at 179. Because Emily 

"act[ed] without regard for the potentially serious consequences, the law holds 

[her] responsible." Ibid. The trial court thus had sufficient evidence to find 

Emily failed to exercise a minimum degree of care. 

Affirmed.