RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

 DOCKET NO. A-4784-16T2

 A-4786-16T2

NEW JERSEY DIVISION OF CHILD 

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

K.M. and B.M.L.,

Defendants-Appellants. 

IN THE MATTER OF B.L., JR.,

a Minor.

________________________________

Submitted May 24, 2018 – Decided June 28, 2018

Before Judges Reisner and Mayer. 

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Morris County, 

Docket No. FN-14-0076-16.

Joseph E. Krakora, Public Defender, attorney 

for appellant K.M. (Celeste Dudley-Smith, 

Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney 

for appellant B.M.L. (Anthony Van Zwaren, 

Designated Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney 

for respondent (Jason W. Rockwell, Assistant 

NOT FOR PUBLICATION WITHOUT THE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-4784-16T2

Attorney General, of counsel; Susan J. 

Saraiva, Deputy Attorney General, on the 

brief).

Joseph E. Krakora, Public Defender, Law 

Guardian, attorney for minor (Maria Emilia 

Borges, Assistant Deputy Public Defender, on 

the brief).

PER CURIAM

Defendants K.M. (Kate) and B.M.L. (Bob)1 appeal from a

December 15, 2016 fact-finding order determining they abused or

neglected their son, B.L., Jr. (Billy).

2 We affirm.

The following facts are derived from the record of the factfinding hearing. On February 22, 2016, the Division of Child 

Protection and Permanency (Division) received a referral from a 

hospital social worker, alleging that Kate overdosed and tested 

positive for marijuana and opiates. The hospital records from 

that date indicated Kate tested positive for both substances. The 

information lead to an investigation by the Division. The Division

was informed that Kate had relocated from Pennsylvania to New 

Jersey, and was living in New Jersey with her son Billy, who was 

 

1 We use initials and pseudonyms to protect the parties' privacy 

interests. R. 1:38-3(d).

2 The December 15, 2016 order was appealable as a result of the 

June 1, 2017 order terminating the litigation.
3 A-4784-16T2

one and a half years old at that time, Bob, Billy's father, and 

Bob's parents, Billy's paternal grandparents. 

The same day as the referral, a Division caseworker went to 

the paternal grandparents' home to check on Billy. Shortly after 

the caseworker arrived, Kate and Bob returned from the hospital. 

Kate yelled profanities at the caseworker and refused to answer 

questions. Bob declined to speak with the caseworker. The 

caseworker was unable to observe Billy during her visit.

The next day, Division caseworker Almira Esen returned to the 

paternal grandparents' home. The paternal grandmother told Esen 

that Kate, Bob, and Billy lived in a camper parked on the side of 

her home. The paternal grandmother allowed Esen to see the camper. 

Esen observed Kate and Billy inside the camper, but Esen was not 

permitted to enter the camper or the home. Kate began yelling at 

Esen that the Division would need an order to conduct an 

investigation. Kate also informed Essen she intended to return 

to Pennsylvania and would be leaving Billy in New Jersey with Bob.

Bob arrived while Esen was at the home. Bob refused to 

discuss Kate's substance abuse and hospitalization. Esen asked 

Bob whether he thought Kate would leave New Jersey while the 

investigation was pending. Bob responded that Kate did not have 
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a car, did not drive, and he "would do anything to protect his 

son."

Due to the lack of compliance with the Division's

investigation, a Division caseworker telephoned Kate to explain 

that the Division was seeking a court order to compel the parents' 

cooperation. Kate again yelled at the caseworker, stating the 

Division had no jurisdiction because Kate was an out-of-state 

resident. Kate claimed she had returned to Pennsylvania and 

refused to give the caseworker her address. Subsequent to this 

communication between Kate and the caseworker, Kate left New Jersey 

with Billy. 

The Division filed a complaint seeking care and supervision 

of Billy, which was granted. In addition, Kate was ordered to 

return to New Jersey with Billy within twenty-four hours.

Bob repeatedly told the Division caseworkers that he lacked 

an address or telephone number for Kate and was unable to bring 

Kate and Billy back to New Jersey. Bob also told the caseworkers 

that he had no concerns regarding Kate's ability to care for Billy.

In a follow up conversation with the Division, Bob confirmed 

that he spoke with Kate, and told her about the court order 

requiring her to return to New Jersey with Billy. According to 

Bob, Kate refused to return to the state. Bob also told the 
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caseworker he did not trust the Division and "only if the Division 

will sign that [Billy] will not be removed" would he provide Kate's 

address. Bob maintained that he did not know Kate's whereabouts

with Billy.

Kate eventually appeared in court on April 8, 2016. Billy 

was found at his paternal grandparent's home on that date, and the 

Division conducted an emergency removal of Billy. As of April 8, 

Billy was missing from the state for thirty-two days.

After completing its investigation, the Division 

substantiated Kate and Bob for neglect of Billy. The Division 

noted that Kate and Bob failed to comply with court orders, Kate 

was hospitalized for a suspected drug overdose and tested positive 

for marijuana while she was caring for Billy, Bob tested positive 

for marijuana, and Bob failed to recognize the risk to his son

while Billy was in Kate's care. The Division also considered that 

Kate neglected Billy due to her failure to return Billy to the 

state in accordance with a court order. 

On December 15, 2016, the judge issued a written opinion 

after the fact-finding hearing was completed. The judge deemed 

Kate's testimony not credible because her trial testimony was 

inconsistent with previous statements she made to the hospital,

the Division, and the evaluators. The judge found that Kate's 
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testimony also varied from Bob's statements to the Division, the 

court, and the evaluators. The judge observed that Kate was 

"vague, evasive and, at times, defensive." During her direct 

testimony, when Kate was questioned about her prior admissions, 

she responded that she "did not recall." On cross-examination, 

Kate responded "I don't remember," "I guess," or "I think so." 

The judge found the testimony of the Division's caseworkers 

credible and their testimony consistent with the evidence 

submitted during the fact-finding hearing. 

In her written opinion, the judge found the Division 

established the allegations of abuse and neglect by a preponderance 

of the evidence in accordance with N.J.S.A. 9:6-8.21(c)(4)(b). 

The judge determined that Kate and Bob "failed to exercise a 

minimum degree of care and were aware of the dangers inherent in 

the situation." The judge concluded Bob "failed to adequately 

supervise [Billy]" and Kate "recklessly created a risk of serious 

injury to [Billy]."

Specifically, the judge found the Division proved Kate had 

"untreated substance abuse issues at the time of the initial 

referral and at the time of [Billy's] removal and that she was in 

a caretaking role during both of those time periods." The judge 

further found Kate placed Billy at substantial risk of harm when 
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she absconded with Billy knowing the Division had a pending 

investigation and a court hearing scheduled for care and custody 

of Billy.

As for Bob, the judge found his statements to the Division 

caseworker that Kate would not leave the state because Kate did 

not drive and did not have a car and that he would do anything to 

protect Billy were not truthful. The judge concluded Bob allowed 

Kate to leave the state with Billy and then professed his ignorance 

of Kate's whereabouts for more than a month. The judge found Bob 

knew where Kate and Billy resided, especially because Bob attempted 

to negotiate with the Division concerning Billy's location in 

return for a promise by the Division not to remove Billy. 

Kate and Bob appeal from the December 15, 2016 order finding 

they neglected Billy. We consolidated their separate appeals. 

The scope of our review of an order finding abuse and neglect 

is limited. N.J. Div. of Child Prot. & Permanency v. Y.A., 437 

N.J. Super. 541, 546 (App. Div. 2014). We will uphold the trial 

judge's factual findings and credibility determinations if they 

are supported by "adequate, substantial, and credible evidence." 

N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 

(2007). We will only overturn the judge's findings if they "went 

so wide of the mark that the judge was clearly mistaken." Ibid.
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However, we do not give "special deference" to the trial 

court's interpretation of the law. D.W. v. R.W., 212 N.J. 232, 

245 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 

N.J. 145, 183 (2010)). We apply a de novo standard of review to 

legal issues. Id. at 245-46.

The adjudication of abuse and neglect is governed by Title 

9. N.J.S.A. 9:6-8.8; N.J.S.A. 9:6-8.21 to -8.73. Under Title 9, 

an abused and neglected child is defined as:

a child less than [eighteen] years of age 

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 [or her] parent or 

guardian . . . to exercise a minimum degree of 

care . . . (b) in providing the child with 

proper supervision or guardianship, by 

unreasonably inflicting or allowing to be 

inflicted harm, or substantial risk

thereof . . . . 

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

The Supreme Court has instructed that the abuse and neglect 

standard under Title 9 is satisfied when the Division demonstrates 

that a parent has failed to exercise a minimum degree of care. 

G.S. v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 181 

(1999). "'Minimum degree of care' refers to conduct that is 

grossly or wantonly negligent, but not necessarily intentional." 

Id. at 178. In G.S., the Court held "a [parent] fails to exercise 
9 A-4784-16T2

a minimum degree of care when he or she is aware of the dangers 

inherent in a situation and fails adequately to supervise the 

child or recklessly creates a risk of serious injury to that 

child." Id. at 181.

When determining whether a parent has failed to exercise a 

minimum degree of care and has therefore neglected or abused a 

child,

the inquiry should focus on the harm to the 

child and whether that harm could have been 

prevented had the [parent] performed some act 

to remedy the situation or remove the danger. 

When a cautionary act by the [parent] would 

prevent a child from having his or her 

physical, mental or emotional condition 

impaired, that [parent] has failed to exercise 

a minimum degree of care as a matter of law.

[Id. at 182.]

The Division must prove by a preponderance of competent, 

material, and relevant evidence that a child is an abused or 

neglected child. N.J.S.A. 9:6-8.46(b). See also N.J. Div. of 

Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). This 

burden of proof requires the Division to demonstrate a "probability 

of present or future harm." N.J. Div. of Youth & Family Servs. 

v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004). 

On appeal, Kate and Bob allege that there was insufficient

evidence to support a finding of abuse and neglect. In particular, 
10 A-4784-16T2

Kate alleges there is no evidence in the record of her overdosing

and, particularly, no evidence of her overdosing when Billy was 

in her care. 

Here, substantial, credible evidence in the record amply 

supports the judge's finding of neglect. The evidence supports 

the judge's decision that Billy's physical, mental, or emotional 

condition was impaired or was in imminent danger of becoming 

impaired as a result of Kate and Bob's failure to exercise the 

minimum degree of care under N.J.S.A. 9:6-8.21(c)(4)(b). Bob 

allowed Kate to flee the state with Billy despite her ongoing 

substance abuse and mental health issues. Bob took no action to 

protect his son from risk once Kate left the state despite knowing 

Kate's whereabouts with the child. Kate intentionally fled the 

state to avoid the court's jurisdiction and to interfere with the 

Division's investigation regarding Billy. Both parents knew the 

Division was searching for Billy for over a month, yet they refused 

to cooperate with the Division's efforts to ensure Billy's safety. 

The actions and inactions of Kate and Bob, under the totality of 

the circumstances in this case, constituted abuse or neglect 

consistent with N.J.S.A. 9:6-8.21(c). 

Kate argues the judge erred in finding it was not safe to 

return Billy to her physical custody. The dispositional hearing 
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was conducted immediately following the judge's fact-finding

determination of abuse or neglect as to both parents. Kate did 

not appear at the dispositional hearing and did not request that 

Billy be returned to her physical custody. Nor was there a request 

by Kate's counsel during the dispositional hearing for custody of 

Billy to be returned to Kate. Because the matter was not presented 

to the judge, we disregard Kate's appeal argument on this issue. 

See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 

339 (2010). Moreover, Kate's argument is moot based on the judge's 

November 20, 2017 order transferring custody of Billy to Bob. Kate 

has not appealed from that order.

Affirmed.