RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3466-18T4

NEW JERSEY DIVISION

OF CHILD PROTECTION 

AND PERMANENCY,

Plaintiff-Respondent,

v.

B.O.,

Defendant-Appellant,

and

T.B.,

Defendant.

IN THE MATTER OF K.B.,

a Minor.

Submitted March 3, 2020 – Decided March 23, 2020

Before Judges Gilson and Rose.

NOT FOR PUBLICATION WITHOUT THE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-3466-18T4

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Monmouth County, 

Docket No. FN-13-0246-17.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Robyn A. Veasey, Deputy Public Defender, 

of counsel; Dana A. Citron, Designated Counsel, on the 

briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Donna Sue Arons, Assistant Attorney 

General, of counsel; Deirdre A. Carver, Deputy 

Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minor (Noel Christian Devlin, Assistant 

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

PER CURIAM

In this Title Nine matter, defendant B.O. appeals a finding that she abused 

or neglected her eleven-month-old son while caring for him when she was under 

the influence of an intoxicating substance. We reverse, concluding the trial 

court's factual and legal findings are not supported by the competent evidence 

in the record.

I.

We summarize the facts from the limited record developed at the brief 

fact-finding hearing. The Division of Child Protection and Permanency 

presented the testimony of one witness, a worker assigned to the Special 
3

A-3466-18T4

Response Unit (SPRU) and introduced in evidence the SPRU report. Defendant 

did not testify or present any evidence.

Defendant and T.B. (Tim)1are the biological parents of K.B. (Kyle), born 

in July 2016. The family has been known to the Division since shortly after 

Kyle's birth, following allegations of substance abuse by both parents. They 

live with Tim's parents and sister.

On the evening of the incident, the SPRU worker and a buddy worker 

responded to the Jersey Shore Medical Center pursuant to a referral by law 

enforcement that Kyle was taken to the emergency room suffering from 

bronchial issues. According to the SPRU worker, defendant was on the bed, 

holding Kyle "in an unstable position[,] . . . moving around a little bit, so the 

nurse was unable to hold the mask on the baby's face at that time." Kyle was 

crying "slightly." Defendant attempted "to comfort" Kyle by "patting the baby 

on the back."

When the SPRU worker identified himself, defendant became "pretty 

closed off [from] providing any information . . . ." Defendant "wasn't making 

eye contact," and "appear[ed] to be under the influence of something." 

1

 We use initials and pseudonyms to protect the privacy of the parties, see R.

1:38-3(d)(12), and for ease of reference. No finding of abuse or neglect was 

entered against Tim; he is not a party to this appeal.
4

A-3466-18T4

Following a sustained objection by defense counsel regarding the SPRU 

worker's ability to render that conclusion, the Division elicited testimony as to 

his qualifications. The SPRU worker told the judge he had personally worked 

on cases in which parents had substance abuse issues, and he was "train[ed] in 

the area of substance abuse and the physical traits that a substance abuser might 

have while under the influence."

Elaborating about defendant's appearance, the SPRU worker stated she 

"looked distressed." Defendant "didn't appear to be completely coherent" 

because "[s]he wasn't fully understanding [his] questions," which required 

repetition. Defendant's speech was "[s]lightly slurred." According to his entry 

in the SPRU report, defendant's "eyes looked glassy." The SPRU worker 

testified that defendant denied "using anything." He "believe[d]" defendant 

disclosed she "recently" had taken a prescription medication, but he could not 

recall "what the prescription was for." He acknowledged he had not seen or 

obtained any hospital records indicating defendant had been drug tested, adding, 

"I as a SPRU worker don't do that."

Following summations, the trial court issued a terse oral decision, finding 

defendant was under the influence while she was responsible for Kyle, thereby 

placing him at risk of harm. The court based its decision on the observations of 
5

A-3466-18T4

the SPRU worker in light of his training and experience "with individuals who 

may or may not have used drugs." The court entered the order under review in 

March 2018. One year later, the litigation was terminated based on the parents' 

cooperation.

On appeal, defendant contends there was insufficient evidence to support 

the trial court's finding she abused or neglected Kyle. In particular, she claims 

the Division failed to prove Kyle was actually harmed or placed in imminent 

danger of being harmed; the court failed to make any findings that she was 

grossly negligent or reckless; and the SPRU worker was not qualified to render 

an opinion that defendant was under the influence, which required expert 

testimony. Kyle's law guardian joins the Division in urging us to affirm.

II.

A.

Ordinarily, we defer to the Family Court's factual findings, as long as they 

are supported by substantial credible evidence in the record. N.J. Div. of Youth 

& Family Servs. v. L.L., 201 N.J. 210, 226 (2010); N.J. Div. of Youth & Family 

Servs. v. M.M., 189 N.J. 261, 279 (2007). But, we will not hesitate to set aside 

a ruling that is "so wide of the mark that a mistake must have been made." M.M., 

189 N.J. at 279 (internal quotation marks omitted). "Where the issue to be 
6

A-3466-18T4

decided is an 'alleged error in the trial judge’s evaluation of the underlying facts 

and the implications to be drawn therefrom,' we expand the scope of our review." 

N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation 

omitted). We also accord no deference to the trial court's legal conclusions, 

which we review de novo. State v. Smith, 212 N.J. 365, 387 (2012); see also

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In a Title Nine action, the Division must prove by a preponderance of 

"competent, material, and relevant evidence" that a child is abused or neglected. 

N.J.S.A. 9:6-8.46(b). An "abused or neglected child" under Title Nine is 

defined, in pertinent part, as:

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 (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 . . . .

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

The statute does not require that a child experience actual harm. N.J. Dep't 

of Children & Families v. E.D.-O., 223 N.J. 166, 178 (2015). "[B]ut in a case 
7

A-3466-18T4

where there is no such proof, the critical focus is on evidence of imminent 

danger or substantial risk of harm," N.J. Dep't of Children & Families v. A.L., 

213 N.J. 1, 22 (2013), and "must be resolved on a case-by-case basis." E.D.-O., 

223 N.J. at 192. Title Nine cases are fact-sensitive, and the court should "base 

its findings on the totality of circumstances . . . ." N.J. Div. of Youth & Family 

Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). 

Our Supreme Court has instructed that the abuse and neglect standard is 

satisfied when the Division demonstrates – by a preponderance of the evidence 

at the fact-finding hearing – a parent has failed to exercise a minimum degree 

of care. See, e.g., G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). A 

"minimum degree of care" encompasses conduct that was grossly or wantonly 

negligent, but not necessarily intentional. Id. at 178. Wanton negligence is 

conduct that was engaged in with the parent's knowledge that injury is likely to 

result. Ibid. Mere negligence does not trigger the statute. N.J. Dep't of Children 

& Families v. T.B., 207 N.J. 294, 306-07 (2011); G.S., 157 N.J. at 172-73. 

"[W]hether a parent's conduct is negligent or grossly negligent requires an 

evaluation of the totality of the circumstances." E.D.-O., 223 N.J. at 170-71. In 

undertaking this analysis, the Court has warned trial and appellate courts "must 

avoid resort to categorical conclusions." Id. at 180.
8

A-3466-18T4

B.

Assuming arguendo that the SPRU worker was qualified to testify 

defendant was under the influence, we first address the sufficiency of the 

evidence adduced at the hearing. While we continue to recognize the societal 

concern that parents should not care for children while under the influence of 

intoxicating substances, we have avoided a categorical approach in cases 

involving the combination of drugs and parenting. 

For example, in V.T., we recognized "not all instances of drug ingestion 

by a parent will serve to substantiate a finding of abuse or neglect." V.T., 423 

N.J. Super. at 332. Indeed, "Title Nine is not intended to extend to all parents 

who imbibe illegal substances at any time. The Division would be quickly 

overwhelmed if law enforcement was required to report every individual under 

the influence who had children." Id. at 331. 

In V.T., proof of a parent's drug use by itself was not enough to sustain a 

finding of abuse or neglect, where a father used drugs prior to his supervised 

visits with an eleven-year-old child. Ibid. We held that a father's use of cocaine 

and marijuana and failure to complete drug treatment did not "inherently create[] 

a substantial risk of harm" to the child. Id. at 330. We noted there was no expert 
9

A-3466-18T4

proof showing how the father's drug use posed a risk of harm to the child in that 

supervised setting. Id. at 331.

Similarly, we reversed a finding of abuse and neglect based solely on a 

mother’s use of marijuana, on one occasion, while the child was in her care. N.J. 

Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 468-70 (App. 

Div. 2014). We noted the absence of detailed proof regarding the 

"circumstances of her ingestion," whether "the baby was solely in her mother's 

care when she was intoxicated," and "the magnitude, duration, or impact" of the

intoxication. Id. at 470. 

And, in N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 

247, 257-58 (App. Div. 2012), we held the mere fact that a parent appeared 

inebriated is not necessarily determinative of whether that parent was providing 

a minimum degree of care. We therefore vacated an order that had been based 

solely on a determination that the parent had abused or neglected her twentymonth old and five-month old children by appearing inebriated. Ibid. We 

concluded the trial judge failed to determine the parent's degree of culpability, 

particularly in light of uncertainty about whether the parent had exceeded the 

prescribed amount of medication she was then taking and whether that 
10 A-3466-18T4

circumstance prevented her from being able to provide a minimum degree of 

care. Ibid. 

Applying these principles, we are persuaded that the Division's proofs fell 

short under the circumstances presented in this case. The record is devoid of 

any competent evidence that defendant was unable to meet Kyle's basic needs 

while in the supervised setting of the hospital. For example, the trial court did 

not find defendant failed to make appropriate medical decisions for Kyle, 

refused the nurse's attempts to apply the oxygen mask, or otherwise interfered 

with Kyle's treatment. Notably, despite defendant's apparent condition,2

hospital staff did not remove Kyle from defendant's care and permitted her to 

continue to hold Kyle while the nurse attempted to treat him. Accordingly, no 

testimony was elicited about "the magnitude, duration, or impact" of defendant's 

purported impairment. R.W., 438 N.J. Super. at 470.

We therefore cannot conclude on the record before us that the proofs of 

defendant's conduct and condition amounted to gross negligence. T.B., 207 N.J. 

at 309.

2

 Recognizing the worker's testimony that Kyle's physician and nurse believed 

defendant was under the influence was inadmissible as hearsay, the trial court 

nonetheless postulated "if [they] had concerns, they would have removed the 

child from the mother's care immediately, but they did not do so. And they 

allowed [defendant] to continue to hold the child."
11 A-3466-18T4

C.

Given our decision on the insufficiency of the evidence, we need not reach 

defendant's contention that the SPRU worker was not qualified to opine she was 

under the influence. We simply acknowledge we have long held lay witness 

testimony may be sufficient evidence of alcohol intoxication, State v. Guerrido, 

60 N.J. Super. 505, 510-11 (App. Div. 1960), pursuant to N.J.R.E. 701, but the 

Court has cautioned "expert testimony remains the preferred method of proof of 

marijuana intoxication[,]" pursuant to N.J.R.E. 702, State v. Bealor, 187 N.J. 

574, 592 (2006).

Here, the alleged intoxicant at issue was unknown. The SPRU worker 

testified defendant "appear[ed] to be under the influence of something"; 

defendant told him she had taken a "prescription" earlier in the day. At the 

hearing, the SPRU worker could not "recall off the top of [his] head" the identity 

of that medication. According to the SPRU report, however, defendant told the 

workers she had taken Subutex. No testimony was elicited as to the side-effects 

of that prescribed medication. For example, the SPRU worker was not asked 

whether Subutex could cause glassy eyes or "slightly slurred" speech. At best, 

the SPRU worker's observations support a finding that defendant ingested some 

unknown substance at some point on the day of the incident. Importantly, 
12 A-3466-18T4

however, the SPRU worker's testimony did not sufficiently describe defendant's 

actions to establish she was under the influence of any substance that prevented 

her from properly caring for Kyle in the hospital. See R.W., 438 N.J. Super. at 

470.

We therefore conclude the trial court erred in permitting the SPRU worker 

to opine defendant was under the influence, under the specific facts of this case. 

The Division failed to present sufficient evidence to describe the defendant's 

level of alleged substance abuse or connect her level of use with her impairment. 

While the court properly admitted the SRPU worker's lay observations of the 

defendant in the record, his conclusion that she was under the influence was not 

supported by the competent evidence in the record. 

* * *

In sum, the Division failed to present sufficient, credible evidence that 

Kyle was in imminent danger or at a significant risk of harm as a result of 

defendant's failure to exercise a minimum degree of care. We emphasize that 

our decision should not be understood to condone the use of illicit substances. 

Because the evidence the Division presented was insufficient to establish abuse 

or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(a) or (b), however, we are 
13 A-3466-18T4

constrained to reverse the trial court's decision, and order the Division to remove 

the incident from defendant's existing entry in the Central Registry.

Reversed.