NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. N.S. AND R.B. IN THE MATTER OF K.A.N., J.B. AND K.B., 412 N.J. Super. 593 (App. Div. 2010), A-1076-06T4 & A-1338-06T4, April 14, 2010:

“Whether a parent or guardian has failed to exercise a minimum degree of care” in protecting a child is determined on a case-by-case basis and “analyzed in light of the dangers and risks associated with the situation.” G.S. v. Dep’t of Human Servs., 157 N.J. 161, 181-82 (1999). We note N.J.S.A. 9:6-8.21(a) defines the terms parent or guardian to include “any person [ ] who has assumed responsibility for the care, custody or control of a child or upon whom there is a legal duty for such care.” Also, N.J.S.A. 9:6-2 provides that a “‘person having the care, custody or control of any child’” includes “any person with whom a child is living at the time the offense is committed.”

An “‘[a]bused or neglected child’” is defined at N.J.S.A. 9:6-8.21(c) to include a child whose parent or guardian

(2) creates or allows to be created a substantial . . . risk of physical injury to such child by other than accidental means which would likely 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 . . . . (b) 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[.]

A finding of abuse or neglect must be based on a preponderance of the evidence and “only competent, material and relevant evidence may be admitted.” N.J.S.A. 9:6-8.46(b)(2). “Under the preponderance standard, ‘a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met.’” Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (quoting Biunno, Current N.J. Rules of Evidence, comment 5a on N.J.R.E. 101(b)(1) (2005)). “The evidence must demonstrate that the offered hypothesis is a rational inference, that it permits the trier[] of fact to arrive at a conclusion grounded in a preponderance of probabilities according to common experience.” In re Estate of Reininger, 388 N.J. Super. 289, 298 (Ch. Div. 2006) (citing Joseph v. Passaic Hosp. Ass’n, 26 N.J. 557, 574-75 (1958)). If the facts are sufficient to sustain the complaint, the court will enter an order finding that the child is an abused or neglected child and set forth the ground for such finding. N.J.S.A. 9:6-8.50(a).

Generally, “the phrase ‘minimum degree of care’ refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.” G.S., supra, 157 N.J. at 178. “Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result.” Ibid. (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). Wanton and willful behavior is “an ‘intermediary position between simple negligence and the intentional infliction of harm[,]‘” id. at 179 (quoting Foldi v. Jeffries, 93 N.J. 533, 549 (1983)), and “can apply to situations ranging from ‘slight inadvertence to malicious purpose to inflict injury.’” Id. at 178 (quoting McLaughlin, supra, 56 N.J. at 305). “[N]on-intentional conduct is sufficient to warrant a finding of abuse if injury to the child is demonstrated.” Division of Youth and Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (citing G.S., supra, 157 N.J. at 175-82), certif. denied, 182 N.J. 426 (2005). “[T]he 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.” G.S., supra, 157 N.J. at 182. “When a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired, that guardian has failed to exercise a minimum degree of care as a matter of law.” Ibid.

“[T]he statutory framework of Title Nine provides that upon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safely return to his or her custody, and if not, what the proper disposition should be.” Division of Youth & Family Servs. v. G.M., 198 N.J. 382, 387-88 (2009).

If the court makes a finding of abuse or neglect, it shall determine, based upon the facts adduced during the fact-finding hearing, and upon any other facts presented to it, whether a preliminary order pursuant to [N.J.S.A. 9:6-8.31] is required to protect the child’s interests pending a final order of disposition.
[N.J.S.A. 9:6-8.50(d).]

A factfinding order is considered interlocutory and requires a motion for leave to appeal. L.A., supra, 357 N.J. Super. at 164-65.

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