                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1006-14T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

V.S.,

        Defendant-Appellant,

and

J.R.,

     Defendant.
_____________________________

IN THE MATTER OF M.M-C. and
J.M-R., Minors.
_____________________________

              Submitted October 4, 2017 — Decided November 3, 2017

              Before Judges Koblitz, Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Union County,
              Docket No. FN-20-0152-13.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Mark E. Kleiman, Designated
              Counsel, on the briefs).
             Christopher S. Porrino, Attorney General,
             attorney for respondent (Andrea M. Silkowitz,
             Assistant Attorney General, of counsel; Andrea
             M. Barilli, on the brief).

             Joseph E. Krakora, Public Defender, Law
             Guardian, attorney for minors (Christopher A.
             Huling, Designated Counsel, on the brief).

PER CURIAM

      V.S.,1 appeals from a January 29, 2014 determination after a

fact-finding hearing that V.S. abused or neglected her young

daughters M.M-C. (Maureen), born in 2012 and J.M-R (Julie), born

in 2013.     She also appeals from a December 8, 2015 order denying

her   Rule   4:50-1      motion   for   relief    from   judgment.   Although

insufficient admissible evidence of harm to Julie was presented

at the fact-finding hearing, we affirm based on the evidence of

neglect of Maureen.

      V.S.    has   an    extensive     medical    history,   suffering   from

gallstones, polycystic ovary syndrome, scoliosis and sciatica.

She also had gastric bypass surgery in 2010.                  While V.S. was

pregnant with Maureen, she was hit in the hand and neck by a drive-

by shooter.     Her best friend was also shot as well as her best-

friend's sixteen-year-old son, who died.                 V.S. was prescribed

various medications due to her medical conditions, which included



1
  Pursuant to Rule 1:38-3(d)(12), we use initials and fictitious
names to protect the privacy of the family.

                                         2                            A-1006-14T2
post-traumatic stress disorder (PTSD) caused by the shooting.       She

also used drugs at times without a prescription.

     Unrelated to the shooting, Maureen's birth was thirty-three

weeks premature.   She has global developmental delays and chronic

respiratory problems, requiring her to be on oxygen at all times,

suctioned regularly to prevent suffocation by aspiration, and to

be on a gastrostomy tube.     Prior to Division involvement, Maureen

was receiving physical therapy services twice a week and special-

education therapy once a week.     V.S. became skilled at caring for

Maureen and engaged in drug treatment voluntarily.

     On June 6, 2013, V.S. left fifteen-month-old Maureen in the

care of an untrained former heroin addict who did not attend to

the baby's medical needs.     Maureen was taken to the local hospital

where she was admitted to the intensive care unit.        Maureen was

transferred   three   weeks    later   to   Children's   Hospital    of

Philadelphia, where she remained until September 10, 2013, more

than three months after her initial hospitalization.     She was then

transferred to another children's hospital in New Brunswick.        Her

stay in the hospital may have been prolonged by V.S.'s refusal to

grant permission for a tracheotomy, even after being offered a

consultation from a second doctor.

     In September 2013, V.S. gave birth to Julie, who did not

initially show withdrawal signs, although V.S. tested positive for

                                   3                          A-1006-14T2
benzodiazepines at the birth.    V.S. had not been prescribed the

drug after becoming pregnant, and was told that the drug would

negatively affect the fetus.   As a result of V.S.'s positive test,

Julie's urine and meconium, or first stool, were tested and the

hospital performed a Finnegan2 scoring every four hours.   Julie's

urine screen came back negative, but her meconium screen was

positive for morphine and oxymorphone.

     Julie's Finnegan scores varied widely over the next several

days.   Initially, Julie scored a two.   Julie had Finnegan scores

of four, then eight, then four on three occasions.      She showed

signs of withdrawal such as trembling and sneezing.    Then, a few

days later, she scored a nine twice in a row.    Later that day she

scored seven, six, five, and twelve.   During this twenty-four-hour

period, Julie had ten stools, a high number.    Julie, however, was

never put on morphine treatment for withdrawal.   Julie's Finnegan

scores lessened and she was medically cleared for discharge ten

days after her birth.    A defense expert testified that Julie's

records presented a confusing picture, and although the fetus was

undoubtedly exposed to drugs prenatally, the baby was not at

"substantial" risk of harm at birth due to her mother's drug usage.



2
  The Division's doctor testified that a Finnegan Neonatal
Abstinence Score is an assessment tool to determine whether a
child is suffering from drug withdrawal.

                                 4                          A-1006-14T2
     The Family Part judge made extensive credibility and factual

findings.    She noted that even the defense expert opined that

Julie suffered from a mild case of neonatal abstinence syndrome.

The judge found by a preponderance of the evidence that V.S. abused

or neglected Julie by taking drugs leading to the infant's distress

at birth.    The judge also found that V.S. neglected Maureen by

taking illegal drugs while caring for a seriously ill baby and

leaving Maureen in the care of an admitted former drug addict who

had no knowledge of how to care for the medically fragile child.

     After the fact-finding hearing, a Division-selected doctor

evaluated   V.S.   psychiatrically.     The   doctor   recommended   that

V.S.'s parental rights not be terminated, and opined that V.S. was

properly prescribed benzodiazepine for severe PTSD and should not

lose her children based on her mental health needs.         As a result

of this evaluation, V.S. moved to supplement the record before us,

or for a remand for reconsideration under Rule 4:50-1.       We granted

such a remand.     Upon reconsideration, the judge found that the new

evaluation did not qualify as newly discovered evidence and, even

if considered, did not affect her findings.

     Abuse or neglect proceedings are brought pursuant to Title

9, N.J.S.A. 9:6-8.21 to -8.73.        "The main goal of Title 9 is to

protect children 'from acts or conditions which threaten their

welfare.'" G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999)

                                   5                            A-1006-14T2
(quoting State v. Demarest, 252 N.J. Super. 323, 331 (App. Div.

1991)).

     The statute sets forth seven definitions of the term "abused

or neglected child."      N.J.S.A. 9:6-8.21(c).         Relevant to this

case, N.J.S.A. 9:6-8.21(c)(4)(b) states:

          "Abused or neglected child" means

          . . . 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, including the infliction of
          excessive corporal punishment; or by any other
          acts of a similarly serious nature requiring
          the aid of the court

          (Emphasis added).

     "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.         "[A] guardian fails

to exercise 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.    "Whether a parent or guardian has

failed to exercise a minimum degree of care is to be analyzed in

                                     6                            A-1006-14T2
light of the dangers and risks associated with the situation."

Id. at 181-82.

     The State has the burden of proof of demonstrating "by a

preponderance of the competent, material and relevant evidence the

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

Family Servs. v. I.Y.A., 400 N.J. Super. 77, 87 (App. Div. 2008)

(quoting N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J.

Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426

(2005)).

     We accord particular deference "to fact findings of the family

court because it has the superior ability to gauge the credibility

of the witnesses who testify before it and because it possesses

special expertise in matters related to the family."     N.J. Div.

of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012).         A

trial court "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) (quoting N.J. Div. of

Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).

     V.S. disputes the judge's determination that the Division

proved Julie was put at substantial risk by V.S.'s drug ingestion.

V.S.'s expert opined that the infant was not put at substantial

risk in spite of the positive meconium and erratic Finnegan scores.

See N.J. Dept. of Youth & Family Serv. v. A.L., 213 N.J. 1 (2013)

                                7                           A-1006-14T2
(holding that a finding of abuse or neglect is not sustained even

if the mother tested positive for drugs upon admission to the

hospital and the newborn's meconium tested positive for drugs,

absent a showing of actual harm, imminent danger, or a substantial

risk of harm to the infant).

     The doctor who testified for the Division had not prepared

an expert report, although a report was required prior to expert

testimony pursuant to the court's case management order.         The

court thus allowed the doctor to testify only as a fact witness.

The doctor's testimony did not arise from her first-hand knowledge

of Julie's treatment.   She was not the hands-on supervisor of the

treating doctors with regard to Julie, in that she disagreed on

the stand with their treatment decisions, about which she was

unaware at the time of treatment.    She stated, "If I were there

or I was called, I would have started this child on morphine

. . . . My colleagues did not do that, but I would have done that."

Thus, this doctor was not sufficiently involved in the treatment

of V.S. or Julie to testify as a fact witness.     See Carchidi v.

Iavicoli, 412 N.J. Super. 374, 383 (App. Div. 2010) (finding that

doctors could not proffer their testimony as fact witnesses who

did not consult with or examine a patient "for the purpose of

treatment or diagnosis preliminary to treatment").



                                 8                          A-1006-14T2
      If we disregard the testimony of the Division's doctor as

improperly admitted into evidence, the proof that Julie was put

at substantial risk of harm was weak.          Thus, we cannot affirm the

finding of neglect with regard to Julie.

      The judge's findings regarding Maureen are not affected by

V.S.'s post-trial psychiatric evaluation.           "Title 9's main focus

is not the 'culpability of parental conduct' but rather 'the

protection of children.'"        N.J. Div. of Child Prot. & Permanency

v. E.D.-O., 223 N.J. 166, 178 (2015) (quoting G.S., supra, 157

N.J. at 177).          "[T]he definition of child abuse and neglect

contained in the civil provision 'describe[s] only the kind of

"harm" to the child and not the mental state of the accused

required to establish an offense.'"           G.S., supra, 157 N.J. at 176

(quoting Demarest, supra, 252 N.J. Super. at 331.)).

      V.S.'s psychiatric evaluation criticized the Division for its

lack of understanding of the severity of V.S.'s PTSD.               Leaving a

young medically fragile baby alone with an untrained supervisor

for   an    extended    period   of   time,   resulting   in   an    extended

hospitalization, represents substantial evidence to support a

finding of neglect.       We therefor affirm the fact-finding insofar

as the judge found that V.S. neglected her daughter Maureen.              Such

a finding results in serious consequences.           A.L., supra, 213 N.J.

at 25-26.    One of the consequences is a listing in the Child Abuse

                                       9                              A-1006-14T2
Registry (Registry).     N.J.S.A. 9:6-8.11.        "The records may be

disclosed   to   physicians,   courts,   child   welfare   agencies,   and

certain employers.      N.J.S.A. 9:6-8.10a(b)(1)-(23))."        E.D.-O.,

supra, 223 N.J. at 170, n.2.

     We affirm the finding of abuse or neglect, although we affirm

only with regard to Maureen.           We also affirm the denial of

reconsideration.     If V.S.'s Registry information is no longer

accurate based on our affirmance as to Maureen only, we direct the

Division to make the necessary correction.

     Affirmed.




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