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New Jersey Division of Child Protection & Permanency v. S.D.

Superior Court of New Jersey, Appellate Division

April 4, 2013

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent.
v.
S.D., Defendant-Appellant. IN THE MATTER OF T.G., a minor.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 14, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-256-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea C. D'Aleo, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for T.G., a minor (Damen J. Thiel, Designated Counsel, on the brief).

Before Judges Fuentes, Fasciale and Haas.

PER CURIAM

Defendant appeals from a June 16, 2010 order, entered following a fact-finding hearing, determining that she neglected her seven-year-old daughter[1] by driving while intoxicated (DWI) with the child in the backseat. Defendant challenges the trial court's finding that this conduct constituted neglect under Title Nine. The Law Guardian supports the judge's finding that the Division of Youth and Family Services[2] met its burden of proving neglect. Based on our review of the record and applicable law, we affirm substantially for the reasons expressed by Judge Margaret Foti in her oral opinion.

The following facts were adduced at the hearing. At 11:45 p.m. on January 24, 2010, a police officer performed a routine traffic stop and pulled over defendant because her license plate did not match the vehicle that she was driving. The officer noticed T.G. sitting in the back seat without wearing her seatbelt. He detected an odor of alcohol and, after defendant admitted to drinking two beers and three shots of alcohol, the officer asked defendant to exit the vehicle. The officer testified at the fact-finding hearing that defendant appeared nervous, was glassy-eyed, and was unable to walk without holding onto the vehicle. The officer arrested defendant for DWI and transported her to headquarters. A sobriety test at the police station confirmed the observations that the officer made at the scene.

Based on these facts, Judge Foti found that the Division proved by a preponderance of the evidence that defendant neglected T.G. The judge ordered that defendant undergo an evaluation to identify and treat any substance abuse problems, and the Division required defendant to attend parenting skills classes. On July 12, 2012, the court terminated this litigation by appointing T.G.'s father, without objection, as the Kinship Legal Guardian for T.G. The father is not involved in this appeal.

On appeal, defendant challenges the judge's finding that she neglected T.G. Our review of the court's factual finding of neglect is limited; we defer to the court's determinations "when supported by adequate, substantial, credible evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J.Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). The trial court is best suited to assess credibility, weigh testimony, and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. Of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 412-13. Unless the trial judge's factual findings "'went so wide of the mark that a mistake must have been made, '" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted), they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance, see Clark v. Clark, 429 N.J.Super. 61, 71 (App. Div. 2012). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

In pertinent part, N.J.S.A. 9:6-8.21(c)(4) defines a "neglected child" 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 or guardian . . . 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 through 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, ...

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