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Division of Child Protection & Permanency v. M.B.

Superior Court of New Jersey, Appellate Division

May 23, 2013

M.B., Defendant, and K.P., Defendant-Appellant. IN THE MATTER OF MK.B., MC.B. and MR.B., Minors.


Argued April 30, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-104-12.

Adamo Ferreira argued the cause for appellant (DeGrado Halkovich, attorneys; Mr. Ferreira, on the brief).

Jody A. Carbone, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Carbone, on the brief).

Craig D. Robin, Assistant Deputy Public Defender, argued the cause for MK.B, MC.B. and MR.B., minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Robin, on the brief).

Before Judges Yannotti and Harris.


K.P. appeals from an order entered by the Family Part on August 8, 2012, finding that she abused or neglected her child, MK.B. We affirm.


On August 19, 2011, the Division of Youth and Family Services (Division) filed a verified complaint against K.P. and M.B. seeking care and supervision of their children, MK.B. and MC.B.[1] K.P. is the mother of these children, and M.B. is their father. At the time the complaint was filed, MK.B. was two years old, and MC.B. was nine months old.

The Division alleged that on August 16, 2011, K.P. and M.B. were riding in an automobile with MK.B. and B.C.M. The Division claimed that the police stopped the car and marijuana was found in the car. The Division also claimed that M.B. smoked marijuana before he drove the car. The court entered an order dated August 19, 2011, placing the children under the Division's care and supervision.

On September 22, 2011, the court entered another order continuing the children under the Division's care and supervision. The court ordered M.B. to undergo a substance abuse evaluation, and to submit to random drug/alcohol screenings. The court restrained M.B. from driving with the children in the vehicle. The Division filed an amended complaint on November 7, 2011, after K.P. gave birth to another child, MR.B.

The judge conducted a fact-finding hearing on June 11 and 12, and August 8, 2012. At the hearing, Officer Kyle Zyskowski of the Palisades Interstate Parkway (PIP) police department testified that on August 16, 2011, he was on safety detail, on a ramp in Fort Lee, New Jersey. Zyskowski was checking for motor vehicle safety and equipment violations. At around 6:54 p.m., Zyskowski observed a black Range Rover approaching, with very dark tinted windows and no front license plate.

Zyskowski stopped the car. As he was approaching the rear of the vehicle, Zyskowski smelled a strong odor of marijuana. He approached the driver's side of the car and asked M.B. to roll his window down. K.P. was in the front passenger seat, and B.C.M. was in a rear passenger seat. MK.B. was also seated in the rear of the car, behind the driver. The officer noticed that K.P. was pregnant.

The officer identified himself and asked M.B. for his license, registration and proof of insurance. Zyskowski said that the odor of marijuana became very strong when the window was opened. He also observed green flakes on the console, in between M.B. and K.P. In addition, Zyskowski observed vegetation on the floor, which he suspected to be marijuana.

The officer also saw the "guts" and "outsides" of a cigar. He explained that some individuals purchase pre-emptied cigars or empty the cigar themselves. They sprinkle marijuana in the emptied cigar, roll it up and smoke it. Zyskowski said that M.B.'s eyes were bloodshot. His demeanor was slow and he was "sort of laid back." M.B. had been eating chicken wings and his fingers were covered in sauce.

Zyskowski asked M.B. to exit the vehicle. M.B. started to stumble on his words. Zyskowski asked M.B. if he had smoked marijuana and M.B. replied that he had smoked the drug in the car about an hour before. M.B. explained that they had gone to Newark Airport but were returning home since they had missed the flight.

Zyskowski told M.B. to step to the guardrail and he asked K.P. to exit the car. He told her that he had detected the odor of marijuana in the car and she said she did not smell anything. He did not believe her because of the strong odor of marijuana that was coming from the vehicle. K.P. said she had been with M.B. and B.C.M. the whole day, and he had not smoked when she was with them.

Zyskowski also asked B.C.M. to exit the car. M.B. consented to a search of the vehicle. The officer found a can with a false bottom, which he unscrewed. Zyskowski found a plastic bag with brownish vegetation that he suspected to be hashish. In the rear compartment, Zyskowski found a soda can which also had a false bottom. He opened the bottom of the can and found a plastic bag containing marijuana.

In addition, Zyskowski found cigar "guts" and vegetation suspected to be marijuana on the floor in the rear passenger area. He said the marijuana was in close proximity to the place where the child had been sitting. In addition, Zyskowski found a marijuana cigarette in the ashtray that was partially burnt on one end and mostly burnt on the other end. He also found packages of cigars.

Zyskowski informed M.B., B.C.M. and K.P. of their Miranda rights.[2] He asked them about the marijuana. M.B. and B.C.M. replied that it belonged to them. Zyskowski handcuffed M.B. and B.C.M. and placed them in his patrol car. K.P. was placed in another police vehicle. She was not handcuffed. All of the occupants of the Range Rover were transported to the PIP police headquarters. The car was towed to a secure lot.

At police headquarters, M.B. was asked to perform a series of sobriety tests. According to Zyskowski, M.B. failed the tests. Zyskowski contacted the Division because K.P. was pregnant and she and MK.B. might have accidentally ingested tobacco or marijuana. Zyskowski explained that he arrested M.B. and B.C.M. for possession of a controlled dangerous substance, and arrested K.P. for endangering the welfare of a child.

Officer Joe Lanfrank of the PIP police department testified that on August 16, 2011, he was called to back up Zyskowski. M.B., B.C.M. and K.P. were out of the vehicle when Lanfrank arrived on the scene. When Lanfrank approached the vehicle, he observed flakes of marijuana on the front driver's seat and he detected the odor of burnt marijuana. Lanfrank said that the burnt marijuana cigarette appeared "fresh" because it was "still moist instead of dry and cracked[.]"

While Zyskowski was searching the vehicle, Lanfrank conducted the horizontal gaze nystagmus test on M.B. He concluded that M.B. did not have signs of nystagmus, which is the rapid, involuntary oscillation of the eyeball.[3] However, Lanfrank detected the odor of burnt marijuana on M.B.'s breath. In addition, M.B.'s eyelids were watery and droopy, and he had a blank stare. Lanfrank stated that he believed M.B. was under the influence of marijuana.

At PIP police headquarters, Lanfrank questioned M.B., after he informed him of his Miranda rights. M.B. told Lanfrank he smoked marijuana in the car at about 4:45 p.m. that day. M.B. provided the officers with a urine sample, which tested positive for marijuana.

Pierre Joseph, who is one of the Division's caseworkers, testified that he was called at around 8:30 p.m. on August 16, 2011. He was told that M.B. and K.P. had been arrested and an emergency removal of a minor child might be required. Joseph and Lourdes Nunez arrived at PIP police headquarters at about 9:30 p.m. Joseph spoke with M.B., who admitted smoking marijuana that day but denied that he smoked the drug around the children.

Nunez spoke with K.P., who stated that she has known M.B. for four years. She said M.B. supports the family, although they do not live together. K.P. initially denied that M.B. smoked marijuana, but after being confronted with evidence that M.B. had a history of substance abuse, K.P. said that M.B. had been arrested twice for marijuana possession. K.P. stated, however, that M.B. had not used marijuana since 2009, when he was in treatment.

Jacqueline Perez, who is also a Division caseworker, testified that on August 17, 2011, she went to K.P.'s home to investigate. K.P. told Perez she did not smell anything suspicious in the car and only smelled fast food. K.P. also denied knowing that marijuana was in the car. She knew that M.B. had a history of marijuana use and had been in treatment in the past but K.P. claimed she did not know M.B. was using the drug at that time. She believed M.B. would not jeopardize his sports career by using marijuana.

K.P. and M.B. presented testimony from John Chuck, a police officer who was qualified as an expert in drug recognition. Chuck testified that Lanfrank requested his presence at PIP police headquarters, when M.B. performed the sobriety tests. Chuck said that, although M.B. made some errors, he passed all of the tests. Chuck stated that he was not surprised M.B. did not exhibit the effects of marijuana use five-and-one-half hours after M.B. said he smoked the drug.

K.P. and M.B. also presented testimony from B.C.M. He stated that the drugs found in the car belonged to him. B.C.M. did not tell K.P. he had marijuana in the car and, while he and M.B. smoked marijuana in the car, neither K.P. nor the minor child was in the vehicle at the time.


On August 8, 2012, the judge placed her decision on the record. The judge determined that M.B. abused or neglected MK.B. The judge found that on August 16, 2011, at around 4:45 p.m. to 4:55 p.m., M.B. and B.C.M. smoked marijuana in the car. At around 6:54 p.m., the police stopped the car. M.B. had been driving the car and the child was a passenger. The police administered sobriety tests, which M.B. failed. The judge found that M.B. placed MK.B. at a substantial risk of harm by driving with the child while he was under the influence of marijuana.

The judge additionally found that MK.B. was exposed to illicit substances when she was in the car. The judge noted that B.C.M. conceded that marijuana was in the vehicle. The marijuana was on the seat next to the child and within her reach. The judge found that the child was at risk for ingesting the substance.

The judge concluded that K.P. abused or neglected the child. The judge found that K.P. had not been using illegal drugs on the day the police stopped the vehicle. The judge determined, however, that K.P. failed to protect the child by allowing her to be a passenger in the car driven by M.B., who was driving under the influence of marijuana, and by permitting the child to be a passenger in a car with illicit substances.

The judge rejected K.P.'s claims that she was unaware M.B. was driving under the influence of marijuana and did not know contraband was in the car. The judge said these claims were not credible. The judge noted that K.P. had initially denied M.B. had a substance abuse history but later acknowledged she knew of that history when Nunez confronted her with public information of M.B.'s past substance abuse.

The judge also rejected K.P.'s claim that she mistook the odor of marijuana for the smell of chicken. The judge noted that there was no evidence indicating that K.P. "even raised any question about the smell in the vehicle" or the flakes of marijuana "strewn about" its interior. The judge stated that, by her inaction and seemingly blasé view of the odor and the substances in the car, K.P. failed to protect the child.

The judge memorialized her decision in an order entered on August 8, 2011, finding that M.B. and K.P. abused or neglected the child, as defined in N.J.S.A. 9:6-8.21(c), by placing the child at substantial risk of harm. K.P. appeals.


K.P. argues that she did not commit an act of abuse or neglect, as those terms are defined in N.J.S.A. 9:6-8.21(c). K.P. contends that the evidence presented at the fact-finding hearing did not establish that she engaged in conduct that rises to the level of gross negligence or recklessness, which she says is required to substantiate a finding of abuse or neglect.

The scope of our review of a trial court's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We must defer to the trial court's factual findings if they are supported by sufficient credible evidence in the record. Id. at 412 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

Furthermore, deference to the trial court's factual findings is "especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Ibid. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). An appellate court also "should accord deference to family court factfinding" because of that court's "special jurisdiction and expertise in family matters." Id. at 413.

Title Nine of the New Jersey Statutes "controls the adjudication of abuse and neglect cases." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citing N.J.S.A. 9:6-8.21 to -8.73). The term "abused or neglected child" is defined to include

a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a 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 corporeal punishment; or by any other acts of a similarly serious nature requiring the aid of the court . . . .
[N.J.S.A. 9:6-8.21(c)(4).]

The phrase "minimum degree of care" refers to conduct that is "grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999) (citing Miller v. Newsweek, 660 F.Supp. 852, 858-59 (D. Del. 1987)). "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)). In addition, "actions taken with reckless disregard for the consequences also may be wanton or willful." Ibid. (citing McLaughlin, supra, 56 N.J. at 305; Egan v. Erie Railroad Co., 29 N.J. 243, 254-55 (1959)).

"Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 123 (1995); McLaughlin, supra, 56 N.J. at 305). "[When] an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds [that person] responsible for the injury he [or she] causes." Id. at 179 (citing Fielder, supra, 141 N.J. at 123; McLaughlin, supra, 56 N.J. at 305).

A parent or 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 (citing In re matter of Sellnow v. Perales, 551 N.Y.S.2d 428, 429 (1990)). "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." Id. at 181-82.

We are satisfied that there is sufficient credible evidence in the record to support the trial judge's determination that K.P. abused or neglected MK.B. as those terms are defined in N.J.S.A. 9:6-8.21(c)(4). The record supports the court's determination that K.P. failed to exercise the minimal degree of care for the child. The judge made that decision after analyzing the dangers and risks associated with the incident, and assessing the credibility of the witnesses. We must defer to the judge's findings where, as here, they "'are substantially influenced by the [the judge's] opportunity to hear and see the witnesses and to have the "feel" of the case.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

There is sufficient evidence to support the judge's finding that K.P. was aware M.B. was operating the vehicle under the influence of marijuana. Moreover, there were flakes of marijuana in the car, within the child's reach, that the child could have ingested. The evidence supports the Judge's finding that, under the circumstances, K.P. had placed the child at a substantial risk of harm.


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