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New Jersey Division of Child Protection and Permanency v. A.S.

Superior Court of New Jersey, Appellate Division

August 23, 2013

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY[1] , Plaintiff-Respondent,
v.
A.S., Defendant-Appellant. IN THE MATTER OF C.R., a minor.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 16, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-0177-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Emily J. Daher, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Jaime Millard-Tindall, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

Before Judges Ashrafi and St. John.

PER CURIAM

Defendant A.S. appeals from the June 15, 2012 order of the Family Part finding that she had neglected her eleven-month-old infant in violation of N.J.S.A. 9:6-8.21. The court found that defendant-mother was intoxicated on May 3, 2011, while the child was in her care alone and that she drove with the child while in that intoxicated state. We affirm.

In June 2011, DYFS filed a verified complaint against defendant-mother accusing her of neglect of the child. The complaint alleged that the mother had a history of alcohol abuse, including at the time of the child's birth in May 2010, and that DYFS had prior involvement with the family in November 2010 because of the mother's abuse of alcohol. On May 3, 2011, at 7:00 p.m., DYFS received a hotline call that prompted the investigation leading to the filing of the Title Nine complaint. Two DYFS caseworkers arrived at the mother's apartment at 8:45 p.m. and observed her showing clear signs of intoxication. The child's father, C.D., was questioned at the home, and he told the caseworkers that he had arrived home from work to find that defendant-mother was intoxicated. She was caring for the infant alone after picking the child up from daycare.

The complaint alleged that the mother admitted to the DFYS caseworkers that she had been in treatment for alcoholism. She also acknowledged the family's prior involvement with the Pennsylvania Department of Human Services because of allegations that the child was born prematurely with fetal alcohol syndrome. In response to a question from the caseworkers, she said her alcoholic beverage of choice was vodka. The complaint alleged that, at a follow-up interview with the father on May 4, 2011, he had shown a DYFS caseworker several empty bottles of vodka that he claimed he had found at the home and that had been surreptitiously obtained by defendant-mother.

After further questioning of the parents and investigation of the child's condition, DYFS and the parents agreed upon a custody and supervision plan by which the child would not be removed from the home but also would not be left alone with the mother. The plan also required the mother to undergo evaluation and treatment for her abuse of alcohol. The Family Part entered orders approving the custody and supervision plan. By the time that a factfinding hearing began in October 2011 on the complaint alleging neglect of the child, the mother had complied with the evaluation and treatment plan, and the requirement was lifted that she be supervised at all times while with the child.

The factfinding hearing was conducted on four dates from October 2011 to May 2012. A neighbor testified about her observations of the mother and the infant on the evening of May 3, 2011. She testified that she had heard information earlier in the day from another neighbor that alerted her to a potential risk to the child, and she undertook to observe the mother returning to the area in her car. When the mother returned that evening, she had difficulty parking the car and could not park it correctly. When she got out of the car:

she almost slipped, but she was grabbing onto the car and she went to the back and she got this baby out that was in [a car seat] and she almost dropped the baby, but she was walking, she was inebriated . . . and then . . . she set the baby — the carriage thing down, she got herself together and tried to walk, but she was just like very unsteady gait, got to the — her door and she put the baby down, that little cradle thing, and then she was having difficulty even putting the key in the lock.

The Division caseworkers who investigated that evening testified about their observations and conclusions that the mother was intoxicated. The Family Part summarized the testimony of the caseworkers as follows:

[M]other was observed to:
• Answer the door and almost fall into the doorframe;
• Bump into kitchen table two times despite sufficient unimpeded walking path and to stumble twice;
• During the interview the defendant gestured with her hand and hit the kitchen table with them unintentionally expressing pain;
• Her gait was generally described as unsteady and her speech was "slurred" during the entire twenty-minute interview

Based on this testimony the Family Part concluded that the mother had been intoxicated and that her intoxication constituted neglect of the infant[2] Because the mother had been in compliance with the requirements of the custody and supervision plan the case was dismissed after the finding of neglect Mother filed this appeal contending there was insufficient evidence that she was intoxicated and also that even if she had been intoxicated there was insufficient evidence that her condition endangered the child

Our standard of review on appeal is narrow A reviewing court must defer to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 433 (App. Div. 2009). "[F]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J.Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it 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); accord N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007).

Here, the Family Part's finding that the mother was in fact intoxicated on the evening of May 3, 2011, is supported by the evidence. Further discussion of the court's factfinding in that regard is not warranted in a written opinion. R. 2:11-3(e)(1)(A).

Similarly, we need not discuss the mother's argument that the evidence was insufficient for the court to conclude that she had been intoxicated at the time she drove with the child, since she could have begun drinking in the intervening hour and forty- five minutes between the receipt of DYFS's hotline call and when Division caseworkers arrived at her home.

We address the mother's arguments that the fact of her intoxication is not sufficient to conclude she neglected her child. See N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J.Super. 247, 257 (App. Div. 2012); N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J.Super. 320, 330-32 (App. Div. 2011). She also cites the Supreme Court's recent decision in N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013), for the proposition that DYFS must present "evidence of imminent danger or substantial risk of harm" to the child where actual impairment of the child has not been shown by the parent's inappropriate conduct.

N.J.S.A. 9:6-8.21(c)(4) defines a child as abused or neglected when the child's
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 . . . (b) in providing the child with proper supervision or guardianship . . . or by any other acts of a similarly serious nature requiring the aid of the court.

"[T]he 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). The Division was not required to prove that the mother intended to harm her child when she became intoxicated, or when she drove with the child while intoxicated. It was required to prove that she was at least grossly negligent or reckless. S.N.W., supra, 428 N.J.Super. at 257.

"Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. Gross negligence falls on a continuum of conduct from ordinary to gross based on the level of risk created, and it is determined on a case-by-case basis. Dep't of Children & Families v. T.B., 207 N.J. 294, 309 (2011). A parent "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." G.S., supra, 157 N.J. at 181.

In this case, the Family Part heard sufficient evidence of neglect because the mother was visibly and seriously intoxicated with a helpless eleven-month-old infant in her care, and she exacerbated the danger by driving with the child while she was in that state.

The cases cited by the mother are not contrary to the Family Part's implicit conclusion that intoxication of a parent in those circumstances creates a serious risk of injury to the child. None of the cases upon which the mother relies supports an argument that a severely intoxicated parent who has an infant in her care does not present a risk of substantial harm to the child. In particular, the dangers of drunk driving are evident. The child was placed at risk of serious physical injury. Furthermore, an infant less than one year old needs constant care and supervision. The infant has no ability to provide for her own welfare and safety when the parent is not physically and mentally in condition to provide that care.

In V.T., supra, 423 N.J.Super. at 331, evidence that the child's father had tested positive for use of drugs when attending supervised visitation with his child was not sufficient to prove abuse or neglect. In S.N.W., supra, 428 N.J.Super. at 257, a mother's apparent intoxication while on prescribed medication at home was not proven to have resulted from grossly negligent conduct on her part that constituted abuse or neglect of two very young children. We stated in S.N.W. that cases where no actual harm to the child is proven "are quite fact sensitive." Id. at 253. Here, the Family Part considered all the evidence and concluded reasonably that driving with an infant when the mother's faculties were so impaired by alcohol that she could not walk or stand without stumbling and bumping into things met the level of grossly negligent conduct warranting a finding of neglect.

Having reviewed the record and considered the case law cited by the mother, we find no basis to disturb the Family Part's finding of neglect.

Affirmed.


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