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New Jersey Division of Child Protection and Permanency v. V. F.

Superior Court of New Jersey, Appellate Division

January 22, 2019

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
V. F., Defendant-Appellant. IN THE MATTER OF T.Q., A.Q., S.F., and VI.F., Minors.

          Argued October 29, 2018

          On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-0061-17.

          Christine O. Saginor, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Christine O. Saginor, of counsel and on the briefs).

          Francis A. Raso, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Francis A. Raso, on the brief).

          Olivia B. Crisp, Assistant Deputy Public Defender, argued the cause for minors T.Q. and A.Q. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Olivia B. Crisp, on the brief).

          Danielle Ruiz, Designated Counsel, argued the cause for minors S.F. and Vi.F. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Danielle Ruiz, on the brief).

          Before Judges Sabatino, Haas and Sumners.

          SUMNERS, J.A.D.

         Defendant V.F.[1] appeals the Family Part's order that he abused or neglected his minor children within the meaning of Title 9, N.J.S.A. 9:6-8.21 to -8.73. The New Jersey Division of Child Protection and Permanency (the Division) and the Law Guardians urge us to affirm. We conclude that based upon a logical extension of our ruling in State v. Doriguzzi, 334 N.J.Super. 530, 536 (App. Div. 2000), the trial court should not have considered the police officer's testimony that defendant was under the influence based upon the results of a horizontal gaze nystagmus (HGN) test, which has not been shown to be generally accepted as being scientifically reliable. However, we conclude the order was consistent with the law because it was supported by substantial independent credible evidence that defendant was under the influence and that his conduct created a substantial risk to the children's mental health and physical safety. Therefore, we affirm.

         I.

         The facts developed at the Title 9 fact-finding hearing are summarized as follows. On September 20, 2016, T.Q. (Trent), twelve-years old, called his maternal grandmother, because he was unable to wake his mother R.H. (Rina) at their Jackson Township home. At home with Trent were defendant, A.Q. (Abby), ten-years old, S.F. (Skylar), eight-years old, and Vi.F. (Von), four-days old. Defendant is the biological father of Skylar and Von. Rina is the mother of all four children, and gave birth to Von through a Caesarean section. Upon arriving at the house, the grandmother found Rina unresponsive and called the police.

         When police officers Andrea Falzarano, Chris Kelly, and Greg Schmidt arrived at the house shortly after 4:30 p.m., they found Rina unresponsive; partially lying on a mattress and on the floor. Officer Falzarano testified he saw defendant kneeling on the mattress, hunched over next to Rina. He asked defendant if he knew what Rina was on, whether she took anything, or if she was in any kind of pain. He repeated these questions three times, until defendant eventually responded, "I don't know." Officer Falzarano noticed that defendant was moving very slow, had slurred speech, droopy eyes, and grasped the wall and stumbled while trying to stand.

         Defendant unsuccessfully tried to wake Rina. Officer Schmidt then unsuccessfully tried to wake her by administering a sternum rub. First aid responders arrived moments later, and they unsuccessfully attempted to wake Rina by giving her a dose of Narcan, to counteract the effect of any narcotic she may have taken. Rina was taken to a local hospital where she was eventually revived.

         The officers did not search the residence and did not see any drugs in plain view. The grandmother gave Officer Falzarano a bottle of oxycodone, which was prescribed to Rina upon her release from the hospital. However, he could not remember how many pills were in the bottle, but believed it was a sixty count, and that ten to fifteen were missing. He described Trent to be "very torn, very distraught, crying[, ] . . . shaking, [and] a ...


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