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New Jersey Division of Child Protection and Permanency v. B.H.

Superior Court of New Jersey, Appellate Division

June 25, 2019

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
B.H., Defendant-Appellant, and H.S. and T.S., IN THE MATTER OF M.S., a Minor.

          Submitted May 15, 2019

          On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-0236-17.

          Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the briefs).

          Gurbir S. Grewal, attorney for respondent (Jason Wade Rockwell, Assistant Attorney General, of counsel; Salima E. Burke, Deputy Attorney General, on the brief).

          Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Melissa R. Vance, Assistant Deputy Public Defender, of counsel and on the brief).

          Before Judges Koblitz, Currier and Mayer.

          OPINION

          MAYER, J.A.D.

         Defendant B.H. (Ben)[2] appeals from a January 24, 2018 order finding he abused or neglected M.S. (Mariah), the five-year-old daughter of his girlfriend at the time, H.S. (Hannah). Because Ben was not Mariah's parent or guardian, the family court lacked jurisdiction to proceed under Title 9. Thus, we reverse the abuse or neglect finding against Ben.

         The facts are not disputed. Ben and Hannah began dating in July 2015.[3]Ben first met Mariah about nine months after he began dating Hannah. When they were dating, Ben visited Hannah twice a week, dined with her and Mariah, and "stay[ed] the night occasionally." Mariah referred to her mother's boyfriend as "Mr. [Ben]," rather than "dad" or another familial term.

         In March 2017, Hannah asked Ben to watch Mariah for a few hours. This was the first time Hannah ever asked Ben to look after Mariah. Ben took Mariah to his mother's house, where Ben and his mother had dinner with the child while Hannah worked.

         On April 19, 2017, Mariah developed a fever while at daycare. The daycare center asked Hannah to pick up her daughter. Because Hannah did not have a car, she asked Ben to drive her to daycare. Hannah retrieved Mariah from daycare and put her in a car seat in the rear of Ben's car on the passenger side. Hannah believed she properly secured the car seat.

         After leaving daycare, Ben got into a single-car accident. Because no other vehicles were involved, neither Ben nor Hannah reported the accident. The rear passenger window was shattered and the car sustained visible damage as a result of the accident. Hannah did not see any glass from the broken window on Mariah or in her car seat.

         After the accident, with Mariah still in the car seat, Ben drove Hannah to her friend's house in Manahawkin. Hannah asked Ben to take Mariah to a nearby fast-food restaurant for a snack while Hannah went into the house to ask her friend for money. The restaurant was located about a mile away. This was the only time Ben was ever alone with Mariah.

         Ben drove Mariah to the restaurant. The Stafford Township Police Department received a report of a male under the influence in the parking lot of the fast-food restaurant with a child in the rear seat. Upon arrival, the police officers saw Ben's car improperly parked. The officers noticed substantial damage to the car's passenger side and a shattered rear passenger window.

         The officers also saw Ben "slumped over the steering wheel" in his car. They observed that Mariah, who was in her car seat, did not "seem upset or scared[.]" When the officers approached the car, Ben "slowly lifted up his head" and the officers asked Ben to step out of the car. Ben complied, but was "very slow and sluggish . . . ." According to the officers, Ben was "slowly swaying back and forth, his knees were slightly sagging, . . . his ...


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