NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
B.H., Defendant-Appellant, and H.S. and T.S., IN THE MATTER OF M.S., a Minor.
Submitted May 15, 2019
appeal from the Superior Court of New Jersey, Chancery
Division, Family Part, Monmouth County, Docket No.
E. Krakora, Public Defender, attorney for appellant (Dianne
Glenn, Designated Counsel, on the briefs).
S. Grewal, attorney for respondent (Jason Wade Rockwell,
Assistant Attorney General, of counsel; Salima E. Burke,
Deputy Attorney General, on the brief).
E. Krakora, Public Defender, Law Guardian, attorney for minor
(Melissa R. Vance, Assistant Deputy Public Defender, of
counsel and on the brief).
Judges Koblitz, Currier and Mayer.
B.H. (Ben) 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
facts are not disputed. Ben and Hannah began dating in July
2015.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.
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.
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.
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.
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.
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.
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 ...