NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4226-12T2

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

V.

C.D.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF A.H. AND A.D.,

minors.

__________________________________

December 4, 2014

Submitted October 22, 2014 Decided

Before Judges Kennedy and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-394-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Van Zwaren, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

PER CURIAM

L.M.V. (mother) is the biological mother of A.H., born in January 2006, and A.D., born in October 2008. C.D. (father) is the biological father of A.D., but not A.H. All four were living in the same household when, on April 19, 2012, the New Jersey Division of Child Protection and Permanency1 (Division) removed the children from the mother's and the father's custody because of an alleged violation of N.J.S.A. 9:6-8.21(c)(4)(b). Following a fact-finding hearing, the trial court found the father had abused and neglected the children. We affirm.

The pertinent evidence at the fact-finding hearing was as follows. Suspicious the father was selling drugs, the Jersey City Police Department placed the father under surveillance. At approximately 9:30 p.m. on April 19, 2012, the police observed the father and the children leave their home and get into the father s car. Two unmarked police cars followed the car and, when the father pulled over to the curb at one point, the police blocked him by putting one police car in front of and another behind his car. Two policemen emerged from each police car and approached the father s car.

The father reacted by putting his car in reverse and, "at a pretty good high speed," backed into the police car behind him, injuring one of the police officers. He then went forward and attempted to mount the sidewalk but, after an officer pointed a gun at him, he stopped and placed his car in park. Another officer pointed a gun at his head and forcibly removed him from the car and put him on the ground. The father struggled but eventually succumbed and was arrested. Fifty-five grams of marijuana were found in his possession. Although both children told a Division worker that they saw the police take out their guns and the younger child claimed she was frightened during the incident, there was no evidence either child was physically or emotionally injured from the experience.

Armed with a search warrant, the police went to the family's home that night. When they entered, one officer was "overwhelmed" by a strong odor of marijuana. The police found over two hundred grams of marijuana in plain view in the master bedroom, along with Ziploc bags, scales, and one thousand dollars in cash. Based upon this evidence, one officer opined that the father was selling drugs. The father was charged with various drug offenses, aggravated assault, and resisting arrest.2

The Division was contacted that evening and, exercising its authority under N.J.S.A. 9:6-8.293, took custody of the children and placed them in a resource home. On April 23, 2012, the Division filed a complaint seeking the custody, care and supervision of the children pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. An order to show cause entered on this date directed that the children be placed with relatives. On the return date of the order to show cause, the court ordered that the children remain in the Division's custody.

A fact-finding hearing was held on October 10, 2012. By the time of the hearing, the father had pled guilty.4 Following the hearing, the trial court found the father had put the children at substantial risk of harm from the dangerous and erratic manner he operated his car when trying to escape from the police, and for exposing the children to the risk of being inadvertently shot by the police. The trial court also determined that the father was under the influence of marijuana at the time of his arrest. The court found the mother had not abused or neglected the children.

During a compliance review hearing held on January 10, 2013, the court ordered the children returned to the mother's physical and legal custody. By then, the father had completed his sentence. He also had completed all services requested by the Division, although the Division wanted to continue monitoring the results of any drug tests the Probation Department was routinely administering.

At the conclusion of a compliance review hearing held on April 18, 2013, the Division asked that the case be dismissed because the father had consistently tested negative for drugs and there were "no further concerns." The Division also noted the father was ready for unsupervised visitation. Agreeing with the Division's assessment, the court dismissed the litigation.

On appeal, the father argues there was no evidence that he either harmed or placed the children at substantial risk of harm.

A trial court's factual findings are entitled to deference "'because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand [and] 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. L.L., 201 N.J. 210, 227 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Accordingly, a reviewing court will not disturb a trial court's abuse and neglect findings as long as they are supported by adequate, substantial and credible evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596 (2007). However, if it is claimed the trial court erred in its "evaluation of underlying facts and the implications to be drawn therefrom, we expand the scope of our review." Id. at 605 (quoting In re Guardianship of J.T., 269 N.J. Super., 172, 188-89 (App. Div. 1993)).

N.J.S.A. 9:6-8.21(c)(4)(b) states that an abused or neglected child includes

[A] child whose 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, 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 corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.

In N.J. Dep't of Children & Families, v. A.L., 213 N.J. 1, 23 (2013), the Supreme Court clarified that, if a parent's conduct has not resulted in actual harm to a child, then a finding of abuse and neglect must be based on proof of imminent danger or substantial risk of harm. Moreover, the risk to the child must be assessed as of the time of the fact-finding hearing. N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 419 (App. Div.), certif. granted, __ N.J. __ (2014). Further, "risk demonstrated by past conduct should be assessed in light of actions since taken to address prior dangerous parenting for example, parental action that has eliminated a previously existing danger of impairment before the risk materialized." Id. at 418.

Fortuitously, the children here were not in fact harmed when the father brazenly and recklessly attempted to elude the police, exposed the children to being inadvertently shot, and drove under the influence of marijuana when they were in the car. That he placed the children in substantial peril at that time cannot reasonably be questioned. But whether the children were still in imminent danger or at substantial risk of harm by the time of the fact-finding hearing was the issue. Significant to that determination was whether the father had taken any steps to correct that which made him an imminent danger or substantial risk to the children.

The evidence shows that by the time of the fact-finding hearing in October 2012, the father had not remediated the behavior that caused him to engage in such grossly reckless behavior on April 19, 2012. He therefore continued to place his children at a substantial risk of harm. In fact, it was not until April 2013 that it was conclusively determined the risk of harm he previously posed to the children had been removed and he could safely parent them unsupervised.

Because there was sufficient, credible evidence the father abused and neglected the children, we affirm.

Affirmed.

1 At the time, the Division was known as the Division of Youth and Family Services. Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency.

2 The exact offenses with which he was charged were not disclosed in the record.

3 N.J.S.A. 9:6-8.29 authorizes the Division to take custody of a child if there is evidence the child's life, safety, or health will be in imminent danger if left in a parent's care and there is insufficient time to apply for a court order.

4 The record does not indicate the offenses to which he pled or the sentence that was imposed.