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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent.

v.

S.D.,

Defendant-Appellant.
_________________________________

IN THE MATTER OF T.G., a minor.

_________________________________

November 21, 2013

Submitted November 14, 2013 Decided

Before Judges Fuentes, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-256-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea C. D'Aleo, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for T.G., a minor (Damen J. Thiel, Designated Counsel, on the brief).

PER CURIAM

Defendant appeals from a June 16, 2010 order, entered following a fact-finding hearing, determining that she neglected her seven-year-old daughter1 by driving while intoxicated (DWI) with the child in the backseat. Defendant challenges the trial court's finding that this conduct constituted neglect under Title Nine. The Law Guardian supports the judge's finding that the Division of Youth and Family Services2 met its burden of proving neglect. Based on our review of the record and applicable law, we affirm substantially for the reasons expressed by Judge Margaret Foti in her oral opinion.

The following facts were adduced at the hearing. At 11:45 p.m. on January 24, 2010, a police officer performed a routine traffic stop and pulled over defendant because her license plate did not match the vehicle that she was driving. The officer noticed T.G. sitting in the back seat without wearing her seatbelt. He detected an odor of alcohol and, after defendant admitted to drinking two beers and three shots of alcohol, the officer asked defendant to exit the vehicle. The officer testified at the fact-finding hearing that defendant appeared nervous, was glassy-eyed, and was unable to walk without holding onto the vehicle. The officer arrested defendant for DWI and transported her to headquarters. A sobriety test at the police station confirmed the observations that the officer made at the scene.

Based on these facts, Judge Foti found that the Division proved by a preponderance of the evidence that defendant neglected T.G. The judge ordered that defendant undergo an evaluation to identify and treat any substance abuse problems, and the Division required defendant to attend parenting skills classes. On July 12, 2012, the court terminated this litigation by appointing T.G.'s father, without objection, as the Kinship Legal Guardian for T.G. The father is not involved in this appeal.

On appeal, defendant challenges the judge's finding that she neglected T.G. Our review of the court's factual finding of neglect is limited; we defer to the court's determinations "when supported by adequate, substantial, credible evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). The trial court is best suited to assess credibility, weigh testimony, and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 412-13. Unless the trial judge's factual findings "'went so wide of the mark that a mistake must have been made,'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted), they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance, see Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

In pertinent part, N.J.S.A. 9:6-8.21(c)(4) defines a "neglected child" as:

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 . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or through offered financial or other reasonable means to do so, or (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[.]3

A court does not have to wait until a child is actually harmed before it can act in that child's welfare. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009), cert. denied, ___ U.S. ___, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect. M.C. III, supra, 201 N.J. at 344.

In determining a case of neglect, the court must base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). A finding of neglect must be based on the preponderance of the evidence. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009).

Defendant contends that she was not driving while legally intoxicated. To support this contention, she relies on an alleged 0.02 reading from a breathalyzer test performed at the state police barracks. In a Title Nine case involving an allegation that a parent drove under the influence with a minor in the backseat, however, the Division is not required to prove beyond a reasonable doubt the elements of N.J.S.A. 39:4-50. Rather, the Division need only prove by a preponderance of the evidence that the parent neglected the child pursuant to N.J.S.A. 9:6-8.21(c)(4).

Here, in addition to defendant's admission that she drank two beers and three shots of alcohol, the credible testimony from the officer showed that defendant "appeared nervous, was glassy-eyed, smelled of alcohol, was unsteady on her feet, [and] had to hold onto the vehicle to steady herself." And the psycho-motor testing conducted at headquarters verified the officer's observations. We are satisfied that there was competent, credible evidence in the record to support Judge Foti's finding that defendant neglected her child. Defendant's actions plainly placed T.G. at a serious risk of harm. We therefore perceive no basis for disturbing the judge's ruling.

After careful consideration of the record, we are satisfied that plaintiff's remaining arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The child (T.G.) was born in 2002.

2 Effective June 29, 2012, the New Jersey Division of Youth and Family Services was renamed the Division of Child Protection and Permanency (the "Division"). L. 2012. c. 16.

3 This statutory definition applies to both a neglected child and abused child.