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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1220-12T4

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

B.B.S. a/k/a B.S. and P.W.F.

a/k/a P.F.,

Defendants-Appellants.

IN THE MATTER OF L.S.,

A Minor.

April 29, 2014

Submitted April 1, 2014 Decided

Before Judges Reisner and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-183-12.

Joseph E. Krakora, Public Defender, attorney for appellant B.S. (Angela Rodriguez, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant P.F. (Miles Lessem, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor L.S. (Christopher A. Huling, Designated Counsel, on the brief).

PER CURIAM

In this Title 9 case, defendants P.F. (mother) and B.S. (father) appeal from a finding that their child L.S. was a neglected child, within the meaning of the statute, N.J.S.A. 9:6-8.21(c)(2). We affirm.

I

The Division of Child Protection and Permanency (the Division) presented the following evidence at the fact finding hearing on January 5, 2012. Officer Belinda Villegas Ramos, an eleven-year veteran of the Camden Police Department, testified that she was on patrol the night of September 6, 2011. At about 1:00 a.m., she was dispatched to a call reporting a dispute between a man and a woman.1 When she arrived, she saw "a female and gentlemen arguing and a . . . female toddler, looking at her parents arguing." According to Ramos, "The child appeared to be tired, hungry, wet, dirty." B.S. told Ramos that he wanted P.F. to leave his home, but according to Ramos, both parents continued arguing with each other while the child watched.

Ramos recognized the adults because she had previously responded to calls concerning prior domestic disputes between them. Based on what she observed on September 6, she concluded that both parents "appeared to be drunk." Ramos testified that she had prior experience seeing these individuals when they were intoxicated, and that prior experience assisted her in being able to "determine if they were intoxicated on the night of September 6."

In her police report, which was admitted in evidence, Ramos had documented her contemporaneous observations on September 6:

Upon arrival I observed [P.F. and B.S.] outside of [a noted address on State Street in Camden] arguing and a toddler observing. I approached [defendants] and immediately noticed both were extremely intoxicated.

Officer Ramos testified that after she arrived, defendants continued to argue with each other. As Ramos was "trying to figure out how [she] was going to rectify the problem . . . . [P.F.] decided just to leave. And [B.S.] decided that he was going to go back into his . . . apartment." Ramos advised defendants that she could not just leave the child, in light of the child's physical condition, and the fact that the "two-year old toddler" had been left outside at 1:00 a.m. on a cold and rainy night.

Elaborating on the child's condition, Ramos testified that when she picked up the child to put her in the patrol car, she observed that the child "was soaked. Her Pamper was soaked. She was completely soaked." In response to questions from the judge, Ramos stated that the child was "filthy" and her clothing as well as her diaper was "soaked." Ramos testified that she did not stop to get the child a change of clothing before leaving the scene with her, because at that point the parents were still arguing, and she "just wanted to get away from that particular location."

Ramos told defendants that she was going to report the matter to the Division and she directed them to meet her at the police station. Ramos transported the child in her car, while her supervisor gave defendants a ride to the station. Ramos testified that she had responded to disputes involving defendants about twenty times, frequently because of arguments in which B.S. wanted P.F. to leave the premises. However, she had never seen a child with them before.

The Division also presented testimony from Jillian Mulhern, the Division case worker who went to the police department at 4:00 a.m. on September 6 in response to an emergency call. Mulhern's contemporaneous report of the incident, which was admitted in evidence, recounted her observation that P.F. appeared to be intoxicated at the police department, with bloodshot eyes and slurred speech.

Division worker Kevin Riley testified that he conducted an investigation starting on September 7, 2011. He reported that when he spoke to B.S. at about 11:00 a.m. on September 7, B.S. smelled of alcohol, although he did not appear to be intoxicated. Riley and Mulhern both agreed that B.S. acted reasonably in allowing P.F. to stay with him, after she and the child were evicted from their previous residence. According to Riley, B.S. told him that there were some "parolees" living in the boarding house where he resided, and B.S. refused to let Riley inspect the one room in which he lived.

In his hearing testimony, B.S. stated that P.F. had moved in with him a couple of weeks before September 6, after being evicted from her apartment. He and P.F. had lived together on and off for about ten years, and he had stayed overnight at P.F.'s apartment on a regular basis before she was evicted. According to B.S., he was barbecuing on the late afternoon of September 6 and "had a few beers." After the barbecue, around 9:30 or 10:00 p.m., he put the baby to bed and started cleaning up. While he was cleaning up the yard, he and P.F. got into an extended argument. At about 11:30 p.m., B.S. became concerned that the argument was getting "out of hand." He called the police, but they did not arrive until about 1:00 a.m.

According to B.S., he woke the baby up and brought her downstairs when the police arrived. He denied that the baby was standing outside in the rain. He testified that he "was standing in the door while the cops were talking." He stated that Officer Ramos then told him to take the baby into the house.

B.S. testified that initially "The cop told [P.F. that] the baby could stay with me." However, B.S. testified that Ramos took the baby and made the parents come to the police station only because P.F. continued to argue with her. B.S. also denied ever telling Riley that he could not inspect his apartment. He denied that Ramos had ever been to the house before the September 6 incident, although she had been there after that incident. He stated that Ramos had been to the house "a couple [of] times" after September 6 due to domestic disturbances between him and P.F.

With respect to P.F., the Division introduced reports concerning her prior substance abuse problems, and prior history of substantiated child neglect. She had a past history of ten substantiated investigations for neglect between 1989 and 2006, relating to various of her eleven children. In 2009, she had a prior substantiated incident of neglect with L.S., in which she took the child to a park while drunk. The child fell out of the stroller onto a concrete surface, but P.F. did not seek medical attention for her.

In a written opinion, Judge Octavia Melendez determined that the Division had proven its case by a preponderance of the evidence. Judge Melendez found Officer Ramos to be a credible witness. The judge found that Ramos knew defendants because she had previously "been dispatched to the location about twenty times" to deal with domestic disputes between them. Judge Melendez credited Ramos's testimony that she found the child "outside watching her parents arguing" and that the child appeared "to be wet, dirty, and hungry." The judge also credited Ramos's testimony that "based on her previous encounters with [defendants] she was able to determine that both individuals were drunk," and that Ramos took custody of the child out of concern for her welfare. The judge also credited Riley's testimony that B.S. told him that some of his fellow boarding house residents were "parolees" and that B.S. refused to let Riley inspect his room.

The judge found that both B.S. and P.F. were drunk when Ramos arrived. She further found that "[n]ot only were both individuals intoxicated while caring for [the child], they were involved in a domestic dispute which left [the child] outside in the rain watching the argument." The judge further credited testimony that the child was "dirty, and having a foul odor." In addition, "she was not only dirty, it was about 1 a.m. when she was downstairs in the rain and both parents were intoxicated to levels where the Division felt they could not appropriately care for her." The judge found that P.F. had a continuing problem with alcohol and substance abuse that had resulted "in the removal of her other children." She noted that this was the second time L.S. had been removed from P.F.'s custody due to defendant's alcohol abuse."

II

In reviewing Judge Melendez's decision we are bound by her factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577-78 (App. Div. 2010). We owe particular deference to a trial judge's credibility determinations and to the expertise of Family Part judges. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Having reviewed the record, we find no basis to disturb Judge Melendez's determination that both defendants neglected or abused their child.

An abused or neglected child is defined, in relevant part 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, as herein defined, 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 though 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;

[N.J.S.A. 9:6-8.21(c)(4).]

In applying this standard, the State need not wait until a child actually suffers serious harm if a parent is putting the child at risk of harm. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999); see N.J. Div. of Youth & Fam. Servs. v. R. M., 411 N.J. Super. 467, 481 (App. Div.) (parent was under the influence of drugs and alcohol while caring for her children and would have driven with them if not prevented from doing so), certif. denied, 203 N.J. 439 (2010). "Cases of this nature -- particularly where no actual harm but only a risk of harm is proven -- are quite fact sensitive. The question focuses on whether the parent failed to exercise 'a minimum degree of care.'" N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 253 (App. Div. 2012) (citation omitted). In turn the minimum degree of care standard is keyed to whether a parent acts negligently or in a grossly negligent or reckless manner.

That focus on the parent's level of culpability in assessing a "minimum degree of care" language is in synchronicity with the Legislature's expressed purpose to safeguard children. Indeed, where a parent or guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger. To the contrary, where a parent is merely negligent there is no warrant to infer that the child will be at future risk.

[N.J. Div. of Youth & Fam. Servs. v. T.B., 207 N.J. 294, 307 (2011).]

Further, in determining whether a finding of abuse and neglect is warranted, the court may consider a parent's prior history of abusing or neglecting her children. I.H.C., supra, 415 N.J. Super. at 573-74; N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 482 (App. Div.), reaff'd on reconsideration, 416 N.J. Super. 414 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011).

On this appeal, B.S. raises the following points of argument:

POINT ONE

JUDGE MELENDEZ'S FINDING OF ABUSE AND NEGLECT IS NOT SUPPORTED BY THE EVIDENCE WITHIN THE RECORD BELOW AND MUST BE REVERSED IN THE INTEREST OF JUSTICE.

A. JUDGE MELENDEZ'S FINDING OF ABUSE AND NEGLECT WAS BLATANTLY INCONSISTENT WITH THE EVIDENCE AND MUST BE REVERSED.

B. JUDGE MELENDEZ'S FINDING THAT [B.S.] WAS INTOXICATED AND THEREFORE ABUSED AND NEGLECTED [L.S.] IS NOT SUPPORTED BY THE EVIDENCE.

POINT TWO

THE STATE FAILED TO PROVE THAT [L.S.] WAS HARMED OR IN IMMINENT [DANGER] OF BEING HARMED BASED ON A PREPONDERANCE OF THE EVIDENCE.

POINT THREE

EVEN IF [L.S.] WAS HARMED, THE STATE FAILED TO PROVE BY A PREPONDERANCE OF THE COMPETENT, RELEVANT AND MATERIAL EVIDENCE THAT [B.S'S] CONDUCT WAS "GROSSLY OR WANTONLY NEGLIGENT"

P.F. raises the following argument:

THERE IS NO EVIDENCE THAT DEFENDANT, P.F., ABUSED OR NEGLECTED HER CHILD, L.S.

We conclude that Judge Melendez's factual findings are supported by sufficient credible evidence and, in light of those findings, we affirm her determination that both defendants abused and/or neglected the child. Defendants' appellate arguments are without sufficient merit to warrant discussion beyond the following comments. R. 2:11-3(e)(1)(E).

On this appeal, P.F. argues that there was a hiatus of two years between the last finding that she abused or neglected L.S. in 2009, and the date of this incident. She also argues that the child was not actually injured. Neither point is convincing. P.F. lost custody of ten of her other children due to her inability to properly care for them. She also has a history of drug and alcohol problems, putting the child at risk for future alcohol related incidents of neglect.

Both defendants argue that Ramos should have administered a Breathalyzer test or field sobriety tests before she or the court could determine that they were drunk. We disagree. It was not necessary for Officer Ramos, a highly experienced police officer who had seen the parties intoxicated on numerous prior occasions, to administer a Breathalyzer in order to determine that they were drunk on this occasion. Further, in his testimony, B.S. admitted that he had been drinking. The case worker also observed that P.F. was so intoxicated that she was incoherent when the worker interviewed her at the police station. B.S.'s additional arguments are based on his version of the facts, which Judge Melendez did not find credible.

Defendants left a two-year-old child outside on the street in Camden at 1:00 a.m., on a cold and rainy night. She had, effectively, no adult supervision because both parents were drunk and absorbed in arguing with each other. Both parents were responsible for this situation, the perils of which are obvious. Further, Officer Ramos found the child was hungry, soaked, and filthy.

Although only P.F. had a prior history of child neglect, both defendants had a long history of domestic disputes of sufficient magnitude that Ramos had been to their home at least twenty times. The fact that in this case, they put their domestic hostility ahead of their child's physical safety and well-being strongly suggested that the child would not be safe with them in the future, so long as their domestic problems remained unresolved. In fact, in his testimony, B.S. acknowledged that the couple had a longstanding problem with domestic disputes. Finally, at the emergency removal hearing on the day after this incident occurred, both parents appeared in court and admitted under oath that, if they submitted to a urine test that day, they would test positive for illegal drugs.

We conclude that both defendants acted in a grossly negligent manner during the September 6 incident, and the finding of child abuse and/or neglect was warranted.

Affirmed.

1 Ramos was not certain who made the 911 call that resulted in her being dispatched to the scene.