NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. F.G.

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NOT FOR PUBLICATION WITHOUT THE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.

F.G.,

Defendant-Appellant,

and

C.M.,

Defendant.

___________________________________________

IN THE MATTER OF J.G., K.G., A.G.,

and M.G.,

Minors.

____________________________________________

September 23, 2015

Submitted September 16, 2015 Decided

Before Judges Yannotti, St. John, and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-0219-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Leviston N. Brisolla, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Francesco Ferrantelli, Jr., Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.G., K.G., A.G., and M.G. (Margo E.K. Hirsch, Designated Counsel, on the brief).

PER CURIAM

Defendant F.G. appeals from the Family Part's December 10, 2014 order finding that he abused or neglected his then seven-year-old daughter, K.G. (Kerry),1 by driving while intoxicated with Kerry in the car, colliding with another vehicle, and thereby causing minor injuries to the child.

We glean the following from the testimony presented and documents introduced during the five-day fact-finding hearing. On November 16, 2013, defendant was driving with Kerry when he collided with a parked vehicle. At 8:43 p.m., Franklin Township Police Officer Gilbert Martinez, Jr. was dispatched to investigate the accident. Martinez noticed that both vehicles suffered "heavy damage," with the parked vehicle propelled almost thirty feet by the impact as evidenced by skid marks. The right front wheel of defendant's car, a Ford Expedition, had been ripped from the axle.

Martinez spoke with defendant and detected a strong odor of alcohol on his breath. He noticed that defendant had bloodshot, watery eyes and slurred speech. Martinez administered the three-part Horizontal Gaze Nystagmus field sobriety test. Defendant failed all three sections of the test.2 Defendant admitted that he drank three Corona beers between 5:00 and 6:00 p.m. that evening, and was placed under arrest by Martinez.

Kerry was taken to Robert Wood Johnson Hospital (RWJ) by ambulance, accompanied by defendant and Martinez. Kerry was examined by Dr. Juliette Quintero-Solivan and reported hitting the front and back of her head during the accident. She complained of "neck pain and mild global headache." Dr. Quintero-Solivan diagnosed Kerry with neck strain and a scalp hematoma, which she described as a bleeding that occurs below the surface of the skin. X-rays of Kerry's neck were negative. Kerry was discharged with a prescribed over-the-counter pain and anti-inflammatory medication. A follow-up visit with her pediatrician was recommended.

A nurse from the emergency room notified the Division of Child Protection and Permanency (DCPP) of the accident and caseworker Janette Smith was dispatched to RWJ. Smith spoke with Kerry who stated that she had been with her father earlier that evening at a friend's house and he was drinking beer. Kerry explained that, on the way home, her father drove into a parked car. Smith observed a "raised bump" on Kerry's forehead, and the child complained of neck and back pain.

Smith then went to the trauma unit to speak with defendant, but found him "incoherent" and was unable to interview him because of his high level of intoxication. Smith noted that defendant was unable to sit up or form sentences and he appeared to not even know she was in the room.

On the following day, defendant spoke with another caseworker, Jacqueline Cardona, and told her that he drank three cans of beer at a friend's home before the accident. When Cardona asked defendant why his blood alcohol level was so high,3 he said that he assumed it was because he drank the beers too quickly. Defendant also admitted that he was driving that evening without a license.

At the fact-finding hearing, the Division called Officer Martinez, Dr. Quintero-Solivan, and caseworkers Janette Smith, Jacqueline Cardona, Lee Xenakis, and Ophelia Ortiz. Defendant called Dr. Steven Kairys who was accepted as an expert in the field of pediatrics. Dr. Kairys did not interview or examine Kerry, but was provided with her medical records along with police reports and Division records. He concluded that Kerry suffered a cephalohematoma, which he described as "some bleeding from the scalp in the tissue between the skull bone and the skin." He concluded that this type of injury would not cause any long-term impairment of Kerry's health and would usually resolve in four to six weeks.

Defendant also called Kenneth Billups, the Division's permanency worker assigned to this case. Billups testified that defendant successfully completed all services and was described in reports by service providers as an "exemplary client."

Judge Arnold L. Natali, Jr. issued a forty-seven page written opinion finding that the Division proved by a preponderance of the evidence that Kerry was an abused or neglected child. Judge Natali first found that defendant failed to exercise a minimum degree of care when he drove his car while inebriated with his minor child as a passenger. Judge Natali then found that Kerry suffered harm as a result of the accident, and rejected defendant's argument that the child's minor injury did not rise to the level of impairment as that term is utilized in N.J.S.A. 9:6-8.21(c)(4).

On appeal, defendant raises the following points

i.

dcpp failed to prove that [DEFENDANT] violated N.J.S.A.9:6-8.21(c)(4)(b) and therefore the court's finding of abuse and neglect cannot be sustained.

a. the division failed to prove that [DEFENDANT]'s conduct was willful and wanton in regards to his intoxication.

b. the division failed to prove that [DEFENDANT] caused upon [KERRY] a protracted disfigurement impairment or loss or impairment of any bodily organ.

c. the division failed to prove that [DEFENDANT] posed a substantial risk of harm to [KERRY].

ii.

the court improperly relied upon inadmissible hearsay evidence and improperly weighed hearsay evidence in violation of the new jersey rules of evidence.

iii.

the trial court's fact finding decision must be reversed as the division did not prove by a preponderance of the evidence that [DEFENDANT] abused and neglected [KERRY].

After carefully considering the record and applicable legal principles, we are not persuaded by these arguments and affirm substantially for the reasons stated by Judge Natali in his thorough and comprehensive decision. We add only these brief observations.

N.J.S.A. 9:6-8.21(c)(4) defines an "abused or neglected child" as a child under the age of eighteen years

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 . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]

A parent or guardian who permits a child to ride with an inebriated driver acts inconsistently with N.J.S.A. 9:6-8.21(c)(4). N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 68 (App. Div. 2014). In J.A., we affirmed a finding of abuse or neglect against a father who failed to prevent his wife from driving their children while she was intoxicated. Id. at 64. We concluded that "no reasonable person could fail to appreciate the danger of permitting children to ride in a motor vehicle driven by an inebriated operator." Id. at 69.

As Judge Natali noted, the evidence that defendant drove his vehicle in an impaired state was "overwhelming." Defendant's argument that the Division failed to provide evidence that he drove while legally intoxicated lacks merit and is refuted by his own admissions, the observations of the police and the caseworkers, and the treating physician's diagnosis4 of "alcohol intoxication." The act of driving while intoxicated with his daughter in the car, even without any ensuing injury to the child, constituted gross negligence by defendant. See J.A., supra, 436 N.J. Super. at 69-70. Proof of the severity of Kerry's injuries was not a required element needed to establish defendant's willful and wanton conduct. Rather, her injuries provided further proof of the imminent risk posed by defendant's gross negligence.

Affirmed.

1 We employ pseudonyms to protect the minor and for ease of reference.

2 Martinez explained that he did not administer the two other standard field sobriety tests, the "walk-and-turn" and "one-legged-stand," because defendant had injured his right ankle and was walking with a limp.

3 A blood test administered at 9:49 p.m. indicated that defendant's blood alcohol concentration (BAC) was 216.9 mg/dL or .21%, more than double the legal limit for operating a motor vehicle of .08%. See N.J.S.A. 39:4-50. While the report containing defendant's BAC was included in defendant's appendix, the report was never offered or admitted into evidence at the fact-finding hearing. We do not consider this report on appeal, Rule 2:5-4, and reference it only to place Cardona's question in context.

4 Although the report of defendant's BAC was not admitted, the final disposition order containing the "alcohol intoxication" diagnosis by defendant's treating physician was admitted and properly considered by Judge Natali.