Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the OF CHILD PROTECTION AND PERMANENCY v. K.L. and H.R and A.M IN THE MATTER OF A.R. and A.M Minors.1

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0610-16T3


NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

K.L. and H.R.,

        Defendants,

and

A.M.,

        Defendant-Appellant.

________________________________

IN THE MATTER OF A.R. and A.M.,

     Minors.1
________________________________

              Submitted November 28, 2017 – Decided December 15, 2017

              Before Judges Carroll and Mawla.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Cumberland
              County, Docket No. FN-06-0108-16.


1
    A.M. ("Adam") is the only minor relevant to this appeal.
            Joseph E. Krakora, Public Defender, attorney
            for appellant (Laura M. Kalik, Designated
            Counsel, on the briefs).

            Christopher S. Porrino, Attorney General,
            attorney for respondent (Melissa Dutton
            Schaffer, Assistant Attorney General, of
            counsel; Jennifer Krabill, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law
            Guardian, attorney for minor A.M. (Lisa M.
            Black, Designated Counsel, on the brief).

PER CURIAM

       Defendant A.M. (Alfred), appeals from a September 1, 2016

Family    Part   order    entered   following      a   fact-finding      hearing

concluding he abused or neglected his eighteen-month-old son,

Adam.     Defendant      contends   the    New   Jersey   Division      of     Child

Protection    and   Permanency      (the    Division)     failed   to    present

sufficient evidence to support an abuse or neglect determination

under 
N.J.S.A. 9:6-8.21(c).         We affirm.

       The following facts are taken from the record.              Late in the

evening of January 17, 2016, K.L. (Katie)2 the biological mother

of Adam brought him home to the apartment she shared with Alfred.

Alfred was home with friends and drinking heavily.                   Alfred and

Katie continued to drink and both became intoxicated.




2
    We use pseudonyms to protect the children's privacy.

                                       2                                     A-0610-16T3
     By 2:00 am, Alfred's guests had left and he fell asleep.

Katie found Alfred's cellular telephone and discovered messages

between him and another woman.           Katie assaulted Alfred while he

was sleeping.      Alfred awoke to her blows and the two engaged in

mutual combat.

     Katie   was    holding   Adam   during   the   fight.    The   parties

exchanged blows and Adam fell from Katie's arms.

     Alfred left the apartment, leaving Adam in Katie's care even

though she was intoxicated. Katie also left the apartment, leaving

Adam behind unaccompanied.      Katie subsequently crashed her car and

was arrested.      Adam was found in the parties' home alone, but

unharmed.    The Division removed Adam and filed a complaint for

custody, which the trial court granted.

     The trial court conducted a fact finding hearing as to Alfred

alone, pursuant to 
N.J.S.A. 9:6-8.21(c).3           The Division presented

testimony from Jamie Muronsky, the caseworker who responded on the

evening of the incident.      Alfred and Katie also testified.

     The caseworker described Katie's condition after she was

arrested.    She described her as having "marks on her face and on

her neck."    Katie also had a clump of her hair in her pocket,

which Alfred had ripped out during the altercation.


3
  Katie had previously stipulated to an act of abuse or neglect
arising from the January 17 incident.

                                     3                              A-0610-16T3
     Katie testified she was holding Adam because he awoke during

the fight and came to her.   She testified Alfred knocked Adam out

of her hands.   Alfred denied he struck Katie once she was holding

Adam.   He also denied that he knocked Adam out of Katie's hands.

However, Alfred conceded he "shov[ed] [Katie] out of the way[,]"

and "mov[ed] her out the way so [he] could . . . go[.]"

     The trial judge found Katie's testimony was truthful and

credible.   The judge found Alfred's "testimony to be suspect"

because it was inconsistent with statements he gave to the Division

regarding the night of the incident contained in the Division's

Investigation   Summary   Report   (ISR).   Specifically,    Alfred

testified he did not strike Adam during the altercation, yet the

ISR recorded he did not recall whether he struck the child and had

to call Katie to ask her about the incident.

     The trial judge concluded both parties had been drinking

heavily on the night of the incident.   The judge also found there

was no dispute Katie was holding Adam during the altercation when

Alfred pushed her.     The judge determined Alfred struck Katie

because she was in his way as he was trying to exit the home.    The

judge found the clump of hair in Katie's pocket was pulled out by

Alfred and was evidence the parties engaged in mutual combat.

Thus, the judge rejected Alfred's claims of self-defense.        The

judge concluded:

                                   4                        A-0610-16T3
            [Alfred] was trying to get out of the house.
            He forced his way past [Katie] during that
            time and whether the baby fell out of her arms
            or whether the baby was punched by [Alfred],
            which [Katie] alleges did occur, I don't have
            to find that occurred.

            Because I find that just by pushing by her on
            this particular night and . . . when I look
            to the totality of the circumstances and
            [Alfred] pushing by [Katie] in a heightened
            state of agitation, after drinking . . . seven
            shots of Crown Royal, with a baby in [Katie's]
            arms[,]

            [w]hether [Alfred] was trying to get past
            [Katie] . . . by doing so he clearly put th[e]
            child's   physical,   mental   and   emotional
            condition in imminent danger of becoming
            impaired, as a result of his failure to
            exercise a minimum degree of care.

            And I do, in fact, find . . . by leaving the
            house, arguably by leaving that child with
            [Katie], who had been drinking, by [Alfred]
            drinking himself, that he was unreasonably
            putting this child at [a] substantial risk of
            harm.

       Accordingly, the trial judge found Alfred abused or neglected

Adam     pursuant    to   N.J.S.A.   9:6-8.21(c)(4)(b).     This      appeal

followed.

       We begin with our standard of review.          "[B]ecause of the

family    courts'    special   jurisdiction   and   expertise   in    family

matters, appellate courts should accord deference to family court

factfinding."       N.J. Div. of Youth & Family Servs. v. M.C. III, 
201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 
154 N.J. 394, 413


                                      5                              A-0610-16T3
(1998)).     "Moreover,     appellate          courts    'defer     to    the     factual

findings of the trial court because it has the opportunity to make

first-hand credibility judgments about the witnesses who appear

on the stand; it has a feel of the case that can never be realized

by a review of the cold record.'"                M.C. III, 
201 N.J. at 342-43

(quoting N.J. Div. of Youth & Family Servs. v. E.P., 
196 N.J. 88,

104 (2008)).

     "Although we defer to the trial court's findings of fact,

especially when credibility determinations are involved, we do not

defer on questions of law."            N.J. Div. of Youth & Family Servs.

v. V.T., 
423 N.J. Super. 320, 330 (App. Div. 2011) (citing N.J.

Div. of Youth & Family Servs. v. R.L., 
388 N.J. Super. 81, 88-89

(App. Div. 2006)).       However, "[f]indings by the trial judge are

considered     binding     on     appeal       when     supported        by     adequate,

substantial and credible evidence."               Pascale v. Pascale, 
113 N.J.
 20, 33 (1988) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,


65 N.J. 474, 484 (1974)).              "[W]e do not disturb the factual

findings and legal conclusions of the trial judge unless we are

convinced    that   they        are   so       manifestly    unsupported          by     or

inconsistent with the competent, relevant and reasonably credible

evidence as to offend the interests of justice[.]"                            Rova Farms,


65 N.J. at 484 (quoting Fagliarone v. Twp. of N. Bergen, 
78 N.J.

Super. 154, 155 (App. Div. 1963)).

                                           6                                      A-0610-16T3
     Alfred argues he could not have committed abuse or neglect

of Adam because it was not his intent to assault the child, but

rather to defend himself from Katie and flee from the residence.

He argues any blows Adam suffered were accidental.           Alfred also

asserts he could not have known Katie would leave Adam alone, get

into an automobile, and drive away.       Therefore, he asserts the

record   lacks   evidence   of   recklessness   or   gross    negligence

necessary to support a finding of abuse or neglect.

     The purpose of a fact-finding hearing is "to determine whether

the child is . . . abused or neglected."        
N.J.S.A. 9:6-8.44.      An

"[a]bused or neglected child" includes a minor 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[.]

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

     "Courts need not wait to act until a child is actually

irreparably impaired by parental inattention or neglect."          In re

Guardianship of DMH, 
161 N.J. 365, 383 (1999) (citing N.J. Div.

of Youth & Family Servs. v. A.W., 
103 N.J. 591, 616 n.14 (1986)).


                                   7                             A-0610-16T3
Though a past risk of harm is not proscribed by the statute, "a

guardian fails to exercise a minimum degree of care when he or she

is    aware   of   the   dangers   inherent     in    a     situation   and     fails

adequately to supervise the child or recklessly creates a risk of

serious injury to that child."           G.S. v. Dep't of Human Servs., 
157 N.J. 161, 181 (1999).

       "Whether the parent has exercised the requisite degree of

care is to be analyzed in light of the dangers and risks associated

with the particular situation at issue."                  N.J. Dep't of Youth &

Family Servs. v. J.L., 
410 N.J. Super. 159, 168 (2009) (citing

G.S., 
157 N.J. at 181-82).          "The inquiry must focus on the harm

to the child and 'whether that harm could have been prevented had

the guardian performed some act to remedy the situation or remove

the danger.'"        Ibid. (quoting G.S., 
157 N.J. at 182).                    "[T]he

fact-sensitive       nature   of   abuse     and     neglect    cases   turns        on

particularized evidence."          N.J. Div. of Youth & Family Servs. v.

A.L., 
213 N.J. 1, 28 (2013) (citation omitted).

       In making a finding of abuse or neglect, a court considers

"the totality of the circumstances, since '[i]n child abuse and

neglect cases the elements of proof are synergistically related.

Each proven act of neglect has some effect on the [child].                         One

act    may    be   "substantial"    or    the   sum    of    many   acts   may       be

"substantial."'"         V.T., 
423 N.J. Super. at 329-30 (quoting N.J.

                                         8                                    A-0610-16T3
Div. of Youth & Family Servs. v. C.H., 
414 N.J. Super. 472, 481

(App. Div. 2010)).   Pursuant to 
N.J.S.A. 9:6-8.46(b), "[u]nder the

preponderance standard, 'a litigant must establish that a desired

inference is more probable than not.'"         Liberty Mut. Ins. Co. v.

Land, 
186 N.J. 163, 169 (2006) (quoting Biunno, Weisbard & Zegas,

Current N.J. Rules of Evidence, cmt. 5a on N.J.R.E. 101(b)(1)

(2005)).

      We are satisfied the record supports the trial judge's finding

of abuse or neglect.       Alfred did not dispute he intentionally

shoved or pushed Katie while she was holding Adam.              There was no

dispute both Alfred and Katie were intoxicated during the incident.

The parties' intoxication and choice to engage in a physical

altercation with Adam in between them demonstrates a reckless

disregard for the child's safety.            Also, Alfred's decision to

leave Adam alone with Katie while she was intoxicated was grossly

negligent.

      Standing alone, perhaps Alfred's alcohol use or his leaving

Adam alone with Katie would not suffice for a finding of abuse or

neglect.   However, given the totality of the circumstances and the

trial judge's credibility findings to which we owe deference, we

are satisfied the adequate, substantial, and credible evidence in

the   record   supports   the   conclusion    Alfred   placed    Adam   at   a



                                    9                                A-0610-16T3
substantial risk of harm constituting abuse or neglect within the

meaning of N.J.S.A. 9:6-8.21(c)(4)(b).

    Affirmed.




                               10                         A-0610-16T3