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

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                                NOT FOR PUBLICATION WITHOUT THE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-1515-17T2


NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

          Plaintiff-Respondent,

v.

C.C.,

          Defendant,

and

B.C.,

     Defendant-Appellant.
___________________________________

IN THE MATTER OF K.C.,

     a Minor.
___________________________________

                    Submitted November 1, 2018 – Decided December 26, 2018

                    Before Judges O'Connor and Whipple.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Bergen County,
            Docket No. FN-02-0186-15.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Deric D. Wu, Assistant Deputy Public
            Defender, of counsel and on the brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason W. Rockwell, Assistant Attorney
            General, of counsel; Julie B. Colonna, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Danielle Ruiz, Designated Counsel,
            on the brief).

PER CURIAM

      Defendant B.C.1 (Brad) appeals from the April 1, 2016, Family Part order

after a fact-finding trial wherein the judge determined Brad had abused or

neglected his son. We affirm.

      Brad and C.C. (Claire) are the biological parents of K.C. (Ken), born June

23, 2003.   Ken was diagnosed as being on the autism spectrum and is

homeschooled. Brad was actively involved parenting Ken as a primary caretaker

and teacher. On November 15, 2014, during an argument between Brad and

Claire, Brad threatened to pour bleach on Claire's clothing. The encounter


1
  We use pseudonyms to protect the identity of the family and because it allows
for ease of reference when family members have similar initials.
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resulted in Brad pouring bleach on Ken. Brad asserted it was an accident and

he never intended to hurt Ken.

      Brad was arrested and charged with child endangerment and aggravated

assault. Emergency Medical Service workers poured saline solution on Ken and

advised him to take a shower. A Division of Child Protection and Permanency

(Division) Special Response Unit worker visited the family home and observed

several red burn marks on Ken's arm. Claire obtained a temporary restraining

order against Brad that she later withdrew. The next day, Ken was treated at a

hospital emergency room for first-degree burns.

      On November 20, 2014, the Division's investigative worker spoke with

Brad. Brad acknowledged his argument with Claire and admitted taking Claire's

clothes and attempting to pour bleach on them. He claimed Claire pushed him

and that is what caused him to spill the bleach onto the clothing and Ken.

      The Division worker told Brad the Division would be implementing a

safety protection plan, requiring Brad to stay away from the home and Ken

unless under supervision. Brad told the worker he would comply with the plan

but he did not sign the safety plan.

      On January 15, 2015, the Division filed a verified complaint and an order

to show cause pursuant to  N.J.S.A. 9:6-8.21 and  N.J.S.A. 30:4C-12 against


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Claire and Brad for care and supervision of Ken. The Family Part judge granted

the Division's application. Claire retained physical custody of Ken; however,

the court barred Brad from the family home and required contact between him

and Ken be supervised.

      On January 29, 2015, the court ordered the parents to comply with

services, including domestic violence counseling, couples counseling, and

parenting classes. Brad had weekly supervised visits with Ken. On February 4,

2015, Division worker Patrick Yan met with Claire at the family home. Yan

advised Claire he would make unannounced visits to the home and Brad was not

to be with Ken unsupervised.        Yan told Claire if Brad was with Ken

unsupervised, the Division could remove Ken from the home.

      On March 6, 2015, when Yan conducted an unannounced home visit he

saw what he suspected to be Brad's car. Yan did not find Brad in the home and

Ken said he had not seen his father but missed him. Yan called Brad and

reiterated that if he were found to be in the home with Ken it could lead to Ken's

removal.

      On March 12, 2015, in lieu of a fact-finding hearing regarding the

Division's allegations under Title 9, Brad stipulated that because of the

November 2014 "disagreement" between him and his wife, it was in Ken's best


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interest for his family to accept Division services under Title 30. The Title 9

action was dismissed; however, the judge maintained the restraints against Brad.

      The next day, Yan conducted an unannounced visit where he again

observed what he thought was Brad's car. Yan was unable to contact Claire.

Yan called his supervisor and then asked the police to remove Ken if Brad was

in the home. Ultimately, Brad opened the door and was in the home with Ken

unsupervised.

      Brad was visibly irate and yelled, but did not resist Ken's removal. Yan

alleged Brad told Ken the Division was going to kidnap him, causing Ken to

become upset. Claire arrived home soon after; she said that she did not know

Brad would be at the house and that she had left the house to run errands that

morning. The Division removed Ken from the home and placed him in the care

of a family friend.

      The caseworker spoke with Ken regarding what happened. Ken stated he

lived with his mother and father, he last saw his father "today," his father slept

with Claire the night before, and that his father never lived anywhere else.

      On March 17, 2015, the Division filed a new complaint and reinstated the

Title 9 litigation. The court ordered that Ken reside with the family friend and

contact between Ken and Claire be supervised by the friend. The Division would


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supervise Brad's contact with Ken. The court determined the emergent removal

of Ken was appropriate because Brad violated the court's order.

      The Family Part judge held a fact-finding trial August 14 and November

19, 2015.   The Division submitted evidence and testimony from Division

workers Yan and Quesy Ithier. The judge also attempted to interview Ken on

November 19, 2015, but the interview was cut short because Ken became upset.

      On April 1, 2016, the judge issued an oral decision and order finding Brad

abused or neglected Ken.      The judge found Yan and Ithier were credible

witnesses, determined Brad was aware of the January 15, 2015 court order

restricting his contact with Ken, and violated the order when he was in the home

with Ken without supervision.     Further, because at the time Brad had not

engaged in services to address domestic violence and anger management, Brad

placed Ken at a substantial risk of harm.

      On April 7, 2016, the court entered a disposition order continuing Brad's

restraints but allowing him additional time to complete services so the Title 30

litigation could be dismissed without additional restraints on his contact with

his son. On October 19, 2017, the court dismissed the litigation and continued

the parents' joint legal custody of Ken based upon Brad's compliance with

services. This appeal followed.


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      On appeal, Brad argues the Division provided no evidence his

unsupervised time with his son created an imminent and substantial risk to the

child. We disagree.

      "We have a strictly limited standard of review from the fact-findings of

the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C.,  415 N.J.

Super. 551, 577 (App. Div. 2010). "[We] '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.'" N.J. Div. of Youth

& Family Servs. v. M.C. III,  201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of

Youth & Family Servs. v. E.P.,  196 N.J. 88, 104 (2008)).

      Moreover, "[b]ecause of the family courts' special jurisdiction and

expertise in family matters, appellate courts should accord deference to family

court factfinding." Cesare v. Cesare,  154 N.J. 394, 413 (1998). This deference

applies "unless it is determined that they went so wide of the mark that the judge

was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L.,  191 N.J.
 596, 605 (2007).

      Questions of law determined by the trial court require de novo review by

the appellate court. Smith v. Millville Rescue Squad,  225 N.J. 373, 387 (2016)


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(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378

(1995)).

      The definition of abuse or neglect under  N.J.S.A. 9:6-8.21(c) is as

follows:

            (4) [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
            parents 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 . . . .

Our Supreme Court has said the standard for abuse and neglect is met when a

parent's conduct is at least "grossly or wantonly negligent." G.S. v. Dep't of

Human Servs.,  157 N.J. 161, 178 (1999). A parent "fails to exercise a minimum

degree of care when he or she is aware of the dangers inherent in a situation and

fails [to] adequately supervise the child or recklessly creates a risk of serious

injury to that child." Id. at 181. In making this determination, courts analyze

the harm to the child and whether the harm could have been prevented. Id. at

182. The Division must show substantial and imminent danger or substantial

risk of harm to the child, but need not wait until the child is harmed. N.J. Dep't


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of Children & Families, Div. of Youth & Family Servs. v. A.L.,  213 N.J. 1, 22-

23 (2013).

      The Family Part judge found Brad was aware of the order restricting his

contact with his son, yet Brad violated the order by being in the home alone with

Ken without the requisite supervision. Nevertheless, the court made clear the

violation of the order did not automatically necessitate a finding of abuse or

neglect. However, the fact that Brad previously injured Ken during a domestic

dispute and Brad did not engage in services to mitigate the risk of harm his

actions posed to Ken, required restricting Brad's contact with Ken to protect the

child from imminent and substantial risk of harm. Under those circumstances,

the court found Brad's willful violation of an order restricting unsupervised

contact fell short of the exercise of a minimum degree of care.

      Brad argues the Division did not articulate a specific type of harm to Ken

caused by the unsupervised contact. However, Ken was harmed when the

domestic dispute between Brad and Claire resulted in bleach being poured on

Ken. As a direct result, restraints were placed on contact between Ken and Brad.

On March 12, 2015, although he did not stipulate to abuse or neglect for the

bleach incident, Brad stipulated his involvement in a disagreement between

himself and his wife led to the family needing Division services. He violated


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the court order less than twenty-four hours later. Notably, there is substantial

evidence in the record Brad knew his unsupervised contact with Ken could result

in the child's removal, thus his intentional defiance of the court's order was

knowing and willful gross negligence that resulted in the imminent harm of

further destabilizing Ken's life because he was again removed from his home.

Given evidence of Brad's willful violation of a court order and failure to address

his behavioral problems, the Division provided sufficient evidence imminent

harm could have resulted and, in fact, did result from Brad's unsupervised

presence in the home.

      Affirmed.




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