DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.F.

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                        NOT FOR PUBLICATION WITHOUT THE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-3533-16T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

A.F.,

        Defendant-Appellant,

and

J.G.,

     Defendant.
_______________________________________

IN THE MATTER OF H.G., L.G. and D.G.,

     Minors.
_______________________________________

              Submitted March 5, 2018 – Decided March 16, 2018

              Before Judges Sabatino and Rose.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex
              County, Docket No. FN-12-0182-15.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Theodore J. Baker, Designated
              Counsel, on the brief).
            Gurbir S. Grewal, Attorney General, attorney
            for respondent (Melissa H. Raksa, Assistant
            Attorney General, of counsel; Christina
            Duclos, Deputy Attorney General, on the
            brief).

            Joseph E. Krakora, Public Defender, Law
            Guardian, attorney for minors (James J. Gross,
            Designated Counsel, on the brief).

PER CURIAM

       After a two-day fact-finding hearing, the trial court found

the proofs established abuse or neglect by defendants A.F. ("the

mother") and J.L. ("the father") of their three children, H.G.,

L.G. and D.G.1    The mother now appeals, but the father has not.

We affirm.

       The key incident here occurred on January 8, 2015 when the

mother and father had an extensive heated argument at their

residence.    The mother took the three minor children out to the

car and put them in the back seat.      The father kicked the car,

continuing the argument.      The mother responded by admittedly

driving the car toward him in the direction of a concrete step.

The car struck the father, but apparently did not hurt him.       The

father then retaliated by smashing the car's windshield.     All of

this occurred while the children were in the car. A police officer




1
    We use initials to protect the minors' privacy.

                                  2                          A-3533-16T4
arrived and saw the tire tracks leading to the concrete step that

confirmed the accident.

     The   Division    of   Child   Protection   and   Permanency     ("the

Division") removed the children from defendants' care and custody

following the incident.      The ensuing investigation revealed the

mother had admittedly been using heroin for the past two months.

The Division administratively substantiated both parents for abuse

and neglect under 
N.J.S.A. 9:6-8.21(c).

     At the ensuing fact-finding hearing in the Family Part, three

Division caseworkers testified, along with the police officer who

had investigated the scene.     The defense and the Law Guardian put

on no witnesses.      No expert witnesses testified.

     In his oral opinion and corresponding written order after the

hearing, Judge Arnold L. Natali, Jr., found that the parents'

conduct had placed the children in imminent danger of being harmed

and that their behavior justified a finding of abuse or neglect.

The judge summarized his conclusion in the following excerpt from

his order:

           The defendant(s), [the mother] and [the
           father], abused or neglected the child(ren)
           based on the court's findings of fact and
           conclusions of law pursuant to 
N.J.S.A. 9:6-
           8.21(c), as follows: The defendants, with a
           history of domestic violence, engaged in an
           incident of domestic violence in which
           [mother] intentionally drove her vehicle
           toward the home and struck [father] with her

                                     3                              A-3533-16T4
              vehicle while he was on the first step of the
              home (the step described as a concrete block
              step, see P-4).    During this incident, the
              minor children were in the back seat of the
              car.   During the same incident [the father]
              punched the windshield of the vehicle breaking
              it while knowing the minor children were in
              the back seat.    Additionally, [the mother]
              admitted to a history of substance abuse and
              use while providing care to the children and
              had paraphernalia in her possession during
              said domestic violence incident. The [c]ourt
              finds that the defendant[s'] actions, in their
              totality, were grossly negligent and failed
              to exercise a minimum degree of care and
              placed the children in imminent danger of
              being impaired due to their actions on January
              8, 2015.

              [(Underscoring omitted).]

In his order, the judge checked the box for "established," rather

than   "substantiated,"      abuse    or   neglect.        His   oral    opinion

consistently notes a finding of "established" abuse or neglect.

See N.J.A.C. 3A:10-7.3(c)(2) (explaining the difference between

those degrees of findings).           Neither the Division nor the Law

Guardian have cross-appealed that aspect of the judge's findings.

       The    mother's   brief   on   appeal   attempts     to   minimize     her

behavior.      She stresses that the children suffered no actual harm

by witnessing the incident, and that the police officer did not

observe them to be upset or distressed.          In addition, she did not

harm    her    children's   father     physically     by    what   her     brief

characterizes as a "glancing blow."            She maintains that she did


                                       4                                 A-3533-16T4
not engage in a degree of gross negligence sufficient to support

the court's determination under the Title Nine statute.

       Our scope of review on appeal is a narrow one. "To the extent

the appellate issues concern a trial court's findings of fact or

credibility determinations, we accord substantial deference and

defer to the factual findings of the Family Part if they are

sustained by adequate, substantial, and credible evidence in the

record."    N.J. Div. of Child Prot. & Permanency v. N.B., ___ N.J.

Super. ___, ___ (App. Div. 2017) (slip op. at 9) (citing N.J. Div.

of Youth & Family Servs. v. R.G., 
217 N.J. 527, 552 (2014)).      The

trial court's decision in such Title Nine cases should only be

reversed or altered on appeal if the findings below were "so wholly

unsupportable as to result in a denial of justice."    N.J. Div. of

Youth & Family Servs. v. P.P., 
180 N.J. 494, 511 (2004) (quoting

In re Guardianship of J.N.H., 
172 N.J. 440, 472 (2002)).    We only

apply de novo review to the trial court's rulings on questions of

law.    See Manalapan Realty, LP v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378 (1995).

       Applying these standards of review, we affirm the findings

of abuse or neglect, substantially for the well-supported reasons

articulated by Judge Natali.     Although the children fortunately

were not physically harmed in the car, we agree with the judge

that they were clearly placed at imminent risk of harm.    See N.J.

                                  5                          A-3533-16T4
Div. of Youth & Family Servs. v. F.M., 
211 N.J. 420, 449 (2012)

(explaining that a child need not experience an actual injury for

abuse or neglect to be proven). If the car had been driven forward

for a few more seconds, the impact could have either killed or

seriously injured the father while the children were watching, or

perhaps smashed the car into the building and injured the children

as well.    The mother's behavior under the circumstances bespeaks

a failure to provide a "minimum degree of care" that was grossly

or wantonly negligent, but not necessarily intentional towards the

children.   G.S. v. Dep't of Human Servs., 
157 N.J. 161, 181 (1999)

(citation omitted).

     To the extent the mother argues that she was unfairly found

responsible for neglect due to her admitted past drug use without

concomitant proof that such drug use endangered the children, that

argument is unavailing.   See N.J. Dep't of Children & Families v.

A.L., 
213 N.J. 1, 24 (2013) (explaining that not all instances of

parental drug use will equate to abuse or neglect under Title

Nine). The judge's opinion explicitly did not rest his conclusions

on her drug usage.

     Affirmed.




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