DIVISION OF CHILD PROTECTION AND PERMANENCY v. O.M.

Annotate this Case

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NOT FOR PUBLICATION WITHOUT THE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-5296-15T2

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

Plaintiff-Respondent,

O.M.,

Defendant-Appellant,

and

M.G.,

Defendant.
______________________________

IN THE MATTER OF M.G.,

a Minor.
______________________________

Argued December 20, 2017 – Decided January 30, 2018

Before Judges Fuentes, Koblitz and Manahan.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0528-14.

Ifeoma A. Odunlami, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Ifeoma A. Odunlami,
on the brief).

Stephanie Asous, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Andrea
M. Silkowitz, Assistant Attorney General, of
counsel; Stephanie Asous, on the brief).

David Valentin, Assistant Deputy Public
Defender, argued the cause for minor (Joseph
E. Krakora, Public Defender, Law Guardian,
attorney; David Valentin, on the brief).

PER CURIAM

Defendant O.M. appeals from a July 31, 2014 Family Part order

finding that she abused or neglected her then fourteen-year-old

son, M.G. (Matt),1 in violation of
N.J.S.A. 9:6-8.21(c). The court

concluded that given defendant's level of intoxication and her

conduct directed toward Matt, she posed a substantial risk of harm

to her son. Defendant argues that the Division of Child Protection

and Permanency (Division) failed to meet its burden of proof, and

the decision of the court was not supported by credible and

relevant evidence, nor comported with controlling law. We disagree

and affirm.

The witnesses at the fact-finding hearing were Union City

Police Officer Paul Goodwin and Division supervisor/Special

1
We use pseudonyms for the convenience of the reader and to
protect the child's privacy. See R. 1:38-3(d)(12)

2 A-5296-15T2
Response Unit Investigator Magda Font. We discern the following

facts derived from the record of the hearing.

At approximately 2:30 a.m. on April 15, 2014, Goodwin and two

accompanying Union City police officers responded to defendant's

residence regarding a report of a dispute between a mother and

son. The residence consisted of one bedroom, a common room, and

a bathroom.

Upon their arrival, the officers observed defendant who

appeared to be "heavily intoxicated" and was slurring her speech.

The officers further observed that defendant was unable either to

maintain her balance or to articulate events, and that an odor of

alcohol was "emanating from her person."

As Goodwin attempted to question Matt, defendant continually

interrupted by screaming at her son in Spanish. Another officer

interpreted defendant's statements as telling Matt "to leave the

house and go sleep in the street." Goodwin observed Matt appeared

to be distraught and nervous, and was hesitant to relate the events

that occurred while in the presence of defendant. Due to

defendant's violent behavior and their concern for Matt's safety,

the officers stood between defendant and Matt.

Eventually, defendant was arrested and charged with

endangering the welfare of a child based upon the totality of the

circumstances. The circumstances included Matt's statement to

3 A-5296-15T2
Goodwin, defendant's state of intoxication and her violent

behavior. The police made a referral to the Division, which

resulted in Matt's emergent removal.

Font interviewed Matt at the Union City Police Department

that morning. Matt advised that he was awoken by defendant when

she arrived home around 2 a.m., and she insisted he throw her male

friend out of the apartment. Matt further advised that defendant

became upset when he went into the bathroom. Defendant retrieved

a knife from the kitchen and began to hit and stab the bathroom

door. Fearful for his safety, Matt remained in the bathroom.

Shortly thereafter, Matt heard defendant call the police,

whereupon, he left the bathroom and hid in a closet waiting for

the police to arrive.

Matt had seen defendant intoxicated before, but that night

she appeared "violent" and "out of control," which was not normal

behavior. Matt was afraid of defendant and thought she might kill

him.

Later that day, Yudi Gonzalez, a Division caseworker,

interviewed Matt. Matt expanded on his relationship with his

father, who lived in El Salvador, and described his father's

extreme abuse towards him. Matt alluded to the abuse as the reason

he and defendant moved to the United States from El Salvador.

4 A-5296-15T2
That same day, Font interviewed defendant, who was in jail.

Font believed defendant was under the influence of alcohol as she

smelled strongly of alcohol and had difficulty keeping focused on

one topic. Although defendant denied using a knife or threatening

Matt, defendant admitted that after drinking ten Corona beers, she

arrived home around 1 a.m. and found her son was upset. Defendant

stated that she believed Matt had left the house, which prompted

her call to the police. As the interview continued, defendant

disclosed that she did not want custody of Matt because she felt

it was his fault she got arrested. Defendant further elaborated

that during a prior incident, Matt failed to protect her from a

male who tried to choke her.

Defendant confirmed that Matt's father was abusive, but

indicated she felt that Matt deserved it. Defendant also confirmed

that it was due to that abuse that she and Matt relocated to the

United States.

On April 22, 2014, defendant was released from jail and

interviewed, at home, by a Division caseworker. Defendant stated

that she was not intoxicated on April 15, and in fact, consumed

only five beers that evening. Defendant again denied threatening

Matt. She also stated that her male friend did not accompany her

into her residence. When the caseworker asked about her plans

5 A-5296-15T2
regarding Matt, defendant replied that she "should have left him

over there [El Salvador]."

Defendant did not testify on her own behalf. Additional

supporting documents were entered into evidence on behalf of the

Division. At the conclusion of the hearing, the judge found both

witnesses' testimony extremely credible. In reaching the

determination of abuse or neglect, the judge held:

The [] statute talks about a parent
placing a child in imminent danger.
Certainly, [Matt] was in imminent danger of
being seriously hurt. This child was afraid
for his life. . . .

She was so intoxicated at the time that
she couldn’t control herself in front of three
police officers. And they were concerned for
the safety of the child. That to me is
creating a substantial risk of serious harm.
. . . [S]he was the danger to him, and the
intoxication and the violence, and the lack
of any indication she was willing or able to
be any sort of caretaker to that child . . .
certainly rises to the level of creating a
substantial risk of serious harm to this young
man.

And she had placed that child in imminent
danger both from the man she brought home at
2 a.m. while intoxicated and from her own
behaviors. So the [c]ourt finds that by a
preponderance of the evidence that she did
abuse and neglect [fourteen]-year-old [Matt].

II.

On appeal, defendant raises the following points:

6 A-5296-15T2
POINT [I]

THE TRIAL COURT ERRED IN FINDING THAT [MATT]
WAS ABUSED OR NEGLECTED WHERE NO ACTUAL HARM
WAS DEMONSTRATED AND WHERE THERE WAS A LACK
OF COMPETENT, MATERIAL AND RELEVANT EVIDENCE
OF IMMINENT HARM OR SUBSTANTIAL RISK OF HARM
SUBMITTED TO THE COURT.

A. [MATT] DID NOT SUFFER ANY ACTUAL
PHYSICAL OR EMOTIONAL HARM.

B. O.M.'S CONDUCT DID NOT PUT [MATT] AT
IMMINENT OR SUBSTANTIAL RISK OF
HARM.

POINT [II]

THE COURT IMPROPERLY CONSIDERED PREVIOUSLY
EXCLUDED HEARSAY BY THIRD PARTIES CONTRARY TO
THE NEW JERSEY RULES OF EVIDENCE.

POINT [III]

THE APPELLATE DIVISION SHOULD REVERSE THE
FACT-FINDING ORDER AS THE TRIAL COURT VIOLATED
O.M.'S DUE PROCESS RIGHTS BY FAILING TO ENSURE
THAT SHE WAS ABLE TO CONFRONT THE WITNESSES
AGAINST HER (NOT RAISED BELOW).

Our standard of review is well-settled. We are bound by the

trial court's factual findings if 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) (citations omitted). We accord

particular deference to the Family Court's fact-finding because

of the court's "special expertise" in family matters, its "feel

of the case," and its opportunity to assess credibility based on

witnesses' demeanor. N.J. Div. of Youth & Family Servs. v. E.P.,

7 A-5296-15T2

196 N.J. 88, 104 (2008); Cesare v. Cesare,
154 N.J. 394, 412-13

(1998). We also accord no deference to the "trial court's

interpretation of the law and the legal consequences that flow

from established facts . . . ." Manalapan Realty, LP v. Twp.

Comm. of Manalapan,
140 N.J. 366, 378 (1995).

Defendant argues the evidence presented did not meet the

"recklessness" or "gross negligence" standard required by Title 9

for findings of abuse or neglect as brought by the Division. We

disagree.

Under N.J.S.A. 9:6-8.21(c)(4)(b), an abused or neglected

child includes:

[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 . . . 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.

Title 9 sets forth the controlling standards for

adjudicating cases of abuse or neglect.
N.J.S.A. 9:6-8.21 to -

8.73; N.J. Div. of Youth & Family Servs. v. T.B.,
207 N.J. 294,

303 (2011). "The main goal of Title 9 is to protect children

'from acts or conditions which threaten their welfare.'" G.S. v.

8 A-5296-15T2
Dep't of Human Servs.,
157 N.J. 161, 176 (1999) (quoting State v.

Demarest,
252 N.J. Super. 323, 331 (App. Div. 1991)). The burden

is on the Division to prove abuse or neglect by a preponderance

of the "competent, material and relevant evidence . . . ."

N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. A.L.,

213 N.J. 1, 22 (2013). A fact-finding hearing shall be held to

determine whether the Division has shown by a preponderance of the

evidence that the child was abused or neglected.
N.J.S.A. 9:6-

8.44, -8.46(b). Where there is no evidence of actual harm to the

child, "a finding of abuse and neglect can be based on proof of

imminent danger and substantial risk of harm." A.L.,
213 N.J. at
23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)).

As set forth in the statute, "[t]o find abuse or neglect, the

parent must 'fail[] . . . to exercise a minimum degree of

care.'" Div. of Child of Prot. & Permanency v. E.D.-O.,
223 N.J.
166, 179 (2015) (alternations in original) (quoting
N.J.S.A. 9:6-

8.21(c)(4)(b)). To satisfy that standard, conduct must be willful

or wanton, but not necessarily intentional. Ibid. "Willful or

wanton" conduct is "done with the knowledge that injury is likely

to, or probably will, result." Ibid. (quoting G.S.,
157 N.J. at
178-79). In abuse or neglect hearings "it is of great importance

that the evidence upon which judgment is based be as reliable as

the circumstances permit and that the answering parent be given

9 A-5296-15T2
the fullest possible opportunity to test the reliability of the

[Division's] essential evidence by cross-examination." N.J. Div.

of Youth & Family Servs. v. I.Y.A.,
400 N.J. Super. 77, 94-95

(App. Div. 2008)(alterations in original)(citation omitted).

Whether a parent has failed to exercise a minimum degree of

care "is fact-sensitive and must be resolved on a case-by-case

basis." E.D.-O.,
223 N.J. at 192. Courts undertaking this

analysis "must avoid resort to categorical conclusions." Id. at

180 (citing T.B.,
207 N.J. at 309). The court should base its

determination on the totality of the circumstances. N.J. Div. of

Youth & Family Servs. v. V.T.,
423 N.J. Super. 320, 329 (App. Div.

2011). "[T]he 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.'" Id. at 329-30 (quoting N.J. Div. of Youth &

Family Servs. v. C.H.,
414 N.J. Super. 472, 481 (App. Div. 2010)).

A parent's substance abuse is not in itself grounds for a

finding of abuse or neglect. See N.J. Div. of Child Prot. &

Permanency v. Y.N.,
220 N.J. 165, 184-86 (2014); A.L.,
213 N.J.

at 23. In addition, the parent must act unreasonably under the

circumstances and there must be a corresponding harm or substantial

risk of harm resulting in the child's impairment or imminent danger

of impairment. Y.N.,
220 N.J. at 184; A.L.,
213 N.J. at 23.

10 A-5296-15T2
We find no merit to defendant's argument that the trial court

erred by concluding that Matt suffered actual emotional harm, and

was put at substantial risk of harm. There is ample evidence

within the record that supports Matt's reasonable fear of

defendant.

Defendant was heavily intoxicated and was yelling at Matt

to "sleep in the street." Defendant had, in the past and on the

date in question, allowed a strange male to enter the residence

in the early morning hours, and then sought her son's presumably

physical assistance to remove the male. In doing so, she

potentially exposed her son to physical harm. Further, defendant's

violent and aggressive actions directed towards her son,

notwithstanding the police presence, coupled with her severe

intoxication, created an imminent risk of substantial harm. A

court does not have to wait until actual harm occurs before making

a finding. A.L.,
213 N.J. at 23 (citation omitted). As such, we

conclude that the finding of abuse or neglect premised upon

imminent if not actual risk of harm was not erroneous.

Nor do we discern error in the evidentiary rulings. We review

a trial court's evidentiary rulings under an abuse of discretion

standard. State v. McGuire,
419 N.J. Super. 88, 135 (App. Div.

2011). A trial court's evidentiary rulings will not be disturbed

on appeal absent a showing of clear abuse of discretion, meaning,

11 A-5296-15T2
a clear error in judgment. State v. J.A.C.,
210 N.J. 281, 295

(2012); see State v. Fulston,
325 N.J. Super. 184, 192-93 (App.

Div. 1999). In applying this standard, we do not substitute our

own judgment for that of the trial court, unless the trial court's

ruling is so wide of the mark that a manifest denial of justice

resulted. J.A.C.,
210 N.J. at 295; State v. Swint,
328 N.J. Super.
236, 253 (App. Div. 2000).

Courts are granted broad discretion in determining the

relevance of evidence and whether its probative value is

substantially outweighed by its prejudicial nature. Verdicchio

v. Ricca,
179 N.J. 1, 34 (2004); see State v. Nelson,
173 N.J.
417, 470 (2002). Differently stated, it has been pointed out that

the trial court is in the "best position to engage in th[e]

balancing process" required by this rule. State v. Ramseur,
106 N.J. 123, 266 (1987); see also Schaefer v. Cedar Fair,
348 N.J.

Super. 223, 239 (App. Div. 2002) (noting that "[t]his is an

exercise that trial judges perform every day in other contexts.").

All relevant evidence is admissible, unless otherwise

excluded. N.J.R.E. 401; N.J.R.E. 402; State v. Burr,
195 N.J. 119,

126 (2008). Relevant evidence has "a tendency in reason to prove

or disprove any fact of consequence to the determination of the

action." N.J.R.E. 401. To determine relevancy, a trial judge

must "focus on the 'the logical connection between the proffered

12 A-5296-15T2
evidence and a fact in issue.'" State v. Covell,
157 N.J. 554,

565 (1999) (quoting State v. Hutchins,
241 N.J. Super. 353, 358

(App. Div. 1990)). "Once a logical relevancy can be found to

bridge the evidence offered and a consequential issue in the case,

the evidence is admissible, unless exclusion is warranted under a

specific evidence rule." Burr,
195 N.J. at 127. In consideration

of our standard of review and the record before us, we discern no

error that would result in reversal.

Finally, as to those issues raised on appeal that were not

addressed before the Family Part, we decline to address them as

they do not present policy issues that would compel our review.

"Only in respect of important matters of public concern will an

appellate court consider issues not raised below." Alan J.

Cornblatt, PA v. Barow,
153 N.J. 218, 247 (1998) (citing State v.

Churchdale Leasing,
115 N.J. 83, 100 (1989)).

Affirmed.

13 A-5296-15T2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.