NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.J. and J.G and C.H

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                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0524-19T3
                                                                     A-0525-19T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

           Plaintiff-Respondent,

v.

S.J. and J.G.,

           Defendants-Appellants,

and

C.H.,

     Defendant.
___________________________

IN THE MATTER OF A.J.
and A.J.G., minors.
___________________________

                    Submitted December 16, 2020 – Decided January 13, 2021

                    Before Judges Alvarez and Mitterhoff.
               On appeal from the Superior Court of New Jersey,
               Chancery Division, Family Part, Camden County,
               Docket No. FN-04-0107-19.

               Joseph E. Krakora, Public Defender, attorney for
               appellant S.J. (Robyn A. Veasy, Deputy Public
               Defender, of counsel; Catherine Reid, Designated
               Counsel, on the briefs).

               Joseph E. Krakora, Public Defender, attorney for
               appellant J.G. (Robyn A. Veasy, Deputy Public
               Defender, of counsel; Christine Olexa Saignor,
               Designated Counsel, on the briefs).

               Gurbir S. Grewal, Attorney General, attorney for
               respondent (Sookie Bae, Assistant Attorney General, of
               counsel; Eden Feld, Deputy Attorney General, on the
               brief).

               Joseph E. Krakora, Public Defender, Law Guardian,
               attorney for minors (Meredith Alexis Pollock, Deputy
               Public Defender, of counsel; Noel C. Devlin, Assistant
               Deputy Public Defender, of counsel and on the brief).

PER CURIAM

      In this Title Nine case, S.J. and J.G. appeal from a June 4, 2019 order of

the Family Part finding that they abused and neglected their two-month-old

child, A.J.1    On appeal, the parents argue that this finding was based on

insufficient evidence. We affirm substantially for the reasons expressed in



1
  We use initials to maintain the confidentiality of the parties and their child. R.
1:38-3(d)(12).
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Judge Michael E. Joyce's thoughtful oral decision, adding only the following

comments.

      On the night of June 30, 2018, S.J. arrived home to find J.G. sleeping on

the couch while A.J. was lying on his chest. S.J. asked him to put the baby in

the bassinette and prepare a bottle. J.G. initially ignored S.J., but eventually

complied. After making A.J.'s bottle, J.G. picked up S.J.'s phone and threw it

against the wall.2 In response, S.J. told J.G. she no longer wanted to be in a

relationship and demanded he leave. J.G. then took A.J. from his bassinette and

attempted to leave the house. S.J. objected. A struggle ensued in which S.J.

endeavored to take A.J. from J.G. S.J. was unable to take A.J. from J.G. because

he was holding A.J. tightly against his chest. During this tug-of-war, A.J.

sustained a laceration to his head. Police arrived and charged J.G. with criminal

mischief,  N.J.S.A. 2C:17-3, for smashing S.J.'s phone.

      S.J. brought A.J. to Lady of Lourdes Hospital in Camden, New Jersey.

The hospital treated A.J.'s laceration and discharged him. On July 1, 2018, A.J.

developed a fever and S.J. noticed that a portion of his skull, under the

laceration, was "sinking in." S.J. returned to Lady of Lourdes Hospital, where



2
  S.J. testified that J.G. was still angry about an argument the couple had the
day before.
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S.J. was told A.J. no longer had a fever and discharged him; A.J. received no

treatment for his skull.

      The following day, a DCPP worker instructed S.J. to bring A.J. to Cooper

University Hospital in Camden, New Jersey. Based on the medical imaging,

A.J. was diagnosed with a depressed skull fracture.

      At trial, J.G. testified that S.J. was kicking and hitting him during the

altercation, while S.J. testified that J.G. was "squeezing" A.J. Dr. Stephanie

Lanese, an assistant professor of pediatrics, testified that she was able to

determine, with a reasonable degree of medical certainty, that the altercation

between S.J. and J.G. was the cause of A.J.'s injuries.

      Judge Joyce found that the Division proved, by a preponderance of the

credible evidence, that the parents abused A.J. pursuant to  N.J.S.A. 9:6-

8.21(c)(4)(b). The judge found that both parents were responsible for A.J.'s

injuries and both had time to "curb their behavior."       The judge ultimately

determined that "but for this altercation between the mother and the father[,] and

the conduct and the actions of the mother and father, this injury would not have

happened."

      Our scope of review of a Family Part judge's fact-finding determination

of abuse or neglect is limited. We must defer to the factual findings of the


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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.,  452 N.J. Super. 513, 521 (App. Div. 2017) (citation omitted). That deference is

justified because of the Family Part's "special jurisdiction and expertise in

family matters." N.J. Div. of Youth & Family Servs. v. M.C. III,  201 N.J. 328,

343 (2010) (citation omitted). The reviewing court grants particular deference

to the trial court's credibility determinations, and only overturns its

determinations regarding the underlying facts and their implications when the

"findings went so wide of the mark that a mistake must have been made." N.J.

Div. of Youth & Family Servs. v. M.M.,  189 N.J. 261, 279 (2007) (internal

quotation omitted). That said, an appellate court does not give special deference

to the trial court's interpretation of the law, which it reviews de novo. D.W. v.

R.W.,  212 N.J. 232, 245-46 (2012).

      The relevant portion of Title Nine,  N.J.S.A. 9:6-8.21(c)(4), defines an

"[a]bused or neglected child" to include a child under the age of eighteen,

            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 (a)
            in supplying the child with adequate food, clothing,
            shelter, education, medical or surgical care though
            financially able to do so or though offered financial or
            other reasonable means to do so, or (b) in providing the

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              child with proper supervision or guardianship, by
              unreasonably inflicting or allowing to be inflicted
              harm, or substantial risk thereof . . . .

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

      Each case of alleged abuse "requires careful, individual scrutiny" and is

"generally fact sensitive." N.J. Div. of Youth & Family Servs. v. P.W.R.,  205 N.J. 17, 33 (2011). The "main focus" of Title Nine "is not the 'culpability of

parental conduct' but rather 'the protection of children.'" Dep't of Children &

Families, Div. of Child Prot. & Permanency v. E.D.-O.,  223 N.J. 166, 178 (2015)

(quoting G.S. v. Dep't of Human Servs.,  157 N.J. 161, 177 (1999)).

      The phrase "minimum degree of care" under the statute "refers to conduct

that is grossly or wantonly negligent, but not necessarily intentional." G.S.,  157 N.J. at 178. "[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."

Id. at 181.    A finding of gross negligence depends 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), and "is determined on a case-by-case basis." N.J. Div. of

Child Prot. & Permanency v. K.N.S.,  441 N.J. Super. 392, 398 (App. Div. 2015)

(citation omitted).


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      We are satisfied there was competent, credible evidence in the record to

support the judge's finding that both S.J. and J.G. abused their child because

both parents participated in the June 30, 2018 altercation.       As Dr. Lanese

testified, the parents' altercation was the but-for cause of their two-month-old

child's skull fracture. That the expert could not identify the exact mechanism of

the injury does not absolve defendants of their responsibility under the statute.

      To the extent we have not addressed any of the remaining arguments

raised by the parties, we conclude that they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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