DCPP VS. M.E. AND J.M., IN THE MATTER OF M.M. (FN-02-0295-17, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-4705-17T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
M.E.,
Defendant-Appellant,
and
J.M.,
Defendant.
IN THE MATTER OF M.M.,
a Minor.
Submitted August 5, 2019 – Decided August 9, 2019
Before Judges Sabatino and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FN-02-0295-17.
Joseph E. Krakora, Public Defender, attorney for
appellant (Fabiola E. Ruiz-Doolan, Designated
Counsel, on the briefs.)
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Victoria Kryzsiak, Deputy
Attorney General, on the brief.)
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Danielle Ruiz, Designated Counsel,
on the brief.)
Defendant M.E. appeals from the Family Part's January 16, 2018 order
concluding, after a fact-finding hearing, she abused and neglected her seven-
year old daughter, M.M. (Maria). 1 We affirm substantially for the reasons set
forth in Judge Jane Gallina-Mecca's cogent oral opinion.
The judge's opinion, spanning twenty transcript pages, sets forth the facts
in detail, and we incorporate by reference her findings here. Judge Gallina-
Mecca conducted the fact-finding hearing on October 26, 2017, at which
plaintiff Division of Child Protection and Permanency (Division) presented the
1
Due to the similarity of family names and initials, we use pseudonyms for ease
of reference and privacy. R. 1:38-3(d)(10).
A-4705-17T1
2
testimony of caseworker Lori Laverty; Maria's father, J.M. (John) 2; and New
Milford Police Officer Bryan Mone; and introduced documents in evidence,
including Division investigation reports and police reports. Neither defendant
nor the law guardian presented any witnesses or documentary evidence at the
hearing.
In her comprehensive opinion, Judge Gallina-Mecca carefully reviewed
the testimony and evidence presented at the hearing. She found the testimony
of Laverty, John, and Mone credible, based on their manner of testifying,
personal knowledge, and lack of inconsistent or contradictory statements. The
judge noted Laverty and Mone also lacked a personal interest in the outcome of
the proceedings. Although John's interest in the proceedings was obviously
personal, the judge recognized he had Maria's "best interest at heart." The judge
also determined Maria's statements concerning defendant's conduct were
corroborated. See N.J.S.A. 9:6-8.46(a)(4) (providing "previous statements made
by the child relating to any allegations of abuse or neglect shall be admissible in
evidence; provided, however, that no such statement, if uncorroborated, shall be
sufficient to make a fact finding of abuse or neglect").
2
John was named as a defendant, but is not a party to this appeal.
A-4705-17T1
3
Judge Gallina-Mecca concluded the Division established by a
preponderance of the evidence that defendant abused or neglected Maria under
N.J.S.A. 9:6-8.21(c)(4). The judge elaborated:
A review of the material, relevant and competent
evidence in this case leads to the inexorable conclusion
that the Division has proven by a preponderance of the
evidence that the defendant mother placed [Maria] at a
substantial risk of harm when she was intoxicated and
unable to care for her daughter and allowed her to be
driven by a drunk driver. . . .
The [c]ourt finds that [Maria]'s disclosures
concerning parental behaviors were corroborated by the
admissions made by the defendant mother and
information [ob]tained by the Division during its
investigation. Specifically, [defendant] admitted to
drinking frequently to the point of intoxication. She
also admitted that she had previously been referred to
substance abuse treatment. These admissions are
sufficient to corroborate [Maria]'s report concerning
her mother's relationship with alcohol.
[Maria] described her mother as drinking wine
and alcohol every day. She explained that her mother
often has too much to drink causing her to act
differently. [Maria] described her mother when drunk
as shaking, not walking properly, slurring her words,
melting to the floor and being unable to get up or do
things for herself when she drinks.
[Maria] is fearful when her mother drinks and she
has devised an escape plan if her mother ever becomes
too drunk. By her own admissions, it is abundantly
clear that the defendant mother has a serious untreated
alcohol issue and the uncontroverted evidence
A-4705-17T1
4
establishes that [Maria] was exposed to and [a]ffected
by her mother's drinking.
This fact is not, however, of any consequence in
analyzing the defendant mother's actions on the
evening of the referral incident to determine whether
those accidents rose to the level of abuse or neglect. It
is uncontroverted that [defendant] was inebriated while
in the caretaking role of her daughter at the party on
December 19, 2016 [(the incident date)].
[Defendant] admitted that she consumed a
significant amount of alcohol and was unable to drive
herself and [Maria] home from the party. Nevertheless,
in her impaired state she determined that her paramour
[Michael] was indeed the appropriate choice of driver.
While [defendant] surmised that [Michael] was not
drunk since he only arrived to the party an hour before,
her seven-year-old daughter was able to recognize that
he was under the influence.
[Maria] observed her mother at the party to be
walking side-to-side with shaking arms. She described
[Michael] as also shaking but not as much as her
mother. These observations were corroborated as to
[defendant] by her own admission and as to [Michael]
by Officer Mone.
As the Appellate Division concluded in [Division
of Child Protection & Permanency v.] J.A., [436 N.J.
Super. 61, 68 (App. Div. 2014),] a parent or guardian
who permits a child to ride with an inebriated driver
acts inconsistently with N.J.S.A. 9:6-8.21(c)(4). It is
not less reckless but more so that [defendant] was not
in a position to assess the condition of her paramour
because she too was inebriated.
A-4705-17T1
5
[Defendant] was responsible for her daughter's
safety yet she was in an intoxicated state so that she
could neither ensure her child's safety nor make an
appropriate plan for her. Even if [Michael] had only
one beer at the party and arrived late, [defendant] had
no idea where he was previously and whether he had
been drinking. Without any inquiry and a complete
lack of judg[]ment, [defendant] permitted her child to
ride with a drunk driver placing her precious child in
peril because she was too intoxicated to adequately
provide for her daughter's safety.
It is unquestionable that [defendant] acted with
reckless disregard for her child's safety that could have
resulted in an unspeakable tragedy. Therefore, the
[c]ourt finds that [defendant] failed to exercise a
minimum degree of care in caring for her child and as
such, the [c]ourt finds that the Division has successfully
established by a preponderance of the evidence that
[defendant] committed an act of abuse or neglect
against her minor child pursuant to N.J.S.A. 9:6-
8.21(c)(4).
Following a dispositional hearing, the judge determined there was no
longer a need to continue litigation and dismissed the matter. Defendant now
appeals. She argues the record is insufficient to establish abuse and neglect by
a preponderance of the evidence. In particular, she claims the judge's finding
that she was "intoxicated to the point she was unable to care for her daughter"
is contradicted by Mone's response after he arrested Michael for driving while
intoxicated, i.e., Mone did not arrest defendant and permitted Maria to return
A-4705-17T1
6
home with her. The Division and law guardian urge us to affirm the judge's
order.
Our standard of review of the Family Part's fact-finding determination is
limited. On appeal from orders issued in Title 9, we accord considerable
deference to the trial court's credibility determinations and findings of fact, as
long as those findings are supported by adequate, substantial, and credible
evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79
(2007). We maintain that deference "unless the trial court's findings 'went so
wide of the mark that a mistake must have been made.'" Id. at 279. Moreover,
we do not readily second-guess the factual findings of the Family Part in general,
given that court's special expertise in matters concerning children. N.J. Div. of
Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014). Applying that limited
and well-settled scope of review, we affirm the trial judge's finding of abuse and
neglect, substantially for the sound reasons expressed in Judge Gallina-Mecca's
opinion. We add only a few comments.
N.J.S.A. 9:6-8.21(c) defines various circumstances that can comprise the
abuse or neglect of a child. Among other things, the statute specifically covers:
[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
A-4705-17T1
7
parent or guardian, as herein defined, to exercise a
minimum degree of care . . . 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)(b).]
Our Supreme Court has noted, "[t]he law's paramount concern is the safety
of the children, and not the culpability of parental conduct." N.J. Div. of Youth
& Family Servs. v. A.L., 213 N.J. 1, 18 (2013) (citations and internal quotation
marks omitted); see also G.S. v. Dep't of Human Servs., Div. of Youth & Family
Servs., 157 N.J. 161, 177 (1999). "The focus in abuse and neglect matters . . .
is on promptly protecting a child who has suffered harm or faces imminent
danger." A.L., 213 N.J. at 18 (emphasis added) (citing N.J.S.A. 9:6-8.21(c)(4)).
Relevant here, a court need not wait until a child is actually harmed or
neglected before it can act in the welfare of that minor. N.J. Div. of Youth &
Family Servs. v. V.M., 408 N.J. Super. 222, 235 (App. Div. 2009) (citing In re
Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). Thus, "[i]n the absence of
actual harm, a finding of abuse and neglect can be based on proof of imminent
A-4705-17T1
8
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)).
A court's finding of abuse or neglect must be based on a preponderance of
the evidence when the proof is considered in its totality. N.J.S.A. 9:6-
8.46(b)(1); N.J. Div. of Youth & Family Servs. v. C.M., 181 N.J. Super. 190,
201 (App. Div. 1981) ("In 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.'"). Notably, the Title 9 proof standard is less stringent than in
guardianship cases for the termination of parental rights, which must instead be
proven by clear and convincing evidence. See N.J.S.A. 30:4C-15.1(a). The
proofs adduced before Judge Gallina-Mecca amply met these evidentiary
standards.
As the judge aptly found, the Division established, by a preponderance of
the credible evidence, defendant abused or neglected Maria by failing to
recognize in her intoxicated state that Michael was too intoxicated to drive.
Defendant also later acknowledged her brother, who had not been drinking on
the incident date, was a viable alternative to drive Maria home. Although the
judge was careful to limit her findings to the incident date, she also aptly cited
A-4705-17T1
9
Maria's continued trepidation that defendant's ongoing inebriation would
interfere with her ability to parent. Notably, Laverty testified that in the course
of her ten-year employment with the Division, she had never experienced a child
of Maria's age "formulating an escape plan" under similar circumstances.
The evidence of neglect is readily apparent from the record. Defendant's
ongoing inebriation impacted Maria's welfare. Indeed, Maria's disclosures to
Laverty about defendant's appearance when she drank were remarkable for a
seven-year-old child. Maria said defendant's "arms shake, . . . she slurs her
words together . . . [she] walks side to side." Maria further told Laverty that
defendant and Michael "drink together sometimes and [Maria] thinks at least
one of them shouldn't be drinking . . . because at least one of them should have
a brain." Defendant and Michael "don't make good decisions when they're drunk
and at least one of them should have good ideas." Maria was "afraid when her
mother . . . drink[s] because when her mother melts to the floor, she can't take
care of herself and [Maria] knows that she can't take care of [Maria] either."
Defendant did not dispute Maria's account. Although defendant denied
she was an alcoholic, she admitted she "sometimes" drank alcohol to the point
of intoxication. Defendant also acknowledged a prior family court order
directing her to attend substance abuse treatment, but claimed she failed to do
A-4705-17T1
10
so for financial reasons. Thus, Maria's claims of abuse or neglect are amply
corroborated by defendant's own statements.
Contrary to defendant's contention, her actions on the day of the incident
placed Maria in imminent danger, even though Mone permitted the child to
return home with defendant. When Mone pulled over Michael's car, "[r]ight
away [he] smelled the odor of alcohol emanating from the vehicle." Michael
admitted he consumed "about five beers," failed the standard field sobriety test,
and his blood alcohol content (BAC) was 0.15 percent, supporting Mone's field
test findings. See N.J.S.A. 39:4-50(a) (providing a person who operates a motor
vehicle is considered under the influence of intoxicating liquor if his or her BAC
is 0.08 percent or more by weight of alcohol in the blood).
We therefore conclude the Division introduced substantial credible
evidence to demonstrate defendant abused or neglected Maria by allowing her
daughter to ride in an automobile Michael was driving while legally intoxicated.
As Judge Gallina-Mecca recognized, a parent "who permits a child to ride with
an inebriated driver acts inconsistently with N.J.S.A. 9:6-8.21(c)(4)." J.A., 436
N.J. Super. at 68. "[N]o reasonable person could fail to appreciate the danger
of permitting children to ride in a motor vehicle driven by an inebriated
operator." Id. at 69. Thus, in J.A., we found that a father "was grossly negligent
A-4705-17T1
11
in failing to protect the children from the imminent risk posed by [their mother's]
driving." Id. at 69-70. Here, defendant's gross negligence was underscored by
her inability to recognize Michael's intoxication.
Affirmed.
A-4705-17T1
12