New Jersey Division of Child Protection and Permanency v. J.A.in the Matter of S.B. and S.A. , 436 N.J. Super. 61 ( 2014 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2435-12T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
June 9, 2014
v.
APPELLATE DIVISION
J.A.,
Defendant-Appellant.
___________________________________
IN THE MATTER OF S.B. and S.A.,
Minors.
___________________________________________________
Submitted May 28, 2014 – Decided June 9, 2014
Before Judges Fisher, Koblitz and O'Connor.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Bergen County, Docket No. FN-02-78-11.
Joseph E. Krakora, Public Defender, attorney
for appellant (Elizabeth D. Burke,
Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General,
attorney for respondent (Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Sara M. Gregory, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Olivia
Belfatto Crisp, Assistant Deputy Public
Defender, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
In this appeal, we conclude that a parent fails to exercise
the minimum degree of care required by N.J.S.A. 9:6-8.21(c)(4)
when permitting children to be passengers in a vehicle driven by
a person who appears to be inebriated.
Here, defendant J.A. (defendant) appeals a finding of abuse
and neglect, N.J.S.A. 9:6-8.21(c)(4), based on his failure to
prevent defendant S.B. (Susan, a fictitious name) from driving
their children1 while she was intoxicated. In affirming, we find
no merit in defendant's argument that the facts only support a
finding that he was mistaken about whether Susan was capable of
safely transporting the children by motor vehicle or that his
acts or omissions did not rise to the level of gross negligence.
This action was commenced against defendant and Susan,
based on a referral to plaintiff Division of Youth and Family
Services, now known as the Division of Child Protection and
Permanency (the Division), regarding a motor vehicle incident on
Sunday, May 23, 2010. The judge heard evidence that defendant,
Susan, and the two children spent the weekend in Wildwood.
1
Defendants are not married. The children in question are Sh.B.,
who was then eight-years old, and S.A., then two-years old.
Defendant is the father of S.A., not the older child. Susan
ultimately stipulated to an act of abuse and neglect with regard
to her conduct.
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After spending Sunday morning at a pool, the family had lunch
together. The Division caseworker testified that the older child
informed her that Susan drank two Bloody Marys and five or six
beers. Defendant drank only "a few beers" because he intended
on driving the car home to Garfield that afternoon. While
packing the car for the trip home, however, defendant noticed a
tail light was not functioning – a fact that apparently altered
his mind about driving; defendant acknowledged during an
interview with a Division caseworker that his license was then
under suspension for driving while intoxicated.
Consequently, Susan drove the family home. During the
trip, they stopped for dinner. According to the older child,
the adults had two beers each. The child also told the caseworker
that her mother was difficult to understand when she spoke.
The couple argued during the trip north on the Garden State
Parkway. The older child expressed concern when they rode by
three parked police vehicles because their car was, in her
words, "going side to side," but Susan said she should not worry
and that "everything [would be] fine." Later, the child pointed
out another police vehicle; this time, the police vehicle
pursued and eventually directed Susan to stop at a location on
the Garden State Parkway, approximately twenty-five miles north
of Wildwood. After participating in field sobriety tests, Susan
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was arrested and escorted into a police vehicle. An Alcotest
determined her blood alcohol content (BAC) was .19, well in
excess of the legal limit, N.J.S.A. 39:4-50(a) (declaring the
legal limit to be a BAC of .08).
Defendant was interviewed by a Division caseworker on May
28, 2010. His statements conformed to the child's regarding
Susan's consumption of alcohol that day, but he claimed he did
not realize Susan was intoxicated, otherwise he would not have
permitted her to drive. He also agreed with the child's
assertion that he and Susan had argued over the weekend.
Defendant agreed to submit to urine screens at the
Division's request. Two screens in June 2010 were negative, but
a July 20, 2010 urine screen proved positive for cocaine and
alcohol. When asked by the Division caseworker about the
positive screen, defendant asserted that someone must have
tampered with his drink a few days earlier; he claimed a mutual
friend he was with at that time was a known seller of cocaine.
The trial judge rendered a thorough written decision on
June 2, 2011. He found, by a preponderance of the evidence,
that on Sunday, May 23, 2010, Susan was exhibiting signs of
alcoholic impairment – slurred speech, an odor of alcohol on her
breath, the swerving of her vehicle, argumentativeness, and
"swaying" while standing or walking – and that defendant "knew
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[Susan] was under the influence of alcohol [and] should not have
driven the vehicle in that condition with the children as
passengers." Although the judge rejected defendant's contention
that the positive urine screen in July 2010 occurred because, in
the judge's words, defendant was "slipped . . . a Mickey," the
judge also found the Division's proofs inadequate to support a
finding that a child was put at risk as a result; he, therefore,
rejected that particular aspect of the Division's case.
Compliance hearings were conducted over the following
twelve months, ultimately leading to the return of physical and
legal custody to the parents and the dismissal of the action.
Defendant appeals, arguing:
I. THE LOWER COURT ERRED BY ADMITTING [THE
OLDER CHILD'S] STATEMENTS INTO EVIDENCE AS
UNCORROBORATED HEARSAY CONTRARY TO N.J.S.A.
9:6-[8.46(a)(4)].
II. EVEN ASSUMING [THE OLDER CHILD'S]
STATEMENTS ARE ADMISSIBLE, [DEFENDANT'S]
ACTIONS WERE MERELY NEGLIGENT AND THEREFORE
DO NOT QUALIFY AS ABUSE AND NEGLECT.
We find no merit in these arguments.
I
Defendant first contends that the statements given by the
older child to the Division caseworker were inadmissible because
they were uncorroborated. Defendant is wrong in two respects.
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Contrary to defendant's argument, an uncorroborated
statement by a child is admissible. The limitation imposed in
such circumstances arises from the Legislature's declaration
that such an uncorroborated statement, although admissible, is
not alone "sufficient to make a fact finding of abuse or
neglect." N.J.S.A. 9:6-8.46(a)(4). Stated another way, "a
child's hearsay statement may be admitted into evidence, but may
not be the sole basis for a finding of abuse or neglect." N.J.
Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011).
As a result, the judge did not err in permitting the Division
caseworker to recount the older child's statements.
We also conclude that the child's statements were more than
sufficiently corroborated. In general, corroborative evidence
need not be direct so long as it provides some support for the
out-of-court statements. N.J. Div. of Youth & Family Servs. v.
Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002); see also N.J.
Div. of Child Prot. & Permanency v. M.C., __ N.J. Super. __, __
(App. Div. May 5, 2014) (slip op. at 25); N.J. Div. of Youth of
Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div.
2003). The child's statements regarding both the extent of her
mother's drinking that day and her state of inebriation were
corroborated in many ways. For example, the police report
memorialized the officer's observations that the vehicle
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"fail[ed] to maintain [its] lane of traffic," and that Susan's
speech was "slow and slurred." Defendant also corroborated the
child's statements about Susan's drinking, acknowledging in his
statement to the Division that Susan "ha[d] a few Bloody Marys
and some beers" shortly before the family embarked on the trip
with Susan at the wheel.
II
We also reject defendant's second and last argument2 that
the circumstances found by the trial judge do not support a
finding of abuse or neglect.
2
Defendant has not included in his brief a separate point
asserting that the judge's findings were against the weight of
the evidence, see R. 2:6-2(a)(5) (directing that the argument is
to be "divided, under appropriate point headings . . . into as
many parts as there are points to be argued"); Midatlantic Solar
Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App.
Div.) (noting that the presentation of a separate argument in
any other manner than that set forth in Rule 2:6-2(a)(5) is
"improper" and such an argument will be overlooked unless it
presents a matter of general public importance), certif. denied,
207 N.J. 190 (2011), although such an argument may be discerned
from the balance of defendant's contentions. To the extent
defendant has intended to make such an argument, we find it has
insufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(1)(E). We would add only that the
evidence more than amply supports the judge's findings and,
thus, the applicable standard of review precludes our second-
guessing of those findings. Rova Farms Resort, Inc. v.
Investors Ins. Co., 65 N.J. 474, 484 (1974). This is especially
true in this context, where findings are entitled to additional
deference because of family judges' "special expertise in the
field of domestic relations." Cesare v. Cesare, 154 N.J. 394,
413 (1998). We, thus, find no merit in the argument that the
(continued)
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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), which defines an "abused or neglected child" as a
child under the age of eighteen years:
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 . . . (b) in providing the child
with proper supervision or guardianship, by
unreasonably inflicting or allowing to be
inflicted harm, or substantial risk
thereof[.]
The Legislature provided no greater clarity about the reach
of the phrase "minimum degree of care." The Supreme Court
ascertained that it means "grossly or wantonly negligent, but
not necessarily intentional" conduct. G.S. v. Dep't of Human
Servs., 157 N.J. 161, 178 (1999). In that sense, a parent fails
to exercise a minimum degree of care when, despite being "aware
of the dangers inherent in a situation," the parent "fails
adequately to supervise the child or recklessly creates a risk
of serious injury to that child." Id. at 181. The parent is
held to what "an ordinary reasonable person would understand" in
considering whether a situation "poses dangerous risks" and
(continued)
judge erred in determining that defendant should have been well
aware Susan was in no condition to drive.
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whether the parent acted "without regard for the potentially
serious consequences." Id. at 179.
Our Supreme Court later illuminated G.S.'s interpretation,
explaining that "every failure to perform a cautionary act is
not abuse or neglect"; "[w]hen the failure to perform a
cautionary act is merely negligent, it does not trigger" the
statute. N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J.
294, 306-07 (2011). The focus on the parent's level of
culpability in assessing whether a minimum degree of care has
been exercised
is in synchronicity with the Legislature's
expressed purpose to safeguard children.
Indeed, where a parent or guardian acts in a
grossly negligent or reckless manner, that
deviation from the standard of care may
support an inference that the child is
subject to future danger. To the contrary,
where a parent is merely negligent there is
no warrant to infer that the child will be
at future risk.
[Id. at 307.]
The application of this standard in the present context is
further informed not only by our motor vehicle laws, which show
little tolerance for the mixing of alcohol and driving,3 but also
by a growing body of case law demonstrating the dangers imposed
3
A circumstance certainly familiar to defendant, whose driving
privileges were suspended at the time due to a conviction for
driving while under the influence.
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for child-occupants of motor vehicles. See N.J. Dep't of
Children & Families v. R.R., __ N.J. Super. __, __ (App. Div.
2014) (slip op. at 6-10) (affirming an abuse/neglect finding
when a school bus driver left a five-year old unattended on a
bus for nearly an hour); N.J. Dep't of Children & Families v.
E.D.-O., 434 N.J. Super. 154, 160-62 (App. Div. 2014) (affirming
an abuse/neglect finding when the mother left her nineteen-
month-old child unattended in a motor vehicle while she briefly
entered a nearby store). For the reasons outlined in greater
depth in those cases, as further amplified by the examples cited
by the Supreme Court in T.B., supra, 207 N.J. at 307-10, we
conclude that no reasonable person could fail to appreciate the
danger of permitting children to ride in a motor vehicle driven
by an inebriated operator. Defendant was grossly negligent in
failing to protect the children from the imminent risk posed by
Susan's driving.
Affirmed.
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