DCPP VS. Y.G., G.S. AND B.B.B.IN THE MATTER OF Z.G.(FN-07-376-14, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-5779-14T2
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
Y.G. and G.S.,
Defendants,
and
B.B.B.,
Defendant-Appellant.
______________________________
IN THE MATTER OF Z.G., a minor.
________________________________________________________________
Submitted March 7, 2017 – Decided August 18, 2017
Before Judges Messano and Espinosa.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FN-07-376-14.
Joseph E. Krakora, Public Defender, attorney
for appellant (Laura Orriols, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel;
Brittany Anne Wilcox, Deputy Attorney General,
on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Lisa J. Godfrey,
Assistant Deputy Public Defender, on the
brief).
PER CURIAM
Defendant B.B.B. (Bryce) 1 appeals from an adjudication of
abuse and neglect, N.J.S.A. 9:6-8.21, arising from the undisputed
fact that he and his girlfriend, defendant Y.G. (Yvette),2 left
her three-year-old daughter, Z.G. (Zoe), alone in his Irvington
apartment while they visited friends in Clifton. He argues there
was insufficient evidence to support the conclusion that he was a
"responsible party" under N.J.S.A. 9:6-8.21, that he had no duty
under the statute and that the trial judge erred in finding he
admitted to cohabiting with Zoe. We disagree and affirm.
At the outset of the fact-finding hearing, the State submitted
three exhibits: a Screening Summary, dated December 20, 2013, an
Investigation Summary, dated December 20, 2013, and a collection
of police records pertaining to Bryce and Yvette, dated December
1
We use pseudonyms to protect the privacy of the child.
2
Yvette has not appealed from the adjudication against her.
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20, and 21, 2013, into evidence with the consent of defendants.
At the request of Yvette's counsel, the trial judge agreed not to
consider hearsay statements contained in the documents.
Merika Henry, a Special Response Unit investigator with the
Division of Child Protection and Permanence (the Division),
testified she reported to the Irvington Police Department on
December 20, 2013 to investigate a referral that a maintenance man
had found a two-year-old child alone in an apartment on Stuyvesant
Avenue in Irvington that contained drug paraphernalia. She
observed Zoe, who was actually three years old, was appropriately
attired but was not wearing socks and did not have a coat. Henry
interviewed both Yvette and Bryce, who arrived at the police
department at approximately 5:00 p.m.
Yvette admitted leaving Zoe home alone. Yvette said she had
been Bryce's girlfriend for eight months. She stated further that
she and Zoe had been residing with Bryce at the Irvington apartment
he leased for the past few months.
Yvette stated she put Zoe down for a nap at approximately
1:30 p.m. and left the apartment with Bryce approximately one-half
hour later to go to Clifton to drop off some items for a friend.
When asked the friend's name and address, Yvette said she did not
know. At first, Yvette claimed a trip to Clifton took ten minutes.
Henry advised her the trip would take twenty minutes. The trip
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took even longer because they had a flat tire when they arrived
in Clifton and were delayed by traffic on their return trip,
arriving at the apartment at approximately 5:00 p.m.
Asked about the drugs and paraphernalia in the apartment,
Yvette initially denied having any knowledge about it. She later
stated the items belonged to Bryce but said he did not use drugs
in the home.
Henry also asked Yvette about Zoe's routine. She stated Zoe
usually goes to bed at approximately 7:00 p.m. and arises at 6:00
a.m. She stated Zoe had last eaten at approximately 11:00 a.m.,
when she gave her cereal and milk. When asked about leaving Zoe
alone, Yvette stated that usually when Zoe wakes up, she would not
come out of the bedroom. She said this was the first time she
left her home alone and admitted to a feeling that "something was
going to go wrong, but . . . she didn't think anything of it."
Bryce confirmed that he and Yvette had gone to Clifton to
visit a friend after they put Zoe down for a nap at about 1:30
p.m. He stated they left the apartment at about 2:00 p.m. and
returned around 5:00 p.m. Bryce was also unable to provide an
address for the friend in Clifton. He felt nothing was wrong with
his actions because when he was younger, residing in the United
Kingdom, his mother left him alone. He also admitted he had left
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Zoe home alone in the past while he ran to the corner store to run
errands and she appeared to be fine.
Asked about the drug paraphernalia, Bryce stated they
belonged to him but denied any recent drug usage and said he kept
the items for a friend.
Following these interviews, the Division determined to
execute an emergency removal of Zoe pursuant to N.J.S.A. 9:6-8.29
and 9:6-8.30. Zoe was taken to a hospital where she was examined
and reported to be healthy.
Henry was also the supervisor for Danielle Howell, the
Division caseworker assigned to the case. Yvette told Howell she
now resided with a friend in Clifton, whom she was unable to name,
and visited Bryce's apartment with Zoe on the weekends. Asked how
she supports herself, Yvette stated she was unemployed and Bryce
was the one who was working.
Howell was able to inspect Bryce's apartment, a one-bedroom
apartment heated only by a space heater. There was no separate
bed for Zoe. Yvette told Howell that Zoe shared the same bedroom
and bed with Bryce and her.
Yvette and Bryce attended the fact-finding hearing but did
not testify.
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Relying upon "the uncontroverted . . . admissions of the
parties," the trial judge made findings that included the
following:
It is quite clear that the defendants left
this child, made a conscious decision to leave
this child alone. They didn't return for
three hours. This is a three-year-old child
in the middle of December . . . in an
apartment that had no [heat]. So we're
talking about a space heater with a small
child, drug paraphernalia loose, available to
this child. There were so many potentially
dangerous issues leaving a three-year-old
alone that seems unconscionable to me. And
they admitted it.
He found the Division had proven by a preponderance of the
evidence that:
[T]he parties admitted they were living
together. They were a couple. They were
caring for this child. They were the
caretaker role. [Bryce] was in that role and
does not require that he be a parent to be
substantiated. He was in a caretaker role.
The two of them decided to leave this child
alone in an apartment, unheated apartment in
the middle . . . of December. It seems to be
a – a totally foolhardy decision that
fortunately, but for the grace of God there
was no harm to this child, but there was
clearly more than a substantial risk of harm
to this child under these circumstances. And
I do find the Division has proven its case by
a preponderance of the evidence as to both of
these parties.
A finding of abuse and neglect is proven by a preponderance
of "competent, material and relevant evidence," N.J.S.A. 9:6-
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8.46(b), that the responsible person failed "to exercise a minimum
degree of care . . . in providing the child with proper supervision
or guardianship." N.J.S.A. 9:6-8.21(c)(4)(b).
Bryce does not challenge the conclusion that leaving Zoe
alone under the circumstances here satisfied this standard. He
argues the adjudication as to him must be reversed because the
judge erred in relying on a "mistaken . . . admission to
cohabitation, . . . the length of the relationship between the
adults and one instance of prior babysitting by [him]" to find he
was a caregiver under the statute. He contends these facts are
insufficient to establish his status as a responsible party. 3 We
disagree.
Our review of the trial judge's factual findings is limited.
N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551,
577 (App. Div. 2010). We accord deference to those findings
"unless the trial court's 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) (quoting C.B. Snyder
Realty, Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (App.
3
Bryce also argues, for the first time in this appeal, that
"constitutional law prohibits a finding that [he] is a responsible
party under N.J.S.A. 9:6-8.21" because the term "paramour of a
parent" is undefined in the statute and any plain meaning
definition would be "vague" and "overbroad." This argument lacks
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
7 A-5779-14T2
Div.), certif. denied, 117 N.J. 165 (1989)). Legal conclusions
are reviewed de novo. N.J. Div. of Child Prot. & Permanency v.
K.G., 445 N.J. Super. 324, 342 (App. Div.), certif. denied, 228
N.J. 38 (2016).
Here Bryce challenges the trial judge's factual findings as
well as his legal conclusion that the evidence showed Bryce had a
duty "to exercise a minimum degree of care . . . in providing
[Zoe] with proper supervision or guardianship." N.J.S.A. 9:6-
8.21(c)(4)(b). Specifically, Bryce challenges the findings of
fact the trial judge made and relied upon to conclude he was a
responsible party under the statute. He contends he never admitted
Yvette and Zoe lived with him and argues there was insufficient
evidence to establish he was Yvette's paramour.
Although Bryce contends the admission of cohabitation was a
mistake, it was not corrected at the fact-finding hearing and, in
any event, proof of cohabitation is not necessary to fall within
the scope of this statute. See State v. Galloway, 133 N.J. 631,
658-61 (1993) (interpreting "parent of guardian" in the related
context of criminal child endangerment, N.J.S.A. 2C:24-4(a), to
include "those who have assumed a general and ongoing
responsibility for the care of the child" which "may be based on
a parental relationship, legal custody or on less-structured
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relations; or it may arise from cohabitation with the child's
parent" (emphasis added)).
It is undisputed that Bryce and Yvette had been in a
relationship for eight months at the time Zoe was left alone. Even
if Yvette and Zoe only stayed with him on weekends, the
uncontroverted admission was that they stayed together in one
bedroom, sharing a bed. Bryce's status as paramour was therefore
established by a preponderance of the evidence.
The second critical component, which is the crux of this
appeal, is the legal question whether the facts support the
conclusion that Bryce had a duty to exercise a minimum degree of
care for Zoe. Significantly, it is unnecessary for a person to
have any legal or formal status as a parent or guardian to have a
duty to exercise this minimum degree of care. The definition of
"[p]arent or guardian" under N.J.S.A. 9:6-8.21(a) includes: "any
natural parent, . . . paramour of a parent, or any person, who has
assumed responsibility for the care, custody, or control of a
child or upon whom there is a legal duty for such care."
Bryce admitted he had left Zoe alone in the past when he went
to the corner store to do errands. Although he now contends he
only babysat for Zoe on one occasion, the admission he made to the
Division caseworker was not so qualified and was not challenged
at the fact-finding hearing.
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Bryce also argues he should not be held responsible because
Zoe's mother was present and was the final authority on her being
left alone. We disagree. There is sufficient evidence to support
the conclusion that, during his eight-month relationship with
Yvette, Bryce also assumed a caregiving role for Zoe. This does
not mean he was the principal caregiver or even a caregiver on a
daily basis. He had crossed the threshold from casual acquaintance
to someone who had provided care for her. That being the case,
even if Yvette was primarily responsible for the decision to leave
Zoe alone, Bryce had a duty to exercise a minimum degree of care
and caution against a decision that plainly exposed Zoe to a
substantial risk of harm.
Instead, he joined in the decision to leave a three-year-old,
three hours after she was last fed, in an apartment heated only
by a space heater for an excursion that, under the best
circumstances, would leave her unsupervised for at least forty
minutes. There is no evidence he exercised a minimum degree of
care by objecting to a decision by Yvette to leave Zoe unattended.
Rather, he expressed his approval of this decision, even stating
he had done so in the past.
Therefore, we find the trial judge's decision to be
adequately supported by the evidence and concur with his legal
conclusion.
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Affirmed.
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