DCPP VS. P.A. AND B.O., IN THE MATTER OF B.O. (FN-09-0145-18, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-0339-18T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
P.A.,
Defendant-Appellant,
and
B.O.,
Defendant.
___________________________
IN THE MATTER OF B.O.,
a Minor.
____________________________
Submitted October 2, 2019 – Decided October 8, 2019
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0145-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Mark Edward Kleiman, Designated Counsel,
on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jessica Faustin, Deputy Attorney General,
on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Olivia Belfatto Crisp, Assistant
Deputy Public Defender, on the brief).
PER CURIAM
Defendant P.A. appeals the trial court's February 27, 2018 finding that she
abused or neglected her son when she chose to get into a vehicle with her
boyfriend who had been drinking; proceeded to assault her boyfriend while her
son was in the car; and got into an altercation with police while holding her son,
causing her to drop her son onto the street. The police arrested P.A. and her
boyfriend and referred the matter to the New Jersey Division of Child Protection
and Permanency (the Division). Division personnel instituted a Dodd Removal
in accordance with N.J.S.A. 9:6-8.29 and filed a complaint seeking, in part, that
the trial court determine that appellant abused or neglected her son. After trial,
the court found that appellant abused or neglected her son within the meaning
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of N.J.S.A. 9:6-8.21(c)(4). After reviewing the record in light of the governing
legal principles, we affirm.
I.
We discern the following facts from the record. 1 This matter arises from
an incident that occurred on September 3, 2017. On that date, the Bogota Police
Department received a complaint of a hit-and-run around 2:30 a.m. Later, the
police responded to a complaint of a roadside domestic violence incident
involving a car that matched the description of the car involved in the hit-and-
run. At the scene, P.A. and her boyfriend were engaged in a physical altercation,
during which P.A. hit her boyfriend. After the police arrived, P.A. picked up
her one-year-old son and attempted to leave, exchanged words with the
responding officers, and then dropped her son in the street, requiring his
transport to the hospital.
After the incident, officers arrested both P.A. and her boyfriend, and
P.A.'s son was sent to stay with his paternal grandparents. P.A. was charged
with endangering the welfare of a child and assaulting a police officer, and her
boyfriend was charged with driving while intoxicated. The Division arrived at
1
Preliminarily, we note that B.O., the child's father, was not a party to this
litigation because he was in jail for reasons unrelated to this case.
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the police station around 5 a.m. to interview P.A. and her boyfriend. The
Division also visited the child, who sustained no marks or bruises and was
medically cleared.
On February 27, 2018, Judge Lois Lipton held a fact-finding hearing to
determine whether P.A.'s actions on September 3, 2017 constituted abuse or
neglect of her son. The Division called as its first witness Claudia Valencia, the
Division Investigator who interviewed P.A. on September 6, 2017. Ms.
Valencia testified as to her interview with P.A. concerning the events of
September 3rd. According to P.A., she and her son had gone out to a restaurant
with her parents, and her boyfriend later joined them. P.A. and her boyfriend
had a few drinks prior to departing for a friend's apartment, but P.A. believed
that her boyfriend was not intoxicated. On the way to her friend's apartment,
P.A.'s boyfriend hit a parked car and then drove away from the accident. P.A.
claimed that she then asked her boyfriend several times to pull over, and when
he finally stopped the car, P.A. went to take her son but got into a physical
altercation with her boyfriend. 2 P.A. explained that when police arrived, she
2
According to Ms. Valencia's investigation summary, P.A. alleged that after
pulling the car over, her boyfriend had "picked up [her son] and would not give
him back."
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attempted to walk away, but the officers followed her and began to "tug" and
"push" her, causing her son to fall.3
Ms. Valencia testified on direct that P.A. was "substantiated for family
violence" for this altercation, and the Division made this finding while
considering both aggravating factors, including the child's removal and his
"tender age," and mitigating factors, including the negligible impact that the
supposed abuse or neglect had on the child.
The Division next attempted to call as a witness Sergeant Lynch of the
Bogota Police Department, but he never appeared for the hearing despite being
subpoenaed. The Division instead recalled Ms. Valencia to authenticate the
Division's investigation and screening summaries, which Judge Lipton admitted
into evidence as Division business records, subject to applicable hearsay
exceptions.4
Judge Lipton found that the uncontroverted evidence presented was
sufficient to support a finding of abuse and neglect. The judge found that P.A.
3
According to Ms. Valencia's investigation summary, P.A. expressed that "the
police officer told her to stop however she ignored him and kept walking with
[her son]."
4
Judge Lipton noted that because Sergeant Lynch failed to appear to provide
testimony, any statements made by the police officers contained in the reports
would be hearsay.
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"had at least a margarita and a beer," and she "chose to get in a car with [a person
who was drinking] . . . with . . . an infant." Judge Lipton further found that P.A.
scuffled with "her friend who was driving after drinking and had hit a parked
car and refused to pull over or stop the car when she requested it[,]" and that
P.A. "[b]y her own admission . . . hit the driver." Judge Lipton also emphasized
that P.A. was combative with police, stressing that "[n]o reasonable person with
a thirteen-month-old infant would engage in a tugging session with police with
a baby in her arms." Given that P.A. dropped her son onto the street as opposed
to "a carpet in a house," the judge determined that the "child was at substantial
risk of harm."
Judge Lipton specifically stated that the "tussle in the car" may not have
"rise[n] to the level of willful and wanton conduct," but P.A. should have
immediately cooperated with police, regardless of whether the police touched
her first, "for the safety of the baby," and further stated that her actions therefore
were willful or wanton. The judge found that P.A.'s failure to cooperate with
law enforcement evinced "that her judgment was so off and caused that baby to
fall." She showed "reckless disregard at that moment for the safety of her baby
[because] she should have welcomed the police if she was afraid of the conduct
of the driver." Judge Lipton concluded that P.A.'s own recitation of the facts
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alone showed, by a preponderance of the evidence, that P.A. neglected or abused
her son on September 3, 2017. The judge entered an order memorializing those
findings.
This appeal ensued. On appeal, P.A. argues that the testimony of Ms.
Valencia, coupled with P.A.'s own statements, were insufficient to permit a
finding that P.A. abused or neglected her son as contemplated by N.J.S.A. 9:6-
8.21(c)(4)(b).
II.
The appellate standard of review of the "fact-findings of the Family Part
judge" is strictly limited. N.J. Div. of Youth and Family Servs. v. I.H.C., 415
N.J. Super. 551, 577 (App. Div. 2010) (citing Cesare v. Cesare, 154 N.J. 394,
411 (1998)). "[F]indings by the trial judge are considered binding on appeal
when supported by adequate, substantial and credible evidence." N.J. Div. of
Youth and Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002)
(quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484
(1974)). "[A]n appellate court should not disturb the 'factual findings and legal
conclusions of the trial judge unless [it is] convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice.'" Cesare, 154 N.J. at 412
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(second alteration in original) (quoting Rova Farms, 65 N.J. at 484). However,
we need not defer to the trial court on questions of law. N.J. Div. of Youth and
Family Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011).
III.
P.A. contends her conduct resulted in no actual harm to her son, and the
evidence presented in this case is insufficient to support a finding of ab use or
neglect under N.J.S.A. 9:6-8.21 to -8.82. P.A. explains that the only evidence
available for Judge Lipton to consider was Ms. Valencia's testimony, which
standing alone was insufficient to support a finding of abuse or neglect.
P.A. also argues that Judge Lipton's opinion makes clear that there was
insufficient evidence to conclude that P.A. knowingly chose to enter a vehicle
with an intoxicated driver. P.A. claims, by Judge Lipton's own findings, her
request that her boyfriend pull over constituted "reasonable actions of a mother
attempting to protect her child from harm," and her conduct was not willful or
wanton. P.A. explains that she attempted to remedy the situation once she
realized that her boyfriend was not fit to drive.
P.A. further maintains that the record contained insufficient evidence to
support Judge Lipton's finding that her conduct with the police officers was
unreasonable. P.A. stresses that the police initiated contact with her and acted
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in an "inappropriate aggressive manner, and that [she] acted reasonably, fearing
physical harm to herself and her child." P.A. argues that due to the lack of
evidence concerning the officers' actions, Judge Lipton's determination that no
reasonable person would have acted as P.A. had was not rooted in fact and
constituted an improper inference.
An "abused or neglected child" is
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 or guardian . . . 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).]
"Whether a parent or guardian has failed to exercise a minimum degree of
care is to be analyzed in light of the dangers and risks associated with the
situation." G.S. v. Dep't of Human Servs., Div. of Youth and Family Servs., 157
N.J. 161, 181-82 (1999). Failure to exercise a "minimum degree of care"
requires "conduct that is grossly or wantonly negligent, but not necessarily
intentional." Dep't of Children and Families, Div. of Youth and Family Servs.
v. T.B., 207 N.J. 294, 299-300 (2011) (quoting G.S., 157 N.J. at 178). "[T]he
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concept of willful and wanton misconduct implies that a person has acted with
reckless disregard for the safety of others." G.S., 157 N.J. at 179 (citing Fielder
v. Stonack, 141 N.J. 101, 124 (1995)).
New Jersey courts do not delineate all of the scenarios that would equate
to a failure to exercise a "minimum degree of care," but "the inquiry should
focus on the harm to the child and whether that harm could have been prevented
had the guardian performed some act to remedy the situation or remove the
danger." Id. at 182. "[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 (citing Sellnow v. Perales, 158 A.D.2d 846, 847 (N.Y.
1990)). In deciding whether a child has been abused or neglected, courts "must
base [their] findings on the totality of the circumstances . . . ." V.T., 423 N.J.
Super. at 329.
The court should focus on the "parent's conduct at the time of the incident
to determine if a parent created an imminent risk of harm to a child." Dep't of
Children and Families, Div. of Child Prot. and Permanency v. E.D.-O., 223 N.J.
166, 189 (2015). A child need not be "actually irreparably impaired by parental
inattention or neglect" for a court to find that a parent failed to exercise a
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minimum degree of care. See In re Guardianship of D.M.H., 161 N.J. 365, 383
(1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616
n.14 (1986)).
We conclude that Judge Lipton's finding that P.A. abused or neglected her
son is supported by ample, substantial, and credible evidence. The judge found
that, based on P.A.'s own statements, she failed to exercise a minimum degree
of care based on the totality of the circumstances. See V.T., 423 N.J. Super at
329. These statements confirmed that P.A. knowingly entered a vehicle with
someone who was drinking, while she herself was drinking, and in the same
sequence of events, assaulted the driver and became entangled with police prior
to dropping her son. While P.A. may assert that Judge Lipton did not
appropriately weigh the possibility that the police instigated the confrontation
with her, Judge Lipton correctly found this point to be inconsequential, as she
opined that "[P.A.] should have immediately cooperated" with the police and
perhaps even welcomed police intervention if she was in a dispute with her
boyfriend. In this respect, the potential for harm to the child could have been
prevented if P.A. merely acquiesced to the requests of law enforcement. See
G.S., 157 N.J. at 182. We conclude that the trial judge's findings are supported
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by the record and therefore her legal conclusions are unassailable. See Z.P.R.,
351 N.J. Super. at 433.
To the extent we have not specifically addressed any remaining arguments
raised by the parties, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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