DCPP VS. S.T., C.C., J.C. AND M.T., IN THE MATTER OF G.C. (FN-09-0177-18, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-2135-18T4
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.C.,
Defendant-Appellant,
and
S.T., C.C. and M.T.,
Defendants.
______________________________
IN THE MATTER OF G.C.,
a Minor.
______________________________
Submitted May 19, 2020 – Decided June 30, 2020
Before Judges Fisher, Accurso, and Gilson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0177-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Caitlin Aviss McLaughlin, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Peter Damian Alvino, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Margo E.K. Hirsch,
Designated Counsel, on the briefs).
PER CURIAM
J.C. (Joseph), a father, appeals from an order finding he abused or
neglected his son, G.C. (Guy). 1 Following an evidentiary hearing, the family
court found that the then three-year-old child had been placed at substantial risk
of harm because, while Guy was with him, Joseph was arrested in a stolen car,
admitted he had used heroin earlier that day, and could not identify any relatives
or adults who could care for Guy. We affirm because those facts establish that
1
We use initials and fictitious names to protect the privacy interests and
confidentiality of the record. See R. 1:38-3(d)(12).
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Joseph failed to provide a minimal degree of care and placed Guy at substantial
risk of imminent harm.
I.
The facts were established at an evidentiary hearing where four witnesses
testified: A State Police Trooper and three workers from the Division of Child
Protection and Permanency (Division). Joseph did not appear at the hearing and
his counsel called no witnesses.
On the evening of October 25, 2017, the trooper saw Joseph sitting in a
car in the travel lane of a service area off the New Jersey Turnpike. The trooper
recognized Joseph because Joseph had been arrested earlier that week for
possession of a stolen vehicle, which he had allegedly rented from a friend. In
that earlier incident, S.T. (Susan), who is the mother of Guy, was also arrested
and held on a warrant. Susan was still in jail on October 25, 2017.
When the trooper questioned Joseph, he initially claimed the car belonged
to his father and then asserted that it was a rental car. The trooper performed a
license plate check and learned that the license plate did not match the vehicle.
Joseph also provided the trooper with a false name by identifying himself with
the name of his dead brother.
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The trooper testified that Joseph's behavior was "off," and he suspected
that Joseph was under the influence of some substance. In response to further
questioning, Joseph admitted that he had used heroin earlier that day. Joseph
was given a field sobriety test, which he passed.
As the trooper was speaking with Joseph, a woman, later identified as
Guy's aunt, came over. The aunt explained that she was traveling with Joseph
and Guy, and she also admitted that she had used heroin earlier in the day. The
State Police believed that the car was stolen, so Joseph and the aunt were
arrested. The car was searched, and the police found drug paraphernalia and
what appeared to be burglary tools.
Joseph and the aunt were charged with receiving stolen property,
endangering the welfare of a child, possession of drug paraphernalia, and
possession of burglary tools. Joseph told the trooper that he did not want to be
arrested and asked for a break because Guy was in his care.
After taking Joseph into custody, the trooper notified the Division, and
workers came out to the police barracks to interview Joseph and assess Guy.
Guy was dirty and his clothes smelled of urine. When a Division worker
interviewed Joseph, he admitted to using heroin that day. The worker asked
Joseph if there were any relatives who could care for Guy, but at that time Joseph
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did not provide her with any helpful information. Accordingly, the Division
executed an emergent removal of Guy.
Thereafter, the Division conducted further investigations to try to identify
a relative caregiver for Guy. Joseph told the Division that he wanted his parents,
who lived in Florida, to care for Guy. The paternal grandparents, however,
refused to provide the Division with their address until January 5, 2018.
At the conclusion of the hearing, on February 6, 2018, the family court
made findings of fact and conclusions of law on the record. The court found the
State Trooper and the Division worker who interviewed Joseph to be credible.
The court then identified the relevant facts, which included that (1) Joseph and
Guy were in a stolen vehicle and were stopped in a lane for moving vehicles,
rather than parked; (2) Guy was in the front seat of the vehicle unrestrained and
jumping up and down; and (3) Joseph admitted to using heroin earlier that day.
The court then found that Joseph was aware that he risked arrest, reasoning that
he likely knew the car was stolen since he rented it from the same person who
rented him a stolen vehicle earlier that week. The court also found that Joseph
knew that Susan was in jail and, therefore, there was no one available to care for
Guy. Assessing the totality of those circumstances, the court found that Joseph
had placed Guy at substantial risk of harm by being in a stolen car with drug
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paraphernalia and knowing that if he were arrested, there would be no one
available to care for Guy.
II.
On appeal, Joseph makes two arguments, contending that the family court
erred by (1) applying the wrong standard under N.J.S.A. 9:6-8.21(c)(4); and (2)
considering Joseph's failure to have an available caregiver when he was arrested.
Joseph argues that the court found only that Guy was at substantial risk of harm
and did not find that the harm was imminent or that he acted grossly or wantonly.
He also asserts that the law does not require him to be able to immediately
identify an alternate caregiver since he could not anticipate that he would be
arrested. We reject these arguments given the totality of the facts found by the
family court.
The scope of our review of an appeal from an order finding abuse or
neglect is limited. N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J.
Super. 541, 546 (App. Div. 2014) (citing N.J. Div. of Youth & Family Servs. v.
I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008)). We will uphold the family
court's factual findings and credibility determinations if they are supported by
"adequate, substantial, and credible evidence." N.J. Div. of Youth & Family
Servs. v. G.L., 191 N.J. 596, 605 (2007) (first citing In re Guardianship of J.T.,
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269 N.J. Super. 172, 188 (App. Div. 1993); then citing Cesare v. Cesare, 154
N.J. 394, 411-13 (1998)). Accordingly, we will only overturn the court's
findings if they "went so wide of the mark that the judge was clearly mistaken."
Ibid. (citing J.T., 269 N.J. Super. at 188-89). We do not, however, give "special
deference" to the family court's interpretation of the law. D.W. v. R.W., 212
N.J. 232, 245 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J.
145, 183 (2010)). Consequently, we apply a de novo standard of review to legal
issues. Id. at 245-46 (citation omitted).
The adjudication of abuse or neglect is governed by Title 9, which is
designed to protect children. N.J.S.A. 9:6-1 to -8.114. Under Title 9, a child is
abused or neglected if:
[a] parent or guardian . . . creates or allows to be created
a substantial or ongoing risk of physical injury to such
child by other than accidental means which would be
likely to cause death or serious or protracted
disfigurement, or protracted loss or impairment of the
function of any bodily organ . . . or 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 . . . .
[N.J.S.A. 9:6-8.21(c).]
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The statute does not require the child to suffer actual harm. N.J.S.A. 9:6-
8.21(c)(4). Instead, abuse or neglect is established when a child's "physical,
mental, or emotional condition has been impaired or is in imminent danger of
becoming impaired." Ibid. When there is an absence of actual harm, but there
exists a substantial risk of harm or imminent danger, the court must consider
whether the parent exercised a minimum degree of care under the circumstances.
G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999) (citing N.J.S.A. 9:6-
8.21(c)(4)(b)).
The failure to exercise a "minimum degree of care" refers to "conduct that
is grossly or wantonly negligent, but not necessarily intentional." Id. at 178
(citation omitted). "Conduct is considered willful or wanton if done with the
knowledge that injury is likely to, or probably will, result." Ibid. (citing
McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). A parent fails to
exercise a minimum degree of care if, 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 (citation
omitted).
The Division must prove by a preponderance of the competent, material,
and relevant evidence that a child is abused or neglected. N.J.S.A. 9:6-8.46(b).
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That burden of proof requires the Division to demonstrate a "probability of
present or future harm." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J.
Super. 13, 24 (App. Div. 2004). Title 9 cases are fact-sensitive, and the court
should base its findings 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) (citation
omitted).
The family court here found that, while Guy was with and in the care of
Joseph, Joseph was in a stolen car, had drug paraphernalia and burglary tools in
the car, admitted he had used heroin earlier in the day, and knew Susan was
unavailable to care for Guy because she was in jail after they had both been
arrested earlier that week for driving another stolen car. Those facts are all
supported by substantial credible evidence in the record. Indeed, those facts
were uncontroverted.
Moreover, those facts established that Joseph placed Guy at substantial
risk of imminent harm. Joseph knew or should have known that he was engaged
in illegal activity by driving a stolen car with drug paraphernalia and burglary
tools. He also knew that he could be arrested for that activity. Indeed, he had
been arrested earlier that week for being in another stolen car. Consequently,
Joseph acted recklessly by placing Guy in such a situation.
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Joseph argues that the family court erred because at the time of the
hearing, Joseph had not yet been convicted for driving a stolen car. The family
court did not rely on the pending criminal charges; rather, it correctly and
appropriately relied on the unrebutted testimony by the trooper who testified
that the car was stolen. At the hearing, Joseph did not dispute or offer any
evidence to contest that he was in a stolen car.
The family court also appropriately considered that Guy was unrestrained
in the front seat of the car. Joseph argues that the car was stopped and, therefore,
Guy was not at risk. The trooper, however, testified that the car was in the travel
lane of a service area on the New Jersey Turnpike. Accordingly, the facts
established that Joseph had driven the car to the service area and would have
continued driving if the trooper had not intervened.
We also reject Joseph's argument that the Division needed to present
expert testimony that Joseph was impaired at the time of his arrest. In making
that argument, Joseph relies on our decision in V.T., where we held that expert
testimony was necessary to determine if a father presented a substantial risk of
harm to his minor child when he tested positive for cocaine and marijuana at
two supervised visits with the child. 423 N.J. Super. at 323, 330-31. The
reasoning and holding in V.T. are not applicable to this case. Joseph was not
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found to have abused or neglected Guy because he was under the influence of
heroin. As already detailed, Joseph was found to have abused or neglected Guy
under the totality of the circumstances. Those circumstances included that he
was in a stolen car, had drug paraphernalia, had used heroin earlier that day, and
had no plan for how Guy would be cared for if he was arrested.
In summary, we reject Joseph's argument that the family court used the
wrong standard. While the court may not have used the words "imminent,"
"recklessly," or "wantonly," the totality of the court's findings met the governing
standard.
Finally, we reject Joseph's argument that the family court improperly
considered that Joseph had no plan for how Guy would be cared for if he were
arrested. Given Joseph's recent arrest and that he was again driving a stolen car,
Joseph acted recklessly and wantonly in not having a plan for how Guy would
be cared for should he be arrested. After his arrest, Joseph could not identify
for a Division worker any available adult caregiver for Guy. The Division
worker also testified that Guy was very upset after he was removed because his
father had been arrested. Those facts established that Joseph acted re cklessly
and failed to exercise a minimum degree of care by failing to ensure that
someone was available to look after Guy. But for the intervention of the
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Division, three-year-old Guy would have been left without any adult to care for
him.
Affirmed.
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