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Superior Court of New Jersey, Appellate Division.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,Plaintiff–Respondent, v. T.M.F., Defendant–Respondent, J.M.R., Defendant–Appellant. IN RE: J.S.R., a minor.

DOCKET NO. A–2201–11T1

-- December 05, 2013

Before Judges Fuentes, Simonelli and Fasciale. Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel;  John W. Tolleris, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent T.M.F. (John A. Salois, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.S.R. (Christopher A. Huling, Designated Counsel, on the brief).

Defendant-father appeals from orders entered on remand (1) finding that he abused and neglected his son born in 2006 (the “child”);  and (2) awarding physical custody of the child to the paternal grandmother (M.R.), and joint legal custody of the child to M.R. and defendant-mother.2  The parties return to us disputing the sufficiency of the evidence adduced at the fact-finding hearing.

We affirm the order finding defendant abused or neglected the child, reverse the order granting the mother joint legal custody and remand for the trial court to conduct a dispositional hearing.   Physical and legal custody of the child shall remain with the paternal grandmother, M.R. pending the outcome of the dispositional hearing.

At the fact-finding hearing, the Division produced testimony from two psychologists, Dr. Jamie Gordon–Karp and Dr. Elayne Weitz, and a caseworker, Tiana Smith.   Dr. Maureen Santana (a psychologist) testified on behalf of the Law Guardian.   The father called Dr. James R. Reynolds (a psychologist) as his witness.   The judge also heard testimony from M.R., and Ivan Haye, the mother's paramour.   We discern the following facts from the evidence presented at the fact-finding hearing.

The mother had been suffering from depression and asked defendant not to leave her alone with the children;  however, he left her alone with them.   Defendant suffers from emotional instability, alcohol, drug abuse, and anger management issues.   He also knew that the mother was under substantial stress and was unwilling to remain alone with the baby and the child.   Defendant, however, left the mother alone with the children.   The mother dropped the baby causing a fatal injury.   The police arrived at the home and the mother admitted to choking the baby in front of the child.3  The police arrested the mother and charged her with second-degree endangering the welfare of a child, N.J.S.A. 2C:24–4a.4

The judge found by clear and convincing evidence that defendant abused and neglected the children by deliberately exposing them to “substantial risk of harm” when defendant left them unsupervised with the mother.   The Division moved to appoint M.R. as the kinship legal guardian (KLG) for the child.   The judge terminated the litigation, denied the Division's motion to name M.R. as the child's KLG, and entered the custody order.5

On appeal, defendant argues that there is insufficient evidence in the record to support a finding that he abused and neglected the child.   He contends that the judge erred by awarding physical custody of the child to M.R. and joint legal custody to the mother and M.R. The Law Guardian and Division maintain that at the conclusion of the fact-finding hearing, the judge failed to conduct a dispositional hearing pursuant to N.J.S.A. 9:6–8.47a.

We begin by addressing defendant's contention that the judge erred by finding he abused and neglected the child.   Our review of the court's factual finding of neglect is limited;  we defer to the court's determinations “when supported by adequate, substantial, credible evidence.”  N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010).   The trial court is best suited to assess credibility, weigh testimony, and develop a feel for the case, and we extend special deference to the Family Part's expertise.  N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342–43 (2010);  Cesare, supra, 154 N.J. at 412–13.   Unless the trial judge's factual 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) (citation omitted), they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance, see Clark v. Clark, 429 N.J.Super. 61, 71 (App.Div.2012).  “It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support” the judge's decision.   N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448–49 (2012).   Using this standard, we have no reason to disturb the judge's findings.

We reject defendant's argument that there was insufficient evidence of abuse or neglect.   In pertinent part, N.J.S.A. 9:6–8.21(c)(4) defines an abused and neglected child as:

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 (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or through offered financial or other reasonable means to do so, or (b) 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[.]

A court does not have to wait until a child is actually harmed before it can act in that child's welfare.  N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J.Super. 222, 235–36 (App.Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009), cert. denied, _ U.S. _, 130 S.Ct. 3502, 177 L. Ed.2d 1095 (2010).   Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect.  M.C. III, supra, 201 N.J. at 344.

In determining a case of abuse and neglect, the court must base its determination 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).   A finding of neglect must be based on the preponderance of the evidence.  N.J.S.A. 9:6–8.46(b);  N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009).

The record shows the father (1) suffered from mental health issues, narcotic use, and anger management problems;  (2) ignored the mother's warning that she was unable to care for the children knowing that she was overwhelmed and mentally unstable;  and (3) failed to provide adequate supervision.   Thus, we reject defendant's argument that the judge erred by finding that he abused and neglected the children.

We affirm in part;  and reverse and remand in part.   We do not retain jurisdiction.


2.  FN2. In 2011, we remanded the matter and directed the judge to conduct a fact-finding hearing and, if necessary, a dispositional hearing.  N.J. Div. of Youth & Family Servs. v. J.R., No. A–3938–09 (App.Div. January 5, 2011).

3.  FN3. An autopsy report revealed that the baby died from head trauma with bilateral subdural and subarachnoid hemorrhage.

4.  FN4. Although we were not provided with a copy of the Judgment of Conviction, the mother's appellate counsel states in his brief that his client pled guilty to this crime.

5.  FN5. The judge denied the KLG motion because he entered the custody order.   Although the Division did not cross-appeal from the denial of its KLG motion, because we are re-directing the judge to conduct a dispositional hearing, we instruct the judge to adjudicate the Division's KLG motion on the merits.


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