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Superior Court of New Jersey, Appellate Division.

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff–Respondent, v. P.H., Defendant–Appellant. IN RE: A.N., M.H., AND Z.H.,

DOCKET NO. A–2000–12T4

    Decided: March 26, 2014

Before Judges Fasciale and Haas.Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer Broeck Swift, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel;  Jaime Marie Millard–Tindall, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Charles M. Ouslander, Designated Counsel, on the brief).

Defendant-father appeals from a November 27, 2012 order finding that he abused and neglected three minor children by assaulting his wife in front of them.   We affirm.

In March 2012, defendant assaulted the wife in front of the three children in a small motel room.   Defendant head-butted her, jumped on top of her, and punched her in the face.   The oldest child, who was approximately twelve years old, had to run out of the room to call the police.   The middle child, who was approximately two years old, was physically in the middle of the altercation and blood dripped onto the child from the wife's lip.

The Division of Child Protection and Permanency (the Division) filed a Title Nine 1 action against defendant.   The judge conducted a fact-finding hearing and concluded that the Division proved by a preponderance of the evidence that defendant failed to provide a minimum degree of care to the children by placing them at substantial risk of harm.

On appeal, defendant argues that the judge erred by finding that he abused and neglected the children.   We accord deference to a trial court's factual determinations when they are supported by 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 v. Cesare, 154 N.J. 394, 412–13 (1998).   Therefore, the trial judge's factual findings should not be disturbed unless they “ ‘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).   Applying this standard, we discern no reason to disturb the judge's findings and affirm substantially for the reasons that he expressed.   We add the following comments.

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

[ (Emphasis added).]

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, 201 N.J. 272 (2009), cert. denied, _ U.S. 3502, 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 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. 9:6–8.46b;  N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 398 (2009).

The record shows that defendant attacked the wife in front of the children in a small room, that one child had to run out of the room to seek help from the police, and that another child was in the middle of the fight and was stained by the wife's blood.   The children were not merely observers of the domestic violence;  they were directly affected by it and were “in imminent danger of becoming impaired.”  N.J.S.A. 9:6–8.21c(4).   Therefore, we will not disturb the judge's finding that defendant abused and neglected the children.

After careful consideration of the record, we are satisfied that defendant's remaining arguments lack sufficient merit to warrant discussion in this opinion.   R. 2:11–3(e)(1)(E).



FN1. N.J.S.A. 9:6–8.21 to –8.73..  FN1. N.J.S.A. 9:6–8.21 to –8.73.


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