RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-3372-15T4
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
Y.O.,
Defendant-Appellant,
and
J.T., Sr.,
Defendant.
__________________________________
IN THE MATTER OF J.T., Jr.,
A minor.
__________________________________
Submitted May 16, 2017 – Decided August 2, 2017
Before Judges Sumners and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-227-15.
Joseph E. Krakora, attorney for appellant
(Cary L. Winslow, Designated Counsel, on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Alaina
M. Antonucci, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, attorney
for minor (Todd Wilson, Designated Counsel,
on the brief).
PER CURIAM
Defendant Y.O. (Yolonda)1 appeals from the fact-finding
determination that she abused or neglected her nine-month-old son
J.T., Jr. (Junior) by operating a motor vehicle under the influence
while he was a passenger in the vehicle. The Law Guardian on
behalf of the child urges us to affirm and, after a thorough review
of the record and the trial judge's findings, we affirm
substantially for the reasons reflected in the trial court's oral
decision.
We recite the following from the fact-finding hearing as
relevant to our decision. At approximately 9:12 p.m., Yolonda was
sitting in the driver's seat of her idling motor vehicle that was
doubled parked on a very narrow street in the City of Passaic.
Also in the vehicle were Yolonda's boyfriend J.T. (John) who was
in the front passenger's seat, a man only referred to as "Macho"
1
We use first name pseudonyms to protect the privacy of parties
and the minor child and for convenience, and we mean no disrespect
in doing so.
2 A-3372-15T4
who was in the back seat, and Junior, Yolonda's and John's son was
in an infant car seat situated in the back seat. As Passaic police
officers Michelle Merced and Matthew Auslander drove past the
vehicle in an unmarked police car, Auslander observed and then
stated to Merced that the driver appeared to be inebriated.
Merced, who was driving the police car, pulled over and stopped
in front of the vehicle, at which point Macho immediately exited
the vehicle and fled. Auslander unsuccessfully chased after Macho,
and returned to the scene. Meanwhile, when Merced went to the
vehicle, John also got out and fled, thereby leaving only Yolonda
and Junior in the vehicle.
Merced looked inside the vehicle and saw in the middle console
a twenty-four ounce bottle of Coors beer and a unlit blunt, which
she described as marijuana that is put inside a hollowed out cigar
wrapper. Although the blunt was not tested, both Merced and
Auslander testified that, based upon their training and
experience, it smelled like marijuana. In addition, they both
stated that Yolonda appeared to be under the influence because her
eyes were bloodshot and watery. Auslander also claimed that
another indicia of Yolonda's inebriation was her slow and slurred
speech.
At Merced's request, Yolonda consented to a search of the
vehicle. A handgun, with the safety lock off and loaded with
3 A-3372-15T4
hollow nose point bullets, was found halfway under the front
passenger's seat. Merced stated that both Yolonda and John had
access to the gun. Yolonda was arrested and charged with
possession of the weapon and hollow nose point bullets, as well
as marijuana possession, and was issued several motor vehicle
summonses.
Division of Child Protection and Permanency (Division)
caseworker Nitzana Silverman testified that two days after the
incident she spoke to Yolonda at the county jail concerning her
arrest and the welfare of her son. The Division had taken custody
of Junior under a Dodd Removal.2 Yolonda revealed to Silverman
that if she were tested, she would test positive for marijuana.
However, she denied smoking on the day of the incident, instead
claiming that her eyes were red and watery due to an emotional
argument with her mother prior to her arrest. Yolonda also told
Silverman that she was aware of the blunt in the car, but unaware
that there was a weapon in her car.
2
A Dodd removal refers to the emergency removal of a child from
the home without a court order, pursuant to the Dodd Act, which,
as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. Former Senate
President Frank J. "Pat" Dodd authored the Act in 1974. N.J. Div.
of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2
(App. Div. 2010).
4 A-3372-15T4
On April 8, 2015, the trial court issued its order and oral
decision that Yolonda abused or neglected her son by placing him
at a risk of harm by driving a vehicle under the influence with
him as a passenger.3 In reaching its decision, the court found
that Yolonda's conduct constituted abuse or neglect because she
failed to exercise the minimum degree of care contemplated in
N.J.S.A. 9:6-8.46(b). The court credited the testimony of the
police officers and Silverman stating:
We have a driver in a car. The car is running.
Credible testimony from the two police
officers, after speaking with her and viewing
her[,] . . . that she is inebriated, she is
under the influence. [Silverman's] testimony
that she [admitted she] would test positive
for marijuana. The incident occurred on
[October 17]. She was interviewed [by
Silverman] on [October 20]. Clearly, based
upon that, it's an inference, the [c]ourt
finds . . . she was smoking or inhaling
marijuana on that day as she was driving and
her child of nine months was in the back seat
of that car.
On February 2, 2016, the court transferred legal and physical
custody of Junior back to Yolonda. A month later, the Title Nine
litigation was terminated at the request of the Division. This
appeal ensued.
3
John was also found to have abused or neglected his son. However,
he is not a party to this appeal, so we address neither the
testimony nor the findings pertaining to him.
5 A-3372-15T4
Yolonda contends that trial court's finding of abuse and
neglect was not supported by substantial evidence. Specifically,
she argues neither police officer testified that she was under the
influence, that she underwent no testing for drug or alcohol use
the night she was arrested, and there was no testimony that she
smelled of alcohol or marijuana. Moreover, she argues that the
alcohol and contraband in the car posed no risk to Junior. We are
unpersuaded.
To prevail in a Title Nine proceeding, the Division must show
by a preponderance of the competent, material, and relevant
evidence that the parent or guardian abused or neglected the
affected child. N.J.S.A. 9:6-8.46(b). "This includes proof of
actual harm or, in the absence of actual harm, the Division [is]
obligated to present competent evidence adequate to establish the
child was presently in imminent danger of being impaired
physically, mentally or emotionally." N.J. Div. of Youth & Family
Servs. v. S.I., 437 N.J. Super. 142, 158 (App. Div. 2014) (citation
omitted).
Title Nine provides a child is "[a]bused or neglected" if he
or she is one:
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
6 A-3372-15T4
child with adequate food, clothing, shelter,
education, medical or surgical care though
financially able to do so or though offered
financial or other reasonable means to do
so[.]
[N.J.S.A. 9:6-8.21(c)(4).]
The term "'minimum degree of care' refers to conduct that is
grossly or wantonly negligent, but not necessarily intentional."
G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999) (citing
Miller v. Newsweek, 660 F. Supp. 852, 858-59 (D. Del. 1987)). A
parent "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.
Where there is no evidence that the child suffered actual
harm, "the focus shifts to whether there is a threat of harm."
N.J. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166,
178 (2015). In such cases, "the Division must show imminent danger
or a substantial risk of harm to a child by a preponderance of the
evidence." Ibid. (citation omitted); see also N.J. Div. of Youth
& Family Servs. v. A.L., 213 N.J. 1, 23 (2013) ("[A] finding of
abuse and neglect can be based on proof of imminent danger and
substantial risk of harm.").
"Abuse and neglect cases 'are fact-sensitive.'" E.D.-O.,
supra, 223 N.J. at 180 (quoting N.J. Div. of Youth & Family Servs.
7 A-3372-15T4
v. T.B., 207 N.J. 294, 309 (2011)). We give considerable deference
to the family court's factual determinations because it has "the
opportunity to make first-hand credibility judgments about the
witnesses who appear on the stand . . . [and] a 'feel of the case'
that can never be realized by a review of the cold record." N.J.
Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)
(quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,
293 (2007)). "Only when the trial court's conclusions are so
'clearly mistaken' or 'wide of the mark' should an appellate court
intervene and make its own findings to ensure that there is not a
denial of justice." Ibid. (quoting N.J. Div. of Youth & Family
Servs. v. G.L., 191 N.J. 596, 605 (2007)).
Applying these principles, we will not disturb the trial
court's order. We do not consider Yolonda's conduct under the
criminal standard of proof beyond a reasonable doubt. Based upon
the preponderance of evidence standard, the record supports the
court's credibility and factual findings that Yolonda was driving
under the influence with her infant son in a vehicle. The
arresting police officers both testified that Yolonda appeared to
be under the influence in the driver's seat of a car that was
double parked, with the engine running, and with marijuana and
beer in the vehicle. In addition, three days after her arrest and
subsequent incarceration, she admitted to the Division caseworker
8 A-3372-15T4
that she had been smoking marijuana. We therefore will not
interfere with court's finding that Yolonda's conduct placed her
son at imminent risk of danger or a substantial undue risk of
harm, constituting abuse or neglect.
Affirmed.
9 A-3372-15T4
DCPP VS. Y.O. AND J.T., SR.IN THE MATTER OF J.T., JR.(FN-09-227-15, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
Combined Opinion