Opinion
DOCKET NO. A-2233-13T3
05-05-2015
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. R.C.S., Defendant-Appellant. IN THE MATTER OF I.S., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Sandra A. Bober, Designated Counsel, on the brief). John J. Hoffman, Acting 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, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-454-12. Joseph E. Krakora, Public Defender, attorney for appellant (Sandra A. Bober, Designated Counsel, on the brief). John J. Hoffman, Acting 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, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant R.C.S. appeals the Family Part's finding that he abused or neglected his nine-year-old son I.S. by driving I.S. while under the influence of alcohol. We affirm.
I.
The following record was established at the fact-finding hearing. On Saturday, June 16, 2012, I.S.'s parents, R.C.S. (Father) and R.S. (Mother), were drinking at home. They started to argue, and it escalated into a physical altercation. Mother called the police. When Sergeant Tyrone Robert Hickey and his partner arrived, Father was not present. Mother told the officers she and Father had been drinking during the day. Sergeant Hickey observed a half-empty liter bottle of whiskey. Mother also said she and Father had just argued, and Father had just kicked in the television screen and the door. The sergeant confirmed the TV screen was damaged, but the damage to the door appeared to be old. Mother did not want the officers to take any action, and they departed.
Within an hour, Mother again called the police. When Sergeant Hickey and his partner returned, Mother and Father were outside. Mother was screaming, stumbling, and falling down. Sergeant Hickey, a sixteen-year police veteran, testified that, based on his experience, Mother was under the influence. After Mother said she wanted to hurt herself, the officers called an ambulance to take her to the hospital.
Sergeant Hickey testified as follows:
Q. And was [Mother's] behavior consistent with that of other people you have come into contact within your position that were intoxicated?The Division argues the sergeant's reference to "[t]hey" encompassed Father as well. However, he could have been instead referring to the "other people." The trial judge who saw and heard the sergeant's answer did not cite it in support of her conclusion that Father was intoxicated. We likewise decline to do so.
A. Yes. They were under the influence.
Once Mother left in the ambulance, the officers entered the house. Sergeant Hickey saw the same whiskey bottle, which was now empty. The officers ensured I.S. was in the house with Father, and then departed.
However, Father put I.S. in a car and drove to the hospital. They arrived shortly after 8:27 p.m. Hospital staff detected a strong odor of alcohol on Father's breath. Father was verbally abusive to Mother, and they screamed at each other. Mother took a swing at Father, and an officer removed him.
Division worker Kelly Haack-Ortiz spoke to I.S. at the hospital. The worker reported I.S. said that, after Mother left in the ambulance, "his father was drinking, that he was drunk and that his father went through his mother's pocketbook and took [] her car keys." I.S. said "my father drove me to the hospital and he was drunk."
The Division took emergency custody of I.S. At about 5:00 a.m. Sunday, Haack-Ortiz served Father at home with the emergency removal papers. Father smelled of alcohol and his eyes were bloodshot. When the worker explained that the Division was placing I.S. in its custody because "both parents had been drinking that night," Father responded: "True, true."
On Monday, Father described the Saturday incident to Division worker Sasha Marroquin. Father said he drank beer on weekends, but on that Saturday he was drinking beer and liquor with Mother at home. He said he was tipsy and she was intoxicated. All of a sudden, they started arguing, it got out of control and became a physical fight, and the police were called. Father claimed that he took Mother's car keys to give them to Mother at the hospital, and that he had a friend drive him and I.S. to the hospital.
The trial court ordered that I.S. remain in the Division's custody because both parents were intoxicated. The Division filed a complaint alleging that both parents abused or neglected I.S. in violation of N.J.S.A. 9:6-8.21(c)(4). Subsequently, the trial court conducted a fact-finding hearing. The Division presented Haack-Ortiz, Marroquin, and Sergeant Hickey. The parents presented no witnesses.
On January 4, 2013, based on the evidence related above, the trial court found that both parents admittedly had been drinking that day, that Father "drove with the child when he had been drinking," and that "he drove with the child while under the influence of alcohol, thereby placing [I.S.] at substantial risk of harm." Accordingly, the court found by a preponderance of the evidence that Father abused or neglected I.S. The court rejected the Division's allegations of abuse or neglect based on Mother's drinking and the parents' domestic violence.
The Division has not appealed from the court's order.
The trial court ordered Father to undergo a substance abuse evaluation and comply with treatment. The court gave Mother continued custody over I.S. On November 8, 2013, the court dismissed the litigation at the request of the Division. Father appeals the finding of abuse or neglect.
II.
We must "'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has 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. M.C. III, 201 N.J. 328, 342-43 (2010). "Particular deference is afforded to family court fact-finding because of the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Child Prot. & Permanency v. N.C.M., 438 N.J. Super. 356, 367 (App. Div. 2014) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We must examine "whether there was sufficient credible evidence to support the trial court's findings." M.C. III, supra, 201 N.J. at 342. "We will not overturn a family court's factfindings unless they are so 'wide of the mark' that our intervention is necessary to correct an injustice." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (internal quotation marks omitted). We must hew to that standard of review.
Under N.J.S.A. 9:6-8.21(c)(4), the definition of an abused or neglected child includes
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 . . . (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[.]Failure to exercise a minimum degree of care "at least requires grossly negligent or reckless conduct." N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 306 (2011).
A parent "who permits a child to ride with an inebriated driver acts inconsistently with N.J.S.A. 9:6-8.21(c)(4)." N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 68 (App. Div. 2014). "[N]o reasonable person could fail to appreciate the danger of permitting children to ride in a motor vehicle driven by an inebriated operator." Id. at 69. Thus, "a parent fails to exercise the minimum degree of care required by N.J.S.A. 9:6-8.21(c)(4) when permitting children to be passengers in a vehicle driven by a person who appears to be inebriated." Id. at 64. In J.A., we found that a father "was grossly negligent in failing to protect the children from the imminent risk posed by [their mother's] driving." Id. at 69-70. Here, Father's gross negligence was more direct, because he was the inebriated driver.
There was sufficient evidence to support the trial court's finding that Father drove with I.S. while under the influence of alcohol. Father admittedly had been drinking during the day and the night, including both beer and liquor. Indeed, Sergeant Hickey observed a bottle of whiskey that was half consumed when the sergeant first arrived, and completely consumed when he returned. Father admitted he was tipsy.
I.S. related that Father continued to drink after Mother left in the ambulance, that he was drunk, and that he was drunk when he drove I.S. to the hospital. There was a strong odor of alcohol on Father's breath when they arrived at the hospital. His conduct — launching into a verbal barrage and then a screaming match with Mother in the midst of the hospital — supported an inference of impaired judgment, as did his kicking in the television screen. Father still smelled of alcohol and had bloodshot eyes hours later.
On appeal, Father concedes there was ample evidence that he consumed alcohol before he drove I.S. to the hospital. He contends that the trial court failed to find that his consumption of alcohol left him in an intoxicated or impaired state. In fact, the court found exactly that in its order, determining by a preponderance of the evidence that Father "drove with the child while under the influence of alcohol thereby placing [I.S.] at substantial risk of harm."
Father notes that there was no breath test showing that he was above the legal limit set in N.J.S.A. 39:4-50 of the Motor Vehicle Code. However, that motor vehicle statute does not require a breath test, as it permits conviction for driving while intoxicated if the driver "operates a motor vehicle while under the influence of intoxicating liquor," as the trial court found here. N.J.S.A. 39:4-50(a). More importantly, the child protection statute at issue here does not mention a breath test. Rather, it requires the parent commit abuse or neglect by subjecting the child to a "substantial risk" of harm, as the trial court also found. N.J.S.A. 9:6-8.21(c)(4)(b). Finally, though there was a breath test in J.A., we did not require such a test. See J.A., supra, 436 N.J. Super. at 65. Instead, we required only that the parent drove the child while "inebriated." Id. at 64, 68-69. Indeed, we affirmed based on a family court finding that the driver was "'under the influence,'" the same finding the trial court here made. Id. at 66.
There was also a breath test in a case cited by the trial court. N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467, 470 (App. Div.), certif. denied, 203 N.J. 439 (2010). However, as Father points out, in R.M. the intoxicated parent had stipulated to neglect for attempting to drive the children; the only issue before us was suspension of judgment. Id. at 469, 480. The pertinent case here is J.A., which was decided after the trial court issued its opinion.
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Father points out Sergeant Hickey did not testify that defendant was intoxicated. However, on his first visit to the house, the sergeant did not see Father. On his second visit, Hickey's conversation with Father was interrupted and overshadowed by the need to address Mother's screaming and inability to stand. Father argues that the officers could not have believed he was under the influence because they left I.S. with him. However, they did so only after ensuring I.S. was safely inside the home. Nothing indicated the officers believed Father should be driving I.S. anywhere.
In any event, I.S. reported that Father continued to drink after the ambulance and the police were gone, and he was drunk when he drove I.S. to the hospital. The odor of alcohol on Father's breath was so strong it was immediately noticed by the hospital staff. Defendant notes the staff made no detailed observation of Father as they did of Mother. However, only she was their patient. Moreover, Father's' immediate verbal berating of Mother quickly resulted in screaming, scuffling, and Father's removal.
In any event, the issue before us is not what other evidence could have been offered, but "whether there was sufficient credible evidence to support the trial court's findings." M.C. III, supra, 201 N.J. at 342. As set forth above, there was evidence "of the fact of intoxication — a defendant's demeanor and physical appearance — coupled with proofs as to the cause of intoxication — i.e., the smell of alcohol, an admission of the consumption of alcohol, [and] a lay opinion of alcohol intoxication." State v. Bealor, 187 N.J. 574, 588 (2006).
Indeed, I.S. described to Haack-Ortiz that Father got "drunk" right before driving, and that "my father drove me to the hospital and he was drunk." "The term 'drunk' has a commonly understood meaning and the signs of drunkenness are matters of common knowledge and experience." State v. Amelio, 197 N.J. 207, 214 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009).
Father claims I.S.'s statements were not credible or reliable because a nine-year-old cannot understand what it means to be intoxicated. Sadly, however, the evidence indicated that I.S.'s parents exposed him to such knowledge. I.S. stated that Father and Mother drink in the home, and that they drink all the time. I.S. added that he had gone shopping with his parents and he knew they buy Bud Lite, and that they also drink an alcoholic beverage called "Coco." Thus, his statements were based on I.S.'s personal knowledge and perceptions. N.J.R.E. 602, 701. Moreover, "reviewing courts should defer to the trial court's credibility determinations," N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014), and "'the weight to be given to the evidence of experts is within the [particular] competence of the fact-finder.'" N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 74 (App. Div. 2010).
Father asserts I.S.'s statements to Haack-Ortiz were inadmissible hearsay. "We grant substantial deference to the trial judge's discretion on evidentiary rulings, and will only reverse when the trial judge's ruling was 'so wide of the mark that a manifest denial of justice resulted.'" N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012) (citations omitted). Moreover, Father does not claim, or appear to have objected to the admission of I.S.'s statements. Thus, Father must show plain error. R. 2:10-2.
We find no abuse of discretion, let alone plain error. "[P]revious statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4). "Thus, a child's hearsay statement may be admitted into evidence," including such statements in Division reports. N.J. Div. of Youth & Family Servs. v. P.W.R., supra, 205 N.J. 17, 32-33 (2011).
Father argues I.S.'s statements that Father was drunk were inadmissible because they were uncorroborated. Father's argument misapprehends N.J.S.A. 9:6-8.46(a)(4), which provides that "an uncorroborated statement by a child is admissible," but once admitted "'may not be the sole basis for a finding of abuse or neglect.'" J.A., supra, 436 N.J. Super. at 66-67 (quoting P.W.R., supra, 205 N.J. at 33).
Moreover, I.S.'s statements that Father was drunk were corroborated by Father's admissions to Haack-Ortiz and Marroquin he had been drinking and was tipsy, Sergeant Hickey's observation of the emptying whiskey bottle, the hospital staff's detection of the strong odor of alcohol on Father's breath, Haack-Ortiz's testimony that Father smelled of alcohol and had bloodshot eyes, and his judgment-impaired conduct. Thus, I.S.'s statements were not the sole basis for the court's finding.
Father also contends this evidence is not corroboration because it is not identical to I.S.'s testimony that Father was intoxicated. However, "corroborative evidence need not be direct so long as it provides some support for the out-of-court statements." J.A., supra, 436 N.J. Super. at 67. In J.A., we found an eight-year-old's statements "regarding both the extent of [the] mother's drinking that day and her state of inebriation [could be] corroborated in many ways," including evidence of her drinking, observations of her driving, and evidence her speech was "'slow and slurred.'" Ibid.
Thus, I.S.'s statements were admissible. When combined with the other evidence, it was sufficient to support the trial court's findings.
III.
In his reply brief, Father claims for the first time it is insufficient to show if I.S. was in imminent danger when Father drove drunk, because a child must be in imminent danger at the time of the fact-finding hearing. He cites N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 419-20 (App. Div. 2014), which was issued after his hearing. The Supreme Court has granted the Division's petition for certification to review that ruling. N.J. Div. of Child Prot. & Permanency v. M.C., 220 N.J. 41 (2014).
"'To raise [an] issue initially in a reply brief is improper.'" State v. Lenihan, 219 N.J. 251, 265 (2014). Moreover,
"[i]t is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest."Father's failure to raise this issue earlier "denied the [Division] the opportunity to confront the claim head-on; it denied the trial court the opportunity to evaluate the claim in an informed and deliberate manner; and it denied any reviewing court the benefit of a robust record within which the claim could be considered." Id. at 21.
State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
Here, had Father properly raised this issue, the Division may have been able to present evidence of a continuing danger. At the time of the fact-finding hearing, the court had transferred custody from the Division to Mother only, did not permit Father unsupervised visitation, and ordered him to comply with substance abuse treatment. Cf. M.C., supra, 435 N.J. Super. at 413-14, 420, 422 (the Division never took custody, and before the fact-finding hearing had "'successfully discharged'" and "safely reunified" the family without supervision or services, making it a "success story").
Under these circumstances, we will not consider this argument not raised before trial court and raised for the first time in a reply brief. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 443 (App. Div. 2009).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION