RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1343-17T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION Plaintiff-Respondent, January 22, 2019
v. APPELLATE DIVISION
V.F.,
Defendant-Appellant. ______________________________
IN THE MATTER OF T.Q., A.Q., S.F., and VI.F.,
Minors. ______________________________
Argued October 29, 2018 – Decided January 22, 2019
Before Judges Sabatino, Haas and Sumners.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-0061-17.
Christine O. Saginor, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Christine O. Saginor, of counsel and on the briefs). Francis A. Raso, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Francis A. Raso, on the brief).
Olivia B. Crisp, Assistant Deputy Public Defender, argued the cause for minors T.Q. and A.Q. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Olivia B. Crisp, on the brief).
Danielle Ruiz, Designated Counsel, argued the cause for minors S.F. and Vi.F. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Danielle Ruiz, on the brief).
The opinion of the court was delivered by
SUMNERS, J.A.D.
Defendant V.F.1 appeals the Family Part's order that he abused or
neglected his minor children within the meaning of Title 9, N.J.S.A. 9:6 -8.21
to -8.73. The New Jersey Division of Child Protection and Permanency (the
Division) and the Law Guardians urge us to affirm. We conclude that based
upon a logical extension of our ruling in State v. Doriguzzi, 334 N.J. Super.
530, 536 (App. Div. 2000), the trial court should not have considered the
police officer's testimony that defendant was under the influence based upon
1 We use initials and fictitious names to identify the parties to protect and preserve their confidentiality. R. 1:38-3(d)(12).
A-1343-17T1 2 the results of a horizontal gaze nystagmus (HGN) test, which has not been
shown to be generally accepted as being scientifically reliable. However, we
conclude the order was consistent with the law because it was supported by
substantial independent credible evidence that defendant was under the
influence and that his conduct created a substantial risk to the children's mental
health and physical safety. Therefore, we affirm.
I.
The facts developed at the Title 9 fact-finding hearing are summarized
as follows. On September 20, 2016, T.Q. (Trent), twelve-years old, called his
maternal grandmother, because he was unable to wake his mother R.H. (Rina)
at their Jackson Township home. At home with Trent were defendant, A.Q.
(Abby), ten-years old, S.F. (Skylar), eight-years old, and Vi.F. (Von), four-
days old. Defendant is the biological father of Skylar and Von. Rina is the
mother of all four children, and gave birth to Von through a Caesarean section.
Upon arriving at the house, the grandmother found Rina unresponsive and
called the police.
When police officers Andrea Falzarano, Chris Kelly, and Greg Schmidt
arrived at the house shortly after 4:30 p.m., they found Rina unresponsive;
partially lying on a mattress and on the floor. Officer Falzarano testified he
saw defendant kneeling on the mattress, hunched over next to Rina. He asked
A-1343-17T1 3 defendant if he knew what Rina was on, whether she took anything, or if she
was in any kind of pain. He repeated these questions three times, until
defendant eventually responded, "I don't know." Officer Falzarano noticed
that defendant was moving very slow, had slurred speech, droopy eyes, and
grasped the wall and stumbled while trying to stand.
Defendant unsuccessfully tried to wake Rina. Officer Schmidt then
unsuccessfully tried to wake her by administering a sternum rub. First aid
responders arrived moments later, and they unsuccessfully attempted to wake
Rina by giving her a dose of Narcan, to counteract the effect of any narcotic
she may have taken. Rina was taken to a local hospital where she was
eventually revived.
The officers did not search the residence and did not see any drugs in
plain view. The grandmother gave Officer Falzarano a bottle of oxycodone,
which was prescribed to Rina upon her release from the hospital. However, he
could not remember how many pills were in the bottle, but believed it was a
sixty count, and that ten to fifteen were missing. He described Trent to be
"very torn, very distraught, crying[,] . . . shaking, [and] a little red in the face ."
Officer Falzarano left the children in the grandmother's care and called the
Division.
A-1343-17T1 4 When the Division's special response workers, Melissa Gambardella and
Jennifer Lavundi, arrived at the house to investigate the matter, the
grandmother was there with the children, but defendant had left the house.
Five to ten minutes later, defendant returned. Gambardella testified that
defendant seemed to be under the influence because his eyes were red and his
speech was slurred. Officer Falzarano returned to the house to meet the
Division workers. Defendant denied being under the influence, but consented
to Officer Falzarano's request to administer the HGN test. 2 After conducting
the test, the officer concluded, based on his training and experience, defendant
was under the influence of an unknown substance.
The HGN test is based on the observation of three different physical manifestations[,] which occur when a person is under the influence of alcohol: (1) the inability of a person to follow, visually, in a smooth way, an object that is moved laterally in front of the person's eyes; (2) the inability to retain focus and the likelihood of jerking of the eyeball when a person has moved his or her eye to the extreme range of peripheral vision; and (3) the reported observation that this "jerking" of the eyeball begins before the eye has moved 45 degrees from forward gaze if the individual's BAC [(Blood Alcohol Content)] is .10 [percent] or higher.
[Doriguzzi, 334 N.J. Super. at 536 (citing State v. Ito, 978 P.2d 191, 197 (Haw. Ct. App. 1999)).]
A-1343-17T1 5 According to Gambardella, she spoke with defendant, and his responses
were "choppy" and his recollection of the incident was inconsistent.
Gambardella stated that Lavundi, who did not testify, 3 interviewed the
children, who were extremely worried about their mother and denied that there
was any ongoing alcohol or drug use by their mother or defendant. Trent told
Lavundi that his mother had been sitting on the couch unresponsive, when he
dragged the mattress from his bedroom into the living room, and he and Abby
dragged their mother onto the mattress. Trent also stated that at that point, his
dad woke up, tried to wake up his mom, but fell asleep right next to her.
Gambardella inspected the oxycodone pills that were prescribed to Rina on
September 19, and, contrary to Officer Falzarano's estimate, counted at least
twenty to twenty-five pills of the thirty-count prescription remaining.
The Division workers left the house and went to see Rina at the hospital.
When they arrived, she was conscious, but incoherent and unable to speak.
The Division then conducted an emergency removal of the children because
defendant was under the influence and Rina was hospitalized with an uncertain
release date.
The next day, the Division's Amber Belsky went to the hospital to check
on Rina. She testified that Rina could not remember what happened the day
3 Lavundi's report was admitted into evidence without objection.
A-1343-17T1 6 before, but knew that she took oxycodone as prescribed, took Motrin, and
smoked synthetic marijuana, K2, with defendant at five p.m. However, Rina
could not have smoked K2 at that time because the police arrived at the house
around 4:30 p.m. to find her unconscious. Drug tests taken by the hospital
upon her admission revealed that Rina tested positive for opiates, but not for
synthetic marijuana.
On September 23, after a court hearing, defendant was served papers
notifying him to take a urine screen since he failed to show up, as promised,
for his first urine screen on September 21. Defendant and Rina were
subsequently charged with abuse or neglect of their children.
Following the Title 9 hearing on January 6, 2017, the trial judge issued
an order finding the Division proved the charges against defendant and Rina,
and rendered an oral opinion explaining that her decision was based upon the
credible testimony of the Division workers and Officer Falzarano, that they
were both under the influence and unable to care for their four minor children.
Neither defendant nor Rina testified.
The judge found that Officer Falzarano, who was not qualified as an
expert, administered the HGN test to confirm his and the Division workers'
suspicions that defendant was under the influence of some substance. She
rejected defendant's assertion that this court's decision in Doriguzzi, 334 N.J.
A-1343-17T1 7 Super. at 530, applied to bar evidence of HGN test results in a Title 9
proceeding. In Doriguzzi, we held that the HGN test can be used to establish
probable cause to arrest, but it is not sufficiently reliable for admission as
proof that the defendant was driving while under the influence (DUI) of
alcohol. Id. at 546. The judge accepted Belsky's testimony that Rina admitted
that she smoked K2 with defendant. The judge ordered defendant to have a
psychological evaluation and comply with all treatment recommendations and
temporarily suspended his supervised visitation rights.
In June 2017, as the case was progressing to a termination of parental
rights hearing, Rina passed away. Additionally, defendant failed to comply
with the court's order to cooperate with urine screens, neglected to make
himself available for individual counseling, and was discharged from St.
Francis Community Center's family support program for poor attendance at
parenting classes. The judge ultimately transferred custody of the four
children to J.Q., the biological father of Trent and Abby, and his wife, who
live in Indiana.
After the permanency hearing in August 2017, the judge determined it
would not be safe to return the children to defendant within the foreseeable
future, and the Division satisfied its obligation to provide reasonable efforts
toward reunifying the family. Accordingly, the judge accepted the Division's
A-1343-17T1 8 plan for termination of defendant's parental rights to Skylar and Von. The
Division filed a complaint for the termination of defendant's parental rights,
and on October 6, the court entered an order terminating litigation. Defendant
limits his appeal to the order that he abused or neglected the children.
II.
To prevail in a Title 9 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). "[T]he Division [is] obligated to present competent evidence adequate
to establish that [the child was] presently in imminent danger of being
impaired physically, mentally or emotionally." N.J. Div. of Child Prot. &
Permanency v. M.C., 435 N.J. Super. 405, 409 (App. Div. 2014) (citing N.J.
Dep't of Children and Families v. A.L., 213 N.J. 1, 23, 30 (2013)); see
N.J.S.A. 9:6-8.21(c)(4)(b), -8.46(a)(4), (b)(1)-(2). "This includes proof of
actual harm or, in the absence of actual harm, 'the Division was 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 9 provides a child is "[a]bused or neglected" if he or she is one:
A-1343-17T1 9 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 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. When determining whether a child is abused or
neglected, the focus is on the harm to the child, and whether that harm should
have been prevented had the guardian performed some act to remedy the
situation or remove the danger. Id. at 182.
"Abuse and neglect cases 'are fact-sensitive.'" Dep't of Children &
Families, Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 180
(2015) (quoting Dep't of Children & Families, Div. of Youth & Family Servs.
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
A-1343-17T1 10 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)).
A.
We first address defendant's argument that the trial judge erred in not
applying this court's decision in Doriguzzi to exclude the results of the HGN
test that he was under the influence. He contends that even though Doriguzzi
was decided within the context of a DUI proceeding, it applies to the Title 9
proceeding against him. He asserts the essence of the ruling is that the HGN
test is scientifically unreliable and, therefore, is not admissible, absent
additional scientific evidence of intoxication, such as a blood test, in all legal
proceedings where a government entity is using the test to establish an
individual should be found guilty or culpable because the individual was under
the influence of alcohol or some other debilitating substance. Arguing the
HGN test was the only evidence the Division presented to establish that he was
A-1343-17T1 11 under the influence outside of "the subjective and unscientifically derived
observations of [his] conduct and demeanor made by the Division's witnesses,"
defendant maintains the Division did not sustain its burden of proof.
Our analysis of Doriguzzi causes us to agree with defendant that it
should be applied to this proceeding to bar evidence of the HGN test results
performed on him by Officer Falzarano. There is no question that the HGN
test is not admissible at a trial to show an individual is guilty of DUI as
"neither this court nor our Supreme Court has . . . endorsed HGN testing."
Doriguzzi, 334 N.J. Super. at 533. However, police can use them to ascertain
probable cause for an arrest. Id. at 546. The Division and the Law Guardians
argue that Doriguzzi should not apply because there is a higher standard of
proof in a DUI trial – beyond a reasonable doubt – than in a Title 9 proceeding
– preponderance of evidence. Simply put, this is a distinction without a
difference. We determined in Doriguzzi that the HGN test was not reliable to
show an individual is under the influence. This unreliability equally applies in
the context of a Title 9 proceeding, where the State is using the test to prove
that an individual is under the influence in order to sustain a charge of abuse or
neglect. See, e.g., In re Accutane Litigation, 234 N.J. 340, 398-400 (2018) (in
which, our Supreme Court adopted, but with qualifications and caveats, the
multi-factor test identified in Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
A-1343-17T1 12 579, 593-95 (1993), so that trial courts would generally follow a more
stringent approach regarding the admission of scientific evidence in civil
cases).
Moreover, we agree with defendant that the trial judge should not have
considered the HGN test because Officer Falzarano was not qualified as an
expert. Being able to administer and explain the HGN test, as brought out by
Officer Falzarano's testimony, necessitates training and experience. Thus,
because the test requires "technical, or other specialized knowledge [to] assist
the trier of fact to understand the evidence or to determine a fact in issue,
[only] a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or
otherwise." N.J.R.E. 702. Since Officer Falzarano was not qualified as an
expert, his testimony on the HGN test should not have been admitted.
B.
Our conclusion that the Family Part should not have considered
testimony regarding the HGN test results does not require us to reverse the
order that defendant abused or neglected his children because there was other
independent credible evidence relied upon by the judge.
Defendant contends the Division presented no physical evidence, such as
blood or urine tests, to prove that he was under the influence at the time Rina
A-1343-17T1 13 was incapacitated. He notes the absence of drug paraphernalia in his house
that would indicate drug use. He also alleges the twenty to twenty-five pills
left in Rina's oxycodone bottle were consistent with her prescribed usage of
one to two pills every four hours as needed. He explains that his condition
observed by Officer Falzarano and the Division workers was due to sleep
deprivation from working earlier that day and mostly every day prior to the
incident, and caring for: his newborn son; Rina, who was recovering from a
recent cesarean section; the three older children; and the family home.
However, we are unpersuaded with these contentions, as there was sufficient
credible evidence in the record to support a finding of abuse or neglect.
Because defendant failed to submit to multiple requests for drug
screening, even though he agreed to do so, the Division was unable to establish
physical proof that he was unable to supervise his children because he was
under the influence. 4 And we need not dwell on trying to parse how many
oxycodone pills Rina consumed, or possibly, for that matter, consumed by
defendant, based upon the amount of pills remaining in the bottle when the
police and the Division arrived at the couple's home. Suffice it to say, it is
clear that Rina was unconscious – regardless of whether it was due to opiates,
4 Because the court did not draw a negative inference from defendant's failure to appear for urine screens, we need not address the effect of his lack of cooperation.
A-1343-17T1 14 or smoking K2, or a combination of the two – and could not be revived by
defendant, the children, the grandmother, the police, or the first aid responders.
At the same time, there was testimony that defendant was in his own "twilight
zone" because he was under the influence.
Officer Falzarano and Gambardella's testimony that defendant had blood
shot eyes, was groggy, had slurred speech, was unable to provide coherent
responses to simple questions, and had to use the wall for support while
attempting to walk or stand on his own, is sufficient to allow the judge to find
that defendant was under the influence and unable to care for his four minor
children. See N.J.R.E. 701 (stating a witness may offer lay opinion "if it (a) is
rationally based on the perception of the witness and (b) will assist in
understanding the witness' testimony or in determining a fact in issue."); see
also State v. Bealor, 187 N.J. 574, 577, 587-89 (2006) (holding competent lay
observations – a person's demeanor, appearance, and speech – of intoxication,
combined with additional independent proofs, demonstrating defendant 's
consumption of drugs alone, is sufficient to allow the judge to conclude that
the defendant was intoxicated). We conclude there is no reason to find fault
with the judge's crediting of their testimony, while rejecting defendant's
explanation that his behavior was because he was exhausted from working too
much and caring for his family.
A-1343-17T1 15 Although the children were not physically harmed, we are satisfied with
the judge's finding that defendant's inability to attend to his children while
Rina was unconscious caused emotional harm to twelve-year-old Trent, who
was forced to take charge of the situation before contacting his grandmother in
a "state of panic," and continued to exhibit stress over his mother's situation
even after help arrived. Furthermore, defendant's inability to address Rina's
incapacity created a substantial risk of physical harm to Trent and his siblings,
especially the four-day-old Von, as they were left without any proper adult
supervision. See N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J.
Super. 373, 385 (App. Div. 2014) ("Parents who use illegal drugs when caring
for an infant exposes that baby to many dangers due to their impaired
judgement."). Since the record shows that defendant failed to exercise a
minimum degree of care under the circumstances because he was under the
influence, the Family Part fairly concluded that he abused or neglected his
children.
Affirmed.
A-1343-17T1 16