                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." 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-3699-17T1

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

          Plaintiff-Respondent,

v.

Q.B. and C.G.,

          Defendants,

and

C.H.,

   Defendant-Appellant.
——————————————

IN THE MATTER OF Q.B., H.H.,
J.H., and C.H., Jr.,

   Minors.
———————————————

                    Argued September 11, 2019 – Decided September 23, 2019

                    Before Judges Koblitz, Whipple, and Mawla.
              On appeal from the Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex County,
              Docket No. FN-12-0140-16.

              Beatrix W. Shear, Designated Counsel, argued the
              cause for appellant (Joseph E. Krakora, Public
              Defender, attorney; Beatrix W. Shear, on the briefs).

              Michael A. Thompson, Deputy Attorney General,
              argued the cause for respondent (Gurbir S. Grewal,
              Attorney General, attorney; Melissa Dutton Schaffer,
              Assistant Attorney General, of counsel; Michael A.
              Thompson, on the brief).

              Olivia Belfatto Crisp, Assistant Deputy Public
              Defender, argued the cause for minors (Joseph E.
              Krakora, Public Defender, Law Guardian, attorney;
              Olivia Belfatto Crisp, on the brief).

PER CURIAM

        C.H. (Chris1) appeals from a May 2, 2016 order following a fact-finding

trial which concluded he committed abuse or neglect of his children, H.H.

(Heather), J.H. (John), and C.H., Jr. (Chuck), and Q.B. (Quincy), ages six, three,

and two and eleven, respectively, at the time of trial.2 The trial judge concluded

Chris placed the children at risk of substantial harm by allowing them to reside




1
    We use pseudonyms to protect the children's identities. R. 1:38-3(d)(12).
2
 Chris and Q.B. (Quinn) are the biological parents for Heather, John and Chuck.
Chris is the biological father of Quincy.
                                                                          A-3699-17T1
                                        2
in a home where marijuana was accessible and exposing the children to

individuals who used the substance inside the residence. We affirm.

      We take the following facts from the record of the fact-finding hearing.

The Division of Child Protection and Permanency (Division) received multiple

referrals involving this family in 2012 (two), 2013, and 2014 (two), including,

among others, allegations of illicit drug use. In November 2015, the Division

received the referral in this matter from Heather's elementary school advising

she brought a "blunt," a hollowed out cigar filled with marijuana, to school. The

school contacted the New Brunswick Police Department and Officer David

Pagan responded to interview Heather. Heather informed him she knew the

blunt contained drugs and stated she brought it from her home. Pagan confirmed

the blunt contained marijuana.

      Division caseworker Ebony Williams arrived at the school the same day

to interview Heather. The child stated she brought the modified cigar to school,

and stated "inside the black thing is green stuff . . . it's a blunt. It's for grown -

ups. You smoke it, but it's bad for you." Heather also stated a person named D.

(Danielle) lived at the home, slept on a red pull-out mattress in the living room,

and smoked marijuana in the basement. She informed Williams she found the

blunt under Danielle's pillow the morning before she brought it to school.


                                                                              A-3699-17T1
                                          3
Heather explained to Williams what a blunt wrapper was and recounted Danielle

often had them in her back pocket.

      Heather also stated other individuals smoked marijuana in the basement

of her home and she was in the basement with those individuals. She explained

marijuana smelled differently than cigarette smoke and demonstrated how

marijuana was rolled into blunts. Heather described other drug- and alcohol-

related activity by her mother and others in the residence, however, it was not

the focus of the trial judge's findings.

      Williams then interviewed Quincy. He explained there were numerous

visitors to the home and both of his parents smoke cigarettes. He recalled he

was in the basement and observed people, including his maternal grandfather,

R.E. (Randy), handling material which was "green and stringy" and "add[ing]

some brown stuff to it" prior to rolling it up. Quincy told Williams he saw the

green and brown material in an ashtray stored upstairs.       He corroborated

Heather's testimony regarding Danielle, stating he observed her smoking

marijuana and she often kept rolling papers in her back pocket.

      Williams interviewed Randy who advised he currently resided with the

family. When Williams asked Randy to see the basement, he asked whether he

could enter the basement alone first because there were "illegal things down


                                                                       A-3699-17T1
                                           4
there." Once in the basement, Williams observed marijuana on top of the

washing machine, brown material which appeared to be marijuana and

paraphernalia. Randy brushed the marijuana into a container and informed

Williams the drugs belonged to him. Williams noted there were children's toys

and a mattress in the basement, roughly two adult steps away from where the

marijuana was located.

      Williams interviewed Chris. He confirmed Danielle sometimes slept at

the home on the red couch in the living room. He denied knowing whether

Danielle or anyone else smoked marijuana in the basement and stated he was

unable to detect the scent of marijuana emanating from the basement. Williams

testified the marijuana odor was readily apparent when she visited the home.

Chris stated Randy served as a caretaker for the children, but claimed he was

never under the influence of drugs or alcohol while caring for them. He also

denied any personal drug use, knowledge of whether Quinn used drugs, or how

Heather found the blunt she brought to school.

      Williams interviewed Quinn who stated she did not use marijuana and

denied knowing Heather brought marijuana to school. She also denied seeing

or smelling drugs in the basement, or anywhere else in the home. When asked

how Heather had so much knowledge of marijuana, Quinn claimed the child was


                                                                      A-3699-17T1
                                      5
often around adults and sometimes acted like one. Williams later elaborated at

the fact-finding hearing that Chris and Quinn both believed Heather was being

untruthful and derived her knowledge from listening to adult conversations and

watching the television show "CSI" and the Discovery Channel.

      Following its investigation, the Division removed all four children and

substantiated   Chris    and    Quinn     for   "substantial    risk   of   physical

injury/environment injurious to health and welfare." The Division based its

findings on: (1) Heather and Quincy's disclosure of drug use in the home by

multiple adults, (2) both children reporting having access to the drugs, including

Heather finding the blunt and bringing it to school, and (3) the drug use

occurring in the home. The Division filed a verified complaint for custody of

the children pursuant to N.J.S.A. 9:6-8.21 and 30:4C-12 setting forth a detailed

recitation of its allegations against the children's parents.

      Neither parent testified nor called any witnesses at the fact-finding trial.

The trial judge found it was undisputed Heather brought marijuana to school,

which she obtained from home, and knew was marijuana. He noted it was also

undisputed that a number of other individuals lived in the home, including

Danielle, who both Heather and Quincy confirmed slept in the home on the red

couch, where Heather found the marijuana. The judge found many people


                                                                             A-3699-17T1
                                         6
residing in the home smoking marijuana in the basement near where the

children's toys were located, and that marijuana was stored in plain view on top

of the washing machine.

      The judge concluded Heather was able to identify a blunt, describe its

contents, and knew the odor of marijuana. He found Heather's statements

corroborated by Williams' observations, Pagan's testimony, and Quincy and

Randy's statements.     The judge found Quincy's statements proved several

individuals entered the basement to smoke marijuana, and he too could describe

the color and texture of marijuana from these interactions. The judge noted

Williams' observations supported and corroborated Quincy's, noting she

observed the red couch in the living room and marijuana in the basement within

two adult steps of the children's toys.

      The judge concluded:

            the competent, reliable, and corroborated evidence . . .
            produced at trial proves by a preponderance of the
            evidence that the defendants placed the children at a
            risk of substantial harm, specifically by allowing them
            to reside in an environment where drugs were
            accessible to the children, used in front of the children,
            and where the children were exposed to people who
            were under the influence after having smoked
            marijuana. Based on testimony at trial, this [c]ourt
            finds that [Heather], age [six], and [Quincy], age
            [eleven], were both repeatedly exposed to drugs in the
            home and that they were in close proximity to those

                                                                         A-3699-17T1
                                          7
            drugs. This finding is made, as there is no other
            credible evidence to explain how children at such a
            young age would know the color of marijuana, the
            texture of marijuana, the smell of marijuana, that
            marijuana is rolled, that it was rolled in papers, that it
            was smoked, that it was bad for you, that they would be
            able to describe how marijuana was rolled. No other
            explanation has been given to explain how or why
            [Heather] was in possession of marijuana that she
            brought to school and no other explanation has been
            brought to explain how both children, [Quincy] and
            [Heather], would both know that there were drugs in the
            basement. The reason they knew there were drugs in
            the basement is because they witnessed it. They saw
            [people] rolling and smoking in the basement. She
            knew there were drugs in the basement because she not
            only observed them there, but [Heather] was in the
            basement herself playing with her toys and this [c]ourt
            finds that her testimony was credible and corroborated
            by the toys that were in the basement. The [c]ourt finds
            that these drugs were open and accessible to both
            children.

      The Division's complaint alleged Heather stated Quinn used other illicit

substances such as "mollies," 3 but the judge concluded the Division had not met

its burden of proof on this allegation. However, the judge found the assertion

probative of the general atmosphere in the residence. He stated:

            While the [c]ourt does not find that the Division has
            proved that mollies were in the house, this [c]ourt,
            which has already found through testimony and

3
  Molly, or MDMA, is a form of the "party drug" ecstasy. DEA, Ecstasy or
MDMA (also Known As Molly), DEA (Sept. 13, 2019) https://www.dea.gov/
factsheets/ecstasy-or-mdma-also-known-molly.
                                                                         A-3699-17T1
                                        8
           observations, that there was open and repeated drug use
           in the home where the children were, finds that
           [Heather] knowing . . . about mollies was consistent
           with the finding that there was drug use in the home to
           which the children were repeatedly exposed to.

     The judge rejected defendants' assertion the children's knowledge was

from watching television. He stated:

                  This [c]ourt is aware that both defendants deny
           any knowledge of drugs in the home, deny any
           knowledge that people use drugs in their home. This
           [c]ourt similarly finds this denial to be simply
           incredible given that the drugs and drug use in the home
           were as open as they were and observable to the
           children. The drugs and drug use in the home were not
           hidden from the children, but rather were done in front
           of the children, who learned the color, smell, texture of
           marijuana, knew it was rolled and could even
           demonstrate how to roll it. This [c]ourt has no reason,
           given this corroboration, to disbelieve [Quincy] that his
           mother was in the basement while people smoked
           marijuana. Regardless, however, her being in the
           basement is inconceivable to this [c]ourt and with the
           open drug use in the home, with the number of people
           going in and out of the home smoking marijuana, with
           the presence of marijuana being in the home, that these
           parents did not know what was going on. If they had
           looked on their couch where [Heather] had looked, they
           would have seen marijuana. If they went down to the
           basement to do the laundry where the [Division] worker
           went, they would have seen the marijuana. If they had
           gone down into the basement to see [Heather], who was
           playing with her toys, they would have seen the
           marijuana. That marijuana was there. It was in at least
           two places. The [c]ourt finds by a preponderance of the
           evidence that these parties, regardless of whether or not

                                                                       A-3699-17T1
                                       9
            they smoked marijuana themselves, certainly knew that
            there were drugs in the home and drugs were being used
            in the home.

      The judge concluded the totality of the circumstances demonstrated the

children were placed at substantial risk of harm. He stated "it was simply good

fortune and luck" Heather or Quincy did not ingest or consume the marijuana

obviously present in the home. He further found:

            [These] children were also in the home with people who
            were under the influence. The [c]ourt, while finding
            that [Randy] was not under the influence on that day
            while caring for the children, the [c]ourt does find that
            based on the corroborated testimony, [several people]
            would smoke in the home when the children were
            present.

                   In addition to the real risk of ingesting the drugs
            and being around people high on drugs, this [c]ourt also
            finds that [Heather]'s perceptions of being an adult have
            been seriously impaired by the environment in which
            she's living.

                  While, unfortunately, neither child would
            cooperate in the clinical assessment of . . . [the] hospital
            because they did not want to get their parents in trouble
            and were discouraged or warned by their parents not to
            cooperate, . . . [Heather]'s answers that she provided to
            the therapist as to her three wishes gives a clear
            indication that her environment has affected her
            psychologically and is impairing her.

                   In her three wishes she indicated she wanted to
            be like her mom and grow up . . . "so I can be grown up
            so I can curse, so I can say shit and stuff[.]" . . . "I also

                                                                            A-3699-17T1
                                        10
            want to be a grownup so I can have hair on my
            business."

      The judge concluded the Division proved abuse or neglect by a

preponderance of the evidence pursuant to Title Nine. He also stated "based on

the clinical assessments [entered into evidence], as well as the facts, as outlined

in this case, . . . this family is clearly in need of Division services" and a Title

Thirty finding would be appropriate to continue to ensure the safety and welfare

of the children going forward.

                                         I.

      "[W]e generally 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. R.D., 207

N.J. 88, 112 (2011) (quoting N.J. Div. of Youth & Family Servs. v. G.M., 198

N.J. 382, 396 (2009)). "Because of the Family Part's special jurisdiction and

expertise in family matters, we accord particular deference to a Family Part

judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J.

Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413

(1998)).



                                                                            A-3699-17T1
                                        11
      We must examine "whether there was sufficient credible evidence to

support the trial court's findings."    N.J. Div. of Youth & Family Servs. v.

M.C. III, 201 N.J. 328, 342 (2010). Although we may have reached a different

result, "[w]e 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) (quoting N.J.

Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

      Chris claims the trial judge erred when he found abuse or neglect under

N.J.S.A. 9:6-8.21(c)(4)(b) rather than N.J.S.A. 9:6-8.21(c)(4)(a), which was a

finding of inadequate shelter sought by the Division. He asserts substance abuse

and inadequate supervision were not claims before the court at the hearing.

Chris argues the Division's finding of a risk of harm to the children due to

substance abuse was not established, which "preclude[d] a finding of substance

abuse at trial[.]" He contends the court's findings violated his due process rights

because the Division did not set forth a claim pursuant to N.J.S.A. 9:6-

8.21(c)(4)(b) and did not provide him with adequate notice it would pursue a

finding under such grounds. Chris claims the Division was not entitled to a Title

Nine finding because it failed to prove actual or imminent impairment of a




                                                                            A-3699-17T1
                                        12
physical, mental, or emotional condition, and that he did not exercise a minimum

degree of care.

      Chris also asserts the trial judge erred in finding the family needed

services pursuant to N.J.S.A. 30:4C-12, because a summary hearing pursuant to

N.J.S.A. 30:42-12 was not noticed. We address these arguments in turn.

                                       II.

      We reject Chris's arguments the Division could not seek a finding pursuant

to N.J.S.A. 9:6-8.21(c)(4)(b), that there was a due process violation, and that

there was no notice of the Title Thirty relief sought by the Division.4

      The Division's complaint was filed pursuant to both Title Nine and Title

Thirty, and alleged Chris abused or neglected the children by creating an

environment injurious to their health and welfare by exposing them to substance

abuse, among other claims. Furthermore, before the start of the fact-finding

trial, the Division reiterated it was proceeding under N.J.S.A. 9:6-8.21(c)(4)(a)

and (b). Indeed, the following colloquy occurred before the start of trial:

            THE COURT: Counsel, the [c]ourt was asking a
            question. The way that this letter was written, it was a
            very broad letter and the [c]ourt wants to know exactly

4
  We do not address the argument regarding the Title Thirty findings as the
order on appeal pertains to the trial court's Title Nine findings and we only
consider appeals from a formal judgment, not an oral opinion. Credit Bureau
Collection Agency v. Lind, 71 N.J. Super. 326, 328 (App. Div. 1961).
                                                                          A-3699-17T1
                                       13
             what you are seeking. All right? The [c]ourt first
             wanted to know what portion of the statute, and you've
             indicated that it's [N.J.S.A. 9:6-8.21(c)(4)(a) and (b)],
             correct?

             [THE DIVISION]: Yes.

             THE COURT: And the [c]ourt also wanted to know if
             . . . within [N.J.S.A. 9:6-8.21(c)(4)(a) and (b)], [i]s this
             a case that we were going to be dealing with food,
             clothing, shelter, education? But you've now indicated
             that it's dealing with shelter, correct?

             [THE DIVISION]: Yes, Your Honor.

      Thereafter, the Division adduced testimony and evidence proving its

claims. Chris participated in the hearing and through counsel cross -examined

the Division's witnesses and challenged the evidence.

      Regarding the due process argument, we have previously noted the

following:

             As our Supreme Court stated:

                     At a minimum, due process requires that a party
             in a judicial hearing receive "notice defining the issues
             and an adequate opportunity to prepare and respond."
             . . . [D]ue process forbids the trial court "to convert a
             hearing on a complaint alleging one act . . . into a
             hearing on other acts[.]"

             [T.M.S. v. W.C.P., 450 N.J. Super. 499, 505 (App. Div.
             2017) (quoting J.D. v. M.D.F., 207 N.J. 458, 478
             (2011)) (citations omitted).]


                                                                            A-3699-17T1
                                        14
      The record here amply demonstrates there was no due process violation.

The Division provided actual notice of the grounds on which it intended to

proceed and Chris defended against them.

                                      III.

      Chris argues the Division was not entitled to a finding under Title Nine

because it failed to present competent, particularized evidence of a harm to the

children, the trial judge found no harm, but only noted the risk of harm due to

the presence of marijuana in the house. He contends none of the marijuana was

in a form that the children could have ingested, Heather informed Williams

marijuana is for adults, and neither child described marijuana as something they

wanted to consume. He argues no expert evidence was presented to prove the

harmful consequences of children ingesting marijuana or compare such risk of

harm to children with the harm of consuming other household substances.

      Although he does not contest marijuana was found in the residence, he

asserts the Division failed to present evidence he was aware of drug use or the

presence of drugs in the home. He further claims the record does not support

the judge finding there were a number of people visiting the home and smoking

marijuana. Additionally, Chris claims government policy toward marijuana has




                                                                        A-3699-17T1
                                      15
become more lenient and there was no criminal prosecution in this matter. He

notes Quinn was the target of the investigation, not him.

      "Abuse and neglect actions are controlled by the standards set forth in

Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v.

P.W.R., 205 N.J. 17, 31 (2011). Regarding "the quantum of proof required in a

fact-finding hearing brought under Title Nine, see N.J.S.A. 9:6-8.44, it is well

established that [the Division] must prove that the child is 'abused or neglected'

by a preponderance of the evidence, and only through the admission of

'competent, material and relevant evidence.'" Id. at 32 (quoting N.J.S.A. 9:6-

8.46(b)).

      The purpose of a fact-finding hearing is "to determine whether the child

is . . . abused or neglected[.]" N.J.S.A. 9:6-8.44. "[T]he safety of the child shall

be of paramount concern[.]" N.J.S.A. 9:6-8.28(a), -8.31(a), -8.32. An "[a]bused

or neglected child" includes a minor 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, as herein defined, 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, . . . or by any other acts of a similarly serious
            nature requiring the aid of the court[.]


                                                                            A-3699-17T1
                                        16
            [N.J.S.A. 9:6-8.21(c)(4).]

      "Courts need not wait to act until a child is actually irreparably impaired

by parental inattention or neglect." In re Guardianship of DMH, 161 N.J. 365,

383 (1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591,

616 n.14 (1986)). "[W]hen there is no evidence of 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).        "[T]he standard is not whether some

potential for harm exists[,]" rather, "[a] parent fails to exercise a minimum

degree of care when she is 'aware of the dangers inherent in a situation and fails

adequately to supervise the child or recklessly creates a risk of serious injur y to

the child.'" Id. at 183-84 (quoting N.J. Div. of Youth & Family Servs. v. J.L.,

410 N.J. Super. 159, 168-69 (App. Div. 2009)). "[A] finding of abuse and

neglect can be based on proof of imminent danger and a substantial risk of

harm." Id. at 178 (citation omitted).

      "Whether the parent has exercised the requisite degree of care is to be

analyzed in light of the dangers and risks associated with the particular situation

at issue." J.L., 410 N.J. Super. at 168 (citing G.S. v. Dep't of Human Servs.,

157 N.J. 161, 181-82 (1999)). The trial judge must consider "the totality of the

circumstances, since '[i]n child abuse and neglect cases the elements of proof


                                                                            A-3699-17T1
                                         17
are synergistically related. Each proven act of neglect has some effect on the

[child].   One act may be "substantial" or the sum of many acts may be

"substantial."'" N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.

320, 329-30 (App. Div. 2011) (alterations in original) (quoting N.J. Div. of

Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010)).

      Chris' arguments are unpersuasive. The trial judge found the competent,

reliable, and corroborated evidence demonstrated Chris repeatedly exposed

Heather and Quincy to drug use in the family home. No other credible evidence

explained how young children would otherwise know marijuana's appearance,

color, texture, and smell, how to use it, or the other details they revealed.

      The trial judge found the explanations offered by defendants insufficient

to explain how the children gained this knowledge. Further, he determined

Chris' claim that he was unaware of the drugs in the home was not credible when

compared against the substantial weight of the evidence adduced by the

Division. The judge's conclusion the children were placed at substantial risk of

harm by Chris allowing them to reside in an environment where they were

frequently exposed to individuals who were under the influence of marijuana,

and drugs were present, accessible, and actually handled by Heather was

supported by the record. See State v. Fuqua, 234 N.J. 583, 595-96 (2018)


                                                                            A-3699-17T1
                                       18
(finding substantial risk of harm to children who were exposed and had access

to drugs, under N.J.S.A. 2C:24-4(a), which incorporates Title Nine). "The ease

of access to cocaine, heroin, and marijuana, and the attraction of brightly colored

pills, all created a potentially lethal trap for the children that could have been

easily sprung at any moment." Id. at 596. Even though only marijuana was

found here, the totality of the circumstances support the trial judge's findings of

risk of harm, which we decline to disturb under our deferential standard of

review.

      Because the Division's case centered on the risk of harm, the Division was

not required to adduce expert testimony to demonstrate the harm of actually

ingesting marijuana.     The fact Quinn was the target of the Division's

investigation is irrelevant, because the court found both parents, who both lived

in the home, were neglectful by repeatedly exposing their children to open drug

use in the home.

      Finally, Chris' argument as to changing public sentiment regarding the

criminal prosecution of marijuana offenses is irrelevant to the risk of harm posed

to the children by their contact with the substance and those using it. The

criminal prosecution of such matters is a separate consideration from a parent's

responsibility to exercise a minimum degree of care to protect a child from harm


                                                                           A-3699-17T1
                                       19
under Title Nine. The trial judge's findings were supported by the substantial,

credible evidence in the record and did not constitute an abuse of discretion.

      Affirmed.




                                                                         A-3699-17T1
                                      20
