                             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                        NOT FOR PUBLICATION WITHOUT THE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-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.




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