                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3698-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

N.J.,

          Defendant-Appellant/
          Cross-Respondent,

and

J.B.,

     Defendant.
_______________________________

IN THE MATTER OF S.B., A.B.,
and C.B., Minors,

     Respondents/Cross-Appellants.
_______________________________

                    Submitted September 10, 2019 – Decided September 25, 2019

                    Before Judges Hoffman and Currier.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Middlesex County,
            Docket No. FN-12-0159-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant/cross-respondent (Phuong Ving Dao,
            Designated Counsel, on the briefs).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for respondents/cross-appellants (Nancy P.
            Fratz, Assistant Deputy Public Defender, on the briefs).

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


PER CURIAM

      Defendant N.J.1 appeals from the June 16, 2017 Family Part order finding

that she was grossly negligent when she drove while intoxicated, with her then

twelve-year-old daughter A.B. (Amanda) and her then four-year-old son C.B.

(Carl) in the car. In addition, the Law Guardian for the children cross-appeals

from the same order, alleging the Division of Child Protection and Permanency

(the Division) misled the trial court to believe defendant failed to provide

requested medical records. In addition, the Law Guardian asserts defendant's


1
  We use initials to protect the privacy of the parties and their children. For
ease of reference, we refer to N.J. as defendant and to J.B. as defendant's
husband; in addition, we use pseudonyms to refer to the parties' children.
                                                                       A-3698-17T4
                                       2
attorney provided ineffective assistance by failing to present the medical records

at trial. We affirm.

                                            I

      We discern the following facts from the record. On October 5, 2016 at

4:33 p.m., the Division received a referral from the Bridgewater Police

Department (BPD) reporting that defendant had been pulled over on October 4,

2016, with her two minor children in her car, and charged with driving while

intoxicated (DWI).

      Upon receiving the referral, the Division immediately investigated and

attempted to interview defendant, initially making at least two attempts at

contacting defendant that same day, without success. The Division's screening

summary indicates that when caseworkers arrived at defendant's home at 9:20

p.m., "[a]n adult male answered the door and indicated that [defendant] was not

home and would not be home until tomorrow. He would not identify himself or

advise workers of the whereabouts of [defendant] or her children."            The

caseworkers returned to the home eighty-five minutes later, at 10:45 p.m., in a

further attempt to contact defendant; at that time, "there was no answer."

Seventy-five minutes later, at midnight, defendant arrived at a hospital




                                                                          A-3698-17T4
                                        3
emergency room (ER) by ambulance "after family witnessed a tonic clonic

seizure."2

       On June 7, 2017, the trial court conducted a factfinding hearing. The

Division presented two witnesses: a Division caseworker and Officer Joseph

Daley.     The Division moved three exhibits into evidence: the Division's

screening summary, its investigation report, and a BPD incident report.

Defendant testified in her own defense and also presented her adult son and

husband as additional witnesses. Defendant offered no other evidence.

       Officer Daley, a BPD patrol officer with more than fourteen years'

experience, described the traffic stop that resulted in the DWI charge against

defendant. On the evening of October 4, 2016, 3 Officer Daley observed a

vehicle swerving within the eastbound lane on U.S. Highway 22, which he

described as "drifting . . . touching one line to the other line." He stopped the

vehicle and requested the driver's license, registration, and insurance card,

which defendant provided. At that point, he detected "an odor of an alcoholic



2
  Defendant's hospital record further indicates that defendant's husband reported
that after his wife had gone to bed, he "came to see her, [and] she was stiffened,
shaking all extremities, and foaming at the mouth . . . . [Patient] cannot
remember the episode."
3
    The BPD incident report indicates the stop occurred at 11:53 p.m.
                                                                          A-3698-17T4
                                        4
beverage coming from [defendant's] breath," and asked her "if everything was

okay." She replied that "she was fine," explaining "she got turned around . . .

looking to get on [Route] 287."

      While speaking with defendant, Officer Daley continued to smell the odor

of alcohol. Before asking defendant to exit her vehicle, he asked her to recite

the alphabet from "C" to "M," and she was unable to do so. He then repeated

the instructions and defendant still could not successfully complete the test; at

that point, he asked her to step out of the vehicle.

      Officer Daley then attempted to administer two field sobriety tests: the

horizontal gaze nystagmus (HGN) test and the walk and turn test. He explained

that the HGN test looks for "involuntary jerking movements of the eye, which

is an indicator of possible intoxication." He stated he held his pen "out in front

of [defendant] 10 to 15 inches away," and instructed "her to keep her head still"

as he moved a "pen back and forth and then just follow the movement of the pen

with her eyes"; however, he could not adminster the test because defendant

repeatedly failed "to follow the instructions for the test." Defendant also failed

to complete the walk and turn test successfully. Initially, Officer Daley stopped

the test when defendant started walking out towards the highway. After guiding




                                                                          A-3698-17T4
                                         5
defendant back to the front of the vehicle, he again attempted to administer the

test but defendant became belligerent and was subsequently arrested for DWI.

      Officer Daley continued to smell alcohol emanating from defendant while

transporting her to the police station, where defendant refused to submit to an

Alcotest. Officer Daley then charged defendant with DWI, refusal to submit to

a breath test, failure to maintain lane, and driving while suspended.

      Officer Daley testified that defendant did not tell him, at any time, that

she had been injured earlier that day, or at any time prior, nor did she advise him

that she had been assaulted and might be suffering from a concussion. He also

did not observe any bruising, swelling, or injuries to defendant's face or head,

either at the scene or at the police station.

      The caseworker testified next, recounting the Division's investigation and

findings regarding the October 5, 2016 referral. She detailed the Division's

multiple attempts to meet with defendant and her family at their home the same

day as the referral. The caseworker finally made contact with the family on

October 7, 2016. She first interviewed Amanda, who stated her mother was

pulled over for swerving, and that the police officer made her mother recite the

alphabet and leave the car. Amanda did not believe her mother's car was




                                                                           A-3698-17T4
                                          6
swerving; however, she did state her mother was unable to complete the

alphabet. She did not observe anything after her mother got out of the car.

      The caseworker next spoke with defendant, reaching her on her cell phone.

Defendant advised that "she was currently hospitalized" because of "a seizure,"

and said "they were still running tests to see what was wrong with her." The

caseworker said defendant did not state that she had suffered a concussion or

had been assaulted, or that her seizure was the result of an injury. Defendant

told her the DWI charge was "unfounded . . . . she was not intoxicated and . . .

she would be fighting the charges."

      When the caseworker finally met defendant on October 17, 2016, she

continued to deny the allegations of intoxication and, for the first time, told the

caseworker that a concussion caused her to fail the field sobriety tests. The

caseworker asked defendant if she told the arresting officer she had been

assaulted or that she had a concussion, and defendant said she had not.

Defendant told the caseworker she received the concussion when a Somerset

fireman assaulted her and that she did not report the incident nor did she go to

the hospital to treat her injuries. The caseworker asked defendant for her

hospital discharge paperwork but she could not locate it. Defendant said she

would fax it as soon as she found it.


                                                                           A-3698-17T4
                                        7
      The caseworker testified the Division determined that the allegations of

abuse and neglect against defendant were "[e]stablished" due to the observations

made by the BPD, leading to her arrest and DWI charge, with her children in the

vehicle. On cross-examination, the caseworker acknowledged the Division

eventually received defendant's medical records several months later and the

hospital records indicated that defendant reported she had been assaulted.

      Defendant testified that she was with Amanda and Carl all day on October

4, 2016. She indicated that she took her children to a doctor's appointment and

then spent the majority of the day at her uncle's home in Plainfield. Defendant

said she was assaulted by her uncle prior to leaving his home, which she left

between 11 p.m. and midnight. She claimed she did not know the extent of her

injuries and was simply trying to get home when she was stopped by the police.

Defendant admitted she was unable to complete any of the field sobriety tests,

but claimed that she advised the officer that she had numerous medical issues

and disabilities that would prevent her from standing "surefooted." Defendant

also claimed she advised the officer that she was hurt, that she had visible bruises

on her face, and that she "had no shoes on."

      On cross-examination, defendant testified that she was punched in the

head "maybe twenty" times by her uncle, that she was rendered unconscious for


                                                                            A-3698-17T4
                                         8
a few seconds, but that she did not think her injuries were severe enough to

warrant going to the hospital that night. Defendant could not recall how soon

after the alleged incident she contacted her adult son J.B. (Jason) to come pick

her up; in addition, she initially could not state how and when she knew she had

visible injuries to her face. Defendant later testified that she saw the injuries a

few days later in the hospital.

      Defendant testified that she did not yell out during the course of the

alleged assault because "I'm not a punk." Defendant further stated the officer

was lying in his report and his testimony and that she was not driving while

intoxicated but rather was "driving while injured." Finally, defendant admitted

that, in spite of the significant trauma she sustained when her uncle assaulted

her, she did not go to the hospital until the night of October 5, 2016, more than

twenty-four hours after the assault.

      Jason then testified, recounting that his mother called him around 11:30

p.m. on October 4, 2016, to tell him that she was "assaulted by my uncle" and

"that she was lost so I was coming to get her." Jason stated that he was going

to pick up his mother "somewhere on highway 287[,] like in Bridgewater."

Jason said he received a second call from his mother approximately fifteen

minutes later, advising that she was pulled over by the police and that he would


                                                                           A-3698-17T4
                                        9
have to come get Amanda and Carl. Jason claimed to have seen "bruises on [his

mother's] cheekbones and a knot on her forehead – all from first sight" and that

he "smelled no alcohol" on her breath. Jason did not take his mother to the

hospital after picking her up from the police station nor did she ask to go to the

hospital.

      Defendant's husband testified last, recounting that he received a call from

his wife on the night of October 4, 2016, that Jason answered first. He said his

wife told him she was assaulted by her uncle. He stated he told his wife to stay

in the parking lot and that they would come get her, but she said she did not feel

safe there.

      Defendant's husband apparently accompanied Jason to the police station

to pick up his wife, Amanda, and Carl, although he remained in the car. He

"observed them walking out together. [Defendant] wasn't stumbling." He also

did not smell alcohol on her breath nor did he hear her "slurring her speech."

He did state that he observed bruises "[o]n her forehead, on her cheek . . . and I

witnessed lumps and stuff on the back of her head, and on the side of her head."

Despite these injuries, he said they "didn't go to the hospital . . . my wife is really

not a hospital person. . . . Then she eventually [ended] up having a seizure" and

went to the hospital by ambulance.


                                                                               A-3698-17T4
                                         10
      Following the factfinding hearing, the trial court issued a written decision

finding that the Division had shown, by a preponderance of the evidence, that

defendant acted grossly negligent by driving Amanda and Carl while intoxicated

on October 4, 2016. The court found Officer Daley "to be very credible," and

found "his testimony to be wholly consistent with his report." The court also

found the caseworker "to be credible," describing her testimony as "forthright,"

and her answers to questions as "clear and concise," with no "attempt to

embellish."

      The court noted there were multiple inconsistencies in defendant's

statements to the Division, the BPD incident report, and her sworn testimony,

and found "her to be incredible."      Specifically, the court found defendant

"evasive and hostile during the course of cross-examination," noting that she

"was unable to recall details about the day in question on cross-examination but

had been able to answer the same questions . . . during direct examination."

      The court found numerous "details in her testimony that had not

previously been disclosed to the Division . . . and were in fact inconsistent with

her earlier reports," such as "being arrested without shoes on" and having "a

large green, blue, and purple bruise on her face at the time of [her] arrest."

Additionally, the court noted that "[defendant] offered no documentary evidence


                                                                          A-3698-17T4
                                       11
to corroborate her version of events" and simply accused others of lying where

there were details she could not explain.

      The court also did not find Jason's testimony to be credible, independent

of its credibility findings of defendant, noting that portions of Jason's testimony

were self-contradictory while other portions sounded "rehearsed." Specifically,

the court noted that both Jason and defendant's husband used "nearly identical

phrasing that they were 'appalled' to learn of the alleged assault [of defendant]."

The court also found that parts of Jason's testimony were "self-contradictory."

       The court also did not find the testimony of defendant's husband credible

and similarly noted that portions sounded "rehearsed." The court found that

those portions that did not sound rehearsed directly contradicted the testimony

offered by Jason. The court also found that defendant's husband similarly

"attempted to embellish his story, particularly when stating what physical

manifestations of the assault were present" and "attempted to exaggerate his

efforts to soothe [defendant] and their discussion about taking her to the

hospital, a conversation [Jason] had no recollection of hearing." The court

determined the family "attempted to ensure that they gave consistent testimony,

but ultimately were unable to do so."




                                                                           A-3698-17T4
                                        12
      The court found that on October 4, 2016, defendant was driving on US

Highway 22 with her children, Amanda and Carl, in her vehicle. After Officer

Daley observed defendant's vehicle drift between the "right fog line and the

dashed lines dividing the highway," he executed a traffic stop.         He asked

defendant some preliminary questions and smelled alcohol on her breath. He

did not observe any facial injuries on defendant and at no time did defendant

indicate she had been assaulted. The officer asked defendant to exit the vehicle

for field sobriety tests and found her unable to complete them successfully, when

defendant either could not, or would not, follow instructions regarding the tests.

As a result of Officer Daley’s observations, defendant was arrested and charged

with DWI and other offenses.

      The court found that, "[b]ased on the competent and credible evidence,

and the reasonable and common sense inferences that can be drawn from same

. . . [defendant] was driving while intoxicated with [Amanda] and [Carl] in her

car on October 4, 2016." The court further found that defendant "did not merely

allow an intoxicated person to drive her children, but rather was the intoxicated

person herself." The court concluded that the Division had established, by a

preponderance of the evidence, that "[defendant] drove with her children while




                                                                          A-3698-17T4
                                       13
in an intoxicated state" and that the "well settled law is clear that this conduct is

grossly negligent." These appeals followed.

      On appeal, defendant argues the record lacks sufficient evidence to

support the trial court's finding of neglect, and that her conduct, in retreating

with her children from the scene of an assault, was not grossly negligent,

wanton, or reckless. On the cross-appeal, the Law Guardian alleges the deputy

attorney general (DAG) representing the Division violated the rules of

professional conduct, causing the judge to misinterpret the evidence to believe

defendant did not disclose her medical records to the Division.           The Law

Guardian further alleges defendant was denied effective assistance of counsel,

arguing her defense counsel failed to enter defendant's available medical records

at trial to support her testimony that she suffered a concussion, prior to the police

stopping her.

                                         II

      Title 9 controls the adjudication of abuse or neglect cases. N.J. Div. of

Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citing N.J.S.A.

9:6-8.21 to -8.73). In an abuse or neglect proceeding, the Division bears the

burden of proof by a preponderance of evidence adduced at a factfinding

hearing, that a person has committed abuse or neglect. N.J.S.A. 9:6-8.46(b).


                                                                             A-3698-17T4
                                        14
      The standards governing our review are well known.             "We accord

deference to factfindings of the family court because it has the superior ability

to gauge the credibility of the witnesses who testify before it and because it

possesses special expertise in matters related to the family." N.J. Div. of Youth

and Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing Cesare v. Cesare,

154 N.J. 394, 413 (1998)). "We recognize that the cold record, which we review,

can never adequately convey the actual happenings in a courtroom." Ibid. (citing

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

the credibility of witnesses is an important factor, the trial court's conclusions

must be given great weight and must be accepted by the appellate court unless

clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v.

F.M., 375 N.J. Super. 235, 259 (2005) (citing In re Guardianship of DMH, 161

N.J. 365, 382 (1999)). "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." F.M., 211 N.J. at 448 (citing N.J. Div. of Youth & Family Servs. v.

G.L. 191 N.J. 596, 605 (2007)).

      Based on our review of the record, we find no basis to disturb the trial

court's decision. We affirm substantially for the reasons set forth in Judge Bruce




                                                                          A-3698-17T4
                                       15
J. Kaplan's thorough and well-reasoned written opinion. We add a few additional

comments.

      After defendant and the Law Guardian appealed, the Law Guardian was

granted leave to supplement the record with defendant's hospital records. In a

brief filed in support of this motion, the Law Guardian asserted that defendant

"was diagnosed with a TBI [traumatic brain injury] and mild concussion." The

Law Guardian's appellate brief repeats this same assertion; however, a careful

review of the hospital record does not support this contention.      The initial

assessment of defendant's condition states "new-onset seizure of unclear

etiology." One day later, before discharge, the updated "impression" describes

defendant's injury as a "questionable mild TBI" and states "there is a question

. . . whether a concussion was sustained." We agree with the Division that

defendant's "medical records are devoid of any formal diagnosis of concussion

or concussive-like symptoms; rather, they merely contain defendant's self-report

of what she alleged happened on October 4, 2006." 4



4
  Even if defendant's hospital records had contained a definitive diagnosis, the
admissibility of any such medical opinion would depend on "the complexity of
the analysis involved in arriving at the opinion and the consequent need for the
other party to have an opportunity to cross-examine the expert." N.J. Div. of
Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 130 (App. Div. 2010).


                                                                        A-3698-17T4
                                      16
      Rather than containing a definitive diagnosis that supports defendant's

version of events, the hospital record contains entries that strongly support the

trial court's adverse credibility findings concerning the testimony of defendant

and her husband. The hospital record of the initial physical examination of

defendant that addressed her head, eyes, ears, nose and throat, described these

areas as "normocephalic, atraumatic." Another physical examination, less than

five hours later, noted defendant complained of "tenderness to touch" in the area

of her "left forehead, occipital, [and] temporal areas." Significantly, the record

does not document any bruises, swelling, or other evidence of the beating

defendant alleges she sustained. To the contrary, the record describes

defendant's skin as "normal." Following our review of the hospital record, we

conclude the Law Guardian's contention that defendant received ineffective

assistance of counsel lacks sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      We also reject the Law Guardian's argument that while the Division

"received [defendant's] medical records months prior to the fact-finding trial[,]

the judge was never made aware of this fact by either the DAG . . . or defense

counsel."   As previously noted, the caseworker acknowledged, on cross-

examination, that the Division did eventually receive defendant's medical


                                                                          A-3698-17T4
                                       17
records and that the hospital records did indicate that defendant reported she had

been assaulted. The record therefore fails to support the contention that the

DAG violated rules of professional conduct regarding defendant's medical

records.

      Any arguments not addressed lack sufficient merit to warrant discussion

in a written opinion. Ibid. In summary, we conclude the record contains

sufficient credible evidence supporting the trial judge's determination of neglect

under N.J.S.A. 9:6-8.21(c).

      Affirmed.




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                                       18
