                             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                        NOT FOR PUBLICATION WITHOUT THE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-5777-14T3

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

        Plaintiff-Respondent,

v.

D.H.,

        Defendant-Appellant,

and

J.H.,1

        Defendant.

__________________________

IN THE MATTER OF R.H. and
B.H., minors.

________________________________________________________________

              Submitted February 28, 2017 – Decided June 2, 2017

              Before Judges Espinosa and Suter.




1
 No findings were sought against the children's father, J.H., who
was named as a defendant for dispositional purposes only.
            On appeal from the Superior Court of New
            Jersey, Chancery Division, Family Part, Camden
            County, Docket No. FN-04-306-13.

            Joseph E. Krakora, Public Defender, attorney
            for appellant (Kimmo Z.H. Abbasi, Designated
            Counsel, on the briefs).

            Christopher S. Porrino, Attorney General,
            attorney for respondent (Melissa Dutton-
            Schaffer, Assistant Attorney General, of
            counsel; Jennifer A. Lochel, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law
            Guardian, attorney for minors (Karen Ann
            Lodeserto, Designated Counsel, on the brief).

PER CURIAM

       Defendant D.H. (Debra)2 appeals from an adjudication of abuse

and neglect as to her two minor children, R.H. (Ron), born August

5, 1998, and B.H. (Beth), born May 28, 1997. She argues there was

insufficient evidence to support this conclusion.    We disagree and

affirm.

                                 I.

       To support a finding of abuse and neglect, the Division of

Child Protection and Permanency (the Division) must prove by a

preponderance of "competent, material and relevant evidence,"

N.J.S.A. 9:6-8.46(b), that the parent failed

            to exercise a minimum degree of care . . . in
            providing the child with proper supervision
            or guardianship, by unreasonably inflicting or

2
    We use fictitious names to protect the privacy of the parties.

                                  2                          A-5777-14T3
           allowing to be inflicted harm, or substantial
           risk thereof, including the infliction of
           excessive corporal punishment; or by any other
           acts of a similarly serious nature requiring
           the aid of the court . . . .

           [N.J.S.A. 9:6-8.21(c)(4)(b).]

      A parent fails to exercise a "minimum degree of care" when

the   parent   engages   in   conduct   that   is   "grossly   or   wantonly

negligent, but not necessarily intentional."           N.J. Div. of Youth

& Family Servs. v. T.B., 207 N.J. 294, 305 (2011) (quoting G.S.

v. N.J. Div. of Youth & Family Servs., 157 N.J. 161, 178 (1999)).

Such misconduct occurs when "an ordinary reasonable person would

understand that a situation poses dangerous risks and acts without

regard for the potentially serious consequences . . . ."             Id. at

306 (quoting G.S., supra, 157 N.J. at 179).          Each case of alleged

abuse "requires careful, individual scrutiny" and is "generally

fact sensitive."    N.J. Div. of Youth & Family Servs. v. P.W.R.,

205 N.J. 17, 33 (2011).

                                   II.

      The allegations in this case concern an incident involving

Ron that occurred in October 2012, which followed an incident one

month earlier involving Beth.           The amended verified complaint

filed by the Division recited its substantial prior history with

Debra.   The first referral occurred in March 2009, when Linda, a

child who has since reached majority, ran away from home after

                                    3                                A-5777-14T3
arguing with Debra about Debra's drug use.           During the period

between that first referral and the 2012 incidents, there were a

number of referrals that related to Debra's history of substance

abuse and mental illness and included allegations that Debra beat

Beth.    There was also a prior adjudication of substantiated abuse

and neglect against Debra.

        At the fact-finding hearing, N.J.S.A. 9:6-8.44, the Division

presented records that included: (1) the investigation summary

dated September 9, 2012; (2) a police report dated September 9,

2012; (3) a drug screen dated September 18, 2012 and (4) an

investigation summary dated October 12, 2012, all of which were

admitted without objection.

        The   September   2012   investigation   summary   detailed    the

Division's response to the family home, where they met with Debra,

Beth, Linda, and Ron.      The caseworker reported observing Debra to

be "very intoxicated," with slurred and delayed speech, balance

that "appeared to be off" and a disheveled appearance.

     The day before, Debra called the police for medical assistance

and, when the person who reported the incident to the Division

arrived, Debra told him Beth and Linda had "jumped her."              While

at the home, the reporter was informed "[Debra] attacked [Beth]

and she attempted to strangle her with her hands," which was

corroborated by an observation "that the child has scratches to

                                     4                           A-5777-14T3
her neck and some bruising."         Linda helped Beth get Debra off her,

and Debra sustained a bump to her forehead. The reporter was

advised this was the first incident of this nature, and Debra

"gets emotional" when she drinks, which she had been doing more

of recently due to marital issues.           "[Linda] reported her mother

has been drinking with her prescribed medications which are causing

her to act aggressively."

     Debra    was    arrested   for    simple     assault,    N.J.S.A.    2C:12-

1(a)(1),     and    released    on    her   own    recognizance.         In    his

investigation report, Sergeant Robert Worrick noted Debra stated

"she was 'jumped' by her two daughters," but she "kept changing

her story as to how and why she was 'jumped.'"               He observed Debra

"was slurring her words and swayed back and forth as she spoke.

Her [eyelids] were slightly open and her eyes were red."                      Linda

had reported to him that Debra and Beth were "arguing about family

issues" when Debra "began to throw objects around the living room."

Linda told Sgt. Worrick that Debra "smashed a glass vase onto the

floor" then "grabbed [Beth] by the throat and threw her against

the wall."     Linda pushed Debra away and, during the struggle,

elbowed Debra in her forehead.         Beth advised Sgt. Worrick "she did

not lose consciousness and she was able to breathe during the

struggle."    Sgt. Worrick observed "multiple scratches and a little

bruising" on Beth's neck.

                                        5                                A-5777-14T3
     In her statement for the police, Linda asserted Debra had

"consumed a fair amount of liquor" and attacked Beth because she

felt "disrespected."   Beth wrote out her own statement:

          I, [Beth], told my mom, [Debra] that I was
          holding her money because she was WASTED. So
          of course she yelled and complained and told
          me to give it back. I was out of line and
          disrespected her verbally so she decided to
          pick up a "glass" vase (It was huge by the
          way) & throw it at me. We moved it cut my
          finger and the back of my leg & it cut my
          sister's toe and butt cheek. Then she decided
          to choke me up on the wall & I punched her to
          get her off me then we fought 2 more [times]
          . . . . Then you guys come.

     The Division had Debra undergo a urine drug screening.       She

tested positive for marijuana, benzodiazepines and opiates.       The

Division substantiated allegations of physical abuse because Beth

"sustained scratches to her neck when [Debra] attempted to strangle

her."   Beth stopped living with her mother after this incident.

     The referral that is the basis of this appeal         occurred

approximately one month later, on October 10, 2012.   Debra called

911 and said Ron attacked her with a knife.       When the police

arrived, they observed self-inflicted scratch marks on her chest

and determined she had not been attacked with a knife.     They were

told Debra hit Ron in the eye, but Ron had no visible injuries and

did not appear to be in pain.    Both the person who reported the

incident and the responding police officer stated Debra appeared


                                6                            A-5777-14T3
to be under the influence of alcohol.              The reporter also stated

Debra "carries a butcher knife on her and she sleeps with it."

     Ron was interviewed by Division worker Chandra Edwards and

gave the following account.          He hides his Xbox games to prevent

his mother from returning them to the store for money to buy

liquor, but his games were nevertheless missing when he arrived

home from school earlier that day.          After Debra told him "somebody

must have come in and stolen them," Ron went to the maintenance

office to ask whether anyone had broken into his home.                   He was

told Debra was "lying to him again."

     Ron told Edwards he did not see the liquor Debra was drinking,

but "[h]e said she was stumbling and slurring her words and he

could just tell."          He also reported Debra "overdoses" on her

medicine and has been drinking "a lot" of vodka and beer since

Beth left in September.          Ron asserted he did not stab his mother

earlier and that his mother pushed his face, though he had no

marks or bruises.

     When   Edwards        and   Division    caseworker     Theodore     Gibson

interviewed Debra on the following day, she "appeared to be under

the influence of a substance" but denied taking medication.                   They

observed Debra's "thoughts were extremely unorganized" and her

"speech   appeared    to    be   slurred    as   though   she   was   under   the



                                       7                                A-5777-14T3
influence." Debra stated, however, that she was prescribed Vicodin

and Neurontin for her multiple sclerosis.

     She asserted she returned Ron's Xbox games the day before

because he was not doing his homework.      She told the caseworkers

Ron "threw her against the wall and then followed her into her

bedroom and threw her on the bed and scratched her on her chest."

The caseworkers observed the scratches and noted they "appeared

to be thin and [uniform]."

     The   caseworkers   re-interviewed   Ron,   who   gave   an   account

largely consistent with his prior statements.          He affirmed Debra

was "drunk and stumbling around" when he came home from school.

He asserted she threatened to throw his Xbox through the window,

but he grabbed it from her hand, causing her to stumble into a

wall.   She then went into her room for three minutes. Knowing that

Debra keeps a butcher knife under the mattress and recalling she

has thrown the knife at him and other family members when she is

drunk, Ron took the knife when she emerged from the bedroom.              He

stated Debra told him "she does not want him and wants DYFS to

take him away." Ron stated Debra "is always drunk and he has

witnessed her 'popping pills' and drinking at the same time."             He

expressed a wish to stay with his aunt "as he feels safe in her

care" and "he is fearful of what his mother may try to do to him."



                                  8                                A-5777-14T3
He advised "he loves his mother, but does not feel safe around

her."

      Debra testified in her own defense.           She testified that she

returned three of Ron's Xbox games after receiving a call from his

school that Ron had not been doing his homework.             She stated Ron

"threw a tantrum," would not calm down and grabbed a knife from

the kitchen but did not stab her or approach her with the knife.

She denied there had been any altercation or struggle or telling

the police Ron stabbed her.          She explained the scratches on her

chest were from Ron's nails, but she was "quite sure [that] was

an accident."

      On cross-examination, Debra testified she was not intoxicated

that day.   She explained that her multiple sclerosis causes speech

impairment, such as slurring, when she is stressed, but she did

not explain why she might have been "swaying back and forth" as

noted in the police report.          When confronted with her positive

urine screen, she said, "I don’t see how I tested for marijuana."

She   explained   that,   at   the    time,   she    had   been   prescribed

Clonazepam, Prednisone, Hydrocodone, Neurontin, and "different

medications."     She testified she does not drink alcohol while on

medication and denied taking her medication or drinking alcohol

on the two days she engaged in altercations with Beth and Ron.



                                      9                              A-5777-14T3
     The Division called Gibson as a rebuttal witness.        He refuted

Debra's testimony, stating Debra told him Ron had cut her and

showed him the marks on her chest. He further testified her speech

was slurred and she appeared disorganized and nervous.

     The family court cited Ron's statement, Gibson's testimony

and report, and the police report as evidence that supported the

conclusion that Debra was under the influence of alcohol during

the October incident.       The court did not find credible Debra's

denials and explanation that her slurred words, swaying, and

disorganization were attributable to her medical condition.           The

court found that Debra's voluntary intoxication led to a "pretty

serious altercation" with Ron that justified a finding of abuse

and neglect.    The court held the Division sustained its burden of

proving Debra "failed to ensure the health, safety and welfare of

the children by being under the influence of drugs and alcohol and

therefore [did] not provide proper supervision."

     Debra argues the evidence of intoxication was insufficient

because expert testimony was necessary to establish that she was

under the influence of alcohol or drugs.           This argument lacks

merit.   Lay opinion may be used to establish whether a person was

intoxicated; expert opinion is not necessary. See State v. McLean,

205 N.J. 438, 457 (2011). "[T]he average witness of ordinary

intelligence,    although   lacking    special   skill,   knowledge   and

                                  10                             A-5777-14T3
experience but who has had the opportunity of observation, may

testify whether a certain person was sober or intoxicated." State

v. Bealor, 187 N.J. 574, 585 (2006) (citation omitted).   There was

ample evidence to establish that Debra was under the influence of

intoxicating substances and that her intoxication impaired her

parenting ability.

     Finally, Debra argues her actions should be excused because

they were taken in response to Ron's "extreme behavior" as a

"misbehaving child."   Debra's false report to the police that Ron

stabbed her in the chest was not an appropriate disciplinary

response to any misbehavior by Ron.     To the contrary, Debra's

behavior was consistent with her prior assaultive behavior against

both Beth and Linda.   Moreover, although we note the trial judge

found her testimony not credible, Debra denied there was any

altercation at all.

     We conclude the Division proved by a preponderance of the

evidence that Debra engaged in conduct that was grossly negligent,

warranting an adjudication of abuse and neglect. N.J.S.A. 9:6-

8.21(c)(4)(b).

     Affirmed.




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