                           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                        NOT FOR PUBLICATION WITHOUT THE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-5779-14T2

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

        Plaintiff-Respondent,

v.

Y.G. and G.S.,

        Defendants,

and

B.B.B.,

        Defendant-Appellant.

______________________________

IN THE MATTER OF Z.G., a minor.

________________________________________________________________

              Submitted March 7, 2017 – Decided August 18, 2017

              Before Judges Messano and Espinosa.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County,
              Docket No. FN-07-376-14.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Laura Orriols, Designated
              Counsel, on the brief).
           Christopher S. Porrino, Attorney General,
           attorney for respondent (Andrea M. Silkowitz,
           Assistant Attorney General, of counsel;
           Brittany Anne Wilcox, Deputy Attorney General,
           on the brief).

           Joseph E. Krakora, Public Defender, Law
           Guardian, attorney for minor (Lisa J. Godfrey,
           Assistant Deputy Public Defender, on the
           brief).

PER CURIAM

      Defendant B.B.B. (Bryce) 1 appeals from an adjudication of

abuse and neglect, N.J.S.A. 9:6-8.21, arising from the undisputed

fact that he and his girlfriend, defendant Y.G. (Yvette),2 left

her three-year-old daughter, Z.G. (Zoe), alone in his Irvington

apartment while they visited friends in Clifton.    He argues there

was insufficient evidence to support the conclusion that he was a

"responsible party" under N.J.S.A. 9:6-8.21, that he had no duty

under the statute and that the trial judge erred in finding he

admitted to cohabiting with Zoe.     We disagree and affirm.

      At the outset of the fact-finding hearing, the State submitted

three exhibits: a Screening Summary, dated December 20, 2013, an

Investigation Summary, dated December 20, 2013, and a collection

of police records pertaining to Bryce and Yvette, dated December



1
    We use pseudonyms to protect the privacy of the child.
2
    Yvette has not appealed from the adjudication against her.


                                 2                             A-5779-14T2
20, and 21, 2013, into evidence with the consent of defendants.

At the request of Yvette's counsel, the trial judge agreed not to

consider hearsay statements contained in the documents.

     Merika Henry, a Special Response Unit investigator with the

Division      of   Child   Protection   and    Permanence   (the   Division),

testified she reported to the Irvington Police Department on

December 20, 2013 to investigate a referral that a maintenance man

had found a two-year-old child alone in an apartment on Stuyvesant

Avenue   in    Irvington    that   contained    drug   paraphernalia.      She

observed Zoe, who was actually three years old, was appropriately

attired but was not wearing socks and did not have a coat.              Henry

interviewed both Yvette and Bryce, who arrived at the police

department at approximately 5:00 p.m.

     Yvette admitted leaving Zoe home alone.            Yvette said she had

been Bryce's girlfriend for eight months.           She stated further that

she and Zoe had been residing with Bryce at the Irvington apartment

he leased for the past few months.

     Yvette stated she put Zoe down for a nap at approximately

1:30 p.m. and left the apartment with Bryce approximately one-half

hour later to go to Clifton to drop off some items for a friend.

When asked the friend's name and address, Yvette said she did not

know. At first, Yvette claimed a trip to Clifton took ten minutes.

Henry advised her the trip would take twenty minutes.               The trip

                                        3                             A-5779-14T2
took even longer because they had a flat tire when they arrived

in Clifton and were delayed by traffic on their return trip,

arriving at the apartment at approximately 5:00 p.m.

       Asked about the drugs and paraphernalia in the apartment,

Yvette initially denied having any knowledge about it.    She later

stated the items belonged to Bryce but said he did not use drugs

in the home.

       Henry also asked Yvette about Zoe's routine.   She stated Zoe

usually goes to bed at approximately 7:00 p.m. and arises at 6:00

a.m.    She stated Zoe had last eaten at approximately 11:00 a.m.,

when she gave her cereal and milk.     When asked about leaving Zoe

alone, Yvette stated that usually when Zoe wakes up, she would not

come out of the bedroom.     She said this was the first time she

left her home alone and admitted to a feeling that "something was

going to go wrong, but . . . she didn't think anything of it."

       Bryce confirmed that he and Yvette had gone to Clifton to

visit a friend after they put Zoe down for a nap at about 1:30

p.m. He stated they left the apartment at about 2:00 p.m. and

returned around 5:00 p.m.     Bryce was also unable to provide an

address for the friend in Clifton.    He felt nothing was wrong with

his actions because when he was younger, residing in the United

Kingdom, his mother left him alone.    He also admitted he had left



                                 4                           A-5779-14T2
Zoe home alone in the past while he ran to the corner store to run

errands and she appeared to be fine.

     Asked   about    the    drug   paraphernalia,     Bryce    stated    they

belonged to him but denied any recent drug usage and said he kept

the items for a friend.

     Following     these    interviews,    the   Division   determined      to

execute an emergency removal of Zoe pursuant to N.J.S.A. 9:6-8.29

and 9:6-8.30.      Zoe was taken to a hospital where she was examined

and reported to be healthy.

     Henry   was    also    the   supervisor   for   Danielle   Howell,    the

Division caseworker assigned to the case.            Yvette told Howell she

now resided with a friend in Clifton, whom she was unable to name,

and visited Bryce's apartment with Zoe on the weekends.            Asked how

she supports herself, Yvette stated she was unemployed and Bryce

was the one who was working.

     Howell was able to inspect Bryce's apartment, a one-bedroom

apartment heated only by a space heater.             There was no separate

bed for Zoe.    Yvette told Howell that Zoe shared the same bedroom

and bed with Bryce and her.

     Yvette and Bryce attended the fact-finding hearing but did

not testify.




                                       5                             A-5779-14T2
    Relying upon "the uncontroverted . . . admissions of the

parties,"    the   trial   judge   made   findings   that   included   the

following:

            It is quite clear that the defendants left
            this child, made a conscious decision to leave
            this child alone.     They didn't return for
            three hours. This is a three-year-old child
            in the middle of December . . . in an
            apartment that had no [heat].        So we're
            talking about a space heater with a small
            child, drug paraphernalia loose, available to
            this child.   There were so many potentially
            dangerous issues leaving a three-year-old
            alone that seems unconscionable to me.     And
            they admitted it.

    He found the Division had proven by a preponderance of the

evidence that:

            [T]he parties admitted they were living
            together.   They were a couple.    They were
            caring for this child.        They were the
            caretaker role. [Bryce] was in that role and
            does not require that he be a parent to be
            substantiated.   He was in a caretaker role.
            The two of them decided to leave this child
            alone in an apartment, unheated apartment in
            the middle . . . of December. It seems to be
            a – a totally foolhardy decision that
            fortunately, but for the grace of God there
            was no harm to this child, but there was
            clearly more than a substantial risk of harm
            to this child under these circumstances. And
            I do find the Division has proven its case by
            a preponderance of the evidence as to both of
            these parties.

     A finding of abuse and neglect is proven by a preponderance

of "competent, material and relevant evidence," N.J.S.A. 9:6-


                                     6                            A-5779-14T2
8.46(b), that the responsible person failed "to exercise a minimum

degree of care . . . in providing the child with proper supervision

or guardianship."      N.J.S.A. 9:6-8.21(c)(4)(b).

        Bryce does not challenge the conclusion that leaving Zoe

alone under the circumstances here satisfied this standard.               He

argues the adjudication as to him must be reversed because the

judge     erred   in   relying    on   a   "mistaken . . .   admission    to

cohabitation, . . . the length of the relationship between the

adults and one instance of prior babysitting by [him]" to find he

was a caregiver under the statute.           He contends these facts are

insufficient to establish his status as a responsible party. 3            We

disagree.

        Our review of the trial judge's factual findings is limited.

N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551,

577 (App. Div. 2010).            We accord deference to those findings

"unless the trial court's findings 'went so wide of the mark that

a mistake must have been made.'"            N.J. Div. of Youth & Family

Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder

Realty, Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (App.


3
   Bryce also argues, for the first time in this appeal, that
"constitutional law prohibits a finding that [he] is a responsible
party under N.J.S.A. 9:6-8.21" because the term "paramour of a
parent" is undefined in the statute and any plain meaning
definition would be "vague" and "overbroad." This argument lacks
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

                                       7                           A-5779-14T2
Div.), certif. denied, 117 N.J. 165 (1989)).            Legal conclusions

are reviewed de novo. N.J. Div. of Child Prot. & Permanency v.

K.G., 445 N.J. Super. 324, 342 (App. Div.), certif. denied, 228

N.J. 38 (2016).

      Here Bryce challenges the trial judge's factual findings as

well as his legal conclusion that the evidence showed Bryce had a

duty "to exercise a minimum degree of care . . . in providing

[Zoe] with proper supervision or guardianship."              N.J.S.A. 9:6-

8.21(c)(4)(b).     Specifically, Bryce challenges the findings of

fact the trial judge made and relied upon to conclude he was a

responsible party under the statute. He contends he never admitted

Yvette and Zoe lived with him and argues there was insufficient

evidence to establish he was Yvette's paramour.

      Although Bryce contends the admission of cohabitation was a

mistake, it was not corrected at the fact-finding hearing and, in

any event, proof of cohabitation is not necessary to fall within

the scope of this statute.       See State v. Galloway, 133 N.J. 631,

658-61 (1993) (interpreting "parent of guardian" in the related

context of criminal child endangerment, N.J.S.A. 2C:24-4(a), to

include   "those    who   have    assumed    a    general     and   ongoing

responsibility for the care of the child" which "may be based on

a   parental   relationship,   legal    custody   or   on   less-structured



                                    8                               A-5779-14T2
relations; or it may arise from cohabitation with the child's

parent" (emphasis added)).

      It   is   undisputed     that   Bryce    and   Yvette     had   been   in   a

relationship for eight months at the time Zoe was left alone. Even

if   Yvette     and    Zoe   only   stayed    with   him   on    weekends,    the

uncontroverted admission was that they stayed together in one

bedroom, sharing a bed.        Bryce's status as paramour was therefore

established by a preponderance of the evidence.

      The second critical component, which is the crux of this

appeal, is the legal question whether the facts support the

conclusion that Bryce had a duty to exercise a minimum degree of

care for Zoe.         Significantly, it is unnecessary for a person to

have any legal or formal status as a parent or guardian to have a

duty to exercise this minimum degree of care.              The definition of

"[p]arent or guardian" under N.J.S.A. 9:6-8.21(a) includes: "any

natural parent, . . . paramour of a parent, or any person, who has

assumed responsibility for the care, custody, or control of a

child or upon whom there is a legal duty for such care."

      Bryce admitted he had left Zoe alone in the past when he went

to the corner store to do errands.             Although he now contends he

only babysat for Zoe on one occasion, the admission he made to the

Division caseworker was not so qualified and was not challenged

at the fact-finding hearing.

                                        9                                A-5779-14T2
         Bryce also argues he should not be held responsible because

Zoe's mother was present and was the final authority on her being

left alone.       We disagree.     There is sufficient evidence to support

the conclusion that, during his eight-month relationship with

Yvette, Bryce also assumed a caregiving role for Zoe.                 This does

not mean he was the principal caregiver or even a caregiver on a

daily basis. He had crossed the threshold from casual acquaintance

to someone who had provided care for her.               That being the case,

even if Yvette was primarily responsible for the decision to leave

Zoe alone, Bryce had a duty to exercise a minimum degree of care

and caution against a decision that plainly exposed Zoe to a

substantial risk of harm.

         Instead, he joined in the decision to leave a three-year-old,

three hours after she was last fed, in an apartment heated only

by   a    space    heater   for    an     excursion   that,   under   the     best

circumstances, would leave her unsupervised for at least forty

minutes.      There is no evidence he exercised a minimum degree of

care by objecting to a decision by Yvette to leave Zoe unattended.

Rather, he expressed his approval of this decision, even stating

he had done so in the past.

         Therefore,   we    find    the    trial   judge's    decision   to     be

adequately supported by the evidence and concur with his legal

conclusion.

                                          10                             A-5779-14T2
Affirmed.




            11   A-5779-14T2
