DCPP VS. M.H., A.S., M.H., AND D.F., IN THE MATTER OF M.S.H., A.S., AND N.D.F. (FN-20-0043-19, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

D
                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2687-19

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

M.H., A.S., and M.H.,

          Defendants,

and

D.F.,

     Defendant-Appellant.
__________________________

IN THE MATTER OF M.S.H.,
A.S., and N.D.F., minors.
__________________________

                   Submitted March 17, 2021 – Decided April 28, 2021

                   Before Judges Fuentes, Whipple, and Rose.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Union County, Docket
            No. FN-20-0043-19.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Patricia Nichols, Assistant Deputy Public
            Defender, on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jane C. Schuster, Assistant Attorney
            General, of counsel; Mary C. Zec, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors (Meredith Alexis Pollock, Deputy
            Public Defender, of counsel; Nancy P. Fratz, Assistant
            Deputy Public Defender, of counsel and on the brief).

PER CURIAM

     In this Title Nine action, defendant D.F. appeals from a fact-finding order,

now final, that he abused or neglected the daughters of his paramour, M.H.

(Mother)1: M.S.H. (Mary), born June 2009; and A.S. (Anna), born June 2012,

by engaging in acts of domestic violence with Mother in the presence of both

girls. Defendant also appeals from the same order that he abused or neglected




1
  We use initials to preserve the confidentiality of the proceedings, R. 1:38-
3(d)(12), and pseudonyms for ease of reference.


                                                                           A-2687-19
                                       2
his biological daughter, N.D.F. (Nina), born May 2016, by driving under the

influence of marijuana while Nina was in the car (DUI incident).2

      On appeal, defendant raises the following points for our consideration:

                                   POINT I

            THE FACT-FINDING HEARING CONCLUSIVELY
            ESTABLISHED THAT [DEFENDANT] ONLY
            BRIEFLY LIVED WITH [MOTHER] AND HER
            CHILDREN, PRIOR TO THE BIRTH OF NINA, WAS
            NEVER A CARETAKER, DID NOT ASSUME
            RESPONSIBILITY FOR CARE, CUSTODY OR
            CONTROL, AND HAD NO LEGAL DUTY FOR
            SUCH CARE OF [MOTHER]'S CHILDREN AS
            DEFINED IN N.J.S.A. 9:6-8.21 AND N.J.S.A. 9:6-2;
            THEREFORE,        THE  JUDGE'S   ERRONEOUS
            FINDING OF ABUSE AND NEGLECT MUST BE
            REVERSED.
            [(Not raised below)]

                                  POINT II

            THE TRIAL JUDGE ERRED IN FAILING TO
            PROPERLY DEFINE AND DECIDE THE CHARGES
            AGAINST          [DEFENDANT], COMPELLING
            REVERSAL.
            [(Not raised below)]




2
  M.H. is the biological mother of all three girls and a son, K.O.-A., born
December 2013, whose biological father is R.O.-A. Mother; K.O.-A.; R.O.-A.;
Mary's father, M.H.; and Anna's father, A.S., are not parties to this appeal.


                                                                          A-2687-19
                                       3
                                   POINT III

            THE TRIAL COURT FAILED TO ENFORCE THE
            REQUIREMENTS FOR PROPER ADMISSION OF
            EVIDENCE OF DRIVING WHILE INTOXICATED
            AND ERRED IN ALLOWING THE OFFICER TO
            REFER TO HIS PRIOR HISTORY WITH
            DEFENDANT,             UNDULY PREJUDICING
            DEFENDANT, COMPELLING REVERSAL OF THE
            JUDGMENT BELOW.
            [(Partially raised below)]

                                   POINT IV

            BECAUSE THE TRIAL COURT ERRED IN
            ADMISSION OF THE STATE'S EVIDENCE AND
            TESTIMONY OF EVALUATORS OF TWO OF THE
            CHILDREN, AND NO OTHER EVIDENCE
            SUPPORTED THE FINDINGS FOR WHICH THE
            TRIAL JUDGE RELIED ON THAT EVIDENCE, THE
            JUDGMENT OF ABUSE MUST BE REVERSED.

      The Division of Child Protection and Permanency and Office of the Law

Guardian urge us to affirm the judge's order. Because we conclude there was

sufficient credible evidence in the record supporting the family judge's decision,

we reject defendant's contentions and affirm.

                                        I.

      During the six-day fact-finding hearing, the Division presented the

testimony of caseworkers, Tanisha McKinney, Chanel Dickey, and Octavio

Andrade; expert witnesses in the field of mental health, Leisa Walker, LCSW


                                                                            A-2687-19
                                        4
and Lynne Einhorn, LCSW; Plainfield Police Department members, Sergeant

Jerry Plum and Officer Danielle Carvalho; M.J., the maternal grandmother of

the children, (Grandmother); and Mother.         The Division also moved into

evidence numerous documents, including its investigative reports, the

psychosocial evaluations of Mary and Anna, and police reports pertaining to the

DUI incident. Defendant did not testify or present any evidence.

      The trial judge's cogent oral decision details the facts underpinning his

conclusion that defendant abused or neglected all three children. We incorporate

the judge's factual findings by reference, highlighting those that are pertinent to

this appeal. We also recite the facts in the trial record that dispel the issues

raised for the first time on appeal.

      Between March 12 and August 28, 2018, the Division received three

referrals concerning the family. School officials made the initial referral to the

Division, reporting concerns about domestic violence between defendant and

Mother. Caseworker Tanisha McKinney met with Mother, Mary, age eight, and

Anna, age nine. Mary was guarded during her interview with McKinney and

said she never saw defendant and Mother fighting. But Mary said she was afraid

when she heard the fighting, prompting Mary and her sisters to hide in their




                                                                             A-2687-19
                                        5
bedroom. When interviewed by McKinney, Anna was more talkative than Mary.

Anna said she saw defendant "drag [Mother] by her hair."

      Although the Division did not substantiate defendant or Mother for abuse,

Mary, Anna, and Mother were referred for psychosocial mental health

evaluations. During their evaluations, Mary and Anna elaborated about the

domestic violence in the home.

      Walker evaluated Anna, who disclosed intrusive memories of the fighting,

feelings of fear when recalling the fighting, and avoidance of the trauma by

fleeing to her bedroom when defendant entered the home. Walker diagnosed

Anna with other specified trauma and stressor-related disorder based on the

child's self-reporting.   Walker recommended treatment with a therapist

specializing in trauma.

      Einhorn evaluated Mary, who reported that she cried when Mother and

defendant fought. Mary said defendant would break into the home through a

window. Because defendant had threatened to kill her, her sisters, and her

mother with his gun, she expressed fear that he would carry out his threat. When

asked how she would use "three wishes," Mary's only wish was for defendant to

"be gone." Mary displayed symptoms of trauma, such as: fear that something

bad would happen to her, including that defendant would kill her; intrusive


                                                                          A-2687-19
                                       6
memories of the fighting; and feelings of helplessness. Einhorn concluded Mary

exhibited symptoms of post-traumatic stress disorder but recommended further

evaluation by a therapist for a diagnosis.

        Grandmother testified that "sometime in 2017" Mary said she saw

defendant's gun.     On various occasions when defendant and Mother were

fighting, Mary ran across the street to Grandmother's home. According to

Grandmother, Mary was "afraid because of all the domestic violence that was

taking place in the house. [Mary] was very upset. Whether it was physical or

verbal, she was very upset about it. And she was scared." When asked to

approximate the frequency of those occurrences, Grandmother replied, "it was

often enough . . . too many times."

        Mother testified that defendant engaged in loud, physical altercations with

her on a weekly basis within earshot of the girls. Defendant grabbed Mother by

the hair, slapped her, and spit on her in the presence of her daughters. Mother

said defendant repeatedly threatened to kill her. When Mother attempted to call

the police, defendant took her phone and "sometimes even br[oke] [her] phone."

Mother confirmed the children's accounts that Mary, Anna, and Nina would hide

in their bedroom when defendant became violent, or flee to Grandmother's

home.


                                                                             A-2687-19
                                         7
      The allegations of abuse or neglect of Nina arise from a single incident.

On the morning of August 28, 2018, Grandmother was caring for Mary, Anna,

and Nina in her home. Defendant arrived unexpectedly and said he was there to

pick up Nina. He ignored Grandmother's inquiry as to whether Mother knew of

that arrangement. Instead, defendant "shoved" Grandmother aside, removed

Nina from the couch, and headed for the door. When Grandmother said she was

calling the police, defendant called her a "bitch," threatened to have someone

"beat . . . [her] ass every day," and spat at her screen door.

      Soon after Grandmother notified the police, an officer stopped defendant's

car. Plum, who knew defendant, arrived at the scene within minutes and smelled

a "very strong odor of raw marijuana emanating from [defendant's] person."

Defendant was sweating "profusely" and "talking a lot." He spoke "rapidly" and

repeatedly insisted he was "a good father." Defendant "removed a bag [of

marijuana] from his pants and then several bags fell out of his leg." Defendant

acknowledged he smoked marijuana daily but denied doing so that day. Plum

nonetheless believed defendant was under the influence of marijuana and could

not safely drive a vehicle.




                                                                          A-2687-19
                                         8
      Nina was not strapped into a car seat; she was seated in the backseat on a

"booster seat," without safety straps. When Plum removed Nina from the seat,

he found a metal marijuana grinder "wedged underneath the seat."

      The DUI incident was referred to the Division for investigation.

Following Andrade's investigation, the Division substantiated defendant for

abuse or neglect of Nina in connection with the DUI incident, but did not

substantiate defendant specifically for substance abuse that threatens a child.

      After counsel waived closing statements, the trial judge issued a

thoughtful decision from the bench. The judge carefully reviewed the testimony

and documentary evidence presented at the hearing and concluded the Division

established by a preponderance of evidence that defendant had abused or

neglected Mary, Anna, and Nina under N.J.S.A. 9:6-8.21(c)(4)(b). The judge

elaborated:

                     As a result of the harm that was perpetrated upon
              [Mary and Anna], as a result of the fact that there was
              danger of future harm if the domestic violence
              continued, I find that there was abuse and neglect of
              [Mary] and [Anna]. And . . . with respect to [Nina], I
              find that [defendant's] operating a motor vehicle while
              under the influence of marijuana with marijuana in the
              car, marijuana that was found on his person in close
              proximity to [Nina], exposes her . . . to the imminent
              danger of harm . . . [from] the possibility that she could
              have ingested the marijuana which was located in close
              proximity to her.

                                                                            A-2687-19
                                          9
      In reaching his decision, the trial judge found the hearsay statements of

Mary and Anna were sufficiently corroborated by the testimony of Grandmother

and the expert witnesses, all of whom the judge found credible. The judge also

found Plum's testimony "very credible."         Recognizing the officer knew

defendant "for many years," the judge cited the "personal observations" Plum

made of defendant "at the scene, including the smells, the sights, and the sounds,

and based on his training in the field." The judge found uncontroverted Plum's

testimony that defendant "was under the influence of marijuana while driving

[Nina] in the car."

      Following a dispositional hearing, the judge determined there was no

longer a need to continue litigation and dismissed the matter. This appeal

followed.

                                       II.

                                       A.

      Our limited standard of review of a family court's fact-finding

determination is well settled. N.J. Div. of Youth & Family Servs. v. R.D., 

207

N.J. 88

, 112 (2011). On appeal from orders issued in Title Nine actions, we

accord considerable deference to the trial court's credibility determinations and

findings of fact when those findings are supported by adequate, substantial, and

                                                                            A-2687-19
                                       10
credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 

189 N.J. 261

,

278-79 (2007). We maintain that deference "unless the trial court's findings

went so wide of the mark that a mistake must have been made."

Id. at 279

(internal quotation marks omitted). Given a family court's special expertise in

matters concerning children, we do not readily second-guess its factual findings.

N.J. Div. of Youth & Family Servs. v. R.G., 

217 N.J. 527

, 553 (2014). Legal

conclusions are subject to de novo review. Div. of Child Prot. & Permanency

v. V.E., 

448 N.J. Super. 374

, 384 (App. Div. 2017).

      N.J.S.A. 9:6-8.21(c) defines various circumstances that can comprise the

abuse or neglect of a child. Among other things, the statute specifically covers:

            [A] 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, 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 court's finding of abuse or neglect must be based on a preponderance of

the evidence when the proof is considered in its totality.        N.J.S.A. 9:6-


                                                                           A-2687-19
                                      11
8.46(b)(1); N.J. Div. of Youth & Family Servs. v. C.M., 

181 N.J. Super. 190

,

201 (App. Div. 1981) ("In child abuse and neglect cases the elements of proof

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.'"). Notably, the Title Nine proof standard is less stringent than in

guardianship cases for the termination of parental rights, which must instead be

proven by clear and convincing evidence.         N.J. Div. of Child Prot. and

Permanency v. R.L.M (In re R.A.J.), 

236 N.J. 123

, 145 (2018); see N.J.S.A.

30:4C-15.1(a). The proofs adduced before the trial judge amply met these

evidentiary standards.

                                       B.

      For the first time on appeal, 3 defendant claims he was not a "parent or

guardian" of Mary or Anna, within the meaning of N.J.S.A. 9:6-8.21(1)(a).

Defendant contends he did not exercise authority over Mary and Anna and did

not assume responsibility for their "care, custody, or control." Defendant's

contentions are unavailing.


3
  In his merits brief defendant's point heading cites portions of the record in
which he elicited testimony that Mary and Anna had been exposed to domestic
violence between Mother and other men. Based on our review of the record,
however, defendant never asserted he did not meet the definition of a "parent or
guardian" at any time before or during the fact-finding hearing.
                                                                            A-2687-19
                                       12
      "Generally, an appellate court will not consider issues, even constitutional

ones, which were not raised below." State v. Galicia, 

210 N.J. 364

, 383 (2012);

see also Div. of Youth and Family Servs. v. M.C. III, 

201 N.J. 328

, 339 (2010).

Exceptions to this rule include issues that present a matter of "great public

importance" or pertain to a court's jurisdiction. M.C. 

III, 201 N.J. at 339

. As

defendant correctly notes, subject matter jurisdiction "can be raised at any time,

even on appeal." Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R.

4:6-2 (2021); see also R. 4:6-7. We therefore consider defendant's jurisdictional

argument, recognizing the trial judge, Division, and law guardian were not

afforded the opportunity to directly address defendant's newly-minted

contentions.

      Pursuant to N.J.S.A. 9:6-8.21(1)(a), a "[p]arent or guardian means any

natural parent, adoptive parent, resource family parent, stepparent, 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." In turn, the

Division's regulations define "paramour" as "a parent's or guardian's partner,

other than his or her spouse, who is in a care-giving role for the alleged child

victim. This definition is applicable whether the paramour resides in the home,




                                                                            A-2687-19
                                       13
frequents the home, is a same-sex partner, or is a current or ex-boyfriend or

girlfriend." N.J.A.C. 3A:10-1.3.

      To support his contentions, defendant relies on our decision in New Jersey

Division of Child Protection & Permanency v. B.H., 

460 N.J. Super. 212

(App.

Div. 2019). In B.H., we held the family court lacked jurisdiction to determine

a boyfriend abused or neglected a five-year-old child under Title Nine.

Id. at

221.

In reaching our decision, we recognized the lack of evidence addu ced at

the hearing "to contradict [the defendant's] assertions that he did not assume a

general and ongoing . . . care of [the child.]."

Ibid. We noted the

defendant

visited the mother "twice a week" and stayed overnight "occasionally" during

the course of a year prior to the incidents at issue.

Id. at 214.

Mother testified

her relationship with defendant was "completely separate" from that of her

daughter, who were not "together . . . on a regular basis."

Id. at 217.

We

recognized: "At most, [the defendant] supervised [the child] on two limited

occasions."

Id. at 221.

      By contrast in the present matter, Mother testified that defendant moved

into the family home when she became pregnant with Nina in 2015. Defendant

lived with the family for several months, moving out at the end of April 2016,

shortly before Nina's birth. And in April or May of 2017, defendant "brought


                                                                            A-2687-19
                                       14
some stuff over to [Mother's] house and stayed, like, every night" even though

"he still had his own place." Mother acknowledged defendant was not a "legal

resident" of the home, but that he "frequent[ed] the home, very, very often."

McKinney testified that Mother said "even if [she] tried to . . . prevent[]

[defendant] from coming in[to the home, he] comes in anyway." Indeed, when

McKinney was concluding her interviews of Mother and the girls, defendant

"just walked into the home."

      The record also reveals Anna told McKinney defendant did not live in the

home but was there "every night." Anna later told Dickey that defendant

watched the girls "for two days" when Mother was at work. Mary said defendant

watched the girls when "[M]other need[ed] to quickly go to the store and is not

out long" but that did not occur "often."

      Notably, Anna also reported to Walker that when she and her sisters

attempted to escape to Grandmother's home, defendant stopped them, stating,

"nobody's leaving from this house; this scary house." Defendant also took the

children's cell phones to prevent them from calling for assistance.

      Most telling, however, are defendant's own words during his interview

with Andrade at the Union County Jail following the DUI incident. Defendant

referred to Mother "as his fiancée on numerous occasions throughout the


                                                                         A-2687-19
                                       15
interview[,]" and said "they plan to get back together and raise the children as a

family." Defendant acknowledged he had lived with Mother and would visit her

on and off after the Division became involved.

      We therefore conclude the record supports the judge's findings that

defendant "at various times relevant to this suit, was, in fact, the guardian at

times of [Mary] and [Anna]." Defendant lived in the home and disciplined the

children and at times he was delegated authority by Mother to watch the

children.

                                       C.

      We next consider the issues raised in point IV, which challenge the trial

judge's abuse or neglect findings regarding Mary and Anna. Defendant contends

the judge erroneously relied on the expert testimony of Walker and Einhorn,

who were not qualified as experts in the field of psychology here, where the

Division elicited opinions "within a reasonable degree of psychological

certainty."   Defendant contends both mental health expert witnesses were

"under[]qualified" to render their opinions. We disagree.

      During the fact-finding hearing, defendant questioned Walker about her

qualifications, noting Walker had rendered her expert opinions in prior cases

within a reasonable degree of "mental health certainty."          But defendant


                                                                            A-2687-19
                                       16
ultimately stipulated to Walker's expertise.       During cross-examination,

defendant elicited testimony from Walker that the Division had asked her to

opine within a reasonable degree of psychological certainty, that she was not a

psychologist, and she had been qualified as a mental health expert. Defendant

did not, however, object to Walker's testimony or expertise. Nor did defendant

move to strike Walker's testimony.

      Our Supreme Court has held a "stipulation waives all challenges to the

admissibility of . . . [an] expert's testimony." State v. A.O., 

198 N.J. 69

, 87

(2009). We discern no basis to depart from that holding here. As the judge aptly

recognized in his final decision:

            Walker is a clinical social worker at Saint Peter's
            Hospital in the Dorothy B. Hersh Regional [Child]
            Protection Center. She has worked with the Child
            Protection Center for five years evaluating children
            involved with the Division. She has testified in court
            and has been admitted as an expert on the issues of
            mental health. Her [curriculum vitae] (CV) was
            admitted into evidence.

                  Among her other responsibilities, . . . Walker
            evaluates children where there are allegations of
            physical or sexual abuse.

      Among other achievements, Walker's CV reflects she achieved a bachelor-

of-science degree in psychology and a master's degree in social work. Walker's

employment at Saint Peter's Hospital included "crisis intervention [and] psycho-

                                                                          A-2687-19
                                      17
education . . . to families impacted by trauma." Moreover, the judge did not rely

upon Walker's diagnosis of Anna in rendering his decision that defendant abused

or neglected the child.

      Three trial days after Walker testified, Einhorn was qualified as an expert

in mental health and child abuse.       During direct examination, defendant

"submit[ted]" to Einhorn's expertise in the absence of voir dire on her

qualifications.   On cross-examination, defendant questioned Einhorn as to

whether she was qualified as an expert in "mental health" or "psychology,"

drawing an objection from the Division.        Recognizing defendant had not

previously objected to the qualifications or opinions of Walker or Einhorn, the

judge permitted the parties to brief whether "a licensed clinical social worker

has the authority under our case law to offer an opinion within a reasonable

degree of psychological certainty."

      Notably, before defense counsel continued her cross-examination, the

judge asked Einhorn whether she could render her "opinions that were

previously expressed within a reasonable degree of the certainty of the fields in

which [she] practice[d] . . . that is, mental health as well as child abuse."

Einhorn responded affirmatively.




                                                                           A-2687-19
                                      18
      Einhorn's testimony concluded that trial day. The judge did not render a

decision on the psychological certainty issue raised during Einhorn's testimony.

After the judge rendered his final decision, the judge responded to the Division's

inquiry concerning the issue, stating: "I don't need an opinion other than what

the therapist gave us, that the children were harmed, and I think that is sufficient

for the purposes of my opinion." As with his analysis of Walker's testimony,

the judge did not rely upon Einhorn's diagnosis of Mary when rendering his

decision that defendant abused or neglected the child. Consequently, we discern

no reversible error in the judge's decision here.

                                        D.

      Finally, we turn to the overlapping and mostly belated contentions raised

in defendant's points II and III. As a preliminary matter, we generally decline

to consider issues that were not presented at trial. Nieder v. Royal Indem. Ins.

Co., 

62 N.J. 229

, 234 (1973). In his merits brief, defendant suggests the issues

raised in points II and III were raised or at least partially raised below. For the

sake of completeness, we have considered defendant's contentions and conclude

they lack sufficient merit to warrant extended discussion in a written opinion.

R. 2:11-3(e)(1)(E). We add only the following comments.




                                                                              A-2687-19
                                        19
      For the first time on appeal, defendant contends he was not placed on

notice that the fact-finding hearing would encompass the Division's

unsubstantiated finding he abused or neglected Nina while driving under the

influence of marijuana. In the alternative, defendant claims the Division failed

to establish defendant was intoxicated during the DUI incident and Plum's

testimony about his prior encounters with defendant was prejudicial.

      Initially, the Division's determination that defendant was not substantiated

for neglect or abuse of Nina while under the influence of intoxicating substances

is not relevant to the proceedings here, where the Division's complaint

specifically alleged defendant was intoxicated during the DUI incident. The

Division's findings are administrative, see N.J.A.C. 3A:10-7.3, and separate

from those made by the trial court. Accord In re an Allegation of Physical Abuse

Concerning R.P., 

333 N.J. Super. 105

, 117 (App. Div. 2000) (citation omitted)

("A finding by [the Division] that child abuse charges have not been

substantiated, but that there is some indication a child was harmed or placed at

risk of harm, is purely investigatory in nature, with none of the procedural

protections of an adjudicatory proceeding.").

      Indeed, the allegations set forth in the Division's complaint specifically

averred:


                                                                            A-2687-19
                                      20
            The police believe[d] [defendant] was under the
            influence of narcotics due to his behavior and he had
            two bags of marijuana on him. The police also found
            drug paraphernalia in the car that was within the child's
            reach. The police charged [defendant] with attempting
            to elude police, possession of marijuana, possession of
            drug paraphernalia, and endangering the welfare of a
            child . . . .

      Moreover, at trial, defendant raised no objection to the admission of

Plum's testimony regarding his observations that defendant emitted an odor of

marijuana. That testimony was sufficient to establish defendant was under the

influence. See Div. of Child Prot. & Permanency v. V.F., 

457 N.J. Super. 525

,

537-38 (App. Div. 2019).        In V.F., we declined to require "additional

independent proofs" of drug intoxication in the context of abuse or neglect

proceedings.

Id. at 537-38.

Instead, we determined the testimony of the police

officers that defendant was unable to stand on his own was sufficient for the trial

court to conclude the defendant was intoxicated.

Ibid.

In any event,

the trial judge did not rely solely on defendant's driving

while intoxicated in his determination that defendant abused or neglected Nina.

The judge also found "the marijuana grinder, which was located in close

proximity to [Nina], exposed [her] to the possibility of ingesting the marijuana

or being harmed by the grinder" itself.


                                                                             A-2687-19
                                       21
      Nor do we find any merit in defendant's belated claims of prejudice by

Plum's testimony that he knew defendant "for many years" from prior drug

arrests in Plainfield. On the contrary, the trial judge specifically determined he

"d[id] not place any relevance on the reasons for that prior involvement."

Rather, the judge found "the sergeant's familiarity with [defendant was] relevant

insofar as his assessment of [defendant]'s physical condition and behavior on

August 28, 2018." The judge's decision warrants our deference. 

R.G., 217 N.J.

at 553

.

      In sum, we are satisfied there was competent, credible evidence in the

record to support the judge's finding that defendant abused or neglected all three

children. See N.J. Div. of Youth & Family Servs. v. L.L., 

201 N.J. 210

, 226

(2010).   The totality of the circumstances cited by the judge support his

conclusion that the children were abused or neglected within the meaning of

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

      Affirmed.




                                                                            A-2687-19
                                       22

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