A0214-07 by xiangpeng


									                     RECORD IMPOUNDED

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0214-07T4









          Argued March 4, 2008 - Decided   March 20, 2008

          Before Judges Parrillo and Baxter.

          On appeal from Superior Court of New Jersey,
          Chancery Division, Family Part, Passaic
          County, Docket No. FN-16-109-07.

          Jean M. Hartmann, Designated Counsel, argued
          the cause for appellant M.C. (Yvonne Smith
          Segars,   Public  Defender,  attorney;   Ms.
          Hartmann, on the brief).

          Shona   L.  Mack-Pollock,   Deputy   Attorney
          General, argued the cause for respondent,
          Division of Youth and Family Services (Anne
          Milgram, Attorney General, attorney; Andrea
          M. Silkowitz, Assistant Attorney General, of
          counsel; Ms. Mack-Pollock, on the brief).
              Noel C. Devlin, Assistant Deputy Public
              Defender, argued the cause for M.C. and
              M.X.C., minors (Yvonne Smith Segars, Public
              Defender,   Law   Guardian,  attorney;  Mr.
              Devlin, on the brief).


       M.C. appeals from a May 2, 2007 order finding that M.C.

neglected his two minor children.            We affirm.


       M.C. is the father of two sons, one born on June 15, 2004,

and the other on May 13, 2006.                 On September 11, 2006, the

Division of Youth and Family Services (DYFS) received a referral

in which the caller alleged that M.C. and the children's mother,

J.E., "regularly abused multiple substances including cocaine,

marijuana and alcohol."         As a result of that referral, DYFS met

with   both    parents   on   September      22,    2006,   and   asked   them    to

submit to a substance abuse evaluation.                 Each agreed to do so

and signed a DYFS case plan.          After the Paterson police notified

DYFS of a domestic violence allegation by J.E. against M.C. on

October    16,    2006,1      DYFS   filed     a     verified     complaint      for

investigation on December 8, 2006.                 The complaint alleged that

domestic violence and drug abuse by M.E. constituted neglect.

  Although the domestic violence referral was included in the
verified complaint for investigation, the judge declined to
consider the evidence of domestic violence because he concluded
that domestic violence was not a basis for potential removal of
the children from their parents' custody.     Accordingly, we do
not consider the evidence of domestic violence.

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The court set January 10, 2007, as the return date of that order

to investigate.

      In December 2006, a Certified Alcohol and Drug Counselor

(CADC)    from    DYFS     completed     the     substance      abuse        evaluation.

During the evaluation, M.C. admitted to alcohol use, but denied

using illicit substances such as marijuana or cocaine.                          Based on

the information DYFS obtained during that evaluation, the CADC

recommended that both parents attend an out-patient substance

abuse treatment program known as the Challenge Program.                            After

missing the first session on December 12, 2006, M.C. did attend

a session on December 19, 2006, but attended only some of the

weekly sessions between that date and January 10, 2007.

      On January 10, 2007, M.C. and J.E. appeared in court for

the   return     date    of    the   order     to    investigate.            During    the

hearing,    the    judge      ordered    both       parents   to    comply      with   an

instant drug screen, which they did after the hearing concluded.

The urinalysis yielded a positive cocaine screen for M.C. and a

positive marijuana screen for J.E.                     After learning that both

parents    had    tested      positive   for    drugs,    and      in   light    of    the

children's young age and M.C.'s failure to attend the Challenge

Program    sessions      as     required,       DYFS    initiated       an     emergency

removal of the children on January 10, 2007, and filed an abuse

and neglect complaint.            After approving the removal, the court

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set a trial date of May 2, 2007,                     on the abuse and neglect


      At trial on May 2, 2007,                   J.E., represented by counsel,

decided to waive her right to a hearing and she stipulated to

the   use    of   drugs     while    her     children    were    in    her       legal   and

physical custody, thereby placing them at risk of harm.                                  The

trial therefore focused only on M.C.                     During the hearing, DYFS

caseworker        Gregory    Maier      testified        to    M.C.'s       inconsistent

attendance at the drug treatment program, his negative urine

screen on December 7, 2006, and his positive test for cocaine on

January 10, 2007.

      M.C.    testified       that     the    positive        test    for    cocaine      on

January 10, 2007, was the result of his first and only use of

cocaine, which he said had occurred the weekend before the drug

test that was administered on January 10, 2007.                       He acknowledged

on cross-examination that his use of cocaine had occurred only

three   or    four   days     before    the      court   date    that       he    knew   was

scheduled     for    January    10,     and      while   he    knew    that      DYFS    was

conducting its investigation into the impact of substance abuse

on his ability to care for his children.

      At the conclusion of the trial, the judge issued an oral

opinion in which he rejected M.C.'s assertion that his use of

cocaine during the weekend prior to the January 10, 2007 court

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date was the first and only time he had ever used an illicit

substance.   The judge reasoned:

           Well, I mean, succinctly stated [M.C.], I
           just don't believe at all for a moment, in
           terms of credibility, that your testimony
           was credible with regard to your first time
           use of cocaine on or about January 7, 2007.
           It is - it is beyond irrational that someone
           who is in the midst of a dispute and then
           attempts to appease the Division of Youth
           and   Family  Services   and  understood  it
           involved the removal of children from the
           home and the involvement of DYFS in the
           management of the family would, for the
           first time ever, on January 7, in the middle
           of this all, decide that he's going to use
           cocaine and - and know that the consequences
           of that would be what they are today.      I
           simply don't believe you.

    The judge concluded that M.C. had neglected his sons by

engaging in substance abuse while his children were in his legal

and physical custody, thereby placing them at risk of harm.

After discussing the uncontroverted evidence of M.C.'s use of

cocaine,   the   judge   explained   why   such   use   subjected    M.C.'s

children to a risk of harm.     The judge explained:

           And if you're going to parent that child
           while you're using cocaine you're exposing
           them to a risk of harm, simply stated.
           You're not in a position to address their
           needs.   You're not in a position to attend
           to them if there's an emergency, and we
           don't have to wait for - God forbid, for
           those things to happen for the Court to make
           a finding that the Division proved here by a
           preponderance of evidence that you, sir,
           committed an act of neglect as to your
           children   by   exposing  them  to   a  risk
           of harm . . . .

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       The     judge       accordingly        found        that    DYFS     had    presented

sufficient         proof     to    establish        that    M.C.     had    neglected      his

children in violation of N.J.S.A. 9:6-8.21.                               However, because

both parents had been doing well in their respective substance

treatment      programs,          the   judge    also      ordered    that    DYFS       should

begin to offer both parents unsupervised visitation.

       On June 6, 2007, the judge conducted another compliance

review hearing.            At that hearing, DYFS reported that:                     M.C. was

no longer complying with his substance abuse treatment program;

his attendance         at drug treatment              was    sporadic,       and   M.C. had

refused to provide urine samples on some of the occasions when

he    had    been    directed       to   do     so.        During    the    hearing,      DYFS

provided a progress report from the Challenge Program indicating

that because of erratic attendance, M.C.'s "overall prognosis

[was] poor."         J.E., in contrast, had been doing extremely well,

had   completed        the    substance       abuse     program      and    had    submitted

numerous negative urine samples.                      Accordingly, DYFS agreed to

return       the    children       to    J.E.'s       physical      custody,       and    M.C.

voluntarily agreed to leave the family home.                               Those findings

were reflected in the June 6, 2007 court order.

       At the next compliance review hearing on June 27, 2007,

DYFS recommended that M.C. be permitted to return to the family

home because the Challenge Program reported that he had re-

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engaged       in    his   treatment    program     and    continued        to     submit

negative urine screens.               On July 25, 2007, DYFS voluntarily

dismissed its abuse and neglect complaint against M.C. after

receiving another favorable report from the Challenge Program.

Despite the dismissal of the abuse and neglect proceedings, M.C.

filed an appeal from the May 2, 2007 order.

       On appeal, M.C. argues that the one urine screen confirming

his use of cocaine was insufficient to sustain a finding of

neglect because the children's mother, J.E., was also in the

home    and    shared     legal    responsibility        for   the    care       of     the

children, and DYFS failed to prove that his cocaine use had

resulted in any harm to his children.                    Both DYFS and the Law

Guardian argue that the factual findings of the trial judge were

supported      by    substantial      credible    evidence,     and       urge     us   to

affirm the May 2, 2007 order.


       In evaluating these arguments, we do not write on a clean

slate.    Review of a trial court's finding of abuse and neglect

is limited.         See N.J. Div. of Youth & Family Servs. v. M.M., 189

N.J. 261, 278 (2007).               While M.M. dealt with termination of

parental rights, rather than an abuse and neglect proceeding

under Title 9, we discern no reason to afford less deference

here,    especially       because     the    consequences      of    an    abuse        and

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neglect proceeding are far less severe than a termination of

parental rights as in M.M.

       We will uphold the factual findings of a trial judge if

they    are     supported     by   "adequate,   substantial       and   credible

evidence" in the record.             Id. at 279.       Additionally, we must

grant deference to a trial court's credibility determination.

See     Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).                   As the

court observed in M.M., "'where the focus of the dispute is . .

.     alleged    error   in    the   trial    judge's    evaluation     of     the

underlying facts and the implications to be drawn therefrom,'

the traditional scope of review is expanded."                  M.M., supra, 189

N.J. at 278 (quoting In Re J.T., 269 N.J. Super. 172, 188-89

(App. Div. 1993)).          "Still, even in those circumstances we will

accord deference unless the trial court's findings 'went so wide

of the mark that a mistake must have been made.'" Ibid.

       N.J.S.A.    9:6-8.21(c)(4)(b)        provides    that    an   "abused    or

neglected" child 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 . . . in
              providing the child with proper supervision
              or guardianship, by unreasonably inflicting
              or allowing to be inflicted harm, or
              substantial risk thereof . . . 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)(emphasis added).]

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DYFS is required to prove abuse and neglect by a preponderance

of the evidence.         N.J.S.A. 9:6-8.46(b).

       Here, the judge found that M.C. neglected his children by

using cocaine while his children were in his physical custody.

Such conduct, the judge held, placed the children at risk of

harm and thereby constituted abuse or neglect.                      We reject M.C.'s

argument that because DYFS did not prove that his ability to

care for the children was impaired or that the children were

actually harmed, the May 2, 2007 order must be reversed.

       M.C.'s      argument      mischaracterizes           and      overstates      the

statutory       requirement     imposed     by        N.J.S.A.     9:6-8.21(c)(4)(b).

That statute does not require DYFS to prove that the children

have     been    harmed.        Instead,        it     simply    requires     that   the

children's       physical,      mental     or        emotional    condition    is    "in

imminent        danger     of   becoming         impaired."           N.J.S.A.       9:6-

8.21(c)(4)(b).           The judge correctly found that DYFS was only

required    to     prove    that   the     children's           physical,   mental    or

emotional condition was in imminent danger of being impaired

because    of    M.C.'s    failure   to     exercise        a    "minimum   degree    of

care."    Ibid.

       As the Court observed in N.J. Div. of Youth & Fam. Servs.

v. A.W., 103 N.J. 591 (1986), a finding of parental unfitness

can be sustained in the absence of direct evidence of injury to

a child as long as the parent's behavior creates an imminent

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risk of such harm.            As the Court observed, "it would make no

sense to wait until [the child] had been injured to decide the

issue."      Id. at 616 n.14.

       M.C.'s contentions on appeal are premised on the assumption

that    a    parent's    use        of     cocaine,        without    more,     may    never

constitute abuse and neglect.                    We agree with the trial judge's

rejection of that premise in this case.                           At the time of the

hearing,       M.C.'s        sons        were        one    and      two      years     old.

Unquestionably, children of such tender ages require constant

and vigilant supervision in order to prevent them from being

harmed.         Moreover,      here        the       children's      mother     J.E.    has

stipulated to the fact that her use of drugs while her children

were in her legal and physical custody placed them at risk of

harm.        Indeed,    no   medical        evidence       or   expert     testimony     was

required in order to establish that a parent who is under the

influence of cocaine places his children's well-being in the

"imminent      danger"       that        N.J.S.A.      9:6-8.21(c)(4)(b)        seeks     to


       Further, M.C. has presented no meritorious basis for us to

reject the trial judge's conclusion that M.C. was not truthful

when he testified that his use of cocaine during the weekend

immediately preceding the hearing was his first and only such

use.        We agree with the judge's finding that it was highly

unlikely that a person who had never before used cocaine would

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suddenly decide to do so for the first time knowing that his

trial was pending a few days later and knowing that he was under

the    continuous      watchful      eye     of    DYFS.           Additionally,       M.C.'s

sporadic       attendance      at    the     Challenge          Program       supports       the

inference that M.C.'s evasive attitude resulted from substance

abuse, thereby establishing a continuous pattern of drug abuse,

rather than a solitary use of cocaine in January 2007.

       Moreover, as we have observed, we defer to a trial judge's

credibility       determination         because         the    trial        judge    has     the

opportunity to see and hear the witnesses and evaluate their

credibility.          M.M.,       supra,    189    N.J.       at     293.      Under       those

circumstances, there is no basis for us to disagree with the

judge's     conclusion       that    M.C.'s       use    of    cocaine       pre-dated       his

January 10, 2007 positive urine screen for cocaine.

       We     therefore      conclude       that    the        trial    judge       correctly

concluded      that    DYFS       established      by     a     preponderance         of    the

evidence      that    M.C.    had    neglected      his        children      and    that     the

statutory standard encompassed within N.J.S.A. 9:6-8.21(c)(4)(b)

had been satisfied.


       M.C.     further       argues       that    the        trial     judge       committed

reversible error during the May 2, 2007 hearing when he declined

to    consider    proof      of    M.C.'s    "clean"          drug    screens       after    the

January 10, 2007 removal of the children by DYFS.                             We agree with

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DYFS's contention that the issue before the court at the May 2,

2007 hearing was whether the removal that occurred on January

10,   2007,   was   lawful   and   whether     the   risk   of    harm   to    the

children at the time of their removal justified such action.

The court correctly concluded that admission of post-January 10,

2007 drug screens was not relevant to the circumstances that

existed on January 10, 2007.           Accordingly, the judge did not

error in declining to consider such evidence in connection with

his determination of whether the statutory standard for abuse

and neglect had been satisfied.

      The judge did, however, appropriately consider the evidence

of M.C.'s clean drug screens after January 10, 2007, during the

dispositional phase of the litigation.               The judge's July 25,

2007 order that permitted M.C. to return to the family home and

terminated    the   litigation     specified    "the   children      have     been

returned home, conditions have been remediated."                 That order was

the result of M.C.'s "clean" urine screens after January 10,



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