NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0214-07T4
NEW JERSEY DIVISION OF
YOUTH AND FAMILY SERVICES,
IN THE MATTER OF THE
GUARDIANSHIP OF M.C. AND
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.
The court set January 10, 2007, as the return date of that order
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
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
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 . . . .
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-
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
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).]
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
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
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
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
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,