March 20, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF M.C. AND M.X.C., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-109-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 4, 2008
Before Judges Parrillo and Baxter.
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,*fn1 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. 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 set a trial date of May 2, 2007, on the abuse and neglect complaint.
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 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 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 prevent.
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, 2007.