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New Jersey Division of Youth and Family Services v. M.C.

March 20, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
M.C., DEFENDANT-APPELLANT.
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.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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