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Division of Youth and Family Services v. S.W


June 5, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Nos. FN-04-0423-10 and FN-04-329-10.

Per curiam.



Submitted May 1, 2012 -

Before Judges Messano, Espinosa and Kennedy.

S.W., the father of eleven-year-old H.W. (Harry), three-year-old C.W. (Charles) and three-month-old Z.W. (Zeb), appeals from a June 20, 2010 order of the Family Part finding that he had abused and neglected his children by smoking marijuana and taking cocaine while the three children were under his care and supervision.*fn1 S.W. makes the following arguments on appeal.

I. This Court Has Plenary Authority to Review the Trial Court's Decision in this Matter.

II. The Camden County Trial Court Did Not Have Jurisdiction to Preside Over the Case Against [S.W.] Since His Children Were Residents of Gloucester County. (Not Raised Below.)

III. [S.W.]

Was Denied His Due Process Right to a Fair Hearing When the Court Made a Finding that He Abused or Neglected the Children Based upon DYFS'S Documentary Submission Alone. (Not Raised Below.)

IV. The Court Erred in Finding that [S.W.] Placed Each of His Three Children at Substantial Risk of Harm.

For reasons set forth in this opinion, we reject S.W.'s arguments and affirm the order of the Family Part.


S.W. is married to C.M.W., who on January 7, 2010, gave birth to Zeb. Both C.M.W. and Zeb tested positive at that time for "cocaine and opiates (heroin)" and consequently a referral was made to the Division of Youth and Family Services (DYFS or the Division). The Division contacted S.W. who explained that he and C.M.W. were married, but separated, and that there was an altercation and physical confrontation on New Year's Eve and New Year's Day resulting in C.M.W. leaving S.W.'s home. He admitted smoking marijuana on New Year's Eve and agreed to participate in out-patient services. C.M.W. admitted using cocaine and heroin and was on parole, having been previously convicted of a drug offense.

On January 28, 2010, the Division filed a verified complaint and an order to show cause under Title Nine (N.J.S.A. 9:6-8.21 to -8.73) seeking care, custody and supervision of Zeb based on allegations of abuse and neglect by S.W. and C.M.W. Following a hearing, at which both S.W. and C.M.W. appeared with counsel, the court entered an order placing Zeb in the care and supervision of the Division and permitting S.W. to take physical custody of Zeb upon the child's release from the hospital.

On the return date of the order to show cause, the trial judge ordered that Zeb would remain under the care and supervision of DYFS and that custody of the child would be continued with S.W. The court also ordered a psychological evaluation and substance abuse treatment for C.M.W., and a psychological evaluation and a substance abuse evaluation for S.W. Zeb, who had been released from the hospital, was still "medically fragile" due to prenatal drug exposure and was on a heart monitor.

S.W., at this time, also had custody of eleven-year-old Harry, his child from a prior relationship, and joint custody of three-year-old Charles with that child's mother, R.H. The children were living with S.W. as of March and April 2010. On March 31, 2010, S.W. underwent a drug screen which was reported as positive for cocaine by the Redwood Toxicology Laboratory. S.W. underwent a second random drug screen on April 5, 2010, which was also positive for cocaine. Further, in advance of a third random drug screening on April 12, 2010, S.W. conceded that he had smoked marijuana and that the screen would thus be positive for marijuana.

Consequently, on April 12, 2010, the Division undertook an emergency Dodd removal of Zeb and Harry.*fn2 Charles was in the custody of his mother at this time and Harry was placed with his grandmother. Zeb was placed at a DYFS-approved home equipped to address his medical needs.

Two days later, on April 14, 2010, the Division filed a verified complaint and an order to show cause under Title Nine seeking care, custody and supervision of Harry and Charles. The verified complaint alleged that "[d]ue to [S.W.'s] positive test for drugs, his admitted continued use of drugs, as well as his responsibility for the care of [Zeb] a medically fragile infant and two other minor children, the children require the immediate protection, care and supervision of the Division." An amended verified complaint was also filed as to Zeb. That day, the court entered the order to show cause placing Harry under the care, custody and supervision of the Division and placing Charles under the "care and supervision only" of the Division. The court further ordered Zeb to be placed under the care, custody and supervision of the Division. Both orders recited that S.W. had "substance abuse issues" which placed the children "at risk." S.W. was present in court with counsel at the time these findings were made and his counsel, in fact, cross-examined the Division investigator who testified.

On the return date of the order to show cause, S.W. appeared with his counsel and the court continued the prior orders and scheduled the next hearing date of June 21, 2010. On that date, C.M.W. and her counsel appeared and C.M.W. waived her right to a factfinding hearing and conceded abuse and neglect as to Zeb.*fn3

S.W. and his counsel were also present on that date and the Deputy Attorney General moved into evidence, without objection, the following:

P-1 - DYFS screening summary dated January 8, 2010;

P-2 - DYFS screening summary dated March 31, 2010;

P-3 - DYFS screening summary dated April 12, 2010;

P-4 - DYFS update (substance abuse initiative) containing toxicological reports from Redwood Toxicology Laboratory of drug screen samples obtained from S.W. on March 31, 2010 and April 5, 2010;

P-5 - Medical records of Underwood Memorial Hospital with respect to Zeb; and P-6 - Division Court Reports.

The Division then rested and S.W.'s counsel stated, "[w]e are not going to present evidence, however, I do have arguments as to the allegations." Counsel then argued that DYFS had not proved a "causal connection between S.W.'s drug use and [any] imminent risk of harm [to the children]." The trial judge thereafter stated she would render the decision on June 29, 2010.

On June 29, 2010, the trial judge set forth on the record her findings of fact and conclusions of law. The trial judge found that Zeb was born on January 7, 2010, and that he tested positive for cocaine and opiates at that time. She explained that at the January 28, 2010 hearing, S.W. produced a "clean urine to this court" and, consequently, Zeb was placed in his care. She then noted that she had an opportunity to review P-1 through P-6 and stated, this court is satisfied that the minor children are abused and neglected within the meaning of the statute, and this court makes . . . this finding by a preponderance of the believable evidence.

The trial judge found that S.W. admitted smoking marijuana on New Year's Eve and New Year's Day and that the Division caseworker explained to him DYFS's concerns about substance abuse. S.W. at that time indicated he had "made a mistake on New Year's" and would not repeat it. Nonetheless, S.W. had tested positive for cocaine on March 31, 2010 and April 5, 2010, and on April 12, 2010, conceded he would test positive for marijuana, having admitted to smoking marijuana that weekend.

The trial judge thereafter found that Zeb tested positive for drugs at birth and was on an apnea monitor; was a high-risk baby; and was placed in the care of a parent who thereafter "while the primary caretaker of that child, [chose] to use cocaine and marijuana." She also found that S.W. was the caretaker of all three children at the time he tested positive for cocaine and admitted to smoking marijuana, and that "there is no testimony at all that would lead this court to believe that these children were in the care of anybody other than [S.W.]" at that time.

The trial judge further found,

[Zeb] was in his legal custody. [Zeb], who had been placed on an apnea monitor, [Zeb] who had problems, medical problems, was in his care, and there is no indication from any of the evidence that's presented before the court that anybody other than [S.W.] cared for him or his other children that were with him at home.

She concluded,

Because there is no indication that anybody other than the legal custodian had these children and because he tested positive for cocaine twice and for marijuana twice and because at least [Zeb] was a medically fragile child I am satisfied that [S.W.] also has abused or neglected his children . . . . I'm making my finding by a preponderance of the believable evidence.

At the conclusion of the hearing, counsel for S.W. requested, and the trial court ordered, a referral to Robin's Nest for therapeutic visitation with the goal of returning the children to S.W.

The court entered an order on June 29, 2010, determining by a preponderance of the evidence that S.W. had abused and neglected his children and that he had "tested positive for cocaine and marijuana on March 31, 2010 and April 5, 2010 and was the primary caretaker of the children" at that time. The order recited that S.W. placed the children at "significant risk of harm" and the court found no indication that anyone other than S.W. cared for the children during that period.

On October 14, 2010, the court noted that S.W. had completed out-patient treatment at Sodat, including six months of random drug tests that yielded negative results. Zeb and Harry were returned to S.W.'s custody by court order on that date. Litigation was terminated by order of March 14, 2011, making this matter ripe for appeal. See N.J. Div. of Youth & Family Servs. v. D.L.A., 357 N.J. Super. 155, 164-65 (App. Div. 2003).


S.W. initially contends that the Family Part in Camden County did not have jurisdiction to preside over the case because the children resided with S.W. in Gloucester County. We find this contention to be without sufficient merit to warrant an extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

We add only that at the time of the birth of Zeb, C.M.W. resided in Camden County and thus it was appropriate to select Camden County as the venue of the action. See R. 5:2-1(b)(1). Further, the Administrative Office of the Courts (AOC) has issued a protocol that the transfer of children-in-court cases to another county should be "discouraged and limited to circumstances in which the transfer of venue is in . . . best interests of the child." Protocol for the Intercounty Transfer of CIC Cases, (CIC Case Processing Manual 2011). Here, there is no showing whatsoever that the best interests of Zeb or his siblings required a transfer of venue. Moreover, there was never an application by S.W.'s counsel for a transfer of venue to Gloucester County. See R. 5:2-2 and R. 4:3-3(b). Finally, there is no showing that S.W. has been prejudiced by the determination made in the Family Part in Camden County.

Next, S.W. contends he was denied due process because the Division relied only on documentary evidence and not oral testimony. This contention is without merit.

Contrary to S.W.'s arguments, testimonial evidence is not a prerequisite for the entry of a finding of abuse and neglect at a factfinding hearing. What is required is that the court's determination be grounded upon competent and reliable evidence. N.J. Div. of Youth & Family Servs. v. V.J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).

The admissibility of evidence in Title Nine actions is governed by statute, court rule and, of course, the rules of evidence. N.J.S.A. 9:6-8.46(b) provides that only "competent, material and relevant evidence" may be admitted in such actions and that a finding of abuse and neglect must be proved by a "preponderance of evidence." Further, N.J.S.A. 9:6-8.46(a)(3) states in pertinent part that evidence may include "any writing, record or photograph . . . made as a memorandum or record . . . relating to a child in an abuse and neglect proceeding," provided it meets the admissibility requirements set forth in N.J.S.A. 9:6-8.46(a)(3). P.W.R., supra, 205 N.J. at 32. DYFS may submit into evidence reports by its personnel and professional consultants, pursuant to N.J.R.E. 803(c)(6) and (801)(d). Ibid.

Further, R. 5:12-4(d) permits the Division to submit into evidence pursuant to N.J.R.E. 803(c)(6) and (801)(d), "reports by staff personnel and professional consultants" and states that "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence subject to rebuttal." Here, the Division properly relied upon evidence in the records. Defendant did not challenge the admission of these records into evidence. Not only did S.W.'s counsel not challenge the admission of the records in evidence, he also elected not to submit any evidence on behalf of S.W. in opposition thereto.

A party is barred from arguing on appeal that a decision was a product of error where that very party acquiesced to the proposition now alleged as error. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010); Brett v. American Recreation, 144 N.J. 479, 503 (1996). Here, had S.W. objected to specific documents at trial and had the trial court sustained counsel's objection, the Division would have had the opportunity to seek to admit the documents, or the information therein, in the manner consistent with the rules of evidence. Under these circumstances, we find no plain error. R. 2:10-2.

Finally, S.W. challenges the trial judge's findings of fact and conclusions of law. Before considering this argument, we state some general principles that guide our analysis.

In a Title Nine case, the court must decide at the factfinding hearing the crucial issue of "whether the child is an abused or neglected child." N.J.S.A. 9:6-8.44. The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of competent, material and relevant evidence." P.W.R., supra, 205 N.J. at 32.

Title Nine defines an "abused or neglected" child as

[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, . . .; 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).]

The Supreme Court has explained that a parent's failure to exercise a minimum degree of care requires more than negligence, but not intentional conduct:

The phrase "minimum degree of care" denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase "minimum degree of care" refers to conduct that is grossly negligent, but not necessarily intentional. [Dep't of Children and Families, Div. of Youth and Family Servs. v. T.B., 207 N.J. 294, 305 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 177-78 (1999)).]

Conduct is considered willful or wanton if done with the knowledge that an injury is likely to, or probably will, result. G.S., supra, 157 N.J. at 178. "Essentially, the concept of willful and wanton misconduct implies that a person is acting with reckless disregard for the safety of others." Id. at 179.

Our review of a trial court's decision that a parent has abused or neglected a child is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Family courts deciding the profound issues involving the welfare of children have special expertise and "appellate courts should accord deference to family court factfinding." Id. at 413.

We will not disturb a Family Part judge's findings of fact and conclusions of law unless "convinced that they are so manifestly unsupported by, or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412 (internal quotation marks and citations omitted). Nevertheless, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). With these principles in mind, we turn to S.W.'s argument that the trial judge's findings were not supported by substantial credible evidence.

Here, it is uncontested that the three minor children, ages eleven years, three years and three months, were in the care and supervision of S.W. The youngest, Zeb, tested positive for cocaine and heroin at birth and was deemed medically fragile as a consequence of that drug exposure. He was on a heart monitor and had special medical needs. Knowing this, and knowing that the court had entrusted him with custody of Zeb and that he also had custody of his other minor children, S.W. nonetheless continued to abuse drugs on separate occasions while supervising the care of these young children.

Neglect cases are fact-sensitive. P.W.R., supra, 205 N.J. at 33. Cases in which only a risk of harm is created by an act or omission of the parent are particularly fact-sensitive. Here, repeated drug abuse while having the custody of three small children, one of whom is medically fragile, "recklessly creates a risk of serious injury to the child." G.S., supra, 157 N.J. at 181.

The trial judge's findings of fact and conclusions of law are supported by substantial credible evidence in the record.


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