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Division of Youth and Family Services v. S.W

June 5, 2012

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
S.W., DEFENDANT-APPELLANT, AND M.L. AND R.H., DEFENDANTS-RESPONDENTS.
IN THE MATTER OF C.W. AND H.W., MINORS. DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
S.W., DEFENDANT-APPELLANT, AND C.M.W., DEFENDANT-RESPONDENT.
IN THE MATTER OF Z.W., A MINOR.



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.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

I.

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 ...


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