On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Nos. FN-04-241-09, FG-04-103-11 and FG-04-177-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2013
Before Judges Reisner, Yannotti, and Harris.
Defendant Walter T., Jr. (Walter)*fn1 filed three appeals seeking review and reversal of the following determinations of the Family Part: (1) the December 22, 2009 order finding that Walter abused or neglected his three children Walter III (eleven years old), James (ten years old), and Amy (five years old);*fn2 (2) the May 26, 2011 order terminating Walter's parental rights to Amy; and (3) the September 28, 2011 order terminating Walter's parental rights to Walter III and James.*fn3 We consolidated the appeals, and now affirm each order in its entirety.
The New Jersey Division of Youth and Family Services (the Division)*fn4 became involved in the lives of Walter, Dorothy, and their children in 2004. Between then and 2008, the family was the subject of numerous referrals, mostly related to alleged domestic violence and substance abuse by the adults. In that same time period, Walter was convicted of several criminal offenses, served numerous short terms of incarceration, and was sentenced to probation for terms up to five years.
The Division maintained oversight and supervision over the family for several years. The children were living with Dorothy and their paternal grandparents in November 2008, when the Division conducted an emergency removal of the children due to Dorothy's substantiated substance abuse. Walter was not found suitable to take custody of his children at that time; instead, the children were placed with another relative. Unfortunately, that placement did not last, as the children were abandoned and had to be placed elsewhere. Several weeks later, the children were returned to Dorothy's care, but Walter pitched in when Dorothy disappeared for several weeks.
Throughout the ensuing months, things did not improve for the family. The Division received more referrals about Dorothy's and Walter's separate incidents of substance abuse in June, July, and August 2009. By the end of the summer, Walter III and James were placed with one resource family, and Amy was placed with another.
The Division commenced the present Title Nine*fn5 action in December 2008. The court held a factfinding hearing regarding abuse and neglect claims against Walter on December 22, 2009. Walter did not appear for the hearing until summations had already commenced. As part of its case in chief, the Division sought to enter into evidence several lengthy exhibits, which documented the Division's involvement with this family, including documentary evidence of Walter's criminal history and positive drug tests. After some discussion ensued, which resulted in one exhibit being amended to reflect an addition sought by Walter's attorney, the exhibits were admitted into evidence without objection. Walter's counsel indicated that his client had "authorized [him] to proceed with basically making the legal argument because of the -- we're going to stipulate to the positive drug test."
The Division then advised the court that it wished to rest its case based on the submission of the exhibits, although a caseworker was present for cross-examination if needed. Walter did not submit any additional evidence at the hearing.
Following a recess so the court could review the evidence and decisional law, Judge Deborah Silverman Katz found that the Division had proven by a preponderance of the evidence that Walter had abused or neglected his children. In her oral decision, Judge Silverman Katz stated:
From the facts deduced from the exhibits, this Court finds that [Walter] is a substance abuse user, has anger issues and criminal history related to that drug use.
Further, this Court finds [Walter's] drug use has occurred near or while caring for the children.
Pursuant to N.J.S.A. 9:6-8.50, [Walter's] continued drug use, at times while caring for his children, constitutes abuse of those children ...