NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
M.S., Defendant-Appellant. IN THE MATTER OF J.S. and J.S., Minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 20, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-135-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Carol Willner, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Schiendlin, Assistant Attorney General, of counsel; Renard L. Scott, Deputy Attorney General, on the brief).
Joseph E. Krakora, Attorney General, Law Guardian, attorney for minors (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).
Before Judges Graves and Espinosa.
Defendant M.S. is the father of two sons: J.S. (fictitiously James), born June 1, 2004, now nine years old; and J.S. (fictitiously Joseph), born July 5, 2006, now six years old. M.S. appeals from an order entered on February 3, 2011, finding he abused or neglected James. The Law Guardian supports the trial court's decision. For the reasons that follow, we affirm.
The Division of Youth and Family Services (DYFS or the Division) first became involved with this family on January 15, 2007. At that time, the West Deptford Police Department reported there was a dispute between M.S. and his wife, X.S. When the police arrived at the home, they found Joseph, then five months old, alone. It is not clear from the record before us what action, if any, was taken by the Division at that time.
On September 3, 2008, the Division received another referral stating M.S. and X.S. had "domestic violence, alcoholism and anger management issues." The referral indicated M.S. refused to attend inpatient or outpatient alcohol rehabilitation programs, and when X.S. "goes to the store, she leaves the children home with [M.S.], while he is passed out."
On September 4, 2008, a Division caseworker went to the home of M.S. and X.S. and spoke with them about the referral. Upon entering the home, James immediately told the caseworker "my father is drunk, " and the caseworker observed that M.S. slurred his words and smelled of alcohol. When the caseworker asked M.S. why he was unwilling to attend the rehabilitation programs, M.S. "responded by shrugging his shoulders." The caseworker advised M.S. that the Division would require him to voluntarily complete a substance abuse evaluation on Friday, September 5, 2008, and to follow through with the recommended treatment or the Division "would litigate the case, " and he would be court ordered to comply. The caseworker also implemented a "safety plan" pending the results of the evaluation. Pursuant to the safety plan, the parents agreed M.S. would not have any unsupervised contact with the children until the evaluation was completed and he received any recommended treatment.
On September 5, 2008, the caseworker was advised M.S. failed to attend the substance abuse evaluation. In addition, the caseworker received a telephone call from X.S. stating she was taking classes at Gloucester County College on Monday, Tuesday, and Wednesday, and "she would have no choice but to leave the children with [M.S.] on Monday if no babysitting services were available." The caseworker questioned X.S. as to whether M.S. would pass out from drinking, and X.S. confirmed he would. But she claimed he only passed out "when she [was] present in the home."
That same day, the Division initiated an emergency removal of the children pursuant to the Dodd Act. The police were present to provide any necessary assistance. During the course of the emergency removal, M.S. returned ...