NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5358-11T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

M.S.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF

J.S. and J.S.,

Minors.

_________________________________________________________

June 11, 2013

Submitted May 20, 2013 Decided

Before Judges Graves and Espinosa.

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).

PER CURIAM

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.2 The police were present to provide any necessary assistance. During the course of the emergency removal, M.S. returned home in his car and was arrested for driving while intoxicated.

On September 9, 2008, the Division filed for the custody, care and supervision of the children. According to the complaint, X.S. expressed "concerns regarding [M.S.] caring for the children" because of his problems with alcohol. In addition, M.S. admitted "he had a drinking problem." On October 3, 2008, after M.S. had enrolled in a substance abuse treatment program, the children were returned to the custody of X.S. However, the case remained open for services.

When a caseworker visited the family residence on February 24, 2010, she found M.S. intoxicated while caring for James, who was five years old. On March 2, 2010, the Division filed a verified complaint for care and supervision of James and Joseph. The complaint alleged "[M.S.] was continuing to abuse alcohol and, therefore, was not a proper caregiver for the children." The court granted the Division's application on March 15, 2010.

A fact-finding hearing was held on January 31, 2011. Julia Vernum, a caseworker for the Division, testified that when she arrived at the house at approximately 3:30 p.m. on February 24, 2010, M.S.'s speech and facial expressions were "different than usual," and he appeared "to be under the influence." M.S. denied drinking that day, but when Vernum told him a police officer would be coming to the house, he admitted he had been drinking and said he "drank two to three liters of vodka." In addition, the police officer reported: "It was obvious that [M.S.] had been drinking and he appeared to be intoxicated. [His] speech was slurred and interrupted."

X.S. arrived home at about 4:00 p.m. She told Vernum that she brought James home "from school at 11:30 and fed him lunch," then left at about 2:00 p.m. X.S. testified that M.S. "did not seem intoxicated" when she left the house. Nevertheless, X.S. agreed she would move out of the house with the children, and she would not use M.S. as a caregiver for the children. Vernum also interviewed James privately. He told her that sometimes "his parents kick and punch each other and that sometimes he was scared."

On February 25, 2010, a caseworker interviewed M.S., who stated he drank approximately one pint of vodka between 11:20 a.m. and 3:30 p.m. the previous day. According to M.S., "he wasn't drunk or buzzed in anyway" because of his "long history of alcohol abuse."

At the fact-finding hearing, M.S. testified he was home alone with James, watching a movie while James played on the computer "within arm's length." M.S. further testified he "misspoke [his] units of measure" to Vernum and actually consumed only two ounces of vodka. When asked by the court if he believed he was an alcoholic, M.S. responded, "I believe I have abused it in the past and I know, I've been through the courses, alcohol is bad around myself and my wife and the kids. So, you know, it's an issue."

At the conclusion of the fact-finding hearing, the court noted the "only undisputed fact is that [M.S.] had something to drink that afternoon of [February 24, 2010,] sometime before 3:30 p.m." The court found the situation was "very similar to leaving a five year old alone. Nothing happened to
[James] . . . but all kinds of things can happen to five year olds, that s why . . . you can't leave a child that age alone in a house." The court found that M.S. failed to exercise a minimum degree of care and placed James at a substantial risk of harm by a preponderance of the evidence:

[T]his is a close case, but one in which I'm completely certain of my decision . . . . I say close because if there wasn't . . . prior DYFS involvement and prior treatment, I don't know that I could find this was a risk of harm recklessly ignored, but in this case that s what we have . . . . There was a problem and he knew it, and that s my finding.

The order entered by the court required M.S. to attend a substance abuse evaluation and submit to urine screens two or three times per week. After several compliance hearings, the litigation was dismissed on May 10, 2012. Among other things, the final order limited M.S.'s parenting time to supervised visitation with no overnight visits. Legal and physical custody of James and Joseph remained with X.S.

M.S. presents two arguments on appeal. First, "the Division failed to meet its burden of proof to show by preponderance of the evidence" that James was harmed, or at a substantial risk of harm. Second, "the court erred in finding neglect where the facts do not support the absence of a minimum standard of care."

Title Nine controls the adjudication of abuse and neglect cases. N.J.S.A. 9:6-8.21 to -8.73. The primary concern of Title Nine "is the protection of children, not the culpability of parental conduct." G.S. v. Dep't of Human Servs., 157 N.J. 161, 177 (1999). Pursuant to N.J.S.A. 9:6-8.21(c)(4)(b), an abused or neglected child means:

[A] child less than 18 years of age 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 . . . 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.

The Division must prove the act of abuse or neglect by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b).

Where only a risk of harm is alleged, the court must focus on whether the parent failed to exercise "a minimum degree of care." Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 307 (2011). "[A] parent fails to exercise a minimum degree of care where a parent knows the dangers inherent to a particular situation." N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011) (citing G.S., supra, 157 N.J. at 181-82). "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation." G.S., supra, 157 N.J. at 181-82. When a parent acts in a "grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger. To the contrary, where a parent is merely negligent there is no warrant to infer that the child will be at future risk." T.B., supra, 207 N.J. at 307. "Courts need not wait to act until a child is actually irreparably impaired" to find neglect. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (alteration in original) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). We will only reverse if the findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

In the present matter, there is substantial credible evidence to support the trial court's determination that M.S. was aware of the potential risks and dangers to his children when his intoxication impaired his ability to adequately supervise and care for them. Moreover, based on the Division's proofs, it is clear that M.S. was intoxicated while caring for James on February 24, 2010, and recklessly ignored the risks of harm to his well-being. As Vernum testified, in the event of an emergency, M.S. would have been unable to function "as he normally would."

1 Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 The Dodd Act, N.J.S.A. 9:6-8.21 to -8.73, provides for emergency removals without a court order or parental consent where the child's "life, safety or health" is in imminent danger." N.J.S.A. 9:6-8.29.