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Superior Court of New Jersey, Appellate Division.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. I.H., Defendant-Appellant. IN RE: K.H., K.H. AND K.H., minors.

DOCKET NO. A-2955-09T1

    Decided: November 18, 2010

Before Judges Rodríguez and LeWinn.Howard Danzig, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney;  Mr. Danzig, of counsel and on the brief). Lisa J. Godfrey, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney;  Lewis A. Scheindlin, Assistant Attorney General, of counsel;  Sharon L. Piccioni, Deputy Attorney General, on the brief). Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minors (Yvonne Smith Segars, Public Defender, Law Guardian, attorney;  Mr. Devlin, on the brief).

Defendant is the birth mother of three children:  Ken, born in 1996;  Kal, born in 1999;  and Kelly, born in 2004.1  On June 2, 2009, the Division of Youth and Family Services (DYFS) filed a complaint against defendant and her paramour, D.W., alleging that they had abused and neglected the children.   Following a series of case management conferences between June and August 2009, the judge held a dispositional hearing on September 23, 2009, finding that defendant had abused or neglected the children through the use of “excessive corporal punishment as it relates specifically to [Ken] and as it relates to the possibility of that excessive corporal punishment for both [Kal and Kelly].”

On December 17, 2009, defendant filed a motion for entry of a suspended judgment pursuant to N.J.S.A. 9:6-8.52. Following oral argument on January 11, 2010, the trial judge denied her motion, and entered an order to that effect.   Defendant now appeals from the denial of her motion for a suspended judgment.2

The pertinent factual background, adduced from the pleadings and the testimony at the various hearings below, may be summarized as follows.

DYFS's involvement in June 2009 was triggered by defendant's call to the agency on May 29, 2009, requesting that Ken be removed from her home due to behavioral problems.   DYFS caseworker Lynne Wesley responded to defendant's home;  during Wesley's visit, Ken told her that defendant and D.W. beat him with an extension cord.   Ken told Wesley that he did not want to remain in defendant's home because of D.W.'s physical abuse.   Wesley also interviewed Kal who stated that D.W. had hit him with an extension cord.

Wesley reported the abuse to the Pennsauken Police Department on the same day as her visit.   Defendant was subsequently arrested and charged with aggravated assault and endangering the welfare of a child.   DYFS removed all three children from defendant's home.

DYFS thereafter filed its abuse and neglect complaint on June 2, 2009.   According to the complaint, defendant had prior involvement with the agency on June 4, 2008, when DYFS “substantiated [defendant] for physical abuse against [Ken].” On that occasion, Ken “disclosed that [defendant] had punched him several times with her fists[,] ․ [and] that his mother gets really angry at times, which scares him.”   At that time, DYFS implemented a “safety plan,” and defendant “was also referred for parenting classes and in-home counseling.”

Ken “is diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and classified as emotionally disturbed․”  He had been expelled from school due to his threatening behavior.   Defendant “denied that [D.W.] had physically abused her children,” but acknowledged that “sometimes she gets upset and had previously beaten her children with an extension cord out of anger.”

The trial judge granted DYFS's request to have defendant submit to a psychological evaluation, which was reviewed at the August 17, 2009 case management conference.   The evaluation “recommended ․ [an] appropriate psychotropic regimen for symptoms of depression and anxiety[,] ․ weekly psychological counseling, participat[ion] in parenting classes, anger management classes, and ․ [ninety] day reviews of [defendant's] progress in the recommended treatment planning.”   As of that hearing date, defendant had had her initial appointment for anger management classes and was scheduled to begin parenting classes within the month.

At the September 23, 2009 factfinding hearing, defendant declined to testify or stipulate to any facts because her criminal charges were pending.   DYFS caseworker Donna Dobson testified that defendant denied using an extension cord to discipline Ken, but “has in the past used a belt when it was necessary.”   Dobson stated that defendant was “in the process of doing anger management and parenting skills,” and acknowledged that she was “in compliance with her services.”

Ken was placed in the custody of his father.   Kal was placed in the custody of his maternal great aunt.   Kelly was placed in the custody of her paternal grandmother.

In support of her motion for a suspended judgment, defendant noted the numerous services she had sought, both independently and with DYFS's involvement.   She asserted that she had “shown remorse and ․ acknowledged the abusive/neglectful nature of her actions.”

In denying defendant's motion, the judge ruled:

The prior history indicates that, in fact, there's a history even that pre-dates the matter before the [c]ourt, and that's on June 4, 2008 where [defendant] was substantiated for physical abuse against [Ken].

Additionally, ․ this is a very serious offense, and, in fact, both [defendant] and [D.W.] are awaiting sentencing on this matter.

Their [sic] excuse for the abuse of the child was due to pure frustration, and I do not [sic] find that they are in complete compliance with services, but it does not negate the fact of the serious injury as previously caused.

The third prong is the remorse and acknowledgement of the abuse and the neglectful nature of the act.

This is a little more tricky to determine.   Normally, if somebody makes the [c]ourt determine pursuant to an actual contested fact-finding, I would automatically dismiss the request for a suspended judgment, but the reason why they couldn't be stipulated and [DYFS] was put to their proofs was because of the criminal matter ․ pending․

I don't recognize, though, that there is sufficient remorse, because it seems to me ․ that the defendants [sic] somehow continue to blame [Ken] for their [sic] inappropriate form of discipline.   And accordingly, I don't find that there's been remorse or sufficient acknowledgement of the abuseful (sic) and neglectful nature of the act.

And the fourth prong is the defendant's amenability to correction, including compliance with [c]ourt-ordered services, treatment and/or their [sic] efforts in rehabilitation, the relationship with the children, and I do find that the defendants [sic] are in compliance and they [sic] do seek to be rehabilitated, but that use of excessive corporeal [sic] punishment, as well as the analysis of the prior three fact[or]s, indicate that ․ I am not going to order a suspended judgment.

On appeal, defendant raises the following contentions for our consideration:




Having reviewed these contentions in light of the record and the controlling legal principles, we find them to be without merit, and affirm.

“We have a strictly limited standard of review from the fact-findings of the Family Part judge.”  N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.Super. 551, 577 (App.Div.2010);  see also, Cesare v. Cesare, 154 N.J. 394, 413 (1998) (“[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding”).  “Thus, [f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.   It is improper for us to engage in an independent assessment of the evidence as if [we] were the court of first instance.”  N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J.Super. 427, 433 (App.Div.2002) (internal quotations omitted).   However, “the trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles.”  Id. at 434 (citing Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Here, the trial judge based her decision upon the standards articulated in N.J. Div. of Youth & Family Servs. v. C.R., 387 N.J.Super.   363 (Ch. Div.2006).   There, noting that a “suspended judgment is similar to Pretrial Intervention (“PTI”)[ 3 ] in criminal dispositions,” id. at 373, the Family Part judge concluded that “an examination of the PTI factors may prove helpful” in “determin[ing] whether suspended judgment is appropriate in the first place.”  Ibid. The judge then extracted from the PTI criteria

the following four factors [which] should be considered before granting a defendant a suspended judgment in abuse and neglect cases:

(1) defendant's prior history;

(2) seriousness of the offense;

(3) defendant's remorse and acknowledgement of the abusive/ neglectful nature of his or her act;  and

(4) defendant's amenability to correction, including compliance with court-ordered services, treatment, and his or her efforts in rehabilitating the relationship with the child[ren].

[Id. at 375]

Although defendant's first point appears to address her fulfillment of these four factors, in fact defendant merely states in cursory fashion that she “has met each and every one of the foregoing requirements,” and focuses the balance of her argument under that point on the inclusion of her name in the Central Registry of reported child abusers maintained by DYFS pursuant to N.J.S.A. 9:6-8.11. We discuss this issue further below.

Suffice it to say, we are satisfied that the trial judge's findings with respect to defendant's failure to satisfy all of the factors in C.R., supra, are supported by the record.   First, defendant has a “prior history” with DYFS, from June 4, 2008.   Although “a prior history with DYFS without an adjudication of abuse and neglect will not result in automatic disqualification[,] ․ the court needs to examine the particular circumstances of the prior history.”   C.R., supra,

387 N.J.Super. at 376.   Here, defendant was “substantiated” in 2008 for physical abuse against Ken, the same child who was the focus of the abuse and neglect proceedings initiated in May 2009.

With respect to the second factor, as the trial judge found, the abuse of Ken and Kal was very serious;  defendant's physical abuse of Ken resulted in her arrest and indictment on criminal charges.  “[W]here the underlying incident amounts to a criminal offense ․ the court should deny the suspended judgment application.”  Ibid.

Regarding the third factor, the trial judge found that defendant essentially blamed Ken for her conduct, namely that because of his ADHD diagnosis and erratic emotional behavior, defendant believed he was out of control.  “If defendant ․ portrays ․ her actions as justified, this will weigh against a determination of suspended judgment.”  Ibid.

Finally, regarding the fourth factor, it is essentially undisputed that defendant has complied with all services required by DYFS. However, we concur with the Law Guardian that it cannot be “reasonably found that [defendant's] relationship with the children has been rehabilitated since they continued to be placed outside of her care at the time the litigation was terminated.”

A suspended judgment is one of six statutorily authorized dispositions following a factfinding hearing at which a defendant's abuse or neglect is substantiated.   See N.J.S.A. 9:6-8.51(a).   That particular disposition is further addressed by statute, namely N.J.S.A. 9:6-8.52, which provides:

a.  The court shall define permissible terms and conditions of a suspended judgment.   These terms and conditions shall relate to the acts of commission or omission of the parent․

b. The maximum duration of any term or condition of a suspended judgment shall be 1 year, unless the court finds at the conclusion of the period, upon a hearing, that exceptional circumstances required an extension thereof for an additional year.

We recently had occasion to review these statutes as well as the Family Part's interpretation and analysis in C.R., supra, in N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J.Super.   467 (App.Div.), certif. denied, 203 N.J. 437 (2010).   There, we noted the legislative “two-step hearing process for adjudicating contested cases of abuse or neglect,” observing that the “first step is the ‘fact-finding hearing,’ which is held to ‘determine whether the child is an abused or neglected child,’ ” pursuant to N.J.S.A. 9:6-8.44. Id. at 474.

Once “abuse or neglect is established as a result of the fact-finding hearing, the second step is the ‘dispositional hearing,’ ” pursuant to N.J.S.A. 9:6-8.45. Id. at 475.  “Once the dispositional hearing has been completed, N.J.S.A. 9:6-8.51(a) requires the court to enter an order adopting one or more of six dispositional options, which are not all mutually exclusive.”   Ibid.

With respect to the suspended judgment option, we noted that “[t]he statute is silent ․ as to what happens at the end of a successful period of suspended judgment,” id. at 476, and took issue with the trial judge's view in C.R., supra, “that successful completion of the period of suspension, like successful completion of PTI, would result in the return of the children to the parent ․, the dismissal of the complaint, and what would amount to the expungement of the earlier finding of abuse or neglect.”  Id. at 477 (citing C.R., supra, 387 N.J.Super. at 374).

We interpreted the “statutory scheme” as “suggest[ing] that a suspended judgment was intended as an interim measure with the ultimate goal of maintaining the family unit.”  Id. at 478.   In any event, we noted that “[b]y the time the judge holds a dispositional hearing, the first step, a finding of abuse or neglect, has necessarily taken place.”  Ibid.

We expressly rejected the defendant's argument in that case “that she should have been allowed to have a suspended judgment because it would have resulted in the expungement of the underlying finding of child neglect,” noting that “[t]here is simply no language in N.J.S.A. 9:6-8.51(a)(1), or anywhere else in Title Nine, stating, or even suggesting, that successful completion of a period of suspended judgment leads to such expungement․”  Id. a 480-81.   We noted further that “the statutory scheme contains no explicit provision for expunging findings of child abuse or neglect, although we have ordered their removal in connection with a reversal of the finding itself.”  Id. at 481 (citing N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J.Super. 159, 174 (App.Div.2009)).

Defendant urges us to disregard our decision in R.M. in resolving this case.   Defendant contends that the decision is “defective in that it relied on the reasoning of ․ New York statutes on suspended judgment, in which a defendant must have a judgment of abuse or neglect suspended in order to halt the case from proceeding to termination of parental rights.”

We are satisfied, however, that our decision in R.M. is based upon a proper analysis of the controlling statutes.   Irrespective of what New York law may provide, Title Nine does not contemplate the result defendant seeks here, either explicitly or implicitly.   This argument is without sufficient merit to warrant further discussion.  R. 2:11-3(e)(1)(E).

Finally, defendant's contention that she has been “stigmatized” by the entry of her name in the Central Registry is of no moment.   As we noted in R.M., “[w]e are cognizant of the implications of a finding of child abuse or neglect and its accessibility to certain employers through the central registry, which is why we have repeatedly ensured that [DYFS] provides due process when such findings are made.”  R.M., supra, 411 N.J.Super. at 481.   Before an individual's name may be placed in the Central Registry, DYFS is required “to evaluate the available information to determine whether [an] allegation is ‘substantiated,’ ‘not substantiated’ or ‘unfounded.’ ”  N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J.Super. 390, 398 (App.Div.1998).   Only when the abuse or neglect allegation is “unfounded” is DYFS authorized to expunge the record from the Central Registry.  N.J.S.A. 9:6-8.40a;  N.J.A.C. 10:129-6.1.

We reject as completely unfounded defendant's contention that the impact of our decision in R.M., supra, renders N.J.S.A. 9:6-8.52(a) “devoid of meaning.”   Rather, defendant seeks to impose upon that statute a consequence neither provided nor even contemplated by the clear statutory language.



FN1. We use fictitious names to identify the children..  FN1. We use fictitious names to identify the children.

FN2. Defendant's notice of appeal states that she is also appealing the order terminating litigation, which was also entered on January 11, 2010;  however, she does not address that order in her brief..  FN2. Defendant's notice of appeal states that she is also appealing the order terminating litigation, which was also entered on January 11, 2010;  however, she does not address that order in her brief.

FN3. See N.J.S.A. 2C:43-12..  FN3. See N.J.S.A. 2C:43-12.


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