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Division of Youth and Family Services v. R.E.G.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 30, 2007

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
R.E.G., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF: D.N.G., L.P.G. AND C.M.G. MINORS.
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
L.S.B., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF: D.N.G., L.P.G. AND C.M.G. MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Monmouth County, Docket No. FG-13-52-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 16, 2007

Before Judges Cuff and Baxter.

In this appeal, we review two orders terminating the parental rights of L.S.B. and R.E.G. to their three children: D.N.G., L.P.G., and C.M.G.*fn1 Following a trial over six days in March and April 2006, Judge Peer issued a written opinion on August 29, 2006, in which he found that plaintiff Division of Youth and Family Services (DYFS) had satisfied by clear and convincing evidence the statutory criteria for termination of parental rights.

On appeal, both parents argue that DYFS failed to carry its burden of proof by clear and convincing evidence. L.S.B. also contends that the trial judge erred when he denied her motion for a mistrial when a certified deaf interpreter (CDI) was not supplied throughout the trial.

We have reviewed the voluminous record in its entirety and are satisfied that DYFS carried its substantial burden. We affirm substantially for the reasons expressed in Judge Peer's comprehensive and thorough August 29, 2006 opinion.

We also reject defendant L.S.B.'s contention that she was denied due process because she was not provided a CDI until after the third day of trial. Both defendants are hearing-impaired. L.S.B. contends the trial judge erred when he denied a motion for mistrial.

Two sign interpreters were present on the second and third days of trial. Although the transcript of March 13, 2006, the first day of trial, does not identify sign interpreters, L.S.B. does not contend that sign interpreters were not present on that day. Indeed, colloquy between the judge and counsel strongly suggests that sign interpreters were present on each day of trial.

At the commencement of the third day of trial, the judge discussed the need for a CDI for each defendant. From the discussion, it appears that the issue was first raised after lunch on the second trial day. On the morning of March 16, 2006, the third trial day, the Deputy Attorney General (DAG) reported that both sign interpreters had informed counsel for both defendants that they felt defendants needed CDIs. The DAG, joined by the Law Guardian, requested a mistrial.

The judge responded that defendants' attorneys had informed him that their clients understood the proceedings and further informed the court "that they did not believe that their clients were prejudiced by any of the proceedings to date because of the lack of the certified deaf interpreter." Defendant R.E.G.'s attorney argued, however, that he did believe that a CDI was required when each defendant testified, but a CDI is "not needed in the testimony of other witnesses. . . ." Although he had previously advised the court that a CDI was not required, defendant L.S.B.'s attorney joined the motion for a mistrial when the judge criticized counsel for not drawing his attention to the need for CDIs prior to the commencement of trial.

Trial was adjourned to 1:30 p.m. Prior to the adjournment, counsel for each defendant questioned their clients about their understanding of the proceedings up to that time. L.S.B. testified that she understood everything that had occurred at trial but at times she did not fully understand every exchange with her attorney and a video that was shown. R.E.G. testified that he understood virtually everything that had transpired.

Judge Peer denied the DAG's renewed motion for a mistrial. He said: "I observed the persons yesterday. They were communicating with each other, they were commenting on the video. The video is the simplest part of any testimony. It was straightforward. They were their children and they were asking questions." The judge also expressed his dismay that the issue had not been raised prior to the morning of the third day of trial. When trial resumed, a CDI was present.

A mistrial is an extraordinary remedy granted only when denial would result in manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). The judge did not err when he denied the motion for a mistrial.

The Administrative Office of the Courts has promulgated guidelines for proceedings that involve hearing impaired persons. Those guidelines were in place throughout the pre-trial and trial period of this matter. Interpreters were available at each court session. We agree with Judge Peer that all counsel should have anticipated and prepared for the need for a CDI well before trial. Moreover, any concerns about defendants' comprehension of the proceedings should have been raised promptly by the interpreters. More importantly, both defendants informed Judge Peer that they had comprehended most of the proceedings and a CDI was available when defendants testified. Under these unique circumstances, we are satisfied that defendants received all the process that was their due.

We also note that the mistrial application was initially made by DYFS and renewed by DYFS. Defendants initially rejected the need for a mistrial and counsel for L.S.B. joined the motion only after the judge criticized the belated introduction of this issue. To contest the denial of the motion at this time teeters on the verge of seeking to exploit on appeal a course of action urged upon the judge at trial. See State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974). We also note that R.E.G. has not presented any issue regarding the presence or absence of a CDI. It is not for L.S.B. to raise an issue concerning R.E.G.'s particularized need for such an interpreter.

Affirmed.


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