On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FN-05-165-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Baxter.
This is an abuse and neglect case. C.P. is the biological mother of L.P., a twelve-year-old girl, and of Z.P., a fourteen-year-old boy. C.P. appeals from the October 26, 2006, order of the Family Part, which determined that C.P. had abused or neglected her children, by failing "to exercise a minimum degree of care in providing adequate housing[,] resulting in substantial risk of harm to the children," contrary to N.J.S.A. 9:6-8.21(c)(4)(a). C.P. also appeals from that part of the order, which entered a civil judgment of abuse or neglect against her, following the trial judge's denial of her request for suspension of the judgment pursuant to N.J.S.A. 9:6-8.51a and 9:6-8.52.*fn1 We affirm that part of the order determining abuse or neglect. We vacate that part of the order of October 26, 2006, which denied C.P.'s application for suspension of the judgment; and remand the matter to the trial court for further proceedings consistent with this opinion.
On June 28, 2006, following an investigation of C.P.'s residence, the New Jersey Division of Youth and Family Services (DYFS) removed C.P.'s children from her home, and placed them in a relative resource family home. On June 30, 2006, DYFS filed a complaint for custody, alleging that the two children were "abused and/or neglected," contending in part that the DYFS caseworkers had "observed the entire home to be in a deplorable condition." The complaint further alleged that "[t]he home was not fit for anyone to live in. Every single room was filthy." "[T]here was garbage all over the floors, clutter was everywhere, clothes were everywhere, food and dishes were all over the kitchen, spilled food was all over the refrigerator, and there was filth throughout the entire bathroom."
On July 12, 2006, in response to an order to show cause, C.P. appeared with her husband and the children's natural father, F.P.,*fn2 during which hearing the court ordered the continuation of the children in the care and custody of DYFS, and directed that both parents submit to psychological and substance abuse evaluation/treatment. On October 11, 2006, an order was entered, transferring legal custody of the children back to C.P. and F.P., and physical custody to C.P.; and directing that the "children shall be returned home by end of [the] week," subject to a favorable home evaluation. In addition, the trial court directed that both parents undergo psychological evaluations, random urine drug screens, and cooperate with Family Preservation Services.
On October 26, 2006, the trial court conducted a fact finding hearing. C.P. appeared with counsel, and F.P. was excused. Prior to the hearing, DYFS had provided C.P.'s counsel and the Law Guardian with an exhibit list. Neither defense counsel nor the Law Guardian objected to any of the proposed exhibits. The matter was submitted to the court with DYFS introducing its referral response report, together with the color photographs taken of C.P.'s residence that day. No objection was voiced by C.P. or the Law Guardian. No testimony was presented by the caseworkers, nor did C.P. testify or present any witnesses or exhibits.
After considering the referral response report and the photographs, the judge determined that DYFS had proven that C.P. had abused or neglected the children, pursuant to N.J.S.A. 9:6-8.21(c)(4)(a). Following a brief dispositional hearing during which the judge had denied C.P.'s motion seeking to suspend the judgment pursuant to N.J.S.A. 9:6-8.51a and 9:6-8.52, the judge directed that both parents continue compliance with substance abuse treatment and random urine drug screenings. On January 17, 2007, the judge dismissed the complaint, because "the children have been returned home, [and] the conditions [that caused DYFS's original concern] had been remediated."
On appeal, C.P. argues: 1) the record does not support a finding of abuse or neglect; 2) the Law Guardian failed to properly represent the children's "wishes and interests"; and 3) the trial judge should have suspended the judgment.
The facts, as evidenced by the referral response report and the photographs, are as follows. On June 28, 2006, acting on a referral from an anonymous neighbor that C.P.'s children appeared neglected, DYFS caseworkers Shanaita Alvarez and Chrystal Murphy visited C.P.'s home and discovered the residence in a deplorable, unsanitary condition. On approaching the residence, the DYFS caseworkers detected a strong odor and noted trash and trash bags strewn throughout the yard and on the porch of the residence. There were no curtains on the windows, and the front door contained broken glass.
Having received no response to a knock on the door, Alvarez peered in a window and observed: "mold and spider webs on the ceiling and throughout the living room area, [and] trash, old food, and dishes all over the floor." L.P. was sleeping on the couch with flies crawling on her. After Alvarez again knocked on the door, L.P. opened the door, and the two DYFS caseworkers informed L.P. that they needed to talk to her mother. While the caseworkers remained on the porch, C.P. came downstairs but refused the caseworkers admittance into her home, stating that she was in the process of moving and the house was very messy.
Alvarez informed C.P. that there was an allegation of abuse or neglect of the children, and that she and Murphy would need to enter the premises in order to perform a full safety assessment of the home. C.P. informed Alvarez that she and her husband had been separated approximately five months, and that although she is presently unemployed, she anticipates working as a waitress.
When questioned about the allegations which caused the DYFS caseworkers to respond by visiting the home, C.P. denied that she just leaves her children at neighbors' homes, but stated that last week L.P., after playing with a neighborhood child, had telephoned and requested permission to spend the night. C.P. denied that she had recently been arrested or had any police involvement concerning her eating flowers out of someone's flower bed. Concerning alcohol or drug use, C.P. conceded that she may have "a beer or so once a week," but denied that she drinks to intoxication or uses drugs. While remaining on the front porch, Alvarez contacted the local police department and health department to respond to the home and then commenced interviewing the two children.
Alvarez first interviewed L.P., who visually appeared to be "healthy." Although appearing nervous and not maintaining eye contact with Alvarez, L.P. responded to Alvarez's questions. When asked about the uncleanliness of the home, L.P. informed Alvarez that "everyone in the house" usually cleans up and that they were in the process of getting things together for trash pickup that day. When asked about drinking in the home, L.P. advised Alvarez that although her mother had often drank in the past, occasionally to the point where she had become intoxicated and had fallen down, her mother now limits drinking to approximately once a week.
Concerning her father, L.P. stated that he drinks until becoming intoxicated and that she has also seen him fall down because of his intoxication. L.P. reported that when her parents are drinking, they generally engage in verbal confrontation, at times yelling at her and her brother as well.
L.P. denied that she or her brother ever consumed alcohol. L.P. also denied that either parent had ever administered physical punishment to her or her brother, and when she and her brother are punished, they are usually grounded for two or three days at a time. Concerning whether police had ever responded to the home, L.P. denied that there had been any physical altercations in the home, but that the police did bring her mother home once for drinking in public. Concerning whether there was sufficient food in the house, L.P. replied affirmatively, stating that there was never a ...