March 20, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
C.P. DEFENDANT-APPELLANT, AND F.P., DEFENDANT.
IN THE MATTER OF Z.P., AND L.P., MINORS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 17, 2007
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 lack of food in the home, but that she does eat at friends' homes on a frequent basis, only because she is already there at the time dinner is served.
Alvarez followed the interview with L.P. by interviewing Z.P., who appeared healthy and appropriately dressed. When questioned about the uncleanliness of the home, Z.P. advised Alvarez that the family was in the process of packing up because they were moving to a newly-built home at the end of July. Z.P. stated that the inside of the home is generally cleaned by his mother and sister, while he was responsible for cutting the grass and taking out the trash. Concerning his relationship with his mother, Z.P. indicated that they get along "pretty well," except that they argue a lot when she is drinking. Z.P. stated that his mother drinks weekly and spaces her drinking out every three days or so. He informed Alvarez that his mother often drinks to intoxication and that her drinking has gotten worse since his father left the home. Z.P. believes that his mother is depressed and drinks more as a result of her depression.
Concerning his father, Z.P. told Alvarez that his father drinks to intoxication to where he gets "smashed" at least three times a week. Like his sister, Z.P. informed Alvarez that there is plenty of food in the house, and that his mother generally prepares dinner each night for them. Z.P. denied that his mother ever deserted him or his sister anywhere by failing to come back for them. Concerning police activity, Z.P. confirmed that the police had brought his mother home once due to an incident where she was "drinking and driving." Z.P. also confirmed that there had never been any physical discipline in the home, nor had there been any physical altercations between his parents.
On arrival of a local police officer and a representative from the health department, the DYFS caseworkers entered the home, taking pictures of the house, depicting its deplorable and unsanitary condition. Alvarez noted that the living room contained dirty, ripped, and worn sofas. The carpet appeared yellow, and was full of mold. Mold was on the windows, ceilings, and walls. Spider webs were hanging throughout the corners of the room and on the ceiling. The floor was covered with old food, dishes, cans and bottles, newspapers, cigarette butts, and ashes.
Alvarez noted that a strong, foul odor permeated the kitchen/dining room area. The dining room table was full of clothing, trash, cigarette butts, and ashes. Dishes sullied with food and mold were scattered throughout the area. The kitchen sink area was filthy and molded and overflowed with moldy, dirty dishes. The kitchen counters and floors were littered with empty boxes, garbage, and molded food. The refrigerator contained spoiled food. The oven was filthy and contained broken glass. The dining room floor had knee-high piles of clothing throughout. The downstairs bathroom was filthy with the sink and shower area covered with mold and grime to the point where the mirror over the sink provided no reflection.
Upstairs, Alvarez noted a strong odor of alcohol. A large room appeared to have been divided with a queen size mattress in one-half of the room, and a bunk bed in the other half. Throughout the room Alvarez observed empty beer cases, empty beer cans, empty bottles of alcohol, ashes, cigarette butts, and garbage. A strong odor also permeated the upstairs bathroom that had been completely covered with mold and mildew. During their tour of the house, the caseworkers took approximately forty color photographs of the home. Following the health department's inspection, Alvarez was informed by the health department representative that although the home was filthy and a safety hazard, she could not condemn the home because it had working electricity and running water.
Before the caseworkers left the residence, they re-interviewed C.P. concerning the information they had received from the children that C.P. had been brought back home on one occasion by the police. C.P. admitted that she had received a traffic summons for driving while intoxicated in March 2006, and had lost her license. When questioned about depression, C.P. admitted that she had been prescribed anti-depressants in the past, but had not taken them for the last two months or so. Alvarez informed C.P. that the home was unfit for the children to live in, and suggested that she seek alternate housing. C.P. informed Alvarez that she was moving into a new home at the end of the month, but in the interim she did not have any other place to go.
After C.P. refused to provide Alvarez with a contact telephone number for her husband, Alvarez informed C.P. that DYFS was going to effect an emergency removal of the children from her custody because of the deplorable housing conditions and her ongoing substance abuse. The children were immediately removed and placed in a relative resource home. C.P. was criminally charged by the local police with two counts of child endangerment.
On June 30, 2006, Alvarez met with F.P. F.P. informed Alvarez that he was residing with a friend in North Wildwood and did not have room for his two children. F.P. advised Alvarez that C.P.'s drinking had been problematic and led to their separation. F.P. stated that C.P. has been depressed since she lost her job of twenty years as a respiratory therapist. F.P. denied that he regularly drinks to intoxication, or that he ever drank to the point where he fell down in the presence of the children. After F.P. was shown photographs of the home, he denied that the conditions existed when he was last there two or three months ago.
On June 30, 2006, DYFS filed an abuse and neglect complaint against C.P. and F.P. After C.P. had been provided with services by DYFS and moved into her new home, her children were returned to her custody by order of October 11, 2006.
At the October 26, 2006, fact-finding hearing, the parties stipulated to having the trial judge decide the matter without testimony. The only evidence presented was the DYFS caseworkers' referral report, describing what they found on their initial inspection of the home, and the numerous pictures taken by the caseworkers, depicting the condition of the home. In an oral opinion that day, the judge found abuse and neglect against C.P., determining that the children were exposed to a substantial risk of harm, and that the mother failed to exercise a minimum degree of care in maintaining the home. In relevant part, the trial judge stated:
[Y]ou know, houses, homes don't get in the condition that this one got into, in my experience, just because somebody doesn't flat out feel like cleaning. There's obviously an underlying fabric.
[A]nd then the pictures, which are extraordinary in my history of looking at pictures of cases that involve alleged deplorable housekeeping. Particularly, the photos of the bathroom and the toilet and sinks are revolting, frankly. Look, this is an astonishing set of facts and circumstances, in terms of this home and the condition of this home. When you talk about the Doe case, I think it's important to realize that the real fulcrum in that case was that part of the statute in Title 9 that is talking about inadequate shelter where a parent was, quote, "financially able" to provide adequate shelter. The obverse, of course, is -- and this is what I think Doe was primarily about, where a parent is not financially able. One has to tread pretty carefully to conclude that a shabby house is evidence or a basis for finding neglect . . . .
[A]nd there's nothing that would suggest that [C.P.] . . . was poverty stricken. She was voluntarily unemployed, building a new home. And more than that, in a sense, or moreover, anyway, the problems here, as I think [the Law Guardian] mentioned in her way, the problems here were ones which soap and water and elbow grease and regular cleaning, and maybe a big, old trash dumpster out in the front yard could have easily prevented. It wouldn't have taken significant quantities of money to address the things that I see in these pictures. In any event, whatever combination of circumstances may have conspired, in terms of the family's life and its history and the conditions that -- either mental health or substance abuse issues that the parents may face -- may have been facing, this house was the epitome of deplorable. There's no use putting a sugarcoating on it in my view. As I indicated, looking at the photos was --bordered on difficult to do because of what I saw. It was, in many instances, revolting. And reading the caseworker's written narrative of what was observed on the day of the referral, it all sort of comes together as a picture. We can't, . . . we can't, we don't, we mustn't allow kids to live in such easily preventable filth in our society. And so, I do believe that the evidence does establish clearly and convincingly that these children were exposed to a substantial risk of harm and that the failure of [C.P.] to exercise a minimum degree of care in maintaining this home transgressed Title 9:6-8.21(c)4(a) and I'll enter a judgment accordingly . . . .
At the hearing, C.P. requested that the judgment be suspended pursuant to N.J.S.A. 9:6-8.51a and 9:6-8.52. Concluding that the facts from which the complaint arose were "too serious" to consider suspending judgment, the trial judge denied the application.
C.P. argues that the limited record of the referral response report and photographs do not "support the basic elements of impairment or imminent risk of impairment and financial ability that must be prov[en] under N.J.S.A. 9:6-8.21(c)(4)(a) to justify a finding" of abuse or neglect. C.P. contends that the trial judge mistakenly determined that C.P. had abused or neglected her children based on "the messy house, itself, without any evidence at all . . . that the messy house impaired or imminently threatened to impair the physical, mental, or emotional condition of the children or that C.P. had the financial ability to provide better housing at the time the children were removed from her." DYFS counters that "[t]here is substantial, credible . . . evidence supporting the trial court's finding that [C.P.] failed to exercise a minimum degree of care in maintaining the family's home, thereby exposing the children to a substantial risk of harm." DYFS contends that the record establishes that the children were exposed to filth, mold, flies, insufficient food, broken glass, and unsanitary bathrooms. DYFS asserts that the home was a threat to the health and well-being of the children.
On appeal, factual findings and conclusions of the trial judge are generally given deference, especially "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005). Accordingly, "an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
"The appellate court should 'exercise its original factfinding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter.'" Ibid. (quoting Rova Farms, supra, 65 N.J. at 484). However, our obligation to defer to the trial court "does not extend to issues of law." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).
A fact-finding hearing is defined as "a hearing to determine whether the child is an abused or neglected child." N.J.S.A. 9:6-8.44. The "'fact-finding hearing is a critical element of the abuse and neglect process.'" N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (quoting N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002)). The hearing is required to "inquir[e] 'into the surroundings, conditions, and capacities of the persons involved in the proceedings.'" Id. at 163-64 (quoting N.J.S.A. 9:6-8.48b).
An abuse and neglect determination must be proven by a preponderance of the evidence standard. N.J.S.A. 9:6-8.46(d); J.Y., supra, 362 N.J. Super. at 262. A finding that a parent abused or neglected his or her child, as contemplated by N.J.S.A. 9:6-8.21, may be supported by demonstrating that the parent engaged in one of seven acts defined therein. N.J.S.A. 9:6-8.21c(4) states that an "abused or neglected child" includes:
[A] child 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 [or her] parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court. [(emphasis added).]
Regardless of the statutory subsection in which a parent's conduct falls, the judge "must articulate, with particularity, the facts upon which a determination of abuse and neglect is made." J.Y., supra, 352 N.J. Super. at 265. The judge's findings must be based on "competent[,] reliable evidence." Ibid. The judge must clearly identify all documentary exhibits relied on in reaching his or her decision. Ibid. Such detailed fact-finding is legislatively mandated. Id. at 262-63.
To establish a charge of abuse or neglect, DYFS must prove at a minimum that:
(1) the child has a physical, mental, or emotional condition that is either impaired or in imminent danger of being impaired;
(2) such impairment is or would be the result of the parent's failure to exercise a minimum degree of care in supplying the child with adequate food, clothing, shelter, education, medical or surgical care; and
(3) even though financially able to do so or, through offered aid, is able to do so.
[Doe v. G.D., 146 N.J. Super. 419, 430 (App. Div. 1976), aff'd, sub nom., Doe v. Downey, 74 N.J. 196 (1977).]
At a fact-finding hearing, DYFS may prove abuse and neglect through its business records. See N.J.S.A. 9:6-8.46(a)(3) (providing that DYFS's records are admissible on finding that the records were made in the regular course of business); see also In re Guardianship of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969). Once the records are introduced pursuant to N.J.R.E. 803(c)(6) and 801(d), the "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." R. 5:12-4(d).
As stated, N.J.S.A. 9:6-8.21(c)(4) provides that a finding of abuse or neglect may be determined where a child's physical, mental, or emotional condition "has been impaired or is in imminent danger of becoming impaired as the result of the failure of his [or her] parent . . . to exercise a minimum degree of care." (Emphasis added). Accordingly, "[c]courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect" before determining a violation of the statute. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). The standard of "minimum degree of care" under the statute "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). Therefore, "a guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. It is against these principles that we consider C.P.'s contentions.
The referral response report and color photographs were introduced without objection. The records were accompanied by a certification from a DYFS employee indicating that the business records were made in the regular course of business of DYFS and "were made at the time of the condition and/or occurrences reported therein or within a reasonable time thereafter and accurately reflect the condition or occurrence." Because C.P. chose neither to object to the evidence, nor to testify or present any evidence to the contrary, the trial judge correctly determined that the evidence established a prima facie case of abuse and neglect. R. 5:12-4(d). The old proverb was never more true: "A picture is worth a thousand words."
We agree with the trial judge that the conditions complained of did not occur overnight or over a week, but over a long period of time as evidenced by the photographs. C.P.'s characterization of the house as "messy" is not an accurate description. The judge's portrayal of the condition of the home as "deplorable" is a more fitting description. Permitting young children to live in a home surrounded by mold, and infested with flies, cannot be determined to be anything other than unsanitary, and supports the local health representative's opinion that the house was a "safety hazard."
C.P. contends that DYFS failed to prove that she had "the financial ability to provide better housing at the time the children were removed from her," and as such, failed to establish the third prong of Doe. We disagree.
In Doe, the natural mother of an infant was charged by the child's former foster parents with abuse and neglect. Doe, supra, 146 N.J. Super. at 423. Following a fact-finding hearing, although the trial judge found that the child had not been subjected to any physical injury or abuse, the judge determined that the child's mental and emotional health were in imminent danger of being impaired because of the child's substandard and dirty housing conditions, and the mother's failure to educate or provide intellectual stimulation. Id. at 428. In reaching his decision, the trial judge, after acknowledging that the mother was impoverished and had received assistance from the local county Welfare Board, determined that "[t]he lack of a crib, the lack of some private or semi-private sleeping area as referred to, the required sharing of a sofa bed with the other non-children in the various apartments" met the evidentiary threshold for determining abuse and neglect. Id. at 429.
On appeal we reversed, determining that substandard, dirty and inadequate sleeping conditions "may be unfortunate incidents of poverty," but "do not establish child neglect or abuse." Id. at 431. "Adoption of such facts as a basis for a finding of child neglect or abuse might result in mass transfers of children from ghettos and disadvantaged areas into more luxurious living accommodations, but with resultant destruction of the natural parental bond." Ibid.
Here, the record does not specifically evidence C.P.'s financial condition, other than she had voluntarily terminated her employment and was about to move into a new home at the end of the month. However, the trial judge correctly acknowledged that abuse and neglect cannot be based solely on a parent's poverty or inability to purchase the necessities of life. Unlike Doe, the judge found in this matter, that the "deplorable" condition of the home was not a result of poverty, but rather "one which soap and water and elbow grease and regular cleaning . . . could have easily prevented." This is supported by F.P.'s statement to caseworkers that the home was not in that condition when he left C.P. several months earlier. Accordingly, we conclude that the trial judge's decision does not violate the principle of Doe.
C.P. argues next that the judgment of abuse and neglect should be reversed because the Law Guardian failed to properly represent the children's "wishes and interests." C.P. contends that the "Law Guardian did not litigate or argue against a finding that C.P. abused or neglected L.P. and Z.P." C.P. asserts that the Law Guardian failed to take a position on C.P.'s application for suspension of judgment, although "it was in her clients' interests for judgment against C.P. to be suspended so that C.P.'s ability to earn income for the family would not be threatened and her DYFS record would not prevent her from being able to care for" future grandchildren. We have carefully considered C.P.'s contentions in light of the record and applicable law and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.
Law guardians are appointed to represent children in abuse and neglect cases pursuant to N.J.S.A. 9:6-8.23. A "law guardian" means "an attorney admitted to the practice of law in this State, regularly employed by the Office of the Public Defender or appointed by the court, and designated under this act to represent minors in alleged cases of child abuse or neglect and in termination of parental rights proceedings." N.J.S.A. 9:6-8.21d. The duties of a law guardian include providing services needed "to help protect [the child's] interests and to help express [the child's] wishes to the court." N.J.S.A. 9:6-8.23a.
A law guardian acts as counsel for the child. In re M.R., 135 N.J. 155, 174-75 (1994). Contrary to a court-appointed guardian ad litem who provides services "to the court," a court-appointed law guardian provides services "to the child." N.J. Div. of Youth & Family Servs. v. R.M., 347 N.J. Super. 44, 69 (App. Div.) (quoting Pressler, Current N.J. Court Rules, comments on R. 5:8A and 5:8B (2002)), certif. denied, 174 N.J. 39 (2002). Accordingly, a law guardian has a duty to "zealously advocate [the child's] cause," In re Adoption of a Child by E.T., 302 N.J. Super. 533, 539 (App. Div.), certif. denied, 152 N.J. 12 (1997), while protecting the child's interests. "Law guardians are obliged to make the wishes of their clients known, to make recommendations as to how a child client's desires may best be accomplished, to express any concerns regarding the child's safety or well-being and in a proper case to suggest the appointment of a guardian ad litem." R.M., supra, 347 N.J. Super. at 70.
The children were removed from C.P. on June 28, 2006. On October 11, 2006, after C.P. received assistance from DYFS and moved into a new home, the children were transferred back to her legal custody. At the fact-finding hearing two weeks later, although the Law Guardian agreed with DYFS that Doe was not controlling, the Law Guardian informed the judge that it was the children's position that they wanted to remain with their mother. We conclude that the Law Guardian fulfilled her adversarial role on behalf of the children because: the children had already been returned home to their mother at the time of the fact-finding hearing; the Law Guardian informed the judge of the children's desire to remain with their mother; and the conditions that led to the children's removal had been eliminated.
Lastly, C.P. argues that the trial judge erred in denying her application for suspension of the judgment of abuse and neglect, contending that the judge incorrectly applied the four-prong standard of N.J. Div. of Youth & Family Servs. v. C.R., 387 N.J. Super. 363, 375 (Ch. Div. 2006). C.P. asserts that the judge placed too much emphasis on his determination that the facts on which the complaint was based were "too serious," while ignoring the other three prongs of C.R. Because we agree that the trial judge did not fully consider each prong of the C.R. test, 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.
N.J.S.A. 9:6-8.51a provides that at the conclusion of a dispositional hearing, the court is to enter an order of disposition, which may include "suspending judgment in accord with [N.J.S.A. 9:6-8.52]." N.J.S.A. 9:6-8.52 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 or guardian.
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 that period, upon a hearing, that exceptional circumstances required an extension thereof for an additional year.
In determining whether a judgment should be suspended, the trial court in C.R. set four factors that a court should consider: "(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]." C.R. supra, 387 N.J. Super. at 375. Although we determine that the factors of C.R. are not all inclusive, we consider the factors helpful in deciding whether to suspend a judgment.
Here, the trial judge placed considerable emphasis on factor (2), the seriousness of the offense, and did not fully evaluate and weigh two of the other three factors. Concerning the first factor, C.P. did not have any prior involvement with DYFS. Concerning the third factor, the judge correctly found that it was not applicable because of the manner in which the case was presented; C.P. had criminal charges pending against her, and therefore, had a right to remain silent. As to the fourth factor, amenability to correction, the record was self-evident that this factor should have weighed in favor of C.P. C.P. cooperated with DYFS, and the children were returned to her several weeks prior to the fact-finding hearing after a home inspection had been concluded.
Because a judgment may adversely affect C.P.'s future employment and/or her relationship with her children, we conclude that the judge should reconsider and weigh all applicable prongs of the C.R. test, together with any other factors the trial judge deems relevant. Accordingly, we vacate the judgment of abuse and neglect and remand the matter to the trial court for reconsideration on C.P.'s request to suspend the judgment.
Affirmed as to the finding of abuse and neglect; remanded for reconsideration as to whether the judgment of abuse and neglect should be suspended. We do not retain jurisdiction.