On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Gloucester County, FN-08-69-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 2, 2008
Before Judges Payne and Alvarez.
The law guardian of minor children R.R., Jr. (fictionally Ralph), age ten, R.R. (fictionally Robin), age six, and R.R., age four, appeals from the order of a judge of the Family Part, following a fact-finding hearing, dismissing an abuse and neglect complaint, filed pursuant to N.J.S.A. 9:6-8.21 against the children's father, R.R., and mother, B.R., but determining on the basis of clear and convincing evidence that defendants were a family in need of services, N.J.S.A. 30:4C-12. On appeal, the law guardian raises the following arguments:
THE FINDINGS OF FACT MADE BY THE TRIAL COURT, SPECIFICALLY THAT [RALPH'S] INITIAL ACCOUNT OF THE "KNIFE INCIDENT" WAS CREDIBLE, SATISFIED THE CRITERIA UNDER N.J.S.A. 9:6-8.21 FOR ENTERING A JUDGMENT OF ABUSE.
THE TRIAL COURT, BY ENTERING AN ORDER THAT THE FAMILY WAS ONE "IN NEED OF SERVICES" IN LIEU OF ONE INDICATING THAT [RALPH] WAS AN ABUSED CHILD, GAVE R.R. SR. WHAT IS TANTAMOUNT TO A "SUSPENDED JUDGMENT," CONTRARY TO THE FACTORS OF D.Y.F.S. v. C.R., 387 N.J. Super. 363 (Ch. Div. 2006).
The Division of Youth and Family Services (DYFS) argues that the evidence presented at the fact-finding hearing required entry of judgment pursuant to N.J.S.A. 9:6-8.21 as to the acts of the father because they rendered Ralph an abused or neglected child as defined by N.J.S.A. 9:6-21(c)(4)(b). Having reviewed the record on appeal in light of applicable law, we affirm.
The record in this matter reflects that the Family Part judge personally interviewed Ralph in chambers in connection with her factfinding, and the interview was heard by counsel. Although that interview is not contained in the record on appeal, it appears from references in the record that Ralph denied any threat by his father when speaking to the judge.
Nonetheless, the record contains testimony by Ralph's fifth-grade language arts teacher, Ms. Gelzunas, that on March 6, 2007, Ralph approached Gelzunas in the hall to express his concerns regarding his mother, who was ill,*fn1 and experiencing mood swings. Among other things, Gelzunas advised Ralph to talk to his father, but was told by Ralph that he could not. Ralph reported that "the other night," at around dinner time, when he had talked to his mother about being positive, "his father . . . grabbed him and put a knife to him and told him to shut up and never talk about it again." Gelzunas later testified that while Ralph was talking to his mother about being positive, "his dad grabbed him and threw him up against the wall and held a knife to him." According to Gelzunas, Ralph additionally stated "it was not the first time and he was scared of his dad." Gelzunas reported that Ralph appeared "agitated" and "trying not to cry" while talking to her and that, at the end of the conversation, he appeared "upset" and "relieved." Gelzunas had no knowledge of the type of knife the father held, and she did not know where the father had grabbed Ralph. She observed no bruising or other injury. Gelzunas stated that approximately two hours before this incident, Ralph told her that he had been grounded by his father for throwing a snowball at someone.
Gelzunas reported the incident to the school principal, who contacted DYFS, which in turn, removed the three children from their home on an emergent basis, placing them in foster care, where they remained for approximately one week. They were then ...