May 26, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
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, FN-05-165-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 28, 2009
Before Judges Winkelstein, Gilroy and Chambers.
C.P., the biological mother of two minor children, appeals from the May 20, 2008 order of the Family Part that denied her request to suspend judgment under N.J.S.A. 9:6-8.51a and -8.52, and reinstated a prior judgment determining that she had abused or neglected her children. We reverse and remand for further proceedings consistent with this opinion.
This is the second appeal in this abuse and neglect case. Because the statements of procedural history and facts were discussed at length in our prior opinion, N.J. Div. of Youth & Family Servs. v. C.P., No. A-3590-06 (App. Div. March 20, 2008), it is unnecessary for us to detail them here. Nevertheless, the following summary will place this appeal in context.
Following a fact-finding hearing on October 26, 2006, the trial court entered a civil judgment of abuse or neglect against C.P., determining that she had abused or neglected her two 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. 9:6-8.21c(4)(a). In so doing, the court denied C.P.'s request to suspend judgment pursuant to N.J.S.A. 9:6-8.51a and -8.52. On appeal, we affirmed that part of the order determining abuse or neglect.
However, we vacated the judgment and remanded for reconsideration of C.P.'s request to suspend judgment. In vacating the judgment and remanding, we reasoned:
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.
On July 23, 2008, the Supreme Court denied C.P.'s petition for certification. N.J. Div. of Youth & Family Servs. v. C.P., 196 N.J. 347 (2008).
On remand, the trial court requested supplemental briefs from the parties and scheduled oral argument for May 15, 2008. On behalf of the children, the Law Guardian advised the court that:
Both [children] support their mother's application. They feel very strongly that a judgment of abuse/neglect against [C.P.] will adversely impact her opportunity to seek employment as a respiratory therapist. They also believe their mother being on the [C]hild [A]buse [R]egistry may risk her future ability to [caretake] for their own children when they have them.
After granting C.P.'s request for an adjournment of the oral argument date because it conflicted with her work schedule, the court informed the parties that it would reschedule oral argument, unless it "concluded that further elucidation of the parties' positions would [not] be helpful once [the court] reviewed all of the written submissions." Having determined that a need for oral argument no longer existed, the court entered an order on May 20, 2008, supported by a written opinion, that: 1) denied C.P.'s application to suspend judgment; and 2) reentered the October 26, 2006 judgment of abuse and neglect against C.P. In reaching its decision, the court concluded that "C.R. factors (2) and (3) weigh very strongly against [C.P.] -- and they outweigh by a considerable margin her 'positives' under factors (1) and (4)." As to the court's determination of C.R. factor (3), the court reasoned: On balance, I conclude that [C.P.] wants to have her cake and eat it too.
On the one hand, she argues (at least at the trial level) that the deplorable mess in her home was not her fault because she was too poor to keep it any better (Transcript dated 10/26/06, pp.4-6). In the Appellate Division -- and now in her petition for certification to the Supreme Court -- [C.P.] argues that the mess in her home, no matter how deplorable, was not actionable under the statutory definition of neglect found at N.J.S.A. 9:6-8.21[c](4)(a).
On the other hand, [C.P.] wants me to give her a pass on what would normally be expected of her under C.R. factor (3) --the one that says that "an application for suspended judgment should be connected with a stipulation" of abuse or neglect. She should get this pass, we are told, because she had criminal charges open against her at the time of the fact-finding -- and she wanted to exercise her right to remain silent, rather than proffer a stipulation.
There are a number of problems with this argument -- most of which, frankly, escaped me as I ruled in "real time" from the bench on this unanticipated application on October 26, 2006. I think it is evident from the transcript (p.19) that I had no idea that there were criminal charges pending against [C.P.] -- and, other than counsel's representation that this was the case (which I have no basis to question), there is nothing in the record to confirm this. In any event, when I opined on October 26, 2006 that this new information about pending criminal charges effectively "neutralized" my just-expressed concerns about [C.P.'s] failure to acknowledge any responsibility for the poor housekeeping circumstances in her home -- I now conclude, upon reconsideration, that I was wrong.
If one is going to cast one's fate with C.R., and if one is going to assert that one couldn't prudently offer a stipulation of abuse/neglect because criminal charges were pending, and if one is going to argue that she should therefore get a pass on C.R. factor (3) -- well, then, one's attorney should forego the opportunity to contend that the plaintiff's case is hogwash. It cannot be had both ways -- especially in a context where a judge is being asked to grant discretionary relief which a litigant cannot expect to receive as a matter of right.
Obviously, the [Fifth] Amendment was a consideration for [C.P.] here. But, just as obviously, she still would not have stipulated, even in the absence of criminal charges -- because, as her attorney forcefully asserted at trial, [C.P.] felt that the plaintiff's case was meritless and that she had done nothing to transgress the law or to harm her children.
In this light, what is a judge to think when he looks at factor (3) and reads this language from C.R.:
"Factor [(3)] concerns defendant's remorse and acknowledgement of his or her actions. If defendant denies having committed the abuse or neglect, or portrays his or her actions as justified, this will weigh against a determination of suspended judgment." C.R., [supra, 387 N.J. Super. at 376.]
Factor (3) indeed weighs very heavily against [C.P.'s] application for this discretionary relief. She is not looking for a suspended judgment so much as she is looking for reversal and exoneration. Her two objectives in my view, are mutually exclusive.
At the time of trial, [C.P.] made an understandable decision that it was in her own best legal interest not to testify. But we must guard against cloaking this self-interested decision with a mantle of constitutional virtue. After all, the [Fifth] Amendment tells her she doesn't have to testify; it doesn't say that she can't. If she wanted to express her "remorse" and "acknowledge her actions[",] she could have said so -- and this (along with her undisputed compliance with court-ordered services)*fn1 might have taken her some good distance toward a favorable ruling on a suspended judgment.
But [C.P.] didn't just exercise her right to remain silent; she put an exclamation point on that silence when her attorney argued that she didn't do anything wrong -- and that there really was nothing to be remorseful about. And now she wants me to cut her some slack for things she maintains she never did in the first place. It occurs to me that if she never did anything wrong, then "slack" is unnecessary -- if not insulting. Her only legitimate objective at this point can be vindication.
On appeal, C.P. argues the trial court: 1a) did not follow our remand instructions; 1b) erred in making factual assumptions without conducting an evidentiary hearing; 1c) mis-analyzed C.R. factor (2), the seriousness of the offense; 1d) should have given more weight to her compliance with DYFS and to her successful reunification with her children; and 2) should be reversed because suspending the judgment is in the best interests of the children.
C.P. contends that the trial court failed to follow our remand instructions when it failed to re-evaluate C.R. factors (1) and (4) as instructed by this court. C.P. asserts that the trial court improperly reconsidered C.R. factor (3), reversing its prior determination under that factor, without conducting an evidentiary hearing or granting oral argument.
DYFS counters that the trial court properly exercised its discretion in denying C.P.'s application to suspend judgment. DYFS contends that an evidentiary hearing was not required because the relevant facts under C.R. were not contested. As to the court reconsidering and reversing its determination under C.R. factor (3), DYFS asserts that reconsideration fell within our instruction that the trial court "reconsider and weigh all applicable prongs of the C.R. test, together with any other factors the trial judge deems relevant." Contrary to DYFS's position, the Law Guardian supports C.P.'s appeal.
We conclude that the trial court's reconsideration and reversal of its prior determination of C.R. factor (3), without conducting an evidentiary hearing, or at the minimum, oral argument on the issue, requires reversal and remand. At the conclusion of the fact-finding hearing, in denying C.P.'s application to suspend judgment, the court determined that it was not going to consider C.R. factor (3) either in favor of or against C.P. Rather, it concluded that C.P.'s failure to express either remorse or acknowledgement of her abusive or neglectful acts was "neutralized" with C.P. exercising her Fifth Amendment right to remain silent because of the then-pending criminal charges against her. On appeal, we accepted the trial court's determination on this issue, stating: "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." C.P., supra, (slip op. at 27).
Although we remanded for the trial court to reconsider C.P.'s application, "weigh[ing] all applicable prongs of the C.R. test, together with any other factors the trial judge deems relevant," id. at 28, we agree with C.P. that the court's adverse determination on C.R. factor (3) was unexpected in light of the court's prior finding regarding factor (3), and our affirmance of that prior determination. We are satisfied that in light of the existing record, the court should have offered the parties an opportunity to be heard before reversing its prior finding on factor (3). Kleir v. Sordoni Skanska Const. Co., 337 N.J. Super. 76, 84 (App. Div. 2001) (holding that a litigant is entitled to procedural due process of notice and "an opportunity to be heard at a meaningful time and in a meaningful manner" before a trial court dismisses his or her complaint sua sponte).
C.R. factor (3) requires the court to determine whether or not C.P. is remorseful. The term remorse is defined as: "moral anguish and bitter regret arising from repentance for past misdeeds; [c]ompassion." Webster's II New College Dictionary 938 (2001). Under that definition, determining whether a person is remorseful over past acts or omissions involves the assessment of the individual's subjective feelings and thoughts. Generally, "[w]hat a person's intentions [are] need not be proved from what he [or she] said, but they may be inferred from all that he [or she] did and said, and from all the surrounding circumstances of the situation under investigation." Wilson v. Amerada Hess Corp., 168 N.J. 236, 254 (2001) (quotations and citation omitted). Accordingly, although not previously directed in our prior decision, we conclude that an evidentiary hearing would have assisted the court in determining whether C.P. is remorseful for her past actions. At that hearing, C.P. would have had an opportunity to testify as to the events surrounding the abuse and neglect incident, her reunification with the children and the events that occurred since the fact- finding hearing.
We reverse and remand to the trial court to permit C.P. the opportunity to testify or present additional evidence to support her application to suspend judgment. Because the trial judge previously expressed strong sentiments concerning C.P.'s lack of remorse, we direct that on remand the matter be assigned to another trial judge for "a fresh look." Brown v. Brown, 348 N.J. Super. 466, 493 (App. Div.), certif. denied, 174 N.J. 193 (2002); J.L. v. J.F., 317 N.J. Super. 418, 438 (App. Div.), certif. denied, 158 N.J. 685 (1999).
Reversed and remanded to the trial court for further proceedings consistent with this opinion.*fn2