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State v. G.R.


March 18, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FN-05-30-08.

Per curiam.



Argued October 20, 2009

Before Judges Skillman, Fuentes and Gilroy.

Defendant G.R. is married to C.R., the biological mother of three children identified here as Claudia, now sixteen years old, Maurice, now fourteen years old, and Frank, soon to be seven years old.*fn1 Only Frank is defendant's biological child. Defendant appeals from the order of the Family Part that found him to have abused two of his children in an action filed by the Division of Youth and Family Services (DYFS or Division) and that implicitly denied his application for a suspended judgment pursuant to N.J.S.A. 9:6-8.51. We affirm.

The Division's intervention into this family's affairs was prompted by an incident of domestic violence that occurred on September 2, 2007. Before this date, defendant and C.R. had been experiencing marital difficulties, leading to defendant's voluntary departure from the family residence. At approximately 7:00 p.m. on September 2, 2007, police officers responded to a 911 call made by C.R. alleging that G.R. had returned to the marital residence intoxicated and physically assaulted her, thirteen-year-old Claudia, and four year-old Frank.

We need not describe the particular details of the incident. Suffice it to say that the record shows that defendant entered the family residence highly intoxicated. Once there, he berated and physically assaulted his thirteen year-old stepdaughter. When C.R. attempted to intervene on Claudia's behalf, defendant physically assaulted C.R. and threw her cell phone against the wall to prevent her from calling the police. Defendant also struck his four year-old son across the face. The violence finally ended when C.R. ran out of the house with the children. At this point, defendant took the keys to C.R.'s van and, without her consent, drove away and crashed the vehicle.

Defendant was thereafter arrested and charged with third degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10c; third degree resisting arrest, N.J.S.A. 2C:29-2(3); and three counts of simple assault, N.J.S.A. 2C:12-1a(1). He was released on bail twelve days later and ordered, as a condition of his bail status, not to have any contact with the "victim." C.R. initially filed a domestic violence complaint and obtained a temporary restraining order (TRO); she later requested that the court vacate the restraints.

The Cape May County Prosecutor's Office referred this case to DYFS on September 18, 2007. The Division investigator interviewed each of the children and both parents the following day. The children confirmed the events of September 2, 2007, but denied any prior incidents of violence. According to C.R., while she and defendant sometimes argued, which frightened the children, this "was the first time that this kind of thing ever happened." She also stated that defendant drinks for most of the day once every two or three weeks in the summer, but had no history of illicit drug use. C.R. stated that defendant had stopped drinking and was attending Alcoholics Anonymous (AA).

Defendant explained that he routinely drank once or twice per month and admitted to drinking on the day of the incident. Although he acknowledged that he had "crossed the limit this time," he claimed to have no recollection of what occurred between arriving home and crashing the car. The Division investigator advised the parties that defendant had to leave the marital home until otherwise directed. Both parents signed a Safety Protection Plan acknowledging the restriction.

On October 2, 2007, DYFS filed a verified complaint for care and supervision with restraints, alleging that the children had been abused and/or neglected as a result of the September 2, 2007, incident. DYFS directed defendant to contact a case worker for random drug screens and referred him to anger management counseling as well as intensive outpatient substance abuse treatment.

The matter first came before the Family Part on October 18, 2007. DYFS requested that legal custody and supervision of the children remain with the Division and asked for the continuation of restraints preventing defendant from entering the family residence and having unsupervised contacts with the children. DYFS also requested that the court order defendant to participate in Division-sponsored services; the Law Guardian joined in the Division's application.

Defendant, through counsel, requested that he be allowed to return home, or that C.R. be allowed to supervise his visitation with the children, particularly at church. He also requested that DYFS provide services for the children. Defendant's counsel characterized the incident of September 2, 2007, as an aberration brought on by alcohol abuse. Counsel emphasized that defendant intended to cease drinking and participate in alcohol abuse counseling.

The court entered an order which continued the restraints against defendant but permitted supervised visitations with the children once per week during church services. Neither the court nor counsel, including the Deputy Attorney General, made any reference to the "no contact" restrictions imposed by the Criminal Part as a condition of defendant's bail status on the pending criminal charges.

The matter returned before the Family Part on October 31, 2007. The court continued the restraints and directed defendant to: (1) comply with Division-sponsored substance abuse treatment; (2) submit to urine screening; and (3) attend AA meetings. The court entered an order memorializing these oral directions; counsel consented to the form of order off the record.

On April 14, 2008, the court held a fact-finding hearing as required under N.J.S.A. 9:6-8.44. DYFS offered into evidence its investigation report and the police report of the September 2, 2007, incident prepared by the Ocean City Police Department. Defense counsel advised the court that, although she did not object to the admission of the two documents, she expected that the court would not consider any hearsay statements in determining whether defendant had committed an act of abuse or neglect. Counsel also informed the court that given the pending criminal charges, defendant could not stipulate to having committed an act of abuse or neglect.

Despite these reservations, defense counsel indicated her willingness "to agree that the documents the Deputy [Attorney General] is entering [into evidence] today do[ ] make a showing of abuse or neglect as defined by the statute and primarily our only request today would be that a suspended judgment be entered." Both DYFS and the Law Guardian opposed defendant's application for a suspended judgment.

It was only at this point that the court became aware of the bail restrictions imposed by the Criminal Part. In order to avoid any possibility of conflicting orders, the court amended its prior order to conform to the "no contact" provision of the bail restriction. The court then advised the parties that pursuant to Rule 5:12-6(a)(1), it was notifying the prosecutor's office of its intent to assert jurisdiction over defendant's future contacts with the children. The court declined to rule on defendant's application for a suspended judgment on that day and rescheduled the matter for April 23, 2008.

When the case returned to the Family Part on April 23, 2008, defendant's assigned criminal counsel appeared in addition to the other attorneys previously associated with the case. In lieu of a personal appearance, the county prosecutor advised the court in writing that it would not oppose the vacation of the "no contact" restraints, provided that some form of supervised visitation would take its place. After hearing from all attorneys present, the court vacated the restraint, and allowed defendant to reunite with his family.

The court found that defendant had committed an act of abuse or neglect by engaging in acts of domestic violence in the presence of the children and by striking Claudia and Frank. The court denied defendant's application for a suspended judgment, citing the details of the domestic violence incident as described in the police report and a statement attributable to defendant contained in a substance abuse evaluation report dated February 25, 2008, in support of its decision. In the substance abuse evaluation report, defendant criticized the Division's involvement in this matter and described himself as a victim of a culturally insensitive judicial system. The court viewed this evidence as indicative of defendant's failure to accept full responsibility for his actions.

Against these facts, defendant argues that the trial court erred in denying his application for a suspended judgment. We start our analysis of this issue with the statute that created the suspended judgment.

a. At the conclusion of a dispositional hearing under this act, the court shall enter an order of disposition: (1) suspending judgment in accord with section 32 hereof; (2) releasing the child to the custody of his parents or guardian in accord with section 33 hereof; (3) placing the child in accord with section 34 hereof; (4) making an order of protection in accord with section 35 hereof; (5) placing the respondent on probation in accord with section 36 hereof; (6) requiring that an individual found to have abused or neglected a child accept therapeutic services, and this order may be carried out in conjunction with any other order of disposition.

b. The court shall state the grounds for any disposition made under this section.

[N.J.S.A. 9:6-8.51.]

In New Jersey Div. of Youth & Family Servs. v. R.M, ____ N.J. Super. ____ (App. Div. 2010) (slip op. at 2), we recently had occasion to review the origins of this statute, and as a result, were able to articulate certain guiding principles for its application. First, as is the case with all decisions that involve the exercise of discretionary authority by the Family Part, we are bound to give great deference to a determination made by a Family Part judge either to grant or deny an application for a suspended judgment. Id. at 9. Second, a suspended judgment is merely one of six mutually exclusive dispositional options available to the Family Part once the dispositional hearing is completed. Id. at 12. Finally, and perhaps most importantly from a defendant's point of view, a suspended judgment does not lead to the expungement of the underlying finding of child neglect. Id. at 20.

Applying these principles to the facts here, we are satisfied that the trial court's decision to reject defendant's application for a suspended judgment did not constitute a mistaken exercise of its discretionary authority. The trial court properly considered the underlying facts of the incident that led to DYFS' involvement, as well as defendant's minimization of the incident and deflection of personal responsibility for his behavior, as factors militating against utilizing this dispositional option.

Notwithstanding our approval of the trial court's decision denying defendant's application for a suspended judgment, we are satisfied that, as was the case in R.M., defendant's application for this relief at the end of the dispositional hearing was essentially moot because the court returned the children to the custody of their parents and directed that DYFS continue to provide services as needed. Id. at 19-20; see also N.J.S.A. 9:6-8.51(a)(2). Defendant's remaining arguments concerning the court's initial failure to adhere to the procedural requirements outlined in Rule 5:12-6 are also moot.


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