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New Jersey Division of Youth and Family Services v. A.M.R

December 20, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.M.R., DEFENDANT-APPELLANT, AND D.W.B., DEFENDANT-RESPONDENT.
IN THE MATTER OF L.B., A MINOR.



On appeal from Superior Court of New Jersey, Chancery Part, Family Division, Ocean County, Docket No. FN-15-121-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 26, 2010

Before Judges Payne, Baxter and Koblitz.

A.M.R. (hereinafter, mother) appeals from an order entered in the Family Part terminating Title 9 litigation instituted by the New Jersey Division of Youth and Family Services (DYFS) alleging abuse and neglect of L.B., a minor; determining that the child should remain in the legal and physical custody of her father, D.W.B. (hereinafter, father); and denying the mother's motion to suspend judgment pursuant to N.J.S.A. 9:6-8.52. On appeal, the mother makes the following arguments:

I.

THE TRIAL COURT'S ORDER GRANTING LEGAL AND PHYSICAL CUSTODY OF THE CHILD AT ISSUE TO THE FATHER, ENTERED LESS THAN ONE MONTH AFTER DYFS HAD BEEN GRANTED TEMPORARY LEGAL AND PHYSICAL CUSTODY OF THAT CHILD ON AN EMERGENT BASIS, DENIED THE MOTHER THE DUE PROCESS RIGHTS ATTENDANT TO HER CONSTITUTIONAL RIGHT TO THE CARE AND CUSTODY OF HER CHILD.

II.

THE MOTHER'S TRIAL COUNSEL'S REPRESENTATION AT NUMEROUS CRITICAL STAGES IN THE TRIAL COURT PROCEEDINGS FELL BELOW ANY OBJECTIVELY REASONABLE STANDARD OF PERFORMANCE AND PREJUDICED THE MOTHER SO AS TO DEPRIVE HER OF THE CONSTITUTIONAL RIGHT TO BE REPRESENTED BY COUNSEL.

III.

THE PURPORTED "COMBINED" SUSPENDED JUDGMENT/DISPOSITIONAL HEARING ON SEPTEMBER 17, 2009 WAS FOCUSED ENTIRELY ON THE MOTHER'S MOTION FOR SUSPENDED JUDGMENT, LACKED ANY EVIDENCE OR TESTIMONY WHATSOEVER, AND WAS OTHERWISE PROCEDURALLY AND SUBSTANTIVELY INSUFFICIENT FOR DISPOSITIONAL PURPOSES.

We affirm in part and reverse in part.

I.

The record reveals that the mother gave birth to a daughter, L.B., on March 23, 2007. On December 15, 2009, the mother left L.B., then twenty-one months of age, in the custody of her paramour, B.D., a known heroin addict. While in his care, the child sustained significant bruising to her face and buttocks. Upon the mother's return, she did not seek medical care for L.B. On the following day, however, her condition was seen by employees of the daycare center where the mother worked. When questioned, the mother stated that the child's bruising occurred while she was in the care of her father, a statement that she later retracted and was demonstrated to be untrue.

DYFS was informed of the child's injuries, responded to the scene, and took the child to Jersey Shore Medical Center, where she was examined and treated by Dr. Steven Kairys. The mother declined to accompany her daughter to the hospital, yelling and cursing at the DYFS workers for taking the child for treatment.

Dr. Kairys observed a large bruise around the child's left eye, covering the cheek in the area lateral to the eye, with several small lacerations and breaks in the skin to that side. He also observed a smaller bruise on the right eye, a laceration to the inner lip, and a number of bruises to the face on both sides, particularly on the left. Additionally, the doctor observed that a large area of both buttocks manifested blue and red bruising, with linear marks on the left buttock extending down toward the anus, and some bruising extending up into the lower back. Dr. Kairys concluded that the injuries to the child's face could have happened as the result of falling down steps. However, he determined that the buttock injuries were clearly not accidental; they were inflicted in the course of "a somewhat violent assault with an open hand."

B.D. subsequently confessed to inflicting the injuries to the child's buttocks, claiming that he was irritable as the result of the need to abstain from heroin while baby-sitting, and that the punishment was inflicted when the child tried to descend the stairs after previously ...


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