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New Jersey Division of Youth and Family Services v. K.A

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 4, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.A., DEFENDANT-APPELLANT.
IN THE MATTER OF J.L.A., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-242-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 11, 2011

Before Judges Parrillo and Skillman.

Defendant K.A. appeals the order of the Family Part denying her application for the entry of a "suspended judgment" as the disposition of the complaint filed by plaintiff New Jersey Department of Youth and Family Services (Division) charging her with child abuse and neglect as defined by N.J.S.A. 9:6-8.21. We affirm.

By way of background, K.A. is the mother of a girl, J.L.A., born on August 4, 2008. J.A. is the father. On June 7, 2009, J.L.A. was a back-seat passenger in her parents' car when her mother was arrested for driving while under the influence and refusing to take a breathalyzer test. Her father was also arrested for permitting K.A. to drive the car while she was impaired.

The Division's investigation, which also uncovered two prior domestic disputes at the family home, ultimately substantiated allegations of neglect against both parents on the grounds of inadequate supervision and substantial risk of injury to J.L.A. Following the Division's recommendations, K.A. participated in alcohol counseling classes for twelve weeks and also underwent domestic violence counseling.

On June 19, 2009, the Division filed a verified complaint seeking care and supervision of J.L.A. and to monitor the parents' progress in Division-recommended services. Pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12, the Family Part judge granted temporary custody of J.L.A. to the maternal grandparents.

Following factfinding hearings, the court entered an order finding abuse or neglect on the part of K.A. "in that she operated her motor vehicle while under the influence with her 9-month old child in the vehicle." The court dismissed the matter as to the father, J.A. Although the maternal grandparents had temporary custody of the child during the proceedings, the court ordered that J.L.A. should remain in the "legal and physical" custody of her parents. The order also granted the Division's request to terminate the litigation because the child had been returned home and the conditions remediated.

At the conclusion of the factfinding hearing, K.A. requested that the judge enter a "suspended judgment" pursuant to N.J.S.A. 9:6-8.51(a)(1). K.A.'s ultimate goal in seeking such relief was to have her name removed from the Division's central registry, maintained pursuant to N.J.S.A. 9:6-8.11, because of the adverse effects on employment and other consequences of such inclusion. See N.J. Div. of Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 170 (App. Div. 2009).

On January 15, 2010, the court denied the application, relying on N.J. Div. of Youth & Family Servs. v. C.R., 387 N.J. Super. 363 (Ch. Div. 2006), overruled by N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467 (App. Div.), certif. denied, 203 N.J. 439 (2010). The opinion in C.R. outlines four factors, derived from N.J.S.A. 2C:43-12(e), that should be considered before granting a defendant a suspended judgment in abuse and neglect cases: (1) defendant's prior history; (2) seriousness of the offense; (3) defendant's remorse and acknowledgment of her act of abuse and neglect; and (4) defendant's amenability to correction. 387 N.J. Super. at 375. Applying this four-prong test in the instant matter, the court found a suspended judgment was not appropriate based chiefly on the gravity of defendant's act, her minimization of the offensive conduct, and her seeming lack of remorse.

As noted, C.R. was overruled by our decision in R.M., supra, wherein we determined that "the suspended judgment provision of N.J.S.A. 9:6-8.51(a)(1) is generally applicable when a Family Part judge has held a dispositional hearing and is not prepared to enter an order returning the child to the parent or placing the child with the Division, but instead proposes to give the parent an opportunity to maintain the family unit based upon adherence to the particular remedial requirements established pursuant to N.J.S.A. 9:6-8.52(a)." 411 N.J. Super. at 481-82. We also concluded that "successful completion of a period of suspended judgment does not result in expungement of the underlying finding of abuse or neglect." Id. at 482.

On appeal, K.A., while not contesting the abuse and neglect finding, urges us not to follow the holding in R.M., supra, in considering the propriety of the denial of her application for a suspended judgment. We decline the invitation as we find the rationale of R.M. persuasive. Suffice it to say, the plain language of N.J.S.A. 9:6-8.51(a)(1) and the accompanying one-year durational limitation of N.J.S.A. 9:6-8.52 strongly suggest that a suspended judgment was intended as an interim measure with the ultimate goal of maintaining the family unit. Given that the court in this case maintained custody of J.L.A. with K.A. and the Division was neither seeking termination nor placement of J.L.A. outside the home, the application for a suspended judgment was moot when considered by the court. Simply put, the dispositional alternative of a suspended judgment was not a viable option at the time the order of the Family Part was entered.

We further reject K.A.'s contention that a suspended judgment in abuse and neglect cases is the equivalent of pretrial intervention (PTI) in criminal cases, N.J.S.A. 2C:43- 12; Rule 3:28. As we noted in R.M., supra, nothing in the statutory scheme of Title Nine either explicitly states or implicitly suggests that successful completion of a period of suspended judgment leads to the expungement of the underlying finding of child neglect or abuse. 411 N.J. Super. at 481.

Affirmed.

20110204

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