February 23, 2011
IN THE MATTER OF FINDING OF CHILD ABUSE/NEGLECT AGAINST V.A.
On appeal from the State of New Jersey, Department of Children and Families, AHU #10-0551, NJS #10072949.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2011
Before Judges Parrillo and Espinosa.
Defendant V.A. appeals the final decision of the New Jersey Department of Children and Families (Department) denying her application to expunge her name from the Division of Youth and Family Services' (Division) Central Registry of substantiated abuse findings. We affirm.
Following a contested fact-finding hearing in the Family Part at which V.A. was represented by counsel, on May 12, 2008, the court found that V.A. abused and neglected her seven-year old son, J.A., when she told him she was committing suicide because of his behavior and ingested an overdose of prescription medication in front of him, causing her to remain unconscious for eleven-and-one-half hours. Thereafter, on June 20, 2008, V.A. requested that the judge enter a "suspended judgment" pursuant to N.J.S.A. 9:6-8.51(a)(1). V.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).
The court granted entry of a suspended judgment even though V.A.'s application was moot at the time of the order because J.A. had been returned to V.A.'s care. See N.J. Div. of Youth and Family Servs. v. R.M., 411 N.J. Super. 467, 480 (App. Div.), certif. denied, 203 N.J. 439 (2010). However, the court declined to order the abuse and neglect finding expunged from the Central Registry maintained by the Division, and suggested that any such remedy would have to be pursued administratively.
V.A. did not appeal the abuse and neglect finding and does not now contend any error in that ruling. Nor did she appeal the Family Part's denial of her expungement application. Instead, V.A. sought administrative review nearly two years later in a April 27, 2010 letter to the Department requesting a hearing "to have her name removed from the Central Registry." On May 19, 2010, the Department denied that request pursuant to N.J.A.C. 10:120A-1.2(f), as V.A. had already received a hearing on this matter and a finding had been issued in the Family Part.
This appeal follows in which V.A. argues that, upon successful completion of a suspended judgment, she is entitled to a hearing to determine if her name should be removed from the Central Registry and that the denial of such a hearing is "fundamentally unfair." We disagree with these contentions.
N.J.S.A. 9:6-8.11 requires that the Division maintain all information collected in connection with investigations of abuse and neglect in a Central Registry. N.J.S.A. 9:6-8.10a makes the information maintained in that registry confidential, and permits release of the information only under limited circumstances to certain entities with responsibility for the safety of very young or vulnerable populations.
If the Division, after investigation, determines that the referral is unfounded, then the information is expunged from the Division's records in accord with N.J.A.C. 10:129-6.2. See
N.J.S.A. 9:6-8.40a. If, on the other hand, the referral is substantiated, the defendant is entitled to a trial-type hearing in which the Division is required to prove that the child at issue has been abused or neglected. In re Allegations of Sexual Abuse at East Park High Sch., 314 N.J. Super. 149 (App. Div. 1998); N.J.S.A. 9:6-8.44; N.J.A.C. 10:129-1.2(f); N.J.A.C. 10:129-2.5; N.J.A.C. 10:129-4.3.
At the conclusion of the Title 9 hearing, a suspended judgment is one of six possible dispositions the court, in its discretion, may order. See N.J.S.A. 9:6-8.51(a). In R.M., supra, 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. More significantly, for present purposes, 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.
There is simply no language in N.J.S.A. 9:6-8.51(a)(1), or anywhere else in Title Nine, stating, or even suggesting, that successful completion of a period of suspended judgment leads to such expungement, just as there is no such provision when children are returned to the parent pursuant to N.J.S.A. 9:6-8.51(a)(2). It is highly unlikely that the Legislature would have intended the expungement of the underlying finding of abuse or neglect under such circumstances without making that intention explicit in the language of the statute. Indeed, the statutory scheme contains no explicit provision for expunging findings of child abuse or neglect, although we have ordered their removal in connection with a reversal of the finding itself. [citation omitted.]
We are cognizant of the implications of a finding of child abuse or neglect and its accessibility to certain employers through the [C]entral [R]egistry, which is why we have repeatedly ensured that the Division provides due process when such findings are made. See In re Allegations of Sexual Abuse at East Park High Sch., 314 N.J. Super. 149, 159-66, 714 A.2d 339 (App. Div. 1998); N.J. Div. of Youth and Family Servs. v. M.R., 314 N.J. Super. 390, 404-05, 715 A.2d 308 (App. Div. 1998). [Id. at 481.]
Here, V.A. was afforded due process in the fact-finding hearing in the Family Part and in her right to appeal therefrom, which she waived. Moreover, 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(b) 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.A. with V.A. and the Division was neither seeking termination nor placement of J.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.
In any event, 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. On the contrary, the plain language of N.J.S.A. 9:6-8.40a clearly evinces a legislative intent to limit expungement to unfounded reports and, correspondingly, to preclude expungement of reports of substantiated instances of child abuse so that the Division will have complete information when investigating subsequent allegations of abuse and neglect. Accordingly, we find no error in the Department's refusal to grant V.A.'s expungement request.
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