April 1, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
M.A., DEFENDANT-APPELLANT, AND D.B., DEFENDANT.
IN THE MATTER OF J.B.-A., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-103-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 2, 2011
Before Judges Cuff, Sapp-Peterson and Simonelli.
M.A. is the mother of J.B.-A., a two-year-old boy. She appeals from an order terminating litigation initiated by plaintiff Division of Youth and Family Services (Division) and relieving the Division of an oral order to expunge its records of an earlier stipulation of abuse and neglect by M.A. of J.B.-A. We affirm.
On December 30, 2008, the Division obtained an order granting its application for custody, care and supervision of J.B.-A. pursuant to N.J.S.A. 30:4C-12, and N.J.S.A. 9:6-8.28, -8.31. On August 13, 2009, in the midst of a factfinding hearing required by N.J.S.A. 9:6-8.47, M.A. entered into a stipulation that she committed an act of abuse and neglect when she "went to the hospital with the intention to remove [J.B.-A.] from the hospital" knowing that he had been "diagnosed with a heart condition and [her attempt] to remove him from the hospital" placed him at risk of harm.
At the conclusion of the dispositional portion of the hearing, the judge granted M.A.'s application for imposition of a suspended judgment over the objection of the Division. The judge observed that M.A.'s attempt to remove the child from the hospital exposed the child to a risk of harm due to his very serious cardiac condition. Nevertheless, he found that M.A.'s actions reflected immaturity, her attempt to remove the infant was an inchoate offense, her actions may have been a byproduct of physical abuse by the child's father, she expressed remorse, and had made great strides at rehabilitation through participation in counseling. Therefore, the judge elected to suspend judgment for a term of seven months, and ordered the return of J.B.-A. to M.A. within thirty days. All parties agree that the judge issued an oral order that the record of substantiated abuse and neglect would be expunged upon successful completion of the seven-month period of supervision. The August 13, 2009 order drafted by the Division omits any reference to this oral order.
At a March 8, 2010 compliance review, the Division moved to dismiss the complaint due to the successful reunification of M.A. and her son. The Division also sought to be relieved of its obligation to expunge the record of the substantiated incident of abuse and neglect. On March 11, 2010, relying on New Jersey Division of Youth and Family Services v. R.M., 411 N.J. Super. 467 (App. Div.), certif. denied, 203 N.J. 439 (2010), Judge Rohde held that the statute does not authorize expungement of a finding of abuse and neglect as an element of a suspended judgment. He, therefore, relieved the Division of this obligation. It is from this order that M.A. appeals.
On appeal, M.A. argues that the trial judge's initial order requiring removal of her name from the Central Registry was valid and must be enforced. She contends that this court's decision in R.M. was wrongly decided, the court found that neglect was not substantiated, the stipulated facts do not constitute child neglect, and she stipulated to an act of neglect with the expectation that the finding would be expunged if she successfully complied with the conditions attached to the suspended judgment disposition.
In R.M., we emphasized that suspended judgment is one of a panoply of remedies available to a judge following a finding of abuse or neglect. We held that "[t]he statutory language itself suggests that a suspended judgment was intended as an interim measure with the ultimate goal of maintaining the family unit." Id. at 478. It is a "carrot and stick" approach. Ibid.
In R.M., the mother contested the denial of her application for a suspended judgment. Id. at 469. In that case, the police responded to a call to address a domestic disturbance. Id. at 470. When they arrived, they found R.M. and her boyfriend quite intoxicated. Ibid. The boyfriend had been able to stop R.M. from driving away with her two young children in the car. Ibid. Both entered a stipulation that they used drugs and alcohol while their children were in their care and that their conduct put the children at risk of harm. Id. at 471-72.
Although we held that a suspended judgment was not a viable remedy for R.M. at the time she sought that disposition, id. at 480, we addressed the issue of whether a suspended judgment entitles a person, found to have committed an act of child abuse or neglect, to have the record of that finding expunged and their name removed from the Central Registry. In R.M., we recognized that placement of a person found to have committed an act of child abuse or neglect in the Central Registry is a collateral consequence of that finding. Id. at 480-81. We also held that successfully completing the terms and conditions of a suspended judgment do not allow expungement of the finding and removal of a person's name from the Central Registry. Id. at 482. We said:
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). [Id. at 480-81.]
We discern no basis to alter or disagree with this opinion. Furthermore, Judge Rohde recognized that R.M. disagreed with an earlier decision by a trial court judge, New Jersey Division of Youth & Family Services v. C.R., 387 N.J. Super. 363 (Ch. Div. 2006), and that he was bound to follow R.M. In short, Judge Rohde properly amended the prior oral order that the record of M.A.'s stipulated abuse and neglect of J.B.-A. must be expunged.
In addition, the record provides no basis to hold that M.A.'s actions did not meet the statutory definition of abuse and neglect, N.J.S.A. 9:6-8.21c, as interpreted by G.S. v. Department of Human Services, 157 N.J. 161 (1999). The record does support that M.A. acted impulsively and inconsistently between the time of J.B.-A.'s birth and the Division's actions to obtain custody, care and supervision of him on December 30, 2008. During that time, M.A. stated she did not love him or want him, offered her son to others, stated she would abandon him in an alley, and finally arrived at the hospital dressed in scrubs in an effort to thwart security and implement her stated intention to remove her son from the hospital. The record reveals that M.A. brought her son to the hospital because he was having difficulty breathing and a cardiac condition required his hospitalization. Undoubtedly, she was emotionally overwrought, but her stated intention to remove the intravenous lines and take her son home and her use of a disguise to gain access to her son exposed him to a significant risk of harm.*fn1
Finally, the record provides no basis that M.A. agreed to enter a stipulation of abuse and neglect with the expectation that the record would be expunged if the judge imposed a suspended judgment. In fact, the only reference to expungement is in the colloquy between counsel and the court after M.A. provided the factual basis for her stipulation and as the court moved from factfinding, i.e., whether M.A. abused or neglected her newborn son, to fashioning the appropriate remedy. Moreover, the colloquy emphasizes that the Division opposed the suspended judgment remedy and never agreed to expungement. Therefore, to the extent M.A. tries to fashion an argument that her stipulation was founded on an expectation of a specific remedy, the record does not support that position.