NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.M.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF I.L.,

C.L., AND I.T.,

Minor Children.

___________________________________

Argued Telephonically November 6, 2009 -

Decided

Before Judges Cuff, Payne and Waugh.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Hunterdon

County, Docket No. FN-10-133-08.

Carol Willner, Designated Counsel, argued

the cause for appellant (Yvonne Smith

Segars, Public Defender, attorney; Ms.

Willner, on the brief).

Peter Alvino, Deputy Attorney General,

argued the cause for respondent (Anne

Milgram, Attorney General, attorney; Andrea

M. Silkowitz, Assistant Attorney General, of

counsel; Andrea D'Aleo, Deputy Attorney

General, on the brief).

February 5, 2010

Amy Vasquez, Designated Counsel, argued the

cause for the minor children (Yvonne Smith

Segars, Public Defender, Law Guardian,

attorney; Ms. Vasquez, on the brief).

The opinion of the court was delivered by

WAUGH, J.A.D.

Defendant R.M. 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

Division of Youth and Family Services (Division) charging her

with child neglect as defined by N.J.S.A. 9:6-8.21. This appeal

requires us to determine (1) the criteria for application of the

"suspended judgment" provision of N.J.S.A. 9:6-8.51(a)(1); and

(2) whether successful completion of a period of suspended

judgment necessarily leads to the removal of the underlying

finding of abuse or neglect from the central registry maintained

by the Division pursuant to N.J.S.A. 9:6-8.11.

I.

We discern the following factual background from the

documents in the record, no testimony having been taken in

connection with this matter.

R.M. and J.L. are the parents of two minor children, C.L.,

who was born in February 2008, and I.L., who was born in October

2006. R.M. is also the mother of I.T., who was born in January

when the underlying incident occurred.

On May 10, 2008, Raritan Township Police Officer Matthew H.

Lawrence investigated a report that there was a domestic

disturbance at R.M.'s residence in Flemington. When Lawrence

arrived at the residence, J.L. was in front of the home, holding

I.L. R.M. was running around the front yard holding C.L., who

was in his car seat at the time. J.L. was apparently attempting

to prevent R.M. from driving with the children in her car.

R.M. told Lawrence that J.L. had attacked her, but Lawrence

observed no injuries on R.M. However, Lawrence observed a

laceration on J.L.'s nose, which J.L. maintained had been caused

by R.M.

Lawrence determined that R.M. and J.L. were highly

intoxicated. R.M. took a breathalyzer test, which showed that

she was "significantly" over the legal limit for operating a

motor vehicle. N.J.S.A. 39:4-50. She was placed under arrest

for simple assault and taken to police headquarters. The police

notified the Division, as required by N.J.S.A. 9:6-8.10.

The Division responded and conducted interviews with R.M.,

J.L., and the children. During their interviews, R.M. and J.L.

the underlying incident.

confirmed that they had been caring for C.L. and I.L. when the

altercation occurred and that they had been drinking. R.M.

denied using cocaine, but J.L. stated that both of them had used

cocaine that evening. R.M. subsequently admitted to cocaine

use.

After the interviews, R.M. and J.L. agreed to a "Safety

Protection Plan" in which the Division placed the children,

including I.T., in the care of their respective paternal

grandparents. Following the Division's recommendations, R.M.

and J.L. completed substance abuse evaluations on May 13, 2008.

The evaluations recommended that they both receive outpatient

treatment.

The Division filed a verified complaint for custody and

sought emergent relief on May 19, 2008. The Family Part judge

granted the emergent relief that day. She found that the

children's welfare was at risk because of the allegations that

R.M. and J.L. used cocaine and engaged in domestic violence

while caring for the children. She granted custody to the

Division, ordered that the children remain in the care of their

respective paternal grandparents, and granted "liberal," but

supervised, visitation to all three of the children's parents.

The order also required that R.M. and J.L. complete risk

assessments, undergo substance abuse treatment, and submit to

random urine screenings.

On June 19, 2008, the return date of the Division's order

to show cause, the judge entered an order continuing the

Division's custody of the children. The order also required

that R.M. and J.L. complete their risk assessments, and continue

with substance abuse treatment and urine screenings.

On July 29, 2008, R.M. and J.L. underwent risk assessments

with Catholic Charities. The assessments revealed that both

J.L. and R.M. had histories of occasional marijuana and cocaine

use. J.L. asserted that, except for the night of the incident,

he was no longer using drugs. R.M. asserted that she stopped

using marijuana once she became pregnant, and had occasionally

used cocaine at social events. The examiner recommended that

R.M. and J.L. complete their substance abuse programs and follow

the recommendations of their counselors; and that they continue

with random urine screenings. The examiner also recommended

that they take couples counseling to improve family relations.

The assessments concluded that R.M. and J.L. presented a

"moderate to low risk to their children," and that returning the

children might be appropriate upon the couple's successful

completion of the prescribed treatment and counseling.

On August 21, 2008, the judge returned physical and legal

custody of the children to R.M. and J.L., but authorized the

Division to maintain care and supervision of the children. She

also permitted the Division to make unannounced home visits.

The order further required that R.M. and J.L. continue to adhere

to the recommendations set forth in their respective risk

assessments.

At a September 18, 2008, hearing before a different Family

Part judge, R.M. and J.L. each waived their right to a

factfinding hearing and admitted to having used drugs and

alcohol at the time they were caring for C.L. and I.L. They

each stipulated that their conduct put the children at risk of

harm. Based upon their sworn admissions, the judge found that

R.M. and J.L. had "knowingly, willingly and voluntarily"

admitted to acts of child neglect. The judge entered an order

keeping the children in the custody of R.M. and J.L., but also

continuing the Division's oversight.

At the September 18 hearing, R.M. requested that the judge

enter a "suspended judgment" in her case. R.M.'s ultimate goal

in doing so was to have her name removed from the Division's

central registry, 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); N.J. Div. of Youth & Family Servs. v.

S.S., 372 N.J. Super. 13, 27 (App. Div. 2004), certif. denied,

182 N.J. 426 (2005). The Division opposed such a disposition

and requested that the issue be briefed. Consequently, the

judge deferred decision on whether to grant R.M.'s request and

required the parties to submit briefs.

On November 6, 2008, the judge heard oral argument on R.M's

request for a suspended judgment. He denied the application,

relying on New Jersey Division of Youth & Family Services v.

C.R., 387 N.J. Super. 363, 371 (Ch. Div. 2006), which held that

a suspended judgment "is a unique relief that may only be

available in rare cases." The judge determined that a case

could not be characterized as "rare" or "unique" simply because

a parent had complied with the remedial requirements ordered by

the court. He also observed that "unfortunately, drug cases

where there's addiction or use are not rare and unique."

It appears that, although the judge felt constrained by the

narrowness of the stipulated facts, he concluded that facts

outside the stipulation would be relevant to the issue before

him. He expressed concern about (1) the use of both alcohol and

cocaine, which he concluded could not have been a one time

event; (2) the allegations of domestic violence; (3) the

apparent need initially to remove the children and to require

supervised parenting time; and (4) the fact that, because R.M.

was a daycare provider, there was a potential harm to others if

the finding of abuse was removed from the registry.

At the close of the hearing, the judge signed an order

granting the Division's request to terminate the litigation

because "the child(ren) have been returned home, [and]

conditions have been remediated." The order provided for the

children to remain in the legal and physical custody of R.M. and

J.L. It also denied the application for a suspended judgment,

but noted that the order would not preclude R.M. from seeking

relief under Rule 4:50 or N.J.S.A. 9:6-8.59.

This appeal followed.

II.

R.M. raises the following issues on appeal:

I. THE COURT BELOW ERRED IN REQUIRING

RARENESS AND UNIQUENESS AS A CONDITION FOR

SUSPENDED JUDGMENT.

II. THE COURT BELOW ERRED IN DENYING

SUSPENDED JUDGMENT UNDER THE STATUTE AND

CASE LAW BECAUSE R.M. MEETS EACH OF THE FOUR

PRONGS.

A. R.M. Meets the First Prong of

the Test Because She Has No Prior

History of Neglect.

B. R.M.'s Offense, While Not

Trivial, Does Not Reach a Level of

Seriousness That Should Preclude

Suspended Judgment.

C. [The Judge's] Opinion With

Regard to R.M.'s Acknowledgement

and Expression of Remorse is Based

Upon Personal Opinion of Such

Expressions in General and Not On

R.M.'s Individual Fulfillment of

the Third Prong Requirement.

D. R.M. Complied With Each and

Every Required Condition Including

Court Ordered Services, Treatment,

And Efforts In Rehabilitating The

Relationship With The Children.

III. [THE JUDGE] ERRED BY NOT FULLY

EVALUATING AND GIVING WEIGHT TO EACH OF THE

FOUR PRONGS.

IV. THE COURT'S COMMENTARY ON WHETHER

R.M.'S OFFENSE WAS A FIRST AND ONLY ABUSE IS

UNWARRANTED AS THERE IS NO EVIDENCE OF

PREVIOUS ACTS ON WHICH TO BASE THIS

SPECULATION.

Before turning to the specific issues raised on this

appeal, we briefly address our standard of review. We

ordinarily accord great deference to the discretionary decisions

of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super.

117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J.

Super. 17, 21 (App. Div. 2006)). Similar deference is accorded

to the factual findings of those judges, when they are based on

the taking of testimony. Cesare v. Cesare, 154 N.J. 394, 411-12

(1998). A judge's purely legal decisions, however, are subject

to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190,

194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super.

488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

A.

N.J.S.A. 9:6-8.51(a)(1), which permits a suspended

judgment, was enacted in 1974 as part of L. 1974, c. 119, which

was comprehensive legislation "concerning the manner of

disposition of cases of child abuse or neglect" according to its

title. The Legislature's "paramount concern" in adopting the

statute, which is commonly referred to as Title Nine, was the

"health and safety" of the children involved. N.J.S.A. 9:6-

8.8(a). See N.J. Div. of Youth and Family Servs. v. G.M., 198

N.J. 382, 397 (2009).

The legislation created a two-step hearing process for

adjudicating contested cases of abuse or neglect. N.J.S.A. 9:6-

8.47. In G.M., supra, 198 N.J. at 397-401, the Supreme Court

described those two hearings as "critical stages" in the

processing of abuse and neglect cases.

The first step is the "fact-finding hearing," which is held

to "determine whether the child is an abused or neglected

child." N.J.S.A. 9:6-8.44. Upon completion of that hearing,

the court is authorized to take one or more of five actions: (a)

enter a finding of abuse or neglect; (b) amend the complaint to

conform to the proofs, which requires that the respondent be

given a reasonable opportunity to answer the amended complaint;

(c) dismiss the complaint for lack of proof or because the

record does not support the need for court intervention; (d)

enter an order for interim relief to protect the child or

children involved; or (e) make a referral to the Division to

"provide such services as are deemed appropriate to the ends of

protecting the child and rehabilitating and improving family

life, wherever possible." N.J.S.A. 9:6-8.50. We note that the

choices are not mutually exclusive, with the exception that

dismissal under N.J.S.A. 9:6-8.50(c) would preclude further

action by the court.

If abuse or neglect is established as a result of the factfinding

hearing, the second step is the "dispositional hearing."

N.J.S.A. 9:6-8.45. That hearing "may commence immediately after

the required findings [resulting from the fact-finding hearing]

are made." N.J.S.A. 9:6-8.47(a). However, once the court has

made the required findings of fact, the dispositional hearing

may also be adjourned "to enable [the court] to make inquiry

into the surroundings, conditions, and capacities of the persons

involved in the proceedings." N.J.S.A. 9:6-8.48(b). In

addition, N.J.S.A. 9:6-8.50(e) permits the court to "suspend any

dispositional hearing indefinitely" in the event of a referral

to the Division for services to the family pursuant to N.J.S.A.

Once the dispositional hearing has been completed, N.J.S.A.

9:6-8.51(a) requires the court to enter an order adopting one or

more of six dispositional options, which are not all mutually

exclusive. The order may (1) suspend the judgment, subject to

the limitations of N.J.S.A. 9:6-8.52 discussed below; (2) return

the child to the custody of the parent or guardian, which may,

pursuant to N.J.S.A. 9:6-8.53, include placing the child under

the supervision of the Division or entering an order of

protection for not more than one year; (3) place the child with

a relative, other suitable person or the Division pursuant to

N.J.S.A. 9:6-8.54; (4) enter an order of protection pursuant to

N.J.S.A. 9:6-8.55; (5) place the individual found to have abused

or neglected a child on probation in accord with N.J.S.A. 9:6-

8.56; or (6) require that the individual accept therapeutic

services, which may be carried out in conjunction with any other

order of disposition.

N.J.S.A. 9:6-8.52 sets forth, in general terms, the

parameters of a suspended judgment:

a. The court shall define permissible terms

and conditions of a suspended judgment.

but was added by amendment in 1977. L. 1977, c. 209, § 24.

These terms and conditions shall relate to

the acts of commission or omission of the

parent or guardian.

b. The maximum duration of any term or

condition of a suspended judgment shall be 1

year, unless the court finds at the

conclusion of that period, upon a hearing,

that exceptional circumstances required an

extension thereof for an additional year.

Pursuant to N.J.S.A. 9:6-8.66, if a parent or guardian is

"brought before the court for failing to comply with the terms

and conditions of a suspended judgment" and the court

determines, "after hearing" and "by competent proof," "that the

parent or guardian did so, the court may revoke the suspension

of judgment and enter any order that might have been made at the

time judgment was suspended." See N.J. Div. of Youth & Family

Servs. v. G.M. (In re K.M.), 398 N.J. Super. 21, 41 (App. Div.

2008), aff'd in part and modified in part, supra, 198 N.J. at

401-05.

The statute is silent, however, as to what happens at the

end of a successful period of suspended judgment. Our research

has not revealed any legislative history that addresses the

issue, nor are there any reported Appellate Division or Supreme

Court cases providing guidance. Although the Supreme Court

noted the availability of the suspended judgment option in G.M.,

supra, 198 N.J. at 399, there was no occasion in that case to

address the issues now before us.

There is one reported trial court decision that addresses

those issues. In C.R., supra, 387 N.J. Super. at 373-74, the

Family Part analogized the "suspended judgment" provision of

N.J.S.A. 9:6-8.51(a)(1) to pretrial intervention (PTI) in

criminal cases, N.J.S.A. 2C:43-12; Rule 3:28. In dicta, the

judge assumed that successful completion of the period of

suspension, like successful completion of PTI, would result in

the return of the children to the parent or guardian, the

dismissal of the complaint, and what would amount to the

expungement of the earlier finding of abuse or neglect. C.R.,

to enter a suspended judgment. Id. at 379.

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

the abusive/neglectful nature of his or her

act; and (4) defendant's amenability to

correction, including compliance with courtordered

services, treatment, and his or her

although it was applied in one of our unreported decisions and

mentioned, but not applied, in another. See N.J. Div. of Youth

& Family Servs. v. C.P. (In re Z.P.), No. A-3590-06 (App. Div.

Mar. 20, 2008); N.J. Div. Of Youth & Family Servs. v. R.R., No.

A-6474-06 (App. Div. Sept. 16, 2008).

efforts in rehabilitating the relationship

with the child[ren].

[Id. at 375.]

B.

R.M. relies on C.R., and argues that the Family Part judge

erred in applying its four factors. The Law Guardian,

representing the minor children, supports C.R.'s position. The

Division argues that the judge did not abuse his discretion in

denying her application. In addition, the Division argues that

we should overrule C.R. to the extent it holds that successful

completion of a period of suspended judgment automatically

requires the expungement of the underlying finding of abuse or

neglect from the central registry.

Because the statute is unclear as to the consequences of

the successful completion of a suspended judgment, we must seek

to ascertain the Legislature's intent in that regard. G.M.,

supra, 198 N.J. at 403. We look first to the "plain words of

the statute, read in context with the related portions of Title

Nine." Ibid.

As we have already observed, the overall statutory scheme

calls for a two-step process. By the time the judge holds a

dispositional hearing, the first step, a finding of abuse or

neglect, has necessarily taken place. The issue for decision at

that point is how to resolve the matter in terms of whether the

child will ultimately remain with the parent or be placed

elsewhere on a permanent basis. Our reading of the statutory

scheme is that a suspended judgment was intended primarily as a

temporary alternative to the final return of the child to the

parent or placement of the child with the Division or other

individuals.

The statutory language itself suggests that a suspended

judgment was intended as an interim measure with the ultimate

goal of maintaining the family unit. N.J.S.A. 9:6-8.52(a)

specifically requires a judge ordering a period of suspended

judgment to "define [its] permissible terms and conditions,"

which "shall relate to the acts of commission or omission of the

parent or guardian." That language suggests that further

remediation of the issues that gave rise to the Division's

involvement is necessary before a final determination is made as

to maintaining the family unit or seeking an alternate

placement. In essence, the suspended judgment option takes a

"carrot and stick" approach. If the terms and conditions are

not satisfied, the judge can revoke the suspension and order a

placement. By implication, if the period of suspended judgment

is successfully completed, the child is returned to, or is

permitted to remain with, the parent and the matter is

concluded. In any event, the period of suspension must

terminate within the one-year period set by N.J.S.A. 9:6-

8.52(b), absent an extension based upon a finding of

"exceptional circumstances."

Our interpretation is supported by the interpretation of

similar language under New York law. As did the judge in C.R.,

supra, 387 N.J. Super. at 371-72, we note the similarity between

our statutory language and certain provisions of New York law

dealing with neglect cases. Although the statutes are by no

means identical, New York also has the two-stage hearing

process, N.Y. Fam. Ct. Act § 625 (Consol. 2010), and the option

for entry of a suspended judgment following the dispositional

hearing. N.Y. Fam. Ct. Act § 631(b) (Consol. 2010); N.Y. Fam.

Ct. Act § 633 (Consol. 2010).

In New York, a suspended judgment is understood to provide

an opportunity for a parent to avoid termination of parental

rights. In 3-38 N.Y. Civil Practice: Family Court Proceedings §

38.10 (2009) (footnote omitted), the practitioner is given the

following advice with respect to a suspended judgment:

Clearly, a parent who has not prevailed

at fact-finding (i.e., the court ruled that

the parent permanently neglected the child)

will ordinarily seek a disposition of

suspended judgment. In other words, all is

not lost for the parent who is adjudicated a

permanently neglectful parent, for that

parent may seek what is essentially a second

chance - the disposition of suspended

judgment. The court retains discretion to

condition its disposition on the parents

submitting to rehabilitation services and

the court has the discretion to revoke the

suspended judgment if the parent fails to

abide by the conditions of the order.

. . . .

. . . Unless a motion or order to show

of the period of suspended judgment alleging

a violation or seeking an extension, the

terms of the suspended judgment shall be

deemed satisfied and an order committing the

guardianship and custody of the child shall

not be entered.

The Family Part judges in this case and in C.R. both noted

that few judges appear to utilize the suspended judgment

procedure. That is also our experience, as exemplified by the

paucity of cases concerning the procedure. The likely

explanation in our view is that most judges routinely utilize

procedures, such as N.J.S.A. 9:6-8.50(e), to defer or "suspend

[] dispositional hearing[s] indefinitely" because of referrals

the provisions of Rule 5:12, which governs Title Nine cases.

In the case before us, the original Family Part judge

generally followed the procedures set out in Rule 5:12.

of such services is generally required to satisfy the third

prong of N.J.S.A. 30:4C-15.1(a). See also N.J. Div. of Youth

and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting

the four controlling standards later codified in Title 30).

Emergent custody was awarded to the Division on May 19, 2008,

pursuant to Rule 5:12-1(d). On June 19, 2008, the return date

of the Division's order to show cause, the judge continued

custody with the Division while both parents continued to

receive services. Rule 5:12-4(a). On August 21, 2008,

following a status review, Rule 5:12-4(h), the judge returned

custody to the parents, but continued the Division's supervisory

role while the parents continued to receive services.

The events required by Title Nine were not implemented

until September 18, 2008, when the parents waived their right to

the fact-finding hearing required by N.J.S.A. 9:6-8.47 and

stipulated that there had been an act of neglect. Based upon

those admissions, a different Family Part judge made the finding

of neglect required by N.J.S.A. 9:6-8.50. The judge immediately

proceeded to the dispositional hearing required by N.J.S.A. 9:6-

8.47, although he deferred consideration of R.M.'s motion for a

suspended judgment. The judge maintained the children in the

custody of their parents, but also continued the Division's

supervision. That was a disposition entirely consistent with

N.J.S.A. 9:6-8.51(a)(2) and N.J.S.A. 9:6-8.53.

In our view, R.M.'s application for a suspended judgment

was essentially moot at that point, because the judge had

disposed of the matter pursuant to N.J.S.A. 9:6-8.51(a)(2) and

the Division was not seeking termination of parental rights or

placement outside the home. The judge did not abuse his

discretion by refusing to employ a statutory provision that was

no longer viable.

C.

We also reject R.M.'s argument that she should have been

allowed to have a suspended judgment because it would have

resulted in the expungement of the underlying finding of child

neglect. 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. J.L., supra, 410 N.J. Super. at

174.

We are cognizant of the implications of a finding of child

abuse or neglect and its accessibility to certain employers

through the central registry, 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 (App. Div.

1998); N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J.

Super. 390, 404-05 (App. Div. 1998); J.L., supra, 410 N.J.

Super. at 170-74. Nevertheless, in this case, there was clear

evidence that R.M. had used drugs and alcohol at a time when she

was caring for her young children and there was a strong basis

to conclude that she would have driven with them under those

circumstances had she not been prevented from doing so. Even

were we to determine that expungement through a suspended

judgment is a viable option, we would not find that the Family

judge abused his discretion in denying such relief to R.M.

III.

In summary, we conclude 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). We also conclude

that successful completion of a period of suspended judgment

does not result in expungement of the underlying finding of

abuse or neglect. Because we find no basis to conclude that the

Legislature intended the suspended judgment provision of

N.J.S.A. 9:6-8.51(a)(1) to provide the equivalent of PTI in

abuse and neglect cases, we overrule C.R.

Finally, we affirm the order on appeal, based upon our

conclusion that a suspended judgment was not a viable option at

the time the order was entered and that, in any event, the

Family Part judge did not abuse his discretion in disposing of

the case against R.M. pursuant to N.J.S.A. 9:6-8.51(a)(2).

Affirmed.