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In re Y.D.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 8, 2016
DOCKET NO. A-1641-14T4 (App. Div. Dec. 8, 2016)

Opinion

DOCKET NO. A-1641-14T4

12-08-2016

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. O.D. and M.D., Defendants, and M.D., Defendant-Appellant. IN THE MATTER OF Y.D., N.D., P.D., A.D., E.D., and W.D., minors.

Deric Wu, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wu, of counsel and on the briefs). Christian A. Arnold, Assistant Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Arnold, on the brief). Olivia Belfatto Crisp, Assistant Deputy Public Defender argued the cause for minor Y.D. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Belfatto Crisp, of counsel and on the brief). James J. Gross, Designated Counsel, argued the cause for minors N.D., P.D., A.D., E.D., and W.D. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Gross, on the brief).


RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Koblitz, Rothstadt and Sumners. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-118-14. Deric Wu, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wu, of counsel and on the briefs). Christian A. Arnold, Assistant Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Arnold, on the brief). Olivia Belfatto Crisp, Assistant Deputy Public Defender argued the cause for minor Y.D. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Belfatto Crisp, of counsel and on the brief). James J. Gross, Designated Counsel, argued the cause for minors N.D., P.D., A.D., E.D., and W.D. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Gross, on the brief). PER CURIAM

In this Title Nine case, M.D. appeals from an October 21, 2014 order entered by the Family Part denying her motion to compel Division of Child Protection and Permanency (Division) (1) to expunge its records of an administrative "established" finding that she neglected her thirteen-year-old stepdaughter, Y.D. (Yvette), or (2) to conduct a fact-finding hearing. We affirm.

Pseudonyms and initials are used to protect the privacy of those involved pursuant to R. 1:38-3(d)(12).

The case became ripe for appeal when the court entered a final order terminating the litigation on the same day.

The Division became involved with M.D. and her stepdaughter, Yvette, on April 14, 2014, at which time the two resided together with Yvette's father — O.D. (Omar) — her younger brother, two younger half-siblings, and two older stepsisters. The Division received a referral from Yvette's school reporting that she had "[two] welts on her back" and told "her teacher that [Omar] hit her with a belt [five] times" the day before. According to the referent, Yvette stated that M.D. "was in the room and left the room when [Omar] began to hit her."

Several weeks earlier, Yvette arrived at school with a black eye and informed the school nurse "she fell on the ice." M.D. later corroborated Yvette's story to the nurse. The referent stated that on the day of the report, Yvette disclosed the real "reason she had a black eye was because her father hit her."

That evening a Division Special Response Unit worker interviewed Yvette, who stated that Omar hit her with a belt and had previously given her a black eye by striking her. Yvette further recounted that M.D. had informed the doctor who examined her eye that the injury resulted from slipping on ice. M.D. admitted that she misinformed the doctor and the nurse about the cause of Yvette's black eye, but stated that she did not see Omar strike Yvette and had attempted to intervene in the belt incident. The Division performed an emergency Dodd removal of Yvette from the home.

"Pursuant to N.J.S.A. 9:6-8.29, legislation sponsored by Senator Dodd, the Division is authorized to take custody of a child on an emergency basis in order to protect the child's safety." N.J. Div. of Child Prot. & Permanency v. K.G., 445 N.J. Super. 324, 329 n.3 (App. Div.), certif. denied, ___ N.J. ___ (2016).

At a June 25, 2014 review hearing, the Division advised the judge that "the cases against [Omar and M.D.] ha[d] been established." Two months later, M.D. filed the motion currently on appeal, which was denied at a hearing on the motion on October 21, 2014. The Division moved to terminate the litigation, which the judge granted without opposition, and Yvette was ordered to remain in her grandmother's custody.

On or about May 15, 2014, the Division completed its investigation summary. Under the "findings" section of the summary, the Division "established" Omar for physical abuse and M.D. for neglect. With respect to M.D., the summary stated that she "failed to protect [Yvette] when [Omar] beat her with the belt." --------

M.D. argues on appeal that because new administrative regulations do not permit an administrative hearing to contest a finding of "established," see N.J.A.C. 10:120A-4.3(a)(2) (providing for administrative review only of "substantiated" findings), she is entitled to a fact-finding in Superior Court prior to dismissal of the action. Many people found administratively to have abused or neglected children are not brought by the Division to Superior Court. See N.J.A.C. 10:15-1.2 (defining "child protective services" which are available to caretakers during the course of an abuse or neglect investigation); see also N.J.S.A. 30:4C-12 (requiring a court order to compel the involuntary acceptance of child protective services). It is unreasonable to suggest that only those who are brought to court are entitled to hearings when allegations are "established." An "established" allegation is a finding of abuse or neglect that does not rise to the severity of a "substantiated" allegation. N.J.A.C. 10:129-7.3(c)(2).

M.D. may continue to seek a hearing to contest the "established" finding by appealing that finding administratively. If successful, she would be entitled to a hearing before an Administrative Law Judge. The Division conceded at oral argument that this appeal has tolled M.D.'s time to appeal the "established" finding administratively. M.D.'s argument, expressed at oral argument, that she would not have counsel appointed for her administrative appeal is not a reason to allow her to litigate in the Superior Court, as she should be afforded no greater protections than any other litigant faced with administrative findings.

M.D. also argues on appeal that the trial court abused its discretion in dismissing this action prior to a fact-finding; however, when asked by the trial court what her position was regarding the Division's motion to dismiss, M.D.'s lawyer answered, "No objection." She cannot now change her position. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 341 (2010) (citing Spedick v. Murphy, 266 N.J. Super. 573, 593 (App. Div.), certif. denied, 134 N.J. 567 (1993) ("A party who consents to, acquiesces in, or encourages an error cannot use that error as the basis for an objection on appeal."). "The decision whether to dismiss a matter without prejudice under Rule 4:37-1(b) lies within the judge's sound discretion." A.T. v. Cohen, 445 N.J. Super. 300, 307 (App. Div. 2016). "In exercising that discretion, the court is chiefly required to protect 'the rights of the defendant.'" Shulas v. Estabrook, 385 N.J. Super. 91, 97 (2006) (quoting Burke v. Cent. R.R. Co., 42 N.J. Super. 387, 398 (App. Div. 1956)). M.D. maintains the right to litigate her claims with regard to the "established" finding administratively.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

In re Y.D.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 8, 2016
DOCKET NO. A-1641-14T4 (App. Div. Dec. 8, 2016)
Case details for

In re Y.D.

Case Details

Full title:NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Dec 8, 2016

Citations

DOCKET NO. A-1641-14T4 (App. Div. Dec. 8, 2016)