NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0974-11T3

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,1

Plaintiff-Respondent,

v.

S.A.,

Defendant-Appellant,

and

W.M. and M.A.,

Defendants.

_________________________________

IN THE MATTER OF S.A.,

A minor.

_________________________________

November 26, 2012

Submitted October 22, 2012 - Decided

Before Judges Espinosa and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-179-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Joseph A. Krakora, Public Defender, Law Guardian, attorney for minor S.A. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant mother S.A. (Susan)2 appeals from the March 24, 2011 order entered following a fact-finding hearing that she abused or neglected her infant son S.A. (Steven) by leaving him alone and unsupervised at home. In a parallel criminal matter involving the same incident, Susan pled guilty to child abuse in the fourth degree. As the Title Nine3 allegations and the criminal charges related to the same incident of abuse, we find that defendant is barred by collateral estoppel from challenging the findings of abuse or neglect and dismiss her appeal. We add only the following comments.

Susan gave birth to Steven on August 24, 2009. The Division of Youth and Family Services (DYFS or the Division) received three referrals in 2010 alleging Susan had left Steven alone. All were determined to be unfounded. The fourth referral came from the Jersey City Police Department on September 27, 2010.

Steven's maternal grandmother, M.A. (Maxine) reported that she received a call that Susan left her apartment without Steven and the caller suspected that Steven was alone in the home. Maxine called her mother, Steven's maternal great-grandmother D.H. (Doris), and asked her to go and check on Steven. Doris went to Susan's apartment and found the front door open and Steven alone and crying. The police responded and observed Steven, who was thirteen months old at the time, wearing soiled pants and no shirt. The child was taken to the hospital for examination and Susan was later arrested.

DYFS executed a Dodd removal4 and Steven was temporarily placed in a resource home. At a hearing on the Division's order to show cause, Maxine was awarded custody of Steven.

On January 12, 2011, a grand jury returned an indictment against Susan charging her with endangering the welfare of a child, N.J.S.A. 2C:24-4a (count one), and child abuse, N.J.S.A. 9:6-1 & 9:6-3 (count two).

On March, 22, 2011, Susan pled guilty to count two, admitting that on September 27, 2010, she had care and responsibility for Steven and left him alone for an extensive period of time.

On March 24, 2011, a fact-finding hearing was held on the Title Nine matter. Neither the mother nor her counsel informed the court of her guilty plea two days earlier and the court entered a finding of abuse and neglect based on the testimony of two DYFS caseworkers.

After the finding was entered, the mother requested that the Title Nine matter be dismissed as she did not want custody of her son.

"Collateral estoppel is that branch of the broader law of res judicata which bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action." State v. Gonzalez, 75 N.J. 181, 186 (1977). There are five identified conditions precedent to the application of the collateral estoppel doctrine for the doctrine to foreclose the relitigation of an issue. The party asserting the bar must show:

(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding."

[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006) (quoting In re Estate of Dawson, 136 N.J. 1, 20-21 (1994)).]

In this matter, these factors have been satisfied: (1) the issue to be precluded in the Title Nine proceedings - that Steven was abused or neglected pursuant to N.J.S.A. 9:6-8.9 and -8.21- was identical to the issue in the criminal case; (2) the issue was litigated and resolved by Susan's guilty plea; (3) the judgment of conviction represents a final judgment; (4) the determination of the issue of harm to the child was essential to the Title Nine court's judgment; and (5) there was privity as Susan was the defendant in both proceedings.

However, "'even where these requirements are met, the doctrine, which has its roots in equity, will not be applied when it is unfair to do so.'" Olivieri, supra, 186 N.J. at 521-22 (quoting Pace v. Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002)). The relevant focus "must center on whether the conditions precedent to the application of the collateral estoppel doctrine have been satisfied and, if so, whether the application of the doctrine is equitable under the circumstances." New Jersey Div. of Youth and Family Servs. v. R.D., 207 N.J. 88, 116 (2011).

While Title Nine abuse or neglect proceedings are governed by the preponderance of the evidence standard of proof, N.J.S.A. 9:6-8.46(b)(1), each element in the criminal charge must be established by proof beyond a reasonable doubt. N.J.S.A. 2C:1-13.

Applying those principles, we conclude that defendant had a full and fair opportunity to challenge the child abuse allegation in the criminal forum and conceded her guilt with her plea. All requirements of the general rule of collateral estoppel have been satisfied and no compelling circumstances indicate that the imposition of the doctrine is so unfair that equity demands that defendant should have her claims "heard anew" on this same issue. See Gannon v. Am. Home Prods., 211 N.J. 454, 480-481 (2012).

A

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 Fictional names are used to protect the privacy of the child.

3 "Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (citing N.J.S.A. 9:6-8.21 to -8.73).

4 "Dodd removal" refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82.