PARENT AND CHILD
CAIN v. CAIN
Appellate Division, A-4643-06T3, January 14, 2008, not approved for publication. (8 pages).
Order that denied the defendant father visitation with his 8-year-old daughter affirmed; the father was serving a five-year term for sexual assault on a minor; the father's application for visitation was governed by N.J.S.A. 9:2-4.1a, which provides that a person who has been convicted of sexual assault will not be awarded visitation with a minor child unless there is "a showing by clear and convincing evidence that it is in the best interest of the child" that visitation should be awarded; the only evidence before the Family Part on that issue was the reports from the daughter's therapist and behavioral assistant, which indicated that visitation would not be in her best interests; thus, there was substantial credible evidence in the record to support the Family Part's denial of the motion.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.H.
Appellate Division, A-4255-06T4, January 14, 2008, not approved for publication. (11 pages).
Order that terminated the defendant mother's parental rights to her son affirmed; there was ample support for the Family Part's determination that the plaintiff Division of Youth and Family Services had established by clear and convincing evidence (1) that the son had been harmed by the mother's "persistent substance abuse" and "failure to provide a safe and stable home," (2) that the mother was unable or unwilling to eliminate the harm to her son, (3) that DYFS had made reasonable efforts to assist the mother in correcting the circumstances that led to her son's placement outside of the home, and (4) that termination of the mother's parental rights would not do more harm than good; the Appellate Division declined to address the mother's argument that DYFS had violated the Child Placement Bill of Rights Act by placing the son in foster care, rather than with his maternal uncle and half-brother, because the issue was moot.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.H.
Appellate Division, A-3802-06T4, January 14, 2008, not approved for publication. (27 pages).
Order that terminated the defendant mother's parental rights and that awarded guardianship, care, custody, and control of the mother's 5-year-old daughter to the plaintiff Division of Youth and Family Services affirmed; the Appellate Division rejected the mother's arguments (1) that the Family Part had erred by concluding that DYFS had establish that she was unwilling or unable to remedy the harm that had caused her daughter's removal because the Family Part essentially had shifted the burden of proof by requiring that she demonstrate that she would remain drug-free, rather than requiring that DYFS demonstrate the likelihood of her relapse into addiction, (2) that the Family Part had not considered "the alternative of continued temporary placement with relatives" until reunification could be achieved, and (3) that the Family Part erred by concluding that DYFS had failed to establish that termination of the mother's parental rights would not do more harm than good.

DRUNK DRIVING
STATE v. CONROY
Appellate Division, A-2384-06T5, approved for publication January 9, 2008. (15 pages).
A defendant who has three prior convictions for driving while intoxicated is entitled to the benefit of the 10-year step-down provision in N.J.S.A. 30:4-50(a)(3) on a fourth conviction where the first conviction was entered by way of an uncounseled plea.

DRUNK DRIVING
STATE v. POLITO
Appellate Division, A-6197-05T5 and A-1586-06T5, January 7, 2008, not approved for publication. (4 pages).
Convictions for driving while intoxicated and sentences as third offenders affirmed; the defendants argued that the 2004 amendment to N.J.S.A. 39:4-50(a)(3) - which eliminated the trial court's discretion to sentence a defendant to community service for 90 days of the 180-day prison term for a third offense and which instead granted the trial court the discretion to sentence the defendant to a 90-day in-patient alcohol rehabilitation program in lieu of 90 days of the 180-day prison term - was an unconstitutional ex post facto law as applied to their sentences; the amendment was enacted before the defendants had committed their offenses; thus, the amendment's application to their sentences did not violate the New Jersey or federal constitutional prohibitions against ex post facto laws.

HUSBAND AND WIFE
SENDER v. SENDER
Appellate Division, A-2088-06T3, January 7, 2008, not approved for publication. (15 pages).
Post-divorce-judgment order that reduced the defendant ex-husband's child support and alimony obligations and that allocated the parties' obligations for the education expenses of their children remanded for reconsideration; the ex-husband argued that the Family Part had erred by failing to order a greater reduction in child support and alimony and by allocating an excessive portion of the education expenses to him; the Appellate Division found "merit in some of the arguments" that the ex-husband had advanced; the Family Part erred by considering incomes earned by physicians as part of its basis for imputing income to the ex-husband at a time when his medical license was suspended and he was legally prohibited from practicing medicine; furthermore, it was inappropriate for the Family Part to set the percentage allocation of the education expenses in accordance with the parties income without considering other relevant factors.

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