Before Judges Stern, Braithwaite and Wecker.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Chancery Division, Somerset County.
Defendant, M.S., appeals from orders entered on July 10, 1998, and August 17, 1998, and portions of an order entered on January 13, 1999. *fn1
This case is an example of a tragic but recurring dilemma in certain family court cases involving allegations of child sexual abuse. On the one hand, there are clearly cases of imagined or even fabricated charges against a parent, especially when raised during the pendency of divorce proceedings. For a parent to stand accused of such an offense is devastating both to that individual, and to the child's lifelong relationship with the parent. On the other hand, proof of such abuse, especially involving a very young child, is rarely clear, and the potential danger to a child from a reoccurrence, if the suspicions and accusations are well-founded, is enormous.
The thrust of the appeal is that the Family Part Judge erred in ordering (1) reunification of a child, A., with her father, plaintiff P.T., and with her paternal grandparents, plaintiffs A.T. and H.T.; (2) the start of unsupervised visitation; and (3) a change from sole to joint legal custody, all without ever conducting a plenary hearing on the child's best interests. Defendant, the child's mother, contends that the Judge erroneously relied on a 1996 agreement resulting in a consent order that purportedly waived such a hearing and ceded the court's authority to an appointed expert psychologist.
Defendant also appeals from the determination that she is in contempt of court and in violation of plaintiffs' litigants' rights by obstructing the reunification process, and ordering her to pay plaintiffs' attorneys' fees as a sanction. Finally, defendant seeks a remand and reassignment to another Judge. We agree with essentially all of defendant's contentions.
As a result of our review of the extensive record, we are convinced that the orders appealed from must be reversed. Specifically, we reverse the orders changing sole custody in M.S. to joint legal custody between M.S. and P.T., ordering reunification and unsupervised visitation to begin, and finding M.S. to be in violation of litigants' rights. We remand the case to the Family Part, to be assigned to a different Judge, who shall within ninety days conduct a closed hearing to address questions surrounding the child's best interest, specifically, whether reunification with her father and her paternal grandparents, including supervised and unsupervised visitation, serves that interest, and if so, the conditions for proceeding.
This appeal reminds us of the limitations of judicial, legal, and psychology professionals in the face of unknowable private conduct between a parent and a child. Our courts are too frequently faced with such tragic conflicts, often contemporaneous with divorce proceedings, when one parent accuses the other of sexually abusing their child. The limitations of our ability to know the truth place us all, particularly the Judge, on the horns of a dilemma. If the accusation is accurate, we must protect the child at all costs. On the other hand, if the accusation is inaccurate, the child's relationship with the accused parent will unnecessarily be impaired, if not destroyed, and the accused parent's reputation irreparably damaged. We recognize that an inaccurate accusation can result from an honest mistake, as well as a knowing fabrication. When the breakdown of the parents' marriage precedes the accusation, the truth-seeking process is even more complex. Particularly in the case of a very young child, whose verbal communication is limited, the truth is frequently impossible to discover. Medical experts tell us that physical examination of a young child is rarely conclusive, except in the most physically violent cases.
These introductory remarks are intended only to highlight the dilemma faced by any Judge addressing a dispute over parental visitation in such circumstances. An appellate court attempting to review the record is at an even greater disadvantage, and generally gives great weight, if not complete deference, to the facts found by the Judge who has seen and heard the parties, the child, and both expert and lay witnesses. See Palermo v. Palermo, 164 N.J. Super. 492, 498-99 (App. Div. 1978); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474, 484 (1974). Here, there was no plenary hearing, and we find such basic legal errors in the proceedings leading up to this appeal, that we are compelled to reverse and remand the matter to the Family Part, with instructions that the matter be assigned to a different Judge.
We are faced here with a mother's appeal from sanctions imposed by a Family Part Judge as a result of the Judge's finding that the mother did not comply with court orders to cooperate in the "reunification" of the parties' nine-year-old daughter with her father. The parents, divorced in June 1995, had separated several years earlier as a direct result of adjudicated incidents of domestic violence. Visitation with the father, plaintiff P.T., was barred as a result of allegations of sexual abuse of this child.
The child, A., now ten-years old, *fn2 has lived all her life with her mother and an older half-brother and half-sister. Except for several supervised visits with her father in 1994 or 1995, and again in the fall of 1998, A. has had no contact either with her father or his parents *fn3 since 1993. Since that time, M.S. and P.T., along with P.T.'s parents, A.T. and H.T., various therapists, guardians ad litem and the court, have been embroiled in a continuing battle over whether and how the child should be reunified with her father and her parental grandparents, and whether the mother has unjustifiably impeded reunification. The court proceedings, however, have focused far more on whether the mother has violated various interlocutory orders respecting the procedure for reunification, than on determining what is best for the child.
The record is replete with evidence that M.S. was the victim of P.T.'s physical violence during their brief marriage. The record also provides evidence that the psychologists and guardian ad litem who interacted directly with A. from 1993 through 1995 found reason to believe that she had been sexually abused by her father. The record also includes P.T.'s denials. Recognizing that the facts surrounding these allegations have not been (and likely never can be) determined with certainty, we are convinced nevertheless that this background has been unfairly excluded from the 1998 proceedings leading up to the determination that M.S. violated plaintiffs' rights.
I. FACTUAL AND PROCEDURAL HISTORY
Some details of the history are essential to understanding our decision. In June 1991, when A. was not quite two years old, P.T. filed a complaint for divorce against M.S. P.T. pled guilty to assaulting M.S., and a permanent restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 et seq., was entered against him.
A. The Allegations of Sexual Abuse
In December 1992, when A. was almost three and one half, M.S. contacted a mental health clinic, reporting and requesting an evaluation of A.'s descriptions of sexual abuse by P.T. The evaluating therapist *fn4 who treated the child at M.S.'s request concluded, in a March 1993 report to the Division of Youth and Family Services ("DYFS"), that A. had been sexually abused by her father. As part of the investigation of the sexual abuse charge, a pediatrician examined A. and reported no physical evidence of sexual abuse, but explained that because any visible trauma associated with the kind of contact the child reported would have healed within fourteen days, the results of her physical examination were inconclusive.
DYFS and the Somerset County Prosecutor's office thereafter concluded that the allegations could not be substantiated, because A.'s interviews were inconsistent and she was insufficiently communicative. However, as a result of defendant's allegations, the court terminated P.T.'s visitation with A. Visitation was continued with P.T.'s parents. The court then appointed Dr. Madeline Simring Milchman to conduct an independent psychological evaluation of the allegations and submit a report to the court. The court also appointed Amy Shimalla, Esq., as guardian ad litem for A.
Dr. Milchman conducted extensive interviews with the parties, including joint sessions involving A., both parents, and P.T.'s parents, H.T. and A.T. Dr. Milchman also interviewed M.S.'s two older children, A.'s nursery school teachers, and a babysitter, and filed a detailed, 129-page report in July 1994. A. reported to Dr. Milchman that "daddy" touched her "private" and her "heiny" many times, and in several sessions she gave additional details. Dr. Milchman concluded that sexual abuse probably had occurred.
A.'s statements about her grandparents were less explicit, but she did say that they threatened her "if she told." Dr. Milchman concluded that these allegations should be considered seriously.
Dr. Milchman found P.T.`s behavior during joint sessions with his daughter inappropriate, in that he demanded physical contact with A. He resented Dr. Milchman's injunctions to respect A.'s wishes and to refrain from explicitly denying allegations of abuse in her presence. Dr. Milchman noted P.T.'s apparent lack of self-control, and reported that A. was "consistently frightened and withdrawn" during the joint sessions with her father. She concluded that M.S. was not attempting to alienate A. from her father, since A. was more willing to interact with him in the presence of her mother than in her mother's absence. Dr. Milchman found no evidence that M.S. had planted the allegations of sexual abuse with A.
Dr. Milchman reported that during joint sessions with P.T.'s mother and father, A. was friendly with her grandfather, but appeared frightened of her grandmother and withdrew from her. Dr. Milchman evaluated A.T. as controlling and hostile, with a high capacity for denial. She evaluated P.T. as aggressive, unable to deal with reality, and as having a "serious mental disturbance."
Dr. Milchman concluded that A. suffered from "symptoms of post-traumatic stress disorder with content-specific symptoms of sexual trauma." She recommended that contact between A. and P.T. should be suspended until her post-traumatic symptoms subsided. She recommended that all the parties should receive therapy, that any contact between A. and either P.T. or A.T. should occur only on recommendation of their respective therapists, and that supervised contact between H.T. and A. could be "considered."
Dr. Gerald Cooke, a psychologist retained by plaintiffs, reviewed and provided a written critique of Dr. Milchman's report, but never interviewed any of the parties. Dr. Cooke could not determine whether A. had been abused or not, and opined that future evaluations would "probably contribute little because of the confounding of the previous evaluations."
In May 1995, Amy Kavanaugh, A.'s psychologist, reported that A. had had negative symptoms, including enhanced anxiety and sleep difficulty, after visits with her father and paternal grandparents. Kavanaugh recommended against resuming visitation at that time.
In June 1995, Amy Shimalla, the court-appointed guardian, submitted her own report. She recommended that M.S. receive physical custody of A. She also recommended against joint legal custody on the ground that P.T.'s aggressiveness and the past history of the couple would prevent effective cooperation on matters relating to A.'s best interest. Shimalla adopted the recommendations of both Dr. Milchman and Kavanaugh that visitation would not be appropriate until P.T. could refrain ...