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Cain v. Cain


January 14, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1182-03.

Per curiam.



Submitted December 18, 2007

Before Judges Skillman and LeWinn.

Defendant, an inmate at the Mid-State Correctional Facility serving a five-year term for a sexual assault upon a minor, appeals from a February 23, 2007 order of the Family Part that denied him visitation with his then eight-year-old daughter. The order from which this appeal has been taken is the fourth order denying defendant visitation with his daughter during his incarceration. The first order, entered on September 9, 2005, granted a motion by plaintiff, who is defendant's former wife and the mother of his child, to suspend defendant's visitation rights under the judgment of divorce during the period of his incarceration. This order stated:

Visitation shall not be permitted until such time as the Defendant/Husband establishes, pursuant to N.J.S.A. 9:2-4.1b, by clear and convincing evidence that it is in the best interest of the child that visitation be permitted during the Defendant/Husband's term of incarceration.

The second order, entered on September 28, 2006, denied defendant's motion for visitation and communication with his daughter. This order stated:

Defendant/Husband has not proved to the Court by clear and convincing evidence that visitation or communication while Defendant/Husband is incarcerated would be in the child's best interest.

The third order, entered on November 17, 2006, denied defendant's motion for reconsideration of the September 28, 2006 order and for supervised telephone contact and letter correspondence with his daughter. This order stated in pertinent part:

Defendant/Husband's motion for supervised telephone contact and letter correspondence with the Defendant/Husband and the parties' daughter is DENIED pending the receipt of a report from Dr. Street[e] and from [the daughter's] present counselor.

Dr. Street[e]'s report shall address whether or not, in Dr. Street[e]'s opinion, the progress of the Defendant/Husband is such that contact with his daughter is appropriate. Additionally, a report shall be submitted and shall address whether or not in the opinion of [the daughter's] counselor, what type of contact if any, would be appropriate between the Defendant and the child. [The daughter's] counselor should further advise the Court as to whether or not such contact would be in the best interest of the child. The reports from Dr. Street[e] and [the daughter's] counselor shall be provided to the Court no later than December 1, 2006. Based upon the reports, Defendant/Husband would be entitled to file a motion to address the contact/ visitation issue.

Following entry of this order, plaintiff submitted a report from her daughter's therapist, Rebecca Jacob, a licensed social worker, which states:

I have been working as [the daughter's] therapist since October 24, 2006. Therapy has been focused on helping [the daughter]:

1) develop healthy coping strategies to assist dealing with past alleged sexual abuse by her biological father, 2) increase academic productivity and appropriate interaction with peers at school, and 3) increase communication with her mother about her past and current stressors.

There are risks and/or triggers that create anxiety for [the daughter] and cause her to escalate to the point where she will throw tantrums at home, act aggressively towards her peers at school, and have encopretic episodes. These behaviors often occur when she does not get her way and is asked to talk about her father. During my time with [the daughter] she has shared that she is afraid of her father. She does not like others to even mention his name. When [the daughter] is asked whether she would like to have visits with her father, she firmly answers "no."

During the past two months, [the daughter] has learned how to identify how others make her feel and how these feelings impact her actions. She is able to say, "my friend called me a name and made me angry, so I called her a name back." In addition, [the daughter] has shown progress in being able to figure out other ways of handling situations that make her angry, sad, fearful or anxious. [The daughter] is developing methods of coping with these feelings. She created a list of things to do during these times (i.e. listening to music, talking to her mother, drawing a picture, taking a walk, breathing deeply).

[The daughter] is still adjusting to past and current stressors and is in the learning process of dealing with her thoughts, feelings and actions. She has days where she is able to handle herself appropriately and days where it is more of a struggle. It is my professional opinion that it is not the best time for [the daughter] to begin contact or visitation with her biological father. It would negatively impact her recent and future progress.

Thank you for considering [the daughter's] situation and the time she needs to help deal with these changes in her life.

Plaintiff also submitted a letter from a behavioral assistant assigned to work with her daughter, which stated: I am writing this letter on behalf of [the parties' daughter], as the behavioral assistant assigned to this case. I believe that the father . . . should not be granted the right to visit his daughter, . . . During session, [the daughter] has chosen not to mention her father, and when the subject is addressed, [the daughter] responds by immediately stopping the conversation and writing such things as, "I hate dad" on paper and filing it into a box. If the subject of her father is discussed, after session, [the daughter] will become encopretic. Mother has reported that [the daughter] has told her and a past therapist that she was touched by her father in her vaginal area on more than one occasion. It is this writer's belief that [the daughter's] responses of not wanting to see or speak of her father and encopresis following discussions are consistent with [the daughter's] reports of molestation.

It is this writer's opinion that Ms. Cain has provided a happy, safe, and appropriate home for [the daughter] and has sought out services in response to [the daughter's] current issues. It is this writer's professional belief that to instate visits or any other form of contact would be detrimental to [the daughter's] current therapeutic treatment.

Defendant submitted a report by Dr. Desmond Streete, the clinical supervisor of the mental health department at Mid-State Correctional Facility, which stated:

Mr. Cain has participated in counseling since 2/3/06. He has addressed his current situation, relapse prevention strategies, and other personal/interpersonal issues. He seems to have developed adequate self-awareness, and is motivated for self-enhancement. He is particular[ly] motivated to develop a meaningful relationship with his daughter. At this point, supervised contact with his daughter is recommended to evaluate their relationship and determine the possibility for future contacts.

After the submission of these reports, defendant filed a renewed motion for visitation with his daughter at the Mid-State Correctional Facility and for supervised telephone contact and letter correspondence. The trial court conducted a hearing on the motion. Both parties testified. Neither Dr. Streete nor the counselors for the parties' daughter were called as witnesses.

Defendant testified that he had a good relationship with his daughter and that he had never sexually abused her. At the conclusion of the hearing, the trial court issued an oral opinion denying defendant's motion. The opinion stated that based on the report of the daughter's therapist, Rebecca Levy, which the court heavily relied upon:

It would appear that even the mention of [defendant's] name upsets this young girl, who is experiencing, based on the therapist[s'] reports, great difficulty making an adjustment both at home and at school, and there is nothing in the reports and nothing that has been suggested to the Court . . . that the acting out of the child is . . . a result of her being deprived of contact with [defendant], rather, it is the outgrowth of the activities of [defendant].

The order memorializing the denial of defendant's motion also stated:

The Court will not entertain any further applications by Defendant/Husband addressing issues of contact with his daughter until such time as Defendant/Husband provides as supporting documentation reports from qualified clinicians indicating that contact between Defendant/Husband and child would be in the best interests of the child.

Because defendant has been convicted of sexual assault, his application for visitation with his daughter was governed by N.J.S.A. 9:2-4.1a, which provides in pertinent part:

Notwithstanding any provision of law to the contrary, a person convicted of sexual assault under N.J.S. 2C:14-2 shall not be awarded . . . visitation rights to any minor child, . . . except upon a showing by clear and convincing evidence that it is in the best interest of the child for . . . visitation rights to be awarded.

As with any other application for visitation, a parent's application for visitation under this statute is governed by "the best interests of the child" standard. Finamore v. Aronson, 382 N.J. Super. 514, 522 (App. Div. 2006). However, in such a case, the parent bears the burden, in the words of N.J.S.A. 9:2-4.1a, of "showing by clear and convincing evidence" that it is in the child's best interests that visitation rights be awarded. Moreover, our review of an order denying such relief is confined to determining whether the trial court's findings are "supported by adequate, substantial credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998).

The only evidence before the trial court on defendant's motion dealing with whether it would be in his daughter's best interests to resume visitation with defendant were the reports of her therapist and behavioral assistant. The report of Dr. Streete relied upon by defendant did not express any opinion as to whether visitation would be in his daughter's best interests. In fact, there is no indication that Dr. Streete has interviewed the child or would have any other basis for expressing an opinion as to what is in her best interests. Therefore, the only evidence before the trial court on defendant's motion indicated that it would not be in his daughter's best interests for defendant to have visitation rights or other contact with her. Based on this record, we are satisfied that there was adequate, substantial and credible evidence to support the trial court's denial of the motion. Finally, we note that there is no foundation in the record to support defendant's claim of judicial bias.



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