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M.N. v. M.N.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 11, 2008

M.N. AND B.W.-H., PLAINTIFFS-APPELLANTS,
v.
M.N. AND I.S., DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-2412-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 23, 2008

Before Judges Coburn, Fuentes and Grall.

Defendants M.N. and I.S. have two daughters. Plaintiffs, who are M.N.'s father and stepmother, filed a complaint in the Family Part seeking transfer of custody of the two children from defendants to M.N.'s father. By way of order to show cause filed the same day, and referenced in the complaint, they sought temporary restraints: 1) prohibiting M.N. from leaving the State with the girls until the Division of Youth and Family Services (DYFS) completed a psychological evaluation of the children; 2) prohibiting M.N. from leaving the State until completion of the evaluation; 3) allowing plaintiffs to secure an independent evaluation; 4) directing DYFS to investigate conditions in M.N.'s home; 5) appointing a guardian for the children; and 6) awarding custody to M.N.'s father pending the evaluations.

On October 31, 2005, a judge of the Family Part restrained M.N. and the children from leaving New Jersey prior to completion of the evaluations. When the evaluations and the DYFS investigation were complete, the judge reviewed the DYFS file in camera, dissolved the restraints and denied any additional restraints. Plaintiffs' prior appeal from that order was dismissed as interlocutory. M.N. and B.W.-H. v. M.N. and I.S., No. A-3574-05 (App. Div. Nov. 6, 2006).

A final order dismissing plaintiffs' custody litigation was entered on February 22, 2007. Plaintiffs now appeal from orders denying temporary relief, which were filed on December 5 and 20, 2005, and January 10, 2006.*fn1 They do not appeal from the final order dismissing their complaint.*fn2 For reasons stated below, we affirm.

The following facts are drawn from plaintiffs' submissions on the order to show cause, the DYFS file that the trial judge reviewed in camera and the transcripts of the hearings conducted in the Family Part. M.N. and I.S. were married in September 1999. Plaintiffs were married in November 1999. M.N. and I.S. have two daughters; defendants were living in plaintiffs' home when their children were born. Their first daughter was born in June 2000 and the second in November 2001. M.N. and her family left plaintiffs' home in November 2002.

In response to a report of suspected abused filed by plaintiffs in July 2003, a DYFS worker visited M.N.'s home. She also contacted the children's pediatrician.

During the summer of 2003, M.N. and the children returned to live with plaintiffs. They left at the end of the summer, and neither M.N. nor the children have lived in plaintiffs' home since that time.

For a time, M.N. maintained contact between plaintiffs and her children. The children visited with plaintiffs and, according to plaintiffs, frequently and regularly stayed overnight.

Plaintiffs allege that starting in October 2003, they observed the girls engaging in behavior that they viewed as indicative of abuse or exposure to inappropriate conduct. Upon noticing redness around one of the girl's vagina, plaintiffs reported their suspicions to DYFS. DYFS arranged for the children to be examined by a doctor, who found no evidence of infection and recommended an evaluation by the staff of the Children's Hospital Abuse Management Program (CHAMP). In August 2004, a psychologist who evaluated the children concluded that there was no evidence of prior abuse and no need for therapy of any sort. On October 6, 2004, a doctor who examined both children found no basis for concern about abuse or neglect. Caseworkers employed by DYFS visited M.N.'s home on numerous occasions. DYFS concluded that the children were not at risk of harm and that there was no evidence of abuse.

According to plaintiffs, beginning in June 2005, M.N. declined to permit the children to visit them without supervision. Plaintiffs again asked DYFS to act. After interviewing the children on June 27, 2005, a caseworker for DYFS concluded that the allegations were unfounded.

On July 31, 2005, plaintiffs' attorney wrote a letter to the Attorney General voicing plaintiffs' dissatisfaction with DYFS's response to their concerns. The attorney provided a "compendium" that plaintiffs had prepared, which detailed the family history and their observations and interpretations of the children's behavior.

In August 2005, plaintiffs were advised that DYFS had scheduled appointments for CHAMP evaluations in October. The medical examination was done on October 11, 2005. The doctor concluded that, given the children's physical condition, it was unlikely that either had been abused.

On October 28, 2005, plaintiffs learned that M.N. was planning to move with her daughters from New Jersey to another state. On October 31, 2005, as previously noted, they commenced this litigation, filed an order to show cause, and obtained an order restraining M.N. and the children from leaving New Jersey until DYFS completed its investigation.

DYFS proceeded with its investigation. Between June 28 and November 1, 2005, caseworkers visited M.N.'s children many times and never found any basis for concern. Psychologists for CHAMP evaluated the children on November 1, 2005. They found the children to be well-adjusted and not in need of any therapeutic services.

On November 29, 2005, the judge heard argument on continuation of the restraints on M.N.'s departure from New Jersey and the additional relief plaintiffs requested in their order to show cause. Attorneys representing plaintiffs, M.N. and DYFS appeared. The judge was advised that DYFS had completed its investigation and concluded that the allegations of abuse were unsubstantiated. The judge directed DYFS to submit its file to the court for in camera review.

Plaintiffs' attorney asked the judge to appoint a guardian and continue the temporary restraints against M.N.'s contemplated move from New Jersey, in order to permit the children to attend appointments in mid-January for another evaluation by plaintiffs' expert. The judge denied both requests pending her review of the DYFS file and a hearing on December 5, 2005.

By December 5, 2005, the judge had reviewed the DYFS file and all reports other than the report of the results of final medical examinations. DYFS had an oral report from the doctor but had not yet obtained a written report. DYFS was awaiting receipt of the doctor's written report before formally closing its investigation.

Subject to DYFS providing the written report on the final medical examination and documentation of its decision to close the investigation, the judge dissolved the restraints and denied plaintiffs' requests to appoint a guardian and compel the children to submit to another evaluation by plaintiffs' psychologist. Noting the presumption favoring M.N. as the natural parent of these children and the absence of any psychological or medical evidence suggesting abuse of the sort alleged, the judge denied any further relief. On January 6, 2006, DYFS provided the doctor's written report and a document memorializing the agency's determination that the allegations of abuse were unfounded and the family was not in need of services.

On this appeal plaintiffs present the following arguments:

I. THE TRIAL COURT ABDICATED ITS PARENS PATRIAE RESPONSIBILITY BY NOT QUESTIONING DYFS PROCEDURES AND THE VALIDITY OF DYFS UNTIMELY EVALUATION AND BY IGNORING ITS OWN CONERNS.

II. THE TRIAL COURT ABDICATED ITS PARENS PATRIAE RESPONSIBILITY BY CENSORING THE VOICES OF THE CHILDREN, DENYING THEM THEIR RIGHT TO BE HEARD AND THEIR RIGHT TO REPRESENTATION.

III. THE TRIAL COURT ABDICATED ITS PARENS PATRIAE RESPONSIBILITY BY REFUSING TO ALLOW THE CHILDREN TO BE INDEPENDENTLY EVALUATED.

IV. THE TRIAL COURT ABDICATED ITS PARENS PATRIAE RESPONSIBILITY BY REFUSING TO ALLOW PLAINTIFFS TO REVIEW DYFS RECORDS.

V. THE TRIAL COURT ABDICATED ITS PARENS PATRIAE RESPONSIBILITY BY REFUSING TO GRANT TEMPORARY CUSTODY TO THE GRANDFATHER WHO WITH HIS WIFE HAD BEEN PRIMARY CARETAKERS OF THE CHILDREN SINCE THEIR BIRTH.

VI. THE TRIAL COURT ABDICATED ITS PARENS PATRIAE RESPONSIBILITY PROCEDURALLY BY ISSUING AN ORDER WITHOUT HAVING FULL INFORMATION ON WHICH TO BASE ITS DECISION WHICH INFORMATION WAS RECEIVED BY THE COURT ON JANUARY 6, 2006 AND USED BY THE COURT TO DENY PLAINTIFFS REQUEST FOR A STAY PENDING APPEAL ON JANUARY 9, 2006. THE COURT THEN USED A FEBRUARY 22, 2007 ORDER NOTING THE CASE AS "CLOSED" TO MISREPRESENT THESE FACTS AS DEMONSTRATED IN THE JUDGE'S OWN HANDWRITING.

VII. THE TRIAL COURT ABDICATED ITS PARENS PATRIAE RESPONSIBILITY BY PERMITTING THE MOTHER TO LEAVE THE STATE OF NEW JERSEY WITHOUT REQUIRING THAT SHE GIVE THE COURT OR THE GRANDPARENTS A FORWARDING ADDRESS SO THAT CONTACT WITH THE CHILDREN COULD BE MAINTAINED.

VIII. THE TRIAL COURT DID NOT CONSIDER THAT THE ESSEX VICINAGE MAY NOT HAVE BEEN THE PROPER VICINAGE FOR THIS MATTER DUE TO A PRIOR ORDER IN A PASSAIC COUNTY COURT.

After review of the record, including the records submitted by DYFS for in camera review, we are convinced that the arguments lack sufficient merit to warrant discussion in a written opinion beyond the brief comments that follow. R. 2:11-3(e)(1)(E).

DYFS was not a party to this action. Review of the action or inaction of a state agency is the responsibility of this court not the trial court. R. 2:2-3(a)(2); Selobyt v. Keough- Dwyer Corr. Facility of Sussex County, 375 N.J. Super. 91, 95 (App. Div. 2005). The question of the manner in which DYFS proceeded, which is raised in Point I, is not before us on this appeal from an order of the Family Part.

In reviewing the arguments raised in Points II through VI of plaintiffs' brief, we must give deference to the special jurisdiction of the Family Part and the expertise of its judges. Cesare v. Cesare, 154 N.J. 394, 413 (1998); DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958). The deference we owe extends to discretionary decisions about access to DYFS records, appointment of guardians, and the desirability of judicial interviews and psychological evaluations of young children. See N.J.S.A. 9:6-8.10a; R. 5:3-3; R. 5:8B(a); R. 5:8-6.

There is no basis for concluding that this judge abused her discretion or misapplied the controlling legal principles by refusing to appoint a guardian, compel additional evaluations, disclose DYFS files or interview the children. The evidential materials submitted to the trial judge did not raise a genuine factual issue about plaintiffs' status as psychological parents. See V.C. v. M.J.B., 163 N.J. 200, 205-06, 227-28, cert. denied, 531 U.S. 926, 121 S.Ct. 302, 148 L.Ed. 2d 243 (2000); P.B. v. T.H., 370 N.J. Super. 586, 595-97 (App. Div. 2004). Moreover, even when read liberally, plaintiffs' pleadings appear to request temporary relief pertinent to and pending a determination about the abuse they alleged.*fn3 Thus, the narrow question was whether further interference with M.N.'s parental rights was warranted on the basis of plaintiffs' allegations of abuse.*fn4

Given the extent of the DYFS investigation and the opinions of the qualified experts who examined and evaluated the children, the judge did not err in concluding that additional interference with M.N.'s plans to move was unwarranted. See V.C., supra, 163 N.J. at 218 (discussing interference with parental rights warranted by abuse). As the judge noted, the behavior plaintiffs alleged was disturbing, but the reports of the professionals who evaluated the children, after being apprised of the allegations, dispelled that concern.

The arguments raised in Points VII and VIII were not raised below. For that reason, we will not consider them on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.


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