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M.N. v. M.N.

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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