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Division of Youth and Family Services v. M.O.


April 21, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-45-03.

Per curiam.



Submitted February 5, 2008

Before Judges Winkelstein and LeWinn.

M.O. (defendant) is the natural mother of four children who were the subjects of abuse and neglect proceedings instituted by the New Jersey Division of Youth and Family Services (DYFS) in December 2002, pursuant to N.J.S.A. 9:6-8.18, and terminated by an order entered in the Family Part in October 2006. Defendant appeals, raising the following issues:



Defendant's first argument is addressed to the March 25, 2004 decision of the Family Part resulting in the April 30, 2004 order that (1) found defendant had physically abused two of the children, and (2) considered that physical conduct as evidence of abuse of the other two children pursuant to N.J.S.A. 9:6-8.46(a)(1). Her second argument addresses the order terminating litigation entered by a different Family Part judge on October 31, 2006.

Having thoroughly reviewed the extensive record, we conclude that defendant's arguments are without merit. The trial judge's decision supporting the order of April 30, 2004, was soundly based on clear and convincing evidence of record. The termination order of October 31, 2006, likewise was based upon thorough and comprehensive fact-finding and analysis by another trial judge. We add the following comments.

M.O. is the natural mother of four children: W.O., Jr., born July 11, 1991; J.O., born February 11, 1993; D.O., born January 25, 1994; and E.O., born December 20, 1998. M.O. and W.O., the children's natural father, separated in 1999 and were divorced on October 23, 2004. The children have been in the custody of W.O. since November 2002.

On December 11, 2002, DYFS filed a complaint against defendant alleging abuse and neglect of all four children. Between December 17, 2003 and February 4, 2004, the judge held a six-day fact-finding hearing, at which he heard testimony from defendant, the two elder children and other fact witnesses, as well as expert medical witnesses.

The eldest child, W.O., Jr., described acts of physical abuse against him by defendant, including: punching his nose and causing it to bleed; dragging him down part of a flight of stairs by pulling his legs while he lay on his stomach, then standing aside causing him to fall down the rest of the stairs while doing nothing to stop his fall; and sitting on him while hitting his legs with a large cooking spoon. W.O., Jr. had photographs of his bruises that were put into evidence.

W.O., Jr. also described the physical abuse he witnessed defendant inflict upon E.O., including: slamming a door in E.O.'s face causing bruising to her face; and hitting the child repeatedly with a book on two occasions, once when she would not go to bed and another time when E.O. had been fighting with her brother, D.O.

The second eldest child, J.O., also testified. He witnessed defendant drag W.O., Jr. down the stairs; he also witnessed the second occasion on which defendant hit E.O. with a book.

Dr. John Kulin examined W.O., Jr. and E.O. shortly after the abuse incidents, and confirmed the presence of bruises on both children. Dr. Kulin opined that W.O., Jr.'s bruises were consistent with the physical abuse the child had described. Because he did not interview E.O., the doctor could not opine as to the cause of her bruises.

Defendant testified and denied abusing the children. She described the incidents in question as situations calling for discipline when the children were misbehaving or defying her.

Defendant also a presented her own medical expert, Dr. John D. Adams, whose testimony was based upon his review of police reports and medical records. Dr. Adams disputed Dr. Kulin's opinion that W.O., Jr.'s bruises resulted from abuse; he did not offer an opinion as to E.O.

The judge wrote a comprehensive decision, which we summarize here. He found defendant not credible, characterizing her testimony as "contrived [and] less than candid." The judge also thoroughly analyzed the medical testimony, and accepted Dr. Kulin's opinions as "reasonable and credible" and consistent with the children's testimony and the photographs. The judge rejected the testimony of Dr. Adams, finding him to be "in general, . . . an unreliable and unpersuasive witness who appeared to take the stand more as an advocate for the Defendant than an objective evaluator of the evidence."

The evidence "satisfied" the judge "that the corporal punishment inflicted on both [E.O.] and [W.O., Jr.] or the restraint imposed upon [W.O., Jr.] while taking him down the stairs by Defendant was excessive." The judge found that W.O., Jr. and E.O. were "'abused or neglected children' within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b) and N.J.S.A. 9:6-8.21(c)(6)." The judge also concluded that the evidence of abuse against W.O., Jr. and E.O. would be considered as evidence of abuse against J.O. and D.O., pursuant to N.J.S.A. 9:6-8.46(a)(1).

Where, as here, the trial judge has rendered a thorough, evidence-based decision, our deference to that decision is substantial and our scope of review is limited. "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record. Particular deference is afforded to decisions on issues of credibility." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); see also In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002).

With that standard in mind, we conclude the trial judge's decision of March 25, 2004, and the resultant order of April 30, 2004, must be affirmed. Credibility was a critically determinative factor in the trial judge's analysis and conclusions. We find no basis on which to disturb those conclusions.

We turn now to defendant's second issue, regarding the October 31, 2006 order terminating litigation. Defendant argues that the court deprived her of her due process rights by entering that order after failing to enforce prior orders requiring DYFS to provide counseling, therapy and other services to the family.

For two-and-a-half years after the April 30, 2004 order, the court held numerous case management and compliance review hearings. On May 11, 2004, the judge entered an order suspending defendant's parenting time with the children pending further order of the court; that order remained in effect throughout the rest of the litigation.

The record reveals that there were significant delays in advancing this litigation. The longest single delay appears to have been between the May 20, 2004 order appointing Dr. Edward M. Franzoni to conduct psychological evaluations of the family and Dr. Franzoni's submission of his report to the court almost one-and-a-half years later, on October 13, 2005. Among the causes of that delay were financial considerations and Dr. Franzoni's need to receive and review collateral information.

By October 2005, this matter had been assigned to another judge of the Family Part who presided over all further proceedings culminating in the termination order one year later. In that intervening period, the judge on several occasions expressed frustration at the chronic lack of compliance with court orders. It appears that all parties - - DYFS, defendant and W.O., and the therapists/agencies ordered to provide the various services - - were responsible, at one time or another, for contributing to the delays.

Upon receipt of Dr. Franzoni's report, the judge ordered DYFS to "commence therapy with the children focusing on future therapeutic visitation between [the] children and [defendant]." However, Dr. Franzoni had emphatically stated that any visitation between defendant and the children was contingent upon the approval of the children's treating psychologist, Dr. Mary A. Fierro. In testimony before the court several months earlier, in May 2005, Dr. Fierro opined that defendant needed to "acknowledge what she had done" to the children and apologize to them for her past behavior. Dr. Fierro testified that she would have arranged a "therapeutic intervention" to enable that to occur, but defendant refused to apologize. Dr. Fierro stated that the children "particularly the older kids are simply too afraid to trust her, and so they won't visit her."

Another of the children's therapists, Sue Mullen, agreed with Dr. Fierro that defendant needed to write letters of apology to the children. Dr. Mullen would then assess the children's reactions to those letters and determine whether or not therapeutic visitation would be feasible and, if so, under what conditions.

By August 2, 2006, the trial judge's frustration with the lack of progress in this case led her to appoint another expert to evaluate the family, Dr. Chester Sigafoos, Ph.D. Dr. Sigafoos reviewed the entire history of the family and the litigation, and interviewed each child individually. He rendered a comprehensive report on September 27, 2006.

In his report, Dr. Sigafoos concluded that all of the children had been traumatized by defendant's behavior and that the abuse they suffered had lingering effects. None of the children wanted to "have anything to do with" defendant.

Dr. Sigafoos's expert opinion was that the children should have no contact with defendant. He expressly found that W.O. had in no way influenced the children's negative feelings about their mother and had not alienated their affection for her. Rather, the doctor concluded, defendant's own behavior "has . . . exacerbated any feelings of safety and security the child[ren] may have been able to gather while . . . living with [their] father." Dr. Sigafoos opined further that, "[Defendant] has never taken responsibility for the harm she has caused the children and deflects blame away from herself, onto others, and/or blames other events for what happened in her family."

Specifically regarding W.O.'s role in his children's lives, Dr. Sigafoos found that the father has provided the children with continuity and a stable, healthy and supportive home environment. The doctor found that each child has been thriving, emotionally, socially and scholastically, in W.O.'s custody.

In reliance upon Dr. Sigafoos's comprehensive report, the judge ordered termination of the abuse and neglect proceedings on October 31, 2006. The judge expressly adopted Dr. Sigafoos's recommendation that "we should wait for the children to make a determination as to whether or not they want to start visits again with the mother . . . . [I]f they ask for visitation, then the father has [an] obligation to immediately address that[.]"

The court issued a dismissal order terminating the litigation and providing further that, if "any of the children decide that they want visitation[,] the are to tell their father or their paternal grandmother. . . . The Law Guardian shall contact the children and advise them of this contact information with the mother . . . ."

Based on the foregoing, we conclude the judge's decision to terminate the abuse and neglect litigation was a proper exercise of discretion. Dr. Sigafoos's uncontroverted report provided the judge with sufficient credible evidence to conclude that the best interests of the children would be met by (1) continuing them in the custody of their father and (2) not requiring them to have contact with defendant until such time as they were emotionally able and willing to do so. His report documented how the children were thriving in W.O.'s custody; it also underscored how defendant's ongoing refusal to take responsibility for her actions was the cause of the children's alienation from her. In sum, Dr. Sigafoos' expert evidence provided the court with a sound basis on which to "complete[ly] adjudicat[e] . . . the issues surrounding residential custody of the children." N.J. Div. of Youth & Family Servs. v. G.M., 398 N.J. Super. 21, 44 (App. Div. 2008). With that custody adjudication in place, termination of the abuse and neglect proceedings was appropriate.

There is no "statutory bar that prohibits . . . [a] decision to terminate the abuse and neglect proceedings, nor is there any statutory obligation placed upon D.Y.F.S. to continue supervision of the family and provide services for an indefinite period of time." Id. at 39. "There is also no statutory bar to dismissing Title 9 litigation after placing physical custody of the child[ren] with the non-abusive parent following a period of DYFS supervision aimed at rehabilitating the abusive parent." N.J. Div. of Youth & Family Servs. v. R.G., 397 N.J. Super. 439, 447 (App. Div. 2008).

The termination order in this case continued the same custodial arrangement that has been in place since 2002. Entry of that order also "follow[ed] a period of DYFS supervision" with efforts to rehabilitate defendant and reunify her with the children. As discussed above, several factors interfered with the achievement of those goals, not the least of which was defendant's refusal to acknowledge her role in creating the problem and her refusal to apologize to the children as an overture to re-establishing contact with them.

Finally, we note that the October 31, 2006 order does not constitute a termination of defendant's parental rights. No order of "placement" (N.J.S.A. 9:6-8.54) was entered here, as the children are in the custody of their father. G.M., supra, 398 N.J. Super. at 42; R.G., supra, 397 N.J. Super. at 448. Defendant retains the right to pursue visitation with the children in the future under the divorce litigation docket.



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