On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, No. FM-18-421-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2008
Before Judges Wefing, Parker and LeWinn.
Tracy R. appeals from certain aspects of a trial court order entered on November 30, 2007. After reviewing the record in light of the contentions made on appeal, we affirm.
Tracy is the older daughter of plaintiff mother T.R. and defendant father L.R. who, after contentious proceedings, were divorced pursuant to a judgment of divorce entered April 28, 2006. The R.s have a younger daughter, Amy; there is an eleven- year age difference between the two girls.
Unfortunately the parents' divorce proceedings were marked by more than the usual bitterness and anger that can surround such actions. There was at least one domestic violence proceeding in which both parents sought restraining orders against the other. Defendant L.R. involved Tracy in the proceedings, even to the extent of having her testify against her mother. The trial court that heard the domestic violence matter was understandably distressed at the prospect of a child taking sides in such a dispute. T.R. v. L.R., No. A-4466-04T3 (App. Div. Feb. 9, 2006). That proceeding resulted in a final restraining order being entered against defendant L.R., two trial judges having found the testimony of Tracy and her father to lack credibility.
It would be an understatement to say that Tracy is estranged from plaintiff, her mother. Tracy was fifteen years of age in 2004 when her mother filed her complaint seeking a divorce. Part of the record in this case is a summary report of the New Jersey Division of Youth and Family Services ("DYFS") dated March 15, 2007, which sets forth in detail some of the particulars of that estrangement. It notes, for instance, that from January 28, 2005, the date of the first entry, DYFS received more than twelve complaints that plaintiff was abusing Amy, physically, emotionally and sexually. DYFS investigated each of these complaints and found all to be unsubstantiated.
There are various problems in this family system. DYFS involvement started when parents were getting divorced in 2005. From January 28, 2005 to present there have been 21 referrals alleging maltreatment of the children, including physical, emotional, and sexual abuse. None of the referrals have been substantiated for abuse/neglect. The constant DYFS referrals and investigations combined with ongoing litigation regarding visitation/custody issues have affected everyone involved. At present, there is a "no contact" order between [Tracy] and her parents as well as no contact between [Tracy] and [Amy]. [Tracy] refuses contact with her mother and alleges that mom has been verbally, physically, and sexually abusive towards her. It is unknown if [Tracy's] accounts are accurate or the product of manipulation by her father, who appears to have had an enmeshed relationship with [Tracy]. [Tracy's] parentified role was characterized by such things as her maternal role with [Amy] and managing funds through her checking account for her father, which was evidenced in the Court hearings. Other safety issues with regards to this case are those of [L.R.] who has been imprisoned on federal charges back in Dec. 2005 - May 2006. [L.R.] is presently missing but is believed to be living at [blanked out]. On 3/7/07, [L.R.] attempted to make contact with [Tracy] by calling the Group Home going against the court ordered no contact clause.
We are informed that during the divorce proceedings between her parents, Tracy made at least four complaints to the Union County Prosecutor's Office that her plaintiff mother had sexually abused her. Tracy asserts the investigations were "dropped" while her mother asserts that each of these accusations was investigated and determined to be unfounded.
At some point during the divorce proceedings, L.R. had custody of both girls. The record before us does not contain the circumstances which led to that determination. In December 2005, he was arrested.*fn2 The record before us indicates that he was arrested on two occasions--once after he fled with both girls when custody was ordered transferred to plaintiff mother and another occasion on an unrelated matter.*fn3 We infer that the December 2005 arrest concerned the unrelated charges because following that arrest, the custody of Amy was transferred to plaintiff mother's sister. The depth of Tracy's estrangement from her plaintiff mother is demonstrated by the fact that following her father's arrest, Tracy, who was still a minor, refused to reside with her mother or her mother's family.
Rather, Tracy elected to have DYFS assume her custody and control, and she resided in a DYFS group home until she attained the age of eighteen.
The record before us does not indicate the date or circumstances under which plaintiff resumed the custody of her daughter Amy. Since resuming that custody, however, she has rebuffed Tracy's attempts to see her younger sister until Tracy engages in therapy to deal with the allegations Tracy presented against her mother. Tracy has refused to do so, maintaining that her allegations that her plaintiff mother sexually abused her were the truth.
On attaining her majority, Tracy filed a motion to intervene in her parents' divorce proceedings.*fn4 According to her motion papers, she sought an order permitting visitation with Amy and regular telephone contact. She also sought return of certain items of personal property and her diaries, notebooks and journals. In her certification submitted in support of her motion, Tracy detailed what she contended was the close relationship that had existed between the two girls, as well as her concern that her mother could be abusing Amy.
Tracy's mother opposed the motion. She submitted a detailed certification in which she recited her concerns about Amy's well-being if Tracy were permitted to have any contact with her younger sister at this point. She attached to her motion papers a report dated March 25, 2007, from a psychologist, William D. Campagna, Ph.D., who had separately interviewed Amy and her mother on two occasions.
Tracy had, in January 2007, made a similar request for visitation with Amy. In connection with that earlier application, the trial court directed Dr. Campagna to evaluate Amy to determine whether contact between the sisters would be psychologically ...