August 10, 2009
DEBORAH BELL, PLAINTIFF-APPELLANT,
HARVEY BELL, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Essex County, Docket No. FM-07-1644-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 8, 2008
Before Judges Cuff, Fisher and Baxter.
In this post-judgment matrimonial appeal, plaintiff Deborah Bell seeks review of two orders, both of which concern the ongoing difficulties between the parties over custodial and parenting time issues of their three children but primarily their oldest daughter. One order reappointed the attorney who had served as guardian ad litem in the pendente lite phase of the proceedings; the other denied plaintiff's motion to remove the guardian ad litem following her reappointment during the post-judgment phase. Plaintiff's objections to both orders are premised on the failure of the motion judge to conduct a plenary hearing and the qualification of the appointed attorney to serve as the guardian ad litem.
Plaintiff and defendant Harvey Bell married on June 22, 1992. Three daughters were born during the marriage. The oldest was born in November 1992, the next in February 1994, and the youngest in April 1998. Plaintiff filed a complaint for divorce in January 2002. A dual judgment of divorce was entered on March 30, 2004. The terms by which the parties dissolved their marriage were incorporated in two agreements: a property settlement and support agreement (PSA) and a custody and timesharing agreement (CTA). The latter agreement provided that all parties would follow the advice and recommendations of Toby Kaufman, Ph.D., and Karen Steinfield, Psy.D., to effectuate a reunification between plaintiff and the parties' oldest daughter. Kaufman conducted therapeutic mediation for the couple and their oldest daughter; Steinfield was the parenting coordinator. Kaufman, however, stopped treating plaintiff and her daughter in May 2004 and Steinfield resigned from this case in May 2005.
Some background is in order regarding the relationships between the parties and their oldest daughter to place the terms of the CTA and the subsequent motion practice in context. On August 9, 2002, eight months after the complaint for divorce had been filed, the Division of Youth and Family Services (DYFS) received reports that the oldest child had been neglected and the agency substantiated those reports. DYFS removed the then nine-year-old girl from plaintiff's custody and placed the child with defendant. Since the removal there has been no meaningful relationship between plaintiff and her daughter. Plaintiff refused to sign the DYFS prepared case plan because she believed the removal was unreasonable and also moved to reinstate the pendente lite order granting joint custody of the three children to the parties.
At a hearing on September 18, 2002, DYFS explained the reasons for the removal of the oldest daughter, and its decision to place the child with her father. The judge ordered that plaintiff and her oldest daughter commence therapeutic mediation with David Brodzinsky, Ph.D., plaintiff to commence therapy and undergo a psychological evaluation. The judge restored equal joint custody of the two other children, and appointed Jamie Von Ellen as guardian ad litem for the children. An order reflecting these rulings was not entered until December 23, 2002. Unfortunately, by the time this order was entered, Brodzinsky had stopped the therapeutic mediation sessions between mother and daughter.
In early 2003, the parties agreed to attend joint sessions with Brodzinsky. Apparently, Brodzinsky had re-entered the case because another order was entered on March 3, 2003, designating Brodzinsky as therapeutic mediator. On October 8, 2003, plaintiff filed a motion for a reunification plan. In addition to setting forth her desired plan, plaintiff sought an order prohibiting defendant and his family from interfering with her contact with the daughter. This motion was eventually withdrawn, the parties reached agreement on all issues, and the dual judgment of divorce was entered on March 30, 2004.
In late 2005, plaintiff filed an emergent application requesting transfer of custody of her oldest daughter from defendant to her. The oldest daughter was now thirteen years old. The motion was not treated as an emergent matter. It was eventually heard in February with a cross-motion filed by defendant which addressed custody and visitation issues. On February 9, 2006, the judge ordered Von Ellen reinstated as guardian ad litem and Linda Schofel appointed as parenting coordinator. The judge ordered both to issue a report no later than March 10, 2006, concerning the oldest daughter's current status and any recommendations concerning the issue of reunification between mother and daughter. They were also ordered to confer on what, if any, access would be appropriate to institute between mother and daughter on a pendente lite basis.
The guardian ad litem submitted her report on March 29, 2006. We include an extended discussion of this report because the adoption of this report and the order to implement its recommendations are major focuses of this appeal.
In her March 2006 report, the guardian ad litem confirmed that the oldest daughter had resided exclusively with her father since August 2002. Following her interview with plaintiff, Von Ellen reported that plaintiff plainly and clearly holds the court system, the mental health professionals, the attorneys, and her former husband responsible for the absence of reunification. Von Ellen reported that plaintiff has attempted various forms of informal communication to initiate contact with her daughter. She also reported that plaintiff believes that her daughter wants to have a relationship with her but is fearful of her father's reaction.
Von Ellen also reported that plaintiff resisted resumption of therapeutic visits because the reunification process should occur in a relaxed setting. She also related that plaintiff expressed her opinion that defendant actively interferes with the reunification process.
In her report, the guardian ad litem also related her interview with defendant. She noted that defendant advised her that the other children needed therapy but plaintiff resisted this effort. Defendant also expressed his opinion that plaintiff supplied information to the Internal Revenue Service, causing it to initiate an audit, and that plaintiff attributes the difficulties between her and her daughter to an Orthodox conspiracy. In addition, defendant reported that their oldest daughter is very well-adjusted, an honor student, and participates in a host of extracurricular activities.
Von Ellen also reported that defendant admitted that he did not get along with Steinfield, the parenting coordinator. He expressed the opinion that she created more problems than she solved. She did nothing to calm plaintiff or "put things on an even keel." Von Ellen also related that defendant believes that plaintiff is trying to convince one of the children to express a desire to live with her.
Von Ellen summarized her interviews with the children and the mental health professionals (ten have been involved in this case over the years), and provided a summary and ten recommendations. She repeated that there had been "no attempts at reunification since the last session at Dr. Kaufman's office on May 24, 2004." She also stated that [d]espite the fact that both parents have been counseled from every possible source regarding the negative impact of his or her interactions with [the oldest daughter], and despite the fact each of them has received consistent recommendations from each and every of the mental health professionals involved for the last 31/2 years, neither seems willing to look at his or her own behavior as a contributing factor. Each professional has stressed the need for each parent to work on his or her own issues therapeutically.
She characterized the behavior of both parents as "disappointing." As to plaintiff, Von Ellen stated that her "inability to control herself when faced with [the oldest daughter's] rejection is paramount." As to defendant, she stated that he "provides [his daughter] with information designed to discourage [her] from wanting a relationship with her mother."
Von Ellen rejected plaintiff's contention that the passage of time is the cause of the problem. She emphasized that the oldest daughter's position about her mother has been consistent "from the very beginning." Von Ellen's ten recommendations, endorsed by three of the ten mental health professionals, are as follows:
1. Commencing Monday, April 24, 2006, and every other Monday except when [the oldest daughter] is at sleep-away camp or on vacation (she should not be deprived of either of these events), Linda Schofel, Esq. will pick up all three children from school and take them to Debbie's house. Linda will remain at Debbie's house with [the oldest daughter] for a minimum of an hour and a half. Linda will then take [the oldest daughter] home. I believe a slow but steady approach has a greater likelihood of success than one which is more intrusive to [the oldest daughter].
2. I will meet with [the oldest daughter] and explain my recommendations to her.
3. The sum of $10,000.00 to be placed in escrow for purposes of paying Linda Schofel's fees. How this amount is to be allocated between the parties to be determined by the Court.
4. No persons are to be present at Debbie's residence while [the oldest daughter] is there except Debbie, Linda Schofel, [and the three daughters] unless or until Linda Schofel recommends same.
5. When Ms. Schofel deems appropriate, the place and/or duration of the meetings may be changed.
6. [The oldest daughter] will not be forced to interact with anyone, in any manner. If she chooses to sit and do her homework or engage in any other activity, except talking on the telephone or her cell phone, she shall be allowed to do so. However, to the extent appropriate, Ms. Schofel will attempt to engage the family members in an activity such as playing a game, taking a walk, or anything else she deems appropriate. Before the first session, Ms. Schofel will discuss preferred activities with [the oldest daughter].
7. Jane Hochberg, Psy.D., to be appointed as [the oldest daughter]'s therapist. Whether and to what extent [the oldest daughter] will require therapy remains to be seen but it is important that a reputable therapist be in place to help [the oldest daughter] deal with any issues which may arise. Dr. Hochberg has agreed to serve in this capacity.
8. Debbie to continue in her treatment with Mr. Nolan. Mr. Nolan to be required to report to Linda Schofel specifically as it relates to Debbie's progress relating to calming her emotions, thinking before reacting, becoming less reactionary and in general, being more self-controlled. In addition, Debbie should continue to work on being able to empathize with [the oldest daughter]'s situation. Mr. Nolan to report to Linda Schofel upon request.
9. If Harvey desires to continue treatment with Dr. Tokayer, he certainly can and should do so. However, it is recommended that Harvey commence therapy with a therapist to be selected by Linda Schofel to work specifically on issues designed to assist in the reunification process. More specifically, Harvey must learn to recognize that reunification is, in fact, in [the oldest daughter]'s best interests. He needs to develop a genuine comfort level with the process. He must recognize that he has covertly sabotaged those efforts in the past. He needs to learn specific techniques in dealing with [the oldest daughter]'s stated resistances so as not to reinforce same. He must allow [the oldest daughter] to be comfortable and not fearful of his reactions or possible rejection. This list is not intended to be exhaustive. Harvey's therapist to report to Linda Schofel upon request.
10. Lastly, [the two youngest daughters] must be afforded therapists of their own pursuant to the [CTA]. Linda Schofel to select the appropriate therapist(s).
Plaintiff responded with a motion to disqualify the guardian ad litem and to recuse the judge. Defendant filed a cross-motion to require plaintiff to cooperate with all of the recommendations made by the guardian ad litem. By order dated August 1, 2006, the judge admitted the March 29, 2006 Von Ellen report in evidence and adopted all the recommendations set forth in the report. The judge also imposed a moratorium prohibiting either party from filing a motion without leave of court until December 1, 2006. The judge stated that the purpose of the moratorium was to restore a relationship between [the oldest daughter] and the plaintiff. It is the Court's opinion that the best way to accomplish this objective is to allow the professionals to have an uninterrupted opportunity to do so. The Court finds that continued and ongoing litigation during this process serves no legitimate purpose to realize this goal.
On appeal, plaintiff seeks reversal of two orders: February 9, 2006 and August 1, 2006. She argues that Von Ellen should not have been reappointed as guardian ad litem because she had participated in the mediation of the custody and parenting time agreement in 2003 and 2004. Plaintiff also contends that Von Ellen was not qualified to serve as guardian ad litem, and that her report is inadequate and her findings unsubstantiated. Plaintiff also insists that the report could not be adopted without a plenary hearing and Steinfield's recommendations should have been adopted as part of the reunification plan. Plaintiff also argues that the failure of the court to effectuate reunification effectively terminated her parental rights, that the judge improperly imposed sanctions on her, and that the moratorium is a violation of her due process rights.
In her reply brief, plaintiff reiterates her initial arguments and also argues that the court owed no deference to the terms of the CTA executed as part of the conclusion of the divorce proceedings because the judge made no findings of fact whether the CTA was in the best interests of the children or whether plaintiff had been coerced to enter the agreement. She contends that extreme parental alienation constitutes a change of circumstances that requires a plenary hearing, and the appeal is not moot.
We commence our discussion with plaintiff's argument that the guardian ad litem exceeded her role throughout the proceedings. To the extent that plaintiff seeks to impugn the validity and enforceability of the CTA due to the guardian's actions during the negotiation of that document, this issue is not properly before us because it is woefully out-of-time.
Implicit in plaintiff's arguments about the guardian's role during the pre-judgment phase of the proceedings and through entry of the judgment of divorce and its associated agreements is plaintiff's contention that the guardian assumed the role of attorney for her children. Plaintiff correctly notes that there is a distinct difference between the duties of a guardian ad litem and an attorney appointed to represent the interests of the children. Rules 5:8A and 5:8B are designed to eliminate confusion between the role of a court-appointed attorney for the children and a court-appointed guardian ad litem. Pressler, Current N.J. Court Rules, comment 1 on R. 5:8A, 5:8B and 5:8C (2009). A court-appointed counsel acts as an independent legal advocate for the best interests of the child and takes an active part in the hearing, while a guardian ad litem acts as an independent factfinder, investigator and evaluator as to the best interests of the children. In re M.R., 135 N.J. 155, 173 (1994).
Plaintiff, however, is not entitled to any relief on this score. First, the record before us clearly suggests that Von Ellen did not exceed her authority during the pendente lite stage of the proceedings. Second, any attack on her conduct founded on any assumption of the role of attorney for the children is out-of-time and irrelevant to whether she should have been reappointed in February 2006. We reject any contention that Von Ellen was not qualified to serve as guardian ad litem at any time in this case. Rather her considerable experience as a matrimonial attorney made her particularly suitable to discharge her duties to the children and to the court. Specialized expertise in reunification of fractured families is not required. See, e.g., P.T. v. M.S., 325 N.J. Super. 193, 209 (App. Div. 1999) (appointing an attorney the new guardian ad litem). Plaintiff, however, challenges not only the substantive qualifications of the guardian but also her ability to resume her duties in the post-judgment phase due to her alleged role in the negotiations culminating in the judgment of divorce and the CTA. Whether she functioned as a mediator during the negotiations of the support and parenting time issues and the consequences of any assumption of that role are closer questions.
The same person cannot serve as the guardian ad litem for the children and a court-appointed mediator. Isacson v. Isacson, 348 N.J. Super. 560, 565 (App. Div.), certif. denied, 174 N.J. 364 (2002). See also Fawzy v. Fawzy, ___ N.J. ___, ___ (2009) (slip op. at 38) (guardian ad litem cannot serve as arbitrator of child custody and parenting time issues). Von Ellen, of course, was not a court-appointed mediator. The record suggests, however, that Von Ellen may have been involved in some fashion, perhaps as a de facto mediator, in the effort to reach an agreement on the custody and parenting time issues. Once raised by plaintiff, the exact nature of her involvement should have been determined, and it is unlikely this inquiry could have been resolved without at least a brief evidentiary hearing. As more fully discussed in this opinion, this omission does not require vacation of the August 1, 2006 order.
Plaintiff also objects to the admission of the guardian's report in evidence and adoption of each recommendation in her report. Plaintiff argues that the judge should not have rejected her request for a plenary hearing and could not do so given the nature and extent of the objections raised by plaintiff about the report.
In late 2005, plaintiff filed a motion seeking a return of her oldest child to her physical custody. She sought a plenary hearing. The disposition of this motion on February 3, 2006, resulted in the reappointment of Von Ellen as guardian ad litem.
In June 2006, following submission of the guardian's report, plaintiff requested a plenary hearing.
When a parent seeks to modify custody, the parent must demonstrate changed circumstances that affect the welfare of the children. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). "A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Ibid. In Lepis v. Lepis, 83 N.J. 139, 159 (1980), the Court held that this standard avoids the requirement of a hearing in every instance. Thus, the threshold question is whether plaintiff made a prima facie showing that a plenary hearing was necessary. Hand, supra, 391 N.J. Super. at 106.
The motion judge declined plaintiff's request for a plenary hearing because trial-like proceedings tend to divide the parties and exacerbate the disputes and ill-feelings between the parties. He also stated that this case is based "on what the mental health experts say and the foundation of their opinions on evaluations of the family." He rejected the expert report of Steinfield, submitted just after her resignation from the case in May 2005, because it was outdated. He also stated that he was not familiar with the work of another expert proffered by plaintiff.
A plenary hearing would have been appropriate in this case because there were conflicting recommendations on how to achieve reunification. See Ali v. Ali, 279 N.J. Super. 154, 172 (Ch. Div. 1994) ("In child custody cases, a 'plenary hearing is virtually a necessity . . . unless there are overwhelming admitted facts (e.g., child abuse). Such a hearing must be held . . . where serious and long standing effects on the life and well-being of the child may result.'" (quoting MC v. MC, 215 N.J. Super. 132, 140 (Ch. Div. 1986))). Steinfield submitted her recommended reunification plan right after she officially resigned from the case on June 1, 2005. Steinfield's recommended plan was not implemented and the next hearing on this case was not held until February 3, 2006. The record suggests the judge found Steinfield's recommendations to be too extreme. Von Ellen submitted her recommended reunification plan on March 29, 2006. Von Ellen's plan contained significantly different recommendations from those contained in Steinfield's report. A plenary hearing would have given plaintiff an opportunity to cross-examine Von Ellen on the reasons for these differences.
This case presented several genuine and substantial factual disputes regarding the welfare of the children, which would warrant a plenary hearing. Hand, supra, 391 N.J. Super. at 105. The guardian's report included information provided by one mental health professional that the oldest child had been cutting herself. Even though these incidents were reported in 2004, such behavior is alarming, and a plenary hearing would provide the court with an opportunity to more fully investigate the cause of this behavior and whether it had continued, the factors that may have contributed to this behavior, and whether it is in the child's best interests to continue reunification efforts. The interviews of both parents reported by the guardian ad litem clearly indicated that the current state of the relationship between mother and oldest daughter cannot be attributed solely or even largely to one parent.
We do not, however, vacate the August 1, 2006 order, which admitted the guardian's report, adopted all of her recommendations, and imposed a short moratorium on further motions. Unfortunately, we have learned that the contentious relationship between the parents continues. An October 17, 2007 order was required to put a new reconciliation team in place. Requiring a hearing that considers the circumstances in place when the order was entered in 2006 serves no purpose.
Furthermore, with the retirement of the judge who entered the orders on appeal, it is incumbent on the judge currently handling this very tortured litigation to survey the record and determine the current state of the relationships, examine the course of the reunification efforts, and determine the needs of this fractured family at this time. In doing so, the judge must re-evaluate the guardian's recommendations, and the course of the reunification effort, and convene a plenary hearing if the facts currently existing so require. We emphasize, however, that rarely can a dispute of this nature be resolved without a plenary hearing. A judge cannot simply discard an expert report proffered by a party because he is not familiar with the expert. A judge cannot ignore wildly differing accounts of the same events or relationships. Furthermore, here, the harm to familial relationships that may be caused by a trial-like proceeding has already occurred to this family unit.
Plaintiff's arguments that the judge lacked the authority to impose a moratorium and that this action deprived her of due process are moot because the December 1, 2006 deadline expired six months before plaintiff filed her brief in this court. Plaintiff's argument that the trial judge failed to recognize and address defendant's conduct as parental alienation will not be considered. It is improper to raise an issue for consideration in a reply brief. Twp. of Warren v. Suffness, 225 N.J. Super. 399, 412 (App. Div.), certif. denied, 113 N.J. 640 (1988). Plaintiff's remaining issues are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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