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T.G., Individually, and T.G., Guardian Ad Litem For S.G. and H.G v. Philip L. Kaplan

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 23, 2011

T.G., INDIVIDUALLY, AND T.G., GUARDIAN AD LITEM FOR S.G. AND H.G., PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
PHILIP L. KAPLAN, PH.D., TOBY KAUFMAN, PH.D., JOY ANNA LEE SILBERG, J.N. AND S.N., DEFENDANTS-RESPONDENTS, AND D.N., DEFENDANT-RESPONDENT/ CROSS-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3605-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 3, 2011 Before Judges Wefing, Payne and Baxter.

In July 2008, plaintiff T.G. filed a Law Division damages action against his former wife, defendant D.N., and her parents J.N. and S.N. He alleged that D.N., aided by her parents, had filed a Title 9 abuse or neglect complaint against him in the Family Part in which D.N. sought to indefinitely suspend his parenting time with the parties' two children, S.G. and H.G., by falsely claiming he had sexually abused the children. In his complaint, which T.G. brought on behalf of himself and the minor children, T.G. also named as defendants a psychologist who had submitted an expert report on behalf of D.N. in the Family Part litigation, Philip Kaplan, as well as Joy Anna Lee Silberg, who endorsed Kaplan's report in a letter that D.N. attached to her Title 9 complaint. He also named a third psychologist, Toby Kaufman, who treated the children. The Law Division judge granted the summary judgment motions brought by all defendants.

As to D.N., J.N. and S.N., we affirm the grant of summary judgment, but on grounds different from those expressed by the motion judge. In particular, we conclude that the findings of fact and conclusions of law made by the judge in the Title 9 litigation validated the allegations made by D.N. against T.G., as did T.G.'s own stipulation that he committed an act of abuse and neglect. Consequently, T.G. had no viable claim for damages against D.N., or by extension her parents, and summary judgment was therefore appropriate.

As to defendant Kaufman, the psychologist who treated the children to address the harms that were alleged in the Title 9 litigation, we conclude the claim against her was properly dismissed, because her duty was owed to the children, not to T.G. We therefore affirm the grant of summary judgment to Kaufman.

As to defendant Kaplan, we are not in a position to either agree or disagree with the judge's determination that the statute of limitations barred T.G.'s personal claim against him. In particular, without a copy of Kaplan's report on his interview of the children, we are unable to determine whether the report provided T.G. with notice of what T.G. claimed in his complaint were Kaplan's improper interviewing techniques, in which case the statute of limitations would bar T.G.'s claim against Kaufman, or if instead, T.G. did not learn of those interview techniques until Kaplan testified, which was less than two years before T.G. filed his complaint, and thus timely filed. We therefore reverse the grant of summary judgment to defendant Kaplan on grounds of the statute of limitations and remand for further proceedings related to that defense. As to the judge's conclusion that the litigation privilege entitled Kaplan to summary judgment, we likewise remand for further proceedings on that issue.

As to defendant Silberg, again, the record is not sufficiently developed to enable us to evaluate the judge's finding that because the letter she wrote endorsing Kaplan's findings was prepared in anticipation of litigation, and was attached to D.N.'s Title 9 complaint, she, like Kaplan, was entitled to summary judgment based on the litigation privilege. We therefore reverse and remand for further findings on that issue and on the statute of limitations.

We also affirm the dismissal of the claims brought by T.G. on behalf of the minor children, as we are satisfied that he had a conflict of interest with his children that barred him from filing claims on their behalf.

I. Married in 1993, T.G. and D.N. separated in the spring of 2004. Their May 13, 2005 joint custody agreement, which was incorporated into their September 27, 2005 judgment of divorce, provided that D.N. would have primary residential custody of the parties' two children, S.G., a son born in the early part of 1999, and H.G., a daughter born in the summer of 2000.

In July 2005, H.G., who was about to turn five years old, came home from summer camp complaining to her father, T.G., of vaginal pain. She told him she was injured at camp, and he called D.N. to find out what had happened. D.N. took H.G. to a pediatrician, who diagnosed a superficial vaginal abrasion, also known as a straddle injury. The doctor testified*fn1 he was not concerned that H.G. had been abused, he did not report the injury to DYFS, and this was not an unusual injury for a child H.G.'s age.

However, pursuant to his normal practice, the pediatrician asked D.N. if she had reason to believe H.G. may have been abused. She told him she was concerned that T.G. might be abusing H.G., given H.G.'s history of bedwetting and nightmares after visits with him. The pediatrician referred D.N. to the Audrey Hepburn Children's House (AHCH) regional diagnostic center for child abuse and neglect in Hackensack. He also provided a referral to a psychologist.

D.N. did not discuss with T.G. her concerns of possible abuse, and T.G. continued his parenting time with the children in July and August.

D.N. did not take H.G. to AHCH as suggested by the pediatrician. Instead, D.N.'s father, defendant J.N., suggested she hire defendant Kaplan, a psychologist from Georgia, to evaluate H.G. Without telling T.G., D.N. arranged for Kaplan to evaluate the children in a hotel in Mahwah. Kaplan stayed in New Jersey for three days, from August 28 to August 30, 2005. Kaplan testified that D.N. told him she was concerned about possible abuse of the children by T.G., and that he interviewed the children with that in mind.

Over the three-day period, Kaplan interviewed the children alone in his hotel suite. He interviewed H.G. for more than six hours. He concluded that she suffered from sexual abuse and posttraumatic stress disorder, and that S.G. suffered from adjustment disorder.*fn2 He referred the children to defendant Kaufman for therapy, and contacted the Division of Youth and Family Services (DYFS). Kaufman provided therapy to the children until March 2007.

Defendant Silberg, at Kaplan's request, reviewed a draft of his evaluation of the children. In a letter dated September 1, 2005, she agreed with Kaplan's conclusion that "this is a case of sexual abuse with two young children at risk." She did not examine the children or testify in court.

After Kaplan made the referral to DYFS, D.N. filed an action pursuant to Title 9 on September 6, 2005, alleging "child abuse, cruelty and neglect." Her complaint alleged T.G. violated N.J.S.A. 9:6-1(e) and 9:6-8.21(c)(3). The allegations were based on Kaplan's evaluation and Silberg's letter, both of which were attached to the complaint. In particular, D.N. alleged six separate incidents of abuse and neglect committed by T.G. against H.G., including allegations that T.G. used a shower massager on H.G.'s "boobies and vagina," "rubbed" her vagina "a lot" during "play showers," required H.G. to touch and soap his penis, and instructed H.G. to keep such conduct "secret." D.N. also alleged that H.G. reported to Kaplan that T.G. ejaculated during their "play showers." Each of these incidents was drawn from defendant Kaplan's written report.

D.N. also alleged in her complaint that T.G. exposed the parties' son to "inappropriate sexualized behavior," which included "excessive public masturbating and other exhibitionist behavior" such as "skinny dipping" with his father. D.N. also asserted that S.G. disclosed to Kaplan that T.G. had encouraged him to "touch[] his sister's butt."

D.N.'s Title 9 complaint against plaintiff concluded with the allegation that T.G. had "repeatedly physically and sexually abused the minor children, in violation of N.J.S.A. 9:6-1(e) and 9:6-8.21(c)(3)." D.N. sought an order suspending T.G.'s parenting time and preventing him from having any contact with her and the children. She also sought the appointment of a Law Guardian. DYFS's motion for leave to intervene in the Title 9 action was granted, and a Law Guardian was appointed on behalf of the children.

On September 8, 2005, the judge presiding over the Title 9 action suspended T.G.'s contact with the children and ordered that the children be evaluated at AHCH. In accordance with the judge's order, Patricia Sermabeikian, L.C.S.W., along with a psychologist and two other professionals from AHCH, examined both children in early September 2005.

Both children reported to Sermabeikian "having seen their father . . . nude and exposing himself to them." According to the AHCH report, both children also reported T.G. "played in a sexually stimulating manner where [sic] he was nude." S.G. reported showering with his father, and H.G. "disclosed that she was involved in 'play showers' with her father in his bathroom" during which she and "Daddy have clothes off." H.G. also spontaneously drew pictures of both her brother's and father's penises.

In a September 13, 2005 report, Sermabeikian and the other members of the AHCH evaluation team found that S.G., who was then six years old, had been exposed to adult nudity and had been displaying sexualized behavior. H.G., then five years old, "appeared pre-occupied with penile images and exposure to her father's nudity." Although H.G. denied her father touched her genitalia or private parts, Sermabeikian and the AHCH clinical team concluded that T.G. "exposing himself to her in the context of play constitutes sexual abuse." Sermabeikian opined that the children had been sexually abused by their father through his exhibitionism, and recommended that both children receive treatment with a therapist specializing in sexual abuse treatment in the context of divorce and custody. The report also recommended that the "no contact order" remain in effect until T.G. underwent a psychological evaluation. Moreover, the AHCH team deemed the "sexual abuse" allegations to be "substantiated" as to each child.

Plaintiff filed his answer in the Title 9 action on October 8, 2005. In the interim, DYFS substantiated sexual abuse, by finding that T.G. exposed himself to both children inappropriately, which included showering naked with H.G. and engaging in "mooning" behavior with S.G. Although the Bergen County Prosecutor's Office had been notified of D.N.'s allegations, and Kaplan's report, the Prosecutor chose not to prosecute T.G., based, in part, on concerns that the interview techniques used by Kaplan could hamper prosecution.

On February 15, 2006, plaintiff stipulated to an act of abuse or neglect for showering nude with S.G. The February 15, 2006 order stated:

[T.G.] has knowingly, willingly and voluntarily admitted to the following facts: "father showered with [S.G.], using poor boundaries and may have placed the minor at risk for emotional harm."

The trial began a few months later, on July 31, 2006, and covered sixteen days between July 31, 2006 and January 10, 2007. The judge heard testimony from eleven witnesses. Even though T.G. had stipulated to an act of abuse or neglect, D.N. sought a plenary factfinding proceeding, a request the judge denied, "since we had a stipulation." Thus, the judge did not make findings, for example, on D.N.'s allegations that T.G. "rubbed" H.G.'s vagina and used a shower massager on her "boobies and vagina" or that T.G. encouraged S.G. to masturbate in public. The judge did, however, consider evidence of the effect of T.G.'s conduct on the children to enable her to reach a dispositional determination concerning T.G.'s future contact with S.G. and H.G.

On March 5, 2007, the judge issued an oral opinion covering thirty-nine transcript pages in which she concluded that T.G. had inflicted emotional harm on the children by exposing them to his naked body. She ordered a gradual resumption of his parenting time, which was to be supervised until further order.

We describe the judge's comprehensive oral decision in some detail, as it is central to the conclusions we have reached in this appeal. The judge's opinion discusses Kaplan's report at great length. She observed that Kaplan based his conclusion that plaintiff had sexually abused the children on his interpretation of the children's drawings. Kaplan had interpreted one of H.G.'s drawings as showing a father urinating or ejaculating onto his daughter. The judge examined the drawing and concluded that Kaplan had "jumped to a conclusion" and let his imagination "run wild" when interpreting the drawing.

In particular, the judge noted that what Kaplan had interpreted as a child had no head or arms, and was therefore not a depiction of a child, but was instead a depiction of a toilet. The judge's conclusion was strengthened by yellow crayon letters on H.G.'s drawing, which said "P-o-t-t p-e-p-e-," which the judge "read to be [as] potty pee-pee." When the judge confronted Kaplan at trial with her conclusion that the drawing "looked more like a . . . man urinating into a toilet than a father urinating or ejaculating on his daughter," Kaplan agreed. The judge said "the fact that this occurred in court was very disappointing to me and, to me, was highly evidentiary of the lack of expertise that Dr. Kaplan had[.]"

The judge commented that "in other respects when [Kaplan] testified, he did appear to be cautious and following guidelines that were [issued] by the appropriate [professional] organizations, but this is a very big mistake because as a judge, I would treat a father who either urinated or ejaculated on his daughter extremely differently than a father who urinated into a toilet in the presence of his daughter."*fn3 The judge also found that Kaplan had interviewed the children too repetitively and for too long a period of time.

Ultimately, the judge concluded that H.G. "did suffer from posttraumatic stress disorder" and that both children "have suffered and are continuing to suffer from emotional distress caused by the[ir] father exposing himself to them." The judge characterized such conduct by T.G. as "neglect [of] the children in that he exposed them to his naked body in a way that caused them severe emotional distress." The judge also stated that she accept[ed] the findings of -- that these children were sexually abused by their father as I so stated.

The judge observed that in his testimony T.G. "admitted that he was inappropriate with []his son [S.G.] by showering nude with him." The judge also commented that she "glean[ed] from [T.G.]'s testimony that he does take responsibility for the emotional distress he has caused his children," although T.G. according to the judge, also "blame[d]" D.N. for some of the children's emotional distress.

In the course of the judge's opinion, she observed that T.G. had been evaluated by several experts who conducted tests to determine if he exhibited signs of pedophilia. While the results of those tests demonstrated an absence of "extrinsic evidence" that T.G. was sexually attracted to other children or to his own children, the judge noted the experts had testified during the trial that "there is no way to demonstrate that somebody is not a pedophile . . . because even someone who is not a pedophile may engage in sexual activity with their own children on one occasion . . . ." The judge did observe, however, that there was no evidence that plaintiff was sexually aroused when he was naked in front of H.G.

Ultimately, despite finding that T.G.'s conduct had been highly inappropriate and had caused his children appreciable emotional harm, the judge agreed with the recommendations of both the Law Guardian and DYFS that the children should undergo counseling at AHCH aimed at reunification with their father, whom they had not seen in nearly two years, with an accompanying eventual resumption of his parenting time. On October 23, 2007, the judge terminated the Title 9 litigation and ordered supervised therapeutic visitation.

On May 9, 2008, T.G. filed his Law Division complaint alleging claims against D.N. and her parents as follows: intentional interference with his parental and custodial relationship with his children, and intentional interference with the children's right to have the guidance and presence of their father (eighth count); alienation of H.G.'s and S.G.'s affection for T.G. (ninth count); intentional infliction of emotional distress (tenth count); and negligent infliction of emotional distress (eleventh count).

The remaining counts pertained to defendants Kaplan, Kaufman and Silberg. T.G. alleged that Kaplan "negligently and carelessly perform[ed] an investigation and evaluation of alleged child sexual abuse by plaintiff," "made improper diagnoses, and failed to . . . render proper evaluations, investigations, and conclusions pursuant to the standard[s] of [his] profession as a psychologist" (first count). He alleged that Kaufman "negligently and carelessly perform[ed] psychological treatment, therapy and counseling . . . of H.G. and S.G. [and] failed to otherwise render proper treatment [in violation of] the standard of care [applicable to] Kaufman's profession as a psychologist" (second count). Silberg "negligently and carelessly perform[ed] an investigation and evaluation of alleged child sexual abuse by . . . T.G. on H.G. and S.G. and did . . . negligently and/or carelessly . . . make improper diagnoses, failed to consider relevant information . . . and [deviated from] the standards of [her] profession as a psychologist" (third count).

Next, T.G. alleged that Kaplan, Kaufman and Silberg "intentionally interfered with [his] parental and custodial relationship with his children" (fourth count); "maliciously interfered with said relationship" (fifth count); "intentionally inflicted emotional distress" (sixth count); and negligently inflicted emotional distress (seventh count).

In the twelfth count, T.G. alleged that all defendants, Kaplan, Kaufman, Silberg, D.N., J.N. and S.N., made defamatory statements about him knowing such statements to be false (twelfth count). The final count, thirteen, alleged that all defendants "engaged in a civil conspiracy to alienate, deprive, and interfere with . . . T.G.'s parental, familial and/or custodial relationship with H.G. and S.G." All counts in the complaint sought both compensatory and punitive damages, and, where appropriate, also sought damages on behalf of H.G. and S.G. in T.G.'s capacity as guardian ad litem.

All defendants moved for summary judgment. At the conclusion of oral argument on April 20, 2009, the judge granted their motions, holding that T.G.'s claims for parental alienation, intentional infliction of emotional distress and conspiracy are "the usual post-matrimonial complaints that are heard every day in the Family Part" but that T.G. had instead brought such claims in the Law Division. The judge concluded that T.G.'s allegations against D.N. constituted marital torts, and were therefore precluded by the entire controversy doctrine because such claims should have been joined in the Family Part action.

The judge held that the claims against D.N. were also barred by the parties' September 27, 2005 divorce settlement agreement in which T.G. had waived his right to seek damages for "any and all . . . causes of action . . . which [he] ever had, now has or may hereafter acquire against [D.N.] arising out of and in connection with any matter, transaction or occurrence, whatsoever, up to the date of the execution of this agreement."

Next, the judge concluded that the claims asserted in all thirteen counts were known to T.G. in advance of the expiration of the applicable statute of limitations, but were not filed until after the statute of limitations had expired. The judge held that T.G.'s causes of action accrued in October 2005 and that the applicable statute of limitations would therefore have run in October 2007, but the complaint was not filed until some seven months later on May 9, 2008.

The judge determined that the claims involving alienation of the children's affections were precluded by the Heart Balm Act, N.J.S.A. 2A:23-1. Finally, the judge concluded that T.G.'s claims against the experts were precluded under the litigation privilege, as well as the statute of limitations. Confirming orders as to each defendant were signed on April 20, 2009.

The judge denied the motions for attorneys' fees by defendants D.N., J.N., S.N. and Kaufman, observing that the award of attorneys' fees for frivolous claims is governed by N.J.S.A. 2A:15-59.1 and Rule 1:4-8. The judge reasoned that "[v]ery few cases are 'frivolous' within [the] meaning" of the statute and the Rule. The judge noted that before granting attorneys fees, a judge must find either: (1) the litigation is commenced for an improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation or (2) the claims, defenses and other legal contentions are without a reasonable basis in law or equity and cannot be supported by a good faith argument for the extension, modification or reversal of existing law.

The judge concluded there was nothing in the record demonstrating that plaintiff brought any frivolous claims against defendants, finding instead that plaintiff "presented reasonable and researched arguments in good faith." The judge also determined that no defendant had presented any evidence demonstrating that plaintiff pursued claims for any purpose that was "ulterior or evil." The judge therefore denied all claims for attorneys' fees.

Plaintiff appealed from the grant of summary judgment to all defendants, and D.N. cross-appealed from the denial of her motion for attorneys' fees.

II. When determining a motion for summary judgment, the trial judge must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."

R. 4:46-2. When reviewing an order granting or denying summary judgment, we apply the same standard used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

T.G. argues in Point II that the trial court erred in granting summary judgment to defendants on the ground that the statute of limitations barred his claims. He argues that: the statute of limitations cannot apply to his claims on behalf of the children; the causes of action he asserted did not accrue until the Title 9 action was terminated; and equity and fairness dictate the tolling of the statute of limitations.

We turn first to plaintiff's arguments concerning the judge's dismissal of plaintiff's own claims on the grounds of the statute of limitations. We shall discuss the dismissal of the children's claims later in this opinion.

Plaintiff argues that the conduct of D.N. and her parents constituted a continuing tort such that his cause of action did not accrue until the Title 9 litigation was concluded. Alternatively, he maintains that not until the Title 9 litigation was concluded could he determine whether he had been vindicated in that litigation and whether the claims filed by D.N. against him, aided by her parents, had been sustained. Therefore, according to T.G., not until he prevailed in the Title 9 action did his cause of action against D.N. and the other defendants accrue.

While we agree with T.G. that a cause of action does not accrue, and the statute of limitations does not begin to run, until an actual injury occurs, Rosenau v. New Brunswick, 51 N.J. 130, 137 (1968), we disagree with his premise that he prevailed in the Title 9 action. Obviously, if T.G. did not prevail in the Title 9 action, then he would have no cause of action against D.N. or her parents arising from the filing of that action. We therefore proceed to an analysis of whether T.G. prevailed, or was vindicated, by the judge's findings in the Title 9 action. T.G. maintains that because the judge concluded the Title 9 litigation by developing a plan to reunify him with the children, D.N.'s filing of the litigation was in bad faith and lacked a basis in fact or in law.

Such a view of the outcome of the Title 9 litigation is both crabbed and superficial. In fact, the judge's March 5, 2007 decision reveals a substantial and far-reaching agreement with the claims underlying the filing of the complaint by D.N. In particular, while the judge found that there was no evidence that T.G. was a pedophile, the judge nonetheless found that T.G.'s conduct, namely exposing his penis to his children, had caused both children emotional distress, which the judge characterized as "posttraumatic stress disorder" and a form of "sexual abus[e]." When the judge's findings are compared to the allegations of D.N.'s Title 9 complaint, it is evident that, contrary to T.G.'s allegations, D.N. proved the very cause of action that she had asserted in her Title 9 complaint.

In particular, D.N. alleged in her Title 9 complaint that T.G.'s behavior had caused both children to suffer from posttraumatic stress disorder, which, as we have noted, the judge concluded was indeed the case. In fact, the judge concluded that the children "were continuing to suffer" from such a disorder. D.N. also alleged that it was "imperative" that both children be provided with therapy as quickly as possible, a conclusion with which the judge agreed when she ordered that therapy be immediately initiated at AHCH.*fn4

D.N.'s Title 9 complaint also sought an order suspending all parenting time and contact between T.G. and the children. This, too, was ordered as part of the Title 9 action. Indeed, the suspension of T.G.'s parenting time with his children began immediately upon the filing of the complaint, and his parenting time apparently did not resume until the children had completed several months of therapy at AHCH. While the exact date that T.G.'s parenting time resumed is not clear from the record, the record demonstrates that the judge agreed with D.N.'s assertion that the children should not be expected to engage in parenting time with their father until after a period of therapy had been completed. Even when parenting time resumed, the judge ordered that it be supervised until otherwise ordered. Thus, when measured against D.N.'s Title 9 complaint, the outcome of the Title 9 litigation demonstrates that D.N. prevailed. Moreover, as we have noted, DYFS conducted its own investigation and, according to the Family Part judge determined that T.G. had, as D.N. alleged, exposed himself to both children inappropriately, by showering with H.G. naked, and by "mooning" with S.G. T.G. never appealed the judge's findings in the Title 9 litigation.

While it is true that the judge did not make factual findings addressing each of the allegations of abuse or neglect that were contained in D.N.'s complaint, none of the allegations in D.N.'s complaint was deemed unproven. Instead, the judge simply observed that a full factfinding hearing was not necessary in light of T.G.'s stipulation to having committed an act of abuse or neglect. We therefore conclude that because D.N. succeeded in proving that T.G. exposing himself to the children had caused the children to suffer emotional harm, D.N. was the prevailing party in the Title 9 litigation. Consequently, T.G.'s causes of action against D.N. and her parents in counts eight, ten, eleven, and thirteen were properly dismissed.*fn5

In particular, in light of the outcome of the Title 9 litigation, any interference with T.G.'s parental relationship with his children was the result not of the filing of the Title 9 litigation, but of T.G.'s own abuse and neglect of his children. We therefore affirm the dismissal of counts eight, ten, eleven, and thirteen, which alleged intentional inference with his parental relationship with his children, intentional infliction of emotional distress, negligent infliction of emotional distress, and conspiracy, respectively. Although we have affirmed the dismissal of those counts on grounds different from those articulated by the judge, we affirm judgments, not reasons. Isko v. Planning Bd. of Twp. of Livingston, 51 N.J. 162, 175 (1968).

III. We turn to the claims T.G. asserted on his own behalf against Kaufman, Kaplan and Silberg in counts one through seven. We begin with Kaplan, to whom the judge granted summary judgment based upon the statute of limitations and the litigation privilege. Actions for tortious injury to the person "caused by the wrongful act, neglect or default" of another must be commenced within two years of the accrual of such cause of action. N.J.S.A. 2A:14-2(a). However, as the Supreme Court has observed:

The Legislature has not specified when the cause of action shall be deemed to have accrued and the matter has therefore been left entirely to judicial interpretation and administration. . . . Our courts have identified the accrual of the cause of action as the date on which the right to institute and maintain a suit first arose. . . . When dealing with a cause of action grounded on negligent injury or damage to person or property [courts] have held that the cause of action accrued not when the negligence itself took place but when the consequential injury or damage occurred.[Rosenau, supra, 51 N.J. at 137 (internal quotation marks and citations omitted).]

"It is not necessary that a claimant be aware of all the evidence that will be ultimately relied upon before the statute begins to run." Freeman v. State, 347 N.J. Super. 11, 22 (App. Div. 2002).

T.G.'s personal causes of action against Kaplan were based solely on allegations that Kaplan's interview and evaluation of S.G. and H.G., which occurred on August 30, 2005, were performed improperly. T.G.'s complaint made no allegations concerning Kaplan's trial testimony. T.G. claims, however, that not until Kaufman testified, which was at some point between July 31, 2006 and January 10, 2007, was he aware of the "nature and extent" of what he described in his Law Division complaint as "overly extensive interviews and misinterpretation of drawings by H.G." Under the "discovery" rule, the statute of limitations does not begin to run until the plaintiff knows of the defendant's tortious conduct or reasonably should have discovered it. Lopez v. Swyer, 62 N.J. 267, 273-74 (1973).

Here, T.G. maintains that he could not be expected to have known of Kaplan's allegedly improper and suggestive interview techniques until Kaplan testified in the Title 9 action. Therefore, according to T.G., the Lopez "discovery" rule compels the conclusion that the statute of limitations did not start to run on his cause of action against Kaplan until Kaplan testified, which was some time between July 31, 2006 and January 10, 2007.*fn6

The record does not contain a copy of Kaplan's September 2005 report. Without the report, we are unable to determine if that report should have put T.G. on notice of what he claims were improper interview techniques by Kaplan. If the report should have put T.G. on notice, the statute of limitations would have expired before T.G. filed his complaint on May 9, 2008; however, because the report is not part of the record, we are unable to decide the statute of limitations issues. We therefore reverse the judge's grant of summary judgment on the basis of the statute of limitations and remand for further proceedings on that issue.

We turn to the judge's alternative holding that the litigation privilege provides an absolute bar to T.G.'s claims against Kaplan. When applicable, the litigation privilege provides complete immunity.

A statement made in the course of judicial, administrative, or legislative proceedings is absolutely privileged and wholly immune from liability. That immunity is predicated on the need for unfettered expression critical to advancing the underlying government interest at stake in those settings. [Hawkins v. Harris, 141 N.J. 207, 213 (1995) (emphasis added) (internal quotation marks and citation omitted).]

The litigation privilege "applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." Id. at 216 (internal quotation marks and citation omitted). It affords immunity to judges, attorneys, witnesses, and parties. Rainier's Dairies v. Raritan Valley Farms, 19 N.J. 552, 558 (1955).

The litigation privilege "clearly applies to all statements made 'in connection with' a judicial proceeding," and "is not limited to statements made under oath." Williams v. Kenney, 379 N.J. Super. 118, 134 (App. Div.) (quoting Hawkins, supra, 141 N.J. at 216), certif. denied, 185 N.J. 296 (2005). Immunity is afforded "even if the words are written or spoken maliciously, without any justification or excuse, and from personal ill will or anger against the party defamed." Durand Equip. Co. v. Superior Carbon Prods., 248 N.J. Super. 581, 583-84 (App. Div. 1991) (internal quotation marks and citation omitted). It "extends not only to testimony and documents admitted in evidence but also to documents utilized in the preparation of judicial proceedings." Id. at 584. As Kaplan correctly argues, the litigation privilege is premised on the notion that those involved in litigation should enjoy the absolute freedom to express the truth as they view it, and to explore the truth of the matter "without fear of liability." Williams, supra, 379 N.J. Super. at 134 (citing Hawkins, supra, 141 N.J. at 214).

We turn to an analysis of whether the judge was correct when he held the Hawkins standard was satisfied as to defendant Kaplan. First, the statements by Kaplan were made in a judicial proceeding. Unquestionably, any statement made by Kaplan during his testimony in this case, expressing his opinion as to the consequences of T.G.'s improper conduct with his children, fully falls within the first prong of the Hawkins test. Moreover, statements made in the course of pretrial investigation are likewise deemed to satisfy the Hawkins first prong, which requires a showing that the statement was "made in . . . judicial proceedings." See Hawkins, 141 N.J. at 216-18 (holding that statements made in pretrial investigation by insurance company investigator were protected by litigation privilege).

T.G. asserts that neither Kaplan, nor any other defendant, can satisfy the first prong of the Hawkins test because, he claims, the statements complained of "occurred before litigation, and were not made in a quasi-judicial proceeding." However, because the protection afforded by the litigation privilege extends to statements made in anticipation of litigation, ibid., defendant Kaplan's analysis and evaluation of the children, which was accomplished prior to the Title 9 action, would be covered by the privilege if such statements were made in anticipation of litigation.

As we held in Rabinowitz v. Wahrenberger:

Pretrial investigation is necessary to a thorough and searching investigation of the truth, and, therefore, essential to the achievement of the objects of litigation . . . . The evaluation and investigation of facts and opinions for the purpose of determining what, if anything, is to be raised or used in pending litigation is as integral a part of the search for truth and therefore of the judicial process as is the presentation of such facts and opinions during the course of the trial, either in filed documents or in the courtroom itself. Pretrial communications by parties and witnesses are protected to promote the development and free exchange of information and to foster judicial and extra-judicial resolution of disputes. [Rabinowitz v. Wahrenberger, 406 N.J. Super. 126, 134-35 (App. Div. 2009) (internal quotation marks and citation omitted) (emphasis added).]

See also Williams, supra, 379 N.J. Super. at 134 (observing that "[l]imiting the privilege to in-court proceedings would inhibit potential witnesses from coming forward, impede the ability of litigants to engage in discovery and investigation, and encumber settlement negotiations"). The record on appeal is not sufficiently developed to enable us to determine whether Kaplan's written report was prepared with the expectation that it would support D.N.'s litigation effort and would be used in connection with any such litigation. We therefore reverse the determination that Kaplan's report was issued in anticipation of litigation, and remand for further proceedings on that issue.

The next prong of the Hawkins test focuses on whether the report and testimony by Kaplan were issued while he was a "participant authorized by law." Hawkins, supra, 141 N.J. at 219. Kaplan was a witness for D.N., a litigant in the Title 9 action. A witness is considered a "participant[] authorized by law." See Rainier's Dairies, supra, at 558; Zagami, LLC v. Cottrell, 403 N.J. Super. 98, 104 (App. Div. 2008) (noting that the immunity "extends to witnesses, parties and their representatives, as well as other participants in such proceedings . . ."), certif. denied, 198 N.J. 309 (2009). Consequently, the second prong is satisfied.

The third prong requires a showing that the statement was made "to achieve the objects of the litigation" and the fourth requires the statement to have a logical relationship or connection to the action. Williams, supra, 379 N.J. Super. at 136. These two prongs may be analyzed in tandem, as the former is "part and parcel" of the latter. Ibid. We held in Williams that courts should take a broad view of whether a statement was meant to further the litigation, stating:

With respect to relevancy, the question is whether the . . . statements at issue were in any way relevant to the proceedings. The pertinency thus required is not a technical legal relevancy, . . . but rather a general frame of reference and relationship to the subject matter of the action.

We may be indulgent in favor of relevancy or pertinency. The burden of proving otherwise is on the party seeking to show that the statements were not privileged. Also, we realize that courts should not make paper-fine distinctions when analyzing whether a potentially privileged statement relates to a judicial proceeding.

Relevancy usually is interpreted liberally so that the speaker does not act at his peril.[Id. at 136-37 (internal quotation marks and citations omitted).]

In this case, the object of the Title 9 litigation was to secure protection for S.G. and H.G. from the abuse and neglect committed by T.G. As Kaplan correctly argues, "Given the nature of a Title 9 case, []his testimony was clearly relevant to the litigation." We are unable to evaluate Kaplan's further claim that the statements in his written report were made "to achieve the object of the litigation, by diagnosing the conditions and assessing the causes of the children's issues," because, as we have already noted, the record is too sparse to enable us to do so.

On remand, the judge should make further findings of fact on this issue as well. We therefore reverse the grant of summary judgment to defendant Kaplan and remand for further proceedings on the defenses of the statute of limitations and the litigation privilege.

IV. We turn next to Silberg, to whom, like Kaplan, the judge granted summary judgment based on both the statute of limitations and the litigation privilege. For the reasons we have already discussed as to defendant Kaplan, we are unable to evaluate the judge's conclusion that the statute of limitations barred T.G.'s claims against Silberg. As we have noted, Silberg did not interview S.G. or H.G. or testify in the Title 9 trial. She merely endorsed Kaplan's conclusions in a letter she provided to Kaplan in September 2005. Because neither Kaplan's report, nor Silberg's letter endorsing that report, are part of the record on appeal, we are unable to determine if T.G. should have known when he first saw those documents in September 2005 that he had a cause of action against Silberg. If so, the statute of limitations would have barred plaintiff's complaint against her. If not, the Lopez discovery rule that we have already discussed in connection with defendant Kaplan would insulate T.G. from Silberg's statute of limitations defense. We therefore reverse the grant of summary judgment to Silberg on grounds of the statement of limitations and remand for further proceedings on that issue.

We now proceed to a review of the judge's conclusion that the litigation privilege also immunized Silberg from T.G.'s claims. As we have noted, Silberg did not testify. Nonetheless, she endorsed Kaplan's findings in her September 1, 2005 letter after she reviewed a draft of Kaplan's written report. Silberg's September 1 letter was attached by D.N. to her Title 9 complaint, and served as a substantiation of the claims D.N. asserted. Thus, for the same reasons that we have already discussed concerning defendant Kaplan, we are unable to determine if Silberg's letter was prepared in anticipation of litigation, and we are unable to adequately assess the judge's conclusion that Silberg was entitled to summary judgment based on the litigation privilege. We therefore reverse the grant of summary judgment to defendant Silberg and remand for further proceedings on both the statute of limitations and the litigation privilege.

V. We now address the grant of summary judgment to defendant Kaufman. The therapy she provided to S.G. and H.G. continued through the conclusion of the Title 9 litigation on March 5, 2007. Therefore, because T.G.'s complaint against Kaufman was filed on May 9, 2008, unlike Kaplan and Silberg, Kaufman is not entitled to summary judgment based on the statute of limitations. Kaufman is, however, entitled to summary judgment on a different ground: as the children's therapist, her duty was solely to them. She owed no duty to T.G., their father. P.T. v. Richard Hall Cmty. Mental Health Care Ctr., 364 N.J. Super. 561, 574 (Law Div. 2002), aff'd o.b., 364 N.J. Super. 460, 462 (App. Div. 2003).

On facts strikingly similar to those presented here, the Law Division held in P.T. that "no duty run[s] between the child's therapist and the alleged abuser." Id. at 574. In rejecting the father's claim that the treating psychologist was liable to the father in tort for her determination that the father had abused the children, and for rendering treatment to the children based upon that premise, the Law Division reasoned:

While it might well be true that in an intact family unit the duty of care respecting treatment of the child might extend to both parents, in the situation in which the family unit has been fractured and the child given over even temporarily to the custody of one, there can be no duty of care owed to the non-custodial parent. And even in an intact family unit, there can be no duty running between the child's therapist and the alleged abuser. [Ibid. (emphasis added.]

The P.T. court also recognized that children who have been abused have a paramount interest in obtaining treatment, and that imposing on the therapist or psychologist who renders such treatment a duty to minimize any consequences to the abuser would profoundly disrupt the child's therapy:

Apart from the devastating consequence that determining that a duty is owed by the mental health professional to the non-custodial or allegedly abusive parent would certainly have to the therapeutic relationship between the therapist and the child, [plaintiff father's] own articulation of the duty itself makes clear that his claim is without merit. [Plaintiff father] claims that he has been damaged in multiple ways by [defendant psychologist's] actions and opinions, but fundamentally his complaints amount to essentially two.

First, he contends that he has lost, as a result of [defendant psychologist's] actions and her opinions, the ordinary bonds enjoyed between a parent and a child fueled by what he views as a misdiagnosis of the child as the victim of sexual abuse. Second, however, he contends that he has been damaged because he has been wrongly accused of sexual abuse of his own child by [defendant psychologist] as if his claim were for defamation rather than negligence.

Neither of these contentions, however, rests on any fundamental relationship between [plaintiff father] and [defendant psychologist] at all. In the final analysis, there simply was no relationship between the two, and her duty must be bounded only by her duty to the child. [Ibid. (emphasis added).]

Here, as in P.T., putting into the abuser's "hands the tools to pursue the professional he believes has harmed him[,] through [a damages] action[,] . . . would be to potentially so chill the exercise of the professional's judgment as to work to the harm of the great number of . . . children in similar circumstances." Id. at 576. We therefore conclude that the claims against Kaufman -- whether framed as professional negligence,*fn7 intentional or negligent infliction of emotional distress or defamation -- cannot stand. We therefore affirm the grant of summary judgment to Kaufman to the extent that it dismissed T.G.'s own claims against her.

VI. Last, we turn to the dismissal of the claims T.G. filed on behalf of S.G. and H.G. for the disruption of their relationship with T.G., their father. The judge held that, among other reasons, plaintiff's claims were barred by the statute of limitations. The judge did not differentiate between the claims T.G. asserted on his own behalf and those he brought on behalf of the children; however, to the extent that the judge deemed the statute of limitations to be a bar to the children's claims, we disagree. As N.J.S.A. 2A:14-21 makes clear, the statute of limitations does not begin to run until the minor reaches the age of eighteen.

We do, however, agree with the judge's dismissal of T.G.'s claims against D.N. on behalf of S.G. and H.G., but for a different reason. A parent cannot, as guardian ad litem, assert a cause of action for alienation of the children's affection against the other parent, who allegedly caused such alienation of affection, because the resultant "tug of war" resulting from such litigation in the Law Division is contrary to a child's best interests. Segal v. Lynch, 413 N.J. Super. 171, 178, 189 (App. Div.), certif. denied, 203 N.J. 96 (2010).*fn8 We therefore affirm the dismissal of the claims brought by T.G. on behalf of S.G. and H.G. against their mother, D.N.

As to the claims T.G. asserted on his children's behalf against their grandparents, J.N. and S.N., and against Kaufman, Silberg and Kaplan, we conclude that these claims were also properly dismissed. A parent cannot serve as the guardian ad litem for his child or children if the parent has a conflict of interest with his children. R. 4:26-2(b)(1). Here, had the litigation proceeded, T.G. would have been put in the position of managing the pretrial discovery of his children, evaluating any settlement offers that might be made, and developing trial strategy, all of this on behalf of the very children the Family Part found he "sexually abused." Rule 4:26-2(b)(1) forbids such an unseemly and distasteful spectacle. We therefore affirm the dismissal of all claims T.G. asserted on behalf of S.G. and H.G.

VII. We turn to D.N.'s cross-appeal in which she argues that the judge erred when he denied her motion for attorneys' fees and costs. She argues that because T.G.'s claims had no legal basis and were barred by the statute of limitations, T.G.'s refusal to withdraw his pleading, when requested to do so by her lawyer, warrants the imposition of sanctions. Under N.J.S.A. 2A:15-59.1(a)(1), a court may award attorneys' fees to a party who prevails in a civil action "if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim or defense of the non-prevailing person was frivolous." To find that the complaint of a non-prevailing party was frivolous:

[T]he judge shall find on the basis of the pleadings, discovery, or the evidence presented that either:

(1) The complaint, counterclaim, cross-claim or defense was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or

(2) The non-prevailing party knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law. [N.J.S.A. 2A:15-59.1(b).]

Here, the trial court denied D.N.'s motion, noting that plaintiff presented "reasonable and researched arguments in good faith," and defendants presented no evidence that plaintiff pursued claims for an "ulterior or evil motive." We review a denial of a request for counsel fees for an abuse of discretion. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001).

We cannot agree with D.N.'s claims that the denial of her request for counsel fees was an abuse of discretion. A defendant's absence of liability does not, standing alone, entitle a defendant to attorneys' fees. Segal, supra, 413 N.J. at 194. Only if the party seeking attorneys' fees demonstrates a lack of "good faith" or a lack of "objective reasonableness" should counsel fees be awarded under the frivolous litigation statute. Ibid. (citations omitted).

Here, at the time T.G. filed his complaint against D.N. seeking damages for intentional infliction of emotional distress, Segal v. Lynch had not yet been decided.*fn9 Therefore, his claims on behalf of the children against their mother were not yet barred as a matter of law. As for T.G.'s own claims against D.N., such claims were not "facially meritless," ibid., as they were based, at least in part, on allegations that D.N. wrongly relied on Kaplan's report, and that the Family Part judge had restored his parenting time, thereby establishing that he had done no wrong. Although the trial judge ultimately granted summary judgment to all defendants, we do not agree with D.N. that the trial judge abused his discretion when he concluded that T.G.'s complaint was filed in good faith. We therefore reject the arguments raised by D.N. in her cross-appeal.

Affirmed in part. Reversed in part, and remanded. Jurisdiction is not retained.


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