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

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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