April 19, 2011
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: March 2, 2011
Before Judges Cuff and Sapp-Peterson.
Plaintiff S.O. and defendant M.O. married in 1996, separated in August 2001, and divorced in October 2002. They have a daughter born in March 1997. The Division of Youth and Family Services (DYFS) substantiated a complaint of sexual abuse of the parties' daughter by S.O. We affirmed. N.J. Div. of Youth & Family Servs. v. S.O., No. A-5868-06 (App. Div. Jan. 28, 2009) (slip op. at 2). In this appeal, we review an order denying M.O.'s application to amend an earlier order allowing S.O. to proceed with reunification efforts with their daughter. We reverse and remand for a plenary hearing.
The issue of visitation between S.O. and his daughter has been contentious and acrimonious. There is no need to recount the entire history of this matter. We highlight the proceedings relevant to the order under review.
While the appeal from the DYFS finding of sexual abuse was pending, the trial court entered an order in September 2008 directing the psychologist who served as the daughter's therapist to address reunification between father and daughter. S.O. then filed a motion to compel his daughter's therapist to assist reunification. The motion was denied, but in his May 20, 2009 order, the judge modified the role of the child's therapist from reunification to individual therapy and further provided "Pl[aintiff] permitted to obtain own expert for reunification at his cost - defendant to comply."
S.O. retained an expert. M.O. filed an ethics complaint against the expert due to his prior involvement in the matter, and S.O.'s expert declined to schedule an appointment. S.O. filed a motion to enforce the May 20, 2009 order. In an order dated January 22, 2010, the judge held M.O. in violation of litigant's rights and directed her to pay counsel fees and costs as a sanction.
Based on a letter from their daughter's therapist that reunification was ethically and clinically inappropriate and the motion judge's impending retirement, M.O. filed a motion to vacate that portion of the May 20, 2009 order permitting plaintiff to retain an expert to pursue reunification and directing M.O. to cooperate in this effort.
By order dated June 25, 2010, the motion was denied. In his oral decision, the motion judge stated "there's nothing new in front of me, and I will not deny the Plaintiff the right to attempt to get to see that child again. I don't know if it will ever happen, . . . probably not until she's an adult and is away from her mother before it ever happens, but time will tell."
We agree with the trial judge that the May 2010 attempt to vacate or modify provisions of that order was untimely and also contained no new material in the sense that the child's therapist continued to maintain his position that reunification was neither clinically nor ethically indicated as a motion for reconsideration of his May 20, 2009 order. R. 4:49-2; D'Atria v. D'Atria, 242 N.J. Super. 392, 401-03 (Ch. Div. 1990). We also discern from this record that the motion judge was not receptive to the attempt to modify or vacate the May 20, 2009 order for two reasons. First, the court had conducted a plenary hearing on the issue of reunification in 2004 when the parties' daughter was seven years old. Second, the motion judge believed that S.O. would never be able to retain a professional to undertake a reunification effort. Therefore, his order posed no threat to the best interests of the parties' child.
We appreciate the reluctance to engage in serial plenary hearings on an issue. Such proceedings consume not only court time but also the financial and emotional resources of the parties. Here, however, several things have occurred in the intervening six years between the 2004 plenary hearing and M.O.'s May 2010 motion. DYFS substantiated abuse of the parties' daughter by her father, this court affirmed that disposition, the child's therapist has steadfastly adhered to the position that reunification is not in the best interests of the child, and she is now thirteen or fourteen years old. Those factors alone suggest that the motion should have been viewed as a Rule 4:50-1(f) motion, and a plenary hearing on the reunification should have been ordered.
The May 2010 motion contained much information that had previously been submitted to the court on other motions. Some pre-dated the 2004 plenary hearing, some post-dated that hearing. It also contained an April 5, 2010 letter from the child's therapist. This letter alone raises serious concerns whether S.O.'s interest in reunification can proceed at the cost of the emotional well-being of his daughter. The therapist also advised the judge that the very possibility of reunification caused great anxiety to the daughter.
The motion judge expressed his opinion that M.O. is directly responsible for her daughter's fear and reluctance to even entertain the idea of reunification. That may be. However, in the face of the child's therapist's most recent observations about his patient and the passage of time, this application should not have been denied on the basis of no new material, a prior plenary hearing, a tardy motion for reconsideration, and a hunch that no expert would undertake the effort.*fn1 We, therefore, reverse and remand for a plenary hearing on whether reunification or the attempt at reunification is in the best interests of the child, and, if so, the measures to be employed to facilitate that outcome.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.