August 3, 2011
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-339-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: July 5, 2011
Before Judges Axelrad and Lisa.
Plaintiff appeals from the portion of the Family Part's December 10, 2010 order requiring the parties to attend family reunification therapy. We reverse.
The parties have had a tortured and litigious relationship, particularly regarding defendant and the children. We limit our recitation of the facts and procedural history to the narrow issue involved in this appeal. The parties were married in 2000 and divorced in 2008. They have a daughter, now nine, and a son, now almost seven. The parties have joint custody and plaintiff is the parent of primary residence. Defendant initially had unsupervised parenting time.
Ultimately, when it became apparent the parties could not communicate on any level, by order of January 26, 2009, the court precluded the parties from having any "oral, written or personal contact with each other" and appointed a parenting coordinator. Based on plaintiff's certifications and the recommendations of Kim Fendrick, the parenting coordinator, by order of May 4, 2009, the court mandated supervised parenting time between defendant and the two children and permitted him to choose one of his relatives to be the supervisor at his sister's home. By order of September 5, 2009, however, the court found defendant "willfully violated" the requirement of supervision and his "actions were not in the children's best interest." Accordingly, the court required supervised visitation to continue and defendant to attend individual therapy to address anger management and parenting issues.
Following a trial, a final restraining order (FRO) was entered against defendant on October 28, 2009. Supervised visitation continued and defendant was ordered to undergo a drug and alcohol evaluation and complete a psychiatric evaluation, with compliance with all recommendations, and attend a batterer's intervention program. By order of March 12, 2010, the court granted plaintiff's enforcement motion. Based in large part on the recommendation of the parenting coordinator, by another order of the same date on an emergent application by plaintiff, the court suspended defendant's parenting time and telephone contact with the children. In her March 11, 2010 report, the parenting coordinator stated, in pertinent part:
The abuse level sustained by the [D.] children has reached the intolerable point and as a responsible adult as well as the Court appointed Parenting Coordinator, I need to do everything in my power to protect these children.
Seven-year old  told me on March 9, 2010, in my office that she wanted to "light her hair on fire" following another upsetting phone conversation with her Father on March 3, 2010. She also stated that she never wants to spend any time with her father again and does not want to speak with him by phone because she is afraid of him.
In view of Father's repetitive and unchanging behaviors, I strongly recommend that Father's visitation time and phone contact with the children be eliminated at this time.
On the March 25, 2010 return date, plaintiff appeared in court with
witnesses and experts. In lieu of a trial,
defendant, represented by counsel, voluntarily agreed to continue
suspension of his contact with the children pending "compliance with
all recommendations in totality." Following a psychiatric evaluation
by Dr. Baruch, defendant filed a motion to resume parenting time with
his son and establish a timetable to resume parenting time with his
By order of July 28, 2010, by consent, defendant's motion to resume parenting time with his son was granted on the condition it be supervised pursuant to the prior order, and subject to review after three months. His motion regarding his daughter was denied without prejudice. The order required their daughter to continue with her individual therapy with both parties' participation being directed by her therapist. The therapist was directed to focus on the reunification of defendant and his daughter. Moreover, defendant was permitted to contact his daughter's therapist in reference to her status and the therapist was required to make a recommendation as to the resumption of defendant's parenting time with his daughter. The order further provided that the parties would attempt to resolve the issue based on the therapist's recommendation and if they could not, either party could make an application to the court.
Defendant filed a subsequent motion pertaining to reunification with his daughter. Plaintiff presented an October 6, 2010 report of Lori Mattison, the children's therapist, which did not recommend reunification between defendant and his daughter at that time, explaining, in pertinent part:
One expert in this case, whom was agreed upon by both parties, Dr. Baruch, has concluded that visitation shall be suspended until [the parties' daughter] is comfortable with her father. Dr. Baruch diagnosed Mr.
[D.] with Narcissistic Personality Disorder on Axis II. In this assessment, Dr. Baruch discusses Mr. [D.]'s difficulties understanding situations from another person's perspective, controlling his impulses, and accepting responsibility for any negative interactions between himself and his children. It was also observed that Mr. [D.] is more intent on speaking negatively about his ex-wife rather than being concerned on how his behavior impacts his relationship with his children. Based on this information, Mr. [D.]'s emotional investment in psychotherapy may be limited. . . . As [the daughter's] therapist, she has exhibited anxiety, stress and uncertainty in the reunification process with  Mr. [D]. [She] does not trust that her father will make the changes necessary for her to feel safe. [Her] fears are validated by Dr. Baruch's conclusions. At this point, it would not be emotionally beneficial or psychologically therapeutic for [her] to engage in reunification therapy with her father and may further compromise [her] therapy.
[A]s recommended by Dr. Baruch, Mr. [D.] did . . . complete twenty-six Sessions of Anger Management . . . [however the] younger brother [returned] emotionally distraught after his weekend visit with Mr. [D.] [so the sister] became disengaged and behaviorally distressed. This would question whether Mr. [D.] . . . is utilizing the tools and information from the [Anger Management] program.
The ability of Mr. [D.] to make the necessary changes has been questioned by Dr. Friedman who stated, "Psychotherapeutic help is indicated, but Mr. [D.]'s attitudes will make it difficult for him to accept."
On September l, 2010, a letter was written by Ms. Soriano on behalf of Mr. [D.] to begin the reunification process with [the daughter] and her father. Ms. Soriano wrote "The research shows that the longer this separation goes on, the more difficult it is to achieve a healthy parent-child relationship. If this conflict is not resolved, the research predicts negative consequences for [the daughter]." However, Ms. Soriano had only met with [her] once for thirty to forty minutes and during that brief time, [the girl] clearly expressed to Ms. Soriano, she did not want to see her Dad yet. If the issue is forced, it unintentionally relays a message to [the girl] that her needs and wants are not being heard. As opposed to helping [the girl], this may negatively impact her ability to verbally communicate her feelings and ability to trust.
The ultimate goal is reunification of [the daughter] with her father. However, it is paramount for [her] psychological well-being that this process not be forced in any manner or influenced by Mr. [D.]'s personal goals.
Because of rotation, a different Family Part judge was assigned and remained the judge in the case. By order of October 22, 2010, the court denied defendant's request that plaintiff cooperate in the commencement of therapy between himself and his daughter. It further directed the daughter to continue therapy with Mattison and defendant and his daughter to participate in joint therapy with the goal of reunification when Mattison reported the daughter was ready.
Defendant made no application to modify the terms of the October 22, 2010 order. Nor did he present any subsequent reports from Mattison regarding his daughter. Instead, he filed an application for unsupervised parenting time with his son, which was granted by order of December 10, 2010 following oral argument. Plaintiff's unrelated cross-motion was also addressed at that time. At the conclusion of the argument, the judge sua sponte broached the issue of reunification of defendant with his daughter. Without discussion and over plaintiff's objection, and notwithstanding the prior order, the judge advised counsel they had fifteen days to agree on a family reunification therapist or he would appoint one. Paragraph eight of the court-prepared order of the same date provides:
Parties have fifteen (l5) days to agree upon a therapist to immediately begin family reunification therapy. If Parties are unable to reach an agreement the Court will appoint a therapist.
On December 21, 2010, plaintiff moved for reconsideration of this provision and a stay, which was denied by the Family Part judge. Plaintiff promptly appealed, challenging this provision. She sought a stay, which we granted by order of March 8, 2011. Apparently, on January 25, 20ll, the Family Part judge sua sponte entered an order appointing a therapist for reunification therapy between defendant and the two minor children. According to plaintiff, under that order, plaintiff's only obligation is to make the children available, and it is silent as to whether it supersedes, modifies or replaces the December 10, 2010 order.*fn1
On appeal, plaintiff argues the Family Part judge neglected his role as the protector of the young girl when he sua sponte entered the order requiring she promptly participate in reunification therapy with her father contrary to all the evidence previously presented to the court, particularly the experts' reports clearly indicating the significant harm she would sustain if she were prematurely forced into family reunification therapy with her father. Plaintiff relies on P.T. v. M.S., 325 N.J. Super. 193, 213 (App. Div. 1999), in which we found error by the Family Part judge in ordering reunification sessions and visitation between a parent and his daughter who he had allegedly sexually abused, without having held a plenary hearing, considering submissions by both parties on the issue, or interviewing the child. Plaintiff additionally argues the order directing family reunification therapy violates the public policy of "assur[ing] the victims of domestic violence the maximum protection from abuse the law can provide[,]" N.J.S.A. 2C:25-l8, and Rule 1:40-5, which prohibits parties from participating in any mediation regarding custody and parenting time issues if there is an FRO in existence. Defendant's brief has been suppressed.
Based on our review of the record and applicable law, we agree with both of the arguments advanced by plaintiff, and we therefore reverse paragraph eight of the December 10, 2010 order.*fn2
The Family Part judge erred in his sua sponte ruling. He provided no explanation for the ruling other than that he was sitting as a "Court of Equity." See R. 1:7-4 (requiring a court to set forth findings of fact and conclusions of law). The judge, however, acted completely contrary to equitable principles. The motion and argument pertained to defendant's application for unsupervised visitation for his son. Defendant made no application or submitted any reports relative to the issue of reunification with his daughter. Based on a reading of the transcript it appears the judge sua sponte raised the issue without notice to the parties, and to their apparent surprise. Plaintiff was then deprived of the opportunity to comprehensively address the issue. Moreover, the ruling ignored the prior orders that relied on the professionals, specifically Mattison, the child's therapist, to determine when the child was ready for reunification joint therapy, and the realities of the fragile young child's psychological needs and treatment. The judge also gave no consideration to the problematic family dynamics that gave rise to the various matrimonial orders restricting contact between the parties and the FRO expressly barring defendant from any communication or contact with plaintiff, which would clearly preclude the two of them from participating in family reunification therapy.
If the judge wished to manage the case so as to minimize the period of separation between defendant and his daughter while considering her well-being, it would have been well within his authority to do so. He could have scheduled a status conference with counsel following the motion and requested updated reports and recommendations from the professionals, reports from defendant as to his compliance with the court-ordered programs, interviewed the child, and permitted counsel to prepare formal submissions. The issue could then have been addressed by way of motion and, if necessary, a plenary hearing.