On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-0268-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Fasciale.
Defendant, J.S., appeals from an order entered following a fact-finding hearing in which the trial court found that she disregarded a court order and, in doing so, exercised poor judgment with regard to her children's best interest, which the court concluded constituted neglect. We affirm.
Defendant is the biological mother of Madison, born in 1997, and Mason, born in 2005.*fn1 In 2007, she contacted authorities to report that she believed her husband, T.S., had engaged in inappropriate sexual conduct with Madison, T.S.'s stepdaughter. T.S. was arrested and, at the time bail was set, the court entered an order conditioning bail upon T.S. having no contact with defendant or Madison. In a December 10, 2007 letter, the Division of Youth and Family Services (Division) notified defendant that it had completed its casework in the matter and was immediately terminating its involvement. The letter also advised defendant that "the Division has concerns with [T.S.] visiting Mason[,] and as a reminder, visitation between Mason and [T.S.] is at your discretion."*fn2
Based upon this letter, defendant continued to arrange contact between T.S. and Mason via telephone, video conferencing, and upon T.S.'s release on bail, contact visitation. J.S. was present at all times during the contact visits. T.S. was indicted on charges of sexual assault, N.J.S.A. 2C:14-2b, and endangering the welfare of a child, N.J.S.A. 2C:24-4a.
In early 2008, defendant advised the Hunterdon County Prosecutor's Office that she was in the process of divorcing T.S. and her ability to communicate with him would be facilitated by lifting the no-contact condition of bail as to her. That portion of the no-contact order as it applied to defendant was therefore vacated at defendant's request. Trial on the charges was slated to commence in April 2009 but was adjourned and rescheduled for June 15. Prior to the initial April trial date, defendant arranged for T.S. to start having contact with Madison. At least two of those contacts were in-person, occurring at T.S.'s place of employment and at a local restaurant.
On June 9, 2009, just before the rescheduled trial date, the Division learned that T.S.'s attorney had inadvertently disclosed that defendant had been allowing supervised visits between T.S. and Madison. The Division effectuated an emergency removal of Madison and Mason and conducted its own investigation into the allegations. Also on June 9, defendant was arrested and charged with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; third-degree witness tampering, N.J.S.A. 2C:28-5a; and fourth-degree obstruction of justice, N.J.S.A. 2C:29-1. She was released the next day after her father and step-mother posted $50,000 for bail. T.S.'s bail was increased to $150,000 on June 11. He pled guilty to one count of second-degree child endangerment, N.J.S.A. 2C:24-4a, and was subsequently sentenced to four years incarceration.
Also on June 11, the Division filed a verified complaint and Order to Show Cause (OTSC) seeking custody, care, and supervision of Madison and Mason based upon allegations of abuse and neglect on the part of defendant. On June 23, the return date of the OTSC, the Division expressed its concern that if T.S. "had inappropriate contact with one child, he might also have inappropriate contact with the second child and[,] therefore, she would be placed at a risk of harm." Defendant testified that Mason "was never included . . . [in the no-contact order and] the Division left [visitation] solely to my discretion." The court entered an order continuing custody, care, and supervision with the Division.
Defendant underwent a psychological evaluation the following month, which was performed by Karen D. Wells, Psy.D. Dr. Wells found defendant to be guarded as well as a victim of sexual abuse by her biological father. She expressed her clinical concern that defendant believed that she was justified in allowing the contact between T.S. and Madison as a way to bring about closure for Madison, notwithstanding the court order prohibiting such contact. She opined that defendant's actions reflected the exercise of poor judgment "as it relates to allowing known sexual perpetrators [that being T.S. and defendant's father] to have involvement in the lives of her daughters[.]" Dr. Wells recommended individual therapy for defendant, eventual reunification with Mason, provided she had living arrangements independent of her father, and supervision of Mason for a period of six months following reunification.
On October 19, defendant wrote a letter to the court acknowledging that she should not have permitted the contact between T.S. and Madison but explaining her reasons for doing so, as well as reiterating, what she had stated in her testimony at the OTSC hearing in June, namely, that "I was under the impression that [the Division] wanted me to decide how to handle visits between [Mason] and her father."
The court conducted its fact-finding hearing on October 28. The court initially placed on the record that counsel requested a conference with the court earlier that day during which the court disclosed that it had received the October 19 letter from defendant. Defense counsel placed on the record that he spoke to defendant about the letter and "advise[d] her not to send it." Defense counsel also represented:
[M]y client is willing to acknowledge that she did send the letter to you dated October 19, 2009. She's willing to swear that the contents of the letter are true and accurate and she stands by the letter.
What we are not doing, Judge, is stipulating to abuse and neglect. We'll stipulate to the contents of the letter or based upon the letter that's going to be admitted into evidence, [t]he [c]court can make a finding.
That was our agreement in the back.
The court and all other counsel concurred with defense counsel's representation regarding the agreement and also agreed that the matter would go forward as a fact-finding proceeding. The Division's attorney then moved into evidence, without objection from the defense, the following additional exhibits:
P-1 (Da78) Screening Summary;
P-2 (Da82-98) Report of Investigation, Office of the Public Defender, Law Guardian, DYFS ...