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New Jersey Division of Youth v. A.K

February 7, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.K., DEFENDANT-APPELLANT, AND A.W., DEFENDANT-RESPONDENT.
IN THE MATTER OF P.W. AND A.W., MINORS.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-82-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 2, 2011

Before Judges Fuentes, Ashrafi and Nugent.

Defendant A.K. appeals from an August 10, 2009 Family Part order granting sole legal and physical custody of her daughter, Jane (a fictitious name), to A.K.'s ex-husband and Jane's father, A.W. The order also awarded sole legal custody of A.K. and A.W.'s son, John (a fictitious name), to A.W., but A.K. does not challenge that determination. We affirm.

I.

A.K. and A.W. were married in 1997 and had two children: Jane, born in 1998, and John, born in 2001. On December 30, 2004, A.K. demanded A.W. leave the family home because she believed he had been unfaithful. A.W. left as demanded, and shortly thereafter A.K. filed for divorce. In January 2005, R.O., with whom A.K. had formed a relationship, moved into her residence.*fn1 The children continued to reside with their mother and R.O., but spent parenting time with their father at his apartment.

On June 28, 2005, while the parties' contentious divorce case was pending, A.K. reported to the Division of Youth and Family Services (the Division or DYFS) that her daughter had been exhibiting sexualized behavior and had made sexual abuse allegations against A.W. The Division investigated the allegations and concluded they were unfounded, but referred Jane for counseling.

This was the first of more than a dozen sexual abuse accusations A.K. made against A.W. and others during the divorce and DYFS proceedings that spanned four years. A.K.'s allegations included sexual abuse of Jane by an eighty-five year-old aunt who was bedridden with polio; politicians; and a female police officer. A.K. also made several allegations that A.W. and others had sexually abused John. A.K.'s allegations, including two investigated by county prosecutors, were all determined to be unfounded.

Although A.K. had reported in June 2005 that A.W. had abused Jane, in July she entered into a consent order in the divorce (FM) action that provided for A.W.'s unsupervised parenting time with the children. On the day that order was executed, August 1, 2005, A.K. made another allegation that A.W. had abused Jane. Later that month, after A.W. had spent overnight parenting time with the children, A.K. again reported to DYFS that A.W. had abused Jane. The Division determined that the allegations were unfounded.

A.W. exercised parenting time with the children through August 2005. On August 27, 2005, A.K. made another allegation that A.W. had sexually abused Jane, an allegation that resulted in A.W.'s arrest. The charges were subsequently dismissed. During the investigation of the charges, Jane's counselor expressed to DYFS in September 2005 significant concern that the sexual abuse claims were false. Nevertheless, as a result of A.K.'s accusations and Jane claiming to be afraid of her father, A.W. did not see Jane again until April 2008.

Meanwhile, in the FM action, the Family Part granted A.K. and A.W. a dual judgment of divorce (JOD) in September 2006. The JOD provided that the parties would share joint legal custody of the children, designated A.K. the parent of primary residence, and included a consent order that Jane and A.W. were to begin reunification therapy. In June 2007 the Family Part modified the custody arrangement after A.K. deprived A.W. of parenting time with John. The court awarded A.W. primary residential custody of John and suspended A.K.'s parenting time with her son. The court also authorized A.W. to monitor A.K.'s phone calls with John and terminate them if A.K. "threaten[ed] the child with punishment, promise[d] the child rewards, discusse[d] the details of the previous allegations of abuse, disparage[d] [A.W.] or otherwise upset[] the child." A.K. nonetheless continued to report to the Division allegations that A.W. had sexually abused Jane, claiming that John had witnessed the abuse.

A.K., A.W., R.O., and the children eventually underwent psychological and psychiatric evaluation. On June 27, 2007, at the Division's request, Dr. Rachel Modiano, a psychologist, evaluated Jane. After reviewing a comprehensive history and conducting a thorough interview with Jane, the doctor determined that Jane showed "developmental lags, particularly in the interpersonal arena." Dr. Modiano explained that Jane "presented as needy, dependent, immature, manipulative and socially inappropriate." Emotionally, Jane was "immature and anxious with an almost constant need for adult attention and reassurance."

Dr. Modiano characterized Jane's statements and behaviors about sexual abuse as "puzzling and confusing, as they have included reports that have become increasingly hard to believe." The doctor acknowledged the possibility "that Jane has experienced some direct sexual abuse," but considered as viable "that rather than having been sexually abused[,] . . . [Jane] was somehow exposed to inappropriate sexual stimuli and began to talk about them and act out, thereby gaining a great deal of attention from adults in her world." Dr. Modiano noted the report of another psychologist, Dr. Alan Gordon, who had previously evaluated A.W., A.K., and R.O. and expressed concern that A.K. and R.O. were putting ideas into Jane's head. Dr. Modiano met with A.K. and R.O., who admitted that R.O. had slapped Jane on the back of the hand to get her to identify who had done "bad things" to her.

Dr. Modiano recommended that Jane be placed in an intensive therapeutic program, that A.K. and R.O. "de-focus" on abuse and "re-focus on personal safety," and that A.W. have limited, supervised contact with Jane, preferably in the form of therapeutic visits, to work on building a relationship as opposed to focusing on renewing parenting time. Significantly, Dr. Modiano concluded Jane could stay with her mother if "the family agrees to and complies with therapeutic interventions[.]" She cautioned, however, that removal would be necessary if Jane's allegations of sexual abuse continued unabated, if unsubstantiated new allegations surfaced, or if there was reason to believe Jane's caretakers were coaching or re-enforcing false claims.

Dr. Sonia Oquendo, a psychiatrist, evaluated Jane at the Division's request on July 25, 2007, and found that Jane had a vivid imagination and trouble distinguishing between reality and fantasy. The doctor opined "that the beliefs held by both [Jane and her mother] regarding [Jane's] sexual molestation rise to the level of a delusion." Dr. Oquendo believed Jane suffered from pervasive developmental disorder and recommended that she enter treatment to resolve her issues of sexual molestation, that she be re-introduced to her father in a therapeutic setting to facilitate bonding between them, and that A.K. refrain from attending therapy while Jane was meeting with her father.

Dr. Oquendo evaluated A.K. a month later on August 26, 2007. She diagnosed A.K. with delusional disorder and personality disorder (histrionic and narcissistic traits) and recommended she attend psychotherapy. The doctor thought it premature to make any final determinations concerning Jane's legal or physical custody. Subsequently, a Division caseworker offered to refer A.K. to a psychotherapist, but A.K. refused, advising that she had arranged to meet with a therapist on her own. This never occurred.

In October 2007, neuropsychologist Daniel LeGoff evaluated Jane. Dr. LeGoff suspected that Jane had a mild case of Asperger's Disorder, and expressed concern that she had severe social development deficits. Jane began therapy at his center shortly thereafter, which resulted in significant improvement of Jane's development and her emotional and mental well-being.

On November 16, 2007, the Division filed a complaint under "N.J.S.A. 9:6-8.21 et seq." and N.J.S.A. 30:4C-12 alleging abuse and neglect. Citing the opinions of Drs. Gordon, Modiano and Oquendo, the Division alleged that Jane was emotionally fragile and A.K. was adversely affecting the emotional health of her children by making false allegations of sexual abuse. The Division sought to remove Jane, place her in foster care, and provide her with needed services.*fn2 At the conclusion of a Dodd hearing*fn3 that same day, the court removed Jane from A.K.'s custody and placed her in the care, custody, and supervision of the Division. The court also ordered that visitation between A.K. and her children be supervised and that the children continue reunification therapy.

The court conducted two management conferences in January and February 2008, at which A.K. was present and requested adjournments. On May 9, 2008, as the abuse and neglect hearing was ready to proceed, A.K. stipulated that she and her children were in need of the Division's services under Title 30 in order for her to "adequately and safely" parent her children, and she acknowledged that by entering into the stipulation the court would not be making any finding of abuse and neglect against her. In view of A.K.'s stipulation, the court entered an order providing that defendant "knowingly, willingly and voluntarily admitted to the following fact[]: She and her children were and are in need of services from the Division to remedy family functioning problems."

After several unsuccessful attempts to have A.K. attend counseling and parenting skills training, the Division found a program that A.K. would attend. On July 7, 2008, A.K. and her son began therapy with Craig Hutton from the Children's Home Society. Jane eventually participated in the therapy with her mother and brother.

Meanwhile, Jane's therapy with her father took a positive turn and by August 2008 she began to bond with him, despite A.K. persistently questioning Jane about the reunification therapy. Jane's foster mother overheard Jane on several occasions lie to her mother and tell her that counseling with her father was "bad." When the foster mother confronted Jane, Jane begged her not to say anything and began crying because A.K. had told Jane that if she "chose" A.W., A.K. would leave and Jane would never see her again.

In September 2008, Dr. Lorraine M. Wiegand psychologically evaluated A.W. and concluded that he was neither empathetic nor compassionate, and might be suffering from mild Asperger's Disorder. She determined he did "not seem capable of providing a nurturing, emotionally enriched environment for his children," but was cognitively capable of parenting. The doctor recommended that he undergo both individual therapy and family therapy with John. John was to continue ongoing individual therapy as well, and both parents were to be counseled on the detrimental effects a custody battle has on children.

A.K. also underwent two additional psychological evaluations; she met with Dr. Gordon in October 2008, and Dr. Jonathan Mack, whom she had retained, in November and December 2008. Dr. Gordon found that A.K. showed evidence of a narcissistic personality disorder with histrionic traits and obsessive compulsive features, and concluded it would be difficult for A.K. to support a relationship between Jane and A.W. It was unlikely she would interfere in that relationship if she understood the consequence that Jane would be removed from her care. Dr. Gordon was of the opinion that A.K. needed continuing therapy.

Dr. Mack concluded that A.K. had a chronic adjustment disorder with mixed anxiety and depressed mood. However, based upon psychological testing, he believed she was fit to parent her children. He also believed A.K. and Jane had a close bond and recommended Jane be immediately removed from foster care and placed with her mother in order to avoid irreparable, permanent harm.

Between September 2008 and commencement of the permanency hearing on December 15, 2008, Jane completed her therapy with the neuropsychologist. Jane's reunification therapy had proceeded to the point where the court authorized unsupervised visits for Jane with her father.

The parties presented evidence at the permanency hearing on seven non-consecutive days between December 2008 and July 2009. During that time, A.K. continued to make accusations that A.W. and others were sexually abusing Jane, and continued to pressure the children. On January 21, 2009, the guardian ad litem, who had been appointed in the FM action, requested that visitation between Jane and her mother be supervised because A.K. continued to interfere with Jane's therapy. Jane told DYFS caseworker Sherita Williams that A.K. instructed Jane to say her foster mother was hitting and mistreating her. Several days later, Jane told a counselor that she had been sexually abused by A.W.'s relatives; John told the same counselor that he, too, had been abused by the same people. Thereafter, A.W. called Williams and reported that the children told him A.K. pressured them to lie to the counselor, and Jane confirmed as much.

On February 25, 2009, R.O., to whom A.K. was now engaged, bought a house in Pennsylvania, and A.K. moved in by May of that year. The house was more than a two-hour drive and more than 100 miles from A.W.'s residence.

During supervised visitation on May 4, 2009, A.K. told caseworker Angelina Brown that Jane had been abused and urged Jane to tell Brown what A.W. had done to her. When Jane refused, A.K. said, "If you can't tell her, you won't be able to tell the judge." When Jane again refused, A.K. said, "If you can't tell the truth I'm done with you, I don't like liars and I never lie[.]" Following the visit, while Brown was transporting Jane back to her foster home, Jane said no one had ever touched her.

On May 20, 2009, the guardian ad litem applied to the court for an order suspending parenting time between A.K. and the children because A.K. was continuing to discuss sexual abuse allegations with them. The trial court conducted a hearing on that issue at which time A.K. admitted bringing up the abuse allegations during a May visit and telling Jane she was "done" with her if the child did not tell the truth. She also conceded telling the children that people at court were trying to stop their visits and that she might never see them again, acknowledged she may have told the children she would move away if they did not tell the truth, and said that she meant every word when she told Jane that if Jane chose to live with her father, A.K. would never see her again. A.K. also remembered telling Jane, in anger, "I can't live with this. You have destroyed my life." The trial court ultimately suspended A.K.'s parenting time with the children.

On the first day of the permanency hearing, the Division stated that its placement plan had changed from Jane's reunification with her mother to Jane's reunification with her father. The Division called three caseworkers, Brenda Chandler, Sherita Williams and Angelina Brown, and introduced numerous exhibits, including the psychological, neuropsychological, and psychiatric reports. A.W. and A.K. both testified. A.K. also called Dr. Mack. The evidence established the facts set forth above.

Additionally, DYFS caseworker Brenda Chandler opined on cross-examination that A.K. was "still capable of dealing with her children and their best interests," regardless of what she believed about the sexual abuse allegations. Chandler also testified that "[i]t's important for [A.K.] to continue unsupervised visits with [Jane]."

Dr. Mack testified on behalf of A.K. and initially maintained the opinions set forth in his report. When confronted with A.K.'s conduct during 2009, however, Dr. Mack said he would "probably" modify his opinion that Jane should be immediately removed from foster care. He preferred not to offer any additional opinions without the benefit of further evaluations, but conceded that his opinion of A.K.'s fitness as a parent would change if it were established the sexual abuse of her children never occurred, because it would be harmful to Jane if A.K. repeatedly brought up the false allegations.

On the last day of testimony, July 1, 2009, the court ordered Jane's immediate placement with A.W. Its order was based, in part, on an in camera interview with Jane, during which she confirmed the abuse allegations had been untrue and that she wished to live with her father. A.K. was permitted to continue having phone contact with her children, but visitation was suspended. The court rendered a final decision on August 10, 2009, granting sole and exclusive custody of the children to A.W. This appeal followed.

II.

Defendant raises the following points for our consideration on appeal:

POINT I A.K. WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL.

POINT II THE STIPULATION PURSUANT TO

TITLE 30 VIOLATED A.K.'S RIGHT TO DUE PROCESS OF LAW AND THE RIGHT TO CUSTODY OF A.W. AS IT DID NOT CONSTITUTE A ...


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