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M.F.T., *Fn1 v. O.M.A

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 30, 2012

M.F.T., *FN1 PLAINTIFF-APPELLANT,
v.
O.M.A., DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-3013-04.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 16, 2012 -

Before Judges Sabatino and Fasciale.

In this non-dissolution matter, plaintiff M.F.T., the mother of the minor child, V.A., appeals from orders issued by the Family Part on August 16, 2010 and November 16, 2010. The thrust of the mother's appeal is that the trial court erred in restoring unsupervised visitation time to V.A.'s father, O.M.A., after DYFS had determined from its investigation that the father had abused and neglected the child. In particular, the mother contends that the record has evidentiary and procedural shortcomings that require the orders granting unsupervised parenting time to be vacated, and that the matter should be remanded for a plenary hearing with appropriate factual and expert testimony with opportunities for cross-examination. The father has not filed a brief opposing the appeal. We agree with the mother that a remand is warranted for the reasons that follow.

The parties were in an unmarried relationship that resulted in the birth of V.A. in June 2003. The mother has had, and continues to have, primary residential custody of V.A. She also has a son through another relationship and an adopted daughter.

In June 2009, V.A. apparently told his mother that his father had physically abused him. The mother contends that she reported that allegation to DYFS, but that the agency took no action at that time. The mother also alleged that in December 2009, V.A. told her that his father had threatened to lock him in the trunk of a car. According to V.A., another incident of abuse occurred the following month, on January 26, 2010. On that particular afternoon, V.A.'s father allegedly picked him up from school, brought him home, and then forced V.A. to remove all of his clothes and kneel on the floor with his arms extended. V.A. contended that his uncle was present when this took place. The father denied these allegations, maintaining that he merely had administered a "time out" to his son as a means of discipline.

Prompted by these additional allegations, DYFS investigated the matter. In the meantime, the father's parenting time with V.A. was suspended in February 2010. Among other things, DYFS interviewed the child, and had the father evaluated by Dr. Gilberto Pagan, a clinical psychologist. According to Dr. Pagan's report,*fn2 his assessment "raise[d] questions about [the father's] parenting, and point[ed] to the need for [him to undergo] parenting skills training." Dr. Pagan also specifically noted "the need to monitor [the father's] behavior when caring for his son."

Another expert, Dr. Leslie J. Williams, performed a psychological evaluation of the mother at the Division's request on May 20, 2010. Dr. Williams concluded that although the mother has been affected by stress in her dealings with the father, she exhibited no "overt, severe psychological symptoms," and that she is "capable of providing adequate parenting of all [of] her children," including V.A.

Dr. Alison Strasser Winston, a supervising psychologist at the Children's Hospital of New Jersey, prepared a psychosocial evaluation of V.A., which included interviews with the mother, the child, and a DYFS investigator. The child confirmed to Dr. Winston that he had been forced by his father to kneel naked as a method of discipline because he had misbehaved in school that day, and that his paternal uncle had scratched him on the head with his knuckles. The child also told Dr. Winston that his mother had encouraged him to tell DYFS that he had been hit by his father. Dr. Winston also noted, however, that the mother had shown questionable judgment by allowing V.A. to stay home from school for six or seven days to avoid seeing his father.

Dr. Winston expressed concerns that the discord between V.A.'s parents, and their lack of coordination on how to discipline the child, may have caused the child to be more anxious and possibly escalated his misbehavior. Dr. Winston made several recommendations, including therapy for V.A. with a professional with expertise in maltreatment, family therapy in the future, and no contact between V.A. and his father until DYFS completed its investigation.

Having considered the expert evaluations and other information developed in its investigation, DYFS sent a letter to the mother on October 4, 2010, indicating that it had substantiated her allegations of abuse and neglect concerning the January 26, 2010 kneeling incident. The letter stated that the Division had "determined that abuse/neglect was substantiated for substantial risk of physical injury/environment injurious to [the] health and welfare of the child." The letter further noted that V.A.'s father "was identified as the person responsible for the abuse." Despite that conclusion, DYFS did not file a complaint against the father under N.J.S.A. 9:6-8.33.

Meanwhile, as the DYFS investigation was still pending, the parties to this non-dissolution ("FD" docket) case appeared in the Family Part on August 16, 2010 to review parenting time issues. At that proceeding, the mother was represented by counsel and the father appeared without representation. After an oath was administered to both parties, the judge initially placed on the record a lengthy oral summary of the recommendations and findings reflected in the expert reports. The judge also noted that DYFS had not indicated that it would be filing an application to terminate the father's parenting time. The judge then asked the parties "if there's anything further you need to tell me or you want me to review." At that point, counsel for the mother urged the court to restrict the father to supervised visitation until counseling for both parents was completed. No testimony was offered or taken from the mother. The judge then permitted the father to address the court, and he asserted that the mother was engaged in a personal vendetta against him. No cross-examination of the father was sought.

Based on the written expert reports and these presentations, the judge made several findings. The judge found the evidence insufficient to show that either parent is an unfit caregiver, despite what the judge described as "concerns with respect to both parents' behavior." The judge also underscored the harm that the child was suffering because of his parents' conflicts. In that regard, the judge noted indications in the reports, and from her own prior in camera interview with V.A., that the mother had encouraged V.A. to say certain things about his father. The judge required the parties to undergo further counseling. In the meantime, the judge restored the father's parenting time, noting that "there's no recommendation from [DYFS] that the child would be at risk of harm if he continued to have parenting time with his dad." The judge declined the mother's request that the father's parenting time be supervised, noting that there was nothing before the court to warrant such restrictions. The court established a visitation schedule and issued a corresponding order on August 16, 2010.

The mother moved for reconsideration, particularly contesting the court's ruling that permitted the father to regain unsupervised parenting time. By the time that reconsideration motion was heard on November 16, 2010, DYFS had issued its letter to the mother substantiating the allegations of the father's abuse and neglect. On this occasion, both the mother and the father appeared in court without representation.

At the outset of the November 16 proceeding, the parties were again sworn. The judge then summarized on the record the present status of the DYFS matter. The judge acknowledged that the father "may have participated in inappropriate discipline." However, the judge also noted her "unchanged" assessment from a prior interview of the child in December 2009 that V.A. had been "coached" by the mother to say negative things about his father. The judge found it significant that the Division had concluded its investigation but had made no recommendation to the court to terminate the father's parenting time or parental rights.

The mother addressed the court, essentially in the form of an oral argument rather than as a testimonial witness, raising her objections to a restoration of unsupervised parenting time. The judge also heard from the father, who presented, in essence, a mixture of argument and testimony explaining his position and his efforts to serve as a competent parent. The judge then inquired of both parties if they wished to raise anything else, and they declined.

Following a recess, the judge went back on the record. Again, the judge discussed the expert reports, the summaries of DYFS staff interviews and other notations, and the parties' presentations. The judge pointedly expressed concerns that the father had not exercised his parenting time since August 2010, despite the court's order allowing him to do so on an unsupervised basis in accordance with a schedule. Nevertheless, the judge found no basis to reconsider her August 2010 ruling.

However, the judge modified her prior order because of what she described as "a change in the factual circumstance[s]" stemming from the father's failure to see the child. In particular, the judge modified the order to provide for a transitional period of parenting time from thirty to forty-five days. After that transition, overnight unsupervised visits with the father were scheduled to begin on January 8, 2011. The judge also reiterated that the parties must receive counseling, and that V.A. must also receive counseling. A corresponding order reflecting these modified terms was issued that same day.

The mother now appeals. She contends that the trial court erroneously "transmuted" the FD proceeding into a DYFS proceeding under Title 9 without affording the parties with adequate procedural protections. Moreover, the mother argues that the court erred in lifting the supervisory constraints on the father's parenting time, without conducting a plenary hearing with sworn testimony, including cross-examination. The mother also faults the judge for concluding that she had improperly "coached" her son, without having expert testimony presented on that subject in court and subjected to cross-examination. Lastly, the mother argues that the judge erred in granting unsupervised parenting time to the father, given the concerns raised by his psychological profile and the nude-kneeling incident substantiated by the Division as an act of abuse and neglect.

In general, we afford substantial deference to Family Part judges in their fact-finding and their exercise of judgment. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988). That is particularly true in matters concerning custody and parenting time. In general, the conclusions of trial judges regarding child custody "are entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958).

That said, the law also favors the use of plenary hearings before the terms of custody and parenting time are materially altered. In general, a plenary hearing is appropriate before the entry of an order materially affecting the terms of custody of a child. See, e.g., Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005); Fusco v. Fusco, 186 N.J. Super. 321, 327-29 (App. Div. 1982).

The father's parenting time was wisely suspended in February 2010 after the nude-kneeling incident was reported to DYFS. That was a sensible, and necessary, prophylactic measure. However, in August 2010, before the results of that DYFS investigation had been released, the judge reinstated the father's parenting time, without a full-blown plenary hearing with testimony from both parties and without inviting cross-examination. Moreover, the judge relied upon portions of the hearsay reports of the experts which, as to certain factual findings, the parties disputed. Although the attorney then representing the mother*fn3 did not request cross-examination nor object to the court's discussion of the hearsay reports, the record was not developed as fully as it would have been had such procedural elements been provided. See Franklin v. Sloskey, 385 N.J. Super. 534, 540-43 (App. Div. 2006) (noting, by analogy, the importance of cross-examination and other procedural protections in domestic violence cases). The informal nature of the proceedings was repeated at the hearing in November 2010.

Although we do not adopt appellant's claim that the judge improperly "transmuted" these non-dissolution proceedings into a Title 9 matter, we agree with her that a full-blown plenary hearing was warranted in this case before the father's unsupervised parenting time was restored. Even though DYFS did not initiate formal action against the father in a Title 9 proceeding, its substantiation of abuse and neglect elevated the value of holding a plenary hearing in the wake of its investigation. The mother has raised plausible concerns that the transitional conditions imposed by the judge may not have been adequate to ameliorate the risk of renewed abuse or neglect. The court's reliance upon portions of the hearsay expert reports - aspects of which the mother disputes and other aspects of which the mother contends were overlooked or inadequately considered - also enhances the utility of conducting a plenary hearing with live witnesses.

Consequently, we remand for a plenary hearing. In the meantime, the orders reinstating the father's unsupervised parenting time are vacated.*fn4 Prior to the plenary hearing, the court may, in its discretion, consider whether interim supervised parenting time by the father is warranted and, if so, on what terms.*fn5 The plenary hearing optimally should include live testimony of one or more experts, preferably with the cooperation of the Division.

Vacated and remanded. We do not retain jurisdiction.


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