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

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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