NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1165-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.D.,

Defendant-Appellant,

IN THE MATTER OF

T.S., M.D. and K.D.,

Minors.

__________________________________

 

Argued April 26, 2006 - Decided July 14, 2006

Before Judges Wefing, Wecker and Graves.

On appeal from Superior Court of New

Jersey, Chancery Division - Family Part,

Hunterdon County, No. FN-10-26-05.

Gilbert G. Miller, argued the cause

for appellant (Wronko & Loewen, attorneys;

Mr. Miller, of counsel and on the brief).

Peter D. Alvino, Deputy Attorney General,

argued the cause for respondent Division

of Youth and Family Services (Zulima V.

Farber, Attorney General, attorney; Andrea M.

Silkowitz, Assistant Attorney General, of

counsel; Andrea C. D'Aleo, Deputy Attorney

General, on the brief).

Noel C. Devlin, Assistant Deputy Public Defender,

argued the cause for the minor child-respondents (Yvonne Smith Segars, Public Defender, Law

Guardian, attorney; Mr. Devlin, on the brief).

PER CURIAM

D.D. appeals from a dispositional order entered by the trial court on September 23, 2005, limiting him to supervised visitation with his daughters, M.D. and K.D., now five and four years of age, respectively. The order also restrained him from having any contact with his stepdaughter, T.S., now fourteen years of age. D.D. did not contest that aspect of the order before the trial court and does not challenge it before us on appeal. After reviewing the record in light of the contentions advanced on appeal, we have concluded we must reverse.

D.D. was married to R.D. in 1998, and their marriage produced M.D. and K.D. D.D. and R.D. had both been married previously and R.D. had one daughter, T.S., from that marriage. D.D. did not have any children until his marriage to R.D. D.D. and R.D. lived in New Jersey at the time of their marriage and up until May 2004. D.D. had worked for a number of years as a senior scientist at Roche Molecular Diagnostics. He was terminated from that position when it was discovered that, despite a prior warning, he had a large number of pornographic files stored on his computer at work. He was eventually able to obtain a new position in Minnesota, and the family relocated there in May 2004.

T.S. was unhappy with this relocation. In November 2004, she returned to New Jersey to live with her biological father, with whom, we infer from portions of the record before us, she had not had a close relationship.

R.D. and D.D. had been experiencing problems in their marriage even prior to the move to Minnesota, and in February 2004 they had commenced a marital therapy program in New Jersey with Pauline Dessertine, a marriage and family therapist. In March 2004, T.S. also began seeing Dessertine; this was primarily to help her cope with the impending move to Minnesota, about which she was unhappy. In April 2004, during one of her sessions with Dessertine, T.S. told Dessertine that she had never liked D.D. After the move, T.S. continued her therapy sessions with Dessertine over the telephone, as did D.D. and R.D.

The relationship between D.D. and R.D. continued to deteriorate, however, and in October 2004, D.D. filed a complaint in Minnesota, seeking a divorce; in December 2004 both parties, represented by counsel, executed a document termed "Marital Termination Agreement." In this document, each waived any claim for support from the other and agreed D.D. would pay a child support obligation of $1,400 per month, commencing in January 2006.

Pertinent to this appeal, the Agreement recited that the parties understood that R.D. was returning to New Jersey with M.D. and K.D. and that New Jersey would be the primary residence of the children. The Agreement included the following provision:

WHEREAS, the minor children of the parties are not yet attending school, the parties shall share equal parenting time of six months each per year until the eldest child, [M.D.] begins attending school. At that time, the minor children will reside with [R.D.] during the school year and with [D.D.] during the summer months.

The Agreement also recited, however, that Minnesota was "the proper jurisdiction within the contemplation of the Uniform Child Custody Jurisdiction Act to enter an Order regarding the custody, care and control of the minor children.

Following her execution of this Agreement, R.D. returned to New Jersey on or about December 19, 2004. She did not bring K.D. and M.D. with her. The two young girls remained with their father, D.D., in Minnesota for several weeks before joining their mother here.

On January 20, 2005, a Minnesota court entered a divorce judgment that incorporated the custody and visitation provisions of the December 2 004 Marital Termination Agreement. In particular, it recited, "[j]oint legal custody is appropriate as the parties have demonstrated an ability to cooperate in the parenting of their children, and the parties have also agreed upon a method to resolve disputes." It also stated, "[t]he best interests and welfare of the children will be served if the parties are granted joint legal custody and [R.D.] is granted sole physical custody subject to reasonable and liberal parenting time by [D.D.]."

On January 18, 2005, R.D. and T.S. attended a joint counseling session with Dessertine, during which T.S., at the apparent urging of R.D., related an incident which she said had occurred in August 2001, some three and one-half years earlier. T.S. related to Dessertine that she had been sleeping in the basement on a hot night when D.D. approached her, nude. She told Dessertine that D.D. knelt beside her and placed his penis on her face; she related to Dessertine that D.D. did this twice on the same occasion. Dessertine contacted Child Protective Services which, in turn, notified the prosecutor's office. The prosecutor's office commenced an investigation, at the end of which it declined to initiate any formal proceedings. The Division of Youth and Family Services, however, filed an abuse and neglect complaint against D.D. under Title 9, N.J.S.A. 9:6-8.21 to -106. Following a bench trial, the trial court entered the order which D.D. challenges on appeal.

At trial, T.S. said that on August 23, 2001, she brought her sleeping bag and blanket down to the basement to sleep because it was a hot night and the basement was cooler than her room. D.D. was reading on a couch in the basement. He was intending to sleep there because he had injured his back in an accident a few months earlier and he found the basement couch more comfortable. T.S. spread her sleeping bag and blanket on the floor. T.S. said she went to sleep while D.D. was reading. T.S. testified that she woke up at one point and the television was on. She looked at the screen and saw a woman giving a man a lap dance. She fell back to sleep. T.S. testified that she woke up at another point and D.D. was standing before her, nude. She said that he walked toward her and then knelt down beside her. According to T.S., D.D. rubbed his penis against her right cheek and forehead and then stood up and returned to the couch. She said the entire encounter lasted approximately ten to fifteen seconds. While in her initial report to Dessertine, T.S. said that D.D. did this twice to her that night; at trial, she said there was only one instance.

T.S. continued that she waited a few minutes, thinking that D.D. believed she was asleep. She then went upstairs to her mother and, crying, awoke her. She related the incident to her mother and said she had noticed a "really bad" smell. R.D. detected nothing on the girl's sleeping bag or blanket nor her face although T.S. told her mother that she had washed her face.

R.D. then went to the basement to confront D.D. R.D. admitted searching the basement for evidence but found none. D.D. said she went so far as to check his shorts and underwear, but she denied doing so. D.D. was adamant that nothing had occurred, and R.D. accepted his assurances. They spoke about T.S.'s earlier episodes of sleepwalking and that she had in the past spoken of "Grandpa Irv" (her biological paternal grandfather), who, she said, would rub her stomach. Later, both D.D. and R.D. spoke to T.S. together. D.D. assured her that he had done nothing to her and would never hurt her. At trial, R.D. said she had accepted D.D.'s assurances because she was five months pregnant at the time and wanted to keep their marriage intact.

D.D. has raised a number of issues in support of his appeal. We do not find it necessary, however, to address all of them in detail.

D.D. asserts on appeal that the trial court lacked jurisdiction to deal with this matter in the first instance. D.D. did not raise the issue of jurisdiction before the trial court, but the question of subject matter jurisdiction can be raised at any time. Macysyn v. Hensler, 329 N.J. Super. 476, 481 (App. Div. 2000).

A New Jersey court may modify a child custody determination entered by a court of a sister state only if it has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), N.J.S.A. 2A:34-53 to -95. The UCCJEA defines a child custody determination as "a judgment, decree, or other order of a court providing for the legal custody, physical custody or visitation with respect to a child." N.J.S.A. 2A:34-54. The terms of the Marital Termination Agreement, incorporated into the Minnesota judgment of divorce, fit within the parameters of a child custody determination for the purposes of the Act. Any modification of the custody provisions of the Minnesota divorce decree made by a New Jersey court would have to comply with the UCCJEA.

According to N.J.S.A. 2A:34-67:

Except as otherwise provided in section 16 of this act [2A:34-68], a court of this State may not modify a child custody determination made by a court of another state unless a court of this State has jurisdiction to make an initial determination under paragraph (1) or (2) of subsection a. of section 13 of this act [2A:34-65] and:

a. the court of the other state determines it no longer has exclusive, continuing jurisdiction under section 14 of this act [2A:34-66] or that a court of this State would be a more convenient forum under section 19 of this act [2A:34-71]; or

b. a court of this State or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.

[N.J.S.A. 2A:34-67.]

In turn, N.J.S.A. 2A:34-65, provides that:

a court of this State has jurisdiction to make an initial custody determination only if:

(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(2) a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum . . . .

[N.J.S.A. 2A:34-65(a)(1)-(2).]

Here, New Jersey was not the home state for purposes of the UCCJEA since K.D. and M.D. had not lived here with a parent "for at least six consecutive months immediately before the commencement of a child custody proceeding." N.J.S.A. 2A:34-54. They had only been here approximately six weeks when this complaint was filed. Thus, New Jersey did not have jurisdiction under subsection (1) of N.J.S.A. 2A:34-65(a).

Further, there is no indication in this record that Minnesota had declined to exercise jurisdiction on the ground that New Jersey was "the more appropriate forum." N.J.S.A. 2A:34-65(a)(2). Thus, New Jersey did not have subject matter jurisdiction under subsection (2) of the statute.

However, pursuant to N.J.S.A. 2A:34-67, a child custody determination entered in another jurisdiction may be modified by a New Jersey court under the terms of N.J.S.A. 2A:34-68 which provides that:

A court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

If a court exercises temporary emergency jurisdiction under N.J.S.A. 2A:34-68,

any order issued by a court of this State under this section must specify in the order a period of time which the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections 13 through 15 of this act. The order issued in this State remains in effect until an order is obtained from the other state within the period specified or the period expires.

[N.J.S.A. 2A:34-68(c).]

Here, having reviewed the record, we are satisfied there was not an emergency situation sufficient to allow the court to exercise "temporary emergency jurisdiction." The incident between T.S. and D.D. occurred some four years prior to DYFS filing its complaint, and the record contains no evidence of any inappropriate conduct on his part in the intervening years. Further, when R.D. initially returned to New Jersey, she evidenced no hesitation or misgiving in leaving K.D. and M.D. in Minnesota with D.D. for several weeks. Additionally, there was nothing in the record to indicate that D.D. was scheduled to visit K.D. and M.D. in the near future. From all that appears in this record, K.D. and M.D. were not scheduled to see their father at all in the coming weeks and months. There was no emergency which required the intervention of a New Jersey court to protect these girls. Further, even if the trial court had been warranted in invoking temporary emergency jurisdiction under N.J.S.A. 2A:34-68, it did not comply with the procedures contained in subsection (c) of the statute.

Defendant has raised several additional arguments. Defendant challenges the procedure by which T.S. testified in this matter. She did not testify in the courtroom, in the presence of D.D. and the attorneys; rather, she testified in the chambers of the trial court, in the presence of the trial court and the guardian ad litem. The other attorneys remained in the courtroom. They could hear T.S. through an audio linkup but did not have the opportunity to see her visually. D.D. maintains that this procedure violated his right of confrontation under the Sixth Amendment to the United States Constitution and did not comply with N.J.S.A. 2A:84A-32.4.

We reject so much of defendant's argument as relies upon the Sixth Amendment. Abuse and neglect proceedings under Title 9 are not criminal proceedings, and thus the Sixth Amendment's right of confrontation does not attach to them.

N.J.S.A. 2A:84A-32.4 permits a trial court, in certain instances, to take the testimony of a witness under the age of sixteen "out of the view of the jury, defendant, or spectators." N.J.S.A. 2A:84A-32.4(a). The statute provides for this procedure only if the trial court has made a finding "that there is substantial likelihood that the witness would suffer severe emotional or mental distress if required to testify in open court." N.J.S.A. 2A:84A-32.4(b). It specifies, however, that defendant's counsel shall be present at the taking of in camera testimony. N.J.S.A. 2A:84A-32.4(d). Here, D.D.'s attorney was not permitted to be present but listened to T.S.'s testimony through an audio linkup.

Respondents contend that N.J.S.A. 2A:84A-32.4 is similarly restricted to criminal proceedings. The statute, however, is clearly to the contrary and specifies that it includes "any action alleging an abused or neglected child" under Title 9. N.J.S.A. 2A:84A-32.4(a).

Respondents point to cases recognizing the authority of a trial court to conduct an in camera interview of a child under R. 5:12-4(b). We have no doubt as to the power, indeed the obligation, of the trial court to do so in an appropriate instance. The cases cited by respondents, however, are distinguishable. N.J. Div. of Youth & Family Servs. v. S.S., 185 N.J. Super. 3 (App. Div. 1982), for instance, was decided prior to the adoption of the statute.
N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155 (App. Div. 2003), did not involve a situation in which plaintiff proposed to prove its allegation of abuse and neglect through such in camera testimony. Indeed, as we read the opinion, DYFS did not propose to call the child at all to establish its case. Rather, her mother, who was alleged to have abused and neglected her children, requested the court to interview the oldest child, and the trial court refused to do so. Id. at 160. We remanded the matter for further proceedings, including such an interview. Id. at 169. Nothing within our opinion addresses whether L.A.'s attorney should be permitted to be present during that interview, as the statute directs. Here, on the other hand, the participants recognized that T.S.'s testimony was a critical aspect of this case.

N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148 (App. Div. 2005), is similarly distinguishable. In that case, DYFS appealed from the trial court's dismissal of its abuse and neglect action. Id. at 155-56. Among the bases we cited for reversing that determination was the trial court's refusal to conduct an in camera interview of the child. Id. at 182-84. We did not address the question whether defendant's counsel should be present during that in camera interview.

Respondents assert that the manner in which the trial court conducted this interview assured that D.D.'s due process rights were protected. The nature of the record, however, precludes us from reaching that conclusion with any assurance. The record does not clearly indicate, for instance, that D.D.'s attorney was permitted to submit additional questions to the trial court to pose to T.S. after the initial portion of the interview. At oral argument, counsel took diametrically opposed positions. D.D.'s attorney strongly maintained he did not have that opportunity, while counsel for DYFS was equally as strong that he did. Unfortunately, the record does not answer the question either way. As a reviewing court, we decline to be placed in the position of accepting one representation over another. Further, that ambiguity in the record forecloses us from holding that the fact that D.D.'s attorney listened to T.S.'s testimony as she gave it constituted the functional equivalent of his being present for purposes of the statute.

Further, when the trial court was alerted to the fact that R.D. may have violated the sequestration order and discussed T.S.'s testimony with her, it should have inquired directly of R.D., and not relied solely on the assurances of T.S. If, after questioning R.D., the trial court had concluded that she had violated that order, the trial court should have taken appropriate measures.

Defendant also asserts that the trial court erred in its decision to admit testimony relating to defendant having downloaded pornography to his computer at work. We recognize that the trial court did not engage in the four-part analysis called for under State v. Cofield, 127 N.J. 328 (1992), when considering the admissibility of prior bad acts. We also recognize that the initial basis cited by the trial court, defendant's credibility, was inapplicable at that portion of the proceedings in light of the fact that defendant had not yet testified. In the court's opinion, however, it did not rest its decision that this incident occurred as T.S. related it on the presence of that evidence in the record. Any error was thus harmless.

Defendant is incorrect that the trial court relied on incompetent hearsay evidence in reaching its decision. Rather, it accepted as credible T.S.'s testimony of what occurred between D.D. and herself. Finally, there is no merit to his contention that the trial court erred in not admitting the result of a polygraph examination to which he had submitted. R. 2:11-3(e)(1)(E).

Reversed.

 

(continued)

(continued)

16

A-1165-05T4

RECORD IMPOUNDED

July 14, 2006