NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.S. and K.S.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0039-08T40039-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.S.

Defendant-Appellant,

and

K.S.

Defendant-Respondent.

__________________________________

IN THE MATTER OF A.S. AND J.S.,

Minors.

__________________________________

 

Argued June 3, 2009 - Decided

Before Judges Axelrad, Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-31-04.

Karin R. White Morgen argued the cause for

appellant (Vort & Morgen, LLC and Law Offices of Jonathan D. Gordon, attorneys; Robert A. Vort, Ms. White Morgen and Jonathan D. Gordon, of counsel; Mr. Vort & Ms. White Morgen, on the briefs).

Christian A. Arnold, Deputy Attorney General, argued the cause for respondent DYFS (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Arnold, on the brief).

K.S., respondent, has not filed a brief.

Christopher A. Huling, Assistant Deputy Public Defender, argued the cause for minors (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Mr. Huling, of counsel and on the brief).

PER CURIAM

Appellant S.S. appeals from a July 15, 2008 final judgment of the Family Part denying her application to vacate or modify a fact-finding order of February 4, 2004 and subsequent related orders concluding that she had abused and neglected her children, A.S. and J.S., and placing them with her former husband, K.S. This appeal is appellant's third attempt to, in effect, overturn the February 4, 2004 order, this time based on so-called newly discovered evidence. We reject her arguments and affirm.

The procedural history is both tangled and tortuous and has been recited at length in two previous decisions of this court, N.J. Div. of Youth & Fam. Servs. v. S.S. and K.S., A-3885-03T4 (App. Div. December 1, 2004) (DYFS I); N.J. Div. of Youth & Fam. Servs. v. S.S. and K.S., A-5581-05T4 (App. Div. February 21, 2007) (DYFS II). As necessary background to this appeal, we reiterate the pertinent matters leading up to our most recent decision and describe the events occurring thereafter.

On July 15, 2003, DYFS removed A.S. (born October 31, 1992) and J.S. (born December 15, 1995) from S.S.'s care, N.J.S.A. 9:6-8.29 and -8.30a, after determining S.S. struck A.S. with a wire hanger, resulting in visible welts. The children were placed in the home of their paternal grandmother, and DYFS initiated protective services litigation by filing an order to show cause and complaint. N.J.S.A. 9:6-8.30b; N.J.S.A. 30:4C-1; R. 5:12-1. The children's father, K.S. was notified to participate in the litigation. The Family Part judge granted the temporary relief sought by DYFS, ordering that the children not be returned to S.S.'s care, and, further, providing for the legal representation of the parents and the children. N.J.S.A. 9:6-8.28a; N.J.S.A. 9:6-8.43a.

On the return date of the order to show cause, DYFS was granted care, custody, and supervision of the children, with continued placement in their grandmother's home. The order required psychological evaluations of both parents, urine screens for K.S., and parenting skills training for S.S., and provided for supervised visitation between the parents and children. A fact-finding hearing was scheduled for October 2003.

In the meantime, the children commenced counseling and a report was issued by Stephanie K. Auerbach, M.A., on October 21, 2003. Auerbach related A.S.'s account of abusive incidents, which included photographing S.S. while nude, being exposed to strange men who accessed the family residence at night while the children slept on the couch, exposure to pornographic magazines, beatings, food deprivation, disruption of utility services, substance abuse by S.S., and an instance of inappropriate sexual touching of the child by one of S.S.'s male friends.

A fact-finding hearing, N.J.S.A. 9:6-8.44, was conducted over five days. Therein, DYFS produced evidence substantiating S.S.'s excessive use of corporal punishment and her failure to provide adequate sustenance for the children, including the testimony of DYFS caseworker Gloria Cameron, who had observed faint injuries on A.S.'s leg, as well as on J.S.'s leg. The trial court concluded S.S. abused A.S., N.J.S.A. 9:6-8.21c, and, further, that the abuse of A.S. was sufficient evidence of abuse or neglect of J.S. See N.J.S.A. 9:6-8.46a; see also N.J. Div. of Youth and Fam. Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd and remanded, 179 N.J. 264 (2004).

That same day, the court entered a dispositional order requiring the children to be placed in the custody of K.S. after he completed parenting-skills classes and DYFS found his home adequate for the children. S.S. was ordered to undergo a psychiatric examination, and her parenting time was suspended, pending a report from the children's therapist, Auerbach, as to whether visitation was appropriate.

S.S. appealed, contesting the finding of abuse, the award of custody to K.S. and the suspension of her parenting time. In our unreported opinion DYFS I, supra, we affirmed the trial court's conclusions based upon the testimony and documentary evidence admitted during the fact-finding hearing. However, we expressed concern that the accuracy of the disturbing allegations reported by Auerbach, although not evidential during the fact-finding, had not been "fully investigated, tested or determined," despite their use during the dispositional review. We ordered a "remand for further proceedings, with dispatch, on the issue of S.S.'s parenting time with her children," which had not been addressed by the trial court despite S.S.'s cooperation, her completion of parenting-skills classes, and participation in a psychiatric evaluation. We understood the trial court would also resolve the validity of the allegations of abuse set forth in Auerbach's reports.

After remand, a review was held on January 13, 2005. Based in part on S.S.'s psychiatric evaluation by Ronald Crampton, M.D., the Family Part judge ordered that supervised therapeutic visitation commence between S.S. and the children. Consequently, the children had one therapeutic visitation session conducted by John Lynskey, L.C.S.W., but thereafter, at a second review heard on May 9, 2005, visitation was again suspended because S.S. stopped individual therapy and moved without providing her new address. S.S. filed an order to show cause seeking reinstatement of the therapeutic visitation and requesting a plenary hearing to review all issues related to her visitation with A.S. and J.S., as she was convinced K.S. was neglecting them. The trial court did not order a hearing, but did order the resumption of therapeutic visitation by May 30, 2005. S.S.'s therapist and the children's counselor were to send written reports to Lynskey regarding the appropriateness of resumption of therapeutic visits. However, if the professionals suggested therapeutic visitation was contraindicated, S.S. was to file a motion requesting visitation.

On July 25, 2005, the final protective services dispositional review occurred. At that time, S.S.'s therapist reported that S.S. had not made "any meaningful gains in her treatment" and, specifically, that S.S. lacked insight "as to how her behavior may have contributed to the removal of the children . . . and the termination of therapeutic visits." Moreover, the children's therapist, Barbara Rachlin, L.C.S.W., recommended that no visitation occur until a "positive written report as to [S.S.'s] progress in therapy, and readiness to see the girls" was received from S.S.'s therapist. Accordingly, the Family Part judge continued the suspension of S.S.'s visitation; dismissed the protective services litigation given that the children had been in their father's custody for over one year; and placed the children in K.S.'s legal custody. Further, DYFS was ordered to continue to pay for therapy for the children and S.S., and to continue conducting visits and reviews for a period of six months, after which applications for visitation/custody would be entertained.

S.S. moved to reopen the protective services litigation to require DYFS to complete the investigation regarding the allegations in Auerbach's report, and to allow visitation. S.S.'s request was denied by order dated May 11, 2006. However, the trial judge issued the following directive:

In accordance with the opinion by the Appellate Division . . . [DYFS] shall immediately investigate the "disturbing allegations" reported by Stephanie Auerbach in her October 21, 2003 and January 13, 2004 reports. . . . The results of this investigation must be provided to the court in writing by July 1, 2006.

On appeal from the trial court's May 11, 2006 order, S.S. argued to reopen the protective services litigation to require a full investigation and hearing on the allegations in Auerbach's report, because continued reliance on the statements by the treating professionals had precluded her access to the children. Citing Rule 4:50-1, S.S. also argued she should be permitted to "clear her name" by reopening the February 4, 2004 order that concluded she had abused the children, a request not presented to the trial court. DYFS responded that the investigation was then currently being conducted and will be completed, without reopening the prior matter.

We held that the protective services litigation was to be reopened for the limited purpose of ensuring the investigation is completed and final decision is issued in a timely fashion. DYFS II, supra, slip op. at 12-14. In this regard, we noted:

After review of the record, we conclude there is a need to reopen the protective services litigation to assure that DYFS swiftly concludes its long-delayed investigation of alleged abuse. We already know that some factual assertions in Auerbach's report have proved to be exaggerated (i.e., that S.S. had "a number of aliases and a lengthy 'rap' sheet"); and that others have been reaffirmed by A.S. and J.S. during the psychological examinations with Dr. DeLong (i.e., that S.S. routinely used excessive corporal punishment when disciplining A.S.). We continue to require that the accuracy of these allegations be probed - particularly, the possible exposure of A.S. to sexual abuse - by a Division investigation and court review and hearing, as necessary.

. . . .

It is essential to any decision regarding S.S.'s visitation with the children, that there be a basis for discerning the nature and extent of abuse, if any, in addition to the one incident determined in the fact-finding. Both S.S. and the children deserve a final disposition on the accuracy of these unresolved contentions, which impact directly on the determination of the appropriate level of contact between S.S. and her daughters.

[Id. at 12-13.]

Accordingly, we directed DYFS to conclude its investigation within two weeks and provide a report to the court and all parties no later than February 28, 2007. "Thereafter, the trial court shall immediately schedule this matter so that all proceedings to review the Division's position and S.S.'s challenges, including if necessary, a plenary hearing, are concluded by April 1, 2007, with a final decision issued ten days thereafter." Id. at 14.

Upon remand, Judge Alcazar ordered the protective services litigation reopened for the limited purpose of investigating the allegations of abuse reported by Auerbach. At a subsequent case management conference on March 6, 2007, all parties agreed that DYFS' initial investigation did not adequately address the allegations in the Auerbach report. The court then scheduled a hearing on S.S.'s motion to relieve DYFS, appoint a new investigator and suppress the DYFS report, which it later denied on March 8, 2007.

On March 15, 2007, a subsequent case management conference resulted in an order requiring DYFS to investigate the Auerbach report by April 13, 2007. In compliance with that directive, DYFS submitted the report of its investigator, Justin Kurland, on the scheduled date. DYFS' investigation concluded "clear and convincing evidence" existed corroborating many of the allegations against S.S., including that she dragged the children out the back door of the house when she saw DYFS workers coming to the front door; had regularly beaten and intimidated A.S.; and had walked around the house naked and requested the children to take nude photographs of her for the Internet. There was also reliable proof of sexual abuse, the existence of pornographic magazines in the home, the poor physical condition of the home, the presence of strange men at the home, A.S.'s sleeping with a knife, A.S.'s responsibility for cleaning the home, the lack of food and untimely payment of utility bills in the home, A.S.'s abandonment at the gas station, and S.S.'s numerous aliases and the existence of prior criminal charges.

Judge Alcazar again reviewed the protective services litigation on April 17, 2007, at which time the Law Guardian represented that the children wished to have contact with their mother. Therefore, the court ordered that S.S. undergo a psychological evaluation by Elayne Weitz, Psy.D. Significantly, S.S. did not contest the findings in the Kirkland report.

Dr. Weitz met with S.S. on May 3, 2007 and submitted a report on June 25, 2007, which noted S.S.'s behavior was "somewhat hyper and agitated" during her initial interview, but that she became "slightly calmer" as the session progressed. During the session, S.S. recounted her history with K.S., including K.S.'s admission to her that he is an alcoholic, "coke fiend and a crack addict."

While Dr. Weitz was unable to determine whether or not contact with S.S. would be in the children's best interest, she nevertheless expressed "serious concerns about [S.S.'s] psychological functioning," and possible "mental abuse" of the children. Dr. Weitz also recommended S.S. have her own therapist during the visitation process to allow for "additional monitoring and accountability of [S.S.'s] behavior." As such, on July 9, 2007, Judge Alcazar ordered DYFS to designate a therapist to oversee therapeutic visitation, and that visitation commence as soon as possible. As a result, DYFS assigned Carla Cooke-Harris, Ed.D., who, by letter to DYFS on August 10, 2007, reported that S.S. had no knowledge of a need for a supervisor during visits, and that since she had not heard from S.S. after their initial contact, she was unable to make a recommendation regarding therapeutic visits.

Judge Alcazar reviewed the matter again during a case management conference on September 4, 2007, during which S.S. was represented by counsel. The court ordered S.S. to attend counseling; A.S. to continue counseling; and A.S. and J.S. to attend sessions with Dr. Cooke-Harris to determine the propriety of parenting time between the children and S.S.

On November 1, 2007, S.S did not appear for a scheduled case management conference. Judge Alcazar then dismissed the litigation without prejudice due to S.S.'s failure to attend and to comply with previous court orders. Judge Alcazar further ordered that S.S. not have any further contact with A.S. or J.S. until further order of the court.

On November 21, 2007, S.S. filed an emergent order to show cause, seeking custody of the children and restraining K.S. from having any direct contact with the children. The matter was denied as non-emergent and set down for further proceedings. In the meantime, K.S. moved to strike, among other things, S.S.'s application for custody and requested that she comply with Judge Alcazar's July 9, 2007 court order. Judge Alcazar denied S.S.'s order to show cause on December 21, 2007.

S.S. then once again moved, on March 5, 2008, to immediately transfer custody of the children, to transfer the litigation outside Union County, and, by amended motion under Rule 4:50-1, to vacate the February 4, 2004 abuse and neglect fact-finding order.

The motion was heard by Judge Kessler who, by order of July 18, 2008, denied all of the relief, save for S.S.'s request to reopen the protective services litigation solely for the purpose of "addressing issues related to parenting time." In his comprehensive oral opinion of July 15, 2008, Judge Kessler found that, for purposes of her Rule 4:50-1 motion to vacate the February 4, 2004 abuse and neglect fact-finding order, S.S. had established neither fraud nor exceptional circumstances and that those determinations had twice been upheld by the Appellate Division.

In addressing S.S.'s claim that DYFS had withheld evidence in the fact-finding hearing, the court found that there was no evidence presented that the documents and photographs from the Plainfield Police Department (PPD) cited to by S.S. were ever in the possession of DYFS. Judge Kessler also found that counsel for S.S. at the time of the fact-finding was either aware or should have been aware of the existence of the documents and the photographs as counsel for K.S. attempted to have the author of the July 3, 2003 police report testify, but was denied the right to do so based on the objections of S.S.'s then counsel.

The court also held that the evidence presented by S.S. was not exculpatory. With reference to the photographs taken by the PPD, the court found that they reveal a faint red mark of A.S.'s leg which corroborated the finding that A.S. was struck.

The court also addressed the July 9, 2003 supplementary investigation report of the PPD that contained a statement from DYFS caseworker Sebastian Anthony, who testified at the fact-finding hearing, that DYFS "could not substantiate and [sic] assault complaints at this time." No inconsistency was found by the court as the "conversation plainly relates to whether a criminal complaint for assault would be filed since that would clearly require police involvement" and did not relate to the DYFS' abuse and neglect findings.

Finally, the court addressed the handwriting analysis presented to S.S. to support her claim that medical reports submitted into evidence during the fact-finding were forged or altered. The court found that the expert report submitted by S.S. only stated that one report was printed and the other was prepared in cursive writing. The court also noted that S.S. had brought her assertions of a forged document to the attention of the Union County Prosecutor's Office which, after an investigation that included an interview of the author of the reports, found that there was no basis to S.S.'s allegations.

The court also denied S.S.'s request that the children be removed from K.S.'s custody and placed with her or her parents, finding, among other things, that she had not established a change of circumstances as all her allegations against K.S. were either thoroughly refuted or conclusory:

In her original appeal, [S.S.] contested two orders that were entered by Judge Daniel on February 4, 2004. One order found that she had committed abuse and neglect against her daughters. The second, the dispositional order, placed the children in the physical custody of their father. [S.S.] had a full and fair opportunity to challenge that order both substantively and procedurally. If she felt that the hearing before Judge Daniel did not adequately address custody, that was the time to raise it. The Appellate Division upheld not only the order regarding the abuse and neglect finding but also the dispositional order. It is far too late to contend that she was denied due process in 2004.

Since the custody award was sustained on appeal, [S.S.] must establish that there has been a change in circumstances in order to prevail. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). To the extent that she relies upon allegations regarding James Spradley (phonetic) and Donald Jones, those allegations have been thoroughly refuted. Her remaining allegations are of the conclusory type that the Appellate Division rejected in Hand. The Court concludes that [S.S.] has not made a prima facie showing of changed circumstances.

Even if a prima facie showing had been made, the Court would not award custody to [S.S.] under the present circumstances. The children have not had meaningful contact with her for years. The only expert report received by this Court, the May 8, 2008 report of Dr. Cocaras, opines that the children should not have any unsupervised contact with their mother at this time and that contact should resume only in a therapeutic setting under procedures that have been carefully laid out. Thus, the idea of placing the children in their mother's custody is not within the realm of possibilities based upon the present record.

Following the July 18, 2008 order, from which S.S. has filed this present appeal, and with specific reference to parenting time, S.S. commenced her therapeutic visitation with A.S. and J.S. in the presence of Dr. Cooke-Harris on August 28, 2008. By the end of that visit, however, A.S. stormed out of the room after expressing anger at her mother, prompting Dr. Cooke-Harris to recommend suspension of the therapeutic visitation. Shortly after her visit with S.S., A.S. was admitted to the Carrier Clinic for psychiatric care.

On the day before that visitation, August 27, 2008, S.S. had filed an emergent application for an order to show cause seeking a rehearing of her May 16, 2008 motion based on "newly discovered" facts, including recently obtained medical reports of A.S., which S.S. argued contradicted false information given to the court by K.S. and K.S.'s girlfriend, J.M. Given the pendency of S.S.'s appeal, Judge Kessler dismissed the application under Rule 2:9-1 for want of jurisdiction. We subsequently vacated the order and remanded for consideration of the application.

At the ensuing hearing, S.S. argued, as she does now on appeal, that DYFS caseworker Gloria Cameron's testimony at the 2003 abuse and neglect fact-finding hearing as to A.S.'s injuries differed from her earlier memorandum of July 10, 2003 concluding there was no evidence of abuse, which DYFS had not produced. Based on his review of Cameron's oral testimony and memorandum, Judge Kessler found no clear contradiction and no reason to call Cameron's credibility into question. The judge further reiterated his July 15, 2008 finding that, in any event, S.S.'s so-called "newly discovered evidence" could have been discovered earlier. In flatly rejecting S.S.'s overall claim that DYFS, the Law Guardian and K.S. conspired to misrepresent and withhold relevant information from the court, Judge Kennedy concluded:

Since the filing of the application and since the filing of the notice of appeal, both of which were approximately a month ago, there have been several new facts and events, including the first therapeutic visit between [S.S.] and the children, which ended in confrontation between [A.S.] and her mother. The subsequent behavioral issues of [A.S.] at her placement, including a runaway incident and her eventual new placement -- current placement at the Carrier Clinic.

I have considered all of these recent developments as well as all of the submissions and argument of the parties and the reports of Dr. [Cooke-Harris] and the CMO family and community together. Obviously I have a more complete picture than I did when I rendered my decision in July; however, I do not conclude anyone lied to me or misled me.

Although [S.S.'s counsel] has focused on particular words and phrases, I considered the written submissions and the oral arguments of all the parties in July in their entirety and in context as a judge is expected to do. Thus, while [counsel for DYFS] said at one point that the children were doing well, he also stated that [A.S.] clearly is a troubled child who has behavioral and most likely psychiatric issues.

[The Law Guardian] referred to the children as thriving but also stated that [A.S.] was receiving intensive therapy and medication monitoring. Furthermore, it's important to note that the case had been closed from December until my decision in July, and that had a bearing upon the involvement and knowledge of both the law guardian and [DYFS].

Clearly, [K.S.] had more knowledge and more involvement. It would have been better if he had shared more information regarding [A.S.'s] recent circumstances; however, he cannot be faulted for failing to do so on the prior motion because the principal focus of that motion was on the effort to re-open the fact-finding decision from 2003 events and 2004 ruling.

. . . .

In reviewing [S.S.'s latest attempt to overturn Judge Daniel's 2004 decision], I looked for anything related to 2003 and 2004, and I found nothing.

. . . .

Aside from the fact that I do not accept the premise that I was lied to or misled, it is too great a stretch to say that words and conduct in 2008 implicate other words and other conduct of other people in 2004.

. . . .

Nothing presented to me on this application is relevant to Judge Daniel's decision or to my refusal to vacate Judge Daniel's decision. Therefore, for the reasons that I set forth in July and supplemented today with regard to the testimony of Ms. Cameron, it is my conclusion that the 2004 decision should not be reopened.

Accordingly, Judge Kessler denied S.S.'s emergent application and required the parties to comply with Dr. Cooke-Harris's recommendations regarding therapeutic visitation. Judge Kessler again reviewed the protective services litigation on March 9, 2009, and on March 30, 2009, ordered that the children remain in the legal custody of K.S. under the care and supervision of DYFS; that J.S. remain in the physical custody of K.S.; that A.S. remain in residential placement at East Mountain Youth Lodge, to continue treatment for suicidal tendencies; and that S.S. be granted visitation with J.S., supervised by Dr. Cooke-Harris, at the latter's recommendation, and with A.S. when the child's therapist deems it appropriate.

On appeal, S.S. raises the following issues:

A. This Court should reverse and remand

because the Family Part has still not

obeyed the mandate of this Court's 2007

ruling.

B. DYFS, the Law Guardian, K.S. and Roberts have conspired to mislead and defraud the Family Part.

1. DYFS' failures to produce and disclose, its misleading statements, the affirmative misrepresentations of DYFS and of the Law Guardian, particularly when combined with the lies and misconduct of K.S. and his mother, bespeak a conspiracy to defraud the Court and S.S.

2. The misrepresentations and the concealments on the part of DYFS, the Law Guardian, K.S. and his mother impacted significantly on analysis of the best interests of the girls.

We have considered these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). Accordingly, we affirm substantially for the reasons stated by Judge Kessler in his thoughtful and comprehensive oral opinions of July 15, 2008 and September 24, 2008. We add only the following comments.

Our scope of review of a family court's findings of fact is especially limited. Because of the family court's special jurisdiction and expertise in family matters, we accord deference to its factfinding and the conclusions which flow logically from those findings of fact and reverse only in those circumstances in which findings were "so wide of the mark that a mistake must have been made." Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Particularly when the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight unless clearly lacking in reasonable support. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). On the other hand, when we review issues that are purely legal in nature, our review is conducted de novo, and no deference need be shown to the trial court's interpretation of the law. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Measured by these standards, we find no warrant for interference with the rulings below.

S.S.'s challenge to DYFS' investigation of the Auerbach report is without basis in law or fact. As noted, in our previous discussion, we directed the agency to complete its inquiry and remanded to reopen the protective services litigation for consideration of DYFS' final report. DYFS II, supra, slip op. at 12. DYFS complied with that directive and its April 13, 2007 report corroborated by "clear and convincing" evidence, and in some cases "overwhelming" evidence, many of the Auerbach allegations. S.S. received a copy of the report as well as a certified letter from DYFS informing her of her right to administratively appeal the findings in the April 13, 2007 report. Despite this opportunity, S.S. never exercised her right to a hearing and consequently is now precluded from challenging these findings now on appeal. See Ortiz v. N.J. Dep't of Corr., 406 N.J. Super. 63, 65, 69 (App. Div. 2009) (appeal may not be maintained where party fails to exhaust administrative remedies by not exercising a statutory right to an administrative appeal).

Another matter raised for the first time on appeal concerns S.S.'s challenge to Judge Alcazar's dismissal of the protective services litigation on November 1, 2007. We discern no abuse of discretion here. R. 1:2-4(a); R. 4:37-2(a). Significantly, the dismissal was without prejudice, and occasioned by S.S.'s failure to appear and to comply with previous court orders. After all, the very purpose of the case management conference was to determine the propriety of allowing S.S. to contact or visit the children, and the previous court order directing S.S. to attend counseling with a psychologist was precisely to assist in determining this issue. In any event, the protective services litigation was eventually reopened and thus no prejudice inured to S.S.

Next, S.S. argues it was error not to vacate prior court orders in light of the civil conspiracy to defraud the court engaged in by DYFS, the Law Guardian, K.S., J.M., and the paternal grandmother. Such a claim is utterly baseless and, in our view, scurrilous.

"On motion, with briefs, and upon such terms as are just, the court may relieve a party . . . from a final judgment or order for . . . fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party." R. 4:50-1(c). Also, Rule 4:50-3 allows for the setting aside of an order, "for fraud upon the court."

To demonstrate a fraud on the court, a party must prove "'clearly and convincingly[] that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering presentation of the opposing party's claim or defense.'" Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 251 (App. Div. 2007) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)).

A valid claim for civil conspiracy requires "'a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damage.'" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177 (2005) (quoting Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994)). A party is liable if he or she understands the general objectives of the conspiracy, accepts them, and makes an implicit or explicit agreement to further those objectives. Ibid. Moreover, the gist of the claim is not the conspiratorial agreement, but rather "'the underlying wrong which, absent the conspiracy, would give a right of action.'" Id. at 178 (quoting Morgan, supra, 268 N.J. Super. at 364).

As supposed proof of fraud, S.S. points principally to the July 10, 2003 Cameron memo, which she claims contradicts Cameron's later testimony at the 2004 fact-finding hearing, and was wrongly withheld from her. As did Judge Kessler, we find no contradiction. Contrary to S.S.'s representation, the Cameron memo did not state "that there was no evidence of abuse," and certainly did not exonerate S.S. Rather, the memo concluded that Cameron "was not able to substantiate" abuse, but noted "concerns" about S.S. and her residence. The memo also noted an agency document regarding the findings of its investigation was yet to be completed.

As such, nothing in that memo contradicted Cameron's later oral testimony. As noted, Cameron visited S.S.'s residence on July 4, 2003. She found spoiled food in the refrigerator, frozen food which "an adult would have to prepare," and "only two boxes of rice in the cabinets." She also interviewed the children, finding a faint mark on A.S.'s left leg and several marks on J.S.'s left leg. On her direct examination, she testified as to the results of her physical examination of the children:

A: I recall quite well now. One child had an imprint on her left leg. . . . One child said she had been beaten by her mother with a hanger. And the mark basically jived with what this child -- with her explanation of how she received that particular injury.

. . . .

The shape of the hanger and the shape of the mark kind of coincided. It didn't appear to be a round object. It was -- the mark, again, appeared to be a new mark.

. . . .

The other child had several marks on her, but she also said that she -- she never said that she received them from her mother. She said that she received those from falling. . . . I'm not able to say that those marks came from a hanger, or how she received them.

We discern no conflict between Cameron's memo, which was not exculpatory, and her oral testimony, which was neither inflammatory nor exaggerated. Her observation of an imprint on A.S.'s left leg was corroborated by the agency's subsequent medical examination, N.J.S.A. 9:6-8.30c, which revealed only superficial injuries, by the children's account, and by S.S.'s own admissions. Consequently, we find no material misrepresentation - much less the massive fraud alleged by S.S. - and therefore no prejudice from DYFS' failure to timely disclose the Cameron memo.

Lastly, we agree with Judge Kessler's denial of S.S.'s motion to remove A.S. and J.S. from K.S.'s custody. Suffice it to say, we previously upheld the dispositional award of custody to K.S., DYFS I, supra, slip op. at 28, and Judge Kessler properly found S.S. has since failed to establish any change of circumstances.

Affirmed.

 

K.S. is the biological father of A.S. but not J.S., whose biological father remains unknown. It is undisputed that K.S. has always been treated as J.S.'s father.

Additionally, the trial court ordered the investigation of S.S's assertions, made in Spring 2005, that K.S. had neglected the children. Both were to be completed within thirty days.

We noted specifically that we "do not vacate the order of February 4, 2004, which includes the trial court's conclusion, affirmed on appeal, that S.S. committed an act of abuse and neglect against A.S. and J.S. S.S.'s suggestion to the contrary is rejected." DYFS II, supra, slip op. at 14.

(continued)

(continued)

27

A-0039-08T4

RECORD IMPOUNDED

June 24, 2009