THOMAS HAAS v. SUSAN HAAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2922-07T32922-07T3

THOMAS HAAS,

Plaintiff-Respondent,

v.

SUSAN HAAS, n/k/a SUSAN SYKES,

Defendant-Appellant.

__________________________

 

Argued November 17, 2008 Decided

Before Judges Reisner and Alvarez.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1203-97-W.

Salvatore Principato, Jr., argued the cause for appellant.

Respondent has not filed a brief.

PER CURIAM

This is an appeal from a January 11, 2008 order affirming requirements previously imposed upon defendant Susan Haas, now known as Susan Sykes, which had to be met before visitation with her child would resume. We affirm.

Plaintiff Thomas Haas and defendant had one child born on June 14, 1995, months after their separation. They divorced in 1997. The child lived with her mother from birth until February 19, 2004, when she was removed from her mother's care and placed with her father by the New Jersey Division of Youth and Family Services (the Division). It is undisputed that defendant suffers from schizophrenia. She receives social security disability, has been hospitalized on numerous occasions, and has been jailed in the past as a result of legal difficulties precipitated by her delusional state.

On October 27, 2004, Judge Segal issued an order requiring that any future visitation between defendant and the child be supervised by a maternal aunt. The order, which was issued as a result of defendant's application for return of custody, stated that no modification of the visitation order would be made unless defendant provided an "updated and complete psychiatric evaluation." Between that date and 2005, defendant saw her daughter six times.

From May to November 2005, defendant was incarcerated in Pennsylvania on a charge of stalking, resulting from her delusion that she and an acquaintance were engaged. These charges were ultimately dismissed. From November 2005 to February 2006, she was hospitalized in Ancora.

On June 16, 2006, Judge Hoffman denied another motion filed by defendant seeking a return of custody based on entirely unfounded claims that plaintiff and his family were abusing and neglecting the child. In the order, the court references the "numerous" times that defendant complained to the Division and local police departments about these claims, which were a product of defendant's delusional state. The court noted on the order that it had reviewed a psychiatric report from a Dr. Black dated January 28, 2005, which it did not consider to be "recent."

On September 8, 2006, defendant again sought custody of the parties' child based on her unsupported belief that the child was being abused. The order states: "Should the DYFS investigation reveal that the allegations are unfounded, any contact between [defendant] and the child shall be immediately terminated until further Order of the Court." Although not entirely clear from the record, it was presumably this order that stopped all visitation between mother and child.

It is also unclear how many times defendant has attempted to reinstate contact with her child since her discharge from Ancora in February 2006, either through the filing of pro se motions for custody and visitation, similar motions filed by counsel, or direct contact with personnel at the courthouse. It is clear, however, that she has done so repeatedly.

On June 21, 2007, an emergent hearing was conducted as a result of defendant's pro se application for custody. The ensuing order stated that due to her mental health issues and the number of "previously filed similar applications," defendant would be required to attach current psychiatric reports to any future applications for custody or visitation. At the June 21, 2007 hearing, testimony was taken from Division staff.

On July 16, 2007, a final domestic violence order (FRO) restraining defendant from contact with plaintiff, his family, and the child was entered. An order was issued under the FM docket a few days later on July 27, 2007, directing the Ventnor police to take defendant for a commitment screening as she had made "repeated telephone calls to the court and appears to be delusional, volatile and potentially threatening to the court and her family."

In November 2007, defendant's mother filed a motion on her daughter's behalf requesting that defendant be permitted contact with her child. The matter was eventually heard on January 11, 2008, at which time the court denied any relief. This appeal is taken from that order.

The order states that the court considered the 2005 report from Dr. Black, a 2007 competency report from a Pennsylvania psychiatrist, and the extensive court history. Due to the judge's heightened concern that defendant's condition was worsening, she was required to obtain "an updated [psychiatric] report specifically determining that she is capable of exercising supervised visitation and is not a danger to herself or others." The court also required her to obtain an expert evaluation that "supervised visitation would be in the best interests of the child." The court further indicated that the second evaluation would be ordered only after the first evaluation was produced.

Defendant's brief sets out the following points:

POINT I

COURT ERRED IN THAT COURT MADE NO FINDING AT DOMESTIC VIOLENCE HEARING THAT DEFENDANT ACTED WITH INTENT TO HARASS WHEN SHE CALLED POLICE TO ASK THEM TO DO A WELL-CHECK ON HER DAUGHTER WHOM SHE BELIEVED WAS IN HARM'S WAY.

POINT IA

COURT ERRED IN FINDING THAT IT DID NOT HAVE AUTHORITY TO REVIEW THE DOMESTIC VIOLENCE ORDER OF RETIRED JUDGE THAT HAD HEARD DOMESTIC VIOLENCE MATTER, WHERE THE MOVANT UPON THE UNAVAILABILITY OF THE "SAME JUDGE WHO ENTERED THE ORDER," COMPLIED WITH THE DOMESTIC VIOLENCE ACT, N.J.S.A. 2C:25-29(D) THAT PROVIDES ON GOOD CAUSE SHOWN, THAT ANY FINAL ORDER MAY BE DISSOLVED OR MODIFIED UPON APPLICATION TO THE FAMILY PART OF THE CHANCERY DIVISION OF THE SUPERIOR COURT, BUT ONLY IF THE JUDGE . . . HAS AVAILABLE A COMPLETE RECORD OF THE HEARING . . . ON WHICH THE ORDER WAS BASED AND WHERE THE CIRCUMSTANCES AS PROVIDED IN THE TRANSCRIPT OF THE MATTER SHOWED GOOD CAUSE TO MODIFY, VACATE OR DISSOLVE ORDER.

POINT II

THE COURT ABUSED ITS DISCRETION WHEN IT REPEATEDLY DENIED THE DEFENDANT THE FUNDAMENTAL RIGHT OF PARENTING WITHOUT DUE PROCESS OF LAW WITHIN THE MEANING OF THE XIV, IX, & XI AMENDMENTS TO U.S. AND N.J. CONSTITUTIONS, WHERE AFTER REPEATED APPLICATIONS ALL WITHOUT HEARING, THE COURT REQUIRED TWO-STEP REDUNDANT PSYCHIATRIC EVALUATION FINDINGS THAT (1) "SHE IS NOT A DANGER TO HERSELF AND OTHERS AND IS CAPABLE OF EXERCISING SUPERVISED PARENTING" BEFORE IT WOULD EVEN CONSIDER (2) EVALUATION IF CONTINUED SUPERVISED VISITATION IS IN THE CHILD'S BEST INTERESTS THUS APPLYING THE WRONG STANDARD.

POINT IIA

WHERE THE COURT'S ACTIONS RESULT IN A DE FACTO TERMINATION OF PARENTAL RIGHTS REQUIRED STANDARD OF PROOF OF SERIOUS PHYSICAL OR PSYCHOLOGICAL HARM OR A SUBSTANTIAL LIKELIHOOD OF SUCH HARM TO THE CHILD.

POINT IIB

COURT ABUSED ITS DISCRETION WHERE COURT CONTINUOUSLY DENIED PARENTING TIME UPON PARENT'S APPLICATIONS WITHOUT PLENARY HEARING BASED UPON DEFENDANT'S HISTORY OF HOSPITALIZATIONS FOR MENTAL ILLNESS EVEN THOUGH THESE COMMITMENTS ENDED WITH AN ADJUDICATION THAT MOTHER WAS NOT DANGEROUS WITHIN THE MEANING OF N.J.S.A. 30:4-27.2, RULE 4:74-7.

POINT IIC

WHERE PARENT HAD RAISED NOW 12-YEAR-OLD CHILD IN SINGLE-PARENT HOME UNTIL THE AGE OF NINE YEARS, EIGHT MONTHS AND THE CHILD HAD FLOURISHED IN DEFENDANT'S CARE, COURT SHOULD HAVE AT LEAST INTERVIEWED THE CHILD IF NOT APPOINTED A LAW GUARDIAN TO ASSESS THE CHILD'S RELATIONSHIP IN THE FIRST INSTANCE.

After our independent review of the record and consideration of defendant's legal contentions, we conclude that the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We mention only the following.

The findings of the Family Part are entitled to particular deference in view of its "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). There was ample credible evidence relied upon by all of the Family Part judges that have presided over these matters that warranted requiring defendant to obtain a psychiatric evaluation before any visitation, even if supervised, was allowed.

Counsel's request that we vacate the domestic violence order, so as to dissolve the visitation conditions, is misguided. Even if the domestic violence order had never been entered, the September 8, 2006 order, which prohibits contact between mother and child, would still be in effect. Defendant's mental health has not stabilized since those restrictions were imposed.

The psychiatric evaluations that defendant contends are in compliance with the orders requiring her to submit an updated evaluation do not satisfy the court-imposed requirements. The 2005 report is outdated. The competency report related to the Pennsylvania charges, prepared by a second psychiatrist on June 20, 2007, cannot be relied upon for purposes of visitation. That report was prepared strictly to establish defendant's competency in pending criminal proceedings, and it would be improper for any family court judge to rely upon it in this highly sensitive visitation dispute.

As the motion judge who issued the January 11, 2008 order acknowledged, it is very difficult, if not impossible, to ignore defendant's significant mental health issues. In the two years prior, defendant's condition worsened and she was hospitalized and incarcerated. As the court said, it is necessary to "have confidence that [visitation is] in the best interest of that child. I have nothing, nothing in front of me to establish that." The court needs to have some assurance that defendant does not pose a danger to herself or others and is psychologically capable of cooperating with supervised visitation. The court also needs an expert opinion in determining whether supervised visitation is in the child's best interest in light of the years since the last contact and the deterioration of defendant's mental condition.

Counsel's argument that these orders are a de facto termination of parental rights is neither fair nor accurate. It is reasonable to require defendant to obtain psychiatric clearance before commencing visitation given that her condition has worsened, not improved, over the years. Defendant's current inability to visit with her daughter is not due to a termination of parental rights, but to her persistent refusal to obtain the evaluations directed by the court. No fact or law has been proffered by defendant to warrant a change in the requirements imposed upon her.

Affirmed.

 

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9

A-2922-07T3

RECORD IMPOUNDED

January 20, 2009