L.F. v. S.T.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0161-11T3

L.F.,

Plaintiff-Respondent,

v.

S.T.C.,

Defendant-Appellant.

_________________________________

November 14, 2012

Argued September 24, 2012 - Decided

Before Judges Sabatino and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FV-21-0437-09.

Emily A. Mari argued the cause for appellant (Hoffman & Schreiber, attorneys; Ms. Mari, on the brief).

Heather J. Baker argued the cause for respondent (Morgan, Lewis & Bockius, L.L.P., attorneys; Ms. Baker and August W. Heckman, III, of counsel and on the brief).

PER CURIAM

Defendant S.T.C., who is incarcerated serving a

twenty-year sentence, appeals from a Family Part order denying his motion for telephonic and monthly video conference visitation with his three and four year-old children. We affirm.

The following facts are adduced from the record. Defendant and plaintiff were involved in a dating relationship that produced two children, born in August 2007 and September 2008. In January 2009, plaintiff obtained a temporary restraining order (TRO) against defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. At the time the TRO was issued, the children were sixteen months old and four months old.

On February 5, 2009, plaintiff obtained a Final Restraining Order (FRO) against defendant which, among other things, granted her temporary sole legal and physical custody of the two children and established defendant's child support obligation. The FRO was subsequently amended on February 20, 2009, to provide defendant supervised parenting time.

On March 20, 2009, defendant was arrested for committing the offenses for which he is sentenced.1 Plaintiff subsequently filed a motion to suspend defendant's parenting time. On June 4, 2009, the Family Part granted plaintiff sole legal and physical custody of the children and ordered that defendant have no contact with the minor children but that he may send birthday cards to the children, subject to the review of the cards by plaintiff for appropriateness.

On June 4, 2010, the court heard the parties' cross-motions regarding parenting time and granted defendant non-contact parenting time with the children at the county jail one weekend day per month, if visits were permitted. On June 22, 2010, the court issued an order confirming parenting time at the county jail once per month on either Saturday or Sunday. On August 23, 2010, the parenting time order was amended to change the visit day to the second Monday of each month and designate plaintiff's mother or another person of plaintiff's choice as the supervisor.

Plaintiff's mother took the children to visit defendant in September and October 2010. The November 2010 visit was cancelled due to defendant's placement in solitary confinement for a prison infraction. On November 6, 2010, defendant was charged with contempt for violation of the restraining order, N.J.S.A. 2C:29-9(b), for sending letters to plaintiff and her mother, who is also a protected party under the FRO. The December 2010 visit did not occur.

Thereafter, plaintiff filed a motion to indefinitely

suspend parenting time so long as defendant was incarcerated "out of sincere, extreme concern for the welfare and best interests of our children due to the irreparable psychological and emotional harm that they will suffer by establishing or maintaining any sort of parental relationship with the defendant through traumatizing prison visitation at such a very young age." Plaintiff's motion was supported by a certification by her mother, as supervisor, attesting to the children's conduct during the jail visits. The grandmother reported that the children, who were to speak with defendant through the glass using the telephone, were restless, played with the telephone, did not speak to defendant and cried for their mother as they tried to leave the room. Defendant filed a cross-motion to enforce litigant's rights for parenting time visits. In an order dated January 20, 2011, the court granted plaintiff's motion suspending defendant's parenting time visits but allowed defendant to continue sending greeting cards to the children for Christmas, Easter, Valentine's Day and their birthdays, as well as the letters subject to plaintiff's review.

Defendant filed a motion on March 18, 2011, to modify the parenting time arrangement and reinstate the monthly prison visits. Plaintiff subsequently filed a cross-motion to continue the indefinite suspension of defendant's parenting time with the children, as well as any contact with defendant for as long as he was incarcerated.

On April 28, 2011, the Honorable John J. Coyle, Jr., J.S.C., conducted a plenary hearing. The judge considered the testimony of both parties and their certifications, and on May 17, 2011, issued a written opinion and order denying defendant's application for parenting time without prejudice. The court found plaintiff's testimony to be truthful and credible and made several factual findings as to defendant's relationship with the children:

[T]he defendant has not established a close relationship to the children . . . and has not formed any type of bond with them. Prior to the court ordered visits at the Warren County Jail, the children had not seen or spoken to the defendant for twenty-one (21) months during which period they never indicated a desire to see him.

The court applied the standard set forth in Fusco v. Fusco, 186 N.J. Super 321, 326 (App. Div 1982)2 to evaluate "whether the welfare of the children [would] be promoted or disserved by visitation with their father." While acknowledging that defendant had not forfeited his parental rights as a result of his crimes, the court stated that the visitation issue "must be dictated exclusively by concern for the children's best interest and not by the conflicting desires, wishes or sensibilities of the parents. . . ." Ibid.

Specifically as to the emotional well-being of the children during jail visitation with their father, the court found that the visits "proved to be traumatic for the children especially [the three year old child] who experienced nightmares and problems with sleeping." Balancing the desirability to maintain and nurture the parental relationship with the Fusco factors, the court determined that the emotional and psychological burden on the children far outweighed the father's right to have parenting time in prison. The court also found that "the custodial parent, plaintiff, [was] entitled to have some control over the time and manner in which the children will learn the inevitable and devastating truth about their father." Upon denying defendant's request, the court did so without prejudice to enable defendant the opportunity to re-file "when the children are older and more emotionally capable of dealing with the situation," and permitted defendant to continue sending holiday and birthday cards to the children subject to plaintiff's review.

Shortly thereafter, defendant filed another motion to modify visitation, this time limiting his request to telephone calls and videoconferencing. Oral argument was held before Judge Coyle on August 4, 2011, where defendant argued that the telephone and video contact would be in the children's best interest and would not subject them to any trauma as they would not be required to visit a correctional institution. Plaintiff reiterated her request for the denial of any visitation while defendant is incarcerated, and she argued that the children would suffer irreparable psychological and emotional harm if any prison visitation occurred at this time.

On August 8, 2011, Judge Coyle issued an order, again denying defendant's motion to modify parenting time. In a written Statement of Reasons, Judge Coyle thoroughly explained why visitation would not be granted. Reassessing the factors set forth in Fusco, the court found that, while the telephone and video contact between defendant and the children would mitigate any concerns regarding the effects of the prison environment on the children, visitation at that time was not in the children s best interest. Defendant's motion was denied without prejudice. This appeal followed.

Defendant contends that the trial court misapplied its discretion in denying him visitation with the children and erred by failing to conduct a plenary hearing.

As a threshold matter, "factual findings that undergird a trial court's judgment should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,'" and must "be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determination[s] and the judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007); see also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). The trial court's "'feel of the case' . . . can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). We also recognize the special expertise of Family Part judges. Cesare, supra, 154 N.J. at 412-13. Pertaining to the care and custody of children, "the decision concerning the type of custody arrangement [is left] to the sound discretion of the trial court." Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001) (quoting Pascale v. Pascale, 140 N.J. 583, 611 (1995)).

Having considered these arguments and applying that deferential standard of review, we affirm the trial court's denial of defendant's motion, substantially for the reasons detailed in Judge John J. Coyle's well-reasoned opinions of May 17, 2011 and August 8, 2011, and his corresponding orders. We add only a few remarks.

Defendant asserts the trial court erred in failing to conduct a plenary hearing on his second motion for visitation. We disagree. Rule 5:8-6 requires a plenary hearing to be conducted where "the custody of children is a genuine and substantial issue." This court has expressly construed our rules relating to the custodial status of minors to include visitation. Wilke v. Culp, 196 N.J. Super. 487, 503 (App. Div. 1984), certif. denied, 99 N.J.243 (1985).

As to the need for a plenary hearing, a party seeking to modify custody or visitation must show that "due to a substantial change in circumstances from the time that the current . . . arrangement was established, the best interests of the child would be better served by a [modification]." Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000).

Here, the judge complied with Rule 5:8-6 and conducted a plenary hearing in April 2011 to hear testimony from both parties regarding the denial of defendant's jail visitation with the children. On defendant's subsequent motion, filed just five weeks after the order denying visitation, the judge determined that a plenary hearing was not necessary because the defendant did not raise any additional material issues or facts for the court to consider, nor did he demonstrate any changed circumstances. Specifically, the judge opined that "there is nothing in the record to support [d]efendant's position that parenting time is in the best interests of the children, nor is there anything to suggest that a plenary hearing would assist this [c]ourt in any respect." We discern no abuse of discretion in the trial court's denial of a second plenary hearing.

Lastly, defendant avers that the judge "should have ordered a psychological evaluation to be conducted in order to explore what is in the children's best interest." Plaintiff's concerns for the children's psychological and emotional welfare were clearly presented, however, defendant did not request the trial judge to order a psychological evaluation. If defendant brings forth another motion on the issue of visitation at an appropriate future time, and if the circumstances dictate, the court may consider ordering a psychological evaluation of the children at that time.

A

1 On March 19, 2009, defendant lured a female to his residence, sexually assaulted her at gunpoint, then forced her to withdraw money from her bank accounts at various ATM machines. On December 2, 2009, he pled guilty and was convicted of kidnapping, aggravated sexual assault, armed robbery and possession of a weapon for an unlawful purpose.

(1) The general desirability of maintaining and nurturing the paternal relationship between father and child; (2) the emotional and psychological burden placed upon the child in maintaining the paternal relationship by prison visitation; (3) the risk to the child of premature knowledge of the father s crime; (4) the effect of the prison environment on the child; (5) the probable effects of prison visits on the maternal relationship with the child; and (6) the imposition of a recurrent situation which the mother finds difficult and stressful and which directly affects her ability to function as sole custodial parent.

[Id. at 326-27.]