NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.M.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.M.L.,

Defendant-Appellant,

and

R.L.,

Defendant-Respondent.

___________________________

IN THE MATTER OF R.L.L.,

A Minor.

___________________________

November 13, 2013

Before Judges Reisner and Ostrer.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15 121-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Howard Danzig, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent R.L. (Mark E. Kleiman, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.L.L. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

PER CURIAM

This matter arises from a Title 30 complaint filed by the Division of Child Protection and Permanency (Division),1 seeking the provision of services to the family of defendant T.M.L. See N.J.S.A. 30:4C-11, -12. Defendant now appeals from a July 21, 2011 order and a November 15, 2012 order, concerning residential custody of her son R.L.L., as well as visitation.2 Both orders placed R.L.L. in the residential custody of his father, and set conditions on defendant's right to visit the child. The November 15, 2012 order was entered on remand from this court, following defendant's release after serving a year in prison. We conclude that the appeal of the July 21, 2011 order is moot. We affirm the November 15, 2012 order as modified by this opinion.

I

Although we conclude that the appeal of the earlier order is moot, it is helpful to understand the background from which that order arose. Defendant has a long and unfortunate history of drug addiction. In 2009, she was arrested for attempting to fill a forged prescription, while visiting a pharmacy with her young son. In November 2009, defendant and her husband R.L. were divorced. The divorce judgment incorporated their agreement to joint legal and shared residential custody of their son R.L.L., who was then five years old.3 In January 2010, the Division filed a Title 30 complaint for care and supervision of the child, contending that R.L.L. was then living with defendant and was at risk in defendant's care, due to her drug problems. On January 22, 2010, defendant and R.L. consented to the Division's involvement in their family for the purposes of implementing services, and the court ordered defendant to undergo a substance abuse evaluation.

On April 15, 2010, the Family Part held a plenary hearing on the issue of child custody, because defendant had not been compliant with drug treatment. There was no dispute at that time that she had a close relationship with the child. The issue was whether she was fit to have fifty-fifty residential custody of the boy, because of her ongoing drug problem. The father was amenable to that arrangement, so long as defendant lived with her parents. At the end of the hearing, all parties consented to an order continuing the child "under the care and supervision of the Division," and providing for continued shared legal and physical custody, conditioned on defendant living with her parents and the parents supervising her at all times when she was with the child. The April 15, 2010 order also adjudicated the child "to be a ward of the court under N.J.S.A. 30:4C-12."

By June 2010, defendant had failed at least one drug test, and was not compliant with her treatment program, and the Division had received a report that the maternal grandparents were not consistently supervising defendant with the child. For that reason, the Division had removed the child from the grandparents' home on an emergency basis and placed him full-time in the father's custody. At an August 5, 2010 hearing, the child's Law Guardian told the court that the child wanted to live with his father full-time, and that defendant had begun physically turning her back on the child at visits. Defendant's counsel insisted that the court should promptly hold a hearing on the original allegations that had resulted in the child living full-time with the father. The court approved, on a temporary basis, the Division's prior emergency removal of the child from defendant's custody and placement with the father on a full-time basis. The court ordered therapeutic visitation between defendant and the child.

On December 7, 2010, the trial court began a plenary hearing on the allegations that led to the temporary removal. On the next hearing date, February 4, 2011, the court was advised that defendant had been incarcerated in the county jail for three weeks, and had terminated the services of her attorney. The judge granted her an adjournment to retain a new attorney.

On March 28, 2011, defendant's new counsel appeared and withdrew defendant's request for a plenary hearing. On that basis, the judge discontinued the plenary hearing. At that time, defendant was facing criminal charges in two different counties and had recently been discharged from a drug program for non-compliance. The father had also filed a motion for sole legal and residential custody of the child, with defendant to have the right to visitation. The judge scheduled a plenary hearing on that application.

When the parties returned to court on June 20, 2011, they all agreed to adjourn the father's custody motion to July 21, 2011, and they all agreed to allow the maternal grandparents to have unsupervised visits with the child. At that point, defendant was in jail. She was represented by counsel at the June 20 hearing.

On July 21, 2011, defendant was still awaiting sentencing, and was facing a possible five-year State prison term. The Law Guardian reported that the child had "blossomed" in his father's full-time care and was ambivalent about visiting with his mother. The child was also in therapy. All parties except defendant agreed that therapeutic visitation with the child was appropriate once defendant was released from prison. Defendant requested visitation while she was in prison. The father opposed taking the child to the prison for visits, because the child already had psychological issues and there would be no therapist available to supervise those visits.

On July 21, 2011, the judge accepted the recommendation of the child's therapist that defendant's therapeutic visits with the child be suspended "until she can remain substance free for a period of time and her personal issues are addressed."4 Accordingly, he ordered that, once defendant was released from prison, and compliant with drug treatment for three months, she would be entitled to resume therapeutic visitation. However, the judge also ordered that if defendant were incarcerated for more than three months, she could apply to the court for ordinary visitation at the prison. The order continued the grandparents' right to unsupervised visitation. With those provisos, the judge dismissed the Division's Title 30 complaint. The order also specified that any future motions concerning "visitation and other issues" should be filed in the "pre-existing FM [matrimonial] docket."

Defendant filed a motion for reconsideration and for visitation at the prison. The Division, the father, and the Law Guardian opposed the application. The child's therapist reported that the child became upset at the prospect of visiting his mother in prison. Defendant withdrew her motion. On October 11, 2011, the Family Part entered an order once again terminating the FN (Title 30) litigation, directing that the child remain in the shared legal custody of both parents but in the physical custody of the father, and leaving all of the prior visitation provisions intact.

During the pendency of this appeal, defendant was released on parole after serving a year of incarceration. She filed a post-judgment motion in the matrimonial docket, seeking a custody modification due to her release. The matrimonial judge declined jurisdiction citing the pending appeal, and the Law Guardian then filed a motion with this court for a temporary remand to address the child's best interests with respect to custody and visitation. On August 6, 2012, we ordered a remand "to determine whether a change of circumstances warrants reconsideration of the court's prior custody determination; the terms and conditions upon which T.M.L. may have contact with the child; and any other issues the parties may raise that bear upon custody and visitation." The proceedings on remand were heard by a judge who was newly assigned to the case.

At a plenary hearing on October 12, 2012, defendant presented expert testimony from a psychologist, Dr. Jesse Whitehead. He opined that defendant needed individual therapy to address certain personality problems that he described as "excessive emotionality, narcissism . . . and some antisocial patterns of behavior which were things that resulted in her incarceration in the first place." However, based on his bonding evaluation, which occurred on September 5, 2012, he did not believe that defendant should be required to complete therapy before being allowed to resume visitation. In his testimony, Dr. Whitehead described his observation of a normal, affectionate visit between defendant and the child, who was eight years old. He also observed defendant displaying good parenting skills. He observed that she avoided asking the child a lot of personal questions and concentrated on playing games with him.

Dr. Whitehead recommended supervised visitation but not necessarily therapeutic visitation. He opined that failure to resume visits immediately would punish the child for his mother's past wrongdoing. On cross-examination, Dr. Whitehead admitted that he had not spoken to the child about whether he wanted to visit with his mother. He stated that he believed he was not permitted to do so under the terms of the court's referral. He also admitted he was not aware that the child had told another therapist that he only wanted to see his mother every couple of months. He did not address the issue of child custody.

The Law Guardian presented testimony from Dr. Maureen Santina, an expert in clinical psychology and substance abuse treatment. Dr. Santina had conducted psychological evaluations of both parents, interviewed the child, and conducted bonding evaluations of the child with each parent. She also assessed "the advisability of both custody and visitation arrangements" for the child.

During a bonding evaluation on August 30, 2012, she made observations that were strikingly different from what Dr. Whitehead observed a week later. However, this was apparently the first time the mother and son had seen each other in a year. Dr. Santina observed that the child was guarded and uncomfortable with defendant and their interaction seemed somewhat stilted. She observed that the two got along better when playing games than when defendant asked her son any personal questions. Not surprisingly, she observed a much more natural and relaxed interaction between the child and his father. However, on cross-examination, Dr. Santina testified that she had evaluated other children who had experienced a long separation from a parent and, if they had a prior "unconflicted" bond, the child would warm up after a few minutes. That did not happen here.

In evaluating defendant, Dr. Santina found that she had a high risk of relapsing into substance abuse, because she was not engaged in any follow-up treatment or twelve-step meetings, and could not explain "any specific recovery skills, [or] any particular strategies that she learned" in the several months of treatment she had undergone. Defendant also told Dr. Santina that she did not need any follow-up treatment. In Dr. Santina's experience, addicts who refused aftercare following initial treatment had a 90-95% chance of relapsing.

Unlike Dr. Whitehead, Dr. Santina found that defendant had a personality disorder, which would require at least one to two years of treatment before she could possibly safely parent a child. Dr. Santina also found that defendant had "very strong oppositional traits," meaning that she would tend to be "defiant of authority, [unwilling] to cooperate with people, . . . resenting others having expectations of her." Dr. Santina opined that defendant was "quite immature, [and] self-centered," with "poor judgment." She also opined that it would harm the child if he were to re-engage with his mother, only to have her relapse into substance abuse. She stated that "it would be harmful and confusing to him, anxiety provoking, to start seeing her and have to stop seeing her again. That kind of disruption is very stressful for a child."

When Dr. Santina interviewed the child separately, he stated it had been "okay" to see defendant at the bonding evaluation. However, he was emphatic that he did not want to visit with his mother without someone else present. Based on her observations of the child, the interview, and reports of prior therapists, Dr. Santina opined that the child did not feel safe being alone with his mother. She also opined that defendant should begin attending therapy before resuming visitation. She opined that defendant needed to address her "oppositional, egocentric, intolerant behavior, the lack of empathy for others, I think will be problematic in terms of her interactions with [R.L.L.]."

She recommended that defendant not resume visits with the child

until she has established at least another three months of stable functioning where she's working, has a stable residence, is actively engaged in substance abuse counseling, urine monitoring, and individual therapy. . . . [S]he needs to establish that she's actively engaged in addressing her recovery, in addressing the emotional issues that have impaired her ability to relate not only to [the child] but to other people as well.

In reaching that conclusion, Dr. Santina also relied on prior reports from the child's therapist, Dr. Lill, who described the child as showing "a lot of anxiety about interacting with his mother." According to Dr. Santina, Dr. Lill had also observed "some negative interaction patterns of his mother with [the child]," including defendant being "quick to anger and impatient."5 Dr. Santina noted an October 10, 2012 report from Dr. Brandwein that defendant behaved inappropriately with the child during an October 9 bonding evaluation. For example, defendant made "sarcastic comments" about the child's broken arm.

The Division next presented testimony from case worker Amy Hayward. She had been the family's case worker since January 2010, and had developed a good relationship with the child over approximately a three-year period. She had recently visited with the child on October 11, 2012, and he told her that he would not want to visit with defendant alone. He stated that he would only want to see his mother every few months, and only with a therapist present. He told Hayward that he had seen his mother on October 9, and that seeing his mother made his stomach hurt; he explained to her that "his feelings would be hurt, like scared." Hayward testified that the child was still participating in therapy. Hayward also testified that she made efforts to contact defendant after she was released from prison, in order to offer her services, but defendant did not respond to her overtures.

On November 15, 2012, the trial judge placed an oral opinion on the record, which she later supplemented with a written opinion dated November 27, 2012. Relying on Dr. Santina's un-rebutted opinion concerning child custody, the judge concluded that it was in the child's best interests to remain in the sole residential custody of his father. The judge also found Dr. Santina's opinion on visitation more credible than that of Dr. Whitehead.

The judge noted that defendant's demeanor during the hearing supported Dr. Santina's evaluation that she was immature, oppositional and had difficulty conforming her behavior to what one would expect of a mature adult. The judge found:

[D]uring the course of this entire hearing [when] any witness . . . evidenced anything that was detrimental to [defendant] she continually smirked, rolled her eyes, and made faces at the individual who was at the time on the witness stand. In addition, this court could not help but notice that whenever her attorney asked a question that apparently she did not feel was important or proper, she rolled her eyes while the question was being asked. . . . [Defendant's] comportment during this hearing underscores Dr. Santina's finding that [she] possesses very strong oppositional traits, that she's defiant of authority, that she's non-cooperative and resentful.

The judge explained at length why she found Dr. Whitehead not to be a credible expert. She found nothing in any court order that precluded him from speaking to the child about his wishes or evaluating the child. She found that Dr. Whitehead did not make a complete review of current Division records, did not review the child's therapeutic records, had no expertise in the area of substance abuse treatment, and did not evaluate defendant's substance abuse problems or offer a prognosis.

On the other hand, the judge credited Dr. Santina's testimony about the risk to the child if visitation resumed, only to be once again disrupted if defendant relapsed into drug abuse. The judge also placed great weight on the child's preferences, as expressed to both Dr. Santina and Hayward, that visiting his mother caused him anxiety and he was afraid to see her without someone else present. The judge found "that it would not be in [the child's] best interests to have visitation with his mother at this time." She also adopted Dr. Santina's recommended conditions precedent to resuming visitation, including participation in outpatient drug treatment, counseling, three months of clean drug tests, plus "a stable residence and employment."

Accordingly, the judge entered a dispositional order on November 15, 2012 providing as follows: the child was continued under the Division's care and supervision; legal custody of the child remained with both parents; physical custody of the child was continued with the father; and defendant's visitation was temporarily suspended in the child's best interests. Defendant was ordered to participate in substance abuse treatment, random urine screens, and therapeutic counseling. She was required to demonstrate three additional months of abstinence from drugs and alcohol, participation in therapy, and a stable residence and employment, before resuming therapeutic visitation with the child. That order was entered almost a year ago. The record does not reflect whether defendant has been able to resume visitation with the child.

II

On this appeal, defendant continues to challenge the July 21, 2011 order. However, we conclude that she abandoned the legal issues she now seeks to raise when she waived her right to a plenary hearing and withdrew her motion for visitation. A party cannot appeal from a judgment or order to which she consented. Bass v. DeVink, 336 N.J. Super. 450, 455 (App. Div.), certif. denied, 168 N.J. 292 (2001). Moreover, we conclude that defendant's lengthy incarceration was a drastic change in circumstances that rendered moot any previous issue as to which parent would have residential custody of the child. Further, the hearing on remand, and the trial court's resulting findings and order, have effectively superceded any previous findings and orders on custody and visitation. See N.J. Div. of Youth & Family Servs. v. J.C., 423 N.J. Super. 259, 268-69 (App. Div. 2011). Therefore, we turn to the issues arising from the November 15, 2012 order.

Defendant urges that she was unfairly deprived of her right to resume visitation with her son. It is well-established that

"[p]arents have a constitutionally protected right to maintain a relationship with their children." Although those rights are fundamentally important, they are not absolute, and "must be balanced against the State's parens patriae responsibility to protect the welfare of children." In balancing those competing concerns, a court must ensure that the statutory and constitutional rights of the parent or guardian are scrupulously protected.

[N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009) (citations omitted).]

In the context of a Title 30 action for care and supervision, a court may effectuate temporary changes in child custody and visitation, where such changes are in the child's best interests. See N.J. Dep't of Children & Families v. I.S., 214 N.J. 8 (2013). However, to protect the parents' due process rights, the court may not make a final disposition that changes custody arrangements, without a "best interests" hearing. Id.; see N.J.S.A. 9:2-4 (setting forth factors the court must consider in making child custody determinations). We find that defendant's due process rights were appropriately protected by the plenary hearing afforded on remand. With one minor exception, we also find no error in the order that resulted from the hearing.

In reviewing that order, we are mindful of the deference we owe to the factual findings and credibility determinations of the trial court, and to the expertise of the Family Part in handling these matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The issue is not how we would have decided the case had we considered it ab initio. The question is whether the Family Part judge's decision is supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007).

We also consider that the Family Part judge was responding to our direction in the remand order. We conclude that the judge's decision was entirely responsive to our order, and thoroughly addressed all issues encompassed by the remand. On this record, the judge correctly determined that the father should continue to have full-time residential custody of the child. Dr. Whitehead did not even suggest that shared custody was appropriate, and Dr. Santina's un-rebutted expert opinion convinced the trial judge that the father was an excellent parent, while defendant was not capable of safely caring for the child. We find no basis to disturb the judge's findings on that point.

Likewise, in light of the judge's factual and credibility findings, we defer to her conclusion that a further, temporary suspension of visitation was appropriate. We recognize the importance of visitation between a parent and a child, which has both constitutional and statutory protections. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 608 (App. Div. 2007); N.J.S.A. 9:2-4; N.J.A.C. 10:122D-1.1; N.J.A.C. 10:122D-1.15. The fact that a parent uses illegal drugs, without more, would not necessarily justify denial of supervised visitation so long as the parent is not posing a risk to the child during the visits. See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011). However, in this case, defendant had a history of inappropriate conduct during visits. Moreover defendant was under parole supervision and failing a drug test could result in her return to prison. The issue was not her possible drug use, per se, but the harm to this already-vulnerable child from re-engaging with a parent who would be unable to maintain a connection with him because she could not stay out of jail.

In light of Dr. Santina's detailed and convincing expert testimony, we find no basis to disturb the judge's requirement that defendant maintain her sobriety for an additional ninety days, and engage in individual therapy, before resuming visits with the child. We do, however, find the requirement that defendant maintain stable employment and housing to be potentially problematic. Dr. Santina did not specifically explain the need for those requirements and neither did the judge. We can infer that employment and housing are important to the process of rehabilitation from addiction, and reintegration into society after incarceration. But we also recognize that in the current economy those may be unrealistic requirements to place on a parent as a precondition to supervised visitation. Further, it is not clear on this record why, if defendant can maintain her sobriety and stay out of prison, she should be unable to visit with her son if she is unemployed or living in temporary housing.6 Consequently, we modify the November 15, 2012 order to delete those two requirements as a prerequisite to resumed visitation.

Finally, because of the time that has elapsed since the November 2012 order was entered, we remand this case to the Family Part for a review hearing to determine whether visitation is currently taking place and, if not, whether visitation should resume. Thereafter, any future custody and visitation issues should be decided through post-judgment motion practice in the matrimonial docket. The hearing on remand shall take place within thirty days of the date of this order. We do not retain jurisdiction.

Affirmed as modified.

1 Following legislative amendments, the former Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. See L. 2012, c. 16, 20.

2 The July 21, 2011 order became ripe for appeal after defendant filed and then withdrew a reconsideration motion, and the Family Part entered an order on October 11, 2011, once again terminating the Title 30 litigation.

3 None of the orders entered in this case modified the provision for joint legal custody. They modified residential custody, based on defendant's inability to care for the child.

4 This recommendation was set forth in a May 16, 2011 report from Dr. Edward G. Kardell. The report opined that the disruptions in their relationship caused by defendant's substance abuse and repeated incarcerations were "emotionally detrimental" to the child.

5 This was consistent with part of Dr. Whitehead's analysis of defendant, as someone who could be superficially pleasant and genial but who would also display "moodiness," "impulsiveness," and self-centered conduct toward those close to her.

6 According to Dr. Santina's report, defendant told her that she was living with her parents and working as a waitress six days a week. That would appear to satisfy the requirement of stable housing and employment.