NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. N.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4214-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Appellant,

v.

N.K. and M.K.,

Defendants-Respondents.

___________________________________

IN THE MATTER OF I.K.,

J.K., and R.K.,

Minors.

___________________________________

April 4, 2013

 

Argued February 26, 2013 - Decided

 
Before Judges Alvarez and Waugh.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-105-12A.

 

Elizabeth H. Wallace, Deputy Attorney General, argued the cause for appellant (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Wallace and Lisa B. Landsman, Deputy Attorney General, on the briefs).

 

Michael S. Harwin, Designated Counsel, argued the cause for respondent M.K. (Joseph E. Krakora, Public Defender, attorney; Mr. Harwin, on the brief).

 

Sarah L. Monaghan, Designated Counsel, argued the cause for respondent N.K. (Joseph E. Krakora, Public Defender, attorney; Ms. Monaghan, on the brief).

 

Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minors I.K., J.K., and R.K. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Devlin, on the brief).

 

PER CURIAM

In this appeal, we address the trial court's March 13, 2012 dismissal of an abuse and neglect complaint filed by the Division of Youth and Family Services (the Division). The order was entered after oral motions to dismiss were made at a management conference by counsel for N.K., the father of the three children at issue, M.K., his wife and the children's mother, and the children's law guardian. We reverse, reinstate the proceedings, and remand for the court to conduct a factfinding hearing.

As established by the record on appeal, the litigation resulted from several referrals regarding the mother's mental health and the status of her three home-schooled children. The referrals began in January 2011, and principally concerned M.K.'s delusions of persecution and hallucinations, including that Leonardo DiCaprio had come onto her street for some improper purpose. The Division also received reports of bizarre behavior, such as ninety phone calls in one day to a church help line, and M.K.'s recurring belief that her husband was involved with other women. Because of her paranoia regarding neighbors, the family had moved at least eight times. Despite treatment recommendations, M.K. has neither engaged in counseling nor complied with any medication regimen. M.K. has been reported to be verbally, if not physically, abusive to N.K. in the presence of the children. To the time of the dismissal, she was not compliant with services offered to her by the Division, nor did she adhere to the discharge plan drawn by the facility to which she was briefly committed after the commencement of the Division's involvement with the family.

The Division eventually filed a verified complaint seeking care and supervision of the children in accordance with N.J.S.A. 9:6-8.21 and Rule 5:12-1, as well as N.J.S.A. 30:4C-12. On the initial return date of the order to show cause, October 17, 2011, the trial court found the Division had established a prima facie case that the children were abused or neglected within the meaning of the statute. In the order, M.K. was required to comply with the hospital's discharge recommendations for treatment.

On a further return date of the order to show cause, heard December 5, 2011, prior orders were continued and the mother was again directed to comply with treatment recommendations made by, among others, "Dr. Beekman and Dr. Iofin." Margaret S. Beekman, Ph.D., a psychologist, had rendered a report dated November 20, 2011, which although not admitted into evidence, was a part of the case summary included in the court's file. See R. 5:12-1(e), -3. The December order continued custody in both parents, who continued to reside with the children, but provided that the mother's interactions with the children would be supervised by either N.K. or the maternal grandmother. It also ordered the parents to enroll the children in public school. On that date, counsel for the parents made an oral application to the court for dismissal, which was denied. At both that hearing and the March proceeding, Dr. Beekman's report was extensively quoted. Because of its importance, we reproduce significant portions here:

DIAGNOSTIC IMPRESSION:

 

DSM IV Axis I Schizophrenia, Paranoid Type (dysfunctional in social, marriage, and child care [isolates self and children]; signs of disorder over more than 6 months; delusions of persecutory and jealous type, some of which seemed bizarre; ideas of reference; thought disorder in form of hallucinations as per collateral reports as well as disorganized thinking as reflected in email to Governor Christie, for example; and unpredictable agitation

 

Axis II Schizotypal, and Paranoid Personality Features

 

Axis III None

 

Axis IV Problems with Primary Support Group; Social Problems; Legal Problems; Financial Problems

 

Axis V 30

 

SUMMARY AND CONCLUSION:

 

[M.K.] is a 41 year-old woman whose level of intelligence is assessed to fall within the at least the Average range. Therefore, intellectually, [M.K.] is well able to manage child care. [M.K.] has significant behavioral features that have the potential to interfere with safe child care that include: history of worsening psychotic features, with no insight into her disorder what-so-ever, persecutory and jealous delusions; hallucinations; tendency to over-use minimization, denial, and projection of blame as defenses; with limited insight and frustration tolerance; as well as rigidity in thinking impacts negatively on problem-solving, interferes with self-evaluation and limits judgment.

 

[M.K.] seems unlikely to intentionally physically abuse or neglect a child. However, it is of concern that she had a known episode of pushing her spouse apparently in the Summer of 2011. Collateral information from church members of pastor, the Police and social service staff indicate excessive preoccupation with delusional content. It is hard to see how [M.K.] could conduct the children's home education in such a state. In all likelihood, the children need the socialization experience of going to school rather than the purported home instruction provided by someone who suffers from psychosis, and is preoccupied with these symptoms. Further it is of great concern that the children have been isolated in her care. Without having the ability to reality-check with the outside world, they are [at] significant risk of harm in terms of developing shared delusions.

 

Therefore, given [M.K.]'s untreated psychotic symptoms, and the children's isolation, if that continues, they are at extreme risk for serious psychological disturbance, such as Shared Psychotic Disorder. Referring to the section in the DSM-IV-TR, Shared Psychotic Disorder develops when the person, who is the primary source of psychosis, is dominant in a relationship, such as parent and child, and the primary person's psychotic thinking is gradually imposed on the less dominant person or people. Often these people live together for a long time, and often are isolated. If the relationship of the less dominant person or people with the person who is the primary source of the disorder is interrupted and they are separated, the symptoms in the less dominant person will usually diminish or disappear. Without intervention, the course is likely to be chronic.

 

Given the above results, the following is crucial:

 

(1) psychiatric consultation to determine [M.K.]'s need for antipsychotic or other medication, and following the psychiatrist's recommendations,

(2) That [M.K.]'s care of the children be supervised at all times;

(3) The children should also be evaluated psychologically to determine the impact of the family environment on their psychological functioning, including whether their psychological functioning is undermined by living with [M.K.]; and also determine their service needs, including psychotherapy. It is recommended that children be transported for psychological evaluations by someone other than [M.K.]

 

(4) It is recommended strongly that the children be enrolled in school by [N.K.] Home-schooling is definitely contraindicated given the above considerations.

 

(5) Any individual psychotherapy for [M.K.] should be attempted once pharmacotherapy is implemented, but the prognosis is poor for successful treatment given [M.K.]'s very poor insight into her disorder, and clouded judgment. It is recommended that [M.K.]'s psychotherapy occur outside of the home. Focus should be on: reality orientation; and, evaluation of the accuracy of her beliefs.

 

(6) Psychological evaluation of [N.K.] might be considered as well, to determine what service needs he requires in order to take a more assertive role in protecting the children.

 

When the March 13, 2012 oral applications for dismissal were made by the Law Guardian and counsel for the parents, the Division's attorney, in addition to objecting vigorously to such an important decision being made on oral motions, explained that the family had rejected services. The Division reminded the judge that additional fact-finding dates had already been scheduled and that it had ongoing concerns about the family. When the judge asked M.K. if she would accept services from the Division, she said that she would not "consider them. No." Her attorney reiterated that his client did not agree that such services would be helpful. The Law Guardian at that point stated that the two girls did not want to become involved in counseling as they did not feel they needed it either, and that in any event there was a counseling program available through the school. M.K.'s attorney said his client intended to allow the children to continue to be enrolled in school.

In dismissing the case, the court said:

I have no opinion right now that [M.K.] presents a danger to herself or to others. We've . . . intervened in this family. The children are in public school. I think that probably will serve them well.

 

I don't see that I have a basis to continue our supervision of this family. I do think that [the Division] should keep its case open, and continue services to the children, the therapy and so on.

 

So, I do believe that I do have to dismiss this case based on the record that I have.

 

[M.K.], you would have to say it's a concern, your report about Leonardo DiCaprio, but I don't know that you are a danger to your children. I don't see any opinion that you are.

 

. . . .

 

But I'm going to dismiss this case. I don't see a danger to the children based on what I have here. . . . I hope I don't have to see you again, and that you can address your issues in a rational manner, and a calm manner with your husband.

 

I don't want to interfere any further with your life. . . .

 

. . . .

 

I do think [the Division] should continue to provide therapies and I'm dismissing the case.

 

Good luck to you.

 

The only change in the family's status that we can discern from the record, from the commencement of the proceeding to dismissal, was that the children were enrolled in school. They certainly were adjusting well to their new academic environment, and communicated to the Law Guardian their wish that the Division no longer be involved with their family. But these circumstances alone were not a basis for dismissal. To the date of the dismissal, M.K. had not complied with her discharge recommendations from her brief involuntary commitment nor had she accepted any services from the Division. In fact, even the children refused to engage in treatment with the experts retained by the Division.

The Division appeals, asserting as points of error:

POINT I

THE TRIAL COURT ERRED IN DISMISSING THE DIVISION'S COMPLAINT PRIOR TO A FACT-FINDING HEARING.

 

 

POINT II

THE TRIAL COURT ERRED IN DISMISSING THE DIVISION'S COMPLAINT PRIOR TO A FACT-FINDING AS THE ISSUES BEFORE THE COURT, RELATED TO SPECIFIC PSYCHOLOGICAL DIAGNOSES AND THE RISK OF HARM TO THE MINOR CHILDREN ASSOCIATED WITH THOSE DIAGNOSES, WARRANTED THE PRESENTATION OF EXPERT TESTIMONY TO ASSIST THE TRIER OF FACT.

 

We agree. As a threshold matter, we reiterate that once the Division establishes a prima facie case of abuse or neglect, the burden shifts to the defendants. See N.J. Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 181 (App. Div. 1994). Here, once the Division initially established its prima facie case, more was required of defendants to refute it. Although the children's adjustment in school was a positive development, it does not equate to defendants meeting their burden nor does it address in any fashion the grave concerns expressed in Beekman's report regarding M.K.'s mental status and the well-being of the family as a whole.

For example, although the proofs are not strong as to the father, N.K., his wife verbally abused him in the children's presence, and there is a suggestion in the record that they had seen her physically abuse him on at least one occasion. This behavior alone presented a problem as he too may have required services, as Beekman's report stated, "in order to take a more assertive role in protecting the children."

And most significantly, Beekman's report states flatly that M.K. was in dire need of treatment, including medication. Beekman actually stated that despite individual psychotherapy and "pharmacotherapy[,] . . . the prognosis is poor for successful treatment given [M.K.]'s very poor insight into her disorder, and clouded judgment." The court did not address this, or explain why it concluded that M.K. did not "present[] a danger to herself or to others." Neither did the judge explain the finding that he had no "basis to continue . . . supervision of this family." A factfinding hearing is a critical stage in Title 9 proceedings. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002). There was no reason to skip that step in this case where little progress had been made by the parents.

Furthermore, as we have noted in the context of a sua sponte dismissal of pending abuse and neglect proceedings, the standard for dismissal under Rule 4:37-2(b) is "whether the evidence, together with the legitimate inferences thereon, could sustain judgment in favor of the party opposing the motion." N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 67 (App. Div. 2012) (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)).

Where reasonable minds can differ, accepting as true the evidence supporting the position of the non-moving party, and giving that party the benefit of all reasonable and legitimate inferences, the motion must be denied. Ibid. The court in this case found that the Division had established a prima facie case and said so in its October 2011 order. Having earlier reached that conclusion, more was required than a summary dismissal where only a minimal change of circumstances had occurred. See ibid.

Resolving all reasonable inferences in favor of the Division, based on Beekman's report and M.K.'s flat refusal to engage in treatment, a judge could have just as reasonably concluded that M.K. posed an ongoing threat to her children. These children, at least on a preliminary basis, appeared to be at risk of psychiatric, emotional, or physical injury as a result of M.K.'s failure "to exercise a minimum degree of care" within the meaning of N.J.S.A. 9:6-8.21(c)(4). We therefore reverse the dismissal of the complaints against N.K. and M.K., and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

Reversed and remanded.

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.