NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.W.

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NOT FOR PUBLICATION WITHOUT THE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 CHILD

PROTECTION AND PERMANENCY,1

Plaintiff-Respondent,

v.

A.W.,

Defendant-Appellant,

and

K.Y.,

Defendant-Respondent.

____________________________________

IN THE MATTER OF K.A.Y., a minor.

____________________________________

May 13, 2015

Submitted April 27, 2015 - Decided

Before Judges Sabatino, Simonelli, and Gilson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-267-11.

Mario M. Blanch, attorney for appellant.

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief).

K.Y., respondent pro se.

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.A.Y. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

After presiding over more than twenty days of trial sessions and hearings, a Family Part judge concluded that defendant A.W. ("the mother") abused and neglected her son K.A.Y. ("Kevin")2 in violation of N.J.S.A. 9:6-8.21(c)(4). As the judge found, the mother did so by coaching Kevin into making false allegations of sexual and physical abuse against his father K.Y. ("the father") in the wake of the couple's recent divorce.

More specifically, the trial judge found that the mother emotionally and psychologically abused Kevin by compelling him to make untruthful statements about his father, and by causing him to be subjected to numerous sexual abuse evaluations and interviews. Although the mother denied engaging in any misconduct, the judge found her testimony was not credible.

After making these findings of fact, the trial judge transferred custody of Kevin to the father. The judge also awarded the father a portion of his counsel fees. In addition, the judge ordered the mother to obtain psychiatric treatment.

The mother now appeals, claiming that the trial judge erred in finding that she had abused or neglected Kevin. She asserts that the judge ignored what she contends was persuasive evidence that her son had, in fact, been sexually abused. She also challenges the trial court's orders directing her to obtain psychiatric treatment and awarding the father partial counsel fees. We affirm, substantially for the reasons articulated in Judge Frances A. McGrogan's comprehensive twenty-five-page written opinion dated October 4, 2012.

I.

We need not discuss at length the underlying facts and the evidence adduced at trial, which are exhaustively set forth in Judge McGrogan's written opinion. We need only provide the following summary.

A.

The mother and father were married in 2003. Their only child is Kevin, who was born in January 2005. The parents divorced in May 2008. Pursuant to the divorce settlement, the mother received primary residential custody of Kevin, with the father having parenting time with Kevin on alternate weekends and Wednesday evenings. In addition, the father was granted daily telephone contact with Kevin.

The record shows that the mother first began to prompt Kevin to make false accusations against the father in 2009. The accusation started around the same time that steps were being undertaken to enforce the divorce settlement and compel the sale of the former marital residence against the mother's wishes.

On July 8, 2009, the Division received an anonymous referral by a woman claiming that Kevin was being molested by his father. Given the caller's references to her marriage with the father, the mother was believed to be the caller, which the Division confirmed the following day. The following day, the mother called the Division several times wanting to retract her allegations. The Division intake worker noted that she sounded "mentally unstable." The Division notified the Bergen County Prosecutor about the mother's allegations and attempted to investigate them, but the mother refused at that time to cooperate.

Nevertheless, during the subsequent investigation, the mother again alleged that the father had sexually molested Kevin. However, during questioning by Division workers, Kevin did not disclose any sexual or physical abuse. The mother tried posing leading questions to Kevin to prompt him to acknowledge such abuse, but her efforts were unsuccessful. Afterwards, Kevin was interviewed by the Hudson County Prosecutor's Office, and he again made no disclosure of abuse.

On July 10, 2009, the mother's matrimonial attorney filed a motion in the Family Part to suspend the father's visitation, and requested that the Division send a letter to the judge handling the matrimonial case detailing the mother's sexual abuse allegations. Later that day, the mother called the Division again. She appeared less concerned in that phone call with the son's alleged molestation than she was about aspects of her divorce settlement, such as the sale of the marital home.

The father was interviewed by the Hudson County Prosecutor's Office. He denied the allegations, although he did admit to sleeping naked with Kevin. The father explained that Kevin had started sleeping in the father's bed because the mother had allowed the child to sleep with her after the couple separated. Although the father conceded that he occasionally showered with Kevin, he insisted that Kevin washed his own genitals. The father maintained that his ex-wife was making false claims about the abuse. He further denied her assertions that he was bipolar and that he had no family support.

Several days later the matrimonial judge overseeing the parties' divorce ordered, as a precautionary measure, that the father's visitation be supervised. Later that month, Kevin's daycare facility reported to the Division that the mother had asked the staff to "back up" her allegations of the father's purported sexual abuse of Kevin.

That same day, Dr. Nina Agarwal, an expert in pediatric child abuse at Audrey Hepburn Children's House ("AHCH") conducted a medical examination of Kevin. The physical examination was normal, and Dr. Agarwal at that point could neither confirm nor rule out the existence of sexual abuse. As a precaution, she recommended that visitation between the father and Kevin be supervised. In response, the mother complained that her nanny, who already had been supervising visitation between the father and the child, no longer wanted to participate as a supervisor. A friend of the father, R.V., was offered as a visitation supervisor instead, and she undertook that role.

In August 2009, the mother again called the Division, claiming that Dr. Agarwal had substantiated Kevin's sexual abuse by the father, and further claiming that Dr. Agarwal wanted the father's visitation to be suspended. However, Dr. Agarwal's report had stated otherwise, recommending only supervised visitation. Later that month, the Fairview Police Department contacted the Division concerning another series of allegations of sexual abuse the mother had made against the father.

In September 2009, a representative of the Bergen Crisis Intervention Unit called the Division to relate allegations of Kevin's sexual abuse by his father. The representative claimed that the father had been molested as a child. The representative further stated that Kevin had indicated that his father was likewise abusing him. However, upon further investigation, the Division determined that there actually had been no visitation with the father for approximately three weeks, due to the mother lacking funds to pay for a supervisor. The father was cooperative with the Division, and believed that the mother's recent allegations were due to a real estate agent's visit to the marital home because the matrimonial court had ordered the home to be sold. Meanwhile, Kevin's daycare had reported no problems, and observed that he had been happy and talkative. Ultimately, the Division determined that the allegations were unfounded, but kept the case open.

In January 2010, the mother again alleged that Kevin was sexually and physically abused by the father, and that the father and R.V., the visitation supervisor, drank alcohol together to the point of intoxication. The Division determined that these latest allegations were unsubstantiated.

Later that month, the mother took Kevin to the emergency department at a local hospital, alleging that the child was complaining that his penis hurt following a visit with the father. The hospital's examination was normal, and the allegations were unsubstantiated. By this time, the Division had become suspicious that the mother was coaching Kevin to make false allegations of abuse against his father.

In February 2010, the mother alleged that the father slapped Kevin. However, a medical examination revealed that Kevin was unharmed and that he did not express any fear of his father.

In March 2010, Kevin's therapist, Carol Loscalzo, a licensed social worker, contacted the Division to report the suspected physical abuse of him. Kevin consequently had another medical examination at AHCH, but the evaluator there found no evidence of physical or sexual abuse. Nevertheless, AHCH's evaluator wanted to interview Kevin again, and also wanted both parents to complete psychological evaluations. In Kevin's next interview at AHCH, he denied any physical or sexual abuse, but did state that his father had burnt him with a candle. After further questioning, Kevin could not describe any details of the purported candle incident. The Division determined that these allegations against the father were unfounded.

In April 2010, the mother brought Kevin to the hospital with a nose bleed. She again alleged that Kevin had been physically abused by the father. When the Division's case worker spoke with a representative from the child's school, the representative explained that she was worried about Kevin due to the mother's bizarre behaviors. For example, the representative reported to the Division that the mother occasionally dropped off Kevin, who was then five years old, with a milk bottle and made him wear pull-up diapers, instead of underpants. She further noted that while Kevin was in school, his behaviors were normal and that he never made any disclosures about sexual or physical abuse by his father.

Subsequently, a Division case worker interviewed Kevin. Kevin seemed anxious and eager to show the worker the spots where his father had allegedly cut him with a knife on his neck and back. However, the case worker was unable to see any marks on the child. Nor could Kevin describe any specific details of the alleged knife incident.

B.

On April 26, 2010, the Division filed a verified complaint for investigation pursuant to N.J.S.A. 30:4C-12 on behalf of Kevin. The parents were named defendants. That same day, the Family Part judge issued an order to show cause.

Throughout May and June 2010, AHCH performed a series of psychosocial evaluations of Kevin and his parents. The evaluations were supervised by Anthony V. D'Urso, Psy.D., a psychologist. The AHCH evaluators concluded that Kevin had not been sexually or physically abused. Instead, they found Kevin's social and emotional functioning had been negatively affected, due to the various interviews and examinations he had been subjected to because of the mother's allegations.

Kevin and his parents then each began therapy at AHCH. During a therapy session, the mother alleged that Kevin had reported that the father had digitally penetrated his rectum during a recent visit. When asked during his own therapy session about the alleged incident, Kevin reported that it was untrue, and became angry with his mother. Kevin implied that the surrounding events were making him confused, and he stated that he wanted to see his father every day.

Kevin's AHCH evaluators determined that he was experiencing emotional and behavioral difficulties, due to the mother's unsubstantiated allegations of sexual abuse. Consequently, AHCH cautioned against conducting further investigations of future allegations of Kevin's abuse by his father.

In November and December 2010, the mother once again claimed that Kevin had been sexually abused recently by the father. Upon investigation, these further allegations of sexual abuse were ruled out.

Despite all of this, false accusations of abuse committed by the father continued to occur. In March 2011, Rachel Polan of the Children's Aid and Family Service ("CAFS") reported that during a supervised visitation session between Kevin and his father, Kevin explained that the mother had told him that the father had hit him on the mouth, despite Kevin's protestations to the contrary. That same month, Kyongok Kim, a therapist at AHCH, reported that Kevin was emotionally stable when he was with his father and had interacted in a positive manner. By contrast, Kevin would become agitated, aggressive, and "out of control" when he was with his mother.

Based on these circumstances, AHCH was concerned about Kevin's emotional stability while in his mother's care. AHCH concluded that the child should be removed from her care and placed instead with his father.

Shortly thereafter, the Division tried to provide the mother with advanced notice of the Division's plan to remove Kevin from her care due to her perceived emotional instability. Accordingly, in April 2011, a Division case worker attended the mother's therapy session at AHCH to inform her of the upcoming court hearing to transfer custody of Kevin to the father, based upon the Division's substantiation of her emotional and psychological abuse of the child. The mother had a negative reaction to this plan. Among other things, she alleged that Kevin had reported that a Division case worker had abused him. Her aberrational behavior, coupled with AHCH's belief that she might harm the child, led the Division to carry out a Dodd removal of Kevin from his mother's care.3

When Kevin was told he would be living with his father, he became happy and excited. Upon being permitted to say goodbye to his mother, Kevin stated in a "nonchalant manner [that] he would no longer be living with her, but would visit." That same day, Dr. D'Urso recommended supervised visitation between the mother and Kevin to allow AHCH staff to evaluate any risks that she posed to the child.

C.

In April 2011, the Division filed a verified complaint in the Family Part for care and supervision of Kevin, pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The parents were named defendants. The court signed an order to show cause that same day, continuing joint legal custody of Kevin, but awarding the father physical custody. The mother was granted at that point daily telephone contact with Kevin and supervised visitation.

In June 2011, AHCH reported that the mother continued to display anxiety and concerns about Kevin's welfare while he was with his father. She had been encouraged not to ask Kevin during daily telephone conversations about how he was being treated by his father. Instead of trying to improve her relationship with Kevin, however, the mother continued to focus on her past allegations of the child's sexual abuse. According to the Division's proofs, the mother was unable to successfully co-parent with the father due to her continued accusations.

After he began living with his father, Kevin no longer manifested poor behavior or agitation. AHCH confirmed later in June 2011 that Kevin's behavior and his affect had improved since his placement with his father.

Between September and October 2011, Polan reported that Kevin had been dismissive of his mother during visitation. The mother refused to show any insight into the reasons why she lost physical custody of her child. She refused to comply with psychiatric recommendations. In contrast, Kevin appeared to be emotionally bonded with his father.

D.

The trial court conducted the Title 9 fact-finding trial on numerous intermittent dates between September 2011 and June 2012. Judge McGrogan carefully considered testimony from several fact witnesses presented by the Division, including Division case workers, Polan from CAFS, the director of Kevin's daycare program, and R.V., the visitation supervisor.

The Division also presented expert testimony from Dr. D'Urso, who found that the allegations of the father's sexual abuse could not be clinically supported. Among other things, Dr. D'Urso noted that during individual counseling sessions, Kevin retracted allegations of sexual abuse, revealing that he would "get in trouble if he didn't say what mommy told him to say." Dr. D'Urso also noted that the mother showed signs of "obsessive compulsive behavior, histrionic, self-centered behavior," and that she displayed delusional and disordered thought.

Dr. Agarwal, the AHCH pediatrician, also testified for the Division. She confirmed that her evaluation of Kevin in July 2009 presented no medical evidence of sexual abuse. She also observed that the mother's behavior was anxious, and that she had recommended a mental health assessment.

The Division presented a third expert witness, Dr. Samiris Sostre, a psychiatrist. Dr. Sostre testified that the mother's delusion that Kevin had been sexually abused, despite evidence to the contrary, was a psychotic symptom, not the basis of a personality disorder. Dr. Sostre stated that a delusional parent would be unable to properly parent, and that a child under the care of such an individual would be drawn into his or her psychotic process.

The Law Guardian, who supported the Division's request for a finding of the mother's abuse and neglect, presented factual testimony at trial from the father. The father described that the mother's behavior had become increasingly aberrational after the divorce, which had prompted him to seek primary custody of Kevin. In particular, the father described an incident around Halloween 2008, in which the mother smashed a pumpkin that Kevin had carved with him. She apparently did so because she was upset that the marital residence was going to be sold.

The mother testified at trial in her own defense. She claimed that the father had been molested as a child. She also claimed that in the fall of 2010, Kevin disclosed to her that the father had inserted his finger into Kevin's anus. The mother additionally stated that she had been unaware of Kevin's disclosures of abuse when she was served with the Division's complaint in April 2011. She emphatically denied coaching Kevin to make false allegations against his father.

The mother presented expert testimony from Dr. Michael Milano, a psychiatrist, concerning her mental health. After a one-hour evaluation, Dr. Milano did not find any evidence of a major mental disorder. He was unable, however, to offer an opinion as to whether the mother suffered from a delusional disorder.

The mother's counsel also called to the stand Dr. Michael Peter Gentile, a psychiatrist, who had evaluated the mother at the Division's request. Dr. Gentile found no psychosis or delusional disorder on his part. However, he believed that the mother displayed symptoms of an adjustment disorder with anxiety, and that she also had narcissistic personality traits.

Loscalzo, Kevin's previous therapist, also testified for the mother. According to Loscalzo, Kevin was difficult to engage and had problems with boundaries. Loscalzo explained that the mother was concerned about Kevin because the father slept naked in the same bed with him, because she believed that Kevin was being sexually abused, and because the mother observed that Kevin's behavior would decline after the father's visitation. By way of illustration, Loscalzo referred to an incident during a session where Kevin undressed a male doll, laughed at the doll's buttocks, and then pulled down his own pants and laughed.

E.

After considering these and other extensive proofs, which Judge McGrogan canvassed in greater detail in her written opinion, the judge made the following ultimate findings

Pursuant to N.J.S.A. 9:6-8.46(b)(1), the Division must prove an act of abuse or neglect by a preponderance of the evidence. The Division has met that burden.

There is no evidence to support [the mother's] contention that [the father] sexually abused [Kevin]. However, there is substantial credible evidence to support a finding that [the mother] emotionally and psychologically harmed the child as defined in N.J.S.A. 9:6-8.21(c)(4)(b). Despite the lack of any evidence that [the father] abused the child, [the mother] continued to make allegations and continued to coach the child to make allegations against his father. [Kevin] was subjected to multiple evaluations, examinations and interrogations, all with negative results.

A finding of abuse or neglect does not require a finding of intent to harm. G.S.,4 supra, at 175. Rather, the Court must find the parent's actions were deliberate, even if the result was unintended. Id.

A determination of whether [the mother] suffers from a delusion, as indicated by Dr. Sostre, or she has engaged in a course of vindictive behavior in order to completely sever [the father] from [Kevin's] life, is not required. It is self-evident that [the mother's] conduct has had a harmful effect on the child. When [Kevin] entered nursery school, he was a happy, well-adjusted child. He is now an angry, oppositional, and defiant little boy. He is only seven years old and has been in therapy for more than three years.

The child is angry and oppositional toward his mother. It would be contrary to the child's welfare to remove him from his father's custody. If returned to his mother, he would again be placed at substantial risk of harm. The need for therapeutic intervention between mother and child continues.

[(Emphasis added).]

Subsequently, after dispositional hearings and other proceedings, Judge McGrogan issued an order on March 28, 2013, granting sole custody of Kevin to his father and suspending visitation with the mother. The judge determined that the mother continued to pose a risk to Kevin's ongoing emotional health. On that same date, the judge awarded counsel fees to the father of $26,364, a portion of the more than $46,000 in legal fees he had incurred.

This appeal by the mother ensued. The father has not cross-appealed the sufficiency of the amount of the fee award.

II.

On appeal, the mother argues that the trial court (1) erred in finding that she had engaged in abuse or neglect of her son; (2) improperly ignored evidence of sexual assault by the father; (3) improperly ordered her to receive psychiatric treatment, and (4) unfairly awarded partial counsel fees to her ex-husband. None of these contentions have merit.

Abuse and neglect, as defined by N.J.S.A. 9:6-8.21(c), occurs when

[a] child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.

[N.J.S.A. 9:6-8.21(c)(4).]

The statute does not require that the child experience actual harm. N.J.S.A. 9:6-8.21(c)(4)(b); see also N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (explaining that the Division need not wait until a child experiences an actual injury); In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (stating that the court does not need to "wait to act until a child is actually irreparably impaired by parental inattention or neglect"). Instead, a child can be abused and neglected if his or her physical, mental, or emotional condition has been "impaired or is in imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4)(b). The Title 9 analysis is fact-sensitive, and the court must consider the totality of the circumstances. P.W.R., supra, 205 N.J. at 33. The primary focus is to preserve the safety of the child. N.J.S.A. 9:6-8.8.

The Supreme Court has held that the abuse and neglect standard is satisfied when the Division demonstrates that a parent has failed to exercise a minimum degree of care. G.S., supra, 157 N.J. at 181. A "minimum degree of care" encompasses conduct that was grossly or wantonly negligent, but not necessarily intentional. Id. at 177-78. Wanton negligence is conduct that was done with the knowledge that injury is likely to result. Ibid. A parent's action or inaction can rise to the level of wanton negligence even if he or she did not intend to cause injury. Id. at 179. The Court has recognized that a parent should be liable for the foreseeable consequences of his or her choices. Ibid.

Our scope of review of a trial court's factual findings in this context is narrow. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We defer to the judgments of the Family Part if those conclusions are sustained by "adequate, substantial, and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). A decision should only be reversed or altered on appeal if the findings below were "so wholly unsupportable as to result in a denial of justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) (internal quotation marks omitted).

Applying this well-established, limited scope of review here, we conclude there is abundant credible evidence in the record to support Judge McGrogan's findings of the mother's psychological abuse of her young son.

The record is replete with factual and expert proof that the mother emotionally and psychologically harmed Kevin by falsely coaching him into claiming that his father had sexually and psychologically abused him, and by subjecting Kevin to numerous unnecessary expert evaluations. The mother repeatedly caused Kevin to undergo sexual abuse examinations and took him numerous times to the police to report false allegations of abuse. Indeed, within the span of one year, the mother made, or assisted other individuals in making, a total of seven false referrals to the Division.

Contrary to the mother's contentions on appeal, the judge did not ignore her accusations of abuse. Instead, the judge properly considered them, along with their lack of corroboration, as well as Kevin's own statements that the mother had induced him to lie.

As Judge McGrogan rightly found, "it is self-evident that [the mother's] conduct has had a harmful effect on the child." This finding was corroborated by the caseworkers, daycare staff, and the Division's testifying experts. In addition, there is more than ample evidence to sustain the judge's shift of residential custody to the father, and the cessation of the mother's parenting time while she continued to exhibit instability.

The judge had a sound basis to order the mother to undergo therapy. Indeed, the evidence in the record essentially compelled such remedial and protective action.

Little comment needs to be made about the award of partial counsel fees to the father. The father's need for legal representation in this case was clearly provoked by the mother's misconduct. The judge acted well within her discretion under Rule 5:3-5 in awarding him partial fees. See also Williams v. Williams, 59 N.J. 229, 233 (1971).

The fee award was reasonable, even taking into account the respective income levels of the parties. We will not interfere with the trial judge's "broad discretion" in its fee-shifting determination here. Iafelice ex rel. Wright v. Arpino, 319 N.J. Super. 581, 590 (App. Div. 1999).

Affirmed.

1 Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency (Division). L. 2012, c. 16. (hereinafter "the Division").

2 To protect privacy interests and for ease of reading, we use initials and a fictitious name for the child and initials for some of the other individuals mentioned in this opinion. See R. 1:38-3(a); R. 5:12-4(b).

3 A Dodd removal is an emergent removal of a minor without a court order pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).

4 G.S. v. Dep't of Human Servs., 157 N.J. 161 (1999).