VICTOR PETRILLI v. ANDREA PETRILLI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0587-05T40587-05T4

VICTOR PETRILLI,

Plaintiff-Respondent,

v.

ANDREA SUSAN PETRILLI,

Defendant-Appellant.

________________________________________________________________

 

Submitted June 6, 2006 - Decided June 30, 2006

Before Judges Lefelt and R. B.

Coleman.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Atlantic County, Docket No.

FD-01-953-03A.

South Jersey Legal Services, Inc.,

attorneys for appellant (Douglas E.

Gershuny, Deputy Director, of counsel

and on the brief).

Respondent, Victor Petrelli, submitted

no brief.

PER CURIAM

Defendant, Andrea Petrilli, appeals from a motion judge's order, which denied her application for increased parenting time with her two children, Victor and Joseph; and precluded her from making another application without "clear evidence of having engaged in therapy on a regular basis with a licensed psychiatrist" and obtaining "a psychiatric/psychological evaluation." We reverse and remand.

After approximately eleven years of marriage, plaintiff and defendant were divorced on May 13, 1998. The parties stipulated that plaintiff would be the custodial parent for the parties' two children and that defendant would have parenting time twice each week, with no overnights until the children, then aged 10 and 7, so requested. Despite this parenting provision, defendant has not enjoyed such visitation for several years.

Because the children believe defendant abandoned them and was physically and mentally abusive, they are estranged from her and view plaintiff's second-wife as their mother. In December 2000, plaintiff obtained a final restraining order against defendant after she threatened to kill him "because she hasn't seen her kids." Since 2000, the parties have been litigating visitation and the proper means of restoring defendant's relationship with her children.

On June 17, 2002, the court appointed Dr. Cortes, Ph.D., as its expert. The doctor issued a report in March 2003, recommending that defendant undergo individual psychotherapy to assist her understanding of the children's alienation. The doctor also recommended that plaintiff undergo short-term individual psychotherapy to help aid the children in accommodating to contact with defendant. Finally, Dr. Cortes recommended that defendant begin a six-month structured and supervised weekly visitation plan in a therapeutic setting, with Dr. George Ackley, Ph.D., the children's therapist, so defendant and her children can work out their feelings toward each other. Additional increases in time and expansions of visitation to locations outside the therapeutic environment were to be determined by Dr. Ackley or through independent re-assessment.

Plaintiff refused to voluntarily implement the report's recommendations, and defendant applied to the court for implementation assistance. Plaintiff cross-moved to compel defendant to undergo further psychotherapy.

On June 18, 2004, instead of implementing Dr. Cortes' recommendations, the court ordered that defendant continue her treatment with her psychotherapist, Prajakta Harshe, M.A., S.A.C., and that she attend two counseling sessions with her children and their therapist, Dr. Ackley. The court also requested Dr. Ackley to make recommendations regarding future parenting.

Defendant complied with the June 18th order and had two sessions with her sons and Dr. Ackley. The doctor observed that the boys coped "adequately with contact with their mother . . . despite their fears and anxiety," however, the doctor nevertheless recommended that no visitation be "forced" upon the boys until they express a desire to see their mother.

Because of the conflict between the recommendations of Dr. Ackley and Dr. Cortes, defendant once again moved for implementation of the latter's recommendations. Plaintiff opposed and cross-moved, requesting the court to conduct an in camera interview of the boys and to bar defendant from filing future motions for parenting time without a "psychiatric/psychological evaluation" of defendant and "clear evidence [that she had] engaged in therapy for a period of one year in bi-weekly sessions with a licensed psychiatrist." Defendant sought a plenary hearing.

On March 11, 2005, the court decided to hold defendant's motion "in abeyance" until August 26, 2005. The court disqualified Ms. Harshe as defendant's psychotherapist and directed defendant to "engage a licensed psychiatrist, psychotherapist or some doctor licensed in such issues." The court directed defendant to meet with the new therapist for three months and requested that a report be submitted that listed the dates of the therapy sessions and made recommendations pertaining to defendant's mental health and a reunification plan. The court further instructed the therapist to provide a copy of this report to Dr. Ackley by July 28, 2005, and requested that Dr. Ackley, upon receipt of the report, then submit his own parenting time recommendations.

In compliance with the court's March 2005 order, defendant retained Dr. Debra Sandler, LCSW, Ed.D, purportedly a licensed psychotherapist. Defendant met with Dr. Sandler on five occasions between April 28, 2005, and July 29, 2005. In her July 29, 2005, report, Dr. Sandler noted that defendant had been compliant with her treatment and, "presents as a warm, loving parent who should be allowed equal parenting time with" her children. The doctor also noted that defendant would continue with individual therapy during the reunification process, but recommended that "visitation begin immediately, two evenings per week and every other weekend." The report was received by defendant's attorney on August 17, 2005, and faxed to the court that same date.

On August 18, 2005, plaintiff, by letter through his attorney, opposed Dr. Sandler's report on several grounds. Among them were that the doctor was not a "licensed psychologist," that the course of therapy was inadequate, and that the factual allegations underlying the report were inaccurate. Plaintiff suggested that defendant's motion for parenting time be dismissed for non-compliance with the March order or, alternatively, that the hearing be postponed thirty days to allow Dr. Ackley to prepare a responding report.

On August 26, 2005, the trial court resolved this dispute on the papers. At that time, Victor was seventeen years old and Joseph fourteen. Without conducting any hearing, the court concluded that defendant was not compliant with the court's March directive and therefore dismissed her motion for increased parenting time by issuing the order, which is the basis for this appeal.

The court found non-compliance because defendant's course of therapy was not completed until July 29 and the report had not been submitted to Dr. Ackley in time for a responding report to be prepared. The court dismissed defendant's motion, precluding her from filing another application for parenting time "without (1) clear evidence of having engaged in therapy on a regular basis with a licensed psychiatrist and (2) a psychiatric/psychological evaluation." The court also provided that Dr. Ackley's prior recommendations for parenting time shall remain in effect.

Our review of the record in light of defendant's arguments and the pertinent law leads us to conclude that the conflict between Dr. Ackley's opinion and the recommendations made by Dr. Cortes, the court's expert, and Dr. Sandler should not have been resolved without a hearing. See P.T. v. M.S., 325 N.J. Super. 193, 214 (App. Div. 1999). For the court to have rejected defendant's motion based upon conflicting certifications and expert reports "'without an evidential basis, without examination and cross-examination of lay and expert witnesses, and without a statement of reasons is untenable in the extreme.'" Ibid. (quoting Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982)).

The court also precluded defendant from filing any further applications for "additional contact with the minor children without clear evidence of having engaged in regular therapeutic sessions." The court further directed that any subsequent application would have to be "supported by a detailed letter or report by her clinician as to her readiness or willingness to be able to have additional time with her children."

The court has not explained why Dr. Sandler's report was insufficient or why the doctor was unqualified. In addition, the court has failed to explain why the order requires that defendant's psychotherapy be provided solely by a "licensed psychiatrist." Furthermore, the court has not explained why defendant's sessions with Dr. Sandler on April 28th, May 3rd, May 10th, June 20th, and July 29th were considered inadequate. In addition to failing to make proper findings, the court also mistakenly exercised its discretion when it rejected plaintiff's attorney's alternative to dismissing defendant's application that defendant's motion be carried to enable Dr. Sandler's report to be forwarded to Dr. Ackley for his response.

Our review of the record reveals that defendant has been attempting, in apparent good faith, to comply with the various court orders that have been issued in this matter, but the dispute regarding increased parenting time has neither been resolved nor significantly advanced toward resolution. The lack of real progress is troubling, especially considering that one of defendant's children has by this time attained legal majority.

We understand that plaintiff is claiming that defendant has anger management problems and had physically and emotionally abused the children who are not interested in seeing her. But we also understand that defendant has participated in some psychotherapy since the divorce and is claiming that plaintiff has manipulated the children.

We do not view the record as sufficiently compelling to warrant precluding defendant from attempting to repair her impaired relationship with her children. In our view, and based on the record we have reviewed, defendant is entitled to a hearing that focuses on her current parenting capabilities and results in an order with clear and concise guidelines detailing whatever may be necessary to move toward and possibly achieve increased visitation.

Reversed and remanded for further proceedings consistent with this decision. We do not retain jurisdiction.

 

(continued)

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9

A-0587-05T4

June 30, 2006