KIMBERLY JENNINGS v. STEVEN M. LATHROP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0987-05T20987-05T2

KIMBERLY JENNINGS,

Plaintiff-Appellant,

v.

STEVEN M. LATHROP,

Defendant-Respondent.

__________________________________________

 

Submitted May 24, 2006 - Decided June 30, 2006

Before Judges Weissbard, Winkelstein, and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-1450-02.

Borger, Jones & Keeley-Cain, attorneys for appellant (Gary L. Borger, on the brief).

Mattleman, Weinroth & Miller, attorneys for respondent (Louis G. Guzzo and Kimberly Sukinik, on the brief).

PER CURIAM

Plaintiff Kimberly Jennings appeals from a post-judgment order entered on September 23, 2005, denying her request for a plenary hearing to determine whether her former spouse, defendant Steven Lathrop, should be permitted unmonitored parenting time with their son Benjamin. Plaintiff contends the trial court erred when it: (1) denied her application to discover defendant's psychological records; (2) failed to conduct a plenary hearing; and (3) terminated monitored parenting time without first considering any expert opinion as to the advisability of unmonitored parenting time. We now reverse and remand for a full plenary hearing on defendant's parenting time, in-camera review by the court of defendant's psychological records, and the subsequent disclosure to plaintiff's expert of those portions of the records the court deems relevant to the issues before it.

The record below reveals the following background facts. Plaintiff and defendant were married on June 9, 2000. Each party had one child from a previous relationship, and together they had one child, Benjamin, born May 30, 2001. The parties separated three months prior to his birth. Plaintiff filed a complaint for divorce on March 14, 2002.

Prior to obtaining a divorce, the parties sought marriage counseling. Around that same time, defendant also commenced psychiatric treatment with Dr. Villanueva, who referred him for a neuropsychological evaluation with Joseph Zielinski, Ph.D., which occurred on June 29, 2001. Pursuant to the neuropsychological evaluation, defendant was diagnosed with, among other things, attention deficit hyperactivity disorder (ADHD) (predominately inattentive type), adjustment disorder with anxiety and depression, and significant marital and intermittent occupational difficulties. He was also diagnosed as exhibiting passive-aggressive and antisocial character traits, which made him "prone to intermittent bouts of anger and irritability that have some potential to erupt in physically aggressive behavior." Dr. Villanueva had prescribed Ritalin, but Dr. Zielinski recommended the dosage be increased and taken more frequently.

On December 23, 2002, the parties entered into a consent order to address their "concerns for the best interest of their minor child." As part of that order, defendant agreed to undergo a risk assessment performed by Dr. Andrew Musetto to determine defendant's "fitness to have unsupervised parenting time with the minor child." Until that occurred, the parties agreed that supervised parenting time was appropriate and in the child's best interest. On January 24, 2003, the court entered a dual final judgment of divorce (FJD) dissolving the marriage. Incorporated into the FJD was the parties' Stipulation of Settlement, which incorporated by reference the December 23, 2002, consent order.

From January to March 2003, Dr. Musetto conducted his risk assessment. He issued his findings in a report dated May 3, 2003.

According to Dr. Musetto, defendant's "problems with attention deficits . . . represent a moderate risk factor as a parent" that could be reduced through counseling, parenting education, and medication. He found that defendant presented as a "passive, unassertive individual," not an "aggressive or antisocial" individual. He also concluded that defendant did not suffer from an antisocial personality disorder and therefore disagreed with the conclusions reached by Dr. Zielinski. With respect to Dr. Zielinski's findings, Dr. Musetto noted in his report that:

A careful review of Dr. Zielinski's test results uncovers the basis for that profile turning up antisocial trends. As the test results clearly indicate and as the narrative from the scoring company states, "extreme family disruption can result in a client appearing more personality disordered on the MMPI-2 th[a]n he actually is." Consequently, a careful review of Dr. Zielinski's test results indicates that Steven's feelings of marital distress and family discord skewed those test results in general and the personality disorder scale in particular. In other words, Mr. Lathrop's heightened marital and family distress, as reflected in the test results, accounts for his high score on the antisocial personality scale rather than do real antisocial tendencies. As the MCMI-III, administered by Dr. Zielinski, also indicated, "the text of the following interpretive report may need to be remodulated slightly downward given his probable level of severity," (i.e., from moderate to mild). On the MCMI-III which I administered, Mr. Lathrop scored highest of all the personality measures on the narcissistic personality scale, but his score, because it falls below the level of clinical significance, should not be taken as an indication of a personality disorder. That is, my test results do not duplicate Dr. Zielinski's findings of an antisocial personality disorder. In conclusion, the label of antisocial mischaracterizes Steven's problems. Consequently, this can be ruled out as a risk factor regarding parenting.

Dr. Musetto further indicated that attention deficits "can be a significant risk factor for parenting." He recommended that:

To remedy this, Mr. Lathrop should take a parenting class, establish a relationship with a counselor to help him work through the challenges of parenting, and commence his parenting time gradually. For Mr. Lathrop, the challenges and risks to parenting lie not only with his attention deficits but also with his general unfamiliarity with parenting and, more importantly, his and Benjamin's unfamiliarity with each other. Gradual but steady contact will, however, reduce and eventually eliminate the latter risk, and education, the former. With the above reservations in mind, and with remedies in place, Mr. Lathrop should eventually be able to have unsupervised parenting time, time which can increase gradually and later become overnight parenting time.

Although the parties disagree on the factual history, the undersigned, in conclusion, finds no risk that needs to be considered in a parenting plan regarding antisocial trends or violence. Specifically, the overall assessment does not suggest a problem in the latter area and my assessment disconfirms the diagnosis of antisocial personality disorder.

Specifically, Mr. Lathrop should have approximately six to eight visits of one to two hours of supervised parenting time (under the aegis of a court-appointed counselor), then approximately six weekly two-hour unsupervised visits, then approximately six weekly four-hour visits, and so on until he has Benjamin for eight-hour periods. After that, he should begin overnight parenting. All this presupposes that Mr. Lathrop takes a parenting class, engages in periodic (not necessarily weekly) parenting counseling, and continues his medication regime.

On April 9, 2004, defendant filed a notice of motion for modification of the parenting time plan in accordance with Dr. Musetto's recommendations. Plaintiff opposed the motion and cross-moved for other relief. Among the relief sought in the cross-motion was an order requiring defendant to submit to a risk assessment performed by Dr. Elliot Atkins, a licensed psychologist retained as plaintiff's expert. In addition, plaintiff sought the turnover of all "test results, documents and reports relied upon, as well as notes taken by [Dr. Musetto] and/or relied upon in conjunction with his evaluation and preparation of his report." Plaintiff also sought a plenary hearing with a minimum sixty-day discovery period.

On June 4, 2004, the court entered an order scheduling the matter for a plenary hearing for September 7, 2004. The order also directed the turnover of all of Dr. Musetto's "notes, documents and test results, etc., relied upon in his evaluation to Dr. Atkins." In addition, the order allowed defendant unsupervised but monitored visitation, commencing August 7, 2004, for two hours, and for two hours each week thereafter.

On October 21, 2004, plaintiff, defendant, and their respective attorneys participated in a conference call that ultimately resulted in the execution of the November 5, 2004, consent order:

1. The October 13, 2004 report of Elliott Atkins, Ed.D. and Gregory Joseph, Psy.D. (hereinafter "the Atkins/Joseph report") shall be provided forthwith to defendant's treating therapist, Alan Kagel, Ed.D., by defendant's counsel for use in defendant's course of psychotherapy and parenting education with Dr. Kagel and to assist the said therapist in conferring with Dr. Joseph as more particularly set forth hereinbelow;

2. Drs. Kagel and Joseph shall confer after Dr. Kagel has reviewed the Atkins/Joseph report. Dr. Kagel then shall confer with defendant's attorney and Dr. Joseph shall confer with plaintiff's attorney. This order shall serve as an authorization by the defendant for Dr. Kagel as his treating therapist to confer with Dr. Joseph and with defendant's attorney;

3. Defendant shall determine from his employer's current plan of health insurance the names of local participating psychiatrists as well as the participating psychiatrists on the health insurance that his employer will be providing effective January 1, 2005, and shall provide a list thereof to defendant's attorney who shall share it with plaintiff's attorney so that the attorneys might agree on the psychiatrist by whom defendant shall be seen for prescription monitoring purposes;

4. The chosen psychiatrist will determine and monitor appropriate prescription medication(s) and dosage(s) for defendant, with periodic monitoring and recommendations as medically appropriate, and defendant shall cooperate and comply with all reasonable requests of the chosen psychiatrist who shall be given a copy of the October 13, 2004 Atkins/Joseph report;

5. Defendant forthwith shall increase his therapy sessions with Dr. Kagel from bi-weekly to weekly;

6. Defendant's parenting time with Benjamin shall be modified as follows:

a. Plaintiff's presence shall no longer be required when defendant exercises parenting time with Benjamin; rather, in her place, mutually agreeable monitors shall be present and shall be in view and hearing of Benjamin at all times to intercede in the child's best interest should there be a need to protect Benjamin from being at risk medically, physically or emotionally, and who thereby shall act on behalf of the court under its parens patriae jurisdiction, with the court to schedule a date and time for the court to address the monitors whose role will commence with the said monitored parenting time of November 24, 2004 (assuming that Wednesday is a date which one of the agreed monitors can accommodate and, if it is not, then changing that two-hour weekday visit to another mid-week day, with plaintiff continuing to monitor defendant's visitation until November 24th);

b. Effective October 23, 2004, defendant's Saturday parenting time with Benjamin shall alternate from two hours on the (sic) October 23rd with three hours the following week (October 30th) and with this pattern repeating until Wednesday, November 24, 2004, when Benjamin will be with his father (the defendant) from 6:00 p.m. to 8:00 p.m., and on every other Wednesday thereafter, with three hours of parenting time on alternate Saturdays, starting December 4, 2004, continuing on December 18th, and every other Saturday thereafter until the parties agree to a modification thereof; and

c. The parties and counsel will meet again on November ___, 2004 after defendant's counsel has conferred with Dr. Kagel and plaintiff's counsel has conferred with Dr. Joseph to discuss further expansion of defendant's parenting time with Benjamin;

7. Parenting dates and times can be modified with their mutual consent of the parties if the parties' or the monitors' scheduled work or social activities conflict with Benjamin's scheduled parenting time with his father;

8. In the event that Benjamin is ill such that he would not be sent to school if he were of school age due to the illness, in that case the parenting time can be canceled with as much advance notice as possible to be given to defendant;

9. Defendant shall continue with his parenting and individual counseling with Alan Kagel, Ed.D. who shall confer with Gregory Joseph, Psy.D. periodically with such frequency as the psychologists deem appropriate so that Dr. Joseph is aware of the progress that the defendant is making in parenting awareness and individual psychological growth and insight into the functioning of a young child;

10. Defendant shall have the right to access any and all of Benjamin's medical records and access to Benjamin's medical providers;

11. Plaintiff shall keep defendant apprised at all times of the state of Benjamin's health and doctors' visits and further will cooperate with defendant as necessary to familiarize defendant with the treatments and therapy needed for Benjamin's asthmatic condition, in which regard defendant shall confer with Benjamin's asthma specialist, Dr. Nicholas Romanoff (with offices at 1034 East State Highway 70, Cherry Hill, New Jersey and whose telephone number is (856)429-4922), so that the defendant is fully informed as to and aware of Benjamin's present asthmatic condition and how that condition might change as Benjamin matures and also as to the precautions to be taken and to be aware of signs to watch for and manner of treatment of Benjamin's asthmatic condition in its chronic and acute stages; and

12. Defendant shall engage in counseling in appropriate and inappropriate touching of a child of Benjamin's age.

Defendant saw psychiatrist Lisa Stackhouse on two occasions; December 14, 2004, and January 12, 2005. Dr. Stackhouse performed psychiatric evaluations and authored a letter to the court indicating that defendant satisfied the criteria for ADHD and that his primary physician should continue to administer his prescriptions. In a letter dated July 19, 2005, Dr. Kagel indicated that defendant was attending counseling sessions on a bi-weekly basis. He also suggested that defendant's supervised visitation with Benjamin be lengthened to four hours. In late 2004 and early 2005, defendant attended sessions with Dr. Amber Samaroo, Ph.D., to learn the distinction between appropriate and inappropriate touching. Dr. Samaroo concluded that defendant had "adequate knowledge to interact with his son in a manner which does not present aspects of impropriety or inappropriate behavior."

In July 2005, defendant filed a motion seeking modification of his parenting time. Specifically, defendant sought unsupervised and unmonitored visitation, an increase in his Saturday parenting time, a makeup schedule for missed parenting time, unmonitored telephone contact with Benjamin four times per week, and enforcement of that portion of the November 4, 2004, consent order regarding communication between the parties about Benjamin. Plaintiff opposed the motion on the basis that defendant had failed to comply with the terms of the November 5, 2004, consent order. She also cross-moved for a plenary hearing on the issue of defendant's parenting time, a period of discovery in advance of the hearing, and to include the turnover of Dr. Kagel's and Dr. Samaroo's file notes for review by Elliott Atkins, Ph.D., and Gregory Joseph, Psy.D., plaintiff's experts.

Oral argument was heard on September 23, 2005. Pursuant to an order entered that same day, the court removed the requirement that defendant's parenting time be supervised or monitored, increased defendant's parenting time on Saturdays, and permitted unmonitored telephone contact two times a week. In addition, the court ordered the parties to confer directly on matters pertaining to their child. Plaintiff's request for a plenary hearing was denied, along with her request for discovery of the file notes of Drs. Kagel and Samaroo.

Plaintiff appealed the trial court decision and raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S APPLICATION FOR DISCOVERY OF DEFENDANT'S PSYCHOLOGICAL RECORDS SINCE HS MENTAL WELL-BEING WAS AT THE CRUX OF THE PARENTING TIME ISSUE.

POINT II

THE TRIAL COURT ERRED IN RULING ON THE CROSS-APPLICATIONS OF THE PARTIES WITHOUT CONDUCTING A PLENARY HEARING SINCE THERE WAS A REAL FACTUAL DISPUTE REGARDING MR. LATHROP'S MENTAL FUNCTIONALITY BASED UPON THE CERTIFICATIONS AND THE EXPERT REPORTS SUBMITTED.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN TERMINATING MONITORED PARENTING TIME IN THE ABSENCE OF AN EXPERT OPINION THAT IT WAS IN THE CHILD'S BEST INTEREST TO DO SO.

I.

Plaintiff argues that the court erred in terminating defendant's monitored parenting time and allowing defendant to have unsupervised visitation with Benjamin without first conducting a plenary hearing. We agree.

A trial court "cannot resolve material factual disputes upon conflicting affidavits and certifications." Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995). "Where visitation issues are disputed, or where a plenary hearing would assist the court in deciding on a visitation plan, such a hearing should be held." P.T. v. M.S., 325 N.J. Super. 193, 214 (App. Div. 1999). Because "'the matter of visitation is so important, especially during the formative years of a child,'" a plenary hearing is required if that hearing would assist the court in rendering a decision, even where the parties have waived the hearing. Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982) (quoting Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980)); see also Sheehan v. Sheehan, 38 N.J. Super. 120, 126-27 (App. Div. 1955) (where the welfare of child is at stake, it is a court's duty to ground judgment upon the best interests of child, which is ascertained through a full and complete hearing on all issues). To make a decision on visitation based upon conflicting certifications "'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.'" P.T., supra, 325 N.J. Super. at 214 (quoting Fusco, supra, 186 N.J. Super. at 327); see also Whitfield v. Whitfield, 315 N.J. Super. 1, 12 (App. Div. 1998) (contradictory certifications concerning visitation merited a plenary hearing); Wilke v. Culp, 196 N.J. Super. 487, 504 (App. Div. 1984) (reversing and remanding for plenary hearing to determine visitation in accord with the best interests of the child), certif. denied, 99 N.J. 243 (1985). "[P]arties must be afforded every reasonable opportunity to introduce expert witnesses whose evaluation of the family situation may assist the judge in determining what is best for the children." Fehnel v. Fehnel, 186 N.J. Super. 209, 215 (App. Div. 1982).

After hearing oral argument on the motions, the court set forth its decision on the record and entered an accompanying order.

And I find that he is in substantial compliance with the requirements of the November 5th, 2004 order and I also find that there are no substantial issues requiring a plenary hearing at this time. . . . I order that . . . his request that the requirement for monitors being a part of his parenting time . . . be removed is granted. Monitors will no longer be required.

. . . .

[W]ith respect to the alternating Saturday, he says he wants to increase the amount of time from 3 hours to 8 hours per session . . . my feeling is that there should be some increase, that it should be brought into play incrementally in the following way. For the next two sessions 4 hours, for the following 2 sessions 5 hours each, and then thereafter 6 hours.

. . . .

As to the telephone calls, it would appear that probably two calls per week would be sufficient. . . . She shall not monitor the phone call . . . and he shall not attempt to engage her in personal, social conversation in the course of such telephone calls.

. . . .

[The parties] shall confer directly about matters pertaining to the child and again this shall not include him pursuing any personal, social interaction with her.

At oral argument, counsel for plaintiff pointed out that the report submitted by defendant's treating therapist, Dr. Kagel, did not recommend unmonitored parenting time; rather, it only recommended an increase in the length of defendant's visitation with his son. In addressing that concern, the court observed that "he just doesn't speak to it specifically one way or the other. I don't take that to mean that he's saying that it has be to be monitored going forward."

Thus, it is undisputed that Dr. Kagel did not specifically recommend any modification of the monitoring provision of defendant's parenting time. Likewise, the motion did not include an opinion from any expert making such a recommendation. Nonetheless, despite the absence of any affirmative recommendations from defendant's treating therapist and in the face of conflicting expert reports relative to defendant's psychological and psychiatric condition, the trial court denied plaintiff's application for a plenary hearing and proceeded to issue an order modifying defendant's parenting time. See Mackowski v. Mackowski, 317 N.J. Super. 8, 11, 14 (App. Div. 1998) (reversing and remanding where trial court's order was based on evaluation of conflicting affidavits and adoption of assertions of one party over the other without benefit of plenary hearing).

The judge was apparently persuaded by his finding that modification was warranted because defendant was "in substantial compliance with the requirements" of the parties' earlier consent order. The record indicates, however, that questions of fact exist as to defendant's compliance with the consent order. In Dr. Joseph's certification, which plaintiff submitted in opposition to defendant's motion, he indicated his concern that defendant was not attending therapy on a weekly basis. In addition, although disputed by Dr. Kagel, Dr. Joseph claimed that Dr. Kagel had not conferred with him in accordance with the consent order. Therefore, the absence of any recommendation for unmonitored parenting time, plus disputed issues of fact related to defendant's compliance with the consent order, warranted a plenary hearing to resolve the parenting time issues. P.T., supra, 325 N.J. Super. at 214.

II.

Plaintiff contends that the trial court erred in denying her application for discovery of defendant's psychological records. The court indicated there was no "need at this stage of the proceedings for those treating notes to be revealed . . . I've concluded that there has not been a sufficient showing that requires under the current status of the case for them to be revealed and therefore I'm going to deny the request that they be revealed." We respectfully disagree.

In New Jersey, the psychologist-patient privilege provides:

The confidential relations and communications between and among a licensed practicing psychologist and individuals, couples, families or groups in the course of the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communications to be disclosed by any such person.

There is no privilege under this section for any communication: (a) upon an issue of the client's condition in an action to commit the client or otherwise place the client under the control of another or others because of alleged incapacity, or in an action in which the client seeks to establish his competence or in an action to recover damages on account of conduct of the client which constitutes a crime; or (b) upon an issue as to the validity of a document as a will of the client; or (c) upon an issue between parties claiming by testate or intestate succession from a deceased client.

[N.J.R.E. 505; N.J.S.A. 45:14B-28.]

In deciding whether to grant custody or visitation, the critical issue is the best interest of the child. V.C. v. M.J.B., 319 N.J. Super. 103, 112 (App. Div. 1999), aff'd, 163 N.J. 200, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000); Kinsella v. Kinsella, 150 N.J. 276, 316-18 (1997).

In Kinsella, the Court held that when a determination as to the best interest of a child is being made, the court should rely upon the expertise of mental health professionals; specifically, the court must "consider the mental health of the parents as well as the psychological well-being of the family as a whole." Id. at 327. The Court cited extensively to the American Psychiatric Association, Task Force Report 31, Disclosure of Psychiatric Treatment Records in Child Custody Disputes 4, 6-10 (1991) (Task Force Report), which recommended that courts make the following findings before ordering disclosure: (1) the treatment was recent enough to be relevant; (2) substantive independent evidence of serious impairment exists; (3) sufficient evidence is unavailable elsewhere; (4) court-ordered evaluations are an inadequate substitute for disclosure; (5) given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant. Ibid. The Court noted its approval of that approach. Ibid.

Once the court has made the necessary findings, the court must next engage in the requisite balancing process before the release of treatment records. Ibid. As noted in Kinsella:

[B]y contesting custody or visitation, a parent does not automatically put information contained in records of therapy with such professionals "in issue." In regard to therapy records, which are at the heart of the psychologist-patient privilege, the courts must strike a balance between the need to protect children . . . and the compelling policy of facilitating the treatment of parents' psychological or emotional problems. Such a balance is in the best interest of the child.

[Ibid.]

Whether defendant is entitled to unsupervised and unmonitored visitation with his son is at the core of the dispute between the parties. As per prior orders of the court and agreements between the parties themselves, defendant was required to undergo parenting classes. Accordingly, on the issue of unsupervised visitation, the substance of those sessions is highly relevant to an expert's determination as to the best interest of the child. Notably, pursuant to the parties' consent order, defendant authorized Dr. Kagel, as defendant's treating therapist, to confer with Dr. Joseph. Dr. Kagel was required to "confer . . . periodically . . . so that Dr. Joseph is aware of the progress defendant is making in parenting awareness and individual psychological growth and insight into the functioning of a young child." That authorization indicates defendant was aware that some of the information exchanged during his sessions with Dr. Kagel would in fact be disclosed. Likewise, the parties also previously agreed that all of Dr. Musetto's notes and any other documents the doctor relied upon to reach his conclusions would be turned over to plaintiff's expert.

While a wholesale disclosure of all of defendant's psychological and psychiatric records to plaintiff's counsel may be inappropriate, after the court conducts an in-camera review of the records, it will determine the extent of any such disclosure and ensure that only those records relevant and material to the issue of parenting are released.

In summary, the matter is reversed and remanded, consistent with our opinion, for a plenary hearing to determine whether defendant is entitled to unsupervised and unmonitored visitation considering the best interests of the child, and if so, what conditions, if any, should be imposed by the court for such visitation. Given the nearly one-year delay since the trial court entered the order modifying defendant's parenting time, he is entitled to have the plenary hearing scheduled as expeditiously as possible. Prior to that hearing, the court will conduct an in-camera review of the psychological records of defendant's treating therapist to determine what records should be turned over to plaintiff's experts.

Reversed and remanded. We do not retain jurisdiction.

 

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A-0987-05T2

June 30, 2006