RANDY MAIELLA v. CONNIE MAIELLA, (n/k/a Crincoli)

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 3694-04T33694-04T3

RANDY MAIELLA,

Plaintiff-Appellant,

v.

CONNIE MAIELLA, (n/k/a

Crincoli),

Defendant-Respondent.

_____________________________________________________________

 

Submitted December 19, 2005 - Decided January 30, 2006

Before Judges Cuff and Holston, Jr.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1230-00.

Apicelli & Costanzo, attorneys for appellant (Nicholas C. Apicelli, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff, Randy Maiella, appeals from the Family Part's February 16, 2005 and March 3, 2005 orders: (1) denying plaintiff's counsel the right to review Division of Youth and Family Services (DYFS) records concerning its investigation of a domestic violence complaint filed by defendant against her present husband; (2) denying plaintiff's request that psychologist, Dr. Lee Monday, be replaced as parenting coordinator for the parties; (3) denying plaintiff's request for a plenary hearing on the issue of transfer of custody of the parties' minor child, Kristilee, age seven; and (4) denying plaintiff's request for increased parenting time with Kristilee. We affirm.

Judge Hansbury's February 16, 2005 order denied plaintiff's motion that Dr. Monday, the parties' agreed-to parenting coordinator, be replaced by a new parenting coordinator but the order required that the parties cooperate in arranging for Dr. Monday to interview Kristilee, whose welfare was the subject of the motions before the court, regarding plaintiff's concerns about Kristilee's "safety and well being." The order required that Dr. Monday thereafter submit a report to the court. The court's February 16, 2005 order denied a plenary hearing on the issue of transfer of custody and denied plaintiff's request that his parenting time be increased by one overnight pending the results of the plenary hearing.

Judge Hansbury's March 3, 2005 order denied plaintiff the right to review DYFS records concerning its investigation of an October 26, 2003 domestic violence allegation made by defendant, Connie Maiella n/k/a Connie Crincoli, against her present husband, Frank Crincoli. Defendant obtained a domestic violence temporary restraining order (TRO) against Frank Crincoli, which she later dismissed. She had alleged that her current husband verbally harassed her due to an ongoing problem with her teenage son from a prior relationship. After consulting with Judge Rand, who had previously ordered an in camera review of the DYFS records, the judge was satisfied that DYFS had no open file and that there was no substantiated abuse.

The parties were married on January 10, 1996, and one child, Kristilee, was born of the marriage. A Dual Final Judgment of Divorce was entered on January 9, 2002, and a Final Judgment of Divorce with Settlement was filed on April 2, 2002. Shortly after the divorce, defendant married Frank Crincoli. Pursuant to paragraph one of the settlement, the parties share joint legal custody of Kristilee with defendant being the parent of primary residence (PPR). Pursuant to paragraph six, plaintiff exercises co-parenting time with Kristilee, which amounts to about 40% of the time.

There has been continuing disagreement between the parties as to the upbringing of Kristilee and in 2002, Dr. Monday was appointed, with the mutual consent of the parties, as parenting coordinator. During the course of a parenting coordination session, plaintiff presented Dr. Monday with instances that he believed represented instability, drugs, alcohol, depression, obscene language, and violence in defendant's current home. Plaintiff contends that he provided Dr. Monday with an audio tape, a recorder, and a transcript of defendant cursing at Kristilee, and photographs of marks, bruises and a black eye on the child. Dr. Monday, however, wrote in an evaluation, without addressing the documents presented by plaintiff, that defendant stated that she does not curse at Kristilee and that there was no evidence to indicate that defendant would not be a good mother for her child at the present time.

In 2003, plaintiff learned that there was a domestic violence dispute between defendant and her current husband. Plaintiff understood that on October 26, 2003, the situation was so volatile that defendant called the police, they responded to her home, and she requested a temporary restraining order (TRO). The TRO temporarily removed defendant's husband from the home but at the time of the final hearing, defendant voluntarily dismissed the complaint. The TRO directs that firearms stored under the bed were to be removed.

Since the divorce, plaintiff claims he has documented several violent incidents that have occurred in defendant's current home. Many of the incidents are based, according to plaintiff, upon unsolicited statements by Kristilee. Plaintiff contends Kristilee comes to him with marks and bruises on her. When she is asked how she got them, she often responds that she doesn't want to talk about them, because her mother told her, if she tells, the judge will take her away from her mother and she won't ever see her again. Plaintiff attempted to obtain the domestic violence records on his own, but he was advised by the Family Division in Warren County that the records are confidential and could not be released.

Plaintiff asserts that once he learned of the domestic violence that he visited the Warren County DYFS office and was advised that there was an open case with the family and that the records would not be released without a court order. Defendant initially refused to discuss the domestic violence matter with plaintiff, denying that there was domestic violence in her home, and told Dr. Monday that the children are not exposed to yelling, cursing or violence. Later, she admitted that there was verbal abuse in her household but downplayed the situation and said she obtained a restraining order because her husband "refused" to attend counseling. Defendant claimed the verbal abuse resulted from her present husband's depression over finances, her son Michael's problems with alcohol and marijuana and plaintiff's interference.

On December 11, 2003, in a meeting between Dr. Monday and the parties, Dr. Monday told plaintiff that defendant stated to him, with regard to the domestic violence issue, that the police were never at her house and that defendant had called DYFS to "force Frank into counseling." Plaintiff contends that Dr. Monday indicated that without requiring defendant to provide documentary evidence there could be no finding that defendant was any danger to Kristilee or that there was domestic violence in her home.

Dr. Monday's March 9, 2004 report states that if plaintiff could provide proof that defendant was untruthful about the domestic violence, Kristilee's visitation schedule with plaintiff could be re-examined. Dr. Monday also told plaintiff that if Kristilee is really being exposed to violence that does not mean defendant will lose custody of her but that additional Tuesday overnight parenting time for plaintiff would be "no big deal." Plaintiff believes that no matter what Dr. Monday is told that Dr. Monday will not find any reason to seek to protect Kristilee or even to investigate the chance that she is in danger.

In January 2004, plaintiff filed a motion for release of the domestic violence records between plaintiff and her present husband and the DYFS investigative reports for in camera review by the court and to plaintiff's counsel under a protective order. On March 5, 2004, Judge Rand, the prior motion judge, issued an order requiring the release to the court of any and all domestic violence records between defendant and her current husband and release by DYFS to the court of the entire contents of its file relative to any reports or investigation of defendant and her current husband from 2003 and 2004 for an in camera review.

After the March 5, 2004 order, plaintiff's attorney wrote four letters to the court on June 11, July 14, August 19 and September 30, 2004 requesting information concerning the court's receipt and review of the ordered documents. There was no reply to any of the letters. On January 17, 2005, plaintiff filed a motion to enforce the March 5, 2004 order.

At oral argument on February 6, 2005, Judge Hansbury indicated that the court had "reached out" to the Morris County Division of DYFS. He was informed that Morris DYFS's "check" with the Warren County Division of DYFS revealed that the DYFS file was closed in December 2004 and that on March 23, 2004 the "complete original DYFS file" was sent to Judge Rand for in camera review and after its return from the judge, the case was administratively closed. Since that time, there have been no new referrals. Judge Hansbury also informed counsel that the domestic violence TRO resulted in an order of dismissal at defendant's request. The court indicated that there is "not an automatic right to review a DYFS file. A judge has to make a preliminary decision." The judge noted: "[W]e now know that Judge Rand did, indeed, look at the file. We know it was closed. I know from DYFS's communication with us that there was no substantiated abuse."

The judge at the conclusion of the argument on the motion stated:

Okay. All right. Well, as you can probably figure out, I'm not going to give you a decision today, because I think -- Judge Rand is on vacation this week and I'll talk to him next week.

. . . .

I will absolutely talk to Judge Rand. I make no promises whatsoever about what will happen as a result of that conversation, except that you will know. And after that conversation, I will make a final decision whether to order Dr. Monday to interview Kristilee, because I want to know what he remembers, if anything, which will be transmitted to me, before I make that decision.

In terms of me reviewing the files, I'm not going to independently review the domestic violence files and the DYFS files, because I think I'm satisfied that both had been done, both had not -- both had been done, DYFS has closed their file. I'd be -- actually, I guess I have reviewed the domestic violence files, because I suspect all there is the complaint, which was given to me, and the dismissal, which I don't have, but there's -- the computer record is pretty clear as to the basis of the dismissal. So I guess I have reviewed that. DYFS records, I'm satisfied they found no substantiated abuse and I'm satisfied Judge Rand reviewed the file.

In terms of Number 2, permitting plaintiff's counsel to review all records. That's denied. Compelling replacement of Dr. Monday. At this point, that's denied. At this point, I'm going to deny the guardian ad litem, because I have no reason to believe that that's a necessity. I'm not going to grant the home study. I see no reason why that's necessary. And at this point, I'll deny the plenary hearing and a change of custody, because at this point, I don't believe there's a basis to do that.

On February 16, 2005, Judge Hansbury issued an order, which in applicable part states:

[The] court shall communicate with Judge Rand to determine if Judge Rand recalls his review of the DYFS file in this matter and Judge Hansbury will communicate the result of that communication to counsel. Judge Hansbury will determine if Kristilee should be interviewed by Dr. Monday with a report to be rendered.

On March 3, 2005, Judge Hansbury issued an additional order, which in pertinent part states:

The parties shall cooperate and arrange for Dr. Lee Monday to interview Kristilee in response to plaintiff's concerns about Kristilee's safety/well-being while with defendant. Counsel for both parties shall forward the parties' certification[s] submitted to the court that led to the order of February 16, 2005. Dr. Monday shall submit a report [to] the court thereafter. No further action is granted relating to [the] prior order of Judge Rand. This court is satisfied he reviewed DYFS and DV records and that DYFS has no open file.

Plaintiff asserts that because under a joint legal custody arrangement, the legal authority for making major decisions regarding the child's welfare is shared at all times by both parents, Judge Hansbury abused his discretion in denying him access to the DYFS and domestic violence records. Plaintiff contends that unless he, as Kristilee's father, is granted access to all of the same information pertaining to the child's welfare that is available to defendant in order to exercise his legal authority and responsibility for making major decisions regarding his child's welfare, which is shared at all times by both parents, the concept of joint custody is rendered meaningless.

Plaintiff cites N.J.S.A. 9:2-4.2a in support of his argument. That statute reads in applicable part:

Every parent, to the extent permitted by federal and State laws concerning privacy, except as prohibited by federal and State law, shall have access to records and information pertaining to his or her unemancipated child, including, but not limited to, medical, dental, insurance, child care and educational records, whether or not the child resides with the parent, unless that access is found by the court to be not in the best interest of the child or the access is found by the court to be sought for the purpose of causing detriment to the other parent.

We are convinced, however, that N.J.S.A. 9:6-8.10a, not N.J.S.A. 9:2-4.2a, applies to the release of the records sought by the plaintiff in this case. That statute prescribes the confidentiality and closely circumscribed disclosure of all records of child abuse reports and all information obtained by DYFS in investigating such reports.

Among the entities permitted to examine such records is

[a] court . . . , upon its finding that access to such records may be necessary for determination of an issue before it, and such records may be disclosed by the court . . . in whole or in part to the . . . attorney or other appropriate person upon a finding that such further disclosure is necessary for determination of an issue before the court . . . .

[N.J.S.A. 9:6-8.10a(b)(6).]

Our decision in Kaszerman v. Manshel, 176 N.J. Super. 132 (App. Div. 1980) is instructive on this issue. In Kaszerman, plaintiff filed a complaint for the release of DYFS records concerning himself and his son, compiled as a result of a child abuse referral naming him as a possible perpetrator. Id. at 134. "The Law Division judge held that child abuse records of DYFS were confidential under state statute N.J.S.A. 9:6-8.10a, and federal regulation, 45 C.F.R. 1340.3-3(d)(5), and dismissed the complaint." Ibid. On appeal plaintiff contended that he was "legally entitled to the records under (1) state law regarding confidentiality, (2) the New Jersey Right to Know Law, (3) federal regulations concerning confidentiality of records, and (4) because of the legislative intent of the child abuse reporting laws." Ibid.

We noted that "[t]he confidentiality of child abuse records is controlled by N.J.S.A. 9:6-8.10a[]" and that the plaintiff did "not fall within any of the statutorily-enumerated exceptions to the confidentiality accorded such reports." Ibid. "Although N.J.S.A. 9:6-8.10a(b)(5) does authorize disclosure to a parent 'who is responsible for the child's welfare,' that disclosure is specifically limited to situations where the information is 'needed in connection with the provision of care, treatment, or supervision to such child. . . .'" Ibid.

We are satisfied that Judge Hansbury, by contacting DYFS, verified that DYFS's records of its investigation of the domestic violence complaint contained no allegation of physical assault by defendant's present husband against defendant resulted in a determination by DYFS of "no substantial abuse." Additionally, after the records were returned to DYFS following an in camera review by Judge Rand, the DYFS file was closed in December 2004. There have been no subsequent incidences investigated by DYFS. Judge Hansbury, himself, reviewed the October 26, 2003 domestic violence TRO file and verified that there was a subsequent dismissal of the TRO by her.

We are also satisfied that Judge Hansbury's remarks at the conclusion of the motion argument, when read in conjunction with the orders of February 16, 2005 and March 3, 2005, confirm that both Judge Rand and Judge Hansbury were satisfied that the records contained no information affecting Kristilee's safety or well-being. Therefore, the records would not contain information needed by plaintiff in connection with the provision of care, treatment or supervision of Kristilee.

In Kaszerman, we also examined N.J.S.A. 9:6-8.10a(b)(6), which "authorizes disclosure of child abuse records to a court 'upon its finding that access to such records may be necessary for determination of an issue before the court. . . .'" Ibid. "The court may, in turn, release the records to the attorney upon a finding that 'such further disclosure is necessary for determination of an issue before the court.'" Id. at 134-35. We are satisfied that for the aforesaid reasons that it is likewise unnecessary to disclose the records to plaintiff's attorney because there is no issue before the court for which the records are relevant. N.J.S.A. 9:6-8:10a(b)(6).

Kaszerman further determined that "[s]ince the records are expressly confidential except for the circumstances delineated in the statute, [the] plaintiff has no right of access under the Right to Know Law, N.J.S.A. 47:1A-1 et seq., which excludes from general public inspection records made confidential by State statute." Kaszerman, supra, 176 N.J. Super. at 135. We concluded that the "release of DYFS's records is controlled by the more severe limitations on access imposed by N.J.S.A. 9:6-8.10a." Ibid. Likewise, in this case, we are convinced that N.J.S.A. 9:6-8.10a trumps N.J.S.A. 9:2-4.2a in determining the appropriateness of the release of DYFS records.

The conclusion by DYFS of unsubstantiated abuse and the closing of DYFS's file, the judge's examination of the domestic violence records, and the judge's conference with Judge Rand, resulted in the court being satisfied that the DYFS investigation did not implicate Kristilee's safety or welfare and, therefore, further disclosure is not necessary for a determination of an issue before the court. We are convinced, therefore, that Judge Hansbury properly exercised his discretion in denying plaintiff's counsel the right to review the DYFS and domestic violence records in question.

Our review of the record, in light of the written arguments advanced by counsel, discloses that the other issues raised by plaintiff are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(A) and (E). Therefore, the Family Part's orders of February 16, 2005 and March 3, 2005 are affirmed.

 
Affirmed.

(continued)

(continued)

15

A-3694-04T3

January 30, 2006