S.M v. O.M

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4468-10T4

S.M.,

Plaintiff-Appellant,

v.

O.M.,

Defendant-Respondent.

_______________________________________

June 4, 2012

Submitted April 24, 2012 Decided

Before Judges Messano and Yannotti.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1225-08.

Cavalli & McCann, L.L.C., attorneys for appellant (Brian P. McCann, on the brief).

Theiler & Mourtos, L.L.C., attorneys for respondent (Devan J. Theiler, of counsel and on the brief).

PER CURIAM

Plaintiff appeals from an order entered by the Family Part on April 1, 2011, which allows defendant to have unsupervised parenting time with the parties' minor child at specified times. We reverse.

The parties were married on October 28, 2004. They had one child, L.M., who was born on August 19, 2006. The marriage was dissolved by a final judgment entered by the trial court on March 6, 2009. Among other things, the judgment provided that the parties would share joint legal custody of L.M., with plaintiff designated as parent of primary residence and defendant designated the parent of alternate residence. In addition to the judgment, the court entered an order dated March 6, 2009, which stated that defendant would have parenting time every other Friday, from between 6:00 p.m. and 6:30 p.m., until Monday morning, between 5:30 a.m. and 6:00 a.m.

In June 2009, plaintiff filed an order to show cause seeking a modification of the March 6, 2009 order to grant her temporary custody of L.M. In her supporting certification, plaintiff asserted that the child began to cry and scream when it was time for defendant's parenting time. She also claimed that the child said defendant hit her, shook her and "threw a rock" at her.

Plaintiff stated that she reported her allegations to the police in Pennsylvania, where she resides, as well as the Pennsylvania Department of Health Services (DHS) and the New Jersey Division of Youth and Family Services (DYFS). She also stated that she had taken the child to a hospital and a doctor referred her to the child's primary physician, a neurologist and a behavior clinic for treatment. It appears that the trial court denied plaintiff's application.

Several days later, plaintiff filed a motion seeking modification of the parenting time order, including a suspension of the child's overnight visits with defendant pending completion of DYFS's investigation and supervision of defendant's parenting time by a third party, such as the child's grandparents. Plaintiff additionally sought an order compelling defendant to undergo a psychological evaluation, an evaluation of the child and in camera review of DYFS's records.

Defendant opposed the motion and filed a cross motion seeking enforcement of the provisions of the March 6, 2009 order pertaining to parenting time. In his certification, defendant stated that DYFS had investigated plaintiff's previous, unrelated allegations, found them to be unfounded, and terminated its involvement in the matter. Thereafter, DYFS visited defendant again and said that plaintiff had alleged that he had physically abused his daughter. Several days later, DYFS returned to defendant's home and said that plaintiff had made allegations of sexual abuse. Defendant denied the allegations. He also said that, since June 8, 2009, plaintiff refused to allow him to have any contact with his daughter.

The parties agreed to the entry of an "interim" consent order dated August 18, 2009, which stated that defendant would have supervised visits with the child on alternate weekends. The order additionally stated that, in the event the DYFS investigation resulted in a "finding of 'unfounded' on all prior referrals," the requirement for supervised visits would be "immediately vacated without [the] need of a future court order."

Plaintiff then filed a supplemental certification in further support of her motion, and in opposition to defendant's cross-motion. Plaintiff reiterated her allegations that defendant may have physically and sexually assaulted the child. She stated that L.M. was crying and insisting that she did not want to see her father.

Plaintiff also stated that since the child was returned to her in June, her behavior had changed. The child had refused to go to school. She also had refused to participate in "Jr. Gym," a school activity she previously enjoyed.

The trial court considered the motions on September 18, 2009, and entered an order which: 1) allowed plaintiff to retain an expert or experts, at her own expense, to conduct a forensic evaluation of the child and her statements of possible sexual abuse; 2) allowed plaintiff to make a motion for reimbursement of the expert costs, based on the expert's findings; 3) required plaintiff to provide the results of the evaluation to counsel and the court; 4) required DYFS to provide the court with all records pertaining to the allegations of abuse and neglect of the child; 5) directed plaintiff to provide the court with the child's medical records; and 6) allowed the parties to make applications regarding DYFS's findings. The court's order also stated that, until further order, defendant would have supervised parenting time with the child at specified times with acquaintances of defendant supervising.

The court filed an amended order on October 22, 2009, which stated that plaintiff had elected to have the child evaluated at the CARES Institute of the University of Medicine and Dentistry of New Jersey with regard to the allegations of possible sexual abuse. The order stated that the evaluation was expected to begin in November 2009 and take about two and one-half months to complete. The order required plaintiff to provide the report and results of the evaluation to opposing counsel and the court. In addition, the order provided that either party could make an application for relief on short notice in the event DYFS issued findings regarding the alleged abuse.

On November 24, 2009, plaintiff filed a motion seeking the disqualification of the judge assigned to the matter. This motion was apparently prompted by certain statements made by the judge. Plaintiff's attorney asserted that these statements revealed a "perceived bias" by the judge against his client. Defendant opposed the motion. The court considered the motion on January 11, 2010, and denied it for reasons stated on the record. On January 28, 2010, plaintiff filed a motion for leave to appeal, which we denied.

On February 25, 2010, Julie Lippmann, Psy.D. (Dr. Lippmann) furnished plaintiff with a report of her psychological/sexual abuse evaluation of the child. Dr. Lippmann provided various "possible explanatory hypotheses" for the child's allegations. She said: 1) the child may have been "exposed to some form of inappropriate sexual interaction and/or physical hurt" during her visit with her father; 2) plaintiff may have "intentionally contrived[] the allegations as a means of keeping [defendant] from his daughter"; 3) "something" may have occurred during the child's visit with her father "that frightened and upset [her] at that time, but which was not . . . sexually abusive"; 4) there may have been a "misinterpretation or misunderstanding of some innocuous interaction that may have occurred" during the visit; and 5) the child's protests about seeing her father may have been "prompted by the family's showing her favorite videos when it was time [for her] to go."

Dr. Lippman wrote that it was not possible to offer a conclusive finding regarding exactly what had happened but she said that it seemed "clear that the child was traumatized by something that occurred while at her father's during the spring and that, despite her disturbing and dramatic protests, she has adjusted reasonably well to the subsequent supervised visitation schedule." Dr. Lippmann suggested "a conservative and protective approach" in view of the child's young age. Among other things, Dr. Lippmann recommended a continuation of supervised visits, but with a person who did not have a view regarding the allegations of sexual abuse.

Thereafter, defendant filed a motion seeking, among other things, unsupervised visits with the child and restoration of the previously-ordered parenting time schedule of alternate weekends, from Friday evening to Monday morning. Plaintiff filed a cross-motion seeking, among other relief, "professional supervision of the defendant's weekly parenting time by an approved agency or community organization," and a "psychological evaluation and formal risk assessment of the defendant."

The trial court entered an order dated April 16, 2010, denying defendant's motion for unsupervised visitation and modifying the previously-ordered visitation schedule to require that one hour of defendant's visits be made through the court's visitation program, with the remainder of defendant's visits to be supervised by those previously designated. The court also ordered the parties to undergo a full parenting evaluation by Andrew P. Musetto, Ph.D. (Dr. Musetto).

On February 3, 2011, Dr. Musetto provided his report to the court. In that report, Dr. Musetto stated that he found no evidence that plaintiff coached the child or wanted to prevent the child from seeing defendant. Dr. Musetto stated that plaintiff had acted responsibly and understandably in reacting to the child's statements and reactions.

He noted, however, that, while the child's statements and reactions "were understandably alarming at first glance, they do not necessarily indicate that something untoward happened at [defendant's] residence." The doctor said that this was a possibility but others should be considered as well:

Besides her reacting stemming from the fog of a high conflict case, it might represent a child having a tantrum because she wants to do something other than what a parent asks of her ([defendant's] explanation). A third explanation involves burgeoning emotional problems in this young girl. A fourth: [L.M.] is a highly expressive, dramatic child, prone to theatrics.

Dr. Musetto said that he agreed with the point of view that the child's "reaction seems extreme, keeping in mind that it has happened" at the homes of both parents.

Dr. Musetto made several recommendations. He stated that a parenting coordinator should be appointed "to help facilitate communication and to exchange information between the parties and to monitor the parenting schedule." He recommended a guardian ad litem to protect the child's interests. He also recommended that defendant have unsupervised visits with the child, "unless the [c]ourt makes a finding that [defendant] abused her."

Dr. Mussetto stated that he recommended "a gradual stepping up of [defendant's] parenting time not because of serious concerns about [defendant], but because it is generally easier to phase in a parenting schedule than to go from supervised to liberal, unsupervised parenting time." In addition, the doctor recommended that, for the present time, plaintiff continue to be the parent of primary residence, and the child "should begin counseling . . . with a therapist appointed by the [c]ourt."

Plaintiff's attorney issued a subpoena to Dr. Musetto for the purpose of taking his deposition. On March 8, 2011, defendant filed a motion seeking, among other things, to quash the subpoena issued to Dr. Musetto, and to implement his recommendations. Plaintiff opposed his request for unsupervised visitation.

In a certification submitted to the court, plaintiff said that she had concerns about Dr. Musetto's report. She noted that, unlike Dr. Lippmann, Dr. Musetto had not performed a child sexual abuse evaluation. She also stated that, in view of the "facially valid disclosures of possible child sexual abuse committed by . . . defendant," the court should follow Dr. Lippmann's "conservative and protective approach."

Plaintiff also stated that she did not oppose the appointment of a parenting coordinator and a guardian ad litem. She further stated that she respectfully requested that she be permitted to proceed with Dr. Musetto's deposition. Plaintiff said that she should be permitted to explore the doctor's opinions, their bases, and what she alleged were the "limitations" of his findings and recommendations.

A different judge considered the motions on April 1, 2011. The judge placed his decision on the record. He stated that plaintiff was entitled to take Dr. Musetto's deposition. The judge also stated that he was going to order a change in the parenting schedule, in accordance with Dr. Musetto's recommendations, but the change would not be implemented until May 1, 2011, in order to allow plaintiff to take the doctor's deposition.

The judge indicated that he had taken Dr. Lippmann's recommendations into account, and there had already been a year of supervised visitation. The judge also indicated that he would not appoint a parenting coordinator but he would appoint a guardian ad litem for the child.

The judge memorialized his decision in an order dated April 1, 2011. The order appointed a guardian ad litem for the child and stated that plaintiff would be permitted to depose Dr. Musetto concerning his report. The order provided that the parties would not be required to retain a parenting coordinator. It further provided that beginning June 3, 2011, defendant would be permitted to have unsupervised parenting time with the child, with the length of those visits to increase as of July 1, 2011.

In addition, the order stated that, in the event defendant's parenting time was cancelled for valid medical reasons, defendant would have "make-up parenting time the following weekend, allowing defendant [parenting time on] two weekends in a row."

This appeal followed. Plaintiff did not seek a stay of the court's order pending appeal, nor did she take the opportunity to depose Dr. Musetto.

On appeal, plaintiff argues that the trial court erred by ordering a modification of the visitation schedule without conducting a plenary hearing. We agree.

"In custody cases, it is well settled that the court's primary consideration is the best interests of the children." Handv. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing Kinsella v.Kinsella, 150 N.J. 276, 317 (1997)). "The court must focus on the 'safety, happiness, physical, mental and moral welfare' of the children." Ibid. (citing Fantonyv. Fantony, 21 N.J. 525, 536 (1956)). "A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." Ibid. (citing Shaw v. Shaw, 138 N.J.Super. 436, 440 (App. Div. 1976)).

In our view, the trial court erred by resolving the dispute over parenting time without an evidentiary hearing. The expert reports revealed a genuine and substantial factual dispute as to whether it was in the child's best interests for defendant to have unsupervised visits. We recognize that the experts could not resolve the factual issue of whether defendant had sexually abused the child. Indeed, DYFS had concluded that the allegations were unfounded. Even so, it was undisputed that the child had a strong, adverse reaction to visiting with defendant.

Under the circumstances, Dr. Lippman suggested a more conservative approach than Dr. Musetto. The court essentially adopted Dr. Musetto's recommendations, with some modifications. The court did not explain, however, why it found Dr. Musetto's recommendation regarding unsupervised visitation to be more persuasive than Dr. Lippman's more conservative approach.

The judge remarked that there were "issues" with both reports but never explained what those "issues" were. The court also never addressed plaintiff's claim that the DYFS investigation was biased against her. The court stated that there had been a year of supervised parenting time and it was time to "move forward" with unsupervised visits. The court never explained why it was in the child's best interest to do so.

Moreover, as we stated previously, plaintiff filed a motion seeking the opportunity to depose Dr. Musetto concerning his report and recommendations. Among other things, plaintiff wanted to explore Dr. Musetto's opinions, the basis for those opinions, and what she asserted were the "limitations" of his findings. The court granted plaintiff's motion, noting that Rule 5:3-3(f) required that plaintiff be afforded an opportunity to depose the doctor. Seealso Rente v. Rente, 390 N.J. Super. 487, 495 (App. Div. 2007).

Even so, in the same order in which it granted plaintiff's motion for discovery, the court ordered a change in the parenting schedule. The court stated on the record that it was delaying the change in the parenting schedule for one month to give plaintiff time to take the deposition. In our view, the court should have first given plaintiff the opportunity to depose the doctor, and then conducted a plenary hearing in the matter.

We are therefore convinced that the trial judge erred by deciding to accept Dr. Musetto's recommendation for unsupervised visits and rejecting Dr. Lippman's recommendation without conducting an evidentiary hearing. We therefore reverse the provision of the court's April 1, 2011 order granting defendant unsupervised visits and remand the matter to the trial court for further proceedings.

On remand, the trial court should order the experts to update their previous reports, and/or order new psychological evaluations, to reflect what has occurred with the unsupervised visits that have occurred since June 1, 2011. The court should also permit the parties a reasonable opportunity to depose the experts, if they choose to do so. Thereafter, the court shall conduct a plenary hearing and make appropriate findings of fact and conclusions of law. In the interim, the court should determine whether the previously ordered unsupervised visits should continue pending further order of the court.

Plaintiff additionally argues that, on remand, the matter should be assigned to a different judge. Defendant asserts, however, that the matter has already been assigned to another judge. If that is so, the issue is moot. In any event, we are satisfied that the judge who entered the April 1, 2011 order could conduct a fair and unbiased hearing in the matter, if asked to do so.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.