NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.S.

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NOT FOR PUBLICATION WITHOUT THE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 YOUTH AND

FAMILY SERVICES,1

Plaintiff-Respondent,

v.

A.S.,

Defendant-Respondent,

 

and

D.P.,

Defendant-Appellant.

_________________________________________

IN THE MATTER OF J.S., a minor.

_________________________________________

M.R. and S.R.,

Plaintiffs-Respondents,

vs.

A.S.,

Defendant-Respondent,

and

D.P.,

Defendant-Appellant.

_________________________________________

May 28, 2014

 

Argued April 8, 2014 Decided

 

Before Judges Fisher, Espinosa and Koblitz.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-62-08 and FD-13-383-09.

 

Michael S. Harwin, Designated Counsel, argued the cause for appellant D.P. (Joseph E. Krakora, Public Defender, attorney; Mr. Harwin, on the briefs).

 

RebekahE. Heilman,Designated Counsel, argued the cause for respondent A.S. (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the brief).

 

Stephanie Anatale, Deputy Attorney General, argued the cause for respondent New Jersey Division ofYouth and Family Services (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Ms. Anatale, on the brief).

 

Todd Wilson, Designated Counsel, argued the cause for minor-respondent J.S. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief).

 

Steven C. Rubin argued the cause for respondents S.R. and M.R. and joins in the briefs of other respondents.

 

PER CURIAM

When J.S. (Jennie)2 was born on April 30, 2005, both she and her mother, A.S. (Angela), tested positive for cocaine, opiates, and benzodiazepines. Just two days later, Angela and defendant D.P. (Derek), Jennie's father, signed a fifteen-day informed consent in which they agreed to place Jennie with Angela's older sister, S.R. (Sue). For most of the next five years, Jennie lived with Sue. In August 2010, the trial court granted physical and legal custody to Sue and her husband, M.R. (Matt), basing that determination on the best interests of Jennie. Derek appeals from this judgment; Angela does not.

I

Jennie is now nine years old and has spent most of her life living with Sue and Matt, with both Derek and Angela having visitation with her. Derek acknowledges that if a best interests analysis applies to the custody determination, he does not prevail. He also concedes that Sue and Matt have formed a parent-child relationship with Jennie. He argues, however, that the trial court erred in applying a best interests analysis to the custody determination because he did not consent to Sue and Matt's formation of a parental relationship with Jennie and there was neither evidence nor a finding that Jennie would suffer serious physical or psychological harm if he was awarded custody.

In a custody dispute between a natural parent and a third party, there is a presumption in favor of the natural parent that arises from a parent's "fundamental right to parental autonomy." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 38 (2011). That right is recognized as "a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution." Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004); see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645, 652 (1944). The constitutional right to parent one's child is not absolute, however. In re D.C., 203 N.J. 545, 568 (2010); V.C. v. M.J.B., 163 N.J. 200, 218, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). The right "must, at times, give way to the State's parens patriae obligation to ensure that children will be properly protected from serious physical or psychological harm." Watkins v. Nelson, 163 N.J. 235, 246 (2000). Thus, the presumption in favor of parental custody will be overcome by a "showing of gross misconduct, unfitness, neglect, or 'exceptional circumstances' affecting the welfare of the child." Ibid.

Because custody was sought by a third party here, the court was required to conduct a two-step analysis. The first step required the court to determine whether the presumption in favor of the legal parent is overcome by either a showing of "unfitness" or "exceptional circumstances." Id. at 247, 254. In Watkins, the Court emphasized that one of those grounds must be proven before the trial court proceeds to the second step of the analysis. Id. at 237 ("That presumption can be rebutted by proof of gross misconduct, abandonment, unfitness, or the existence of 'exceptional circumstances,' but never by a simple application of the best interests test."). It is only after that presumption has been rebutted that the court proceeds to the determination whether awarding custody to the third party would promote the best interests of the child. Id. at 254; P.B. v. T.H., 370 N.J. Super. 586, 594 (App. Div. 2004); see also Moriarty, supra, 177 N.J. at 117 (noting that when the presumption in favor of parental decision-making is overcome, court should determine visitation schedule based upon the child's best interests).

The trial judge here did not engage in the two-step process required by Watkins. That is, the judge did not make a finding of exceptional circumstances or that Derek was unfit before proceeding to a best interests analysis. Indeed, the trial judge explicitly rejected Angela's testimony that Derek had enabled her in the purchase of controlled substances and made no finding of abuse or neglect against him.

Despite the apparent procedural error in the analysis conducted by the trial judge, we review judgments and not opinions. Velazquez v. Jiminez, 336 N.J. Super. 10, 43 (App. Div. 2000) aff d, 172 N.J. 240 (2002); Glaser v. Downes, 126 N.J. Super. 10, 16 (App. Div. 1973), certif. denied, 64 N.J. 513 (1974). As we have noted, Derek acknowledges that he would not be awarded custody under a best interests analysis. Although the evidence reveals shortcomings in Derek's ability to parent, it does not support a finding that he is unfit. Therefore, we review the record to determine whether the evidence was sufficient to support a finding of exceptional circumstances that would warrant making the custody determination here based upon the best interests of Jennie and we limit our summary of the facts accordingly.

II

On May 10, 2005, the Division filed a verified complaint against both Angela and Derek seeking protective custody of Jennie pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. Jennie resided with Sue for the next six months. During this period, Derek saw Jennie for one hour per week during supervised visits at a Division office in Red Bank.

In October 2005, the trial court transferred custody of Jennie to Angela under the condition that she continue to reside at Sunrise House, an inpatient drug rehabilitation facility. Derek was granted weekly supervised visitation and did not object to this arrangement.

Sue and Matt brought Jennie to Angela in November 2005, spent time visiting every weekend, and took care of Jennie for a few weeks in the summer of 2006. The parties disagree as to the amount of time Derek spent with Jennie during this time. According to a June 8, 2006 order, Derek was to receive two hours of unsupervised visitation with Jennie every other week and one hour of supervised visitation during the alternate weeks.

On October 18, 2006, the court terminated the litigation in the abuse and neglect matter and granted Angela and Derek joint legal custody of Jennie, with Angela having primary residential custody and Derek having unsupervised visitation for eight hours every other Sunday.

After Angela's relapse in November 2006, the Division contacted both Sue and Derek. Sue brought Jennie home to live with her and Matt. Brenda Rizo, the Division caseworker, contacted Derek and told him he should file for custody and that, if he did not, the Division would do so. Derek then filed a complaint for physical custody of Jennie under Docket No. FD-13-604-07. Angela opposed his application and asked Sue to take temporary custody of Jennie. Sue agreed. By order dated December 7, 2006, the trial court granted "temporary residential custody" of Jennie to Sue; "liberal unsupervised visitation" but no overnight visitation to Derek; and liberal supervised visitation to Angela. Derek did not appeal this ruling.

According to Sue, during this period, Derek would regularly come to her apartment to pick up Jennie for his weekly visitation, but there were at least five or six occasions, particularly in early 2007, when he would immediately drop Jennie off with her maternal grandmother rather than spend any time with her.

On May 10, 2007, the parties returned to court in Derek's custody action and advised the court that Angela had relapsed again. Derek's attorney told the court that Derek was "willing and capable of taking custody of" Jennie and that there was no impediment to him doing so. He recounted Derek's intentions:

The hope was and the plan was, not only DYFS, but my client, that [Angela] would, you know, overcome her difficulties, find employment and be the custodial parent of the child. That's what he wanted all along. But that just hasn't happened.

 

And it's unlikely to happen in the near future.

 

After Derek advised the judge he was willing to undergo a new psychological evaluation to confirm his suitability as a custodial parent, the judge entered an order requiring the Division to reopen its case and provide new evaluations to the court. However, the Division failed to do so. Without any new information on Derek's suitability as a custodial parent, Derek, Angela, and Sue entered into a consent order in July 2007 that awarded both parents joint legal custody of Jennie, with Angela retaining primary residential care and custody, and Derek having liberal unsupervised visitation, including alternating weekend overnights with Jennie. The Division had no involvement in the entry of this order.

A matter of days after the consent order was signed, Angela and Derek had a dispute over Derek's visitation with Jennie, resulting in calls from both parties to the police. And, just four days after entering into the consent order, Derek informed the Division that Angela was using drugs. The Division investigated the referral and confirmed that Angela had relapsed. Angela then told the Division that Derek had enabled her to purchase drugs.

The Division responded to these developments by filing a second verified complaint, bearing Docket No. FN-13-62-08, against both Angela and Derek, seeking protective custody of Jennie pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. That same day, the Division placed Jennie back in Sue's custody.3

When the parties appeared before the trial court on August 24, 2007, the court declined to make a change in Jennie's custody. Derek's attorney described his relationship with Jennie:

His intent and [Angela's] intent all along was that she would be, you know, the primary custodial parent of the child and overcome these addictions. . . .

 

So, my client's visitation with the child was extremely limited. I think one hour every two weeks or every week up in High Point that he would have to travel to while [Angela was in an inpatient drug rehabilitation facility] despite the fact that she was coming home, I guess, every other weekend from the rehab back to here.

 

So, his visitation, his bonding with the child obviously didn't exist. Or until basically the end of last year is when he really began to have a relationship with the child.

 

The judge noted the length of time Jennie, then two-and- one-half years old, had spent with Sue and, after rejecting placement with Angela, stated his reason for not changing custody to Derek,

I think [Derek] recognizes that even though he is holding himself out as a resource, when you have a substantial absence of any parent, here the biological father, in the life of a child, considering a return of that child, if at all, -- as the jurist you're going to do it in a graduated methodology, not like that (snap finger).

The court entered an order: (1) permitting Sue to intervene in the Title 9 action4; (2) directing that Jennie remain in Sue's custody; and (3) requiring the parties to return to court on October 24, 2007, for a fact-finding hearing. In light of Angela's allegations, the judge refused to permit Derek to have more than two hours of supervised visitation per week with Jennie. The fact-finding hearing scheduled for October 2007 was adjourned, over the objections of both Derek and the Division, due to Angela's residence in an in patient substance abuse treatment. However, the judge ordered that Derek could have increased visitation with Jennie as arranged by counsel.

The trial began on January 2, 2008, and proceeded on intermittent dates until its conclusion on March 29, 2010. In the interim, Angela was arrested, incarcerated, released to a residential substance abuse treatment program and faced additional charges.5 In August 2008, Sue and Matt filed a complaint against Angela and Derek under Docket No. FD-13-383-09 for legal and physical custody of Jennie, alleging they were her psychological parents. Angela withdrew from consideration as a placement for Jennie and stipulated to a finding of abuse and neglect. During the course of the trial, the trial judge signed orders that granted Derek additional visitation with Jennie consisting of one overnight weekend per month, directed him to engage in individual counseling, and banned the parties from videotaping Jennie.

In addition to Angela, Sue, and Derek, testimony was taken from Dr. Karen Wells, a psychologist retained by the Division to perform psychological evaluations of the various parties and bonding evaluations with the parties and Jennie; Kathleen Holahan, M.S.W., who conducted a custody evaluation on behalf of Sue and Matt; and Brenda Rizo, the Division caseworker.6

Wells observed each potential caregiver's interactions with Jennie during separate hour-long visits, and found that Jennie had emotional and psychological attachments to each, but that the degree and nature of those attachments differed. Wells concluded that Jennie viewed Sue and Matt as her psychological parents, i.e., the individuals she relied upon to meet her physical and emotional needs and provide her with an overall sense of well-being. This relationship had become intact as a result of Sue and Matt's day-to-day involvement in Jennie's life. Jennie trusted that Sue and Matt were reliable because they had been "consistently engaged" with her. Sue and Matt were attached to Jennie and committed to raising her. There was a mutual and intact child-parent bond between Jennie and Derek, and Jennie enjoyed his company. However, Jennie did not look to Derek to meet her daily needs and had no difficulty separating from Derek and returning to Matt when it was time to go home.

Wells found it would be in Jennie's best interests to remain in the custody of Sue and Matt, while still having "ongoing involvement on an unsupervised basis," including overnight visits, with Derek. Wells believed it would harm Jennie and her ability to form relationships in the future if Sue and Matt were eliminated from her life. If Jennie were placed with Derek, Derek would have to be tolerant of her grieving the loss of her psychological parents, and do his best to empathize with her and comfort her.

 

As a result of these conclusions, Wells's evaluation of Derek is relevant. She found him to be an untrusting, embittered, hypersensitive, and belligerent individual who found personal relationships stressful and believed himself to be misunderstood. While he had at least "adequate capacities" to function as a parent, he had only a minimal capacity to separate his own needs from Jennie's best interests, and, in Wells's opinion, needed to engage in ongoing therapeutic counseling.

Kathleen Holahan, a licensed clinical social worker, was retained by Sue and Matt to identify Jennie's psychological parents and also to offer an opinion as to what custodial arrangement would be in Jennie's best interests. Based upon her observations, Sue and Matt were clearly Jennie's psychological parents. She relied upon them for her day-to-day care and to comfort her when she was hurt. She was overjoyed to be reunited with them and was more "spontaneously" joyful in their home than anywhere else. Holahan found that Jennie was "comfortable" with Derek and recognized him as her father, but was not discomfited to leave him.

Holahan also testified regarding the "extraordinary pressure" on Jennie and of her need for an immediate and clear determination of her long-term living arrangements. She reported that Jennie was "actively disparaging" whichever potential caregiver was not present in order to "curry favor" with the caregiver who was there. Holahan found this to be "extremely disconcerting" and opined that "[n]o child at that age should be put in a position where they're really not sure of what's going to happen with their life". Holahan concluded it would be in Jennie's best interests to be placed with Sue and Matt permanently while still maintaining loving and significant relationships with both Angela and Derek.

Holahan also addressed the potential harm to Jennie if she were removed from her current home and placed with Derek. Noting Jennie's bond with Sue and Matt, and Derek's failure to appreciate the significance of that bond, Holahan stated it would be harmful to Jennie and her ability to form relationships in the future if she were removed. Moreover, Holahan did not see how Jennie, whose life had been unstable from the beginning, would recover from the loss of her primary bond with Sue and Matt, particularly if Derek refused to acknowledge her loss. She emphasized that, unlike Sue and Matt, Derek was totally unwilling to compromise in terms of Jennie's physical custody and wanted to relegate Sue and Matt to the roles of "aunt" and "uncle." By contrast, Holahan was satisfied that Sue and Matt would do their best to facilitate Jennie's ongoing relationship with both of her natural parents.

Derek testified that he loved Jennie and wanted custody of her. He claimed he had no control over the circumstances that led to Jennie's placement away from him during the first two years of her life.7 He admitted he had never taken Jennie to a doctor or to any school activities.

Derek maintained that his day visits with Jennie generally went well, and that Jennie had not cried for Sue and Matt during their recent overnight visits. However, he acknowledged that Jennie was confused as to who should be parenting her, and that Jennie had said things to him like "I don't love you," "I hate you daddy," and "You're not my daddy." He claimed, though, that she also told him that she loved him and that she did not want to return to Sue and Matt's home.

Derek confirmed he has had a hostile relationship with Angela's family ever since she became pregnant. He believed that Sue and Matt did not want him involved with Jennie at all, noting that Sue had referred to him as a "cancer to their family." He claimed that Sue had spoken ill of him at Jennie's school and had tried to manipulate Jennie into thinking poorly of him. Derek maintained that Sue and Matt did all they could to deprive him of his daughter and, in particular, did not include him in Jennie's extracurricular activities. Derek claimed that Jennie told him that she would be punished if she did not refer to Sue and Matt as "mommy" and "daddy." Derek confirmed that he corrected Jennie if she called Matt "daddy" in his presence.

Derek stated that, because of their behavior, he did not feel he could work with Sue and Matt regarding visitation. Derek stated that, if he were awarded custody of Jennie, he did not believe visitation by Angela or Sue and Matt should be court-ordered, but instead, left to his discretion. Although Sue and Matt had raised Jennie for most of her life, defendant did not believe it was important for Jennie to maintain a relationship with them given their efforts to sabotage his relationship with her. He did not believe it would be in Jennie's best interests for them to have ongoing visitation with her. If left up to him, he would gradually phase Sue and Matt out of Jennie's life as her "parents," and then keep them out of the picture as much as possible for a period of time so that he could strengthen his relationship with Jennie without interference. In fact, although the school Jennie attended was only two or three blocks from his house, Derek wanted to move her to a different school because Sue was employed at that school. Eventually, Sue and Matt could re-enter Jennie's life, but merely as her aunt and uncle. Derek believed Jennie would adjust to their reduced role in her life. He expressed his willingness to take Jennie to counseling and also to engage in counseling with her.

Sue testified that she and Matt have paid for Jennie's daycare, provided her with medical insurance, and taken her for her pediatrician visits. Sue reported that Derek had only rarely given them anything for Jennie. Although she admitted she never had a good relationship with Derek, Sue insisted she did not have any problem with Jennie visiting Derek, and that she and Matt have tried to involve Derek in Jennie's activities, which he has refused to attend. Sue recalled that Derek had twice refused to take Jennie to her art therapy when it fell during his visitation, stating it was more important for Jennie to be with him.

Matt agreed that he and Sue did not have a good relationship with Derek, but expressed the belief that things could improve if everyone focused on the larger picture. However, he cited instances in which Derek had manifested his hostility toward Sue and Matt, questioning the care Jennie received from them in her presence; accusing them of brainwashing her; stating Matt should not be raising her; and suggesting to Jennie that Matt might steal things from her. Matt also stated Jennie had experienced night terrors on a few occasions during the last eighteen months.

Sue testified that she, Matt, and Jennie had bonded as a family and Jennie knew she was safe with them. Last year, Jennie started calling her "mommy," and she also referred to Matt as either "daddy," "uncle," or "Matt." Sue stated that Jennie consistently called Derek "daddy" or "daddy Derek". Sue acknowledged that she was willing to adopt Jennie, but stated that she had not explored the process since that was not an option right now.

Sue claimed that Derek's hostility towards her and Matt and argumentative nature had made the visitation exchanges very difficult. He has threatened they will never see Jennie again and has also told Jennie that Sue and Matt do not love her or want her. He has audiotaped and videotaped the visitation exchanges, which forced them to do the same. As a result of the conflict, visitation exchanges were moved to the police station.

Sue believed Jennie should continue to reside in her home, while still maintaining a relationship with both of her parents. Similarly, Matt testified he knew Jennie had a bond with both of her parents and that it would harm her to sever these bonds. He maintained that he had no intention of removing Jennie's parents from her life and noted he and Sue had willingly given Derek more visitation than was required by court order.

Rizo, the Division caseworker, testified that Derek had been unhappy about the way this case had been handled. However, although he complained there had been too many years that he has been deprived of his daughter's custody, he also told Rizo that all he wanted was the rights any divorced father would have had if he had been married to the mother. Rizo understood him to mean that he wanted regular visitation with Jennie and that he had always been willing to allow Angela to be the primary caretaker.

The trial judge rendered his oral decision on August 9, 2010. The order stated that Jennie "shall remain in the legal and physical custody of [Sue] & [Matt] under [Docket No.] FD-13-383-09." The order also terminated the litigation under Docket No. FN-13-62-08 and granted Derek continued "reasonable and liberal" visitation with Jennie.

Derek filed a pro se motion for reconsideration, which was denied, and subsequently filed a notice of appeal.8

On June 27, 2011, Derek filed a pro se motion in the trial court under Docket No. FD-13-383-09 seeking an updated bonding evaluation, a transfer of Jennie's custody to him, and a set visitation schedule. Sue and Matt filed opposition to this motion. On August 5, 2011, the trial court denied Derek's motion and awarded Sue and Matt $1500 in counsel fees.

III

Watkins provides important guidance for the application of the "exceptional circumstances" ground for rebutting the presumption in favor of the natural parent. Because the authority to intervene in the parent-child relationship arises from the State's parens patriae power, the "exceptional circumstances" standard "always requires proof of serious physical or psychological harm or a substantial likelihood of such harm." Watkins, supra, 163 N.J. at 248; see also In re D.C., supra, 203 N.J. at 571.

Importantly, the "exceptional circumstances" exception does not require proof that a parent is unfit. The Court explicitly stated that "exceptional circumstances" may rebut the presumption in favor of a parent seeking custody even if there is not a basis for terminating parental rights on statutory grounds and, indeed, even if the parent is "deemed to be a fit parent." Watkins, supra, 163 N.J. at 246-48; see also V.C., supra, 163 N.J. at 219; Sorentino v. Family & Children's Soc. of Elizabeth, 72 N.J. 127, 131-32 (1976) (Sorentino I), appeal after remand, 74 N.J. 313 (1977) (Sorentino II). "'[E]xceptional circumstances' based on the probability of serious psychological harm to the child may deprive a parent of custody." Watkins, supra, at 246-47 (citing Sorentino I, supra, 72 N.J. at 131-132).

Although observing that the full scope of the "exceptional circumstances" exception remained undefined and would evolve through a case-by-case development, the Court also clarified its intent that the scope of the exception was not so narrow as to be limited to cases such as Sorentino, in which the parents were "complete strangers" to the child or unfit. Watkins, supra, 163 N.J. at 247. Specifically, "exceptional circumstances" may exist "if a change in custody will cause serious psychological harm to a child." Ibid.

Psychological parent cases constitute a subset of "extraordinary circumstances" cases, in recognition of children's "strong interest in maintaining the ties that connect them to adults who love and provide for them." V.C., supra, 163 N.J. at 219, 221. A third party may become a psychological parent as a result of "the volitional choice of a legal parent to cede a measure of parental authority to a third party[.]" Id. at 227. Once a third party becomes a psychological parent, he or she "steps into [the] shoes" of a natural parent, Id. at 223 n.9, and determinations between the natural and psychological parent are made pursuant to a best interests analysis. Id. at 227-28.

Consistent with the criteria for the "exceptional circumstances" exception, the test adopted in V.C. is designed "to evaluate whether a third party has become a 'psychological parent' to a child of a fit and involved legal parent, and thus has standing to bring a custody suit." P.B., supra, 370 N.J. Super. at 595 (emphasis added). Therefore, the fact that Derek has an adequate capacity to parent will not preclude Sue and Matt from becoming psychological parents to Jennie.

Four essential requirements must be satisfied for one to become a psychological parent:

[T]he legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged.

 

[Id. at 223.]

Derek does not dispute that the second, third, and fourth prongs of the V.C. test are met here. He argues, however, that Sue and Matt have not attained the legal status of psychological parents because he did not consent to Sue and Matt forming a parent-child relationship with Jennie.

We do not discount the importance of Derek's "consent" to this arrangement.

The requirement of cooperation by the legal parent is critical because it places control within his or her hands. That parent has the absolute ability to maintain a zone of autonomous privacy for herself and her child. However, if she wishes to maintain that zone of privacy she cannot invite a third party to function as a parent to her child and cannot cede over to that third party parental authority the exercise of which may create a profound bond with the child.

 

[V.C., supra, 163 N.J. at 224.]

 

However, a parent's consent to the creation of such a bond need not be explicit. "For example, where a legal parent voluntarily absents herself physically or emotionally from her child or is incapable of performing her parental duties, those circumstances may constitute consent to the parental role of a third party who steps into her shoes relative to the child." Id. at 223 n.9.

It is true that Derek has never explicitly consented to the creation of a parent-child relationship by Sue and Matt with Jennie. He has endeavored, now for almost a decade, to remain a presence in Jennie's life and to gain increased opportunities for visitation. It is also true that his ability to fully enjoy a relationship with his daughter has been curtailed by a plodding judicial process that imposed restrictions upon his visitation that were, to a significant degree, prompted by allegations by Angela ultimately rejected by the court. But it is also true that Derek's diminished parental role is due in part to his own limited aspirations.

Derek did apply for custody after he was encouraged to do so by Rizo due to Angela's relapse in 2006. An order was entered in December 2006 that granted temporary residential custody to Sue and liberal unsupervised visitation to Derek but no overnight visitation. He did not appeal from that order. And, although he renewed his request for custody in May 2007 after Angela relapsed again, he entered into a consent order in July 2007 that gave her primary residential custody while he had liberal unsupervised visitation.

We do not suggest that it is necessary for a parent to resist every alternative placement or appeal every order to retain a right to parental autonomy. But here, Derek's acquiescence to repeated orders that gave primary residential custody to Angela while she was mired in fruitless efforts to address her substance abuse and to the "temporary" placement with Sue and Matt is consistent with the larger pattern, in which he never assumed the full responsibilities of parenting.

By his own admission, he has never taken Jennie to the doctor or to any school activities. Sue and Matt have fulfilled those necessary roles, paid for her daycare, and provided for her daily needs. The record supports the conclusion that, as both Rizo and Derek's attorney described, Derek's long held goal was for Angela to overcome her addiction and be the primary caregiver while he enjoyed the visitation rights of a divorced father. With Derek's knowledge, Sue and Matt have fulfilled the day to day tasks of parenting for Jennie while his efforts were largely focused on pursuing that goal. Through the years, it fell to Sue and Matt to comfort Jennie when she was hurt, prepare her meals, put her to bed, discipline her when necessary, and to set the parameters of her daily life.

It is therefore clear that Derek knowingly "cede[d] a measure of parental authority to" Sue and Matt. V.C., supra, 163 N.J. at 227. The fact that he maintained a relationship with Jennie through visitation and did not explicitly consent to the formation of the relationship does not negate his yielding of that authority for, as we have observed, a third party may become a psychological parent "to a child of a fit and involved legal parent." P.B., supra, 370 N.J. Super. at 595. "Once a third party has been determined to be a psychological parent to a child . . . he or she stands in parity with the legal parent." A.B. v. S.E.W., 175 N.J. 588, 593 (2003) (quoting V.C., supra, 163 N.J. at 227).

In addition to supporting the conclusion that Sue and Matt are Jennie's psychological parents, the record also shows that exceptional circumstances exist. It is undisputed that Jennie has a parent-child bond with Sue and Matt, who have cared for her for almost all of her nine years. If she were separated from them, she would suffer a grievous loss. Although he acknowledges, as he must, that Jennie's relationship with Sue and Matt could not be abruptly severed, Derek makes no secret of his intention to phase out their significance in her life and relegate them to a substantially reduced role. He has stated his belief that it is not in Jennie's best interests for them to have ongoing visitation with her and that it was not important for her to maintain a relationship with them.

Jennie has lived with an uncertainty regarding her placement for an unendurably long time that, according to Holahan, has resulted in "extraordinary pressure" upon her. The expert opinions adopted by the trial judge confirm that removing Jennie from Sue and Matt's care would result in psychological harm to her. Derek does not appear to fully appreciate the grief she would suffer and, further, appears committed to a course designed to enhance his own standing as parent with little regard for the toll that would be paid by Jennie.

In A.B., supra, 175 N.J. at 594-95, the Court cautioned that "courts must consider the prejudice and foreseeable harm to a child when a legal challenge jeopardizes that child's well-settled home environment," even when a parent has been blameless in the limitation of his or her parenting role. See Sorentino I, supra, 72 N.J. at 132 (noting that "[t]he possibility of serious psychological harm to the child in this case transcends all other considerations[,]" including a claim that the adversely affected biological mother had been coerced into giving up her child).

We are therefore satisfied that the presumption in favor of the natural parent was rebutted here by the existence of "exceptional circumstances" and, further, by the fact that Sue and Matt are Jennie's "psychological parents" who stand in parity to Derek. Accordingly, custody here was properly determined by an analysis of Jennie's best interests. The trial court's determination of Jennie's best interests was conducted in light of the factors set forth in N.J.S.A. 9:2-4(c), giving due consideration to Derek's status as the natural parent. See V.C., supra, 163 N.J. at 227-28. As Derek concedes, that analysis supports the conclusion that it is in Jennie's best interests for Sue and Matt to retain custody of her.

IV

After filing his notice of appeal, Derek filed a motion in the trial court seeking an updated bonding evaluation, a transfer of Jennie's custody to him, and a set visitation schedule. The trial court denied the motion and awarded Sue and Matt $1500 in counsel fees. Although Derek never amended his notice of appeal to include the order he now seeks to challenge, the other parties have not objected to our consideration of these issues on that ground. We therefore exercise our discretion to address those arguments.

Derek was awarded "reasonable and liberal" visitation by the order dated August 9, 2010. In his post-judgment application to the trial court, Derek contended he had not been afforded such visitation and requested a set schedule. The record reveals that the trial court considered Derek's argument and directed the parties to use a procedure that would facilitate better communication between the parties to implement Derek's "reasonable and liberal" visitation. We discern no abuse of discretion in this order.

The application for counsel fees was made pursuant to Rule 5:3-7, which permits the court to impose an economic sanction upon a "finding that a party has violated an order respecting custody or parenting time." R. 5:3-7(a)(2). There was, however, no finding that Derek had violated such an order. Instead, the trial court relied upon Rule 1:4-8, the rule applicable to frivolous litigation, to award counsel fees. However, the procedural requirements set forth in Rule 1:4-8(b) and (c) were not satisfied by either the court or counsel. Accordingly, the counsel fees were awarded in error and must be vacated.

We reverse the award of counsel fees and remand for the entry of an order consistent with this opinion. The orders appealed from are affirmed in all other respects. We do not retain jurisdiction.

 

 

1 The Division of Youth and Family Services has since been reorganized and renamed as the Division of Child Protection and Permanency. We refer to the agency as the Division or DYFS.

2 We use fictitious names to protect the identities of the children.

3 According to Sue, Jennie never left her home following the entry of the July 12, 2007 consent order.

4 Matt was later acknowledged as an intervenor as well.

5

At the time of the trial judge's decision in August 2010, Angela was incarcerated.

6 In late 2005 to early 2006, evaluations were also conducted of Derek by a psychologist, Dr. Chester Sigafoos, and a psychiatrist, Dr. Ronald Kamm.

7 Although Derek claimed the Division failed to tell him what he needed to do to gain custody of Jennie, there are court orders dating back to June 1, 2005, that required him to submit to psychological and substance abuse evaluations and participate in individual and anger management counseling.

8 After Angela stipulated to a finding of abuse and neglect against her, the Division did not pursue a finding of neglect against Derek based upon Angela's allegations against him. The trial judge announced he would proceed with hearing the dispositional portion of this Title 9 case and thereafter the private custody application. At the time of his oral decision on August 9, 2010, the judge stated he was disposing of both FN-13-62-08 and FD-13-383-09. The order reflecting the decision was filed under Docket No. FN-13-62-08 but also ordered that Jennie remain in the legal and physical custody of Sue and Matt "under FD-13-383-09." In his notice of appeal, Derek stated he was appealing from an order dated August 9, 2010, and listed both the FN and FD docket numbers. He later filed a motion to file one appeal from both docket numbers, which we denied. However, in light of the fact that no finding of abuse or neglect was made against Derek under Docket No. FN-13-62-08, we consider his appeal from the August 9, 2010 order to be an appeal from the custody determination under Docket No. FD-13-383-09.