F.A. v. C.M.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

F.A.,1

Plaintiff-Respondent,

v.

C.M.,

Defendant-Appellant.

________________________________________________________________

April 14, 2014

Argued February 25, 2014 Decided

Before Judges Espinosa, Koblitz and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-861-09.

Michael Confusione argued the cause for appellant (Hegge & Confusione, L.L.C., attorneys; Mr. Confusione, of counsel and on the brief).

Carly Steinberg (Perez & Cedeno, P.C.) argued the cause for respondent.

PER CURIAM

Defendant C.M. (mother) appeals from a January 29, 2013 order denying her recusal motion and her request to suspend plaintiff F.A.'s (father's) visitation with the parties' daughter and continuing all prior orders entered. She also appeals from a provision in an August 17, 2012 order directing her to pay for supervised visits between father and child, the reconsideration of which was denied orally by the judge as untimely. We affirm.

The parties were divorced in 2009, three years after their daughter was born. Following their divorce, the parties bitterly litigated child support, parenting time, alimony, and other issues. To fully communicate the contentious nature of the proceedings, we recite in some detail the proceedings beginning in 2011.

In February 2011, the Family judge heard oral argument on father's motion regarding visitation time and parenting decisions, which asked the court to find mother in violation of litigant's rights and to enforce his parenting time. The judge also heard mother's cross-motion accusing father of being in violation of litigant's rights dealing with alimony, child support, visitation time, and parenting decisions.

The judge found father to be in violation of litigant's rights for failure to pay alimony and child support and awarded mother $2000 in counsel fees. Regarding parenting time, father argued that the child was so overscheduled with extracurricular activities that his time with her was mere formality. The judge expressed concern over the amount of activities the child was enrolled in, stating that "I think the new operative term is helicopter parents where there are some parents that just need to constantly have the child doing something and constantly be around." The judge, however, refused to pull the child out of the activities until the programs she was enrolled in expired, at which point the parties were to reassess the number of activities she would participate in.

In April of 2011, mother reported to New York child welfare authorities that her daughter had reported that the child's father had been sexually abusing her.

On May 2, 2011, Dr. Jocelyn Brown of New York evaluated the child for signs of sexual abuse. Dr. Brown's report, which was not released until May 11, states that the child's physical examination was "[n]ormal seen in non-abused children, but does not rule out abuse." The report goes on to state, somewhat confusingly, that the "examination is normal and consistent with the history of genital digital contact described by the child. [T]he consistency of the disclosures over time, the genuine report of the mother and the lack of custody issue at this time make this report very suspicious for sexual abuse and inappropriate sexual behavior." On May 3, 2011, mother filed an order to show cause seeking to suspend father's parenting time in light of the allegations of abuse. On that same day, father's parenting time was suspended pending the return date of the motion. On May 12, 2011, mother, having received and submitted Dr. Brown's report to the court, filed another order to show cause seeking to further suspend father's parenting time. Argument was heard the following day, May 13. During argument, the judge stepped off the bench to call Dr. Brown in an effort to determine the foundation for the report. Neither party objected to the judge making the phone call. The judge did not reach Dr. Brown on May 13, but spoke to the doctor's assistant instead. It is not clear from the record when the judge spoke to Dr. Brown directly.

Mother represents that the judge made incorrect factual statements during the phone call to Dr. Brown regarding mother's motives. According to the judge, she informed Dr. Brown that father had trouble with parenting time because mother enrolled the child in a substantial number of extracurricular activities which took up much of her free time. Dr. Brown said she had not been aware of this issue. The judge also informed the doctor, for the first time, that mother was seeking custody, that the New Jersey Division of Youth and Family Services2 (DYFS or the Division) had filed an ancillary report, and that "they all lived in New Jersey." Dr. Brown replied that she would "have to rethink this one."

New York Child Protection Services (CPS) investigation notes detail that the New York Assistant District Attorney declined to prosecute father because Division reports did not indicate abuse, but instead that mother was coaching the child into falsely reporting that she was molested. The notes also state that Dr. Brown was informed by the judge that mother was seeking sole custody and was contemplating moving away with the child. The investigation note concludes: "Dr. Brown told CPS that the Judge stated that she has her reservations and wanted more information and assessments before making any decisions regarding the abuse."

On July 18, 2011, the Division substantiated father for abuse. Around this same time, both the Audrey Hepburn Children's House (AHCH) and New York's Administration for Children's Services (ACS) investigated the abuse allegations as well. AHCH substantiated father for abuse initially. ACS did not substantiate father, rather, it substantiated mother for emotional abuse for coaching the child to report sexual abuse.3

By order dated August 22, 2011, the judge terminated all contact between father and the child until further notice of the court. The order also granted mother sole responsibility for the child's welfare.

Father's loss of contact with the child lasted for approximately a year, ending in August 2012 when the Division and AHCH reversed their substantiation of father's abuse and deemed the allegations of abuse against him unfounded. In the wake of these determinations, father filed an order to show cause on August 15, 2012, seeking to reinstate his parenting time, begin reunification therapy, lift the no contact order, and suspend mother's parenting time, among other things.

On August 17, 2012, the judge ordered, in relevant part, that the parties enjoy joint custody; that the no contact order against father be lifted; that reunification therapy for the child and father commence immediately; and that father have supervised parenting time for two hours on Tuesdays and Saturdays at mother's expense.

The supervised visitation between father and the child did not go well. In a report dated January 28, 2013, Dr. Heidi Flax, the visitation supervisor, informed the court that the visits were "extremely difficult to impossible" to carry out. The child became hysterical in father's presence. She did not want to see her father again. Dr. Flax, however, recommended only that therapy proceed at a reduced frequency. Her report notes that mother's presence at the visitation site caused a great deal of stress for the child. The judge ordered mother not to be present in the office during visits.

In January 2013, mother filed a motion seeking to have the judge recuse herself and to terminate father's supervised visits and nightly Skype calls. The judge denied the motion in its entirety. Mother also asked for reconsideration of the August 2012 order requiring her to pay for the supervised visits. This request was orally denied as untimely.

I

Mother argues that the judge should have recused herself because the judge "developed a personal bias against [her] that infected the fairness of not only the New Jersey family court proceeding but the investigation by New York child services[.]"

A motion for recusal is reviewed for abuse of discretion. State v. McCabe, 201 N.J. 34, 45 (2010). "The challenged judge who hears the motion should clearly set forth the objective and subjective bases for the ultimate decision." Panitch v. Panitch, 339 N.J. Super. 63, 67 (App. Div. 2001) (internal citation and quotation marks omitted). Proof of actual prejudice is not required. Ibid. Rather, "the mere appearance of bias may require disqualification" if a litigant's belief of unfairness is "objectively reasonable." Ibid. (quoting State v. Marshall, 148 N.J. 89, 279, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)); R. 1:12-1; Canon 3(C)(1)(a)of the Code of Judicial Conduct.

The trial judge was patient and accommodating to both parties. Mother, when not represented by counsel, frequently interrupted the judge, but was almost always allowed to continue. Mother or her counsel were heard on every motion she made before the court, often at length. And perhaps most importantly, despite acknowledging that father could very well have suffered loss of contact from his child because of a false allegation coached out of the child by her mother, the judge ruled in favor of the mother with regard to suspending father's parenting time, in addition to not taking the child out of her scheduled activities, awarding mother fees, and finding father in violation of litigant's rights for failure to pay child support. Nothing in the record suggests that mother's belief that the judge was biased is "objectively reasonable."

It is true that the judge had a communication with an expert and provided her with factual statements that mother vigorously contends were false, specifically, that mother was overscheduling the child; that mother was asking for sole custody; and that mother was a flight risk. Based on the information before us, we have no reason to believe the judge provided misinformation to the New York expert. The judge had found that the mother's over-scheduling of the child interfered with the father's visitation. The judge's use of the term "helicopter parents" does not indicate a bias against mother, but a concern for the child.

II

Mother argues that we should reverse the judge's order directing supervised visitation for father. We review a family court's decisions regarding custody and visitation for abuse of discretion. Levine v. Bacon, 152 N.J. 436, 442 (1998) (per curiam). Visitation between a child and the non-custodial parent is "the presumptive rule." V.C. v. M.J.B., 163 N.J. 200, 228 (2000); see also N.J.S.A. 9:2-4 (requiring that the rights of both parents be considered in custody decisions). The denial of visitation rights "should be invoked only in those exceptional cases where it clearly and convincingly appears that the granting of visitation will cause physical or emotional harm to the child[] or where it is demonstrated that the parent is unfit." Id. at 228-29 (internal quotation marks and citations omitted).

This is not one of those exceptional cases. Mother relies on Dr. Flax's report where she notes that the visits "have become more traumatic & damaging than beneficial . . ." but omits the rest of the sentence, which concludes "and I would recommend maybe only once a week instead of two[.] [T]he second visit could be the therapeutic visit and not be added as a third."

This report does not provide clear and convincing evidence that suspension of father's visitation was warranted and the judge did not abuse her discretion in refusing to do so.

III

Mother argues that the decision requiring her to pay the costs of supervised visitation between the child and her father should be reversed because the judge did not take into consideration the parties' ability to pay and payment of expert fees as set forth in Rule 5:3-5(c). The judge orally denied mother's motion for reconsideration because it was untimely.

A litigant has twenty days to move for reconsideration of an order of the trial court. R. 4:49-2. The order requiring mother to pay for the supervised visits between the child and her father was issued on August 17, 2012 and was to be served by the moving party, mother, within seven days of that same day. The mother raised the issue before the judge for the first time in her papers submitted on January 23, 2012.

As father's attorney acknowledged at oral argument, mother is free to move for a new allocation of supervised visitation costs given the long duration of supervised visitation. The judge could then examine the financial and nonfinancial factors set forth in Rule 5:3-5(c), including "the reasonableness and good faith of the positions advanced by the parties both during and prior to trial[.]" R. 5:3-5(c)(3).

Affirmed.

1 We use initials to protect the identity of the child.

2 Now known as the Division of Child Protection and Permanency.

3 ACS later reversed its substantiation of mother for emotional abuse.