NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.N and L.C., A.H., D.L., and J.R

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0272-18T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

C.N.,

          Defendant-Appellant,

and

L.C., A.H., D.L., and J.R.,

          Defendants.


IN THE MATTER OF CH.N., AL.H.,
G.N., and JU.R.,

          Minors.


                    Argued January 14, 2020 – Decided March 4, 2020

                    Before Judges Hoffman, Currier and Firko.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Cape May County,
            Docket No. FN-05-0005-17.

            David Anthony Gies, Designated Counsel, argued the
            cause for appellant (Joseph E. Krakora, Public
            Defender, attorney; David Anthony Gies, on the briefs).

            Tara K. Catanese, Deputy Attorney General, argued the
            cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Melissa H. Raksa, Assistant
            Attorney General, of counsel; Tara K. Catanese, on the
            brief).

            Melissa R. Vance, Assistant Deputy Public Defender,
            argued the cause for minor CH.N. (Joseph E. Krakora,
            Public Defender, Law Guardian, attorney; Melissa R.
            Vance, of counsel and on the brief).

PER CURIAM

      Defendant C.N. (Cheryl) 1 appeals from an October 4, 2017 order denying

visitation with her oldest daughter CH.N. (Cathy) and terminating Cathy from

the litigation. Cheryl contends that the Family Part judge erred because she only

relied on Cathy's preference not to see her mother and did not give the parties

an opportunity to present expert evidence as to whether Cathy would benefit

from additional services. After a review of the contentions in light of the record

and applicable principles of law, we affirm.


1
  We use initials and pseudonyms to protect the parties' confidentiality and for
the ease of the reader. R. 1:38-3(f)(2).
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      During the summer of 2016, the New Jersey Division of Child Protection

and Permanency (the Division) received several referrals regarding Cheryl, her

neglect of the children living with her and the uncleanliness of the home. In

July 2016, the Division filed a verified complaint and Order to Show Cause

(OTSC) for the care and supervision of Cheryl's four children: Cathy, born in

December 2004; AL.H., born in March 2007; G.N., born in May 2009; and

JU.R., born in October 2012. Each child has a different father.

      Cheryl's history with the Division dated back to 2007. At that time, Cheryl

alleged Cathy's father, Louis, had sexually abused Cathy. While the Division

initially had custody, care, and supervision of Cathy, custody was transferred to

Louis later that year. Cheryl had supervised visits. In 2009, the litigation was

terminated under a mediated consent order. Louis was the primary residential

parent. Cheryl and Louis also litigated custody and visitation issues under an

FD docket.

      Cathy was still living with Louis at the time of the OTSC hearing in 2016.

Cheryl had parenting time every other weekend.

      In the months before the 2016 Division filing, a physician treating Cathy's

sister became concerned that Cheryl suffered from factitious disorder imposed




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on another (FDIA), previously known as Munchausen syndrome by proxy. 2

Another physician reported during a Division investigation that Cheryl suffered

from delusional parasitosis. 3 As a result, Cheryl was referred for a psychological

evaluation.   The May 2016 evaluation recommended Cheryl comply with

supportive therapy and undergo a psychiatric evaluation.

      On the return date of the OTSC in August 2016, Cheryl advised the court

she had recently voluntarily admitted herself into an inpatient psychiatric

treatment facility because she was having homicidal thoughts.            She had

completed the program and agreed to cooperate with the services requested by

the Division. Cathy continued to live with Louis.

      Cathy was attending counseling at Jewish Family Services (JFS) and did

not want any in-person or telephone contact with Cheryl until her mother was



2
  FDIA occurs "when someone falsely claims that another person has physical
or psychological signs or symptoms of illness, or causes injury or disease in
another person with the intention of deceiving others." Factitious Disorder,
Mayo      Clinic,   https://www.mayoclinic.org/diseases-conditions/factitious-
disorder/symptoms-causes/syc-20356028 (last visited Feb. 18, 2020).
3
  "People with delusional parasitosis have an unshakable, false belief that they
are infested with insects, worms, mites, lice, fleas, or other organisms." James
G. H. Dinulos, Delusional Parasitosis, The Consumer Version of the Merck
Manuals, https://www.merckmanuals.com/home/skin-disorders/parasitic-skin-
infections/delusional-parasitosis (last modified Sept. 2018).


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well. Cathy also stated her mother forced her to write a letter to the Division

several months earlier in which Cathy said she was afraid of her father and he

had inappropriately touched her. The court did not grant Cheryl visitation with

Cathy.

      In December 2016, Cathy requested to be terminated from the litigation.

The court denied her request and ordered her to continue counseling with JFS.

Although the court also ordered the Division to refer Cheryl and Cathy for

therapeutic visitation, the Division was permitted to elicit input from Cathy's

therapist on this issue.

      During this hearing, the court also considered Cheryl's psychiatric

evaluation performed in October 2016. During the evaluation, Cheryl admitted

she was hospitalized for five days in August 2016 for "homicidal ideation." She

denied     "any    current   suicidal       ideations/attempts   and   homicidal

ideations/attempts," and reported she was receiving mental health treatment.

Cheryl recounted a past and current history of taking psychopharmacological

medications. She also admitted to a recent use of marijuana but denied using

any other illegal substances. Cheryl reported attending outpatient substance

abuse treatment.




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      The psychiatrist diagnosed Cheryl with unspecified anxiety and

depression disorders, as well as post-traumatic stress disorder.          It was

recommended that Cheryl undergo individual therapy, co-parenting training

classes, follow-up medical care, attend a substance abuse relapse prevention

program, domestic violence support group and group therapy and be prescribed

psychotropic medication.

      Cathy's request for an interview with the court was granted. During the

January 2017 interview, Cathy told the court she was twelve years old, in the

sixth grade and was a straight A student. She wanted to continue living with her

father and did not want to see her mother at that time. Cathy said her mother

was "crazy." She described incidents where Cheryl had contacted one of Cathy's

friends asking the friend to tell Cathy she wanted to visit her and that Louis was

a bad person. Cheryl also told Cathy that Louis had abused her.

      On many occasions when Cathy had visited her mother, Cheryl would not

be home. Cathy described one visit when Cheryl got drunk with friends and left

the house in the middle of the night. She also said her mother smoked in the

shed. She said it was not cigarettes. Cathy was told to watch the six little kids

in the house. The house was filthy and there was nothing to eat. Cathy did not

want any communication with her mother.


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        In a February 2017 order, the court declined to order any therapeutic visits

between Cheryl and Cathy. The decision was based on Cathy's unwillingness to

engage in visitation and the lack of evidence that visitation was in her best

interest.

        The parties appeared before a different judge in March 2017.         Cathy

reported she had completed therapy at JFS and again requested she be terminated

from the litigation. Cheryl opposed the request. Cheryl also refused to submit

to a drug screen.

        When Cheryl requested permission to attend Cathy's spelling bee, Louis

and Cathy objected, advising the court that Cheryl could view it remotely. Louis

and Cathy also requested there not be any visits between Cheryl and Cathy, and

Louis requested he also be dismissed from the litigation. The court denied

Cheryl's request regarding the spelling bee, ordered sibling visits, denied the

request to dismiss Cathy and Louis from the litigation, and declined to order

therapeutic visitation between Cathy and Cheryl. The court also ordered JFS to

provide a discharge summary report.

        In April 2017, the court 4 reviewed the report from JFS. The therapist

indicated that Cathy attended eighteen bi-weekly sessions between June 14,


4
    A third judge presided over this hearing.
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2016 and December 12, 2016. Cathy had undergone trauma-focused cognitive

behavioral therapy where she described her "trauma" as "neglect and possible

substance abuse by parent." During her initial evaluation, Cathy had appeared

"anxious and guarded." She reported "symptoms of trouble sleeping, becoming

easily upset, and difficulty trusting people." Cathy also expressed concern over

the safety of her siblings during her visits, due to Cheryl's frequent absence from

the home.

      The therapist noted Cathy had improved with treatment, specifically in the

areas of coping skills, increased socialization, ability to share thoughts and

feelings with family members, better sleep, less agitation, and an ability to

verbalize thoughts and feelings related to her trauma.        However, she still

expressed concern for her siblings and was unwilling to visit with her mother.

Therapy was noted as an option for the future.

      During a hearing in June 2017, Cathy again requested a dismissal from

the litigation. She advised the court that Cheryl had attended Cathy's sixth grade

graduation without securing permission beforehand. Despite the no contact

provision, Cheryl had chased after Cathy several times and yelled at her loudly

during the ceremony. The court ordered Cheryl to undergo additional therapy

because of mental health concerns.


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      In October 2017, a fourth judge presided over the case and interviewed

Cathy, who renewed her request to terminate the litigation. Cathy described

several incidents regarding Cheryl. On one occasion, Cheryl's house had no

running water. Because Louis is a plumber, Cheryl claimed he broke into the

house and turned off the water. Cathy said Cheryl frequently lied – telling Cathy

she was going to the store, and not returning for several hours. Although Cathy

said she missed her mother, she was adamant she did not want to see her.

      In renewing her request to terminate the litigation, Cathy, through the Law

Guardian, reminded the court that the dispute over custody and visitation had

lasted more than ten years. Because Cathy had concluded her therapy, she

asserted there was no need to remain in the litigation as she was not receiving

any services.

      The Division and Louis supported Cathy's wish to terminate the litigation;

Cheryl did not. Louis testified that Cathy "just wants to be a kid," and although

she loved her mother, she needed time to heal. Louis also stated he had observed

improvements with Cathy following therapy.

      The court advised that its initial inclination was to facilitate visitation in

the presence of a third party. However, after listening to Cathy and Louis and




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reviewing the JFS report, the court concluded that forcing Cathy to visit her

mother would cause her more harm.

      In arriving at its determination, the court found Louis's testimony "very

credible," and noted he had primary legal and physical custody of Cathy set in

an FD order prior to the Title 30 litigation. The court also observed that Cathy

was extremely stressed when discussing Cheryl. Finally, the court relied on the

report from JFS, noting Cathy had reached her goals, she was not ready to see

her mother, but if she chose to continue her relationship with her mother,

"therapy was always an option to revisit in the future."

      The October 4, 2017 order terminated Cathy and Louis from the litigation

and prohibited Cheryl from any contact with Cathy pending further order of the

court. Cheryl was apprised she could make an application for visitation under

the FD docket, on notice to the Division and Law Guardian. Sibling visits were

continued.5

      On appeal, Cheryl argues the court erred in solely relying on Cathy's

preference in its decision to terminate Cathy from the litigation.




5
   The FN litigation as to the other three children was terminated without
objection in August 2018.
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      Our review of a Family court's decision is limited. In re Guardianship of

J.N.H.,  172 N.J. 440, 472 (2002). "The general rule is that findings by the trial

court are binding on appeal when supported by adequate, substantial, credible

evidence." Cesare v. Cesare,  154 N.J. 394, 411-12 (1998) (citing Rova Farms

Resort, Inc. v. Inv'rs Ins. Co. of Am.,  65 N.J. 474, 484 (1974)). Particular

deference should be given to a trial judge's credibility determinations and to "the

family courts' special jurisdiction and expertise . . . ." Id. at 413. Unless the

trial judge's factual findings are "so wide of the mark that a mistake must have

been made," they should not be disturbed, even if the reviewing court would not

have made the same decision. N.J. Div. of Youth & Family Servs. v. M.M.,  189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc.,

 233 N.J. Super. 65, 69 (App. Div. 1989)).

      Here, after investigating a referral regarding Cheryl's care of her children,

the Division filed an application for the care and supervision of the children and

for other necessary relief. At the time and for the prior nine years, Cathy lived

with her father, who had legal and physical custody of her under an FD order.

After a summary hearing, the court issued an order for the relief requested as it

was satisfied that the Division's care and supervision was in the "best interests"




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of all the children. N.J. Dep't of Children & Families v. I.S.,  214 N.J. 8, 35

(2013) (quoting  N.J.S.A. 30:4C-12).

      Although a child protection order is limited to a period of six months from

the date of entry, the court may extend the time if it determines that continued

care and supervision is still in the best interests of the child.  N.J.S.A. 30:4C-

12; I.S.,  214 N.J. at 37-38. The litigation should be dismissed only when the

Division's services or supervision, or both, are not needed to facilitate the best

interests of the child. N.J. Div. of Youth & Family Servs. v. T.S.,  426 N.J.

Super. 54, 66 (App. Div. 2012). Relief granted under  N.J.S.A. 30:4C-12 "can,

and will, vary in each unique familial circumstance because best-interests-of-a-

child determinations are extremely fact-sensitive and require tailored relief

based on those circumstances." I.S.,  214 N.J. at 38.

      The "best interests" analysis requires the court to consider a number of

factors, including the safety of the child, the fitness of the parents, and the child's

preferences.  N.J.S.A. 9:2-4(c). While a child's preferences must be considered

by the court, they are not the controlling factor in determining whether a parent 's

constitutional right to visitation should be denied. Wilke v. Culp,  196 N.J.

Super. 487, 498 (App. Div. 1984).




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      When the court terminated Cathy from the litigation, the case was over

fifteen months old. In addition, Cathy had been subjected to her parents' ten-

year custody and visitation battle.         This included Cheryl's repeated

unsubstantiated allegations that Louis had sexually abused Cathy. As a result

of the allegations, Cathy had completed eighteen sessions of therapy. JFS noted

Cathy's improvement and that she did not wish to see her mother. The therapist

advised that Cathy was not ready for contact with Cheryl.

      Cathy told several judges she wanted to stop the compelled visits and

explained her reasons why.      The fourth judge described her "disturbing"

observation of Cathy's extreme stress when she talked about her mother. She

also noted Louis's testimony regarding the changes he had seen in Cathy since

her therapy sessions but also explained that she needed to be a normal kid. Louis

was confident that when Cathy chose to resume a relationship with her mother,

she would do so. And, he stated he would wholly support his daughter when

she made that decision.

      The court supported its decision to terminate Cathy from the litigati on

with the testimony from Louis, in camera interviews of Cathy, Division records,

the JFS report, and Cheryl's failure to complete her referred therapy services.




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The court also noted that when the Division filed for care and supervision, Louis

had physical custody of Cathy; Cheryl had visitation.

      The court has not deprived Cheryl of a remedy to change the visitation

determination. Under the termination order, Cheryl was instructed she could

raise the visitation issue under the FD docket.

      We are satisfied the court's determination to terminate Cathy from the

Title 30 litigation was supported by its review of the evidence and its finding

that continued visitation would harm Cathy and would, therefore, not be in her

best interest. There was no evidence presented to controvert that finding.

      Affirmed.




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