D.C. v. V.C

NOT FOR PUBLICATION WITHOUT THE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-2362-19T2

D.C.,1

         Plaintiff-Appellant,

v.

V.C.,

     Defendant-Respondent.
________________________

                   Submitted January 19, 2020 – Decided January 27, 2021

                   Before Judges Sabatino and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Cumberland County,
                   Docket No. FM-06-0479-15.

                   Paul H. Scull, Jr., attorney for appellant.

                   Respondent has not filed a brief.

PER CURIAM



1
  We use initials and pseudonyms to protect the welfare of the parties' minor
children. R. 1:38-3(d).
      In this unopposed appeal, D.C., the father of the parties' two minor

children C.C. and D.C.,2 seeks relief from the Family Part's January 3, 2020

order denying relief with respect to the children's alleged educational neglect.

Specifically, the father urges that remedial action is warranted to address the

apparent failure of the children's mother, V.B. (formerly known as V.C.) to

provide adequate instruction to the children through home schooling.

      For the reasons that follow, we vacate several portions of the January 3,

2020 order, remanding this case for additional evaluations and a plenary hearing,

yielding a more informed basis for the trial court to reconsider measures that

may be warranted to assure the children's educational best interests.

      The parties are the parents of Claudia, who was born in September 2010,

and her younger brother Derek, who was born in September 2012. The parties

divorced in June 2017, entering into a Marital Settlement Agreement ("MSA")

with the mutual assistance of counsel. Under the terms of the MSA, the parties

agreed to share joint legal and physical custody of both children. The parties

designated the mother the parent of primary residence and the father the parent

of alternate residence.


2
   Because the father and the son share the same initials "D.C.," we hereafter
refer to the former as "the father" and the latter by the pseudonym "Derek." We
shall refer to the daughter, C.C., by the pseudonym "Claudia."
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      In her role as primary custodian, the mother decided, against the father's

wishes, to provide both children with home schooling rather than enroll them in

the public-school system. She noted in her motion certification that the father

himself was home schooled as a child.

      As time passed, the father became increasingly concerned about the

effectiveness of the children's home schooling. On the other hand, the mother

has insisted she has adequately met the children's educational needs. According

to the mother, the father has unjustifiably complained about the quality of her

home schooling simply to harass her. 3

      In April 2019, a pediatrician with the CARES Institute performed an

examination of Claudia at the behest of the Division. The pediatrician, who is

an associate professor of pediatrics, authored a sixteen-page report covering a

range of concerns, including educational needs. At the time of the CARES

report, Claudia was eight years old and would have been in the third grade.

      The CARES report identified numerous concerns about deficiencies in

Claudia's home schooling. Among other things, the expert noted that Claudia



3
  The record shows the parties have had numerous disputes concerning the
welfare of the children, some of which have prompted the involvement of the
Division of Child Protection and Permanency ("the Division"). We do not
address those issues here except for the contentions of educational neglect.
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was "unable to read even a very basic book" and "could not read a full sentence."

The expert further noted that Claudia was "unable to complete very simple

mathematics problems such as addition and early multiplication." The expert

opined that these shortcomings were "very concerning for educational neglect."

More specifically, the expert recommended that Claudia and her brother be

"enrolled in school," and that Claudia receive "a formal evaluation of her

cognitive abilities and her academic achievement to ascertain whether or not she

is getting appropriate education."

      Following the CARES report, the father moved in the Family Part for,

among other things, an order directing the children to be evaluated by a child

psychologist and to be tested by the public school. The mother, through counsel,

opposed the motion, and cross-moved herself for various items.

      After considering the parties' submissions, the trial court issued a lengthy

order on September 9, 2019 which addressed a variety of issues, including the

children's schooling. Within that order, the trial court stated it "finds that there

is significant circumstantial evidence from the NJ CARES [I]nstitute that causes

the Court concern and that warrants further investigation [so as] to err to the

side of protecting the children." Although the court declined at that point to

make any finding the children had been abused or neglected, the court did order


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the parties to "execute the necessary authorizations and documentation to have

the minor children evaluated educationally by the [local public-school district]

as soon as possible."

      In addition, the court's September 9, 2019 order granted, with certain

modifications, the father's request that the children be evaluated by a child

psychologist, as had been recommended by the CARES expert. Toward that

end, the court instructed each party to propose the names of three acceptable

psychologists who could undertake the evaluation.         The father's counsel

submitted three names and the mother's counsel submitted two.

      As directed, the local elementary school performed an educational

screening of both children in mid-September 2019, utilizing various assessment

tests in reading and math.     The screening revealed that each child was

significantly behind his or her peers, as much as up to two grade levels. The

screening results were presented to the trial court, and both parents supplied

additional submissions. The father advocated that the children be immediately

enrolled in the public school. The mother opposed such action, contending that

the screeners unfairly used milestones for the end of the academic year to

evaluate the progress of the children who had not yet completed the year.




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      The case returned to court in December 2019. After hearing oral argument

but no testimony, the court altered course and determined that no further steps

were warranted to address the children's educational concerns. The court found

it significant that the mother, as the parent of primary residence, had the

prerogative under  N.J.S.A. 18A:38-25 to choose home schooling for the children

in lieu of traditional public education. The court further recognized that neither

the Division nor the school district had seen fit to initiate any steps to require

the children to attend the elementary school. In addition, the court expressed

concerns that the children might react adversely to being made subject to further

testing and evaluations while their parents fought and litigated over their

schooling.

      Having reflected on the situation in this manner, the trial court issued an

order on January 3, 2020, denying the father's motion in nearly all respects.

Among other things, the order declared the court "will not interfere with [the

mother's] home schooling of the minor children," and denied the father's request

to have them enrolled in the public school. The order further denied the father's

request for the children to undertake comprehensive psychological evaluations,

and likewise denied his requests for risk assessments. Further, the court denied

the father's request for the children to switch to a counselor approved by the


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Division's case worker, although the court did order both parties "to follow any

recommendations of the [Division]." The court did keep intact a provision

within its September 2019 order requiring the mother to consult and confer with

the father concerning "all major non-emergent medical, educational, and issues

pertaining to religion." Although not embodied in the order, the court orally

urged the mother at the motion hearing to be more attentive to the children's

educational needs.

      In his appeal of the court's January 3, 2020 order, the father argues the

trial court gave too much deference to the mother as the primary custodial

parent, and failed to take sufficiently into account the children's best interests.

The father requests that the matter be remanded for a plenary hearing and the

completion of psychological evaluations and academic testing of both children.

The mother has not filed a brief in opposition to the appeal.

      The polestar of our state's laws involving custody and other post-divorce

matters affecting minor children is the best interests of the child. See, e.g.,

 N.J.S.A. 9:2-4(a) to (c); Pascale v. Pascale,  140 N.J. 583, 588 (1995). Where,

as here, divorced parents share joint physical and legal custody of their children,

the parent of primary residence has some presumptive latitude over the

children's day-to-day affairs. Pascale,  140 N.J. at 599-600. Nonetheless, that


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primary caretaker is not permitted to take unilateral actions that are

demonstrably harmful to the children's best interests. Id. at 596.

      Here, there are substantial indicia in the record from neutral sources such

as the CARE pediatrician and the school testing professionals that both Claudia

and Derek are seriously behind in their educational progress. Although we

appreciate the trial court's understandable concern about the children being

subjected to excessive testing or evaluations, the record we have been provided

raises considerable issues of educational deficiencies that must be more deeply

explored.

      The right of a parent to elect home schooling under  N.J.S.A. 18A:38-25

is not unlimited. The children must receive "academic equivalence."  N.J.S.A.

18A:38-25; see also State v. Massa,  95 N.J. Super. 382, 390 (Law Div. 1967).

The trial court misapplied its discretion in declining to have these educational

issues investigated and addressed more thoroughly.

      We accordingly vacate paragraphs 1 through 4 of the January 3, 2020

order, and remand for further proceedings, which shall include evaluations by a

court-appointed child psychologist and updated academic testing. Following

such reports, the court shall conduct an evidentiary hearing to resolve any

disputed questions of fact.    To plan these remand activities, the court is


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instructed to conduct a case management conference within twenty days. 4 We

make no determination as to whether or not the children shall be enrolled in the

public school, as that ultimate decision will rest with the Family Part after the

current evidence concerning the children's status and best interests is more fully

developed.

      Vacated in part and remanded. We do not retain jurisdiction.




4
  The court is free to include in the remand proceedings any other issues relating
to the children's welfare beyond the educational matters that are the subject of
this appeal.
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