Opinion
DOCKET NO. A-3378-13T2
02-20-2015
E.D., Plaintiff-Appellant, v. D.C., Defendant-Respondent.
E.D., appellant, argued the cause pro se. Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-0174-04. E.D., appellant, argued the cause pro se. Respondent has not filed a brief. PER CURIAM
Plaintiff E.D. (Eunice) appeals from the Family Part's February 21, 2014, order, issued after emergent and plenary testimonial hearings, denying her application for temporary custody of, or visitation with, her granddaughter, T.C. (Teresa), who was then twelve-and-a-half years old. As we are not satisfied that the court's fact findings are adequately supported by substantial credible evidence in the record, we are constrained to reverse.
I.
Teresa is the child of defendant D.C. (Darla) and plaintiff's son, A.D. (Adam), who died in December 2010. The parents never married and lived separately. Prior to Adam's death, Darla maintained residential custody of Teresa. Adam obtained an order granting him parenting time on Saturdays and Sundays, 10:00 a.m. to 6:00 p.m. Eunice would see Teresa during those visits. In the summer of 2008, Darla allowed Teresa to spend the summer at Eunice's home. However, the relationship between Darla and Adam remained highly contentious. In 2009, pick up and drop off of Teresa occurred at the Paterson Police Department. Adam allegedly sought full custody of Teresa in June 2009.
The record includes an unsworn 2009 letter by Adam to the court including allegations that Darla engaged in various instances of assaultive and inappropriate behavior that harmed or threatened to harm Teresa. Our independent review of the Family Automated Case Tracking System, of which we take judicial notice, see N.J.R.E. 201(b)(4), indicates five separate domestic violence matters involving the parents. Darla was the plaintiff in three cases: she was denied final relief in one; voluntarily dismissed a second after obtaining a TRO; and obtained a final restraining order (FRO) in a third and final case in which she alleged assault in August 2005. Adam failed to obtain an FRO on a harassment-based complaint in 2003, but prevailed in what appears to be a counter-complaint in 2005. In August 2009, in the context of a domestic violence docket, the Family Part in Bergen County compelled both parents to attend parenting classes and "children in the middle" classes. The court barred the parties from discussing their disputes "or the closed DYFS case" with Teresa. The court also ordered that Teresa continue treatment and therapy at Hackensack University Medical Center, and Darla was required to provide a copy of Teresa's "therapeutic evaluation." None of these behavioral health records were presented to the trial court or are before us.
At all relevant times, Teresa has lived in Paterson with Darla; Darla's husband L.R. (Lawrence) (whom she married sometime while these proceedings were pending); and their two sons, who are roughly five and seven years younger than Teresa. Darla testified that while she was unemployed, she used Teresa's Social Security survivor's benefit to support her household. On the other hand, Eunice was steadily employed as a pediatric nurse and lived in East Rutherford.
According to Darla, in December 2010, she and Eunice reached an agreement permitting Eunice to have visitation. However, Darla terminated the agreement after Eunice allegedly impeded Darla's telephone communication with Teresa, and refused to shield Teresa from contact with a religion different from what Darla was teaching at home.
Eunice unsuccessfully sought custody of Teresa in the Family Part in Passaic County in 2012. The same judge who heard the instant application denied Eunice's request in September 2012. In the wake of the court's decision, Eunice stated she ceased physical contact with Teresa. Darla admitted that she barred Teresa from contact with Eunice.
We do not have before us the order or any record of the prior proceedings.
It is unclear from the record whether the court restrained Eunice from contacting Darla or Teresa. Asked at the plenary hearing whether she "honored" the court's September 2012 order, Eunice replied, "I honored that letter to the law. You know, I've honored it. I've not contacted my granddaughter."
Eunice filed the instant request for custody, or alternatively, visitation, after three incidents in May, June and July 2013. Eunice asserted that Teresa called her late one night in May, to say she was very hungry, there was no food in the house, she had no clothing or shoes that fit, and she had not received Christmas gifts from her mother, who told Teresa she didn't deserve them. She also told Eunice she was suspended from school for five days for "hit[ting] a little boy . . . in the head with a frozen ice bottle." Eunice reported the substance of the call to the Division the following Monday. She also conveyed allegations from Teresa that her mother and Lawrence physically abused her.
On June 27, 2013, Teresa called Eunice to say she had run away from home, and wanted Eunice to pick her up from a friend's house. Teresa told Eunice that her mother punished her by making her kneel on raw rice for hours at a time. She said her mother slapped her in the face, repeatedly beat her, and told her "she was not part of her family." She also claimed that her mother's fiancé beat her with a belt.
Eunice met Teresa in Paterson. Eunice claimed Teresa appeared sickly and malnourished. Also, "[h]er knees were a mess." Eunice contacted the Division of Child Protection and Permanency (Division), and the police. She explained that she did not call Darla because Darla had previously told Eunice that calling her phone is "considered harassment."
Division workers arrived after several hours. Eunice claimed that the workers returned Teresa to her mother's home. Teresa begged them not to do so, clinging to the police car's door handle. She said that Darla "was pulling [Teresa] down the street, dragging her down the street and she was kicking and yelling I don't want to go back there."
A Paterson police report documented that incident, but its trustworthiness is uncertain, as it was prepared weeks later, apparently at Eunice's insistence, and it is unclear whether the source of the information was Eunice or the preparer's own observations. The report stated that "the punishment method used did not require the juvenile to seek medical attention."
On July 9, 2013, Teresa ran away from home again. This time, the mother of her friend responded to Teresa's multiple pleas for help, and drove Teresa to Eunice's home in East Rutherford. Eunice again called the Division and the local police. According to the contemporaneous police report, Teresa told the officer, as well as Eunice and the other adult, that her mother "frequency hits her with a closed fist, pulls her by her hair and punishes her by making her kneel on rice for hours at a time." The officer noted injuries to Teresa's knees. "This officer confirmed visual bruising on both of [Teresa's] knees consistent with kneeling on something hard and unlevel." Teresa also told the officer that Lawrence "consistently hits her with a belt buckle as a form of discipline for being disrespectful." She also stated that she was afraid to disclose this to the Division worker "the last time . . . because her mother was pacing outside the door and she fear[ed] further abuse when she got home."
Eunice apparently obtained copies of text-messages that Teresa sent to the woman over a two-week period. She relied on them at an emergent hearing in this matter, but they are not part of the record before us. Eunice testified that Teresa's friend's mother was accompanied by another adult.
Division workers Lourdez Nunez and Kim Roberts responded to the police station. They spoke to Teresa, and her mother. According to the police report, the Division "determined that the allegations were unfounded" and Teresa should return home with her mother, which she did. A Division worker subsequently informed Eunice that Teresa was hospitalized several days later. At the plenary hearing, Eunice testified a Division worker informed her that after the incident on July 9, Teresa suffered a nervous breakdown, and "she had to be hospitalized and on medication."
On July 19, 2013, Eunice filed a pro se application for custody of Teresa. After hearing testimony from Eunice, Darla, and Division caseworker Lisa O'Connor, the court denied emergent relief, but determined to hold a plenary hearing.
The "application for post-disposition relief" was apparently prepared by a court staff-person. The form checked a box reflecting that Eunice sought "modification of order dated: 09/11/2012" — apparently referring to the order denying her custody in 2012. The form inaccurately referred to Eunice as the "non-custodial parent" and stated she "seeks emergent matter [sic] for custody of . . . [Teresa] as child has been running away and claims to be beaten by her mother and live in boyfriend, etc."
The court conducted the hearing informally. The court asked each party to set forth her position and the court conducted direct examination of each, and requested an oral report from the Division worker. The court did not allow or invite cross-examination. Although Eunice had brought a witness, the person was sequestered and then not recalled to the hearing. But see Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005) (disapproving, in domestic violence hearing, of the "informality of the proceedings and the failure to afford . . . essential procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses . . .")
At the emergent hearing, Eunice presented many of the allegations set forth above. She presented the East Rutherford police report, in which an officer confirmed that Teresa's knees appeared bruised.
O'Connor stated that the Division had two open investigations; at that point, the Division had made no findings of abuse or neglect; and the Division considered Teresa to be safe in her mother's home.
We are still open, we do have an open investigation. It's actually in the course of it [sic] reopened this year. We have two open investigations right now.O'Connor later testified, "We feel that [Teresa] is safe with her mother." She did not describe the services provided, or the problems they were intended to address.
We have identified, you know, some services that are beneficial to the family. We have not come to a conclusion that there is abuse or neglect at this time. The family is receiving services on their own. [Darla] has been very proactive with seeking services for [Teresa], both in the past and currently.
But like I said we're still currently open with it. We're still going to assess to see if additional services are needed. But at this point in time there definitely is conflict between [Teresa], her mother, her soon to be stepfather, and with grandma in the picture I think there is a lot of . . . animosity or some issues that are causing a lot of conflict.
But again at this point we haven't found any findings of abuse or neglect. But we are still working with the family, you know, just to make sure that all their needs are being addressed and that the appropriate services are in place.
Darla testified that Teresa had been removed from the summer school program because of disruptive behavior. She asserted that Teresa ran away in June because "there was a lot of things going on in school. I was not letting her get her way." Darla said that Teresa was being aggressive with one of the officials at school. She complained about Eunice's intrusion into her life. Darla stated that when she went to retrieve Teresa after she ran away, Teresa was defiant and refused to go. It was unclear from the testimony whether Darla was referring to the June or July incident. Darla did not directly address Eunice's allegations of corporal punishment, and the court did not inquire.
Eunice responded that she believed Teresa's behavior at school was a product of her situation in Darla's home. She asserted that when Teresa spent a summer with her in 2008, Teresa was a well-adjusted and intelligent pupil at a local private school she attended. Eunice presented an unsworn letter from the school.
The court denied emergent relief, finding no immediate, irreparable harm to the child. The court declined to place any weight on the East Rutherford police report, deeming it a "self-serving" hearsay statement. The judge stated that he was familiar with some of the facts, as the parties had been before the court before. The judge noted that the Division was providing services to the family, and concluded that Darla was "confronted with a teenager who is out of control and who needs help." The court held that it would disserve Teresa and undermine her mother's discipline if the court rewarded Teresa's misbehavior with a change in residence.
Eunice retained counsel, and the plenary hearing was held on October 24, 2013. Eunice again discussed the three incidents in May, June and July. She sought custody, or visitation, which she called a "fall-back," for the purpose of protecting Teresa from abuse. "I have to know that my granddaughter is okay. I fear for her safety."
In addition to presenting evidence of Darla's corporal punishment of Teresa, Eunice's counsel elicited other testimony to show that Teresa faced a risk of harm residing with Darla.
Although Darla initially denied suffering from mental illness, she ultimately admitted that she was hospitalized at the age of eleven or twelve after a suicide attempt; she suffered from post-partum depression as an adult; and that mental illness ran in her family. She also stated that the Division had never required her to submit to an evaluation for mental illness.
Although hearsay, Adam asserted in his 2009 letter that Darla twice attempted suicide and expressed suicidal ideation to Eunice in 2007. He also alleged that Darla struck Teresa with a closed fist in the presence of the school principal.
Darla conceded a history of assaultive behavior. She admitted she was convicted in 1996 at the age of eighteen for assaulting a police officer. She admitted having a "violent altercation" with a co-worker in 2000. She also admitted that she struck Teresa in the presence of her school principal.
Darla also addressed whether there was domestic violence in the home. She admitted that she obtained a temporary restraining order against Lawrence. She depreciated the significance of the matter, stating that the abuse was emotional and not physical, and she obtained restraints because she needed a break from him. She ultimately dismissed the TRO. Eunice's counsel sought, but was unable to obtain Darla's complaint, to test the veracity of her summary of her allegations.
Darla also admitted that she forced Teresa to kneel on rice as punishment. She defended the practice stating, "[I]t's a culture thing. That's the way I was disciplined." The record reflected that Darla was of Dominican Republic heritage. She denied that she made her daughter kneel for several hours at a time, asserting that she only kneeled for "maybe an hour or so" with "disruptions because she was defiant to that." She stated she followed the biblical admonition not to "spare the rod." Darla also asserted that the bruises observed on Teresa's knees in July resulted from Teresa's resistance to going home with her mother during the previous incident in June. "She threw herself on the ground," Darla said. Darla did not directly rebut Eunice's assertion that Teresa's knees were already "a mess" in June, before the police or Darla arrived. Darla unequivocally denied pulling Teresa by the hair.
Eunice's counsel also pressed Darla regarding Teresa's allegation that her mother struck her with a closed fist. Darla initially denied she did so, but then retreated, stating, "I might have hit her with a closed fist maybe in the past." A subsequent exchange with counsel regarding the incident in front of the principal leads inescapably to the inference that she did strike her daughter with a closed fist.
Q Did you hit her with a closed fist?She later defended the practice:
A I don't know
Q . . . You just said you don't remember whether you hit her with a closed fist or not?
A No, I'm not denying.
Q You don't think striking your daughter with a closed fist is abuse?
A That's not abuse.
Q No. That's not abuse. Well —
A It depends on to what extent you're doing it.
In another exchange on cross-examination, Darla let slip that she "beat" her daughter, but then corrected herself, stating she only spanked her. "No, I beat — well, I spanked her. That's the way I want to put it so you all won't constitute it as abuse. . . ."
Darla testified that she received no services from the Division since September 2012, aside from submitting to a drug screening. She stated that she completed a program in parenting and anger management in compliance with an order of the Bergen County court, in connection with her visitation dispute with Adam. She also attended a Value Options program, but provided no details.
Darla contended that she was a victim of false and defamatory accusations by Eunice as well as her daughter. She alleged Adam had tried to kill her when she was pregnant. She stated that Teresa had problems in school. After the July 2013 incident, Darla took her daughter to the hospital, where she remained for several days with a diagnosis of "oppositional disorder." She denied that she struck Teresa again at school in October 2013; rather, she contended that Teresa struck her.
Eunice called a third-party witness who was a friend of Eunice's daughter. The witness asserted that she overheard Darla say she "wanted to go home with God." Asked what would happen to her children, Darla reportedly responded that she would take her children with her. The witness testified that Darla's remarks created concerns about her mental state of mind. Darla denied the conversation took place, and denied expressing a suicide threat.
At the end of the plenary hearing in October, Eunice's counsel asked for custody or visitation, to assure that Teresa was safe. Upon counsel's request, the court found sufficient basis to review in camera the Division's records beginning with those pertaining to the May 2013 incident, to determine whether they should be disclosed to the parties. Also upon counsel's application, the court agreed to conduct an interview of the child. Counsel also orally applied for an order requiring Darla to submit to a psychological evaluation, and compelling the Division to conduct a new investigation.
In accord with Rule 5:8-6, counsel submitted questions for the court to pose, including direct questions regarding whether Teresa was ever punched with a closed fist, or hit at home, and whether she was required to kneel on rice. The court declined to ask the questions, and failed to place its reasons on the record.
At the outset of the interview, the judge advised Teresa that her mother and grandmother would be listening to her answers in the courtroom. She promised to tell the truth. She denied that anyone talked to her about her interview or suggested what she should say.
She described her household, and her daily routines, without mentioning that she was ever the victim of corporal punishment. She portrayed a picture of a loving, peaceful household. She said her step-father treats her as if she were his own child; and her mother and father's relationship was "fine." When asked if there was anything she felt needed to change, Teresa responded she would not change a thing about her family relationships, or life at home, except for painting the walls.
Teresa admitted that she received poor grades in the first marking period, attributing it to her adjustment to a new school. She asserted that she would receive better grades in her upcoming report card. She admitted that when other people bothered her, she might yell, but did not admit resorting to physical violence, contrary to her mother's testimony. She asserted that if she misbehaved at home, her mother would take away television, or she would be unable to play outside.
She stated that she was prohibited from seeing her cousins on her father's side of the family. Asked why she ran away from home, she said, "I don't know. I really don't know why. . . . I don't have a reason." She did not allege physical abuse. Asked why she was hospitalized, she said, "Because they said if I didn't want to go home and that, I don't know. They said something must be wrong with me." She denied being afraid of anything at home.
She said she loved her grandmother, Eunice, and wished her mother and grandmother could get along. Asked whether she wanted to visit her grandmother, Teresa apparently shook her head yes, but did not speak. The judge then elicited a verbal response. Teresa said she missed Eunice. Asked if she was permitted to speak to her grandmother, Teresa responded non-verbally, in the negative. She then said her mother did not allow it. She expressed the wish that the two could get along. She stated she loved her mother and her grandmother. Asked if she wanted to continue to live with her mother, stepdad and brothers, she smiled and, again, non-verbally indicated a positive response.
At the conclusion of the interview, the court denied Eunice's application to disclose Division records, finding "the information contained [therein] is essentially what has been revealed to me by way of testimony during [the] hearing or the in camera interview that I have just conducted." The court did not address the oral application for a psychological evaluation of Darla.
The court issued its extensive written opinion and order denying relief on February 21, 2014. The court reviewed the legal standard governing a third-party's request for custody, as set forth in Watkins v. Nelson, 163 N.J. 235 (2000), and the standard governing grandparent visitation, as set forth in Moriarty v. Bradt, 177 N.J. 84 (2003). To overcome a parent's constitutional right to custody, a third-party such as a grandparent who seeks custody, must show, by clear and convincing evidence, a parent's "gross misconduct, unfitness, neglect, or 'exceptional circumstances' affecting the welfare of the child." Watkins, supra, 163 N.J. at 246. Once that presumption in favor of the parent is rebutted, the third-party must still show that "awarding custody to the third party would promote the best interests of the child." Id. at 254.
Inasmuch as grandparent visitation also may infringe on a natural mother's or father's constitutional right to parent, a grandparent "must prove by a preponderance of the evidence that denial of the visitation . . . would result in harm to the child." Moriarty, supra, 177 N.J. at 88. Once that showing is made, the grandparent must still establish that visitation would promote the grandchild's best interests, applying the factors identified in N.J.S.A. 9:2-7.1(b).
After thoroughly applying the factors under Watkins and N.J.S.A. 30:4C-15.1(a), the court concluded that Eunice had failed to show that Darla was unfit or engaged in gross misconduct, or that exceptional circumstances justified overcoming Darla's parental rights. The court also found that transferring custody would not serve Teresa's best interests, upon application of the factors in N.J.S.A. 9:2-4.
As for grandparent visitation, the court likewise found that Eunice had failed to demonstrate that depriving Teresa of visitation would cause her harm. The court held that Eunice did not have a strong relationship with Teresa of the sort present in Moriarty. The court held the harm alleged — which the court described as "primarily rice kneeling" — was not the sort that visitation would cure, even if rice kneeling posed a continuing threat of harm.
On appeal, Eunice, no longer represented by counsel, argues that the court's factual errors warrant a reversal. She argues that she should be granted visitation or custody.
She also argues that the court erred in its preliminary decision in July 2013, when it rejected the East Rutherford police report as self-serving hearsay. We do not directly address this argument as Eunice did not include the court's interlocutory order in her notice of appeal. See R. 2:5-1; see also Compagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001).
II.
Our standard of review is well-settled. We are generally required to accord deference to the Family Court's fact-finding because of the court's "special expertise" in family matters and the court's "superior ability to gauge the credibility of the witnesses who testify before it[.]" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998).
However, we owe no deference to findings that are not supported by substantial credible evidence. See, e.g., P.T. v. M.S., 325 N.J. Super. 193, 219 (App. Div. 1999) (concluding court's findings were unsupported by substantial, credible evidence). "Where our review of the record leaves us with the definite conviction that the judge went so wide of the mark that a mistake must have been made," the appellate court may independently appraise the record, where appropriate, and make its own findings and conclusions. N.J. Div. of Youth & Fam. Servs. v. N.M., ___ N.J. Super. ___, ___ (App. Div. 2014) (slip op. at 16) (internal quotation marks and citation omitted).
We are constrained to conclude that the court's threshold finding that Teresa did not suffer harm in the custody of her mother was grounded in subsidiary findings that lack sufficient, credible evidence in the record. The court inexplicably began its factual discussion by noting "[t]he central facts are not in dispute." Nonetheless, the court proceeded to summarize the competing allegations of the parties, as well as Teresa's allegations as conveyed by Eunice.
The court noted that Eunice's testimony was "rife with hearsay," which the court would appropriately weigh. We observe that Darla's testimony was susceptible to the same observation, particularly her testimony regarding Teresa's behavior at school, and her behavioral health diagnosis. However, the trial court referred only to Eunice's reliance on hearsay.
The court minimized, or ignored, the principal allegations of excessive corporate punishment — that Darla forced Teresa to kneel on rice for hours at a time; she struck Teresa with a closed fist; and Lawrence struck Teresa with a belt buckle. "[I]nfliction of excessive corporal punishment" constitutes abuse or neglect. N.J.S.A. 9:6-8.21(c)(4)(b). Striking a child with a closed fist may constitute excessive corporate punishment, depending on the nature of injury inflicted, and the surrounding circumstances. Compare Dep't of Children & Families v. K.A., 413 N.J. Super. 504, 512-13 (App. Div. 2010) (reversing finding of abuse where mother struck disobedient eight-year-old daughter who was classified with a pervasive development disorder, four or five times on the shoulder with a closed fist), appeal dismissed, 208 N.J. 355 (2011), with Dep't of Children & Families v. C.H., 416 N.J. Super. 414, 416-17 (App. Div. 2010) (finding abuse where parent inflicted corporal punishment by striking the child in multiple locations, including a vulnerable area, and causing marks), certif. denied, 207 N.J. 188 (2011) .
In this case, the court declined to make a definitive finding as to whether Darla ever struck Teresa with a closed fist, let alone determine whether it was done repeatedly, and with what effect. The court held, obviously crediting Darla's initial response in cross-examination, "She may have closed fist punched the child at some time in the past but not recently." However, the clear inference from Darla's subsequent testimony, outlined above, is that she did strike her daughter with a closed fist. Moreover, Darla did not renounce the practice, she defended it, asserting it did not constitute abuse depending on the "extent" used.
The court also minimized the admitted use of rice kneeling. The court noted that the parties disputed the source of Teresa's bruises on her knees, but declined to resolve the question. The court faulted Eunice for failing to present expert testimony on the impact of rice kneeling, and failing to present factual evidence on such details as "the amount of rice and how the rice was dispersed" as well as the physical or psychological impact on Teresa. Yet, the court declined to ask Teresa those very questions. We note that the court was obliged under Rule 5:8-6 to state on the record why it declined to ask the questions suggested by counsel, which would have probed the past acts of rice kneeling and closed-fist striking. The court failed to do so.
According to one commentator, rice kneeling is a "disciplinary practice . . . common in many Latin American countries." A. Renteln, 73 Law & Contemp. Prob. 253, 262 (2010). Notwithstanding its prevalence, it may be considered abusive if "used often, for long periods of time, or in unusual ways." Ibid. Significantly, Eunice testified that Teresa's knees "were a mess," and the East Rutherford police officer observed bruising to her knees.
Renteln cites Lisa A. Fontes and Margarita R. O'Neill-Arana, "Assessing for Child Maltreatment in Culturally Diverse Families," a chapter in Handbook of Multicultural Assessment: Clinical, Psychological, and Educational Applications (2008). Fontes and O'Neill-Arana suggest that whether a given disciplinary practice constitutes abuse depends on the frequency of the punishment; its physical and emotional effects; the duration of the punishment (noting that "being made to stand with arms outstretched for five minutes is quite different from an hour"); the severity of the punishment and the risks entailed; and the invasiveness of the punishment, stating that a punishment that interferes with natural processes or body movement "should be considered abusive." Renteln, supra, 73 Law & Contemp. Prob. at 264-65.
Perhaps, the court concluded that Darla had ceased using corporal punishment based on Teresa's statements in her interview that being grounded or the loss of television privileges were the only forms of discipline in the household. The statements, without more, were unworthy of substantial weight. The court's decision to provide simultaneous aural access to the interview undermined a principal goal of an in camera interview, which is to encourage a child to speak candidly. See Uherek v. Sathe, 391 N.J. Super. 164, 168-69 (App. Div.) (stating that making a child's comment "readily available" undermines the goal of "protecting the child's right to privacy" and creating an environment in which the child is "free to speak openly"), certif. denied, 192 N.J. 72 (2007).
Undeniably, a parent is entitled to access to a written record of a child interview. R. 5:8-6. However, a parent is barred from discussing its contents. Ibid. Implicit in that prohibition is that a parent is barred from retaliating for what the child says. However, where there is evidence that a child fears repercussions, a court would be well-advised to provide some distance between the child and the parent. For example, the court could order that the child be brought to the court by a non-party, and bar the physical presence of either parent.
The record demonstrated that Teresa had previously expressed fears of repercussions if she accused her mother of misconduct. That fear was also reflected in her hesitancy in the interview to verbally express views that she perceived her mother would not receive well. Moreover, the court declined to test whether Teresa's rosy view of her present family life was accurate, or of a piece with a false portrayal of what happened over the summer. Inasmuch as even Darla conceded that she used rice kneeling as a form of discipline, and essentially admitted use of a closed fist, the court should have adopted counsel's suggested questions, and inquired about the past use of those punishments. Indeed, Teresa's inability or refusal to provide any reason for why she ran away twice the previous summer speaks volumes about her unwillingness to speak candidly in her mother's presence.
In finding that Darla was not unfit, the court also placed great weight on a purported conclusion by the Division that the allegations of abuse were "unfounded," although the Division was aware of the "allegations of rice kneeling." The court characterized the agency's purported conclusion as critical to its decision.
The court erred in multiple respects. First, the record does not reflect that the Division reached such a conclusion after the late July incident. The Division worker who testified at the emergent hearing in early July stated that the agency had two open investigations. Although it had not yet concluded there was abuse, and the Division had returned Teresa to her home pending the investigation, the Division had not reached a final resolution. See N.J.A.C. 10:129-7.3 (defining "unfounded" to mean "there is not a preponderance of the evidence indicating that a child is an abused or neglected child as defined in N.J.S.A. 9:6-8.21, and the evidence indicates that a child was not harmed or placed at risk of harm").
The East Rutherford police report stated that the Division concluded that the allegations were unfounded.
The agency is directed to "delay the notification" when a report is unfounded "when a case is in litigation." N.J.A.C. 10:129-7.6(a).
Second, even if the Division had concluded the allegations were unfounded, the conclusion, without more, would have been an inadmissible net opinion. The record does not reflect the "why and wherefore" of the Division's opinion that the abuse allegations were unfounded. See Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). The opinion would also be hearsay, as the investigator who reached that conclusion did not testify. In particular, it is unclear whether the Division was aware of Darla's admissions in the hearing, and her defense of closed-fist striking and rice kneeling.
The conclusion would be akin to a complex diagnosis that would be inadmissible, even if contained in an otherwise admissible business record. Cf. N.J.R.E. 808.
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The court credited Darla's obviously hearsay statement that Teresa suffered from an oppositional disorder. Yet, the child's mental health records were not placed before the court, no mental health professional testified, and the court did not order a psychological evaluation of the child or the parent. The court noted that Eunice's testimony was "rife with hearsay" but declined to make the same observation with respect to Darla's testimony.
Other findings of the court either lack support, or ignore undisputed evidence. The court stated that an impediment to granting visitation or custody was a domestic violence restraining order that Darla obtained against Eunice. However, the record does not include such an order. Although the court's prior order in September 2012 denying Eunice custody may have restrained communications between the women, the record also does not include that order.
The court found that Darla's home was as stable as Eunice's. However, the court did not address the impact of the history of domestic violence in Darla's household; the conceded use of corporal punishment; the conceded history of mental illness and assaultive behavior; and the stresses that may arise from the poverty that prompted Darla to utilize Teresa's survivor's benefits. The court made no explicit finding with respect to Teresa's allegation that Lawrence struck her with a belt buckle when he deemed her disrespectful.
The court's application of the tests under Watkins and Moriarty are grounded in the findings that we deem lacking in support. Since we lack confidence in those findings, we are constrained to reverse the conclusions based thereon.
Although we conclude that the court's fact-findings lack sufficient support, we are unprepared on this record to substitute our own findings. The record is simply inadequate. In particular, there is no psychological evaluation of Teresa, or Darla. The interview of Teresa did not address key questions about the alleged mistreatment by her mother.
We therefore reverse the court's order and remand for further proceedings. The court shall order psychological evaluations of the parties and Teresa. The court shall also compel the production of Teresa's educational records and consider whether review of her therapeutic treatment records from Hackensack University Medical Center and the hospital where she was treated in 2013 would be appropriate, mindful of the appropriate privilege that would attach to such records. See N.J.R.E. 505 (psychologist-patient privilege); N.J.R.E. 506 (physician-patient privilege, including psychiatrist-patient communications); N.J.R.E. 518 (social worker-patient privilege). The court shall review in camera the record of the domestic violence action by Darla against Lawrence to determine its relevance to this case. Also, in light of the passage of time, the parties should be permitted to supplement the record with evidence pertaining to events since the hearing, as well as offer additional proofs regarding the alleged acts of abuse.
Finally, since the judge has already considered the evidence adduced at the hearing and reached certain conclusions, and because it may be difficult for the judge to consider any additional evidence without relying upon his earlier findings, we direct that the assignment judge refer this case to a different judge in the vicinage. In so doing, we intend no criticism of the judge's efforts to date or his sincerity.
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION