S.M. v. K.M. ( 2013 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6096-12T3
S.M.,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
December 26, 2013
v. APPELLATE DIVISION
K.M.,
Defendant-Respondent.
________________________________________________________________
Argued December 3, 2013 – Decided December 26, 2013
Before Judges Fisher, Espinosa and Koblitz.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris
County, Docket No. FM-14-785-12.
John M. Barbarula argued the cause for
appellant (Barbarula Law Offices, attorneys;
Mr. Barbarula, on the briefs).
James C. Jensen argued the cause for
respondent (Laufer, Dalena, Cadicina, Jensen
& Boyd, L.L.C., attorneys; Gregory D.R.
Behringer, on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
We granted plaintiff S.M. (Steve1) leave to appeal from a
June 10, 2013 order preventing him from having any contact with
his two children until the criminal charges against him are
resolved. Steve seeks supervised therapeutic visits as
recommended by two court-appointed experts. We reverse and
remand for a hearing before the Family Part judge at which the
prosecutor, criminal defense attorney and two family lawyers may
be heard. We arrive at this conclusion relying on Rule 5:12-6
and a directive from the Administrative Office of the Courts
(AOC).2 See AOC Directive 03-09 (Directive) (relating to
visitation when an abuse and neglect case is heard in the Family
Part while a parent has criminal charges pending).
Plaintiff and defendant K.M. (Kim) were married in 1998 and
had two children, Jim, born in 2004, and Mary, born in 2000. On
November 18, 2011, plaintiff was served with a temporary
restraining order (TRO) at his home based on allegations that
Steve placed a loaded BB gun to Jim's head at some point between
November 8, 2009 and November 11, 2011 and that he was abusive
to Kim. The incident with the BB gun was reported to police by
Jim's school after his teacher overheard Jim tell a friend that
1
We use initials and fictitious names to protect the identity of
the children.
2
We note that an administrative directive has the force of law.
State v. Morales, 390 N.J. Super. 470, 472 (App. Div. 2007).
2 A-6096-12T3
"daddy put a gun" to his head and "dad is mean." Defendant,
K.M. (Kim) admitted during her interview with the court-
appointed expert that there is significant ambiguity with the
child's statement.
After obtaining Steve's legally registered handgun, police
discovered illegal hollow point bullets and plaintiff was later
charged with a weapons offense.
On December 1, 2011, Steve filed a complaint for divorce.
A January 3, 2012 order reflected the parties' consent to Kim
retaining temporary custody of the children and Steve being
prohibited from any "form of contact" with Kim. The consent
order acknowledged that Kim voluntarily dismissed her TRO,
relying on the January 3 no-contact order, and that violation of
"the no contact provision of this Order by Plaintiff shall be
considered an indicia of an act of domestic violence[.]" The
consent order also provided that Steve "shall have visitation
with the minor children of the marriage in accordance with the
dictates of the Morris County Prosecutor's Office and/or the
Court[.]"
In February 2012, the family judge appointed Lee Monday,
Ph.D. to provide a visitation and custody evaluation of Steve.
A week later, Steve consented to a drug and alcohol assessment
to be performed by Gregg Benson, M.A., C.A.D.C., C.M.S.
3 A-6096-12T3
In March 2012, the Division of Youth and Family Services3
(Division) sent a letter to Kim explaining that it investigated
allegations of abuse and neglect against Steve and "determined
that child abuse was substantiated." The Division took no
further action.
On June 4, 2012, Dr. Monday submitted a detailed, single-
spaced, twenty-one page custody and visitation report with the
court after interviewing all members of the family and
administering psychological tests to Steve.4 Kim told Dr. Monday
that "[h]er children have clearly stated that they do not want
any relationship with their father. They are traumatized and
fearful of him. [Kim] does not believe that it would be best
for them to even have supervised visits with [Steve]." The
report concluded that the case "is essentially a classic he
said, she said[]" in which Kim and Steve provided starkly
different accounts of Steve's drinking habits and his
relationship with their children. Dr. Monday found it
noteworthy that the children referred to their relationship with
3
The Division of Youth and Family Services has been renamed as
the Division of Child Protection and Permanency as part of the
reorganization of the Department of Children and Families
pursuant to L. 2012, c. 16, eff. July 2, 2012.
4
We note that this report was submitted five months before Steve
was indicted, but nearly six months after Steve was served with
a criminal complaint and after a judge determined there to be
probable cause for the charges.
4 A-6096-12T3
Steve using the collective "we," which, in the expert's opinion,
made it "difficult to tell if it was truly the child's
individual perception of the father or if it is a joint
perception shared with the mother." "The goal for this
family[,]" Monday opined, "is for [Steve] and his children to
have a positive relationship." He also noted that the children
must feel safe and Steve cannot drink alcohol in their presence.
Dr. Monday recommended that the children see a psychologist or
counselor with expertise in "high conflict divorce cases" and
that Steve should join the sessions once the children develop
rapport with the counselor. "What would follow depends on how
these sessions go[,]" the report stated.
On August 3, 2012, the criminal judge maintained the "no
contact" condition of bail, explaining that he would "follow a
ruling from the family judge on that issue." On September 25,
the family judge denied Steve's request for therapeutic
visitation, finding that it would be contrary to the best
interests of the children.
On November 12, 2012, Steve was indicted for second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4a, second-
degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4a, and fourth-degree aggravated assault, N.J.S.A. 2C:12-
1b(4).
5 A-6096-12T3
On March 14, 2013, Benson released a comprehensive, single-
spaced, twenty-six page "Substance Use Disorder Evaluation" of
Steve. Benson conducted several tests that are recognized in
the field and formed the impression "from all the gathered
information that [Steve] is a consistent blackout drinker to a
degree much greater than he is aware and/or willing to admit."
Among other recommendations, Benson concurred fully with Dr.
Monday's visitation recommendations.
In April 2013, Steve again moved before the Family Part for
therapeutic visitation with his children certifying that he had
not seen them since November 2011. Steve stated that he was
seeking psychological treatment and that he should be permitted
visitation based on the recommendation of the two experts.
Without oral argument, the judge denied Steve any contact
with his children.5 In an attached statement to his June order,
the motion judge gave as his only reason that "the Court is not
convinced that granting Plaintiff's request for supervised
therapeutic visitation would be in the best interest of the
children during the pendency of the criminal proceedings against
plaintiff." We granted leave to appeal "in the interest of
5
The court did not hold oral argument, although requested by
Steve if opposition was filed, because "oral argument would not
have advanced the Court's understanding of these matters . . .
." We note that requests for oral argument should ordinarily be
honored, especially in family motions. R. 5:5-4(a).
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justice[,]" R. 2:2-4, because depriving children of all contact
with their father is an extreme measure that, if improperly
imposed and maintained for a lengthy period of time, could cause
severe injury to the children. See V.C. v. M.J.B., 163 N.J.
200, 229, (explaining that permanent denial of visitation is
such an "extraordinary proscription that it 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 children or where it is
demonstrated that the parent is unfit[]"), cert. denied, 531
U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000); see also,
N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235,
264 (App. Div. 2005) (noting that experts are increasingly
concerned about the harm to the child caused by the loss of a
parent and are "recognizing the need for continued contact with
a biological parent, even a flawed parent. . . ."). In the
context of this case, where the Division could well have filed a
complaint for abuse and neglect if Kim were not deemed a safe
custodial parent, it is instructive to look at the law
controlling child protective services cases.
Not only do parents have a constitutional right to enjoy a
relationship with their children, In Re Guardianship of K.H.O.,
161 N.J. 337, 346 (1999), children likewise have the right to
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visit with their parents after they have been removed from the
parent's home. N.J.S.A. 9:6B-4A(e). This is so even if the
children verbalize a desire not to see the parent, as happened
here.6 The Children's Bill of Rights states that a child has the
right "to visit with [his or her] parents or legal guardians . .
." or to "otherwise maintain contact with [his or her] parents
or legal guardian. . . ." Ibid. A child's best interests are
generally fostered when both parents are involved with the
child, assuring the child of frequent and continuing contact
with both parties. Finamore v. Aronson, 382 N.J. Super. 514,
523 (App. Div. 2006).
Rule 5:12-6 states that "when a criminal complaint has been
filed against a parent or guardian arising out of the same
incident as the [Division] action . . . the Family Part shall
determine the nature and scope of parental or guardian
visitation, if any . . . ." The Rule further explains that upon
"scheduling any hearing at which visitation conditions are to be
imposed or modified, the court shall provide notice to the
county prosecutor . . . ." R. 5:12-6(a)(1). The Rules of Court
also provide that if a criminal court imposes a no contact order
6
In determining custody, for example, the "preference of the
child when of sufficient age and capacity to reason so as to
form an intelligent decision" is only one factor a court must
consider. N.J.S.A. 9:2-4(c).
8 A-6096-12T3
as a condition of bail, as here, "such restrictions shall not
affect contact authorized by an order of the Family Part in a
child abuse/neglect case entered after any restrictions on
contact was imposed as part of a bail order." R. 3:26-1(b).
Here, the criminal judge specifically deferred to the family
judge as required by the Rule.
The Administrative Office of the Courts promulgated
procedures for "co-occurring child abuse and domestic violence"
cases in which an abuse and neglect case is filed concurrently
with a complaint alleging domestic violence against the child.
Directive at 2-9. The aim of the Directive was to "coordinate
the interface of policies . . . to ensure effective handling of
cases of co-occurrence[]" when there is pending both a child
protective services action and a criminal complaint against a
parent. Directive at 2.
The purpose of the directive is to provide "operational
guidance" to judges and staff in achieving the statutory mandate
of N.J.S.A. 2C:25-18, which is intended to protect "victims of
violence that occurs in a family or family like setting by
providing access to both emergent and long-term civil and
criminal remedies . . . ."
The Directive points out the provision of Rule 5:12-6
requiring the inclusion of the prosecutor and criminal defense
9 A-6096-12T3
attorney in the hearing before the family judge to determine
whether and what type of visitation to accord the accused
parent. While the State submitted a letter to the criminal
judge "strenuously" opposing any modification in bail conditions
to allow Steve to see his children, in that letter the
prosecutor simply reiterates the charges against plaintiff and
their potential sentences. We do not know whether this letter
was actually seen by the family judge.
Neither party requested a plenary hearing before the family
judge nor on appeal. Thus, we leave to the sound discretion of
the family judge whether such a hearing is necessary to decide
this temporary visitation dispute or whether oral argument and
consideration of documentary evidence is sufficient. See, Wilke
v. Culp, 196 N.J. Super. 487, 502-03 (App. Div. 1984) (noting in
a non-temporary visitation dispute that the Family Part
ordinarily conducts a plenary hearing when the facts are
contested), certif. denied, 99 N.J. 243 (1985).
We therefore remand this matter to the Family Part judge to
determine whether supervised therapeutic visitation with Steve
is in the best interests of the children. We direct the judge
to follow the procedures set forth in Rule 5:12-6 and the
Directive.
Reversed and remanded.
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