A.S. v. S.A. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-3729-22
A.S.,
Plaintiff-Respondent,
v.
S.A.,
Defendant-Appellant.
____________________________
Submitted September 12, 2024 – Decided September 30, 2024
Before Judges Berdote Byrne and Jacobs.
On appeal from the Superior Court of New Jersey, Law
Division, Family Part, Camden County, Docket No.
FV-04-3168-23.
S.A., appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Defendant, S.A., appeals from a June 20, 2023 final restraining order
(FRO) entered under the Prevention of Domestic Violence Act (PDVA),
N.J.S.A. 2C:25-17 to -35, based on predicate acts of harassment, N.J.S.A.
2C:33-4, and stalking, N.J.S.A. 2C:12-10. 1 For reasons that follow, we affirm.
I.
The parties to this action are daughter and mother. On April 19, 2023,
plaintiff, A.S., contacted the Cherry Hill Police Department, complaining that
defendant, her mother, had falsely reported her as a missing person and called
the police at other times to instigate groundless "wellness checks." Plaintiff also
related that her mother followed her on a trip to Tampa, Florida, appeared
uninvited at her hotel, surreptitiously accessed her financial accounts, and
attempted to enter her Manhattan apartment without permission. Based on these
recollected incidents, a municipal court judge authorized issuance of a
temporary restraining order (TRO) listing harassment as a predicate offense.
On April 26, 2023, in application to obtain an amended TRO, plaintiff
expanded on the history of domestic violence. Specifically, plaintiff described
how defendant accessed her bank and credit card accounts to learn of her travel
plans. After discovering plaintiff planned a trip to Australia in late December
2022 with a long-term boyfriend who her mother disfavored, defendant
1
We refer to the individual involved in this appeal by initials to protect her
privacy. See R. 1:38-3(c)(9).
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contacted the New York City Police Department, reporting that her daughter
was at risk of self-harm. Acting on that report, the NYPD detained and
transported plaintiff to a psychiatric unit at Mount Sinai Hospital, where she
remained for over six hours before being cleared for release. Because of the
delay occasioned by involuntary hospitalization, plaintiff cancelled her travel
plans. On the heels of that cancellation, she then planned a trip to Portugal in
early January 2023, again in the company of her boyfriend, D.S. Through
surreptitious means, defendant learned of plaintiff's itinerary. When plaintiff
arrived in Lisbon, she was met by Portuguese authorities, who had been told by
her mother that she was "being forced to travel against [her] will by [her]
partner." Besides these incidents, plaintiff listed six separate occasions when
defendant parked outside of her Manhattan apartment building and monitored
her, even donning a wig on one occasion to avoid detection. On another
occasion, defendant prompted police to conduct a "welfare check" at 7:30 a.m.
Based on the foregoing, a Superior Court judge authorized issuance of an
amended TRO to include stalking, in addition to harassment, as a predicate
offense.
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As proceedings began on June 20, 2023, defendant's counsel of record told
the court that his client had terminated his services. Defendant confirmed this
representation:
THE COURT: You want to represent yourself in this
matter?
DEFENDANT: Yes, yes[.] I sent a termination letter
of his services. I strongly feel I could represent myself
better. He's not familiar with my case[.] He's very busy
with other cases. So please allow myself to represent
myself today.
After further questioning and assurances from defendant that she was
indeed ready to proceed, the court commenced trial. First to testify was Sergeant
James Shields of the Cherry Hill Police Department. Sergeant Shields recounted
that defendant called on December 26, 2022, reporting that "her daughter was in
danger." She called on multiple other occasions with the same concern. In
response, the police contacted plaintiff to check on her welfare. On the third
occasion, plaintiff asked that the police "cease contacting her" for that purpose.
Sergeant Shields' next contact with the parties came on April 19, 2023,
when plaintiff completed forms necessary to request a TRO. Once the TRO was
granted, Shields served it on defendant at her listed Cherry Hill address. On
cross-examination, defendant did not challenge the substance of Shields'
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testimony, except to elicit that he did not "have a problem with any of the calls
[defendant] was making."
Plaintiff's testimony followed. She recounted the predicate acts and
history in reverse chronological order. Plaintiff detailed how her trip to Tampa
in April 2023 was disrupted when her mother unexpectedly appeared at the hotel
where she was staying and tried to persuade her to leave D.S. She perceived her
mother's surprise appearance and actions as an escalation of her prior acts of
domestic violence. Fearing for her personal safety, plaintiff reported the
encounter to the Tampa Police Department. Upon her return to New Jersey, she
contacted the Cherry Hill Police Department, which provided guidance to obtain
a TRO.
Plaintiff also recounted a trip to Portugal in January 2023, where she was
contacted by embassy officials at her mother's behest. This was followed by
defendant's numerous appearances at plaintiff's apartment. Plaintiff's attorney
sent defendant a cease-and-desist letter and a supplemental letter revoking a
power of attorney she had previously conferred to defendant. Plaintiff also
testified how her intended trip to Australia was derailed in December 2022. She
recalled that her mother even contacted members of D.S.'s family in effort to
sabotage their romantic relationship.
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Defendant learned of yet another trip to Bangkok in September 2022. In
that instance, defendant contacted the United States embassy, reporting her
daughter "was going to be shot or killed or worse." Thai embassy officials
contacted plaintiff, asking her to sign a waiver to release information about her
whereabouts to defendant.
At the conclusion of plaintiff's testimony, her attorney asked:
COUNSEL: [W]hat are you asking the Court to do today?
PLAINTIFF: I would like the FRO entered. I also am
asking the Court to order a mental health evaluation
because I do believe there is a deep history and you
know, very critical, untreated, mental health issues
here[,] and for her to be required to comply with the
recommendations.
On cross-examination, defendant impressed upon her daughter that in the
event she obtained an FRO, contact with her father would also be adversely
affected. Through leading questions, defendant attempted to minimize the
nature of her conduct, stressing that plaintiff's apartment building was "a high
rise with 5,000 people in it," suggesting an innocuous basis for her presence.
Defendant asked her daughter to concede that on only one occasion did she
actually enter plaintiff's apartment, for the purpose of bringing Christmas gifts.
Plaintiff sidestepped this invited concession, instead maintaining her allegations
that defendant parked outside the building, that her presence had been video
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recorded by the building's doorman, and that plaintiff herself had witnessed
defendant and her father "with my own eyes, many times outside my building."
In her direct testimony, defendant pointed to her age (sixty-eight), "long-
standing tenure[d] faculty member" at a university, love for her only child, and
genuine belief that her daughter "has been manipulated" by D.S. Defendant
denied having any intent to harass her daughter, "[n]o matter what actions [she]
took in the past." Citing the subject statute, she argued, "even assuming that all
of the allegations contained in the temporary restraining order and amended
restraining order are true, . . . they fail to establish prima facie act of . . .
harassment, pursuant to N.J.S.A. 2C:33-4 . . . ." She also challenged the court's
jurisdiction, claiming not to have been at her Cherry Hill residence when the
TRO was served, but was instead in Florida on the date in question and did not
return until "late at night, late in the afternoon."
Defendant presented pictures to buttress her contention that her
relationship with her daughter was "loving, healthy[,] and respectful,"
deteriorating only after her daughter moved in with her boyfriend during the
Covid pandemic. The boyfriend's religion, she stated, "doesn't allow him to live
with a non-Jewish woman like my daughter." She testified to becoming
"interested in Judaism. I (indiscernible) almost a rabbi, myself, okay? We
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support our daughter to date or marry anyone she likes in her life[,] but we have
concerns. We don't want our daughter to get involved in violating other people's
religious law." She continued, "[w]e want to support [D.S.] to move forward,
move on with his own Orthodox Jewish life and marriage without worrying
about our daughter, as long as he could allow my daughter to be free."
Defendant conceded she and her husband travelled to Tampa, not to
intercept her daughter, but instead to "see whether in the future we can buy a
house . . . or a second home." She acknowledged contacting authorities in
Portugal, explaining that she was motivated by concern for her daughter's safety
in the company of D.S. She also acknowledged wearing a wig on one occasion
when she travelled to her daughter's apartment in Manhattan. Because elderly
East Asian people were being attacked in New York early in the pandemic, "our
friend suggested wear wigs, okay, for safety and also [to] look younger."
In making its findings of fact and conclusions of law, the trial court said:
I find this [c]ourt has jurisdiction over this matter. It's
clear the parties have a family relationship[,] being
daughter and mother[,] and this [c]ourt has jurisdiction.
One of the ways this [c]ourt can obtain jurisdiction is
the residence of either the [p]laintiff or the [d]efendant.
It's clear, as you testified to ma'am, that you live in
Cherry Hill, New Jersey, which is in Camden County.
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Having found legal jurisdiction, the court continued, speaking to
defendant:
[Y]ou've just admitted to every single act of harassment
that was alleged in the temporary restraining order.
Finding plaintiff's testimony credible, the court recited the elements of
harassment (N.J.S.A. 2C:33-4) and found:
These are not typical activities of an adult. [Plaintiff]
has the right to have some freedoms in her life. It's
clear that this is harassment. The amount of times that
you admitted yourself to doing this is disconcerting to
this Court . . . there was also stalking.
As to stalking (N.J.S.A. 2C:12-10), the court found:
On two separate occasions, you testified that - - perhaps
three separate occasions. That first, you sat in a car out
front of her building in New York. This was your
testimony[,] and you did that because you wanted to be
able to see her. That fits the definition of stalking.
So it's clear that there are at least two predicate acts that
have been found in this matter.
The court added:
Incidentally, your daughter is 27 years old. She's not a
child. She is – not only is she an adult[,] but she is also
a Wharton [g]raduate . . . I'm also sure that she feels it
is necessary to do this so she can live a life free of being
harassed and being – every time she goes anywhere,
there is a wellness check or she is getting stopped at the
airport[,] or her boyfriend is being detained at the
airport.
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Having found defendant committed predicate acts of harassment and
stalking, the court then determined that entry of an FRO was necessary "for the
safety of the [p]laintiff" and prohibited defendant from having any further
contact with her daughter or D.S.
Concerning a psychiatric evaluation, the court ruled:
You have – not only have tried to track them down and
have wellness checks[,] but also have them detained at
the airport. This is not what a rational person typically
does. So I do have concern[,] as has also been asserted
by the [p]laintiff[,] that there is a need for a psychiatric
evaluation. So I'm entering that provision in there as
well . . . I do think it is important that a psychiatric
evaluation be conducted in this matter.
II.
On appeal, defendant presents the following arguments:
Point 1: The TRO was wrongly issued on April 19,
2023 because the Cherry Hill Municipal Court and the
Camden Superior Court had no jurisdiction over the
allegations listed in the TRO[,] even though there was
no single element of domestic violence in the
allegations. Also, the Court had no jurisdiction over
the two parties because the plaintiff daughter has lived
in NYC since 2019[,] while I, the defendant mother[,]
no longer lived in New Jersey at the time of the TRO
issued but has [sic] lived in Pennsylvania, 120 miles
away from my daughter. (Raised below)
Point 2: There was no factual legal basis for the Court
to enter the TRO on April 19, 2023 because the
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allegations presented no immediate danger or any
danger from the loving mother to the plaintiff, my only
child but my love and care for her life safety and her
health and her well[-]being due to the dangerous
situation she has involved with her previous partner
without her realizing it. (Raised below)
Point 3: The Camden Superior Court of New Jersey
violated my legal right to due process of law by
depriving my legal right to appeal the wrongly issued
TRO[,] by making up a false reason that the previous
TRO appeal application was denied [. . . .] (Raised
below)[]
Point 4: The trial court violated my right to due process
of law at the FRO hearing. (Raised below)
Point 5: The trial court abused the discretion and erred
in granting the final restraining order with psychiatric
evaluation without reviewing and considering any
evidence and testimonies from me, the mother of the
deceived plaintiff daughter [A.S] and my witness, [],
the father of [A.S.]. (Raised below)
Point 6: The trial court erred in entering the FRO with
psychiatric evaluation without applying the law
correctly. The NJ harassment statue N.J.S.A. 2C: 33-4
requires that the act is "with purpose to harass ..." which
is just the contrary to our intent ([plaintiff]’s mother
and father) was to protect and save the life and health
of our deceived, missing and isolated daughter, not
harass same. (Raised below)
Point 7: The trial court Judge got the facts wrong that
were not what the parties testified to during the hearing.
He made mistakes in his findings and got the law wrong
which resulted in his biased and unjustified decisions
which has made our mentally sick and deceived
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daughter homeless[,] endangering her life. (Raised
below)
Our standard of review in domestic violence matters is circumscribed. We
defer to the trial judge's factual findings unless they are shown to be not
reasonably supported by the record and thus "'clearly mistaken'" or so "'wide of
the mark'" as to result in a denial of justice. C.M.F. v. R.G.F., 418 N.J. Super.
396, 401-02 (App. Div. 2011) (quoting N.J. Div. of Youth & Family Servs. v.
E.P., 196 N.J. 88, 104 (2008)). We must accord considerable weight to the trial
judge's findings of credibility. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We
owe special deference to the expertise of the Family Part in making often
difficult judgments about the lives of families and children. See E.P., 196 N.J.
at 104; Cesare, 154 N.J. at 413.
Jurisdiction
For provisions of the PDVA to apply, the court must first have subject
matter and personal jurisdiction. Here, the trial court properly found both forms
of jurisdiction. It had subject matter jurisdiction based on the familial
relationship between the parties and persistent calls by defendant to the Cherry
Hill Police Department to conduct welfare checks of plaintiff, among other
predicate acts. See N.J.S.A. 2C:25-19d. It had personal jurisdiction based on
defendant's residence in Camden County. N.J.S.A. 2C:25-28a. This latter
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finding was supported by testimony from Sergeant Shields and plaintiff, both of
whom testified that defendant maintained a residence in Cherry Hill during the
time of the subject predicate acts. There is nothing in the record to support
defendant's newly raised contention that she lived in Pennsylvania rather than
Cherry Hill at the time of the incidents or on the date of service. Accordingly,
we reject defendant's jurisdictional arguments contained in points one and two.
History of Domestic Violence and Predicate Acts
In defendant's third and seventh points, she challenges the sufficiency of
the evidence that resulted in the temporary and final restraining orders based on
allegations of harassment and stalking. "Domestic violence" means an
occurrence of one or more of the fourteen specific criminal acts inflicted upon
a person protected by the Act. N.J.S.A. 2C:25-19(a). Among those fourteen
specified criminal acts is harassment and stalking. A person commits an act of
harassment when, "with purpose to alarm or seriously annoy such other person,"
the actor "makes, or causes to be made, one or more communications . . . at
extremely inconvenient hours . . . or any other manner likely to cause annoyance
or alarm." N.J.S.A. 2C:33-4(a), (c). "A finding of a purpose to harass may be
inferred from the evidence presented." State v. Hoffman, 149 N.J. 564, 577
(1997).
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Instigating baseless repeated welfare checks constitutes harassment, as the
trial court found. A party's purported loving, well-intended motivation for
initiating such action is not a legal justification for what amounts to an unhealthy
need to control and dominate the life of another. As the Supreme Court has
observed, "[o]ur law is particularly solicitous of victims of domestic violence .
. . . At its core, the [PDVA] effectuates the notion that the victim of domestic
violence is entitled to be left alone. To be left alone is, in essence, the basic
protection the law seeks to assure these victims." Hoffman, 149 N.J. at 584(citations omitted). More than once, plaintiff made clear her wish to be left
alone; yet defendant regularly and consciously disregarded that wish. In finding
defendant engaged in conduct constituting harassment, the trial court did not
abuse its discretion.
A person is guilty of stalking when they "purposefully or knowingly
engage in a course of conduct directed at a specific person that would cause a
reasonable person to fear for his safety or the safety of a third person or suffer
other emotional distress." A "course of conduct" under the statute includes:
repeatedly [on two or more occasions] maintaining a
visual or physical proximity to a person; directly,
indirectly, or through third parties, by any action,
method, device, or means, following, monitoring,
observing, surveilling, threatening, or communicating
to or about, a person, or interfering with a person's
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property; repeatedly committing harassment against a
person . . . .
Here, as the trial court found, all the elements of the offense were met,
extending also to reasonable fear for the safety of D.S., a romantically-linked
third party. A review of the record confirms that defendant personally surveilled
plaintiff at her apartment or caused third parties (police and diplomatic officials)
to monitor her daughter. While defendant at times tried to portray her conduct
as innocuous – being in Tampa by happenstance or wearing a wig out of fear for
her safety – defendant acknowledged engaging in the predicate conduct.
In her fourth point, defendant claims a due process violation without an
attendant referent. We see nothing in the record that would pertain to a due
process concern, including defendant's independent, if improvident, decision to
proceed without counsel. Due process mandates that litigants have "a
meaningful opportunity to defend against a complaint in domestic violence
matters, which would include the opportunity to seek legal representation, if
requested." D.N. v. K.M., 429 N.J. Super. 592, 606 (App. Div.
2013) (citing Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div.
2006)), certif. denied, 216 N.J. 587 (2014). The protection of a defendant's due
process rights in the domestic violence context requires a fact-sensitive
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analysis. Ibid. Here, the record shows defendant had retained counsel who
appeared and asked to be relieved based upon defendant's wish that he not
represent her. Further, the record evidences that defendant's decision to proceed
without her retained counsel was knowing and voluntary. There was no feature
of this case that would implicate a due process violation.
In sum, the trial court relied on substantial reliable evidence to make its
factual findings and legal conclusions in entry of an FRO. Defendant's
justification, while nominally motivated by concern for a loved one, was
correctly found by the trial court to be misguided and "irrational."
Psychiatric Evaluation
Upon entering an FRO, the trial court stated, "I do have concern[,] as has
been also asserted by the [p]laintiff, that there is a need for a psychiatric
evaluation. So[,] I'm entering that provision in there as well." The irrational
nature of defendant's purported defense and testimony congruently gave rise to
the court's decision to order a psychiatric evaluation by a court-selected mental
health professional. The PDVA provides, "the court may require the defendant
to receive professional counsel from either a private source or a source
appointed by the court, and if the court so orders, the court shall require the
defendant to provide documentation of attendance at the professional
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counseling." N.J.S.A. 2C:25-27(a). Based on defendant's alarming behavior in
the record before us, the court acted reasonably and within its authority to
require defendant be evaluated by a professional psychiatrist.
Defendant's remaining arguments do not merit discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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