N.P. VS. A.O. (FM-15-1440-16, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-0016-20
N.P.,1
Plaintiff-Appellant,
v.
A.O.,
Defendant-Respondent.
__________________________
Submitted May 10, 2021 – Decided May 24, 2021
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FM-15-1440-16.
Rutgers Law School, attorneys for appellant (Amy
Braunstein, on the brief).
Respondent has not filed a brief.
PER CURIAM
1
We use initials for the parties and pseudonyms for the children to protect their
privacy. R. 1:38-3(d)(10).
Plaintiff appeals from an August 28, 2020 order denying her motion for
reconsideration of a June 26, 2020 order and a July 6, 2020 supplemental order
granting defendant supervised parenting time with his biological daughter. We
vacate all orders awarding parenting time to defendant and remand the matter to
the Family Part to conduct a new hearing. Prior to the new hearing, plaintiff
shall be allowed to conduct discovery and review expert reports related to
defendant's exercise of parenting time.
The facts are as follows. The parties were together for several years prior
to marrying on November 19, 2010. They had one child together, Mary, born
July 2011. Plaintiff has another daughter, Beth, born March 2003. Defendant
is not Beth's biological father and never adopted her. Since the age of five,
defendant served as a "father figure" to Beth.
The parties divorced in 2016. Despite divorcing, the couple moved into a
home together in 2018 "with the hope of providing a better environment for
the[ir daughters]" and continued to "co-parent" both children.
After the parties divorced but were living together, plaintiff discovered
defendant sexually abused Beth after reading a text message defendant sent to
Beth. Plaintiff confronted defendant regarding his text message. Beth then told
her mother defendant was sexually abusing her.
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Plaintiff immediately went to the police station with Beth to report
defendant's sexual abuse. Beth told the police she had been abused at least four
times by defendant and each incident happened in home the couple shared.
Defendant was charged with endangering the welfare of a child and
aggravated sexual assault. While in police custody, defendant confessed to
sexually abusing Beth.
After defendant's arrest, Beth's younger sister, Mary, became "withdrawn
and timid." She noticed Beth frequently "crying and upset." Mary asked
plaintiff what happened to her father. Plaintiff "reluctant[ly]" told Mary "in an
age[-]appropriate conversation[] that Daddy had done something bad and he
admitted to it [so] he ha[d] to go away for a while."
On January 8, 2019, plaintiff filed a pro se motion in the Family Part
seeking sole legal custody of Mary and suspension of defendant's parenting time
with Mary "until a risk assessment, psychological evaluation and sexual
evaluation [we]re completed at defendant's sole cost." In an April 12, 2019
order, after receiving a report from the Division of Child Protection and
Permanency (DCPP) recommending defendant have no contact with Mary, the
family court judge granted plaintiff's motion.
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On April 30, 2019, defendant filed a motion for reconsideration. He also
requested parenting time and joint legal custody of Mary.
The matter was heard by the judge on June 7, 2019. Plaintiff appeared
pro se, and defendant appeared with counsel. Defendant requested supervised
parenting time with Mary, emphasizing to the judge he would soon be
incarcerated for a lengthy time period and sought to maintain a relationship with
his biological daughter. 2
Plaintiff opposed defendant's exercising parenting time with Mary and
expressed concern for Mary's mental and physical well-being. Plaintiff told the
judge Mary was "afraid of [defendant]." The judge asked plaintiff why that
information was not included in the opposition papers. Plaintiff explained Mary
first learned about defendant's abuse of Beth "the other day." When asked how
Mary learned of the abuse, plaintiff admitted discussing the issue with her
younger daughter.
Plaintiff and the judge then exchanged a heated colloquy. The judge
questioned plaintiff's decision to tell Mary about defendant's sexual abuse of
Beth, deeming it "not a wise choice." Plaintiff tersely responded she would not
2
Based on the pending criminal charges, defendant was prohibited from having
any contact with Beth.
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"lie to [her] daughter anymore." The judge replied the situation was a hard
enough for a grown woman to process, let alone a young child. Plaintiff
rejoined, "[T]hat's my call whether or not . . . I tell my daughter . . . ." Having
the final word, the judge stated, "You're absolutely right, so you may have
caused [Mary] damage, but that's on you."
In her June 7, 2019 order, the judge held defendant's pretrial detention
release order related to the criminal charges did not prohibit his exercising
supervised parenting time with Mary. The judge ordered Mary to undergo an
evaluation with a court-appointed therapist and explained she intended to follow
the therapist's recommendations "with regard to if and/or when the defendant
may begin to exercise supervise[d] parenting time as well as telephone contact
with the child." The judge also granted defendant joint legal custody of Mary
"so long as he [wa]s not incarcerated." In addition, the judge allowed defense
counsel and plaintiff to review the DCPP's report under a protective order.
The therapist submitted a written report to the judge on August 23, 2019.
Based on the therapist's report, the judge issued an August 29, 2019 order, sua
sponte, directing the parties to "immediately schedule" trauma-focused therapy
for Mary and "immediately schedule family therapy . . . to support [p]laintiff
and the two children." Contingent on receipt of mental health treatment and
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recommendations of defendant's medical professionals, the judge granted
defendant supervised parenting time with Mary "until his incarceration." The
order required the parties to be "diligent in safeguarding the children from re -
exposure to further trauma, and should make all efforts to keep parent to parent
contact out of the children's awareness." All other terms of the June 7, 2019
order "remain[ed] in full force in effect."
On March 10, 2020, defendant moved to enforce the June 7, 2019 order.
In April 2020, plaintiff retained counsel. At that time, plaintiff's newly retained
counsel attempted to review the DCPP's report under a protective order.
Plaintiff's counsel was informed the DCPP's report had to be reviewed in
camera, but the courthouse was closed due to the COVID-19 pandemic.
Plaintiff's counsel subsequently followed up on the request for access to the
DCPP's report. Counsel also asked if defendant's risk assessment, psychological
evaluation, and sexual evaluation had been completed.
On May 22, 2020, plaintiff's counsel asked the court to confirm
completion of defendant's assessments and requested review of those
assessments and the DCPP's report. The judge advised "[p]laintiff had been
made aware of the evaluations and, after arrangements had been made for her to
view the documents, she failed [twice] to come to [c]ourt and review them."
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In a certification dated June 11, 2020, plaintiff's counsel certified she had
never been allowed to review the DCPP's report or any other evaluations of
defendant. In addition, plaintiff certified she was unable to review the DCPP
report at the courthouse because she could not take off from work for fear of
losing her job.
On June 11, 2020, plaintiff filed a cross-motion requesting dismissal of
defendant's motion to enforce parenting time and suspension of his parenting
time or, alternatively, "[m]odify [p]arenting time/[s]tay [p]arenting [t]ime until
counsel can review the documents under a protective order."
On June 26, 2020, the judge issued a written "post-judgment order,"
granting defendant supervised parenting time "contingent on his on-going
mental health treatment and with the recommendation(s) of his physician(s) that
supervised parenting may proceed." The judge required defendant to furnish to
plaintiff proof of his continued mental health treatment. She denied plaintiff's
request to stay or modify parenting time until plaintiff's counsel could review
the DCPP's report and other assessments and records. Further, the judge ordered
plaintiff to resume therapy and provide proof of Mary's treatment because
plaintiff admitted Mary stopped attending therapy in September 2019.
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In a July 6, 2020 "supplemental post-judgment order," the judge stated
defendant provided emails from his therapist, confirming defendant attended
therapy regularly. The judge's order explained defendant's therapist expressed
"no concerns with supervised visitation with [Mary]" and "permitted supervised
phone/FaceTime parenting time and in-person parenting time" between
defendant and Mary.
The next day, plaintiff's attorney filed a motion for reconsideration. In
the motion, counsel asserted the judge failed to consider the impact defendant's
exercise of parenting time with Mary would have on the relationship between
the siblings. Plaintiff believed allowing defendant to exercise parenting time
with Mary would re-traumatize both daughters. Plaintiff also sought to compel
defendant's payment of therapy for the children. Defendant opposed plaintiff's
motion and requested plaintiff be held in contempt of court for failing to comply
with previous orders.
On July 27, 2020, defendant pleaded guilty to aggravated assault of a
minor while acting in loco parentis. Pending sentencing, defendant was ordered
to register as a sex offender.
On August 28, 2020, one month after defendant's guilty plea to aggravated
sexual assault, the Family Part judge heard counsels' arguments regarding
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defendant's exercise of parenting time with Mary. Plaintiff argued the judge
failed to protect the best interests of Mary and Beth. She further claimed the
New Jersey Constitution allowed crime victims the right to be heard, and Beth
was not accorded an opportunity to speak to the judge. In addition, because
defendant pleaded guilty to aggravated sexual assault of a minor, plaintiff
asserted the Fathered by Rape statute, N.J.S.A. 9:2-4.1, applied and the record
lacked clear and convincing evidence defendant's exercise of parenting time was
in Mary's best interest. 3
After hearing the arguments, the judge denied reconsideration. The judge
explained the court-appointed therapist reviewed the information provided by
the parties, spoke with the parties and the children, and considered the "family
dynamic." The judge deferred to the "thorough and thoughtful report" prepared
by the therapist and ordered defendant's supervised parenting time to proceed as
scheduled.4 The judge also reprimanded plaintiff for "tak[ing] matters into her
own hands and violat[ing] [c]ourt orders" and "traumatizing" Mary. In denying
3
This statute requires persons "convicted" of certain crimes against minors be
precluded from exercising parenting time unless there is "clear and convincing
evidence" that parenting time would be in the best interest of the child.
4
Defendant's supervised parenting time was scheduled to start August 29, 2020
and continue every week until his incarceration.
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reconsideration, the judge ruled N.J.S.A. 9:2-4.1 was "not applicable at this
juncture." The judge also denied plaintiff's request for a stay under N.J.S.A. 9:2-
4.1.
On appeal, plaintiff argues the judge erred in failing to consider
defendant's guilty plea as a conviction under N.J.S.A. 9:2-4.1. She also claims
the judge erred in denying her attorney access to the DCPP's report and other
reports related to defendant's exercise of parenting time. In addition, plaintiff
asserts the judge should have considered the relationship between Mary and
Beth and allowed Beth to provide a victim's impact statement to the court. We
partially agree.
Our review of a trial judge's fact-finding function is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). A judge's fact-finding is "binding on appeal
when supported by adequate, substantial, credible evidence." Id. at 411-12
(citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)).
Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in
family matters, appellate courts should accord deference to family court
factfinding." Id. at 413. However, "[a] trial court's interpretation of the law and
the legal consequences that flow from established facts are not entitled to any
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special deference." Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140
N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).
Plaintiff argues the judge erred in deeming the Fathered by Rape statute,
N.J.S.A. 9:2-4.1, was inapplicable and awarding defendant parenting time with
Mary pending his incarceration. N.J.S.A. 9:2-4.1 provides:
Notwithstanding any provision of law to the contrary, a
person convicted of sexual assault under N.J.S.[A.]
2C:14-2 shall not be awarded the custody of or
visitation rights to any minor child, including a minor
child who was born as a result of or was the victim of
the sexual assault, except upon a showing by clear and
convincing evidence that it is in the best interest of the
child for custody or visitation rights to be awarded.
However, a court that awards such custody or visitation
rights to a person convicted of sexual assault under
N.J.S.[A.] 2C:14-2 shall stay enforcement of the order
or judgment for at least 10 days in order to permit the
appeal of the order or judgment and application for a
stay in accordance with the Rules of Court.
[N.J.S.A. 9:2-4.1(a) (emphasis added).]
As of August 28, 2020, defendant pleaded guilty to N.J.S.A. 2C:14-2 but
had not been sentenced. Defendant was tentatively scheduled to be sentenced
in December 2020. Absent a conviction, as opposed to a guilty plea, the judge
concluded N.J.S.A. 9:2-4.1 was not triggered and declined to apply the clear and
convincing standard to determine the best interest of Mary prior to granting
parenting time to defendant.
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Plaintiff cites Kercheval v. United States, 274 U.S. 220 (1927), in support
of her argument a guilty plea is a conviction. In Kercheval, the United States
Supreme Court held "[a] plea of guilty differs in purpose and effect from a mere
admission or an extrajudicial confession; it is itself a conviction. Like a verdict
of a jury[,] it is conclusive. More is not required; the court has nothing to do
but give judgment and sentence." 274 U.S. at 223. In Boykin v. Alabama, 395
U.S. 238, 242 (1969), the United States Supreme Court, citing Kercheval, stated
"a plea of guilty is more than an admission of conduct; it is a conviction."
More recently, in Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 105-
06 (1983), the United States Supreme Court analyzed whether the Gun Control
Act of 1968, 18 U.S.C. §921 to §931, criminalizing the carrying of a firearm by
someone previously convicted of a felony, applied to a person who pleaded
guilty to a felony, but whose sentencing had been "deferred" by the sentencing
court. In that case, the defendant pleaded guilty and, therefore, "[t]he usual
entry of a formal judgment upon a jury verdict or upon a court's specific finding
of guilt after a bench trial is absent." Dickerson, 460 U.S. at 111. Under those
circumstances, the United States Supreme Court found "a plea of guilty and its
notation by the state court, followed by a sentence of probation" equated to a
"conviction" under the statute. Id. at 114.
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Similar to the United States Supreme Court's analysis of the Gun Control
Act of 1968 in Dickerson, the Fathered by Rape statute supports the notion a
guilty plea may be treated as a conviction because punishment will be imposed
for a defendant's sexual assault of a minor. The Fathered by Rape statute was
enacted to protect minor children from persons guilty of sexual assault under
N.J.S.A. 2C:14-2. Here, during the plea hearing, defendant admitted he sexually
assaulted his stepdaughter, and the criminal judge accepted the factual basis for
his guilty plea. At the conclusion of the plea hearing, the judge scheduled
sentencing for December 2020.
However, we need not determine the applicability of the Fathered by Rape
statute in this case because circumstances have changed since September 2020
when plaintiff filed her notice of appeal. Defendant has since been sentenced
on the criminal charges, and a judgment of conviction has been entered. The
Department of Corrections website indicates defendant was sentenced on
December 11, 2020 to a minimum sentence of seven years, two months, and
twenty days. Defendant remains incarcerated at the present time.
As a result of defendant's conviction, the Fathered by Rape statute is
applicable. Moreover, the judge's August 28, 2020 order allowed defendant
parenting time "pending his incarceration." We are uncertain whether the judge
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intended defendant's incarceration to operate as a "sunset provision,"
automatically terminating defendant's parenting time once defendant began
serving his sentence, or whether the judge anticipated plaintiff would file a
motion for termination of defendant's parenting time based on defendant's
incarceration.
Given the changed circumstances, specifically defendant's conviction for
sexually assaulting Beth, we vacate the parenting time orders and remand the
matter to the Family Part to apply the Fathered by Rape statute and require any
order allowing defendant parenting time be based upon "clear and convincing
evidence that it is in the best interest of [Mary] for . . . visitation." On remand,
the judge may consider Beth's statements concerning defendant's exercise of
parenting time with Mary. 5
We next address plaintiff's argument the judge erred in depriving her
counsel access the DCPP's report, the expert therapist's report, and any other
written evaluations regarding defendant's exercise of parenting time with Mary.
5
We disagree Beth has a right to provide a victim's impact statement under
N.J.S.A. 52:4B-36 and N.J. Const. art. 1, ¶ 22. The rights and remedies provided
under N.J.S.A. 52:4B-36 concern the rights of "crime victims and witnesses" in
criminal proceedings and are not applicable to family court proceedings.
Plaintiff failed to cite any case law in support of Beth's "right" to provide a
victim's impact statement in a family court matter.
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We review a trial court's decision on a discovery matter for an abuse of
discretion. Pomerantz Paper Corp v. New Community Corp., 207 N.J. 344, 371
(2011).
Rule 5:3-3 governs the appointment of experts in family cases. When a
Family Part judge determines "disposition of an issue will be assisted by expert
opinion, . . . the court may order any person under its jurisdiction to be examined
by a physician, psychiatrist, psychologist or other health or mental health
professional designated by it." R. 5:3-3(a). Subsection (f) of the rule provides:
[A]ny finding or report by an expert appointed by the
court shall be submitted upon completion to both the
court and the parties. . . . The parties shall thereafter be
permitted a reasonable opportunity to conduct
discovery in regard thereto, including, but not limited
to, the right to take the deposition of the expert.
[R. 5:3-3(f).]
In accordance with this rule, plaintiff and her counsel must be accorded a
"reasonable opportunity" to access all expert reports and evaluations. See Rente
v. Rente, 390 N.J. Super. 487, 495 (App. Div. 2007) (reversing a family court
order because the judge failed to comply with Rule 5:3-3 by providing a copy
of the court-appointed expert's report and permitting an opportunity to depose
or cross-examine the court-appointed expert). The current COVID-19 pandemic
is not a basis for denying plaintiff and her counsel discovery. As our Supreme
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Court recently stated, "[T]he Constitution must operate not just in the best of
times, but also in the worst of times." State v. Vega-Larregui, __ N.J. __, __
(2021) (slip op. at 1).
Because we are remanding the August 28, 2020 order and all prior orders
awarding defendant parenting time with Mary, the Family Part judge should
allow plaintiff and her counsel, subject to an appropriate protective order, an
opportunity to review any reports or evaluations regarding defendant's exercise
of parenting time. Further, plaintiff is entitled to discovery prior to any
parenting time determination.
Vacated and remanded. We do not retain jurisdiction.
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