DCPP VS. K.S. AND N.S., IN THE MATTER OF S.S., H.S. AND C.S. (FN-13-0235-16, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-3702-18T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
N.S.,
Defendant-Appellant/
Cross-Respondent,
and
K.S.,
Defendant.
______________________________
IN THE MATTER OF S.S.,
H.S. and C.S., minors,
Respondents/Cross-Appellants.
______________________________
Submitted September 21, 2020 – Decided October 28, 2020
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FN-13-0235-16.
Joseph E. Krakora, Public Defender, attorney for
appellant/cross-respondent, N.S. (Robyn Veasey,
Deputy Public Defender, of counsel; Andrew R.
Burroughs, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Julie B. Colonna, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors/cross-appellants (Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Nancy P.
Fratz, Assistant Deputy Public Defender, of counsel
and on the brief).
PER CURIAM
In this Title Thirty action for care and supervision filed under N.J.S.A. 30:4C-
12 by plaintiff, the Division of Child Protection and Permanency (Division), the
mother of three children, defendant N.S. (Nina),1 appeals from the Family Part's
March 21, 2019 order terminating the action and granting the children's father,
defendant K.S. (Kyle), continued sole custody of their children. The Division filed
1
To protect privacy interests and for ease of reading, this court uses initials and
pseudonyms for the parties and the children. R. 1:38-3(d)(12).
A-3702-18T1
2
the action due to concerns over the children's safety and health, arising from Nina
having been diagnosed with factitious disorder imposed on another (FDIA). 2 On
appeal, Nina argues that the trial judge erred because he relied on the Division's
unqualified expert who rendered a flawed diagnosis. The Law Guardian also
appealed and argues that the children should be reunited with Nina as any problems
they had were significantly resolved prior to Kyle receiving custody of the children.
We affirm as we find no merit to these contentions, substantially for the reasons
2
As we have previously explained,
[w]hat [was] usually referred to as "Munchausen
Syndrome by Proxy," [and now] more recently, [FDIA]
is a mental illness by which a person caring for another,
often a child — in seeking attention — acts as if the
cared-for individual has a physical or mental illness. Its
effect on the cared-for individual results from the
obstacles it creates for health care providers striving to
identify the cared-for individual's nonexistent illness,
thereby making the matter worse.
[N.J. Dep't of Children & Families v. L.O., 460 N.J.
Super. 1, 4 n.1 (App. Div. 2019).]
FDIA is found "when someone falsely claims that another person has physical
or psychological signs or symptoms of illness, or causes injury or disease in
another person with the intention of deceiving others." Factitious Disorder,
Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/factitious-
disorder/symptoms-causes/syc-20356028 (last visited Oct. 15, 2020).
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expressed by Judge Terence P. Flynn in his comprehensive and thorough sixty-page
oral decision that he placed on the record prior to entering the order under appeal.
I.
A.
Defendants were married in January 2003 and they had three children: H.S.
(Haley), who was born in 2005, C.S. (Carrie), born in 2006, and S.S. (Sarah), born
in 2009. In December 2010, Nina's and Kyle's relationship deteriorated causing
them to separate, with Nina and the children moving to New Jersey and Kyle staying
in Pennsylvania where the family had been living together. After the separation,
Kyle filed for divorce in Pennsylvania, which was granted in 2014. In October 2012,
after a custody hearing was held, a Pennsylvania judge entered an order granting the
parties shared legal custody of the children, with Nina having residential custody,
and Kyle having parenting time every other weekend in Pennsylvania.
In 2012, the Division became involved with the family as a result of two
referrals that Nina made against Kyle alleging lack of supervision, which were later
determined to be unfounded. In 2015, Kyle made a referral and alleged that Nina
subjected Haley to "emotional abuse and endanger[ed her] welfare" arising from the
medical treatment to which Nina was exposing the child and from Haley's failure to
attend school on a regular basis. Thereafter, additional referrals were made by
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Haley's school due to the children's excessive absences, and by Haley's medical
providers regarding Nina's failure to secure recommend treatment for Haley.
Haley's medical issues began in 2013 and continued through approximately
2017. During that time, Nina took Haley to hospitals numerous times for complaints
about severe stomach pains. Haley visited the emergency room of various hospitals
at least fourteen times and was admitted to the hospital for several days on at least
two occasions. Moreover, she was seen by several doctors at least forty times during
the same period. Typically, Nina would bring the child to the hospital or doctor and
advise that Haley was repeatedly vomiting or experiencing severe bouts of diarrhea
accompanied by severe pain, but the medical providers seldom if ever found
symptoms consistent with those complaints.
Although Haley was eventually diagnosed with celiac disease and
gastroparesis, doctors concluded that she also suffered from functional abdominal
pain. To address the abdominal pain, doctors recommended alterations to her diet,
medication, out of home counseling, and a return to normal activities such as
attending school regularly. Nina disagreed with the diagnosis and recommendations
and refused to have Haley participate in out of home counseling, even when that
treatment was later ordered by the judge in this action. According to Nina, Haley
was too sick to travel out of the home to receive the behavioral therapy
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recommended by the doctors or the cognitive behavioral therapy later ordered by the
judge.
Notably, Haley's pain did not prevent her from travelling or otherwise
participating in non-school events. According to school officials, Haley attended a
summer program within the district without any incidents or issues related to her
health. That program included participating in bus trips to New York City.
By June 2015, a medical provider from Children's Hospital of Philadelphia
(CHOP) raised concerns with the Division about Nina demonstrating signs of FDIA
because Haley's symptoms were inconsistent with her diagnosis, Nina refused to get
Haley outpatient counseling, and Nina was "medically noncompliant." The reporter
stated that the treating doctors at CHOP felt strongly about Haley being able to get
out of the house, going to school, and seeing a therapist. Before the Division
interviewed Nina, she contacted the CHOP employee who made the referral and
requested the employee contact the Division and inform them that the referral was
based on a false accusation. The employee did not comply.
During the Division's ensuing interview, Nina stated that she did not believe
CHOP was providing Haley with the treatment she needed, she made excuses for
not following CHOP's recommendations, and she planned on getting another opinion
about Haley's medical conditions. The Division also interviewed the children, who
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stated that they felt safe with Nina. Haley also explained that she rarely saw Kyle,
that she was not feeling well, and that she wanted to go to school but her health
prevented her from going. The Division's caseworker observed that Haley was "free
from any visible signs of abuse or neglect at the time."
The Division also spoke with a nurse practitioner and treating doctors who
also shared the reporter's concerns. Not only did the nurse practitioner never see
Haley vomit, but she also stated that Nina exaggerated Haley's symptoms and
refused to follow CHOP's recommendations. The doctors stated that Haley and the
family needed intensive outpatient counseling. On the other hand, a therapist, who
was a licensed clinical social worker and who was seeing Haley at home, believed
that at-home counseling was most beneficial for Haley.
During interviews with the principal at Haley's school, he stated that when
Haley was in school, she appeared fine and it was his belief that Nina "was
encouraging [Haley] to be at the house," however, other than that he was not
concerned about the safety or health of the children. However, in February 2016,
the principal contacted the Division with concerns about both Haley's and Carrie's
absences at school. According to the principal, Haley had already missed twenty
days of school, and Carrie missed thirty-five days that year. While Nina informed
the principal that both children were missing school for the same medical reasons,
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the principal was not given doctor's notes to support all the absences. The Division
concluded that the children were not educationally neglected, but there was
sufficient evidence to demonstrate that the children were at risk of harm.
That month, the Division received notes from a treating doctor, who stated
that Carrie was now also diagnosed with "functional abdominal pain" and she had a
body mass index of less than one percent. The doctor prescribed Mirtazapine, an
antidepressant for Haley and Carrie. The doctor's notes indicated that while Haley
and Nina reported that Haley was "persistent[ly] vomiting for weeks[, the tests
indicated] there [were] no lab abnormalities consistent with dehydration." Haley
was eating "normal amounts of food" and the "differential diagnosis for this situation
include[d] symptom[s of] exaggeration, extreme parental anxiety, [FDIA, and]
rumination syndrome." According to the doctor, "patients with functional
abdominal pain should be in school as much as possible . . . as this [could] decrease
symptoms and maintain normal functioning." In response to the doctor's notes and
referral, a Division caseworker attempted to visit the children's home, but Nina
refused to allow the caseworker to interview the children; instead, Nina spoke with
the caseworker and claimed that her children were sick, which made it difficult for
them to go to school and to function normally.
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B.
Due to Nina's continued failure to follow medical provider's recommendations
and the Division's concerns about Haley's and Carrie's safety, the Division filed a
Title Thirty action on March 9, 2016, seeking the care and supervision of the three
children. The Division also obtained a court order requiring Nina to undergo a
psychological evaluation and allow the children to be interviewed.
A Division caseworker interviewed Haley and Carrie at their school. Carrie
admitted to having severe stomach pains, but she could not recall the last time she
had such pains. She also stated that she rather be at school than at home. On the
other hand, Haley did not want to be in school, and claimed that her stomach
constantly hurt her because of her gastroparesis and stress build up. The interview
ended early when Haley became visibly upset.
Nina was interviewed again, and she denied ever suggesting Haley be placed
on a feeding tube. She further believed that Haley's current in-home therapist could
effectively provide Haley with the care she needed. The Division worker attempted
to speak to Haley and Carrie again, but the girls claimed they were too sick.
The Division caseworker met with Haley's therapist, who had no concerns
about Nina's care for the children but was concerned about Kyle's ability to care for
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the children. The therapist also stated she witnessed Haley in severe pain. She
further noted that Haley got car sick, so outpatient therapy would not be possible.
The Division presented its findings to the trial judge at hearings that took place
on March 24, 2016 and June 13, 2016. After considering the testimony presented,
the judge determined that the allegations about Nina's FDIA impacting Haley's
health also raised concerns about Carrie's health, and that Haley needed outpatient
counseling. The judge rejected Nina's contention that Haley could not travel to get
outpatient counseling and found that her therapist was not reliable as she did not
even address the reports of Nina's FDIA. The judge granted the Division continued
care and supervision of the children.
Thereafter, the children's doctor prescribed a specific medication regime for
Haley to help with her nausea and some improvements in Haley's health were noted.
The doctor indicated her concern that the alleged symptoms Haley was experiencing
were not witnessed by her medical staff.
In September 2016, Nina transferred Haley's treatment to Dr. Marcos Alfie,
at Jersey Shore University Medical Center (JSUMC). Dr. Alfie reduced Haley's
medication. Later, while Haley was doing better, Nina brought her to the emergency
room once more.
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Nina also transferred the children to a private parochial school for the 2016 to
2017 year because the school had a fulltime nurse. At the new school, during the
first year, Haley missed twenty-three days and arrived late on seventeen days, and
Carrie missed twelve days and was late on twenty days.
On October 3, 2016, the judge ordered that Nina and Kyle undergo
psychological evaluations by Janet Cahill, Ph.D. The judge also ordered that Haley
have cognitive behavioral therapy. Hayley was permitted to continue to meet with
her in-home counselor as well.
On November 7, 2016, Dr. Cahill conducted a parental capacity evaluation of
Kyle. She found Kyle to be pleasant, cooperative, rational, and that he had good
insight.
Although Dr. Cahill was to also evaluate Kyle with the children, Carrie was
unable to attend the evaluation as, according to Nina, she did not feel well and
vomited that day. Based on her observations of Kyle and the other children, Dr.
Cahill found that Kyle was responsive and warm towards Haley and Sarah, and
neither child had any concerns with their father. Dr. Cahill did not identify any
parenting risk factors and concluded Kyle could effectively care for the children.
During the evaluation, and without any prompting, Haley informed Dr. Cahill
that her former physician "had made a mistake when she wrote down [FDIA] on her
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report," and Haley stated she knew what the report said, as Nina informed her about
it. The doctor reported that evidence suggested Nina had a "possible diagnosis of
FDIA."
While the children were being evaluated, Nina had contacted the police
because she was concerned about her children's safety. When Nina was notified that
her children and Kyle were with Dr. Cahill, Nina called Dr. Cahill, and complained
about the evaluation. She also texted the children during the evaluation and called
the police again. According to Dr. Cahill, because of Nina's "attempts to sabotage
the evaluation, the usual observation protocol could not be completed," as Nina "was
directly coaching" Haley on what to say.
On December 8, 2016, the trial judge again ordered that Haley undergo
cognitive behavioral therapy. All three children were ordered to attend outpatient
counseling outside the home. Nina was also ordered to undergo a psychological
evaluation by Dr. Cahill.
Eventually, Dr. Cahill was able to conduct an evaluation of Nina on February
28, 2017, after she failed to attend her first two appointments. Dr. Cahill found Nina
to be "superficially cooperative and cordial," "facile and deceptive," and that her
statements were inconsistent with other sources. Dr. Cahill decided not to conduct
a separate observation of Nina with the children because of her "brazen coaching of
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the children during [Kyle's] evaluation." Dr. Cahill concluded that there was
sufficient evidence demonstrating a possible diagnosis of FDIA, and she suggested
that as a test, the children be separated from Nina for a time to determine whether
the children were actually exhibiting the symptoms Nina alleged.
On May 31, 2017, the trial judge again ordered that Haley have cognitive
behavioral therapy and that the children attend outpatient counseling outside the
home. Nina failed again to comply with the judge's order.
Thereafter, the Division brought to Judge Flynn's attention Nina's continued
failure to abide by its recommendations and the judge's orders. On July 7, 2017,
after considering testimony from Dr. Cahill, and from Nina's expert, Dr. Andrew
Brown, a licensed clinical psychologist who specialized in neuropsychology but not
FDIA, the judge ordered a separation test and for that purpose granted Kyle sole
legal and physical custody of the children. The separation test was to occur over at
least an eight-week period, during which Nina was not to have any contact with the
children.
After the children were placed with Kyle, the Division visited his home and
had no concerns about the safety and care of the children under his control. Kyle
reported that Haley was doing better, she did not get sick, and ate all her meals,
however, he was concerned that she overate. While the Division worker noted that
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Haley did not complain of any abdominal pain, she continuously requested to see
Nina and her maternal relatives.
On August 15, 2017, six weeks into the separation test, Dr. Cahill wrote to the
Division, informing it that since the children were removed from Nina's care, the
children were doing well. There was no evidence of any health issues, and overall,
the "pattern of illness reported by [Nina was] not occurring." She concluded that
these findings "support[ed] the full diagnosis of FDIA," and she made the following
recommendations: the children not be returned to Nina; Kyle should be granted full
custody; Nina should not have any contact with the children until she has improved
with therapy that specifically dealt with FDIA, which should provide insight and
help Nina see how "her parenting of the children was abusive and not in their best
interest." On August 21, 2017, the judge ordered Nina meet with a therapist
qualified to treat FDIA and notify counsel of the therapist chosen. Kyle was ordered
to ensure the children receive therapy as well.
By September 22, 2017, Haley was completely off her medication, Dr. Alfie
noted that she was doing well, and Haley only had one flareup. Carrie and Sarah
received outpatient counseling for a short period of time, while Haley's visits with
the therapist continued. At their new school in Pennsylvania, Haley and Carrie only
had one absence and they were late only three times.
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While the children were in Kyle's custody, from December 2017 to April 2018,
Nina was to exercise her parenting time twice monthly, once in Pennsylvania and
once in New Jersey under the supervision of the Division. During visits, Division
workers had to redirect Nina, as she advised the children to disregard the Division's
recommendations. Two visits had to end early as the Division workers felt
uncomfortable because Nina was being difficult, causing a scene, and recording the
Division workers when they asked her to stop.
When Nina's behavior during visits was brought to the judge's attention, he
ordered therapeutic supervised visits at Grace Abounds Counseling (GAC). During
visits there, Nina was appropriate, engaged, and patient, with minimal redirection,
but she did display "impaired insight about her maladaptive behaviors" and "limited
adherence to boundaries." During one specific visit, Nina was "defensive and
guarded" when redirected and violated protocol.
In October 2018, Dr. Cahill conducted a follow up evaluation to determine
whether Nina had benefited from services. During the interview, Nina stated that
she was seeing a psychologist of her own choosing, who disagreed with Dr. Cahill's
recommendations and diagnosed her with an anxiety disorder. When Dr. Cahill
attempted to contact that psychologist, with Nina's permission, he never returned her
phone calls.
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During the evaluation, Nina expressed that she did not understand why the
Division was still involved and continued to deny having FDIA. When asked what
she would do differently in caring for her children, she replied she "would have the
doctors do more for them." Dr. Cahill concluded Nina made no progress and had no
insight on how her behavior negatively impacted her children. She recommended
Kyle have continued custody of the children and that any visitation with Nina cease.
The Division also had Dr. Gladibel Medina review and summarize all of
Haley's medical records. Her review indicated that since 2013, Haley had fourteen
emergency room visits and six hospitalizations. The doctor also explained all the
diagnoses Haley had during that time. Dr. Medina stated that while Haley's
symptoms were reported by Haley or Nina to be moderate to severe in pain, the
observations by the doctors and medical staff demonstrated that the symptoms were
not as severe, her symptoms could be due to anxiety, and she was in good spirits,
and did not have difficulty eating.
C.
The trial judge conducted a best interests hearing over eleven non-consecutive
days beginning in November 2018 and ending on February 28, 2019. In addition to
the parties and in-camera interviews of the children, thirteen witnesses testified. Dr.
Cahill was the only expert witness.
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During the children's interviews, Haley stated that she was doing well in
school, had a good group of friends, and that she was hurt by her parents' divorce.
Haley further stated that she had a good relationship with both her parents, but her
relationship with Kyle suffered after she got sick, she wanted to live with Nina, and
she was able to relate to each parent on different topics. According to Haley, nothing
helped her stomach issues until she was prescribed Mirtazapine. Haley did not
understand why the matter was prolonged for so long.
Carrie also stated that she wished to spend more time with Nina. While Carrie
heard or was told her sister vomited, she never actually saw Haley get sick.
According to Carrie, the only medical condition she ever had was asthma. Neither
Carrie nor Sarah were concerned with how Kyle cared for them.
Kyle testified that Nina had made it difficult for him to see his children. As
to Haley, Kyle stated that he only found out she had health issues in October 2013
when she was diagnosed with celiac disease. Around that time, Nina informed Kyle
that Haley was continuously vomiting and had stomach issues, however, when Kyle
visited Haley the first two times at the hospital, she "was perfectly fine." Kyle stated
that he was never consulted about Haley's health, played no role in her medical
decisions, that he "vehemently opposed" Nina's decision to move Haley from CHOP,
and was not consulted about the girls going to a new school. While Haley
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complained of her stomach hurting on two occasions, Kyle never saw her vomit and
the pains quickly subsided.
Kyle also addressed his referral to the Division and stated he was concerned
about Haley's many absences from school and Nina not following doctors' orders.
He explained that based on his discussions with Haley's doctors she needed to be in
school as there was "absolutely no issues with her health."
During the time the children moved in with him in 2017, Haley only vomited
once and overall "[s]he was wonderful." Kyle denied that Haley was getting better
because of Nina's actions prior to when he received custody, but instead, he asserted
that Haley's health improved only when the Division got involved. Even though
Haley wanted to live with Nina, Kyle believed he should have custody and that Haley
needed intensive counseling to understand and deal with what Nina put her through.
Kyle confirmed that by the time he received custody of the children, Dr. Alfie took
Haley off medication. He also acknowledged that the children wanted to see Nina
more.
The Division called as additional witnesses Kyle's sister, the Division's case
workers, the children's former principal, and the licensed therapist from GAC. They
testified that they never or rarely saw Haley sick or vomiting, that Nina was hard to
deal with, she failed to follow the Division's recommendations, the caseworkers
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were uncomfortable working with Nina, and that Haley's symptoms and general
unhappiness were noticeable only when she was with Nina or had contact with her.
The school principal explained the basis for his referral was that the medical
reasons Nina used to explain Haley's absences were also used for Carrie, who only
had asthma. Further, Haley missed many days during the school year but had no
problems with attendance at summer camp or trips to New York City for camp.
A GAC therapist explained that during visits, Nina impermissibly spoke about
court proceedings and coming home to her with the children, and that Nina focused
her attention and her manipulation primarily on Haley. In addition, a Division
employee testified that Nina asked her to make changes to her report, but the
employee was uncomfortable making the change as Nina's request was inconsistent
with what the employee observed during a visit.
When Dr. Cahill testified, she explained her education and training as a
clinical psychologist, her expertise in best practice assessments and treatment for
children and in FDIA and described her involvement as a lecturer on that topic. Dr.
Cahill dealt specifically with FDIA in at least thirty different cases, where she found
that individuals either had or did not have FDIA. She also explained that she had
been previously qualified as an expert in FDIA and testified as such in about ten
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different cases. Although there was an initial challenge to her qualifications, after
voir dire, no one objected to the trial judge accepting her as an expert in FDIA.
When Dr. Cahill testified about FDIA generally, she stated that based on the
DSM-V, a diagnosis for an underlying medical condition would not negate or
preclude a finding of FDIA as well. Further, not all of the patient's treatments needed
to be unnecessary for a diagnosis of FDIA.
Dr. Cahill recounted her evaluations of Kyle and Nina as earlier described.
She had no concerns with Kyle's ability to care for the children. But she found Nina
to be "hostile and agitated."
Dr. Cahill specifically recalled looking at Haley's phone during Kyle's
evaluation and seeing instructions to Haley from Nina attempting to get her back to
Nina. It was clear to Dr. Cahill that Nina's coaching of Haley made Haley
"absolutely distraught."
Anytime Dr. Cahill attempted to discuss FDIA with her, Nina would deny she
had FDIA and continuously state that all the medical procedures, appointments, and
emergency visits Haley went through were necessary. To Dr. Cahill, it was clear
that Nina only liked those doctors who agreed with her and disregarded others, and
that Nina was "very, very angry" with the children's school for being concerned
about Haley's attendance. Dr. Cahill also testified about her second evaluation, in
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which she concluded Nina showed no improvement or understanding of how her
behavior negatively impacted the children. She also explained that the Division's
records were consistent with the FDIA diagnosis.
Based on her own observation, and the medical records from numerous
doctors, Dr. Cahill found there to be enough of a pattern of inconsistency for a
diagnosis of FDIA. She recommended the removal of all three children, as there
was "credible evidence that if one child [was] removed, the unnecessary treatment
moves to another child." She further stated that the prognosis of FDIA is very poor,
if not "the most poor prognoses . . . in child protection services."
Dr. Cahill also stated it was common for children of parents with FDIA to
purposely take on the sick role and are "choosey about when they exhibit those
symptoms," which was consistent with Haley not showing those symptoms when
she was at camp, with her friends, or attending extracurricular activities. According
to Dr. Cahill, if the children were returned to Nina, one would expect to "see
recidivism." On cross-examination, Dr. Cahill indicated that the children only
became distressed when Nina texted Haley during Kyle's evaluation. She further
stated that she never asked Haley whether her mother was exaggerating her
symptoms. Dr. Cahill stated her opinion did not change, even though others saw
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Haley sick and continuously vomiting as it was normal in an FDIA diagnosis but
also not important.
During Dr. Cahill's testimony, it was disclosed that she was not provided with
all the medical documentation. After defense counsel had the opportunity to prepare
questions regarding the documents Dr. Cahill was not given, the doctor indicated
that she did not review "every single medical record." She further stated that if the
summary by Dr. Medina was incorrect, it would affect her report. However, she
stated that if she did not have all the medical records, that would not necessarily
change her opinion as it was not a requirement to read all the medical information
before making a diagnosis. After she was shown a summary from one provider
demonstrating that a doctor noticed Haley did vomit and had streaks of blood, Dr.
Cahill remained unconcerned, as the issue here was that Nina exaggerated Haley's
symptoms, not that they were fabricated.
As to Dr. Alfie taking Haley off her medication because that "could be
responsible for her worsening dysmotility condition," Dr. Cahill thought that was
something she should consider, but also stated that it could be part of FDIA as she
needed to question how exactly Haley was even placed on the medication. She
further admitted it was wrong for her to state that Nina suggested Haley be placed
on a feeding tube.
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During Dr. Medina's testimony, she explained that functional abdominal pain,
"is just pain, not necessarily caused by an organic." She said, "there might be other
causes, psychological causes, or just feelings that might create discomfort, distress."
While Dr. Medina first testified that none of the hospital records supported a finding
that Haley vomited, she later acknowledged records from CHOP that she failed to
review which stated that Haley did vomit and appear sick on occasions. While
reviewing other CHOP records on the stand, she admitted that some records did
indicate Haley was severely dehydrated and that she had anxiety which could have
"trigger[ed her] abdominal pain."
When Nina testified, she recounted that when Haley first started having
abdominal pain, she assumed it was just a stomach virus. But the pain got worse,
Haley had to leave school frequently, and she was diagnosed with celiac disease.
Nina described Haley's treatment at CHOP and later at JSUMC with Dr. Alfie, who
lowered Haley's medicine's dosage. Anytime Haley was hospitalized, Nina stated
that was always based upon recommendations from her doctors at CHOP, not at her
own insistence. According to Nina, Dr. Alfie's changes and being prescribed
Mirtazapine led to Haley's improvements. Nina denied ever exaggerating Haley's
medical issues and stated that she was following the Division's recommendations.
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According to Nina, she was almost always present when doctors were
examining and treating Haley, but there were several occasions where she was asked
to leave the room. Nina also denied being aware that CHOP recommended
outpatient counseling for Haley, and claimed she only heard that recommendation
from the Division. In any event, she believed that outpatient counseling would be
too difficult with Haley's health.
Nina did not recall the Pennsylvania visitation order that required the visits
with Kyle to take place in Pennsylvania, and even if that was a requirement, because
of Haley's health, visits in Pennsylvania were impossible. Nina did not take the other
children to visit Kyle when Haley could not go, as it would be unfair to Haley and
claimed he should have come to pick the girls up in New Jersey. As to her own need
for therapy, Nina indicated that she purposely did not follow the Division's
recommendations at first but stated that she currently was seeing the Division's
recommended therapist, however, she never informed the Division.
Several witnesses testified on behalf of Nina and stated that they had seen
Haley sick and vomiting, including Haley's original therapist, Nina's significant
other, Haley's maternal grandparents and other family members. They never saw
Nina act inappropriately towards Haley. They also testified Haley's health was
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improving when she changed her diet and was being treated by Dr. Alfie, which
occurred months prior to Kyle getting full custody of the children.
D.
On March 21, 2019, Judge Flynn placed his detailed decision on the record.
He noted that "the central issue . . . [was] whether . . . [Nina's] behavior . . . placed
the children at risk with regard to their health and safety."
In reviewing the medical records, Judge Flynn stated that while Haley was
anxious and had mild distress, "none of the symptoms that have been described by
[Nina] and endorsed by Haley on their initial presentation in the hospital" were
present. Further, while it was continuously claimed that Haley was "vomiting for
days on end," she was always well hydrated, and any abdominal pain she had always
reduced.
The judge found Nina's report of Haley's symptoms to be inconsistent with the
hospital's findings. While Haley "was found to be consistent [with] having [c]eliac
[d]isease and gastroparesis," lab results and the hospital's findings did not show any
dehydration, which normally would show if one had been continuously vomiting.
He found that Haley tended to act up and complain only in the presence of doctors
or other hospital staff.
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Judge Flynn further stated that after Haley started being treated by CHOP,
Haley's weight significantly fluctuated as well as Carrie's. He could only conclude
"that the diet and the regimen that was being followed in the household was . . .
completely chaotic," which he blamed Nina for causing. The judge was also
concerned with Nina's treatment of Haley with relation to medication as she
attempted "to get repeat doses of medication for [Haley], even before it was time,"
and requested that Haley be treated with various other drugs that the doctors advised
against. The judge also noted his concern with the children's excessive absences at
school, especially when Haley's attendance at camp was excellent.
Judge Flynn found Dr. Cahill to have been a credible expert witness. He also
addressed the testimony of Nina's expert, Dr. Brown, the mental health professional
who had testified at an earlier hearing, but not at trial. The judge concluded his
"background was totally inappropriate to the issue at hand [and h]e had no expertise
in this area [so] his opinion was not of value."
The judge also found that once the children were removed, the children's
eating habits were back to normal. In the care of Kyle, the children were minimally
missing school and were doing well in school, they were involved in extracurricular
activities, they had friends, went on vacations, and they were healthy again. Judge
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Flynn concluded that "the children [were] safe, and they . . . no longer need the
services of the Division under these circumstances."
The judge then conducted a best interests analysis, applying the factors set
forth in N.J.S.A. 9:2-4 in order to determine whether the children should remain in
Kyle's custody. He concluded that although there was no psychological evaluation
of Nina, which would have been helpful, he was satisfied that Nina had FDIA, and
"that it would be highly improper for [him] to award custody of the children to"
Nina. The judge awarded continued sole legal and physical custody to Kyle, with
Nina having visitation rights. Kyle was held responsible for all decisions relating to
the children's health and education, and he was not to consult Nina on these issues.
The judge directed Kyle "to immediately file an application under the FD docket"
for sole custody, which the judge would thereafter grant, just so Kyle had the order
going forward in a Pennsylvania court. This appeal followed.
II.
A.
Our review of a Family Part judge's determination in custody and parenting-
time matters is limited. We "accord deference to family [judges'] factfinding[s],"
"because of the family [judge]s' special jurisdiction and expertise in family matters."
N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting
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Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Indeed, a Family Part judge must
"frequently . . . make difficult and sensitive decisions regarding the safety and well-
being of children." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). We
have "invest[ed] the family court with broad discretion because of its specialized
knowledge and experience in matters involving parental relationships and the best
interests of children." N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354,
365 (2017) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v.
F.M., 211 N.J. 420, 427 (2012)). Where a Family Part judge relies on evidence
adduced at a hearing, we also "defer to the factual findings . . . because [the judge]
has the opportunity to make first-hand credibility judgments about the witnesses who
appear on the stand; [the judge] has a 'feel of the case' that can never be realized by
a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.
88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,
293 (2007)).
We accord substantial deference to the factual findings of the Family Part
when they are supported by "adequate, substantial, and credible evidence" in the
record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We
"defer to [F]amily [P]art judges 'unless they are so wide of the mark that our
intervention is required to avert an injustice.'" Ibid. (quoting F.M., 211 N.J. at 427).
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However, we "owe no special deference to the trial judge's legal
determinations." Slawinski v. Nicholas, 448 N.J. Super. 25, 32 (App. Div. 2016).
"Notwithstanding our general deference to Family Part decisions, [we are]
compelled to reverse when the [trial judge] does not apply the governing legal
standards." Ibid. (citation omitted).
B.
With these guiding principles in mind, we turn to Nina's and the Law
Guardian's contentions on appeal. Nina argues that Dr. Cahill was not qualified and
made inappropriate findings, which were "irreparably flawed and unreliable," and
therefore, the judge's March 2019 order should be vacated. Specifically, she found
it inappropriate for Dr. Cahill to have relied exclusively on Dr. Medina's summary
of Haley's medical records, even though Dr. Medina did not review the full medical
record and her findings contained errors. Also, Nina contends Dr. Cahill ignored
evidence that supported Nina's fitness as a parent and Dr. Cahill did not have the
relevant expertise. Nina also claims Dr. Cahill did not understand the severity of
Haley's health, and she argues that Dr. Cahill was not qualified as an expert and
labeled her opinion as a net opinion.
Nina further argues that it was also improper and a significant mistake for Dr.
Cahill to have claimed that Nina requested Haley be placed on a feeding tube, or for
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the doctor to have stated Nina was the only one who witnessed Haley vomit and she
was not dehydrated, when the medical records stated otherwise. She further argued
that it was inappropriate for Dr. Cahill not to have interviewed her fact witnesses,
and not to evaluate her with the children.
The Law Guardian's appellate contentions focus on Haley's health improving
in 2015 prior to the separation test and argues for that reason the judge's reliance on
the outcome of the separation test was misplaced.
We have considered Nina's and the Law Guardian's contentions in light of the
record and the applicable principles of law. We find them to be without merit.
In a Title Thirty action for care and supervision, the Division is authorized to
intervene when "a child who, although not abused or neglected, [may be] in need of
services to ensure [his or her] health and safety." N.J. Div. of Youth & Family Servs.
v. T.S., 426 N.J. Super. 54, 64 (App. Div. 2012). The Division may seek a "court
order to intervene and require a [parent or guardian] to undergo treatment, or seek
other relief, if the best interests of the child so require." N.J. Div. of Youth & Family
Servs. v. A.L., 213 N.J. 1, 9 (2013).
Once a judge determines the Division's supervision or care is no longer
needed, the judge should dismiss the matter, T.S., 426 N.J. Super. at 66, and conduct
a dispositional hearing "to determine whether a child who has been in the care,
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supervision, and custody of the Division 'may be safely returned to the custody of
the parent from whom the child was removed.'" N.J. Div. of Youth & Family Servs.
v. I.S., 422 N.J. Super. 52, 70 (App. Div. 2011) (quoting N.J. Div. of Youth & Family
Servs. v. N.D., 417 N.J. Super. 96, 107 (App. Div. 2010)), opinion clarified on denial
of reconsideration, 423 N.J. Super. 124 (App. Div. 2011), aff'd in part, rev'd in part,
N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8 (2013).
"When a court determines that a child may not be safely returned to the parent
from whom the child has been removed, the court may proceed with a guardianship
action and termination of parental rights." I.S., 422 N.J. Super. at 70 (citing N.J.
Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 121–22 (2011)). "An exception
to initiating such an action exists when 'the child's needs for stability and attachment'
are met by the non-custodial parent or other relative." Ibid. (quoting N.J. Div. of
Youth & Family Servs. v. A.W., 103 N.J. 591, 609 (1986)).
The standard for the dispositional hearing is the best interests of the child
under N.J.S.A. 9:2-4, unless the Title Thirty action involves an out-of-home
placement of the child and a dispute that does not involve two parents. See I.S., 214
N.J. at 40. The statute "is commonly used in a variety of family matters before a
court when making an initial custody determination or a change in custody is
requested." Ibid. As a result, a parent seeking the return of his or her child bears the
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burden to prove a change in circumstances warranting the child's return to that
parent's custody. Id. at 39–41.
"[A] noncustodial parent who obtains full-time care of a child after the
initiation of child-protection proceedings 'may always initiate a request for a change
in custody,' which involves a changed-circumstances inquiry and, ultimately,
becomes a best-interests analysis." I.S., 214 N.J. at 40 (quoting N.J. Div. of Youth
& Family Servs. v. G.M., 198 N.J. 382, 402 n.3 (2009)). The parent to whom
custody was temporarily transferred during the child-protection litigation has the
burden of proving placement with them under the best-interests standard. See id. at
40–41. Even if this process is not followed "precisely," placement with the parent
to whom custody was temporarily assigned is suitable when that parent is "the only
appropriate parent to award custody . . . at the dispositional conclusion of [the] . . .
Title [Thirty] proceeding." Id. at 41.
A parent who receives custody temporarily can seek permanent custody based
upon the other spouse's psychological incapacity, because "a psychiatric disability
can render a parent incapable of caring for his or her children." N.J. Div. of Youth
& Family Servs. v. I.Y.A., 400 N.J. Super. 77, 94 (App. Div. 2008). This is so even
if parents are otherwise "morally blameless . . . ." N.J. Div. of Youth & Family
Servs. v. A.G., 344 N.J. Super. 418, 438, 458 (App. Div. 2001).
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Typically, although not required, best interests determinations, especially
those involving mental or physical health issues, are made with the help of experts,
who a trial judge finds to be credible. See Brown v. Brown, 348 N.J. Super. 466,
478 (App. Div. 2002); Wist v. Wist, 101 N.J. 509, 514 (1986). To be admissible, an
expert's opinion must meet the requirements of N.J.R.E. 703.
N.J.R.E. 703 mandates that expert opinion be grounded in "facts or data
derived from (1) the expert's personal observations, or (2) evidence admitted at the
trial, or (3) data relied upon by the expert which is not necessarily admissible in
evidence but which is the type of data normally relied upon by experts." Townsend
v. Pierre, 221 N.J. 36, 53 (2015) (quoting Polzo v. County of Essex, 196 N.J. 569,
583 (2008)). The opinion "requires an expert to give the why and wherefore of his
or her opinion, rather than a mere conclusion." State v. Townsend, 186 N.J. 473,
494 (2006).
Here, while it is true Dr. Cahill failed to consider all of Haley's medical
records and did not actually observe Nina with the children, her unrefuted opinion
was well supported by facts in the trial record. First, Dr. Cahill had extensive
experience with FDIA and was an expert in evaluating whether a parent suffered
with that disorder. Second, in reaching her opinion, the doctor relied on her own
evaluation of the parties and their children, volumes of medical records as
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summarized by Dr. Medina, and significantly, the results of the children's separation
from Nina.
To the extent that Nina argues Dr. Cahill's evaluation was deficient because
there was no evaluation of Nina with the children, her contention ignores the fact
that portion of the evaluation was not conducted due to Nina's conduct. Moreover,
like her other arguments about deficiencies in Dr. Cahill's testimony, her contentions
are unsupported by any expert opinion to the contrary. Each of the judge's findings
here were well supported by Dr. Cahill's unrefuted expert testimony and the other
evidence adduced at the trial. We have no cause to disturb the outcome here.
We are not persuaded otherwise by the Law Guardian's contentions either.
While judges normally would consider the wishes of the children, Judge Flynn
correctly concluded because
the fact that the children's ideas and impressions about
who they are and how they're feeling, and what kind of
illnesses they have or don't have, have been so infected
by what the mother has done, . . . their particular
decisions cannot be given the kind of weight that the
Court otherwise would normally give it.
As the extensive record demonstrates and Dr. Cahill sufficiently explained,
Nina's FDIA diagnosis caused Haley to have a distorted view of reality, which
negatively impacted her relationship with Kyle. The fact that Haley started to feel
better prior to Kyle getting sole legal and physical custody is insufficient to support
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the return of custody to Nina. Here, Haley had been treated for her stomach issues
since September 2013. It is not a coincidence that Haley's life started to get back to
normal after the Division's involvement and when she was taken off medications.
Even if Haley's and Carrie's health started to get better in Nina's care, there is
clear evidence that Nina suffers from FDIA that greatly impacted the children's lives,
and that the Division's and Kyle's assistance helped get their lives back to normal.
Moreover, once Haley and her sisters were removed from Nina's care and placed
with Kyle, they began to thrive in most aspects of their life. Haley was attending
and doing good in school, excelling in her musical endeavors, she had a good group
of friends, she ate well, was no longer on medication, and most importantly was no
longer suffering from abdominal pain. Further, neither Carrie nor Sarah
demonstrated any concern with Kyle's care and supervision.
Finally, contrary to Nina's contention, in making his decision, the judge did
not rely on whether Nina requested Haley be placed on a feeding tube. The judge
clearly stated in his findings that "[i]t's clear that it was not the mother who
recommended or pushed for feeding tubes." Instead, when considering the best
interests of the children, the judge relied upon the extensive medical records and the
testimony of Kyle, Dr. Cahill, the Division workers, the former school principal, and
others.
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To the extent we have not specifically addressed any of Nina's or the Law
Guardian's remaining arguments, we conclude they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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