Opinion
DOCKET NO. A-3822-14T3
01-20-2017
C.H.G., Plaintiff-Respondent, v. G.C.R., Defendant-Appellant.
Winnie E. Ihemaguba, attorney for appellant. Respondent has not filed a brief.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Fisher and Leone. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-1725-10. Winnie E. Ihemaguba, attorney for appellant. Respondent has not filed a brief. PER CURIAM
This appeal challenges the family court's February 10, 2015 order vacating an earlier order providing for therapeutic supervised visitation (TSV) between defendant G.C.R. ("Mother") and her two sons, who were born in January 1999 and in November 2001. We affirm.
I.
The children were removed from Mother's custody in May 2009 by the Division of Youth and Family Services. They have been living with their father, plaintiff C.H.G. ("Father") and his wife since June 2009. In the Division litigation, Mother had supervised visitation but it was suspended in January 2010. Mother was restrained from all contact with the children, both Mother and the children were ordered to receive therapy, and visitation could not resume without a recommendation from the children's therapist. The Division litigation was terminated in July 2010 because the children were in Father's legal and physical custody.
In 2012, Mother made a motion for visitation in the Family Part, and the case was thereafter before Judge Sohail Mohammed. Following in camera interviews with the children and a multi-day plenary hearing, the family court determined it was in the best interest of the children to try to open up communication between Mother and the children. Accordingly, the court ordered TSV and appointed a TSV provider.
After a year, the family court determined that little progress was being made with the first appointed TSV provider, and the court suspended the order and let the parties choose their own expert. Four months later, the court found no progress was being made and appointed a second TSV provider. Ten months later, after the second provider was also unsuccessful, the court granted Father's request that the court interview the children.
I will interview the children. I find it appropriate. These children are soon to be 16 and a 13-year-old I have previously interviewed. I have detailed notes. I have a detailed record on these children. I'm very familiar with their case. And to assess the issue that I have before me moving forward, whether or not I would appoint [an expert and] who I would appoint, I think it is appropriate for this Court at this point.
The family court interviewed the children. The older son reiterated that he is happy with Father and his stepmother, whom he calls "mom." He stressed that he wanted the litigation to end and that he had no interest in letting Mother back into his life. The older son recounted the abuse he received from Mother, specifically how she would beat him and force him to hide from the police. He was particularly concerned that visitation would turn into overnight visitations and potentially into Mother wanting custody. He was not receptive to speaking to Mother by video or by phone. He thought she had enough chances and made too many mistakes for him to be receptive to cultivating a relationship now.
The younger son similarly recounted the abuse he endured from Mother, particularly how she would hit them daily and how she would throw the vacuum cleaner and chairs out of anger. He did not think she was a good person, and even if she changed, he believed she eventually would go back to her prior behavior. He also was not interested in talking to her on the phone or texting. He was happy living with Father and his stepmother.
The family court rendered its decision on February 10, 2015:
I explored the option of any visitation. . . . It appears to this Court that . . . both children do not want any contact whatsoever. And as to visitation, no to visitation. And I asked any reason why. And their responses were, she beat me. She left us alone. Told us . . . to lie when the cops come in. . . . And that she is not a mother to us. . . .
The children are very fearful of this mother. And their fear stems from they feel that the visitation is just one step that she's taking towards gaining custody of the children. . . . These children are much more mature than they were in September of 2002 (sic) when I interviewed them. [The older son] at that time was 13 year's old. He was in eighth grade . . . and now he's 16 year's old.
And it is clear to this Court that they are determined. They are both very adamant. And I did not feel there was any influence whatsoever from [Father] or anyone because their emotions are very much the same what they were in 2002 (sic), except this time they have taken on a very assertive approach. And that is consistent with [the older son]'s age and his maturity.
It almost appeared to this Court that [he] cannot wait to get to be 18 so that . . .
he can control his own destiny. So any indication that I had and any illusions that somehow they were coached, or their responses were somehow either manipulated, this Court does not have that feeling whatsoever.
. . . .
In the most clearest terms I can say these children . . . were not influenced. As to [the younger son], [he] is now 13. And . . . his recollection was she would smack us for no reason. She threw [the] vacuum, chairs. She is nutty. She is not part [of] my life. She wants to win a battle and get us back. And when I asked him . . . what kind of communication will be acceptable, or maybe possible, . . . his answers were very direct. No to email. No to text. And he asked the Court, why would I even do that?
. . . .
Based on all of these facts, I do not find at this point that the continued involvement for exploring a reunification is in the . . . children['s] best interest. Maybe at some point when the children do not feel the pressure, maybe there will be some opening in the future. But I don't see that future happening any time soon.
And the option that I have left for me is, A, force these children, now that I have heard from them, to a session where they will be threatened with or have the Division of Child Protection and Permanency pick them up from school, from home, wherever they may be, to go to these appointments, if they are scheduled.
The Court finds that . . . will not only . . . disserve . . . the best interest of these children, it may be, in fact, . . . harmful to their interest. And that is the children are legitimately fearful of the mother.
. . . .
And at this point, I am satisfied - based on the totality of the circumstances, I find that any step in that direction would be
disserving (sic) these children. Would not be in their best interest. It would be harmful to their interest.
II.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.' Because a trial court '"hears the case, sees and observes the witnesses, [and] hears them testify," it has a better perspective than a reviewing court in evaluating the veracity of witnesses.'" Id. at 412 (citations omitted).
"Appellate courts accord particular deference to the Family Part because of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, supra, 154 N.J. at 412). We reverse only if there is "'a denial of justice' because the family court's 'conclusions are . . . "clearly mistaken" or "wide of the mark."'" Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We must hew to this standard of review.
III.
"[I]t is in the public policy of this State to assure minor children of frequent and continuing contact with both parents[.]" N.J.S.A. 9:2-4.
"[T]he denial of visitation rights is such an extraordinary proscription that it should be invoked only in those exceptional cases where it clearly and convincingly appears that the granting of visitation will cause physical or emotional harm to the children or where it is demonstrated that the parent is unfit."
[V.C. v. M.J.B., 163 N.J. 200, 229 (citation omitted), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).]
Mother argues the family court effectively terminated her visitation rights without a showing that she was unfit or that TSV would cause emotional or physical harm to either son. However, the court did not terminate Mother's visitation rights, which had been suspended by an order during the Division litigation that Mother did not appeal. Rather, the court attempted reunification but vacated its order for reunification "until further order of court," saying that "[i]f an application is made, we will revisit the issue."
In any event, the family court found that visitation would be harmful to the children. The court detailed the physical and emotional harms the children experienced and feared they would experience if visitation resumed. The court based its findings on its familiarity handling the case for almost three years and its interviews with the children. Those interviews provided the court not only with detailed factual information about their encounters with Mother but also with the preferences of the two teenagers.
In determining "custody, the court shall consider . . . the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision." N.J.S.A. 9:2-4(c). "We have also held that the 'child preference' factor is applicable to disputes regarding visitation and parenting time." Uherek v. Sathe, 391 N.J. Super. 164, 167 n.1 (App. Div.), certif. denied, sub nom. Uherek v. Uherek, 192 N.J. 72 (2007). The child's preference "must be accorded 'due weight.' This standard gives the trial court wide discretion regarding the probative value of a child's custody preference." Beck v. Beck, 86 N.J. 480, 501 (1981) (citation omitted). Moreover, "the desires of older children may be entitled to stronger consideration than that afforded to younger children." Wilke v. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985).
The preferences and other facts from the interviews with the children supported the family court's conclusion. Their strongly-held preference to have no visitation or contact with Mother was entitled to due weight, particularly as they were both teenagers and the older son was not far from adulthood. Their statements to the court were strong evidence that emotional harm would result by continuing to pursue visitation at this time. Even discounting their fear that visitation would result in Mother obtaining custody, as that was in control of the court, there was ample evidence to support the court's conclusion that visitation at that time would cause emotional harm to both children.
Mother argues the family court was required to hold a plenary hearing. "[I]n the Family Part, a plenary hearing is only required if there is a genuine, material and legitimate factual dispute." Segal v. Lynch, 211 N.J. 230, 264-65 (2012); see R. 5:8-6. "[A] party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary." Lepis v. Lepis, 83 N.J. 139, 159 ( 1980); accord Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007).
Mother did not request a plenary hearing at the conferences before or after the children's interviews. She has not identified any genuine issue of material fact that had to be resolved in a hearing. She does not dispute that the family court accurately reported the children's views and preferences as expressed in the interviews. She did not submit any certifications to contest them or proffer any contrary testimony. In these circumstances, "we see no reason to vacate the removal order and compel a plenary hearing that would only disrupt the lives of the parties and their children and be very unlikely to lead to a different outcome." Barblock v. Barblock, 383 N.J. Super. 114, 127 (App. Div.), certif. denied, 187 N.J. 81 (2006).
Mother has submitted to us a psychological evaluation done of Mother dated July 30, 2015. Because that evaluation was not prepared until long after the family court's February 10, 2015 decision, it was not before that court and could not create a basis for a plenary hearing. In any event, though the report concludes that Mother is ready for therapeutic visitation, the report is not based on any assessment of the children and does not rebut the court's finding that the children would suffer emotional harm. --------
Mother relies on our decision requiring a plenary hearing in Wilke, supra, 196 N.J. Super. at 503. While this case is similar in some respects to Wilke, there are several key facts that set these two cases apart.
In Wilke, the trial court terminated the plaintiff's visitation rights with his son, and his request for renewed visitation was denied without a plenary hearing. Id. at 491, 495. The court heard oral argument, reviewed the conflicting affidavits filed, and conducted an in camera interview with the plaintiff's fifteen-year-old son. Id. at 495. We stressed, first, "that a case should not be decided merely on the basis of conflicting affidavits." Id. at 501. Second, psychiatric reports "indicated that the boy's fear of his natural father and unwillingness to visit with him . . . was largely due to what the defendant and her husband had been telling the child." Id. at 492-93. We found "the evidence of potential influence of the custodial parents draws into question the judge's reliance on the child's stated preference." Id. at 498. Third, "the judge incorrectly appeared to give weight to the fact that plaintiff did not immediately challenge the termination of his rights when he concluded his findings with reference to plaintiff's delay of about six years in seeking to assert visitation rights." Id. at 501.
We held in Wilke "that under the circumstances, before the drastic step was taken of effectively terminating plaintiff's rights of visitation, a plenary hearing with testimony of the parties and other necessary witnesses was required. Only under such circumstances can an accurate determination be made of what is in [the child]'s best interest." Id. at 502. Finally, we saw no evidence that "visitation would have caused physical or emotional harm to the child[]." Id. at 503.
By contrast, in this case, there were no conflicting affidavits. Moreover, the family court stated repeatedly that it saw no improper influence from Father or his wife and that the children's feelings toward Mother did not stem from such interference. We accord that finding deference because the court saw and heard the children and had extensive interactions with the family. Further, both boys had vivid memories of their time with Mother, as recounted to the court during their in camera interviews, unlike the child in Wilke, who had no recollection of his biological father. Cf. id. at 497. Moreover, Mother has not shown that the court improperly gave weight to any factors. Most importantly, the court found ample evidence that visitation would cause the children emotional harm based on its interviews with the children. The court's interviews with the children provided "an evidential basis" for its decision. Cf. Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982) (finding the court improperly ordered visitation based solely on "self-serving certifications by the parties[ and] conflicting psychiatric reports"). Thus, Wilke did not require a plenary hearing in this case.
Mother asserts the family court should have utilized an expert under Rule 5:3-3(a), which authorizes appointment "[w]henever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion." In fact, the court had appointed a series of experts with little success. The court interviewed the children in part because it was "trying to minimize these children['s] exposure yet again for a new expert and another round of experts[.]" The interviews with the children convinced the court that it would be fruitless at that time to appoint an expert. We find no abuse of discretion.
Mother asserts that Father thwarted the therapeutic visitation process by refusing to cooperate with the experts. Of course, a parent should not be allowed to prevent visitation by being uncooperative or by alienating the child against the other parent. We rely on the family courts to detect and remedy such improper efforts and thus enforce "'[t]he policy of the law of this State against the thwarting of effective visitation rights.'" Cooper v. Cooper, 99 N.J. 42, 68 (1984) (citation omitted). Here, the family court decided against another appointment of an expert due to the children's preferences, which it found were not the result of improper influence by Father. On this record, we find no basis to second-guess the court's determination.
For similar reasons, Mother argues that the family court should have appointed a guardian ad litem for the children. Rule 5:8B(a) provides that, "[i]n all cases in which custody or parenting time/visitation is an issue, a guardian ad litem may be appointed." Ibid. (emphasis added). "R. 5:8B(a) permits the discretionary appointment by a judge of a guardian ad litem[.]" Isaacson v. Isaacson, 34 8 N.J. Super. 560, 573 (App. Div.), certif. denied, 174 N.J. 364 (2002). Given the court's familiarity with the parties, the children, and the course of the TSV effort, we will not disturb the court's discretionary decision to not appoint a guardian ad litem.
Finally, Mother contends that the family court violated her right to due process. To the contrary, after Father suggested the court interview the children, the court solicited Mother's position and Mother's counsel was "not opposed to it." The court gave advanced notice of the interviews, gave the parties the opportunity to propose questions for the interviews, and considered Mother's questions.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION