Opinion
DOCKET NO. A-0461-09T3
02-07-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. A.K., Defendant-Appellant, and A.W., Defendant-Respondent. IN THE MATTER OF P.W. and A.W., minors.
Michael C. Wroblewski, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Wroblewski, of counsel and on the brief). Justin J. Walker, Designated Counsel, argued the cause for respondent A.W. (Yvonne Smith Segars, Public Defender, attorney; Mr. Walker, of counsel and on the brief). @@@ John W. Tolleris, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Tolleris, on the brief). Phyllis G. Warren, Assistant Deputy Public Defender, argued the cause for minors P.W. and A.W. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Warren, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Nugent.PER CURIAM
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-82-08.
Michael C. Wroblewski, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Wroblewski, of counsel and on the brief).
Justin J. Walker, Designated Counsel, argued the cause for respondent A.W. (Yvonne Smith Segars, Public Defender, attorney; Mr. Walker, of counsel and on the brief).
John W. Tolleris, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Tolleris, on the brief).
Phyllis G. Warren, Assistant Deputy Public Defender, argued the cause for minors P.W. and A.W. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Warren, on the brief).
Defendant A.K. appeals from an August 10, 2009 Family Part order granting sole legal and physical custody of her daughter, Jane (a fictitious name), to A.K.'s ex-husband and Jane's father, A.W. The order also awarded sole legal custody of A.K. and A.W.'s son, John (a fictitious name), to A.W., but A.K. does not challenge that determination. We affirm.
I.
A.K. and A.W. were married in 1997 and had two children: Jane, born in 1998, and John, born in 2001. On December 30, 2004, A.K. demanded A.W. leave the family home because she believed he had been unfaithful. A.W. left as demanded, and shortly thereafter A.K. filed for divorce. In January 2005, R.O., with whom A.K. had formed a relationship, moved into her residence. The children continued to reside with their mother and R.O., but spent parenting time with their father at his apartment.
R.O. was initially named in the complaint but was subsequently dismissed from the action.
On June 28, 2005, while the parties' contentious divorce case was pending, A.K. reported to the Division of Youth and Family Services (the Division or DYFS) that her daughter had been exhibiting sexualized behavior and had made sexual abuse allegations against A.W. The Division investigated the allegations and concluded they were unfounded, but referred Jane for counseling.
This was the first of more than a dozen sexual abuse accusations A.K. made against A.W. and others during the divorce and DYFS proceedings that spanned four years. A.K.'s allegations included sexual abuse of Jane by an eighty-five year-old aunt who was bedridden with polio; politicians; and a female police officer. A.K. also made several allegations that A.W. and others had sexually abused John. A.K.'s allegations, including two investigated by county prosecutors, were all determined to be unfounded.
Although A.K. had reported in June 2005 that A.W. had abused Jane, in July she entered into a consent order in the divorce (FM) action that provided for A.W.'s unsupervised parenting time with the children. On the day that order was executed, August 1, 2005, A.K. made another allegation that A.W. had abused Jane. Later that month, after A.W. had spent overnight parenting time with the children, A.K. again reported to DYFS that A.W. had abused Jane. The Division determined that the allegations were unfounded.
A.W. exercised parenting time with the children through August 2005. On August 27, 2005, A.K. made another allegation that A.W. had sexually abused Jane, an allegation that resulted in A.W.'s arrest. The charges were subsequently dismissed. During the investigation of the charges, Jane's counselor expressed to DYFS in September 2005 significant concern that the sexual abuse claims were false. Nevertheless, as a result of A.K.'s accusations and Jane claiming to be afraid of her father, A.W. did not see Jane again until April 2008.
Meanwhile, in the FM action, the Family Part granted A.K. and A.W. a dual judgment of divorce (JOD) in September 2006. The JOD provided that the parties would share joint legal custody of the children, designated A.K. the parent of primary residence, and included a consent order that Jane and A.W. were to begin reunification therapy. In June 2007 the Family Part modified the custody arrangement after A.K. deprived A.W. of parenting time with John. The court awarded A.W. primary residential custody of John and suspended A.K.'s parenting time with her son. The court also authorized A.W. to monitor A.K.'s phone calls with John and terminate them if A.K. "threaten[ed] the child with punishment, promise[d] the child rewards, discusse[d] the details of the previous allegations of abuse, disparage[d] [A.W.] or otherwise upset[] the child." A.K. nonetheless continued to report to the Division allegations that A.W. had sexually abused Jane, claiming that John had witnessed the abuse.
A.K., A.W., R.O., and the children eventually underwent psychological and psychiatric evaluation. On June 27, 2007, at the Division's request, Dr. Rachel Modiano, a psychologist, evaluated Jane. After reviewing a comprehensive history and conducting a thorough interview with Jane, the doctor determined that Jane showed "developmental lags, particularly in the interpersonal arena." Dr. Modiano explained that Jane "presented as needy, dependent, immature, manipulative and socially inappropriate." Emotionally, Jane was "immature and anxious with an almost constant need for adult attention and reassurance."
Dr. Modiano characterized Jane's statements and behaviors about sexual abuse as "puzzling and confusing, as they have included reports that have become increasingly hard to believe." The doctor acknowledged the possibility "that Jane has experienced some direct sexual abuse," but considered as viable "that rather than having been sexually abused[,] . . . [Jane] was somehow exposed to inappropriate sexual stimuli and began to talk about them and act out, thereby gaining a great deal of attention from adults in her world." Dr. Modiano noted the report of another psychologist, Dr. Alan Gordon, who had previously evaluated A.W., A.K., and R.O. and expressed concern that A.K. and R.O. were putting ideas into Jane's head. Dr. Modiano met with A.K. and R.O., who admitted that R.O. had slapped Jane on the back of the hand to get her to identify who had done "bad things" to her.
Dr. Modiano recommended that Jane be placed in an intensive therapeutic program, that A.K. and R.O. "de-focus" on abuse and "re-focus on personal safety," and that A.W. have limited, supervised contact with Jane, preferably in the form of therapeutic visits, to work on building a relationship as opposed to focusing on renewing parenting time. Significantly, Dr. Modiano concluded Jane could stay with her mother if "the family agrees to and complies with therapeutic interventions[.]" She cautioned, however, that removal would be necessary if Jane's allegations of sexual abuse continued unabated, if unsubstantiated new allegations surfaced, or if there was reason to believe Jane's caretakers were coaching or re-enforcing false claims.
Dr. Sonia Oquendo, a psychiatrist, evaluated Jane at the Division's request on July 25, 2007, and found that Jane had a vivid imagination and trouble distinguishing between reality and fantasy. The doctor opined "that the beliefs held by both [Jane and her mother] regarding [Jane's] sexual molestation rise to the level of a delusion." Dr. Oquendo believed Jane suffered from pervasive developmental disorder and recommended that she enter treatment to resolve her issues of sexual molestation, that she be re-introduced to her father in a therapeutic setting to facilitate bonding between them, and that A.K. refrain from attending therapy while Jane was meeting with her father.
Dr. Oquendo evaluated A.K. a month later on August 26, 2007. She diagnosed A.K. with delusional disorder and personality disorder (histrionic and narcissistic traits) and recommended she attend psychotherapy. The doctor thought it premature to make any final determinations concerning Jane's legal or physical custody. Subsequently, a Division caseworker offered to refer A.K. to a psychotherapist, but A.K. refused, advising that she had arranged to meet with a therapist on her own. This never occurred.
In October 2007, neuropsychologist Daniel LeGoff evaluated Jane. Dr. LeGoff suspected that Jane had a mild case of Asperger's Disorder, and expressed concern that she had severe social development deficits. Jane began therapy at his center shortly thereafter, which resulted in significant improvement of Jane's development and her emotional and mental well-being.
On November 16, 2007, the Division filed a complaint under "N.J.S.A. 9:6-8.21 et seq." and N.J.S.A. 30:4C-12 alleging abuse and neglect. Citing the opinions of Drs. Gordon, Modiano and Oquendo, the Division alleged that Jane was emotionally fragile and A.K. was adversely affecting the emotional health of her children by making false allegations of sexual abuse. The Division sought to remove Jane, place her in foster care, and provide her with needed services. At the conclusion of a Dodd hearing that same day, the court removed Jane from A.K.'s custody and placed her in the care, custody, and supervision of the Division. The court also ordered that visitation between A.K. and her children be supervised and that the children continue reunification therapy.
In the complaint, the Division also sought custody of John, but did not pursue that request because John was living with A.W. as ordered in the FM action.
When a child has been removed without a court order, the Family Part is required to hold a hearing on the next court day to determine whether the child's interests require protection pending a final order of disposition. See N.J.S.A. 9:6-8.31. The hearing is referred to as a "Dodd hearing," because Senator Frank J. "Pat" Dodd authored the Title 9 legislation requiring this hearing in 1974. See N.J. Div. of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 4 n.1 (App. Div. 2010).
The court conducted two management conferences in January and February 2008, at which A.K. was present and requested adjournments. On May 9, 2008, as the abuse and neglect hearing was ready to proceed, A.K. stipulated that she and her children were in need of the Division's services under Title 30 in order for her to "adequately and safely" parent her children, and she acknowledged that by entering into the stipulation the court would not be making any finding of abuse and neglect against her. In view of A.K.'s stipulation, the court entered an order providing that defendant "knowingly, willingly and voluntarily admitted to the following fact[]: She and her children were and are in need of services from the Division to remedy family functioning problems."
After several unsuccessful attempts to have A.K. attend counseling and parenting skills training, the Division found a program that A.K. would attend. On July 7, 2008, A.K. and her son began therapy with Craig Hutton from the Children's Home Society. Jane eventually participated in the therapy with her mother and brother.
Meanwhile, Jane's therapy with her father took a positive turn and by August 2008 she began to bond with him, despite A.K. persistently questioning Jane about the reunification therapy. Jane's foster mother overheard Jane on several occasions lie to her mother and tell her that counseling with her father was "bad." When the foster mother confronted Jane, Jane begged her not to say anything and began crying because A.K. had told Jane that if she "chose" A.W., A.K. would leave and Jane would never see her again.
In September 2008, Dr. Lorraine M. Wiegand psychologically evaluated A.W. and concluded that he was neither empathetic nor compassionate, and might be suffering from mild Asperger's Disorder. She determined he did "not seem capable of providing a nurturing, emotionally enriched environment for his children," but was cognitively capable of parenting. The doctor recommended that he undergo both individual therapy and family therapy with John. John was to continue ongoing individual therapy as well, and both parents were to be counseled on the detrimental effects a custody battle has on children.
A.K. also underwent two additional psychological evaluations; she met with Dr. Gordon in October 2008, and Dr. Jonathan Mack, whom she had retained, in November and December 2008. Dr. Gordon found that A.K. showed evidence of a narcissistic personality disorder with histrionic traits and obsessive compulsive features, and concluded it would be difficult for A.K. to support a relationship between Jane and A.W. It was unlikely she would interfere in that relationship if she understood the consequence that Jane would be removed from her care. Dr. Gordon was of the opinion that A.K. needed continuing therapy.
Dr. Mack concluded that A.K. had a chronic adjustment disorder with mixed anxiety and depressed mood. However, based upon psychological testing, he believed she was fit to parent her children. He also believed A.K. and Jane had a close bond and recommended Jane be immediately removed from foster care and placed with her mother in order to avoid irreparable, permanent harm.
Between September 2008 and commencement of the permanency hearing on December 15, 2008, Jane completed her therapy with the neuropsychologist. Jane's reunification therapy had proceeded to the point where the court authorized unsupervised visits for Jane with her father.
The parties presented evidence at the permanency hearing on seven non-consecutive days between December 2008 and July 2009. During that time, A.K. continued to make accusations that A.W. and others were sexually abusing Jane, and continued to pressure the children. On January 21, 2009, the guardian ad litem, who had been appointed in the FM action, requested that visitation between Jane and her mother be supervised because A.K. continued to interfere with Jane's therapy. Jane told DYFS caseworker Sherita Williams that A.K. instructed Jane to say her foster mother was hitting and mistreating her. Several days later, Jane told a counselor that she had been sexually abused by A.W.'s relatives; John told the same counselor that he, too, had been abused by the same people. Thereafter, A.W. called Williams and reported that the children told him A.K. pressured them to lie to the counselor, and Jane confirmed as much.
On February 25, 2009, R.O., to whom A.K. was now engaged, bought a house in Pennsylvania, and A.K. moved in by May of that year. The house was more than a two-hour drive and more than 100 miles from A.W.'s residence.
During supervised visitation on May 4, 2009, A.K. told caseworker Angelina Brown that Jane had been abused and urged Jane to tell Brown what A.W. had done to her. When Jane refused, A.K. said, "If you can't tell her, you won't be able to tell the judge." When Jane again refused, A.K. said, "If you can't tell the truth I'm done with you, I don't like liars and I never lie[.]" Following the visit, while Brown was transporting Jane back to her foster home, Jane said no one had ever touched her.
On May 20, 2009, the guardian ad litem applied to the court for an order suspending parenting time between A.K. and the children because A.K. was continuing to discuss sexual abuse allegations with them. The trial court conducted a hearing on that issue at which time A.K. admitted bringing up the abuse allegations during a May visit and telling Jane she was "done" with her if the child did not tell the truth. She also conceded telling the children that people at court were trying to stop their visits and that she might never see them again, acknowledged she may have told the children she would move away if they did not tell the truth, and said that she meant every word when she told Jane that if Jane chose to live with her father, A.K. would never see her again. A.K. also remembered telling Jane, in anger, "I can't live with this. You have destroyed my life." The trial court ultimately suspended A.K.'s parenting time with the children.
On the first day of the permanency hearing, the Division stated that its placement plan had changed from Jane's reunification with her mother to Jane's reunification with her father. The Division called three caseworkers, Brenda Chandler, Sherita Williams and Angelina Brown, and introduced numerous exhibits, including the psychological, neuropsychological, and psychiatric reports. A.W. and A.K. both testified. A.K. also called Dr. Mack. The evidence established the facts set forth above.
Additionally, DYFS caseworker Brenda Chandler opined on cross-examination that A.K. was "still capable of dealing with her children and their best interests," regardless of what she believed about the sexual abuse allegations. Chandler also testified that "[i]t's important for [A.K.] to continue unsupervised visits with [Jane]."
Dr. Mack testified on behalf of A.K. and initially maintained the opinions set forth in his report. When confronted with A.K.'s conduct during 2009, however, Dr. Mack said he would "probably" modify his opinion that Jane should be immediately removed from foster care. He preferred not to offer any additional opinions without the benefit of further evaluations, but conceded that his opinion of A.K.'s fitness as a parent would change if it were established the sexual abuse of her children never occurred, because it would be harmful to Jane if A.K. repeatedly brought up the false allegations.
On the last day of testimony, July 1, 2009, the court ordered Jane's immediate placement with A.W. Its order was based, in part, on an in camera interview with Jane, during which she confirmed the abuse allegations had been untrue and that she wished to live with her father. A.K. was permitted to continue having phone contact with her children, but visitation was suspended. The court rendered a final decision on August 10, 2009, granting sole and exclusive custody of the children to A.W. This appeal followed.
II.
Defendant raises the following points for our consideration on appeal:
POINT I A.K. WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
POINT II THE STIPULATION PURSUANT TO TITLE 30 VIOLATED A.K.'S RIGHT TO DUE PROCESS OF LAW AND THE RIGHT TO CUSTODY OF A.W. AS IT DID NOT CONSTITUTE A FINDING OF ABUSE AND NEGLECT.
POINT III THE TRIAL COURT ERRED BY CONDUCTING A PERMANENCY HEARING IN THIS MATTER AND APPLIED THE WRONG LEGAL STANDARD DURING THE HEARING (Partially Raised Below).
POINT IV A.K. WAS DENIED DUE PROCESS OF LAW AS THE CUSTODY TRIAL WAS CONDUCTED AT A LESSER EVIDENTIARY STANDARD IN THE FN MATTER THAN IT WOULD HAVE BEEN HAD THE TRIAL OCCURRED UNDER THE FM DOCKET (Partially Raised Below).
POINT V A.K. WAS DENIED HER RIGHT TO DUE PROCESS OF LAW BY THE PARTICIPATION OF THE GUARDIAN AD LITEM IN THE TITLE 9 PROCEEDING (Partially Raised Below).
POINT VI THE TRIAL COURT IMPROPERLY CONDUCTED AN INTERVIEW OF THE CHILD A.W. IN CAMERA INSTEAD OF HAVING THE CHILD INTERVIEWED BY A PSYCHOLOGIST (Partially Raised Below).
POINT VII THE TRIAL COURT FAILED TO FOLLOW THE MANDATES OF R. 4:9 ET. SEQ., THEREBY ALLOWING DYFS TO PRESENT ALLEGATIONS NOT ORIGINALLY PLEADED IN ITS COMPLAINT (Not Raised Below).
POINT VIII THE TRIAL COURT ERRED IN AWARDING CUSTODY OF A.W. TO THE FATHER.
A.
We have long recognized that "[p]arents have a constitutionally protected right to maintain a relationship with their children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). That right "must be balanced against the State's parens patriae responsibility to protect the welfare of children." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (internal quotation marks and citations omitted). "The procedures for accomplishing those obligations are set forth in Title Nine, N.J.S.A. 9:6-8.21 to -8.73, and Title Thirty, N.J.S.A. 30:4C-11 to -14." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009).
Family courts deciding the profound issues involving the welfare of children have special expertise and "appellate courts should accord deference to family court fact-finding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). We give particular regard to the family judge's "opportunity to make first-hand credibility judgments about the witnesses who appear on the stand" and his or her "'feel of the case.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). We will not disturb a Family Part judge's findings of fact and conclusions of law unless "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412 (internal quotation marks and citation omitted). Nevertheless, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
B.
A.K. contends that her counsel was ineffective for four reasons: first, he failed to adequately communicate with her; second, he failed to object to the case's "track" placement after she entered into the stipulation at the fact-finding hearing; third, he failed to object to the participation in this case of the guardian ad litem who had been appointed in the FM action; fourth, her attorney was ineffective for agreeing to the Title 30 stipulation because the stipulation did not provide the basis for a Title 30 finding, and because he did not explain to her that the stipulation, which did not establish abuse or neglect, would result in the Division's retaining custody of Jane.
To establish ineffective assistance of counsel, A.K. must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). That test requires A.K. to establish, first, that counsel made errors so serious that he or she was not functioning as the counsel guaranteed by the Sixth Amendment, and, second, that this deficient performance prejudiced the defense. See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2064, 80 L. Ed. 2d at 698. A defendant "must do more than make bald assertions that [s]he was denied the effective assistance of counsel. [She] must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
In her arguments concerning counsel's failure to adequately communicate and failure to object to the track assignment, A.K. does not explain how she was prejudiced by these alleged deficiencies; she merely asserts that the deficiencies render her counsel ineffective. For example, A.K. claims her attorney did not return her phone calls, was difficult to reach, and that she contacted the attorney's office three times to complain about his unresponsiveness. However, when questioned about the stipulation at the inception of the fact-finding hearing, A.K. acknowledged that she had been afforded the opportunity to discuss her decision with counsel, that she had asked counsel questions, and that he had answered "any [questions] that [she] had thus far." Particularly in view of that testimony, A.K.'s conclusory statements about communications with her attorney and the case's track placement do not establish ineffective assistance of counsel under the Strickland standard. See Cummings, supra, 321 N.J. Super. at 170.
We also conclude that A.K. has failed to establish ineffective assistance under Strickland concerning her attorney's advice to enter into the stipulation at the factfinding hearing. A.K.'s counsel stated explicitly the reason for the stipulation: A.K. desired to avoid a finding of abuse or neglect. The evidence of abuse or neglect was substantial. By the date of the fact-finding hearing, A.K. had made numerous unfounded allegations that Jane had been sexually abused. The mental and emotional turmoil Jane had suffered as a consequence of those unfounded allegations was well-documented. By entering into the stipulation, A.K. avoided the risk of a finding that she had abused and neglected her children, which would have required that she be placed on the State's child abuse registry. See N.J.S.A. 9:6-8.11.
We also reject A.K.'s claim that counsel was ineffective for failing to object to the guardian ad litem's participation in the proceedings. Defendant has not satisfied the second Strickland prong by demonstrating either that the guardian ad litem would not have been appointed had counsel objected, or that the outcome of the proceedings would have been different absent the participation of the guardian ad litem.
Finally, A.K. contends that counsel failed to explain to her that Jane would not be returned to her following the stipulation. A.K. also claims a DYFS caseworker told her the Division would not be seeking an abuse and neglect finding.
The inquiry is not, as A.K. narrowly puts it, whether she would have entered into the stipulation had she known her daughter would not have been returned to her immediately; the issue is whether she would have entered into the stipulation knowing not only that the Division would retain custody of Jane, but also the risk of an abuse or neglect finding in view of the substantial evidence supporting the Division's complaint. Notably, A.K. acknowledged that by entering into the stipulation she would avoid the risk of an abuse or neglect finding. Considering those circumstances, A.K. has not established the second Strickland prong even accepting her claim that counsel failed to explain that Jane would not be returned following the stipulation.
C.
A.K. next contends that the stipulation violated her right to due process. On February 22, 2008, the day scheduled for the Title 9 fact-finding hearing, the court raised the issue of a stipulation with A.K.'s attorney. Defense counsel represented he had spent a significant amount of time with A.K., but A.K. contradicted him, telling the court she had difficulty contacting counsel. The court adjourned the fact-finding hearing to May 9, 2008. A.K. entered into the stipulation that day. The following colloquy occurred:
[By Defense Counsel]
Q. Ms. [A.K.], you're the mother of [Jane] and [John]. Is that correct?
A. Yes, sir.
Q. Okay. And drawing your attention to the period roughly in the fall of last year 2007 through November 16th when the Division filed it's complaint. Are you in agreement that there were certain issues going on in the family that -- where you required the assistance of the Division of Youth and Family Services in order to adequately and safely parent your children?
A. Yes, sir.
Q. Okay. And those services that you required included different forms of therapeutic services and counseling. Is that correct?
A. Yes, sir.
Q. Okay. And by making the statements you're making now you're requesting the Division of Youth and Family Services to continue those services. Is that correct?
A. Oh, yes, sir.
Q. And you would agree that the continuation by the Division of those services is necessary in order for you to properly, adequately, [and] safely parent [John] and [Jane]?
A. Oh, yes, sir.
Q. All right. And you understand that instead of making the statements you're making today, this is a fact -- this was scheduled for a fact[-]finding here so you're entitled to a full trial on the issues that DYFS presents in its complaint?
A. Yes.
Q. You're entitled to a trial. You understand that?
A. Yes.
Q. And at that trial DYFS would have to present its evidence and we would have the ability to cross[-]examine the evidence. Do you understand that?
A. Yes, sir.
Q. All right. And we would have the ability to present our own witnesses and present our own evidence you understand?
A. Yes, sir.
Q. Okay. And instead of having that trial today you're agreeing instead to make the acknowledgements and statements you made under Title 30. Is that correct?
A. Yes, sir.
Q. All right. And are you under the influence of any medications, drugs, alcohol or anything that would affect your judgment?
A. No. High blood pressure pills.
Q. Anything that would impair your ability to understand what's going on today?
A. Oh, no.
Q. All right. You've had the opportunity to discuss what you're [d]oing today with me. Is that correct?
A. Yes, sir.
Q. All right. And you've had the opportunity to ask me any questions?
A. Yes, sir.
Q. And have I answered any questions that you had?
A. Any ones that I had thus far, yes.
Q. Okay. And you understand that going forward if the Court accepts your stipulation as we go forward the Court will be issuing orders in this case that will require you to do things.
A. Yes.
[By DYFS counsel]
Q. Ms. [A.K.], [defense counsel] mentioned about services being provided. You acknowledge that some of those services are for your children as well?
A. Yes, sir.
Q. And that they will benefit and that they need those services that the Division has provided or otherwise facilitated?
A. Yes, sir.
A.K. argues that the lower court erred by accepting this stipulation because it was vague and did not correspond to any specific statute in Title 30. Additionally, A.K. argues that she was not informed that she could lose custody of her children if she failed to participate in the services provided by DYFS, and that an order placing a child under the care, custody and supervision of DYFS is only valid under N.J.S.A. 30:4C-12 for six months absent a summary hearing in which the court extends the time of the order.
The Division's complaint, filed November 16, 2007, was brought under the authority of Title 9 and Title 30. During the case management conference conducted on January 9, 2008, at which defendant appeared without representation, the Division noted that the next step would be to proceed to a Title 9 fact-finding hearing on the complaint's allegations of abuse or neglect. That cause of action changed on May 9, 2008, when the Division agreed to proceed under Title 30 following A.K.'s stipulation.
Under N.J.S.A. 30:4C-12, once the Division applies to the Family Part
for an order making the child a ward of the court and placing the child under the care and supervision or custody of the division[, t]he court, at a summary hearing held uponThus, the Family Part was "obligated to assess the best interests of the child." M.M., supra, 189 N.J. at 292.
notice to the division, and to the parent, parents, guardian, or person having custody and control of the child, if satisfied that the best interests of the child so require, may issue an order as requested, which order shall have the same force and effect as the acceptance of a child for care by the division as provided in section 11 of P.L.1951, c.138 (C.30:4C-11); provided, however, that such order shall not be effective beyond a period of six months from the date of entry unless the court, upon application by the division, at a summary hearing held upon notice to the parent, parents, guardian, or person having custody of the child, extends the time of the order.
A.K. stipulated that both she and her children needed the Division's services and that such services were necessary in order for her to properly, adequately, and safely parent her children. Moreover, in connection with the stipulation, A.K. acknowledged that she was entitled to a trial, that at the trial DYFS would have to present evidence and that A.K. would have the right to "cross[-]examine the evidence"; and that A.K. would "have the ability to present [her] own witnesses and present [her] own evidence."
A.K. challenges the Family Part's finding that she knowingly and voluntarily entered into the stipulation. The Division argues that the stipulation was tantamount to agreeing the best interests of Jane required that she remain in the Division's custody. Although we do not disagree with the Family Part's finding that A.K. knowingly entered into the stipulation, cf. Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 617-18 (App. Div. 2011) (setting forth the procedural requisites for a party's stipulation to abuse or neglect of a child), we agree with the law guardian that the doctrine of invited error bars A.K. from asserting as error the Family Part's acceptance of her stipulation.
"'The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision . . . was the product of error, when that party urged the . . . court to adopt the proposition now alleged to be error.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (quoting Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996)). The doctrine "would not automatically apply . . . if it were to 'cause a fundamental miscarriage of justice.'" Id. at 342 (quoting Brett, supra, 144 N.J. at 508).
Here, A.K. entered into the stipulation and implicitly agreed that she and her children would continue to participate in the services provided by the Division. Her explicit purpose was to avoid a fact-finding hearing and the substantial risk of an adjudication that she abused or neglected her children. Following the stipulation, she never informed the trial court that she had unknowingly entered into the stipulation or desired a fact-finding hearing on the issue of abuse or neglect. Rather, she participated in court proceedings for more than a year without ever attempting to revoke the stipulation.
More significantly, and as we have previously noted, the evidence that A.K. had jeopardized her children's health and welfare by repeatedly making allegations that they had been sexually abused was considerable. In view of A.K.'s acquiescence and the considerable evidence that she abused or neglected her children, we do not find that invoking the doctrine of invited error will cause a fundamental miscarriage of justice.
Finally, A.K. contends that her stipulation was invalid because she was not informed that the order entered following her stipulation was only effective for six months unless the court conducted a summary hearing and extended the order.
A.K.'s stipulation and the Division's consequent decision to proceed under Title 30 occurred on May 9, 2008. Under N.J.S.A. 30:4C-12, an order placing a child under the Division's custody is "not . . . effective beyond a period of six months from the date of entry unless the court, upon application by the Division, at a summary hearing . . . extends the time of the order." Here, a hearing was required to be conducted by November 9, 2008. When the Family Part issued its May 9, 2008 order it scheduled a permanency hearing for September 26, 2008, just more than four months later.
The parties were not prepared to proceed on September 26, 2008. A.K. did not object to an adjournment and her attorney told the court he intended to have A.K. undergo a bonding evaluation. After discussing with counsel the available dates to commence the permanency hearing, the Family Part scheduled it for December 15, 2008, seven months and one week after A.K.'s stipulation. The Family Part also entered an order on September 26, 2008 continuing Jane in the Division's custody. A.K. subsequently attended a pre-permanency hearing on December 1, 2008 and fully participated in the permanency hearing commencing December 15, 2008. Under those circumstances, we do not find the Family Part committed reversible error by failing to conduct the permanency hearing as scheduled on September 26, 2008, or by rescheduling it to a date approximately three months later.
D.
A.K. next contends that, after accepting her stipulation, the court conducted a Title 9 permanency hearing and improperly applied a best interests standard. A.K. also argues that the hearing was conducted at a lesser evidentiary standard than would have applied at a custody hearing in the FM litigation, thereby depriving her of the "meticulous fact-finding" required in such cases. Specifically, A.K. objects to the court's consideration of the hearsay reports of Drs. Oquendo and Gordon.
We disagree that the Family Part conducted a Title 9 permanency hearing. During the pre-hearing conference on December 1, 2008, the Family Part explicitly stated it would conduct a "permanency/best interests" hearing. The Division's attorney reiterated that the hearing would proceed under Title 30. Accordingly, we reject A.K.'s argument that the Family Part conducted a Title 9 dispositional hearing.
A.K. also contends that the Family Part conducted a custody hearing with a lesser evidentiary standard than would have been applied in the FM proceeding. The hearing, however, was a hearing conducted under Title 30. A.K. made no objection to the hearing, and the reports she now complains about were presumptively admissible under Rule 5:12-4(d), which permits the Division "to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal."
More significantly, "the posture of this particular litigation was defined by the court and accepted by the parties." J.D., supra, 417 N.J. Super. at 23. Additionally, even if, as A.K. asserts, the proper focus of the hearing was whether she had corrected the conduct resulting in Jane's removal, the evidence clearly established that she had not. Instead, her harmful conduct continued throughout the course of the permanency proceedings.
E.
A.K. also challenges the participation of the guardian ad litem, another issue she raises for the first time on appeal. Specifically, she contends: the law guardian must request the court to appoint a guardian ad litem and no such request was made in this case; the guardian ad litem's participation "shifted the focus of the proceedings from whether [A.K.] would be able to remedy the purported condition that led to the placement of [Jane] to what was in the best interest of [Jane]"; and that the guardian ad litem prevented her from calling a witness, a counselor to the children.
By failing to object to the guardian ad litem's participation during the entirety of the proceedings before the Family Part, A.K. deprived the other parties of the opportunity to argue the issue and deprived the court of the opportunity to address the merits of the guardian ad litem's participation.
Although A.K. contends the presence of the guardian ad litem severely prejudiced her by shifting the focus of the permanency hearing, there is no competent evidence that the Family Part applied a standard based upon the guardian ad litem's participation in the proceedings.
Lastly, it appears the Division's counsel subpoenaed the counselor and he appeared at the courthouse for questioning. Because he was an unscheduled witness, however, the court refused to allow his testimony. Accordingly, there is no merit to this contention.
F.
A.K. also contends for the first time on appeal that the trial court abused its discretion by conducting an in camera interview with Jane. Throughout the hearing, defense counsel encouraged the court to speak directly to Jane so that she could express her preferences with respect to custody. Moreover, A.K. submitted questions for the court to ask Jane. Having encouraged the court to interview Jane, A.K. is barred from now asserting a contrary position. M.C. III, supra, 201 N.J. at 340.
G.
Also for the first time on appeal, A.K. contends the court erred by permitting the Division to present allegations not originally pled in its complaint. Specifically, A.K. objects to evidence that, on January 26, 2009, the children informed their counselor that A.K. had pressured them to lie about their father; evidence of the February 23, 2009 incident in which A.K. pressured the children to repeat allegations of abuse to their counselor and threatened they would never see her again; and evidence of the May 27, 2009 incident when Jane informed A.K. her allegations had been false and defendant responded that she was "done" with Jane.
A.K. did not object to the evidence about her relationship with her children, which was relevant to the main issue raised in the original pleadings. Accordingly, the Family Part did not abuse its discretion by allowing the evidence.
H.
Finally A.K. contends that the Family Part erred by awarding custody to A.W. In its decision granting sole legal and physical custody of Jane to A.W., the court found A.W. to be credible, but determined that A.K. had not presented as credible with respect to the sexual abuse allegations, and also found that the sexual abuse allegations had been fabricated by A.K. and R.O. The court concluded that Jane had been unjustifiably separated from A.W. for nearly three years.
While agreeing with Dr. Mack that A.K. was fit to perform basic parenting tasks and that she and Jane shared a bond, the Family Part deemed his other opinions unpersuasive. The court also noted the numerous reports indicating the children enjoyed their time with A.W. and were thriving in his care. Finally, the court found the Division had provided all recommended services to A.K.
Referencing the factors contained in N.J.S.A. 9:2-4, the court found that: (1) there was no indication that A.K. would work with A.W. or abide by court orders; (2) A.W. would foster a relationship between A.K. and the children; (3) the children were at risk of continued mental abuse if placed with A.K.; (4) Jane had recently expressed her desire to live with her father; (5) Jane required a pressure-free environment both because of her special needs and also to recover from this ordeal; and (6) A.K. was not presently fit to parent Jane and was in need of extensive treatment. In light of these facts, the court concluded that it would be in Jane's best interests to reside with her father.
A.K. insists the Family Part failed to properly weigh Dr. Mack's testimony and erred in finding that the Division fulfilled its duty to provide her with therapy and that the therapy had not been successful. A.K.'s arguments are essentially assertions that the Family Part erred in its credibility determinations. We will not second-guess a trial court's resolution of credibility issues. Cesare, supra, 154 N.J. at 412.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DlVISION