Opinion
DOCKET NO. A-1737-11T3
05-13-2014
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. P.N., Defendant-Appellant. IN THE MATTER OF A.T., a minor
Alan I. Smith, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, on the briefs). Cynthia J. Schappell, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Schappell, on the briefs). Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Accurso.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-86-11.
Alan I. Smith, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, on the briefs).
Cynthia J. Schappell, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Schappell, on the briefs).
Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief). PER CURIAM
P.N. (Peter) appeals the Family Part's October 27, 2011 order prohibiting him from having any contact with A.T. (Allen), who is the younger son of Peter's former girlfriend, J.M. (Jane). We affirm.
We use initials and pseudonyms to refer to the individuals in this case for the purpose of confidentiality and clarity.
I.
We discern the following facts and procedural history from the record on appeal.
Jane and her former husband, D.T., Sr. (Donald, Sr.), are the parents of two sons. D.T. (Donald) was born in February 1989, and is not involved in this appeal. Allen was born in November 1998.
The Division had considerable contact with the family during the early 2000s, prior to Peter's involvement with Jane. By January 2007, Peter was living with Jane and her two sons. The Division received reports that Jane was using Donald's medication and that Peter had abused Donald. During the Division's initial investigation, both boys and Jane disclosed that Peter had physically abused them. Donald also alleged sexual abuse.
The allegations against Peter were investigated and eventually substantiated by the Division. After the Division learned that Peter was continuing to have contact with the children despite Jane's agreement to preclude such contact, it sought and received care and supervision of Donald and Allen in March 2007 pursuant to N.J.S.A. 9:6-8.21 to -8.73 (FN action). Peter was named as a defendant in the Division's complaint. The judge entered an order barring Peter from having contact with both boys, and Jane subsequently obtained a final restraining order against Peter in May.
Peter did not pursue an administrative appeal of the Division's substantiation. It appears that he was charged with sexual abuse, but the criminal complaints were eventually dismissed.
In October 2008, the Division learned that Jane had dismissed her restraining order. It received further allegations in 2009 and 2010, but none were substantiated. The initial care and supervision case had been closed in September 2007.
In a related non-dissolution (FD) action in 2011, a Family Part judge entered another order prohibiting Peter from having contact with Allen. The earlier FN action was reopened, but the Division filed a new complaint in February to reflect the fact that Donald was now an adult. Peter was also a defendant in the new complaint. The Family Part judge granted the Division care and supervision in February, based in part on the history of domestic violence, the prior substantiation of abuse, and Jane's consent.
We were informed at oral argument that the 2011 FD order is still in effect.
At the February 17, 2011 hearing, Peter was represented by counsel, who requested a plenary hearing on the issue of the no contact order. The judge denied the request, finding that Peter was not a biological parent and had not established that he was a psychological parent. He advised counsel that he could make another application in the future if properly supported. Based on concern about domestic violence, the judge entered a protective order pursuant to N.J.S.A. 9:6-8.55 and ordered Peter to have no contact with either Jane or Allen.
The matter returned to court in March, at which time Peter was incarcerated on charges that he had violated two restraining orders, one involving Jane and one involving a third party. Jane advised the judge that she intended to dismiss her temporary restraining order against Peter, but told the judge that she knew she would have to obey the existing orders that Peter have no contact with Allen. The judge ordered that both adults receive domestic violence counseling and kept Peter in the case for that purpose.
The parties again appeared in court in April. Peter was still incarcerated, and Jane had obtained another restraining order against him. The judge raised the issue of whether Peter should remain in the case because he was not a biological parent. Both the Division and Jane sought his dismissal. The law guardian, however, told the judge that Allen wanted to continue his relationship with Peter, who advised the judge that he was willing to undergo a psychological evaluation. Consequently, the judge did not dismiss Peter and ordered the evaluations.
At the July status conference, the Division advised the judge that Jane's evaluation had been completed and that she was participating in domestic violence counseling. The Division also advised the judge that it was not seeking a finding of abuse or neglect based on the allegations underlying its most recent FN action. Peter sought two evaluations, one to be arranged by him and the other by the Division. Jane advised the judge that she had dismissed the restraining order and was seeking reunification with Peter.
The judge held a factfinding hearing on August 2. He determined that there had been no abuse or neglect, but that there was a continuing need for services. The judge ordered that Peter's psychological evaluation be completed promptly. He also determined that he would conduct an in camera interview of Allen. He continued the no contact order.
Peter was still incarcerated at that time.
The judge interviewed Allen in September. Allen told the judge that he had witnessed heated arguments between his mother and Peter, but that he had not witnessed Peter strike Jane. He also told the judge that Peter had never hit him and that he wanted to see Peter.
In mid-September, the judge summarized his interview with Allen. He also advised counsel that he would address the issue of contact between Peter and Allen after he received all of the reports. Jane's attorney told the judge that Jane favored contact between Peter and Allen, once he was released from incarceration.
At the October 27 hearing, the Division requested termination of the litigation, but sought to have the no contact order remain in effect. The Division relied on the recommendation contained in Peter's psychological evaluation by Dr. Roger T. Barr, who recommended against reunification of Jane and Allen with Peter. The evaluation was provided to all parties, but not admitted in evidence at that time. A second evaluation, performed by Dr. Kenneth Goldberg, was also available at the hearing but was not offered in evidence.
Following a remand to supplement the record, the trial judge admitted the reports of both doctors and other exhibits into evidence.
Jane's attorney advised the judge that she did not want any further relationship with Peter. She did not oppose termination of the litigation and did not object to continuance of the no contact order. The law guardian advised the judge that she had met with Allen the day before the hearing. She reported that he was happy living with his mother and that he had reconnected with his father, Donald, Sr. Consequently, the law guardian advised the judge she had no objection to termination of the litigation and continuation of the no contact order.
Despite Peter's objection, the judge dismissed the litigation and ordered that Peter have no contact with Allen. He further ordered that any future request for contact be made by Peter in the FD case. This appeal followed.
II.
Peter's primary argument on appeal is that, because he was denied the opportunity to prove that he is Allen's psychological parent, the trial judge erred in terminating the litigation and entering an order preventing him from having contact with Allen.
For a third party to receive the same status as a biological parent for the purpose of determining custody or parenting time, the party must prove that he or she is a psychological parent. V.C. v. M.J.B., 163 N.J. 200, 219-20, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). To be considered a psychological parent, the party must satisfy the four prong test set out in V.C.:
[T]he legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged."Establishing psychological parenthood is not an easy task and the standards [the Court has] adopted should be scrupulously applied in order to protect the legal parent-child relationship." Id. at 230.
[Id. at 223.]
For the purpose of this opinion only, we will assume, without deciding, that Peter can establish the first three prongs. The Supreme Court has held that the fourth prong is the most important in terms of establishing psychological parenthood. Id. at 226. The nature of the relationship, rather than its length, is crucial to establishing the fourth prong. Ibid. To do so generally requires expert testimony. Id. at 227.
It is clear from the record that Peter lived with Jane and her two sons. There is some evidence in the record that Jane encouraged the relationship between Peter and Allen and that she ceded some parental authority to him. There is minimal evidence that Peter performed any significant parenting tasks.
Although Peter claims to be Allen's psychological parent, he has supplied no expert opinion or testimony to establish even a prima facie case for proof of the fourth prong. There were two reports available at the October 27 hearing, neither of which were even offered in evidence by Peter for that purpose at the hearing. Goldberg, who was retained by Peter, was not asked to address the issue of whether there was psychological parenthood. He makes no such finding. Goldberg diagnosed Peter as having a severe narcissistic personality disorder that makes him incapable of "relating to nuance and complexity in himself or in the relationships he has." There is nothing in his report to suggest that the required parent-child bond had been forged. Goldberg's conclusion, which reflects his basic lack of certainty about the relationship between Peter and Allen, was that Peter "may be a true asset in [Allen's] life. Perhaps, he is harmful." Barr's report, as already noted, recommended against reunification between Jane and Peter. It also contains no suggestion that Peter and Allen have a parent-child bond.
Barr also prepared a psychological evaluation of Allen, which included an interview and evaluation of Jane. It does not support the existence of a parent-child bond between Peter and Allen.
Because Peter failed to present a prima facie case of psychological parenthood, we find no error or abuse of discretion in the trial judge's decision not to hold an evidentiary hearing on the issue of psychological parenthood. Nor do we find any error or abuse of discretion in the judge's conclusion, based on the extensive record before him, that there should be no further contact between Peter and Allen. Because he is neither a biological nor a psychological parent, Peter has no right to such contact and the record before us supports the judge's conclusion that it would not be in Allen's best interest. The Family Part is charged with exercising the State's parens patriae responsibility to protect the welfare of children. We are convinced that the order on appeal was necessary and appropriate for that purpose.
The remaining issues raised on appeal do not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
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I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION