N.J. Dep't of Children & Families v. L.O.

• Decision Date: 17 June 2019
• Docket Number: DOCKET NO. A-0007-15T2
• Citation: 213 A.3d 187,460 N.J.Super. 1
• Parties: NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, Division of Child Protection and Permanency, Petitioner-Respondent, v. L.O., Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

460 N.J.Super. 1

213 A.3d 187

NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, Division of Child Protection and Permanency, Petitioner-Respondent,

v.L.O., Respondent-Appellant.

DOCKET NO. A-0007-15T2

Superior Court of New Jersey, Appellate Division.

Argued May 21, 2019

Decided June 17, 2019

Michael K. Furey, Parsippany, argued the cause for appellant (Day Pitney LLP, attorneys; Michael K. Furey and Michael L. Fialkoff, on the brief).

Christina A. Duclos, Deputy Attorney General, argued the cause for respondent New Jersey Department of Children and Families (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Christina A. Duclos, on the brief).

Amy E. Vasquez, Burlington, argued the cause for amicus curiae New Jersey State Bar Association (New Jersey State Bar Association, attorneys; John E. Keefe, Jr., Red Bank, of counsel; Amy E. Vasquez, on the brief).

Katherine E. Haas argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey, attorneys; Katherine E. Haas, Alexander R. Shalom, and Jeanne M. LoCicero, on the brief).

Before Judges Fisher, Suter and Firko.

The opinion of the court was delivered by

FISHER, P.J.A.D.

In this appeal, we consider for the first time whether an indigent parent or guardian – substantiated for child abuse or neglect – is entitled to the appointment of counsel when exercising the right to an administrative hearing. Because the potential consequences of those proceedings are of significant magnitude, we agree that, in this setting, counsel should be made available for indigent parents and guardians both at the administrative level and in any appeal of right to this court. Because that opportunity was denied defendant, we reverse the final agency decision and remand for a new administrative hearing.

The child at issue – Carolyn (a fictitious name) – was born in 2002. The record reveals that her parents, Steven and defendant Lola (also fictitious names) never married but began living together at the time of Carolyn's birth. Their separation in 2009 triggered an acrimonious family court custody battle; Lola also obtained a domestic violence final restraining order against Steven, and he was criminally convicted for assault arising from the same domestic violence event.

In 2011, the family judge presiding over the custody litigation ordered reunification therapy to improve Steven's relationship with the child. Dr. S.-W. was appointed for this purpose and first saw father and daughter in May 2012. Their sessions, however, were limited because of assertions that Carolyn was too ill to attend. Dr. S.-W. soon formed the belief that Lola was the cause of Carolyn's emotional and physical stress, which was standing in the way of the reunification sessions; the doctor suspected what she referred to as "Munchausen By Proxy

Syndrome."¹

In light of Dr. S.-W.'s communications to and testimony before the family judge in the custody litigation, the judge temporarily changed "physical and residential" custody to Steven on March 12, 2013. The next day, Dr. S.-W. wrote to the family judge, emphasizing that her "original diagnosis of Munchausen by Proxy

Syndrome is a correct characterization of what has been going on with [Carolyn]" (emphasis added), and that there "is strong evidence that [Lola] is the cause of [Carolyn's] anguish, stress and physical symptoms"; a few days later, the family judge awarded Steven "temporary sole legal custody and temporary residential custody" of the child and limited Lola to one hour of visitation per week to be supervised at a Division of Child Protection and Permanency office.

The inflammatory nature of the Munchausen charge – even though that diagnosis was later largely disowned or found to be an improper or inaccurate label – appears to have been the impetus for the wedge driven between Lola and Carolyn. At the time Dr. S.-W. was urging her Munchausen diagnosis in mid-March 2013, the judge referred the matter to the Division for investigation. On June 19, 2013, the Division gave written notice to Lola that its investigation resulted in a substantiation of abuse or neglect; in his later testimony before the administrative law judge (ALJ), Division Investigator Kevin Buck acknowledged that Dr. S.-W.'s assertion that her Munchausen diagnosis was "a correct characterization" was "one piece of evidence the [D]ivision used to support [its position] that [Lola has] a mental health issue." The family judge entered an order continuing the new custody arrangement indefinitely, and Lola's supervised visitation was later suspended altogether.

Lola appealed the substantiation finding, and a hearing was scheduled and conducted before an administrative law judge (ALJ) in October 2014. The ALJ heard testimony from Buck, Dr. S.-W., and two Division experts, Drs. Stephanie Iacopelli and Colin Gass. The Division also had Lola evaluated by Dr. Michael Gentile, whose report was considered by the ALJ. Lola was not offered counsel and was left to conduct her own defense. She had no experts and only provided her own testimony in response.

In March 2015, the ALJ rendered her initial decision, rejecting the Division's substantiation of abuse or neglect. The ALJ found that the Division failed to demonstrate Carolyn "was actually a victim of Munchausen syndrome by proxy" and that the Division had been "[s]elective" in its focus on Lola's behavior. For example, the ALJ determined that the Division "shrewdly" quoted portions of Dr. Gentile's report to justify abuse when, in fact, Dr. Gentile's "entire medical opinion ... casts doubts" on that finding. According to the ALJ, Dr. Gentile found "no criteria of major depressive disorder

or panic disorder" and instead

rendered a diagnosis of adjustment disorder with symptoms of anxiety and depression. [Lola] also exhibited "mild symptoms of depression and anxiety," which Dr. Gentile attributed to "the acrimony of the divorce and the separation from her 10-year-old daughter."

The ALJ particularly pointed out that Dr. Gentile found that Lola:

has full insight into her condition and any allegations of Munchausen by proxy

behavior is more related to an attempt to manipulate the system, so that decisions are made in her favor versus the underlying psychopathology characteristic of Munchausen syndrome by proxy. Her pattern of overreacting in times of stress may qualify her for a diagnosis of histrionic personality disorder. Her attempts at manipulation are more suggestive of an antisocial personality disorder.

Dr. Gentile drew a conclusion, which the ALJ adopted, that Lola "does not suffer from psychiatric illness that would require psychotropic medication"; instead, according to the ALJ, Lola "would benefit from individual supportive psychotherapy to help her adjust and cope with her current situation."

In light of these and other findings, the ALJ determined that Lola's "behavior was the result of an ongoing acrimonious marital breakup and custody battle over her daughter" and the credible evidence did not preponderate to show "that [Lola] created a substantial risk of harm to [Carolyn's] health and safety based on [Lola's] mental-health issues or emotional impairment." The ALJ concluded that Lola's behavior, "while inappropriate, did not rise to the level of gross or wanton neglect."

The Division filed exceptions, to which Lola responded, albeit out of time. The Assistant Commissioner accepted Lola's late submission but rejected the ALJ's initial decision and reinstated the substantiated finding that Lola emotionally abused the child. The Assistant Commissioner determined: that Carolyn had suffered actual harm and that Lola's conduct was deliberate because she "knew or should have known that her actions were having an impact" on the child; that Lola's conduct – including the canceling of multiple therapy sessions with no attempts to reschedule – was not to Carolyn's benefit; and that Lola's conduct caused the child anxiety, gastrointestinal issues, and panic attacks, all of which disappeared once Lola's unsupervised contact with the child was cut off. This final decision directed the inclusion of Lola's name in the Child Abuse Registry pursuant to N.J.S.A. 9:6-8.11.²

Still without counsel, Lola appealed this final agency decision in August 2015. She immediately moved in this court for: the appointment of counsel; permission to proceed as an indigent; permission to supplement the record; and a determination that she was entitled to free transcripts of the evidentiary hearing before the ALJ. We granted the indigency motion but denied Lola the right to counsel, free transcripts and supplementation of the record.

Lola forthwith moved for leave to appeal in the Supreme Court. In January 2018, the Court granted leave to appeal in part, directed the Division to order and pay for the transcripts, and appointed current counsel to represent Lola in this court. The Supreme Court also authorized appointed counsel "to argue the general and recurring issues of the right of indigent appellants like movant to free transcripts and the assignment of counsel to prosecute an appeal from an administrative proceeding that substantiates findings of abuse and neglect and directs the listing of their names in the child abuse registry."³ The matter was remanded to this court for disposition of Lola's appeal and our consideration of the broader question about the right to counsel in this setting.

After the parties filed their merits briefs, the matter was listed for disposition without oral argument on January 23, 2019. Upon review of the parties' written submissions, this court scheduled oral argument and invited the New Jersey State Bar Association (the State Bar), the American Civil Liberties Union (ACLU), and the Public Defender's Appellate Section of the Office of Parental Representation (OPR-A) to file amicus briefs on the right-to-counsel argument. The State Bar and ACLU...