DCPP VS. K.S. AND N.S., IN THE MATTER OF S.S.,…

                                      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                                NOT FOR PUBLICATION WITHOUT THE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).



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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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                                          8
                                         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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                                         9
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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                                        11
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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                                        12
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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                                        24
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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                                          25
     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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                                         26
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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                                         27
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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                                         28
      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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                                        29
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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                                          30
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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                                          31
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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                                         32
      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


                                                                            A-3702-18T1
                                        33
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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                                         34
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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                                         35
      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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                                       36
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