NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Defendant J.B. appeals from a September 17, 2014 final restraining order (FRO) entered under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to-35. The domestic violence complaint alleged harassment and terroristic threats, and was brought by plaintiff N.B., defendant's former girlfriend, after defendant allegedly made threatening remarks about plaintiff during a group therapy session with a social worker. The social worker reported defendant's comments to the police, who relayed them to plaintiff. Defendant had previously posted on social media sites purportedly threatening plaintiff.

Defendant argues his communications with the social worker were privileged and the Family Part judge erred by allowing the social worker to testify about them at the FRO hearing. Defendant also argues the Family Part judge should not have considered his social media posts as evidence of prior domestic violence, as they had been the subject of a previous domestic violence proceeding in which an FRO was not granted.

We have considered these arguments in light of the applicable legal standards and conclude — regardless of the admissibility of the social worker's testimony — it was reversible error for the Family Part judge to find plaintiff had proven either of the offenses underlying the complaint. Accordingly, we reverse the decision of the Family Part judge and vacate the FRO.

We discern the following facts from the record. Plaintiff and defendant's relationship was contentious even before the events underlying this case occurred. By the time their child was born in 2013, the pair had already separated. Plaintiff filed for child support and defendant cross-moved for parenting time. Before these issues were settled by the court, plaintiff filed an order to show cause alleging defendant had been using marijuana and seeking suspension of his parenting time. The court ordered defendant to undergo a substance abuse evaluation.

On or about March 19, 2014, plaintiff filed a domestic violence complaint and temporary restraining order (TRO) against defendant following a physical altercation that occurred the previous day. The filing also indicated defendant made a threatening post on his Instagram account, which plaintiff believed to be about her. Specifically, at issue was text reading: "I never wanted to body3 somebody as bad as I want to body you. Just thinking about it makes my dick hard. Fuckin issue-providing solution." Harassment, N.J.S.A. 2C:33-4, was the offense underlying the domestic violence complaint.

On April 30, 2014, the court received defendant's substance abuse evaluation and visitation risk assessment. Defendant tested positive for marijuana and the court ordered he undergo substance abuse treatment and anger management therapy at the Center for Network Therapy and Substance Abuse in Middlesex. The court also determined it would hear the FRO and outstanding custody and parenting time issues together on June 3, 2014.

On June 3, 2014, the court held an FRO hearing during which both parties testified about the physical altercation and defendant's social media post. The facts relating to, and the judge's findings about, the March 18 incident are not pertinent to this appeal. With regard to defendant's social media post, the judge found that defendant's account was private and could not be accessed by the public or by plaintiff. The post in question did not mention plaintiff by name, nor did defendant "tag" plaintiff in the photo. In fact, plaintiff only learned of the post from a friend. These facts led the judge to conclude the post was not "directed" towards plaintiff and, thus, defendant did not have the requisite intent to sustain plaintiff's harassment allegation. The judge found defendant did not commit an act of domestic violence under the PDVA, declined to grant plaintiff a FRO, and dismissed the TRO.

Plaintiff initiated the present matter by filing a subsequent domestic violence complaint and a request for a TRO on June 19, 2014. The complaint indicates police officers informed plaintiff that defendant's therapist reported defendant made threats against plaintiff during an anger management session. Specifically, the report stated the social worker indicated that, during an angry tirade, defendant claimed he "would not mind spending ten years in jail" to make plaintiff "disappear." Fearing for plaintiff's safety, the social worker reported the remarks to the police. Harassment, N.J.S.A. 2C:33-4, and terroristic threats, N.J.S.A. 2C:12-3, were the alleged acts of domestic violence.

The court heard argument for a FRO on June 26, 2014. Defendant moved to prevent the social worker from testifying pursuant to N.J.R.E. 505 and 518. The judge requested the parties brief the issue and adjourned the matter. The court heard oral argument on the issue on August 26, 2014. On September 17, 2014, the judge denied defendant's motion to prevent the social worker from testifying. Later that day, the FRO hearing was heard before a different Family Part judge.

The social worker testified about counseling defendant for substance abuse in a group therapy session. She explained part of the therapy involved participants taking turns speaking in an effort to "process their feelings for the day." During this session, defendant expressed frustration over plaintiff preventing him from seeing his daughter on his birthday. Contrary to what the police initially reported to plaintiff, defendant actually said the child's mother will "lose-lose" whereas he will only "lose ten years." The social worker continued:

On cross-examination, the social worker testified she was not able to decipher precisely what defendant meant by "lose-lose" or how he would "lose ten years." She described defendant's words as "sound[ing] like a threat" and contacted the police to "err on the side of safety."

In his oral decision, the Family Part judge summarized the elements of harassment and terroristic threats before addressing plaintiff's allegations together. Citing State v. Dispoto, 189 N.J. 108 (2007), the judge explained that although defendant's remarks were not communicated directly to plaintiff, this did not automatically preclude a finding of harassment or terroristic threats. The judge explained it is "sufficient that the threat be made under circumstances which carried a serious promise of death." The judge also referenced Cesare v. Cesare, 154 N.J. 394 (1998), to explain that concluding a particular remark amounts to a terroristic threat involves consideration under a "reasonable person standard" viewed in light of any history of abuse between the parties.

The judge noted he found the social worker's testimony credible, and pointed to the various social media posts as "history" that would lead plaintiff to find the threat credible. The judge noted that although the social media posts had not previously been deemed acts of domestic violence, "this is a new day, and these are new allegations, and everything should be considered." He "[found] the posts . . . to be extremely disturbing enough . . . to make any target concerned for their own physical safety." These considerations led the judge to conclude plaintiff was in immediate danger and in need of the protections of a FRO.

We are cognizant of the fact that our review of a trial court's findings of fact is deferential. Cesare, supra, 154 N.J. at 413 (1998). Nonetheless, we exercise broad review in considering "the trial judge's evaluation of the facts and the implications to be drawn therefrom." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re J.T., 269 N.J.Super. 172, 189 (App. Div. 1993)). We are required to reverse where "the court ignores applicable standards." Gotlib v. Gotlib, 399 N.J.Super. 295, 309 (App. Div. 2008).

On appeal, defendant first argues it was in error for the Family Part judge to hear testimony from the social worker, as her communications with defendant were protected by N.J.R.E. 505 and 518. We need not reach this argument because even with the social worker's testimony, plaintiff failed to present sufficient evidence of harassment and terroristic threats to sustain her burden of proof.

We begin with a brief overview of domestic violence proceedings. The PDVA allows a plaintiff to file a "complaint alleging the commission of an act of domestic violence and to seek emergency ex parte relief." Cesare, supra, 154 N.J. at 400 (citing N.J.S.A. 2C:25-28). Shortly after, a hearing is held to allow a plaintiff to show an act of domestic violence was committed and further relief is needed; one such remedy is entry of an FRO. Cesare, supra, 154 N.J. at 400. The PDVA provides, in pertinent part:

Although the PDVA "incorporates a variety of criminal statutes into its civil and criminal framework," Cesare, supra, 154 N.J. at 401, it does not "create a new class of offenses or interdict acts which otherwise were not addressed by the criminal law." Corrente v. Corrente, 281 N.J.Super. 243, 248 (App. Div. 1995).

The court's inquiry is two-fold. Silver v. Silver, 387 N.J.Super. 112, 125 (App. Div. 2006). "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts . . . has occurred." Ibid. This requires more than simply finding a plaintiff has proven all elements of the underlying criminal statute. See id. at 125-26. To this end, the PDVA provides an additional six factors for the court to consider, including "the previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse." Kamen v. Egan, 322 N.J.Super. 222, 228 (App. Div. 1999). "Although a court is not obligated to find a past history of abuse before determining . . . domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis." Cesare, supra, 154 N.J. at 402. When terroristic threats and harassment are the allegations underlying a domestic violence complaint, "[t]he need to consider a plaintiff's history of abuse . . . is consistent with the requirements of the . . . crimes at issue." Ibid. at 402-05.

Once a predicate act of domestic violence has been found by the court, the court engages in its second inquiry: "whether the court should enter a restraining order that provides protection for the victim." Silver, supra, 387 N.J. Super. at 126. The factors from N.J.S.A. 2C:25-29(a)(1) also guide this analysis.

We conclude the trial judge erred in finding plaintiff had proven, by a preponderance of the evidence, defendant had committed harassment or made terroristic threats. A person harasses another if, "with purpose to harass another, he . . . [m]akes, or causes to be made, a communication . . . [in a] manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4(a) (emphasis added). A communication delivered to a victim through a third-party can constitute harassment when the defendant intends to use the third-party "as an instrument of harassment." State v. Castagna, 387 N.J.Super. 598, 605 (App. Div.), certif. denied, 188 N.J. 577 (2006).

The remarks at issue were not made directly to plaintiff, thus, plaintiff must show defendant intended for his words to reach plaintiff by some other means. Ibid. Plaintiff presented no evidence to this end. Furthermore, we note the circumstances of the instant case strongly suggest defendant's words were made with the expectation of confidentiality. As the social worker testified, the purpose of the session was for participants to process their thoughts in a safe environment. Absent any evidence of defendant's intention to harass, plaintiff failed to prove a key element of the offense. The trial judge was in error to find otherwise.

Plaintiff's allegation that defendant made a terroristic threat is also meritless. "A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another[.]" N.J.S.A. 2C:12-3(a) (emphasis added).

We are not convinced plaintiff has even established defendant threatened to commit a crime of violence. Defendant's remarks, that plaintiff would "lose-lose" whereas he would only "lose ten years" are ambiguous. The social worker testified she was not sure what defendant meant by this, and that defendant denied having homicidal intentions. She reported the remarks "out of an abundance of caution." In addition, plaintiff failed to make any showing that defendant's remarks during group therapy were made with the intent to terrorize her, as there is no evidence defendant intended for the statement to reach plaintiff. We therefore conclude the Family Part judge's finding of a terroristic threat was error.

Lastly, defendant argues it was improper for the court to consider defendant's social media posts as evidence of a history of domestic violence because the posts had already been considered during the hearing on plaintiff's first application and were determined not to constitute domestic violence. In light of our conclusion that the judge erred in finding defendant's conduct constituted domestic violence, we need not reach the issue of whether the court's consideration of these social media posts, as part of either Silver inquiry, was error. Evidence of prior acts, like the posts at issue, can become relevant in determining if an act of domestic violence has occurred and whether a FRO is warranted. As we conclude no qualifying predicate act occurred, even in light of defendant's prior posts, we need not consider the question of their admissibility. We reverse and vacate the finding of domestic violence and the issuance of the FRO.

Reversed.