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(NOTE: The status of this decision is Unpublished.)
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5066-09T4
IN THE MATTER OF T.B.,
a minor.
May 18, 2011
Argued March 16, 2011 - Decided
Before Judges R. B. Coleman and Lihotz.
On appeal from the Superior Court of New Jersey, Chancery Division, Family
Part, Middlesex County, Docket No. FC-12-173-10.
L.K., appellant, argued the cause pro se.
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Stephanie Anatale, 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;
Ms. Anatale, on the brief).
Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minor
T.B. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Vance,
on the brief).
PER CURIAM
In this appeal, appellant L.K., the maternal grandmother of T.B., is proceeding pro se. She seeks to
reverse an order of the Family Part that terminated her right to visit T.B. L.K. is the mother of T.B.'s birth
mother, C.B., whose parental rights were terminated by a Judgment of Guardianship entered on October
15, 2009.1 Although we do not embrace the trial judge's mistaken conclusion that L.K. withdrew her
request for further visitation with T.B., and although we believe the better practice would have been for the
court to allow the Division of Youth and Family Services (the Division) to present proofs under oath to
support its allegations that L.K.'s visits with T.B. were having detrimental effects upon the child, we
nevertheless affirm the order to the extent it continued the preclusion of visitation until further order. In
light of the subsequent adoption of T.B. by her resource parents, however, a more rigorous standard
controls L.K.'s request to visit T.B. L.K. now shoulders the burden of showing that visitation between her
and T.B. is necessary to avoid harm to the child. In re D.C., 203 N.J. 545, 573 (2010); Moriarty v. Bradt,
177 N.J. 84, 88 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed.2d 78 (2004).
By way of background, we note that in connection with the October 15, 2009 Judgment of
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Guardianship terminating the parental rights of T.B.'s mother, C.B., the Family Part entered a case
management order providing that T.B. was to remain in the care of foster parents and that L.K. could have
visitation supervised by the Division. In a subsequent order dated December 7, 2009, the Family Part also
terminated the parental rights of T.B.'s biological father, E.B.2 The Division was awarded guardianship to
consent to the adoption of the child. The court additionally ordered a summary hearing to be held in March
2010 to track the status of the planned adoption of T.B.
From March 2009 through December 2009, L.K. was permitted visitation with her granddaughter,
under the supervision of the Division. On March 11, 2010, the Division submitted a report to the court
which indicated that T.B. experienced nightmares, decreased appetite, increased hyperactivity and
oppositional behavior at school following visits with L.K. Following a summary hearing held on March 15,
2010, the court ordered that L.K.'s visits with T.B. cease "[b]ased upon the negative impact of the visits on
[T.B.] and the Division's representation that they have spoken with the maternal grandmother regarding the
decision to stop the visits." L.K. appealed the March 15, 2010 order and in response to her pro se motion,
we entered a May 20, 2010 order reinstating grandparent visitation. That order stated, however, that "[w]e
do not . . . foreclose the Division or Law Guardian from seeking cessation or limitation of grandparent
visitation." Prior to the occurrence of any additional visits between L.K. and T.B., the Division again moved
to preclude visitation.
On June 22, 2010, the Family Part judge entered an order adopting the recommendation of the Child
Placement Review Board for adoption of T.B. by the current resource parents.3 That order reiterated that
"there shall be no further visitation between [T.B.] and [L.K.] until further order of the court." Thereafter,
by letter dated June 24, 2010, the Department of Children and Families advised L.K. that the scheduled visit
on June 30, 2010 with T.B. was cancelled and that the matter was scheduled for July 20 at 9:00 a.m. The
letter added that "any further scheduled visitation will be contingent upon decisions originating from that
court hearing."
L.K. did not appear at the July 20, 2010 hearing,4 and on that date, the judge entered an order
terminating visitation between L.K. and T.B. based, at least in part, on L.K.'s own communication to the
court wherein she advised that she wished to "withdraw [her] request to be heard about where to visit
[her] granddaughter for July 20th." The court's July 20, 2010 order stated:
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The Division's motion for termination of visitation between minor [T.B.] and
[L.K.] is hereby granted, as said visitation is no longer in [T.B.'s] best interest,
and for the reasons stated on the record. [L.K.] was given proper notice of
today's hearing and an opportunity to be heard. She did not appear. Further, the
court received a handwritten letter from [L.K.] dated June 22, 2010 withdrawing
her request for any further visitation.
This appeal ensued.
I.
In this appeal, L.K. contends that, contrary to the trial court's understanding that she was withdrawing her
request for visitation with T.B., the letter sent to the court only intended to withdraw her request to be
heard regarding where L.K. would be visiting T.B. That letter did not state and was not meant to
communicate that she was withdrawing her general request for visitation. Additionally, L.K. asserts she did
in fact appear for the hearing but the trial judge held the hearing an hour earlier. As such, she was unable
to advance her claim that she should be permitted to continue visitation with T.B.
To the extent the trial judge interpreted L.K.'s letter as acquiescence to a termination of her
visitation rights, we are convinced from our independent review of the letter and of the sparse record as a
whole that the judge misinterpreted L.K.'s communication. This is reflected in the judge's comments at the
July 20, 2010 hearing where, in terminating L.K.'s visitation rights, the trial judge reasoned:
[L.K.] has been made aware several times of today's date, that this is the date
for her to come forward and make her case for visitation. To that end, on a
letter in an envelope dated June 22nd, 2010 . . . addressed to Dana Velente who
is my staff member, and the person who has been harassed by [L.K.] the most
probably[,] . . . the letter indicates quote, "Dana, please withdraw my request to
be heard about where to visit my granddaughter for July 20th. Thank you L.K."
In spite of the limited scope of the withdrawal, the judge construed the letter to mean that L.K., "has
withdrawn her request to have visitation, which makes it very simple for this Court." The trial judge also
noted that L.K. and the Division have not been in contact since June, and stated "[t]he Division hasn't
heard from her at all. So based upon that, as far as this Court is concerned, I guess we should have an
order terminating any visitation rights between [L.K.] and [T.B.]."
In our view, the court should have proceeded in L.K.'s absence bearing in mind that under the Grandparent
and Sibling Visitation Statute, N.J.S.A. 9:2-7.1(a), as amended in 1993, a grandparent making an
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application for an order of visitation has the burden "to prove by a preponderance of the evidence that the
granting of visitation is in the best interests of the child." Section (c) of that statute provides, however, that
"it should be prima facie evidence that visitation is in the child's best interest if the applicant had, in the
past, been a full time caretaker for the child." In spite of the failure of the court to develop a record upon
which to rest its opinion, we perceive no prejudice to L.K.
II.
Family courts have special expertise in family matters and "appellate courts should accord deference
to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). "Therefore, an appellate court
should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] 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.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors
Ins. Co., 65 N.J. 474, 484, (1974) (alteration in original)). On the other hand, "[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 LP v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
As stated above, our review of the record in this case satisfies us that, in the circumstances
presented, L.K.'s handwritten letter, read objectively, does not evince an intention to abandon her quest to
maintain a relationship with her granddaughter through visitation. The text of the letter is fully consistent
with L.K.'s claim that the withdrawal was limited to whatever dispute existed as to where visitation was to
take place. There was no wholesale withdrawal of the request for continued visitation.
On the other hand, L.K. failed to appear in court after she had received notice that the issue of
visitation would be addressed at a designated time. Although L.K.'s failure to appear may have warranted a
sanction, we do not agree that a complete forfeiture of L.K.'s opportunity to attempt to establish a right to
visit with her granddaughter was warranted. As we see it, the court relied upon her failure to appear
essentially as a basis for a ruling by default. No ruling on the merits was rendered. Rather, the court either
regarded the failure to appear as a confirmation of L.K.'s abandonment of her interest in visiting with T.B.,
or deemed it a default that warranted the categorical rejection of the claimed right of visitation L.K. had so
persistently urged. Such a rejection, without more reliable confirmation of abandonment or disinterest, was
precipitous and contrary to the interests of justice. Accordingly, we modify that portion of the July 20, 2010
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order that purports to terminate, as opposed to continue, the suspension of L.K.'s visits with T.B.
Our Supreme Court has recognized the uniqueness of the relationship between grandparents and
their grandchildren:
It is biological fact that grandparents are bound to their grandchildren by the
unbreakable links of heredity. It is common human experience that the concern
and interest grandparents take in the welfare of their grandchildren far exceeds
anything explicable in purely biological terms. A very special relationship often
arises and continues between grandparents and grandchildren. The tensions and
conflicts which commonly mar relations between parents and children are often
absent between those very same parents and their grandchildren. Visits with a
grandparent are often a precious part of a child's experience and there are
benefits which devolve upon the grandchild from the relationship with his
grandparents which he cannot derive from any other relationship. Neither the
Legislature nor this Court is blind to human truths which grandparents and
grandchildren have always known.
[Mimkon v. Ford, 66 N.J. 426, 437 (1975).]
In spite of the unique relationship between grandparents and their grandchildren, the Court has
recognized that a grandparent seeking visitation over the objection of the biological or adoptive parent
bears an extremely heavy burden. D.C., supra, 203 N.J. at 573.
"At common law, third parties had no right to petition for visitation with children." Id. at 564.
Further, "[a]t common law, a grandparent's right to visitation could rise no higher than that of the natural
parent[,]" but "'[w]here grandparents have a direct, personal relationship with the grandchild, their rights
are found independent of the parents' rights.'" N.J. Div. of Youth & Family Servs. v. E.D., 233 N.J. Super.
401, 416 (App. Div. 1989) (quoting N.J. Div. of Youth & Family Servs. v. Torres, 185 N.J. Super. 234, 246-
47 (J. & D.R. Ct. 1980), aff'd, 185 N.J. Super. 182 (App. Div. 1982)) (alteration in original). It is now
recognized that the termination of the parental rights of a child's biological parents does not "in itself, []
magically alter[] the child's day-to-day life or . . . justify cutting off pre-existing sibling [or grandparent]
contact." D.C., supra, 203 N.J. at 564.
However, the Court has recognized that there is a conflict between the Grandparent and Sibling
Visitation Statute, which made it possible for grandparents and siblings to be granted visitation over the
objection of the biological parents and the Adoption Act, N.J.S.A. 9:3-50, which emphasizes the complete
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termination of the biological parents' rights, thus having the logical effect of terminating a biological
grandparents' right to visitation. The Court has noted that the Legislature has not intended to harmonize
the conflict, observing:
Based on an examination of the legislative history of the Grandparent Visitation
Statute and the Adoption Act, we find that the Legislature did not intend to
harmonize or conform the two statutes. The two statutes are separate.
Moreover, we believe that the statute that permits visitation rights of parents of
the biological parents of a child adopted by intact nonrelative adoptive parents is
in conflict with the provisions of the Adoption Act. An examination of the
statutory scheme of the Adoption Act further supports that conclusion.
[In re W.P., 163 N.J. 158, 168 (2000).]
More fundamentally, the United States Supreme Court struck down a statute enacted by the State of
Washington which granted "breathtakingly broad" grandparent visitation, Troxel v. Granville, 530 U.S. 57,
67, 120 S. Ct. 2054, 2061, 147 L. Ed.2d 49, 57 (2000), prompting our Supreme Court to reassess our own
Grandparent and Sibling Visitation Statute. Moriarty, supra, 177 N.J. at 88. In that reassessment, the Court
acknowledged that "[t]he right to rear one's child is so deeply embedded in our history and culture that it
has been identified as a fundamental liberty interest protected by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution." Id. at 101 (citations omitted). Thus, "when [a] State seeks,
by statute, to interfere with family and parental autonomy, a fundamental right is at issue. [Hence,] [t]hat
statute . . . is subject to strict scrutiny and will only pass muster if it is narrowly tailored to serve a
compelling state interest." Id. at 103. The Court concluded that "[b]ecause the Grandparent Visitation
Statute is an incursion on a fundamental right (the right to parental autonomy), . . . it is subject to strict
scrutiny and must be narrowly tailored to advance a compelling state interest." Id. at 114.
Our Supreme Court had recognized, however, that "the right to parental autonomy is not absolute,
and a biological family may be ordered to permit third-party visitation, over its objections, where necessary
under the exercise of our parens patriae jurisdiction to avoid harm to the child." D.C., supra, 203 N.J. at
551-52 (emphasis omitted). The Court has stated that
the application of the best interests standard to a third party's petition for
visitation is an affront to the family's right to privacy and autonomy and that
interference with a biological or adoptive family's decision-making can only be
justified on the basis of the exercise of our parens patriae jurisdiction to avoid
harm to the child.
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[Id. at 573 (emphasis omitted).]
See also Moriarty, supra, 177 N.J. 84 at 114-15 (noting the only State interest warranting the invocation of
the State's parens patriae jurisdiction to overcome the presumption in favor of a parent's decision and to
force grandparent visitation over the wishes of a fit parent is the avoidance of harm to the child).
Thus, a higher burden must be met for a grandparent to enforce an asserted right of visitation after
the grandchild has been adopted by an unrelated third party. The focus is not on the grandparents' desires
but rather on the need to avoid harm to the child. Under such circumstances, the biological grandparent
must demonstrate that visitation over the objection of the adoptive parent is necessary to avoid harm to the
child. D.C., supra, 203 N.J. at 551. "[T]he Grandparent Visitation Statute was not intended to be applied in
the case of adoption by nonrelatives, and must not be applied because court-enforced visitation by
biological grandparents would discourage -- if not prevent -- adoption." W.P., supra, 163 N.J. at 173-74.
In its discussion in D.C., the Supreme Court explained:
Critical to our reasoning in W.P. was our desire not to relegate the adoptive
parents to second-class status. In other words, because we recognized that a
biological family could not be forced to permit a third-party access to its child
based on a best interests analysis, we afforded adoptive families the same
protection.
[D.C., supra, 203 N.J. at 570 (internal citations and quotation marks omitted).]
In considering the issue of sibling visitation, the D.C. Court held that, pursuant to the Visitation
Statute, a relative's application for post-adoption visitation is to be evaluated in an evidentiary hearing at
which the applicant, to be successful, must prove by a preponderance of the evidence that visitation is
necessary to avoid harm to the affected sibling. Id. at 562-66, 573-74. The D.C. Court again recognized
that because the "best-interests standard is an unwarranted incursion on the fundamental right of the
parents to raise their children as they see fit[,]" in order to maintain the statute's constitutionality, the
applicant for post-adoption visitation is required to meet the "exceptional circumstances" standard, which
"'requires proof of serious physical or psychological harm or a substantial likelihood of such harm.'" Id. at
571-72 (quoting Watkins v. Nelson, 163 N.J. 235, 248 (2000)).
The same family and parental autonomy is afforded to the biological family and to the adoptive
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family. As the Court noted: "[T]he right to parental autonomy is not absolute, and a biological family may
be ordered to permit third-party visitation, over its objections, where it is necessary under the exercise of
our parens patriae jurisdiction to avoid harm to the child. That principle governs adoptive families as well."
Id. at 551-52 (emphasis omitted).
At another point the Court explained:
In other words, because adoptive families stand in the shoes of biological
families, the Division correctly argues that they have the same right to family
privacy and autonomy as the latter. However, an adoptive family is not entitled
to greater protections than a biological family. Thus, to the extent that visitation
by a third party may be compelled over the objections of a biological family, the
same rule applies to an adoptive family.
[Id. at 570.]
Moriarty, supra, provides guidance here for assessing the adequacy of evidence of potential harm.
177 N.J. at 115-18. The "evidence can be expert or factual." Id. at 117. "[T]he termination of a long-
standing relationship between the grandparents and the child, with expert testimony assessing the effect of
those circumstances, [can] form the basis for a finding of harm." Ibid.; Daniels v. Daniels, 381 N.J. Super.
286, 294 (App. Div. 2005) ("harm of the type recognized in Moriarty generally rests on the existence of an
unusually close relationship between the grandparent and the child"). If the applicant does not plead or
present proof of harm to the child, "the complaint is properly dismissed" for failure to establish the
threshold harm. Daniels, supra, 381 N.J. Super. at 294; Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App.
Div. 2005).
As was true of the sibling seeking visitation in D.C., supra, 203 N.J. at 574, L.K. undoubtedly "will
have an uphill battle" but she should have the opportunity to renew her motion for visitation and to
demonstrate by expert or factual evidence whether T.B. will suffer harm if denied visitation with her.5
Pending the satisfaction of that burden, the trial court may appropriately continue the cessation of
visitation.
Affirmed, as modified.
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1 C.B. appealed the judgment terminating her parental rights, and we affirmed the judgment in an
unpublished opinion in New Jersey Division of Youth and Family Services v. C.B., No. A-1729-09 (App. Div.
Sept. 1, 2010) (slip op. at 3). C.B. is not involved in this appeal.
2 E.B. did not appeal that order, and he is not involved in this appeal.
3 At the oral argument on this appeal, we were informed that on January 27, 2011, a Final Judgment of
Adoption had been entered in favor of T.B.'s resource parents.
4 L.K. contends she appeared at the hearing but learned the judge heard the case earlier than the
scheduled time. There is no evidence of her appearance other than her own assertion.
5 We are aware that a claim is made by the Division that T.B. experiences distress and reacts negatively
following visits with L.K. As the record currently stands, however, causation is a matter of conjecture and
the claims are essentially topics of unsworn hearsay statements which have not been tested in an
adversarial setting.
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