J.W. and S.W. v. R.J.R.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4440-08T14440-08T1

J.W.,

Plaintiff,

and

S.W.,

Plaintiff-Appellant,

v.

R.J.R.,

Defendant-Respondent.

_______________________________

 

Submitted January 25, 2010 - Decided

Before Judges Rodr guez and Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-42-09.

S.W., appellant, pro se.

R.J.R., respondent, pro se.

PER CURIAM

Plaintiff S.W. appeals from a final order of the Family Part dated April 17, 2009, denying her application for visitation with her sister's adopted child. We affirm.

I

To summarize the essential facts, this appeal concerns an application for visitation by the child's great aunt (S.W.), despite the objections of the child's maternal grandmother (defendant R.J.R.), who has adopted the child. According to plaintiff's submissions, she and her husband obtained physical custody of the child soon after his birth on February 7, 2005. The Division of Youth and Family Services (DYFS) had taken the child from his mother (R.J.R.'s daughter) due to her substance abuse problems. At that time, R.J.R. was unable to obtain custody of her grandson because she was in the process of contesting a DYFS finding of abuse concerning one of her other daughters. Therefore, S.W. and her husband cared for the child from February 2005 until November 2006, when he was about a year and nine months old.

However, plaintiff and her husband never intended to obtain permanent custody of the child. Instead, they at all times supported R.J.R.'s efforts to obtain legal custody of her grandchild, a goal the child's mother also supported. When the child abuse finding against her was overturned, R.J.R. obtained custody of the child by court order dated November 6, 2006. The child's mother died in October 2007, and R.J.R. legally adopted the child on January 17, 2008. In March 2008, R.J.R. told plaintiff that she did not want her to visit with the child.

Plaintiff and her husband filed this suit on November 12, 2008, claiming that she and her husband were the child's psychological parents and that visitation was in his best interest. Defendant opposed the application, asserting that she had allowed what she characterized as "transitional visitation" with plaintiff after she obtained custody of the child. Defendant contended that she had "pleaded with [plaintiff] to please respect my wish to heal from [my] daughter's death and to give me time to establish an uncomplicated schedule for [the child.]" However, she contended that plaintiff had behaved in an interfering and overbearing manner, including sending threatening letters, "besmirch[ing] my reputation in the church where I am very active in the youth ministry," and having "unauthorized contact with [the child] at his daycare program."

By order dated January 14, 2009, the trial judge denied the visitation application. However, the order noted that

[Plaintiff's] application for custody & visitation is denied. However, the [plaintiff] may have an expert advise the court that a bonding evaluation could be conducted on a (4) year old child, who resided with a foster parent for approximately (21) months after birth and is now and has been with the adoptive parent since that time.

The expert should explain how a child of that age could be psychologically harmed from such separation.

Plaintiff submitted an expert report, dated February 18, 2009, in which the expert opined that children can form attachments with preferred caregivers starting "between the ages of about 6 months and two or three years." She also opined "that a child can suffer considerable psychological harm if severed from a relationship with his primary caretakers after the age of two." The expert explained that the child had suffered two traumatic life events in the death of his mother and the loss of his early caretakers, and might be blaming himself for those losses. She recommended a psychological evaluation of the child and a bonding assessment with "his initial caretakers."

However, by order dated April 17, 2009, the judge denied plaintiff's application, noting that the report "was [insufficient] to grant the plaintiff visitation with the child."

II

On this appeal, we must defer to the trial judge's determination so long as it is supported by substantial credible evidence and is consistent with applicable law. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We owe particular deference to decisions of the Family Part based on its expertise in family law matters. Cesare, supra, 154 N.J. at 412. Having reviewed the record, we find no basis to disturb Judge Hutchins-Henderson's decision in this case.

In opposing visitation, defendant relies on the adoption statute, which does not "provide for post-adoption rights, including visitation, on the part of biological parents." In re Adoption by D.M.H., 135 N.J. 473, 491 (1994). Rather, the statute provides that adoption terminates the parental rights of the adopted child's biological parents:

The entry of a judgment of adoption shall terminate all parental rights and responsibilities of the parent towards the adoptive child. . . .

[N.J.S.A. 9:3-50c(1).]

Prior to its amendment in 1993, the statute had also specifically terminated "all rights, duties and obligations of any person that are founded upon such [parental] relationships." N.J.S.A. 9:3-50(a)(repealed by L. 1993, c. 345, 13).

However, in D.M.H, while affirming the denial of a biological mother's application for visitation, the Court noted that in a few cases, the pre-amendment version of the statute had not been strictly applied where a child had been adopted by relatives, rather than by strangers. 135 N.J. at 491-92. See Kattermann v. DiPiazza, 151 N.J. Super. 209, 214 (App. Div. 1977)(biological mother's unopposed appeal was remanded for a hearing on whether visitation would be in the fifteen-year-old child's best interests).

In this case, plaintiff is not the child's biological parent. Nor does she have the special status accorded to grandparents under the Grandparent Visitation Statute (GVS), N.J.S.A. 9:2-7.1. Moreover, due to parents' constitutional right to raise their children without interference, even the GVS has been limited to situations in which the grandparents can prove that the child will suffer some demonstrable harm if visitation is denied. Moriarty v. Bradt, 177 N.J. 84, 117-18 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004).

Further, as we discussed at length in Daniels v. Daniels, 381 N.J. Super. 286 (App. Div. 2005), the process of litigation over visitation, in itself, interferes with parental rights:

When grandparents seek to interject themselves into parental decision-making by using the courts, that threat can take on constitutional dimensions. The process of discovery can impose expense, inconvenience and trauma. Absent special circumstances, parents who decide to limit or even preclude grandparent visitation should not be faced with court-ordered psychological examinations and other intrusive measures at the grandparents' behest.

[Id. at 296-97.]

Plaintiff relies heavily on V.C. v. M.J.B., 163 N.J. 200, cert. denied, M.J.B. v. V.C., 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000), in which the Court defined the rights of third parties, such as the lesbian partner involved in that case, who have lived with the biological parent and children in a family relationship. In that context, the Court held:

Third parties who live in familial circumstances with a child and his or her legal parent may achieve, with the consent of the legal parent, a psychological parent status vis-a-vis a child. Fundamental to a finding of the existence of that status is that a parent-child bond has been created. That bond cannot be unilaterally terminated by the legal parent. When there is a conflict over custody and visitation between the legal parent and a psychological parent, the legal paradigm is that of two legal parents and the standard to be applied is the best interests of the child.

[Id. at 230.]

This case, however, is readily distinguishable from V.C. As in many cases where a family member temporarily steps in to care for a child during the parent's disability, none of the parties here intended to create a parent-child relationship between plaintiff and the child. Rather, at all times, the parties intended that defendant would obtain custody of the child and become his legal parent. Moreover, the child ceased living with plaintiff when he was under the age of two, and he lived with defendant for a substantial period of time before the dispute over visitation arose.

If this dispute had arisen shortly after defendant obtained custody of the child, depriving him of a reasonable transition to his new living arrangement, or if defendant had previously been a stranger to the child, we might view the case differently. See Watkins v. Nelson, 163 N.J. 235, 256-57 (2000). However, there appears no dispute that defendant had an ongoing grandparent relationship with the child while he was living with plaintiff, and then allowed plaintiff to visit with the child while he became acclimated to living in his new home. Defendant advised plaintiff that she was precluding her from further visitation more than a year later, in March 2008.

The parties' briefs, both filed pro se, paint an unfortunate picture of two families who both love the child. Apparently, they have different parenting styles and generally different views of what is best for him. However, in addition to being the child's legal parent, defendant has been his primary caretaker since November 2006. There is no prima facie evidence that this child will suffer harm if he is not permitted to visit with plaintiff, such that her interest in visitation should trump defendant's parental rights.

Nor do the hearing transcripts suggest that the child would be well served by dwelling on a battlefield between these two parties, whose heated exchanges on the record continued even as the judge was rendering her opinion. We will not second-guess the trial judge's decision that extended litigation of the visitation issue, including psychological examinations and bonding evaluations, is not warranted. See Daniels, supra, 381 N.J. Super. 296-97.

Plaintiff's additional appellate contentions, many of which are not supported by any record evidence, do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

We use the parties' initials to protect the child's identity, because this case had its genesis in a child abuse and neglect matter. We have impounded the record, because plaintiff included confidential DYFS reports in her appendix. Plaintiff admits that the charges to which those records relate were later ruled unsubstantiated.

On February 24, 2009, plaintiff also filed a separate civil suit against R.J.R. seeking $15,000 in money damages for breach of an alleged "agreement" to allow visitation. That suit was still pending as of the April 17, 2009 hearing which led to the order on appeal here. While we do not base our decision on it, suing defendant for damages was not the act of one intent on promoting family harmony in the child's best interest. See Wilde v. Wilde, 341 N.J. Super. 381, 397-98 (App. Div. 2001).

The expert report did not indicate what, if any, relationship the child had with his mother, and there is no evidence in the record on that issue.

(continued)

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10

A-4440-08T1

RECORD IMPOUNDED

February 16, 2010