IN THE MATTER OF T.B.

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NOT FOR PUBLICATION WITHOUT THE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.

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 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:

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 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 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 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.

[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 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.

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.