C.D.M. v. S.M.P.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

C.D.M.,

Plaintiff-Appellant,

v.

S.M.P.,

Defendant-Respondent.

_________________________________

July 2, 2014

Submitted June 18, 2014 Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FD-05-166-13.

Scott T. Schweiger, attorney for appellant.

Cooper Levenson April Niedelman & Wagenheim, attorneys for respondent (Richard C. Klein and Cynthia N. Grob, on the brief).

PER CURIAM

In this grandparent/sibling visitation case brought by plaintiff pursuant to N.J.S.A. 9:2-7.1, the trial court dismissed the complaint without conducting a case management conference to address the issues this court identified in R.K. v. D.L., 434 N.J. Super. 113, 137-40 (App. Div. 2014). We thus reverse and remand this matter for the trial court to reexamine plaintiff's complaint to determine the viability of the relief requested after adhering to the procedures we described in R.K.

Plaintiff C.D.M. is the maternal grandmother of a female child born in May 2012, whom we identify here as "Nancy."1 Plaintiff's daughter tragically died while giving birth to Nancy. Despite early attempts to reach a mutually acceptable visitation arrangement, Nancy's father, defendant S.M.P., denied plaintiff's requests to visit Nancy or allow Nancy to have any contact with her half-brother "Nathan." Plaintiff filed a verified complaint2 in September 2012 on behalf of herself and her grandson Nathan, who was then five years old, seeking court-ordered visitation pursuant to N.J.S.A. 9:2-7.1. Plaintiff has physical and legal custody of Nathan.

Defendant responded to plaintiff's complaint by filing a counterclaim seeking "sole custody[,]" an accounting, and a "turn over [of] funds collected for [Nancy]'s benefit upon the death of plaintiff's daughter and to deny plaintiff's grandparent visitation petition." The matter came before the trial judge as a summary action after joinder of issue. As the record reflects, after "a brief chambers conference" with the attorneys, the judge addressed the parties in open court. He characterized the case as "difficult . . . with very hard facts."

The judge advised the parties that New Jersey's grandparent/sibling visitation statute "requires a very high showing . . . before a judge . . . who is a stranger to the child . . . can overrule a parental decision. There has to be certain specific findings that [the] judge can make. And candidly, I don't know that this particular case has those facts." In this light, the judge asked the parties "to spend ten minutes with your attorneys trying to figure something out." The judge emphasized that "[t]he law presumes that a father, a mother knows what's best for a child and that . . . I shouldn't overrule that decision." The judge concluded his remarks by noting that he was prepared to hear plaintiff's attorney's argument. After an indeterminate period of time elapsed, plaintiff's attorney reported to the court that the parties were "not able to come to an accord in this situation."

The record developed before the trial court contains limited and highly disputed facts. According to plaintiff, she, her daughter (Nancy's mother), defendant, and Nathan "enjoyed a familial relationship" before her daughter's demise. Plaintiff claims this familial arrangement with defendant changed after Nancy's mother's death. Although plaintiff assumed legal custody of Nathan after her daughter's passing, she claims "it was agreed that [Nathan] would continue to reside with Defendant for approximately four (4) days per week." Nathan would spend the weekends with plaintiff. Plaintiff claims she agreed to give defendant half of Nathan's social security benefits, which amounted to $300 per month, and that she bought a number of baby toiletries for Nancy.

Although Nancy was born in May 2012, she apparently needed neonatal care for some time thereafter. Plaintiff alleges she visited her granddaughter at the hospital "as often as I could." She certified that she "cherished the time I spent with her giving her baths, feeding her, burping, changing her and putting her to sleep." She continued to visit Nancy after she was discharged from the hospital. According to plaintiff, her visitations with her granddaughter "began to dwindle" around August 2012, when she "learned" defendant was dating a woman.

Soon thereafter, plaintiff's contacts with Nancy were reduced to once "every other week." Plaintiff claims defendant told her that Nancy "was not really allowed to have visitors or be outside due to her delicate medical condition which required a SIDS[3] monitor." Defendant certified that plaintiff "has taken no interest in learning about [Nancy's] medical conditions[.]" Given Nancy's tender age and medical fragility, defendant claims Nancy is not "bonded" in any way to her maternal grandmother and characterizes plaintiff's "ability" to care for Nancy as "unrealistic."

With respect to Nathan's request to have contact with his sister, defendant has expressed concern for Nancy's safety by making highly inflammatory and disturbing accusations against plaintiff's son, who resides with plaintiff and Nathan. Defendant states that he "would like for [Nancy] and [Nathan] to continue to see each other since they are half-siblings, [but he] cannot agree to have Plaintiff be a visiting grandparent in anyway [sic] that will require [Nancy] to spend time in Plaintiff's home or with Plaintiff unsupervised."

It is clear from even a cursory examination of defendant's certification that he harbors great resentment and animosity toward plaintiff. It is also difficult to discern from these statements whether this resentment is derived exclusively from defendant's genuine concern for his daughter's wellbeing or is related to matters extraneous to the child. The following statements from defendant's certification illustrate these troubling concerns:

25. This is not someone [referring to plaintiff] I wish to be involved with in raising my baby or influencing my baby.

26. I do not believe Plaintiff has [Nancy's] best interest at heart, nor does she really even have [Nathan's] best interest at heart. I need to raise my daughter without any influence by Plaintiff.

27. Also, Plaintiff received sympathy cards and held a fundraiser for [Nancy] and [Nathan] and collected funds, which I feel should not be 100% in her control.

Despite these conflicting allegations, the judge denied plaintiff any relief and dismissed the verified complaint as a matter of law. The record shows the judge specifically declined to hear from defendant's counsel at the return date of the Order to Show Cause, noting that based on what he had read in the form pleadings and supporting certifications, plaintiff had not established a sufficient basis to overcome defendant's presumptively valid objections to visitation as Nancy's parent. As permitted by Rule 2:5-1(b), the judge supplemented his analysis and findings after plaintiff filed this appeal.

In R.K. v. D.L., supra, this court recently addressed in great detail the procedural and substantive approach the Family Part must employ in adjudicating grandparent visitation complaints. 434 N.J. Super. at 140-144. This approach is grounded on the constitutional concerns expressed by our Supreme Court in Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004), and the Legislature's codified standards in N.J.S.A. 9:2-7.1. Notwithstanding their designation as summary actions, we emphasized the need for the Family Part judge assigned to meet with the parties and their attorneys to discuss

as soon practical after joinder of issue on the record: (1) the nature of the harm to the child alleged by plaintiff; (2) the possibility of settlement through mediation or as otherwise provided in Rule 5:5-5; (3) whether pendente lite relief is warranted; (4) the extent to which any of the facts related to the statutory factors identified in N.J.S.A. 9:2-7.1(b)(1) through (8) can be stipulated by the parties; (5) whether discovery is necessary, and if so, the extent and scope of the discovery, as permitted by Rule 5:5-1(a), written interrogatories, production of documents, Rule 4:18-1, request for admissions, and consent to release documents not within the possession of the party -- discovery may be completed within the time allotted in Rule 5:5-1(e), or as otherwise ordered by the court; (6) whether expert testimony will be required, and if so, the time for submission of the expert's report and curriculum vitae, the time for submission of defendant's rebuttal report if any, and whether deposition of the expert(s) will be required or permitted; (7) a protocol for the filing of motions, including motions to compel discovery, motions seeking protective orders to exclude or limit evidence based on an assertion of privilege, or because the release of the information would adversely affect the child's best interest, or unduly infringe upon the privacy rights of the custodial parent; and (8) a tentative date for the filing of dispositive motions and/or a plenary hearing if necessary to adjudicate plaintiff's complaint and resolve any material facts in dispute.

[R.K. supra, 434 N.J. Super. at 138.]

We recognize that R.K. had not been decided at the time this case came before the trial court. We also reaffirm that this list of possible case management issues "is by no means exhaustive of the myriad of potential case management issues that may arise in any given case. The need and degree of judicial supervision is left entirely to the discretion of the trial judge." Id. at 138. We conclude by noting Justice Long's words in Moriarty, supra:

[I]n every case in which visitation is denied, the grandparents bear the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child. The grandparents' evidence can be expert or factual. For example, they may rely on the death of a parent or the breakup of the child's home through divorce or separation. In fact, many of the fifty grandparent visitation statutes specifically recognize the potential for harm when a parent has died or a family breakup has occurred and visitation is denied.

[177 N.J. at 117 (emphasis added).]

Here, the trial court did not properly consider these factors in dismissing plaintiff's complaint as a matter of law. We are thus compelled to reverse and remand this matter for the trial court to reexamine plaintiff's complaint de novo, adhering to the procedures and principles we described in R.K.

Reversed and remanded. We do not retain jurisdiction.

1 We use fictitious names to protect the privacy of the children involved in this litigation.

2 Despite being represented by counsel before the trial court, both parties used the standard pleadings forms promulgated by the Administrative Office of the Courts (AOC) pursuant to Directive #08-11, intended to be used primarily by pro se litigants. This standard form informs "the person served with this complaint" that he or she "may file a certification in opposition." Using the counterclaim form, defendant placed a checkmark in the box indicating he was seeking "sole custody." However, defendant's status as Nancy's custodial parent was never challenged by plaintiff and is not an issue in this case.

3 SIDS stands for Sudden Infant Death Syndrome.