M.O. v. N.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.O.,

Plaintiff-Appellant,

v.

N.H.,

Defendant-Respondent,

and

Z.O.,

Defendant.

_________________________________________

December 8, 2015

Submitted August 11, 2015 Decided

Before Judges O'Connor and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-1526-14.

Thomas J. Hurley, attorney for appellant.

Jeffrey F. Dragon & Associates, P.A., attorney for respondent (Robyn Dragon, on the brief).

PER CURIAM

Plaintiff M.O. ("grandmother") is the paternal grandmother of J.O. ("child"), presently seven years of age.1 N.H. ("mother") is the mother and Z.O. ("father") is the father of the child. On November 12, 2014, the trial court entered an order granting the mother's application to relocate the child from New Jersey to South Carolina. The father did not oppose the application, but the grandmother did, and she appeals the November 12, 2014 order. After carefully reviewing the record, the briefs, and the applicable legal principles, we affirm.

I

In November 2013, the grandmother filed a verified complaint under the "FD" docket seeking grandparent visitation of the child, pursuant to N.J.S.A. 9:2-7.1. In her verified complaint the grandmother indicated the mother and father never lived together, but, since the child's birth, the father had parenting time every weekend and "would also get time during the week." The grandmother further verified that the father's parenting time took place in the grandmother's home, "so the three of us were always together." She acknowledged that the time she spent with the child was "de facto, a byproduct of [the father's] visitation."

According to her complaint, three weeks before she filed her application for grandparent visitation, the mother inexplicably failed to permit the father to have any parenting time. As a result, the grandmother filed a complaint to obtain an order establishing her own visitation schedule under N.J.S.A. 9:2-7.1. On January 15, 2014, the date of the hearing on her application, the mother did not appear and the trial court entered an order giving the grandmother visitation every other weekend from Friday at 4:00 p.m. to Sunday at 6:00 p.m. and every Wednesday from 4:00 p.m. to 7:00 p.m. The transcript of the hearing was not provided and, thus, we do not know the reason why the court found this particular visitation schedule appropriate.

The mother did not permit the grandmother to have visitation pursuant to the January 15, 2014 order. In May 2014, the grandmother filed a motion to enforce the January 15, 2014 order. In her response to the motion, the mother certified she did not release the child to the father or the grandmother for visitation because she had discovered the father may have been sexually abusing the boy and the grandmother failed to protect the child from the father's abuse. The mother reported her concerns to the New Jersey Division of Child Protection and Permanency ("DCPP") and to the police, who advised her to keep the child away from the father and the grandmother.

After hearing extensive oral argument, on June 27, 2014, the court entered an order directing that, for the succeeding four weeks, the grandmother could have visitation but only on Saturday from noon to 2:00 p.m. Further, visitation was to occur in the presence of the child's maternal grandmother and no one other than the child and his grandmother could be present during visitation. The court also ordered the parties to appear for a status conference on July 28, 2014.

At the July 28, 2014 status conference, the court scheduled a trial for September 17, 2014. Although not included in the July 28, 2014 order, the record of the status conference reveals that the sole issue to be litigated during the trial was whether the terms of the June 27, 2014 order were to continue.

In September 2014, the mother filed a motion for reconsideration of and to vacate the January 15, 2014 order awarding the grandmother visitation. The mother also moved for an order permitting her to relocate the child from New Jersey to South Carolina. For reasons not pertinent here, the mother's motion to relocate the child had to be re-filed and was not heard until November 12, 2014. In the interim, on September 17, 2014, the trial to be held on the issue of whether the grandmother's visitation was to continue to be restricted was adjourned to November 12, 2014.

On October 20, 2014, the court denied the mother's motion to reconsider and to vacate the January 15, 2014 order. Although the mother had asserted in her motion papers that she had not appeared at the January 15, 2014 hearing because she had not been served with the grandmother's application for visitation, the court denied the mother's motion. In its order the court stated the motion was denied because the motion had not been timely filed pursuant to Rule 4:49-2. No other reason for denying the motion was provided; the record does not indicate if the court considered the mother's claim she had not been served with the complaint.

On November 12, 2014, the court granted the mother's motion to relocate the child to South Carolina following oral argument. The father did not oppose the motion. The grandmother did oppose the motion, claiming the court had previously found she had spent "one-half of the time" with the child from 2008 (the year the child was born) to 2013 and "[a]s such I have stepped into the shoes of a parent." We found no support in the record for the grandmother's claim the court had made these two findings of fact.

The record reveals that, during oral argument on the grandmother's motion to enforce grandparent visitation, the trial court stated erroneously that the child stayed with the grandmother "four days every week and she's had every weekend of his life until 2013." However, the court's comment was not based upon the evidence. More important, the comment was not made in the context of making a factual finding; the court was merely summarizing what it had mistakenly believed the grandmother had asserted in her certification. What the grandmother had in fact stated in her certification was that the child had been in her home four days a week for the first six months of his life, but thereafter was in her home from Friday evening through Sunday evening.

In granting the mother's motion to remove the child to South Carolina, the court found the grandmother did not have standing to oppose the motion because she had failed to show she was a psychological parent.2 On appeal, the grandmother's principal argument is that she was - or could have proven that she was at a plenary hearing - a psychological parent and thus had standing to oppose the mother's motion for relocation. She further contends the court twice ordered that there be a plenary hearing "in this matter" and that it was error to fail to hold such a hearing. She also argues the court was required to conduct a plenary hearing and make findings of fact on each of the removal factors outlined in Baures v. Lewis, 167 N.J. 91, 116-17 (2001), before it could make a decision on the mother's removal application.

II

The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). These findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citations omitted). Moreover, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.

For a party to prove he is a psychological parent, he must show the following four elements

(1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation [a petitioner's contribution to a child's support need not be monetary]; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

[V.C. v. M.J.B., 163 N.J. 200, 223 (2000) (quoting Custody of H.S.H.-K., 533 N.W.2d 419, 421 (1995)).]

The Court noted that "[e]stablishing psychological parenthood is not an easy task and the standards we have adopted should be scrupulously applied in order to protect the legal parent-child relationship." V.C., supra, 163 N.J. at 230.

We agree with the trial court that there was no evidence the grandmother was a psychological parent. Further, she failed to set forth sufficient facts in her certification to warrant holding a plenary hearing.

With respect to the first prong a party must prove to support a claim she is a psychological parent, see V.C., supra, 163 N.J. at 223, the grandmother had to show the mother ceded over to her "a measure of parental authority and autonomy and granted to [the grandmother] rights and duties vis-a-vis the child that the third party's status would not otherwise warrant." Id. at 224. The grandmother failed to set forth any facts in her certification to support the premise the mother consented to and fostered the formation and establishment of a parent-like relationship between the grandmother and child.

While the grandmother may have seen the child every weekend, as well as for an unspecified period of time during the week, from the time the child was six months old until 2013, the grandmother merely did so coextensively with the father during his parenting time. The grandmother's contact with the child was solely derivative of the father's parenting time. The mother never transferred any parental authority over to the grandmother. There is no evidence the mother sought to place the grandmother on parity with her as a co-parent in any respect, and there is no basis to hold that by willingly giving the father liberal parenting time, the mother endeavored to make anyone else present during the father's parenting time a co- parent.

Although the grandmother's failure to meet the first prong is fatal to her claim she was a psychological parent, given that all four prongs must be met, we note the grandmother was also unable to meet the remaining prongs. For example, as for the second prong, even if the child lived in the grandmother's household for four days of the week during the first six months of his life, during the ensuing years the child lived with his mother. With respect to the third prong, there is no evidence the grandmother "assumed the obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributed towards his support without expectation of financial compensation." Id. at 223.

Finally, the grandmother did not set forth any facts in her certification establishing the child was in a bonded, dependent relationship with her that was parental in nature, other than to assert, without factual support, that she had "stepped into the shoes of a parent." Although she claimed she would be able to call witnesses at a hearing who would provide testimony about the care she gave to the child during his early years, the grandmother failed to support this assertion with any facts in her certification or provide certifications from any witnesses. A court is not required to hold a plenary hearing; a hearing is required only if genuine issues of fact exist bearing upon a material question in a case. Barblock v. Barblock, 383 N.J. Super. 114, 123 (App. Div. 2006) (citing Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. 1999)). Here, the grandmother failed to come forward with any facts to warrant conducting a hearing.

As she was neither a parent nor psychological parent, the grandmother had no standing to oppose the removal motion. The father, the only party who had standing to oppose the motion, did not object to the child being removed to South Carolina. Accordingly, the trial court did not abuse its discretion in granting the mother's unopposed motion for removal.

The grandmother argued that the trial court had ordered that a plenary hearing "was required in this matter." We have searched the record and failed to find any support for the claim the trial court ordered a plenary hearing on the removal issue. To the extent that any argument raised by plaintiff has not been explicitly addressed in this opinion, it is because we are satisfied that the argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 We use initials to maintain the confidentiality of the parties involved.

2 The court did, however, order that the grandmother could continue to have grandparent visitation with the child in South Carolina.