D.M. (Paternal Grandmother) v. H.B. and C.B. (Maternal Grandfather and Grandmother), et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4907-05T34907-05T3

D.M. (Paternal Grandmother),

Plaintiff-Respondent,

v.

H.B. and C.B. (Maternal Grandfather

and Grandmother), and C.B. (Mother),

Defendants-Appellants.

_________________________________________________

 

Submitted September 4, 2007 - Decided September 12, 2007

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Chancery Division-Family Part, Camden County, FD-04-3195-06.

Jamie Epstein attorney for appellants.

D.M., respondent, filed a pro se

brief.

PER CURIAM

In an order entered on May 15, 2006, a judge of the Family Part granted temporary legal and residential custody of W.B., a boy, then age six, to his material grandparents, H.B. (grandfather) and C.B. (grandmother), and required that the boy at no time be in the presence of his mother, whose initials are also C.B., without the direct supervision of one of the maternal grandparents. The order further granted child visitation to D.M., the boy's paternal grandmother, on the second and fourth Sunday of each month, from 12:30 to 3:30 p.m., at a specified New Jersey mall, under the supervision of the child's maternal grandparents. In succeeding paragraphs, the order required the paternal grandmother to undergo a risk assessment and home evaluation, and as a final matter, the order provided for phone contact between the boy and his paternal grandmother "a few times a week."

The boy's mother has appealed the grandparental visitation provisions of the order, making the following arguments:

1. As a matter of law, it was reversible error for the trial court to sua sponte order visitation to Plaintiff [paternal grandmother], without her filing a complaint for visitation or proving [the boy] would be harmed if the visitation was not granted.

2. It was reversible error for the Court below to sua sponte order visitation to Plaintiff who was allowing her home (where [the boy] resided) to be used for the distribution and consumption of heroin.

The record, which is scantily documented, offers the following: At the age of seventeen and one-half, the mother left her home in New Jersey to live with her much-older boyfriend at the boyfriend's mother's house in Philadelphia. She remained there for approximately seven years until March 10 or 11, 2006, when she returned with her son to her parents' New Jersey home. The boyfriend is the father of the subject child, born on March 11, 2000.

During the period of the mother's and son's residence with the paternal grandmother in Philadelphia, the mother and the boy's father used heroin on a regular basis. Additionally, the father sold heroin from the home, selling to the police in controlled buys on December 13 and December 15, 2004. Following the December 15 sale, the police searched the residence pursuant to a warrant, discovering 280 decks of heroin in the boy's parents' bedroom and 336 decks in the boy's room. The father was arrested, and at the time of the hearing in this matter, he was incarcerated in Pennsylvania.

In the meantime, the mother had received methadone treatment, commencing in December 2003. Although the mother claims not to have used illegal drugs since May 3, 2004, the paternal grandmother alleged at the hearing that the mother had commenced smoking crack cocaine on February 16, 2006. The mother admits to psychiatric difficulties that presently impair her ability to care for her son.

The paternal grandmother acknowledged at the hearing that, while both the boy's mother and father were being treated with methadone, they experienced symptoms of withdrawal that the grandmother sought to alleviate by purchasing additional drugs for them. Following the purchase, the grandmother was arrested on alleged misdemeanor drug charges, received a probationary sentence, and claims that her record has been expunged. The grandmother also admitted to paying off some of the mother's and father's drug debts to keep them from being injured. However, she denied that she knew her residence was being used for drug sales, and as proof of her innocence, she asserted without contradiction that a seizure of her house by Pennsylvania authorities because of its use in drug sales had been rescinded recently upon proof that the grandmother was not involved in the sales. No records regarding the seizure or return were furnished.

On March 10, 2006, allegedly as the result of the mother's continued use of cocaine, the paternal grandmother sought an order by the Pennsylvania courts granting her custody of the boy. However, the complaint was dismissed for lack of jurisdiction. After the paternal grandmother's suit was filed in Pennsylvania, the maternal grandparents and mother filed an order to show cause in the Superior Court of New Jersey, seeking a Family Part order incorporating the parties' agreement that the maternal grandparents be given temporary custody of the child. The paternal grandmother thereupon filed a pro se custody action in New Jersey. Following oral argument in the two matters, held jointly, the order that we have previously described was entered. A stay of its terms pending appeal was denied by the Family Part judge.

At the hearing, evidence was presented to the judge that the maternal grandparents were willing to assume custody of the boy and to supervise the mother's contacts with him. At that point, the judge asked the paternal grandmother if she was willing to withdraw her application for custody, and the following exchange with the paternal grandmother occurred:

THE COURT: . . . I need to figure out what to do with this child and where to leave him. You heard what I just said, if these folks [the maternal grandparents] are willing to keep him, supervising mom, and making sure that mom gets the help and attention and care that she needs to get back on track and make sure she stays clean, do you still want to pursue your application for custody?

[PARENTAL GRANDMOTHER]: At least visitation.

After receipt of this response, the judge determined to deem the paternal grandmother's pro se custody complaint as an application for grandparental visitation, pursuant to N.J.S.A. 9:2-7.1 - a step that we view as unexceptionable and expedient in the circumstances, if not entirely procedurally regular. Having done so, the judge suggested as a visitation plan that the paternal grandmother initially be permitted twice a month to participate in a supervised visit with the boy at a local New Jersey mall for a period of approximately two to three hours that included lunch. The maternal grandparents essentially concurred in this plan, as illustrated by the following colloquy with the maternal grandfather:

[MATERNAL GRANDFATHER]: Oh, could I speak just for a moment. Yea, I know you were advancing the idea about the supervised visits and so on. I'd like to express my opinion on that. I think that I, you know, if she [the paternal grandmother] does in fact go to some place as your suggestion about the mall or something like this, and under those circumstances where you know, it was supervised, I mean assuming that there's no risk of him being abducted, you know, I could go along with something like that, - -

THE COURT: Um-hmm.

[MATERNAL GRANDFATHER]: -- I mean she has been the grandmother.

THE COURT: Right.

[MATERNAL GRANDFATHER]: And she has spent a lot of time with him -

THE COURT: Um-hmm.

[MATERNAL GRANDFATHER]: -- and they have a good relationship.

THE COURT: Um-hmm.

[MATERNAL GRANDFATHER]: It's just that these other, you know, I just want to say that I don't object in theory to that.

Later in the course of the argument, the maternal grandmother also agreed that she "didn't have a problem" with the mall suggestion. The mother did not address the judge on this issue or raise any objection to the visitation plan.

During the hearing, considerable argument occurred regarding the paternal grandmother's knowledge of the drug habits of the mother and father, which she admitted, and of the father's drug dealing, which she denied. Additional argument occurred regarding whether, as a result of the foregoing, the grandmother posed a danger to the child. The judge did not fully resolve this issue, and although she projected a scenario in which the paternal grandmother eventually would be afforded unsupervised visitation with the boy in her home or that of a daughter, the judge did not order such visitation to occur immediately, but instead ordered that the grandmother first undergo a risk assessment and home evaluation. However, she declined to order that such evaluations occur prior to permitting the paternal grandmother to have supervised visitation with the boy in a public mall.

Upon receipt of an objection from counsel for the maternal grandparents and mother that there was no legal basis for the paternal grandmother to have visitation, the following exchange occurred:

[COUNSEL]: . . . I question the legal basis of granting [the paternal grandmother] visitation, the bottom line.

* * *

Because it's my understanding of the law, unless I'm wrong, is that there's no legal basis for her having visitation.

THE COURT: Unless I find that she stands in loco parentis for this child, she basically raised the child for the past 6 years.

[COUNSEL]: Well, there's the factual

- -

* * *

THE COURT: Well, your client has admitted that she lived with this woman and did not live with these people [the maternal grandparents] since the child's been born. She may have visited her parents but she certainly didn't live there. I'm not willing to just say that I'm going to cut this lady completely out of this child's life, because I think that could create other problems for this little boy. If all of a sudden he has no contact with her, doesn't know if she dropped off the face of the earth or what happened.

As we have noted, the mother, joined by the maternal grandparents, has appealed from the grant of visitation to the paternal grandmother, raising procedural issues regarding the lack of an application for visitation - an argument that we have rejected - and arguments as to whether there was sufficient proof that the child would be harmed by the severance of contact with his paternal grandmother and whether she presented a danger to him because she had enabled his parents' drug use.

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), the Supreme Court addressed the requirements of the grandparental visitation statute, as set forth in N.J.S.A. 9:2-7.1, in light of the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) that held the State of Washington's grandparental visitation statute unconstitutional because it infringed on fit parents' constitutional rights to rear their children. The New Jersey Court held in this context that "interference with parental autonomy will be tolerated only to avoid harm to the health or welfare of a child." Moriarty, supra, 177 N.J. at 115. And it placed the burden on the grandparents, "in every case in which visitation is denied . . . of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child." Ibid.

Our summary of the hearing in the present matter discloses that both of the maternal grandparents consented to the limited, supervised visitation in a public place ordered by the Family Part judge, and that the mother offered no opposition to the plan. Further, the maternal grandfather acknowledged the length of time the paternal grandmother had spent with the child and the close relationship between the two as justification for a continuation of their contact. Although the parties' attorney asserted that there was no "legal basis" for granting visitation, given the lack of opposition by the parties to the limited relief that the judge proposed, counsel's objection appears misplaced, since the issue of grounds for an order of visitation did not require resolution. As a consequence, in the circumstances that we have described, we do not find the mother's present objections to visitation to have been properly raised on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Moreover, we note that "termination of a long-standing relationship between the grandparents and the child, with expert testimony assessing the effect of those circumstances," has been noted by the Court as an example of evidence sufficient to sustain a grandparent's burden of demonstrating harm to the child warranting an order of visitation. Moriarty, supra, 177 N.J. at 117; see also Daniels v. Daniels, 381 N.J. Super. 286, 288 (App. Div. 2005). Here, the existence of a such a relationship was clear as the result of evidence of the lengthy period during which the paternal grandmother and child had lived together - essentially, the entirety of the child's six-year life. Although psychiatric testimony regarding the effects of the severance of the relationship between the two would have strengthened the grandmother's proofs, we do not regard the absence of such testimony to be fatal to her position, and we decline to disturb the court's determination of this issue. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

In her final argument, the mother suggests that visitation is not in the child's best interest, citing evidence that the grandmother had in the past enabled his parents' drug habits and alleging that she knowingly permitted drug sales to occur in the home where the child resided. We perceive no merit in this argument at the present time in the absence of any evidence that supervised contact with the paternal grandmother in a public mall would pose a danger to the child. In this context, we note that any expansion of the scope of the grandmother's visitation rights was made dependent upon the results of a risk assessment of the grandmother and an evaluation of her home. The parties retain their right to appeal any subsequent order, should it appear, in light of the results of those assessments or for other reasons, that the child's best interests are not being protected. Ibid. (holding that when the presumption in favor of parental decision-making has been overcome, "the court should approve a schedule that it finds is in the child's best interest, based on the application of the statutory factors" in N.J.S.A. 9:2-7.1b.

 
Affirmed. Jurisdiction is not retained.

The maternal grandparents have joined in her brief.

Because the custody awarded to the maternal grandparents is temporary in nature, we deem the mother to have standing to object to the visitation that has been ordered, regardless of the fact that the mother's own contact with the child is presently circumscribed. However, we note a potential conflict of interest in the representation of the mother and maternal grandparents by the same counsel arising from their expression of seemingly divergent views on the visitation issue. See RPC 1.7.

We note an issue of fact as to whether the grandmother acted as the child's primary caretaker.

(continued)

(continued)

12

A-4907-05T3

RECORD IMPOUNDED

September 12, 2007