M.C. v. J.U.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.C.,

Plaintiff-Respondent,

v.

J.U.,

Defendant-Appellant.

_____________________________

May 12, 2014

Submitted April 29, 2014 Decided

Before Judges Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1847-11.

J.U., appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant J.U., presently incarcerated, appeals from the Family Part's March 15, 2013, order denying his application for visitation with his twelve-year-old and nine-year-old sons. Having reviewed defendant's arguments in light of the record and the applicable principles of law, we affirm.

Defendant has been incarcerated since January 30, 2007. He was sentenced in May 2008 to nine years, subject to the No Early Release Act and Megan's Law, after pleading guilty to first-degree sexual assault of a step-daughter, then eleven. See N.J.S.A. 2C:43-7.2; N.J.S.A. 2C:7-1 to -19. He is currently housed at the Adult Diagnostic and Treatment Center (ADTC) in Avenel.

The judgment of conviction barred him from having contact with the victim. However, in a separate abuse and neglect case, Judge Frederic S. Kessler entered an order in February 2008, pursuant to N.J.S.A. 9:2-4.1, suspending defendant's visitation with his sons, as well as the step-daughter. The boys were then three and six years old. The order also barred any contact with the boys or the step-daughter.

Defendant filed a pro se motion in the Family Part seeking visitation. It was unopposed by plaintiff, the sons' mother. The record does not include defendant's notice of motion, or certification of service. It also does not include a supporting certification of facts.

Defendant argued, by way of a pro se brief, that visitation would serve the best interests of his children. Defendant asserted that although he is incarcerated, he could convey to his sons valuable life lessons about the consequences of one's actions. He also argued that absent the opportunity to explain to his children that he loves them, and he is sorry that his actions resulted in their separation from him, they may blame themselves, or feel unloved.

According to prison documents submitted with his application, defendant will be released by September 22, 2014. However, he is subject to immigration-related detainers and anticipates that he will be taken into federal custody and removed from the country after his release from the ADTC. Defendant argues that if he is removed without the chance to visit with his sons, they will conclude that he abandoned them, which would harm them emotionally.

Judge Camille M. Kenny denied defendant's application. In a written statement of reasons, Judge Kenny recognized that a parent's status as a prisoner does not automatically sever a parent's right of visitation, citing Fusco v. Fusco, 186 N.J. Super. 321, 326 (App. Div. 1982). However, the movant bears the burden to establish that visitation would serve the children's best interests. Judge Kenny concluded that defendant had failed to make a prima facie showing of a change in circumstances to alter the current ban on visitation.

Defendant appeals and renews the arguments presented to the trial court. However, we discern no basis to disturb Judge Kenny's order.

We owe deference to the expertise of Family Part judges. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We exercise an expanded scope of review when the trial court has decided an issue without the benefit of a hearing and credibility findings. Cf.N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J.382, 396 (2009) (stating that deference to Family Court conclusions is not required where "no hearing takes place, no evidence is admitted, and no findings of fact are made"). Also, no deference is owed to the trial judge's "'interpretation of the law and the legal consequences that flow from established facts.'" Crespo v. Crespo, 395 N.J. Super.190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995)).

Defendant's request for visitation is governed by N.J.S.A. 9:2-4.1(a). That statute provides:

Notwithstanding any provision of law to the contrary, a person convicted of sexual assault under N.J.S.A. 2C:14-2 shall not be awarded the custody of or visitation rights
to any minor child, including a minor child who was born as a result of or was the victim of the sexual assault, except upon a showing by clear and convincing evidence that it is in the best interest of the child for custody or visitation rights to be awarded.1

Thus, a person convicted of sexual assault faces a heightened standard of proof in order to establish that visitation serves the child's best interest. Cf. Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 155-56 (App. Div.) (stating that party must show by preponderance of evidence that imposing geographical restraints on visitation would serve the child's best interests), certif. denied, 178 N.J. 34 (2003); N.J.S.A. 9:2-7.1(a) (stating that a party seeking grandparent visitation must prove by a preponderance of the evidence that it is in the child's best interests).

In Fusco, supra, 186 N.J. Super. at 326, we recognized the "general desirability of maintaining and nurturing the paternal relationship between father and child" after the father was incarcerated. That case involved the visitation application of a father who was serving a sentence for murder. However, we also identified countervailing factors, including the emotional and psychological burden upon the child. Ibid. Presumably, that may vary depending on the age and personality of the child, and the child's prior relationship with the parent. The impact of knowledge of the parent's crime is also a factor. Ibid. We also recognized that the custodial parent is entitled to some control of when and how a child will learn of the other parent's anti-social actions, given its impact on the child and the parent's ability to rear and nurture the child. Id. at 326-27.

A parent seeking visitation must meet his or her burden by presenting competent evidence. The record on appeal does not disclose that defendant supported his motion with a certification or other competent evidence. R. 1:6-6. Instead, he has provided an unsworn brief and a copy of the unsworn brief presented to the trial court. That does not suffice. See Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 358 (App. Div. 2004) (stating that letter of counsel is not evidence), aff'd o.b., 184 N.J. 415 (2005), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006).

Defendant argues that he has benefitted from years of therapy. Yet, he provides no competent evidence of that, from therapists, or himself. He asserts that plaintiff supports his petition, but provides no sworn statement from her, or the reasons why, based on the boys' circumstances, a visit or visits with their father would be a positive development.

Defendant provides no evidence regarding the nature of his past relationship with his sons. There is also no explanation as to why defendant waited until recently to attempt to establish a relationship.

The record is devoid of any evidence regarding the children's current emotional state, and their understanding of what their father did and where he is located. There also is no indication of the children's preferences, and what impact a visit would have on them after so much time has elapsed.

In sum, we agree with Judge Kenny that defendant has fallen short of establishing even a prima facie case that it would serve his sons' best interests in commencing visitation.

Affirmed.

1 The statute originally affected only visitation with the victim or child born as a result of the crime; but, it was amended by L. 1999, c. 424 1, to include visitation with any minor child. The statute also expressly provides that "denial of custody or visitation . . . shall not by itself terminate the parental rights of the person denied visitation or custody," nor does it affect the person's child support obligation. N.J.S.A. 9:2-4.1(c).