RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4805-15T4
B.C., APPROVED FOR PUBLICATION Plaintiff-Appellant, May 11, 2017 v. APPELLATE DIVISION NEW JERSEY DIVISION OF CHILD PROTECTION and PERMANENCY,
Defendant-Respondent.
____________________________
Argued telephonically March 17, 2017 — Decided May 11, 2017
Before Judges Reisner, Koblitz and Rothstadt.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FD-10-101-17.
Kenneth Rosellini argued the cause for appellant.
Andrea C. D'Aleo, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Ms. D'Aleo, on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D. B.C. seeks reversal of the Family Part judge's July 1, 2016
order dismissing his complaint for grandparent visitation filed
under the FD, non-dissolution, docket. At oral argument before
us it became apparent that both sides now agree that the FD
complaint should not have been dismissed. Although the parties
have reached agreement on this point, we write this opinion to
suggest the proper procedure for determining what contact B.C.
should have with his grandchildren and to clear up any
misunderstanding in the future regarding treatment of
contemporaneous FN abuse and neglect and FD non-dissolution
visitation complaints.
B.C. and his wife1 have provided a resource home for their
grandchildren during several lengthy placements by the Division
of Child Protection and Permanency (Division). Most recently, the
four children were in B.C.'s custody from January until June 2016,
when the children were removed by the Division because both B.C.
and his wife failed to cooperate with court-ordered psychological
evaluations.
After the removal, B.C., represented by counsel, sought
visitation with his grandchildren by filing an FD complaint and
order to show cause seeking emergent relief. The Division
1 B.C.'s wife, the maternal grandmother, is not a party to this action. 2 A-4805-15T4 responded to the FD complaint by stating it was invalid because
of an ongoing FN action. The Division suggested a motion to
intervene in the FN matter would be the proper procedure, although
the Division made clear it would oppose such a motion. The judge
hearing the FN complaint denied the emergent FD application and
dismissed the FD complaint, noting the children were subject to
an open FN matter and directing B.C. to "file a motion."
B.C. interpreted this order as requiring him to file a motion
to intervene in the FN action. He appealed, claiming the FD
complaint was the proper means of filing a grandparent visitation
complaint, pursuant to N.J.S.A. 9:2-7.1. The Division responded
that the trial judge appropriately denied B.C.'s request for
emergent relief under the FD docket because the visitation sought
was not emergent in nature. The Division, however, conceded at
oral argument that dismissing the FD complaint was improper.
We conclude that the procedure followed here failed to
acknowledge the grandparents' separate legal rights under the
grandparent visitation statute, N.J.S.A. 9:2-7.1, which they would
ordinarily seek to assert in the FD docket. But, as illustrated
by this case, we also acknowledge that the visitation issue is
relevant to both the FN and FD dockets. We reverse and remand to
allow the judge to consider the visitation request of B.C., either
within the FN docket, or as a companion FD case.
3 A-4805-15T4 Even if the issue is addressed in the FN docket, however, the
FD docket number should be preserved to allow the grandparents to
file an enforcement motion, if necessary, without involving the
Division after the FN matter is resolved and dismissed. In
general, the FD docket number should be maintained to preserve the
FD plaintiff's right to pursue visitation.
B.C. and his wife are the maternal grandparents of four
children; "Albert," the oldest, was thirteen years old when the
FD complaint was filed.2 The Division has been involved with the
family since 2008 due to concerns about physical abuse, domestic
violence and substance abuse by the birth parents.
The children were initially removed from their parents'
custody in December 2012 and placed in the licensed resource home
of their maternal grandparents. After seven months, the children
were reunified with their mother, K.C., for five months before
being returned to the grandparents for another eight months, after
which they were again reunified with their mother. A month later,
in January 2016, the children were once again removed and placed
with their maternal grandparents. B.C. states that his
grandchildren, particularly Albert, have been in his care so often
2 Initials and pseudonyms have been used to protect the parties' identity. R. 1:38-3(d)(12). 4 A-4805-15T4 that he has become a psychological parent to them.3 The three
youngest children have been returned to their mother while Albert
is living in an institutional setting.4
On February 22, 2016, the judge entered an FN order directing
B.C. and his wife to "undergo psychological evaluation[s] as
arranged by the Division." An April 2016 letter from a Deputy
Attorney General to B.C.'s counsel stated the Division sought
psychological evaluations because there is a "strong possibility"
that B.C. and his wife's home may be the permanent plan for the
children. The letter also stated that the Court Appointed Special
Advocate5 reported a number of behaviors involving the grandparents
3 See V.C. v. M.J.B., 163 N.J. 200, 223 (citations omitted) (stating the proof necessary to establish that one is a psychological parent: "(1) that the biological or adoption 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 obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing to the child's support, without expectation of financial compensation . . . ; 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"), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).
4 For the purposes of this appeal, we allow the expansion of the record by the Division to include various redacted documents from the FN matter, although the better practice is to file a motion to expand the record. R. 2:5-5.
5 In J.B. v. W.B., 215 N.J. 305, 332 n.5 (2013), the Court stated:
5 A-4805-15T4 that were a "cause for concern." The letter included examples of
psychological and development issues with three of the children.
Albert had been diagnosed with symptoms of obsessive-compulsive
disorder, and there was a suggestion that the grandparents might
be enabling or exacerbating his behavior.
A May 2, 2016 FN order required that B.C. and his wife "shall
follow through with the services for the children and attend the
psychological evaluations schedule by the Division." A hearing
was also scheduled for the end of the month to address the issue
of psychological evaluations for B.C. and his wife.
The parties dispute what happened after this court date. B.C.
states that the Division requested mediation and that he agreed
and provided proposed dates. The Division does not address the
issue of mediation, but instead contends that the grandparents
continued to object to psychological evaluations. The Division
also notes that during a June 2016 FN hearing, K.C., the mother,
N.J.S.A. 2A:4A-92 . . . authorizes a Court Appointed Special Advocate (CASA) program in each vicinage. See also Rule 5:8C (authorizing appointment of special advocate from CASA program to assist Family Part judge in determining best interests of child); Administrative Directive #05-13 (July 16, 2013) (noting that CASA volunteers gather information about children who have been removed from their homes due to abuse or neglect and present that information to court). 6 A-4805-15T4 did not object to removal of the children from her parents' home,
or the court's order that no one would inform the grandparents of
the removal plan.
On June 14, 2016, the children were removed by Division
caseworkers and police while attending a dental appointment for
two of the children. B.C. alleged that the children, particularly
Albert, "were visibly upset and traumatized by the forcible 'Big
Brother' type removal." The Division failed to make any
arrangement for the children to communicate or visit with the
grandparents after the removal. On July 1, 2016, B.C. filed his
FD complaint and order to show cause.
In his FD complaint, B.C. stated that he was the "grandparent,
caretaker and psychological parent for [his daughter's] children
for several years, and particularly as to [Albert]". He stated
that he had "been acting as the caretaker for the children for
over a year in connection with [the FN matter] . . . in which [the
Division] removed the children from their parents['] custody, but
in which no permanency plan has been implemented." He stated that
"[f]or reasons unknown" the Division removed the children "without
making any arrangements for grandparent visitation," and that
prior to this removal, he "ha[d] been in constant communication
with the children their entire lives, and they have never gone
this long without any visitation or communication."
7 A-4805-15T4 In a letter to the judge, the Deputy Attorney General argued
that the judge should reject the complaint because it was
"[p]rocedurally . . . deficient on a number of levels." She stated
"the [m]aternal [g]randparents have failed to file a [m]otion to
[i]ntervene which would then give them standing to file a [m]otion
seeking any relief." She argued that B.C. and his wife claimed
to be the psychological parents of the children, but that this
status "requires a legal finding . . . . [that] ha[d] not been
made." Finally, she contended that the grandparents continued to
refuse to have psychological evaluations.
The judge denied B.C.'s order to show cause on July 1,
writing: "The complaint in this matter is dismissed. The minors
in this case are the subject of an open FN matter." She also
handwrote under her signature, "Non-Emergent" and "File a motion."
After our oral argument, the Division notified us and B.C. that
the judge had signed an August 30, 2016 FN order without B.C.'s
participation, directing that the children have no contact with
the maternal grandparents.
"We accord deference to the Family Court's fact-finding in
part because of the court's 'special jurisdiction and expertise
in family matters.' However, that deference is perhaps tempered
when the trial court did not hear testimony, or make credibility
determinations based on the demeanor of witnesses." N.J. Div. of
8 A-4805-15T4 Child Prot. & Permanency v. J.D., 447 N.J. Super. 337, 350 (App.
Div. 2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
When a "trial court dismisse[s] plaintiff['s] complaint as a
matter of law, our review of the court's decision is de novo."
R.K. v. D.L., 434 N.J. Super. 113, 142 (App. Div. 2014) (citing
Smerling v. Harrah's Entm't, Inc., 389 N.J. Super. 181, 186 (App.
Div. 2006)). "A trial court's interpretation of the law and the
legal consequences that flow from established facts are not
entitled to any special deference." Zaman v. Felton, 219 N.J.
199, 216 (2014) (quoting Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
B.C. argues that as a full-time caretaker for the
grandchildren on numerous occasions for extended periods of time,
he made "a prima facie case for visitation under the FD docket,
and therefore, the [t]rial [c]ourt erred in dismissing the case
without a hearing and without any discovery." B.C. argues that
the trial court erred in instructing him to file a motion to
intervene in an open FN docket case "when the FD docket complaint
was the proper procedure for asserting grandparent visitation in
the State of New Jersey." On appeal, for the first time, the
Division conceded that the judge could have heard the FD matter
with the FN matter or heard the two matters one after the other.
9 A-4805-15T4 Two of the many Family Part docket types are the "FD [docket],
which consists of child custody, visitation, child support,
paternity, medical support, and spousal support in non-divorce
matters; [and the] FN, which consists of abuse and neglect
matters," as well as children in need of services. N.J. Div. of
Youth & Family Servs. v. I.S., 214 N.J. 8, 22 n.3, cert. denied,
___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013). In
addition to general visitation and support, the "FD docket," which
is also known as the "non-dissolution docket" includes actions for
"non-parent relatives seeking custody, child support and/or
visitation regarding minor children." R.K., supra, 434 N.J. Super.
at 130-31 (quoting Acting Admin. Dir. of the Courts Memorandum,
"Revised Procedures," (September 2, 2011)).
While no specific directive states how a judge should proceed
in the case of an FD complaint filed during the pendency of an
ongoing FN case, the court staff's Non-Dissolution Operations
Manual for New Jersey states that:
[i]f the search for previous case activity reveals a current abuse & neglect litigation case involving the child for whom custody/parenting time is being sought, Family Division staff should take the complaint and refer the case to the Judge handling the FN matter. The FN judge will determine the next action to be taken regarding the custody complaint.
10 A-4805-15T4 [New Jersey Judiciary Family Division: Non- Dissolution Operations Manual, § 1107 (December 2007 Revised Edition).]
Judges who handle FN and FD dockets may choose to handle the
matters separately or at the same time. See N.J. Div. of Youth &
Family Servs. v. W.F., 434 N.J. Super. 288, 297-99 (App. Div.),
certif. denied, 218 N.J. 275 (2014) (finding that in a case where
the trial judge consolidated FN and FD actions, the father's
agreement to share joint legal custody of three younger children
in an FD action resolved the FN matter); N.J. Div. of Child Prot.
& Permanency v. C.S., 432 N.J. Super. 224, 226 (App. Div. 2013)
(finding that although the grandparents sought custody of one
grandchild under an FD docket, the court was required to perform
a bonding evaluation considering the best interests of the child
in light of an ongoing FN investigation); see also N.J. Div. of
Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 22 (App. Div.
2010); (noting in the context of the non-offending parent seeking
to make a child's placement permanent during the course of a Title
96 FN litigation, "the same Family Part judge must preside over
the third-party actions that are inextricably intertwined with the
Division's case").
6 Title 9 actions are brought by the Division "against the wishes of a parent when a child is abused or neglected." I.S., supra, 214 N.J. at 14; see N.J.S.A. 9:6-8.21. 11 A-4805-15T4 Thus, the same judge, who is aware of all of the evidence
surrounding the welfare of the children, should ordinarily preside
over both proceedings, whether the FD complaint is heard at the
same time as the FN matter or not. Hearing both matters
simultaneously is not necessarily preferable. See I.S., supra,
214 N.J. at 41-42 (stating "it is preferable for the court to
ensure that there occurs separate and distinct proceedings" for a
Title 307 FN action and an FM8 custody dispute, but recognizing
this "procedure may not always prevail"). Because FD actions
should be heard at the same time or in close proximity to FN
actions, as both parties now agree, the decision to dismiss B.C.'s
FD complaint was not correct.
On remand, the judge must decide the extent to which B.C.
will have access to the FN proceedings. FN proceedings are
confidential in nature. N.J.S.A. 9:6-8.10a. Although caregivers
are notified of proceedings and allowed to make a statement in
court, this does not confer the right to be present during the
entire hearing. N.J.S.A. 9:6-8.19a; N.J.S.A. 30:4C-12.2; R. 5:12-
7"Title 30 enables the provision of services to children in need." Id. at 14 (citing N.J.S.A. 30:4C-11 and -12).
8 The FM docket consists of complaints for dissolution matters including: divorce, dissolution of a domestic partnership, civil union dissolution, and palimony, as well as related relief in cases where a dissolution complaint has been filed. See id. at 22 n.3. 12 A-4805-15T4 4(i). The judge must therefore decide what level of access is
appropriate to serve the best interests of the children while also
affording B.C. his right to be fully heard on his grandparent
visitation application.
As an alternative to filing the FD complaint, B.C. could have
chosen to file a motion to intervene in the FN matter.
Intervention, however, is not the preferable method of proceeding.
Although B.C. retained counsel, many families involved with the
Division are without means to hire a lawyer, and the FD docket is
constructed to make it easy for a litigant to file a complaint
without the assistance of counsel. See R.K., supra, 434 N.J.
Super. at 131-32; In re Adoption of J.E.V., 226 N.J. 90, 93-94
(2016). Furthermore, motions to intervene in FN matters must be
considered in light of statutory limitations. See N.J. Div. of
Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 590 (App. Div.
2011). Although not the preferred method of proceeding, we will
briefly discuss the consequences of filing a motion to intervene.
Intervention as of right is granted when an unnamed party
meets the following requirements:
(1) "claims an interest relating to the property or transaction which is the subject of the action," (2) shows she "is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest," (3) demonstrates her "interest is [not] adequately represented
13 A-4805-15T4 by existing parties," and (4) files a "timely" application to intervene.
[Id. at 590 (quoting R. 4:33-1).]
A permissive intervention may be granted in the discretion
of the court to "anyone . . . if the claim or defense and the main
action have a question of law or fact in common." R. 4:33-2.
Permissive intervention "requires a trial court to liberally
determine 'whether intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.'" D.P., supra,
422 N.J. Super. at 590-91 (quoting Am. Civil Liberties Union of
N.J., Inc. v. Cnty. of Hudson, 352 N.J. Super. 44, 70 (App. Div.),
certif. denied, 174 N.J. 190, 803 (2002)).
B.C. also seeks discovery. We stated in D.P. that although
resource parents are entitled by statute to notice and the right
to speak at hearings concerning the child, they have "no legal
claim sanctioning their right to discovery or intervention in a
best interests hearing." Id. at 599, 586-87 (citing N.J.S.A. 9:6-
8.19a, N.J.S.A. 9:3-45.2, and N.J.S.A. 30:4C-12.2).
B.C. does not seek custody of Albert, who remains in an
institutional setting. If, however, B.C. were found to be Albert's
psychological parent, he would be in a different position than the
resource parents in D.P. who sought to intervene in court
proceedings involving the best interests of an unrelated child
placed in their home. Should the court find that intervention was
14 A-4805-15T4 appropriate, B.C. would become a party to the FN case and entitled
to participate fully.
As a final matter, it is valuable to review the standards for
determining grandparent visitation. Generally, N.J.S.A. 9:2-7.1
requires grandparents seeking visitation "to prove by a
preponderance of the evidence that the granting of visitation is
in the best interests of the child." Because this standard
encroaches upon the fundamental right of parents to make decisions
regarding the care, custody and nurturing of their children, the
State may intrude only to avoid harm to the child. Moriarty v.
Bradt, 177 N.J. 84, 114-15, (2003), cert. denied, 540 U.S. 1177,
124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Thus, when the parent
has denied the grandparent visitation, to obtain a hearing the
grandparent must make a prima facie case under the augmented
standard of Moriarty "that visitation is necessary to avoid harm
to the child." Id. at 117; Major v. Maguire, 224 N.J. 1, 6 (2016).
A showing of harm is not required when the party denying
visitation has custodial rights but not "a constitutionally based
presumption of parental autonomy." Tortorice v. Vanartsdalen, 422
N.J. Super. 242, 252 (App. Div. 2011), certif. denied, 209 N.J.
233 (2012). In Tortorice, we affirmed an order granting visitation
to a child's paternal grandparents over the objection of the
maternal grandmother who had sole legal custody of the child and
15 A-4805-15T4 had been designated the psychological parent. Id. at 244, 251-
52. Because the Division is the current legal custodian of Albert
but, like the grandmother in Tortorice, is not vested with the
constitutionally-based presumption of parental autonomy, the lower
burden of "best interests of the child" is appropriate with regard
to B.C.'s request to visit Albert.
The other three children are now living with K.C., with the
Division retaining care and supervision only. Thus, absent the
August 30, 2016 court order to the contrary, K.C. would be able
to make grandparent visitation decisions with regard to those
three children, although preferably in consultation with the
Division. The court should reconsider the August 30 order because
it is not clear from the record that the judge considered K.C.'s
constitutional right to determine grandparent visitation, as the
parent and legal custodian of the three younger children.9 We
remand for that reconsideration as well as consideration of B.C.'s
FD complaint, either heard with the FN matter or heard separately
by the same judge.
Reversed and remanded. We do not retain jurisdiction.
9In a letter to us dated October 24, 2016, K.C.'s counsel expressed K.C.'s willingness to allow for "some grandparent visitation and phone contact in the future; with the time and date to be determined solely by her." 16 A-4805-15T4