C.A.B. v. C.A.O. (FD-02-0384-16, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 3, 2022
• Docket: A-0038-20
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0038-20

C.A.B.,1

Plaintiff-Appellant,

v.

C.A.O.,

Defendant-Respondent.

Submitted December 13, 2021 – Decided January 3, 2022

Before Judges Rose and Enright.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-0384-16.

Law Offices of James M. Doyle, attorneys for appellant (James M. Doyle, of counsel and on the briefs; Jane M. Personette, on the briefs).

Dimin Fierro, LLC, attorneys for respondent (William N. Dimin, on the brief).

1 We use initials to protect the privacy of the alleged victim, R. 1:38-3(d), and pseudonyms for ease of reference. PER CURIAM

Plaintiff C.A.B. (Father or plaintiff) appeals from an August 20, 2020

Family Part order, denying his application for sibling visits among his three

children at the home of his mother (Paternal Grandmother), while incarcerated

pending trial for sexual abuse charges involving: his son, A.O.-B. (Andrew),

born September 2015; his underage step-niece; and a former coworker. As she

did before the trial court, Andrew's mother, defendant C.A.O. (Mother or

defendant), opposes visitation with Andrew's half-sister, K.B. (Karen), born

November 2012, and half-brother, R.Z.-B. (Ron), born April 2017, and urges us

to affirm the court's order. Paternal Grandmother, Karen's mother, A.O. (Ann),

and Ron's mother, J.Z. (Jane), did not participate in Father's motion before the

trial court and are not parties to this appeal. Because Father failed to

demonstrate sibling visitation was in Andrew's best interests, we affirm.

The parties were never married; Andrew is their only child. By all

accounts, the parties' romantic relationship was brief and their parenting

relationship was discordant. Within six months of Andrew's birth, Father filed

a non-dissolution action for custody and parenting time. On March 9, 2016, the

trial court granted the parties joint legal custody of Andrew, and designated

Mother as the parent of primary residence and Father as the parent of alternate

A-0038-20 2 residence. Father was granted parenting time every other Saturday and Sunday

without overnights.

Thereafter, the parties agreed to expand Father's parenting time. On

December 19, 2017, another Family Part judge entered a consent order,

affording Father parenting time with Andrew on alternate Friday evenings from

5:00 p.m. to 8:00 p.m., and overnights every other weekend from Friday at 5:00

p.m. to Sunday at 5:00 p.m. Because Father's parenting time with Andrew

overlapped with one or both of his other children, it was held at Paternal

Grandmother's home, which was large enough to accommodate all three children

simultaneously. Sibling visitation continued in that manner for the next two

years but was not formalized by court order.

Father's parenting time with Andrew abruptly ended following plaintiff's

February 14, 2020 arrest for sexually assaulting his step-niece. Unaware of

Father's arrest and incarceration on the charges, Mother brought Andrew to

Paternal Grandmother's home for plaintiff's scheduled parenting time. When

Mother returned to pick up Andrew on Sunday, February 16, 2020, Father's

girlfriend advised of plaintiff's arrest.

Soon thereafter, Mother applied for an order to show cause, seeking

temporary sole legal and residential custody of Andrew, and suspension of

A-0038-20 3 Father's parenting time with their son. On February 20, 2020, the judge assigned

to the present matter granted Mother's application, thereby suspending Father's

parenting time with Andrew, pending resolution of the criminal matter and

completion of plaintiff's psychiatric evaluation. The order permitted plaintiff,

upon two days' notice to Mother, to "seek to dissolve these restraints."

On March 31, 2020, Father moved to vacate the February 20, 2020 order.

Father also cross-moved, on his own behalf, to compel Mother's compliance

with the parties' previously agreed-upon parenting time schedule "to ensure

continued sibling visits/relationships" while he remained detained pretrial.

According to Father's supporting certification, he and Ann had informally shared

joint legal custody of Karen, and he enjoyed parenting time with Karen three

weekends per month. Similarly, Father asserted he and Jane had informally

agreed to share joint legal custody of Ron, with Father's parenting time

scheduled for every weekend. Absent from Father's application, however, were

supporting certifications of Ann and Jane as to their positions confirming those

agreements or expressing their positions on continued sibling visitation between

their respective child and Andrew.

Sometime in April 2020, Andrew told his maternal grandmother he was

sexually assaulted by Father. Thereafter, detectives assigned to the Bergen

A-0038-20 4 County Prosecutor's Office interviewed Andrew and on April 24, 2020, Father

was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1),

and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1).2

Pursuant to an investigation commenced by the Division of Child Protection and

Permanency (DCPP), Andrew was referred for a psychosocial evaluation at

Audrey Hepburn Children's House in Hackensack. DCPP thereafter

substantiated Andrew's allegations of digital penetration by Father. In its

August 7, 2020 correspondence, DCPP notified the judge of its findings and

recommendations.3

At the conclusion of argument on August 20, 2020, the judge rendered an

oral decision denying Father's application. Referencing DCPP's findings, the

judge noted Andrew's psychosocial evaluation revealed the child "presented

symptoms of post-traumatic stress disorder as a result of the sexual abuse." The

evaluation recommended various modalities of therapy, including family

sessions with Mother. However, "it was recommended that A[ndrew] not have

2 On May 28, 2020, Father was charged with sexually assaulting a former co- worker in 2012. 3 The judge released DCPP's correspondence to the parties under a protective order. The parties did not include the letter on appeal, but do not dispute its authenticity or the judge's synopsis of its contents. A-0038-20 5 any contact with [Father] until the investigation [wa]s completed and [Father is]

assessed for parenting capacities and risk" to avoid "negatively impact[ing]"

Andrew's progress.

The judge also cited DCPP's assessment that Paternal Grandmother was

not "an appropriate and safe supervisor at this time" because "she has stated that

she does not believe the sexual abuse occurred." The judge noted DCPP's

concerns that Paternal Grandmother's disbelief "would impact her interactions

with A[ndrew]."

As to Andrew's best interests, the judge concluded:

At this time, I see nothing before me that would . . . lead me to conclude that continued access to his two half- siblings would do A[ndrew] any harm. At this time, I believe that A[ndrew] needs to focus on his own issues and his own recovery, and his own therapy, and I would find that for him to have continued access to [Father]'s other family at this time would not be in A[ndrew]'s best interest.

This appeal followed.

On March 5, 2021, the judge granted Mother's ensuing motion to settle the

record pursuant to Rule 2:5-5(a). The judge explained, in pertinent part:

I had stated on the record that there was no evidence that the child's exposure to his half-siblings would do A[ndrew] any harm. I had noted [Mother]'s objection to A[ndrew]'s visitation with the other children. I also noted that A[ndrew] needed to focus on

A-0038-20 6 his own issues, his own recovery[,] and his own therapy. A[ndrew] did not need to be exposed to possible pressure from [Father]'s family and the other children. Given the totality of the circumstances, I found that to grant visitation with [Father]'s other children would not be in A[ndrew]'s best interest. With the road lying ahead to A[ndrew]'s recovery, I was not about to risk it.

On appeal, Father contends the judge abused his discretion by summarily

denying his application to continue sibling visitation at Paternal Grandmother's

house, without holding a plenary hearing; relying on hearsay contained in

DCPP's August 7, 2020 correspondence; and failing to apply the best interests

standard under N.J.S.A. 9:2-7.1. Father also asserts the judge should have

granted his discovery requests to, among other things: have Andrew

independently evaluated by a psychologist of plaintiff's choice; depose

defendant and her mother; restrain Mother "and any other persons coming into

contact with Andrew" from discussing the sexual abuse allegations against

Father; and prohibit Mother from making disparaging remarks about Father and

his family members.

Our limited scope of review of a trial court's findings is well established.

See Cesare v. Cesare, 154 N.J. 394, 411 (1998). We accord deference to the

family courts due to their "special jurisdiction and expertise" in the area of

family law. Id. at 413. We will not disturb the court's factual findings and legal

A-0038-20 7 conclusions "unless [we are] convinced that they are so manifestly unsupported

by or inconsistent with the competent, relevant and reasonably credible evidence

as to offend the interests of justice." Id. at 412 (quoting Rova Farms Resort,

Inc. v. Inv.'s Ins. Co., 65 N.J. 474, 484 (1974)). Conversely, a trial judge's

decision on a purely legal issue is subject to de novo review. Crespo v. Crespo,

395 N.J. Super. 190, 194 (App. Div. 2007).

The Grandparent and Sibling Visitation Statute, N.J.S.A. 9:2-7.1 (GSVS),

"confers on a child's grandparent or sibling standing to file an action for an order

compelling visitation[,]" Major v. Maguire, 224 N.J. 1, 13 (2016), and "provides

the framework for grandparent and sibling visitation when visitation is proven

to be 'in the best interests of the child,'" N.J. Div. of Youth & Fam. Servs. v.

S.S., 187 N.J. 556, 562 (2006) (quoting N.J.S.A. 9:2-7.1(a)). The applicant

bears the burden of proving "by a preponderance of the evidence that the

granting of visitation is in the best interests of the child." N.J.S.A. 9:2-7.1(a).

When an application is filed pursuant to the GSVS, courts must consider

the following relevant factors:

(1) The relationship between the child and the applicant;

(2) The relationship between each of the child's parents or the person with whom the child is residing and the applicant;

A-0038-20 8 (3) The time which has elapsed since the child last had contact with the applicant;

(4) The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;

(5) If the parents are divorced or separated, the time[-] sharing arrangement which exists between the parents with regard to the child;

(6) The good faith of the applicant in filing the application;

(7) Any history of physical, emotional[,] or sexual abuse or neglect by the applicant; and

(8) Any other factor relevant to the best interests of the child.

[N.J.S.A. 9:2-7.1(b).]

Lastly, the GSVS provides: "With regard to any application made pursuant to

this section, it shall be prima facie evidence that visitation is in the child's best

interest if the applicant had, in the past, been a full-time caretaker for the child."

N.J.S.A. 9:2-7.1(c).

In the context of a grandparent's application under the GSVS, our Supreme

Court in Major reaffirmed its earlier holding in Moriarty v. Bradt, 177 N.J. 84

(2003), "that, in order to overcome the presumption of parental autonomy in the

raising of children, grandparents who bring visitation actions under N.J.S.A.

A-0038-20 9 9:2-7.1 must prove by a preponderance of the evidence that denial of visitation

will harm the child." Major, 224 N.J. at 7. Similarly, the Court thereafter held

an adult sister seeking visitation must demonstrate that her minor siblings

"would suffer harm if denied visitation with her." In re D.C., 203 N.J. 545, 575

(2010). According to the Court: "The standard is a stringent one . . . that cannot

likely be satisfied by siblings who have had no connection to each other or by

those whose bonds are flaccid, or worse, toxic." Ibid.

"Absent a showing that the child will suffer harm if . . . visitation is denied,

a trial court may not mandate visitation pursuant to the best-interests factors of

N.J.S.A. 9:2-7.1." Major, 224 N.J. at 18; see also Slawinski v. Nicholas, 448

N.J. Super. 25, 34 (App. Div. 2015) ("Only after the grandparent vaults the

proof-of-harm threshold will the court apply a best-interests analysis to resolve

disputes over visitation details."). The harm to the child must be "a particular

identifiable harm, specific to the child." Mizrahi v. Cannon, 375 N.J. Super.

221, 234 (App. Div. 2005).

As a preliminary matter, we note Mother did not challenge Father's

standing to cross-move on his own behalf, for visitation among Andrew and

A-0038-20 10 plaintiff's other two children under the GSVS, or visitation with Paternal

Grandmother.4 Nor does Mother contest Father's standing on appeal.

Clearly, however, Father did not have standing to seek visitation on behalf

of Paternal Grandmother under the GSVS. Further, while we acknowledge a

parent who has sole legal custody of a child may request sibling visitation on

behalf of his child under the GSVS, we cannot ignore Father's certification that

acknowledges he shares joint legal custody of Karen with Ann, and Ron with

Jane. Because Father's application on behalf of Andrew's siblings was not filed

on their behalf with the consent of their mothers, we are not satisfied Father had

standing to file the present application under the GSVS. In sum, we are not

aware of any reported decisions that extend standing under this statute to anyone

other than a third-party "grandparent" or "sibling."

Nonetheless, because Father retained certain parental rights

notwithstanding his loss of parenting time and joint legal custody, we have

considered his contentions on the merits and conclude he failed to demonstrate

4 In his merits brief, Father asserts his application before the trial court "was specifically and narrowly tailored to address the important issue of Andrew's visitation with his half-siblings," then notes "[a]s well as with his paternal relatives including [Paternal Grandmother] and [plaintiff's] sister." A-0038-20 11 that the suspension of the parties' informal sibling visitation arrangement

constitutes reversible error.

When a court is confronted with a dispute regarding the best interests of

a child, the court must consider "what will protect the safety, happiness,

physical, mental and moral welfare of the child." Mastropole v. Mastropole,

181 N.J. Super. 130, 136 (App. Div. 1981) (internal quotation marks omitted)

(quoting Beck v. Beck, 86 N.J. 480, 497 (1981)). Indeed, a Family Part judge

has a parens patriae responsibility to consider the welfare of the child in

resolving parenting time disputes. See Fawzy v. Fawzy, 199 N.J. 456, 474-75

(2009). Here, the record reflects the judge understood these responsibilities and

found sibling visits were not in Andrew's best interests because the child

"needed to focus on his own issues, his own recovery[,] and his own therapy"

and "did not need to be exposed to possible pressure from [Father]'s family and

the other children." We perceive no basis to disturb the judge's finding in this

regard.

Although, Father's certification notes Karen's "struggle[s] with her sudden

separation from [plaintiff] and [Andrew]," and that he has "no reason to doubt

that A[ndrew] is similarly missing his sister and brother," Father did not provide

the Family Part judge with competent proof as to why sibling visits would be in

A-0038-20 12 Andrew's best interests. Moreover, Father did not address whether sibling visits

would negatively impact Andrew's recovery, or whether the child would face

pressure from his siblings or their families. Even on appeal, Father merely

speculates "it may well be harmful to [Andrew] to be suddenly ripped from his

father, paternal relatives and siblings."

Because we conclude Father did not demonstrate there was a material

change in circumstances that would justify a modification of the existing

custody and parenting time orders or that the suspension of sibling time was

contrary to Andrew's best interests, we further conclude a plenary hearing was

unnecessary. See Hand v. Hand, 391 N.J. Super. 102, 105-06 (App. Div. 2007).

To be clear, in the present matter, the judge did not permanently terminate

Andrew's visitation with his half-siblings. Concerned about Andrew's welfare

and recovery process, the judge instead suspended an informal sibling visitation

arrangement. Accordingly, Father is not precluded from seeking reinstatement

of sibling visits in the future, subject to Andrew's successful completion of

therapy.

For the first time on appeal, Father argues DCPP's August 7, 2020

correspondence constituted "a hearsay report" and "relied upon conclusions and

recommendations of another hearsay report." Incongruently, he further asserts:

A-0038-20 13 "For the sake of this argument, [p]laintiff neither challenges nor accepts the

recommendations by DCPP as summarized by the court." Father also contends

DCPP's recommendations "are entirely irrelevant to the relief sought [by his]

application or on appeal." 5

We disagree. DCPP's August 7, 2020 correspondence, particularly

concerning the myriad of therapeutic services recommended for Andrew,

underscored the judge's decision that sibling visitation was not in Andrew's best

interests and, as such, was highly relevant. Additionally, we are convinced the

judge properly considered DCPP's recommendations in deciding Father's cross-

motion. Notably, Father posed no hearsay objection to those recommendations

during oral argument before the Family Part judge.

To the extent not addressed, Father's remaining arguments lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add

only the following comments.

In denying plaintiff's cross-motion, the judge did not expressly address

plaintiff's discovery requests. On appeal, both parties acknowledge those

5 Father's merits brief was filed prior to the judge's March 5, 2021 amplification statement, which was annexed to Mother's responding brief. However, Father's reply brief does not address the judge's findings or reliance on DCPP's August 7, 2020 correspondence. A-0038-20 14 requests were rendered moot by the judge's denial of sibling visitation.

Moreover, as Father candidly acknowledges in his merits brief, "[t]he discovery

sought by [p]laintiff clearly overlaps with the criminal matter." We therefore

discern no abuse of discretion in the judge's failure to order discovery in this

matter. See Major, 224 N.J. at 24 (recognizing "Family Part judges have broad

discretion to permit, deny, or limit discovery in accordance with the

circumstances of the individual case").

Affirmed.

A-0038-20 15