K.B. VS. B.H. AND C.D. (FD-04-1159-19, CAMDEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5015-18T2
K.B., 1
Plaintiff-Appellant,
v.
B.H. and C.D.,
Defendants-Respondents.
__________________________
Submitted March 17, 2020 – Decided April 17, 2020
Before Judges Hoffman and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FD-04-1159-19.
John P. Reilly, Jr., attorney for appellant.
Respondents have not filed briefs.
PER CURIAM
1
We use initials to protect the identity of the child and the parties' privacy
interests. R. 1:38-3(d)(13).
Plaintiff K.B. appeals from a June 5, 2019 Family Part order awarding her
limited grandparent visitation with her grandson, T.H. After a review of the
contentions in light of the record and applicable legal principles, we reverse.
I.
We glean the following facts from the record. Plaintiff is the paternal
grandmother of the minor child, T.H., who was born in April 2007 . Defendants
B.H. (father) and C.D. (mother), are T.H.'s parents. After T.H. was born, the
child lived with defendants until 2010, when they separated. During that time,
plaintiff provided food, diapers, clothing, and other necessities for the child. I n
addition to physical items, plaintiff provided childcare and purchased a crib and
toys for T.H., which stayed at her home. Plaintiff also provided a bedroom in
her home for T.H.
In 2011, father moved into a new home with T.H. and his then girlfriend.
At this time, mother underwent substance abuse treatment at a crisis unit and
later at an in-patient facility, which lasted until 2012. In the meantime, father
married his girlfriend in August 2012 and had another child in July 2013.
According to plaintiff, she had keys to her son's home and frequently visited and
cared for T.H., prepared meals, and cared for T.H.'s dog.
A-5015-18T2
2
After father's baby was born in July 2013, plaintiff claimed that her
visitation with T.H. increased, and she took him to her home to accommodate
his parents' work schedules and the baby. According to plaintiff, T.H. was at
her home about 100 days per year. T.H. has special education needs and plaintiff
is a retired special education teacher. She paid for his tutoring sessions, picked
him up from daycare, and tended to his special education needs, including
homework. Plaintiff also claimed she assisted in T.H.'s kindergarten class and
served as an aid at the school.
Between 2012 and 2014, the record shows there were multiple incidents
of domestic violence between father and his wife. Thereafter, in 2014, father
had an affair, his wife moved out, and his paramour moved in with him. Shortly
thereafter, the relationship between father and his paramour became volatile,
and led to domestic violence. Eventually, father's paramour moved out of his
home.
After mother became sober, she filed a complaint against father seeking
parenting time with T.H. On August 12, 2015, the Family Part judge awarded
defendants joint custody of T.H. and designated father as the parent of primary
residence and mother as the parent of alternate residence. The judge granted
mother three overnight days per week with T.H., and the third week of each
A-5015-18T2
3
month, but father refused to comply with the order. Consequently, mother had
no parenting time with T.H. between March 2016 and March 2017.
During this time, plaintiff continued to assist father by picking up T.H.
from daycare, ensuring his homework was completed, and taking T.H. to his
extracurricular activities. From 2016 through 2018, T.H. spent up to four nights
per week at plaintiff's home. She took T.H. to his doctor's appointments and
celebrated Jewish holidays with him.
On October 22, 2017, father punched plaintiff (his mother) in the face and
visitation between plaintiff and T.H. was suspended. Father took T.H. to work
with him until 9:30 p.m., and T.H. slept on a sofa. However, by November 2017,
father allowed plaintiff to take care of T.H. again.
Father was investigated by the Division of Child Protection and
Permanency and accused plaintiff of reporting him, which she denied.
Nonetheless, father told plaintiff she would no longer have access to T.H., and
he could no longer stay at her home.
Thereafter, plaintiff contacted mother in an effort to enforce the August
12, 2015 order and seek visitation with T.H. during mother's parenting time. In
response, mother filed a pro se application to enforce the 2015 order. On July
30, 2018, the judge held a hearing and entered an order providing: "Parties are
A-5015-18T2
4
to attend mediation. Plaintiff's request for enforcement of parenting time is
granted. Parenting time with mother shall be in accordance with the [August
12, 2015] order. Father's request for sole custody is denied . . . ."
The relationship between plaintiff and her son deteriorated. He terminated
all contact between plaintiff and T.H. In retaliation against plaintiff, father
refused to allow T.H. to attend camp or summer tutoring sessions, as he had
done in previous years.
On September 10 and October 13, 2018, father allowed plaintiff to have
visitation with T.H. for a total of six hours. Following the October 13, 2018
visit, father sent plaintiff a text message concerning her visitation going
forward:
The parties agree that [T.H.] may have limited contact
with paternal grandmother [plaintiff]. [Plaintiff] is
allowed to have dinner with [T.H.] one or two times per
month, no longer than three hours at a time. [Plaintiff]
is not allowed to pick up [T.H.] from school or his bus
stop. [Plaintiff] is not allowed any vacation time with
[T.H.]. [Plaintiff] is not allowed any overnights with
[T.H.]. [Plaintiff] is not allowed to have information
regarding [T.H.]'s medical, dental or school. [Plaintiff]
is not allowed to go to [T.H.]'s school for any reason
i.e. plays, dances, back to school night, graduations,
etc.
Thereafter, mother called plaintiff about a bill she received from an
attorney who appeared at the July 10, 2018 hearing. Mother advised plaintiff
A-5015-18T2
5
that unless she paid the bill, visitation with T.H. would cease. After plaintiff's
new counsel sent a letter to defendants in an effort to amicably resolve the
grandparent visitation issue, they threatened to "have plaintiff arrested." Despite
the cessation of grandparent visitation, T.H. contacted plaintiff by telephone
about how he was feeling and when he was sick. After learning about these
calls, mother blocked plaintiff's phone number, precluding T.H. from calling
her.
On November 20, 2018, plaintiff filed a complaint seeking grandparent
visitation. After the parties participated in a conference, parent education
seminar, and mediation, the matter was scheduled for trial. Plaintiff's counsel
requested that the trial be converted to a case management conference, but the
court denied the request and proceeded to commence the trial. Since no
responsive pleadings were filed and limited discovery was provided by
defendants, plaintiff's counsel made the strategic decision to withdraw the
complaint and not proceed to trial that day.
On May 7, 2019, plaintiff filed a new verified complaint seeking
grandparent visitation alleging:
The said minor child will suffer psychological, and
physical and/or emotional harm if plaintiff is not
permitted to exercise grandparent visitation with the
said minor child. This harm will come from termination
A-5015-18T2
6
of a long standing supportive and loving relationship.
The child will also suffer the loss of the emotional
support of a primary caregiver and attachment figure;
the loss of a support person who gives the child
consistency and security during [ . . . ] d[]efendant,
[father's] many volatile relationships with various
female partners including incidents of domestic
violence and during the time the minor child's mother
was suffering from substance abuse. The child will also
suffer the loss of significant financial support from
plaintiff. The child will also suffer from potential
physical harm in that the plaintiff was the person who
took the child to his pediatrician, for his dental and
orthodontic appointments and the child has not had
dental or orthodontic treatment since [father] took him.
The child will also suffer the loss of the unique
companionship, culture and religion that the child was
exposed to with the [p]laintiff.
In her prayers for relief, plaintiff asserted that defendants be required to
file responsive pleadings to her complaint; the matter be scheduled for a case
management conference to address discovery under Rule 5:5-1(a); and that the
matter be assigned a complex track. On a pendente lite basis, plaintiff sought
grandparent visitation under the prior order of the court.
The judge conducted a grandparent visitation rights hearing on June 5,
2019. Plaintiff was represented by counsel at the hearing, and defendants
appeared pro se by telephone. Mother testified that the parents had a fifty-fifty
shared parenting plan, and she offered to allow plaintiff visitation during her
A-5015-18T2
7
parenting time. In addition, mother testified that plaintiff had a great
relationship with T.H. and that she took care of her grandchild.
Father testified that he would allow plaintiff limited grandparent visitation
twice per month for five hours at a time, and additional time for Jewish holidays.
Plaintiff's counsel opposed defendants' proffer as insufficient because no
weekend time was offered.
The judge found that plaintiff failed to establish a case for grandparent
visitation but stated:
So, the [c]ourt, having listened to the testimony of the
parents and the arguments of counsel as -- as well as
reviewed the pleadings, the [c]ourt finds that the
grandparent's complaint does not meet by a
preponderance of the evidence[,] the standard with
respect to grandparent's visitation. In a grandparent's
complaint seeking visitation, a grandparent must first
make a clear and specific allegation of concrete harm
to the child, and that's in Daniels [v.] Daniels, 381 N.J.
Super. 286 at 294 (App. Div. 2005). Such harm must be
significant enough to justify [s]tate intervention in the
parent child relationship. And that's at 293. A
grandparent seeking visitation must prove by a
preponderance of the evidence that denial of the
visitation they seek would result in harm to the child.
And that's in the Major case, 224 N.J. at 7, quoting
Moriarty, as [we] all know.
Substantively, it is a heavy burden, and that's in
Slawinski, 448 N.J. Super. at 34. Okay? The . . . harm
to the grandchild must be, quote, "a particular
identifiable harm specific to the child," and that's in
A-5015-18T2
8
Mizrahi [v.] Cannon, 375 N.J. Super. 221 at 234 (App.
Div. 2005). Missed opportunities for creating, quote,
"happy memories," end quote, do not suffice. That's in
Mizrahi, 375 N.J. Super. at 234. Only after a
grandparent vaults the proof of harm threshold would
the [c]ourt begin the best interest analysis. When a
grandparent can't make a threshold showing, the
complaint should be dismissed. Okay?
So -- however, we've made progress. The [c]ourt is
willing, because the parents are willing, for the [c]ourt
to enter an order today that the grandmother can have
parenting time as indicated two times a month for at
least five hours. She can have the Jewish holidays and
she can coordinate with the parents, more specifically
probably the mother, to have additional time if mutually
agreed. I think that more than suffices in this particular
matter. The parents are to be commended for their
willingness to cooperate.
....
And for -- so that the child can have a continuing
relationship with [his] paternal grandmother. So, with
that, the [c]ourt will issue an order with that schedule
and certainly hopes that the parties will progress for the
interest of the child and there won't be the amount of
tension that there is. Okay? All right. So, the [c]ourt
will send the parties an order.
The judge's ruling was not memorialized in a written order. On appeal, plaintiff
argues that the judge erred by denying her request to require defendants to file
responsive pleadings, not assigning the matter to a complex track, and not
providing for an exchange of discovery or a case management conference.
A-5015-18T2
9
Plaintiff also appeals the limited grandparent visitation she was awarded based
upon the consent of defendants.
II.
Here, plaintiff is pursuing a claim for grandparent visitation under the
Grandparent Visitation Statute (GVS), N.J.S.A. 9:2-7.1. Under the GVS, "[a]
grandparent . . . of a child residing in [New Jersey] may make application before
the Superior Court . . . for an order for visitation. It shall be the burden of the
applicant to prove . . . that the granting of visitation is in the best interests of the
child." N.J.S.A. 9:2-7.1(a).
The GVS represents an infringement on the fundamental right to parent,
and the only interest that permits the State "to overcome the presumption in
favor of a parent's decision and to force grandparent visitation over the wishes
of a fit parent is the avoidance of harm to the child." Moriarty v. Bradt, 177 N.J.
84, 115 (2003). Therefore, to obtain visitation under the GVS, a grandparent
must establish, by a preponderance of the evidence, that such visitation is
necessary to avoid harm to the child. Id. at 117.
Moreover, the court may not approve a visitation schedule unless the
grandparent first establishes the potential for harm to the child and overcomes
the presumption in favor of parental decision-making. Rente v. Rente, 390 N.J.
A-5015-18T2
10
Super. 487, 493-94 (App. Div. 2007). The court must determine if visitation is
in the child's best interests, based on the factors enumerated in the GVS. Id. at
494. These factors include:
(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;
(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).]
We begin by summarizing a trial judge's obligations in resolving motions
in family matters. It is well settled that following argument on a motion or
hearing, the judge must enter a written order setting forth the court's rulings on
A-5015-18T2
11
the motion. See R. 4:42-1(a) (made applicable to family actions by R. 5:1.1).
These "rules contemplate written orders, notwithstanding the fact that the
written order may be the memorialization of an oral order." Hamm v. City of
Clifton, 229 N.J. Super. 423, 427 (App. Div. 1988). The prompt issuance of an
order is obviously "necessary in any case where subsequent activity is bottomed
upon that order[.]" Stephenson v. Stephenson, 112 N.J. Super. 531, 533 (Ch.
Div. 1970).
Rule 1:7-4(a) also clearly states that in addition to entering an appropriate
written order, a trial judge "shall, by an opinion or memorandum decision, either
written or oral, find the facts and state its conclusions of law thereon . . . on
every motion decided by a written order that is appealable as of right[.]" See
Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006) (requiring an
adequate explanation of basis for court's action). A judges' colloquy during a
motion hearing is not a substitute for the judge's obligation to articulate findings
of facts and conclusions of law. Pardo v. Dominguez, 382 N.J. Super. 489, 492
(App. Div. 2006) (rejecting "the suggestion that a judge's comment or question
in a colloquy can provide the reasoning for an opinion which requires findings
of fact and conclusions of law . . . .").
A-5015-18T2
12
The mere recitation of a published case or a statutory citation does not
constitute adequate fact-finding. Instead, the judge's decision must clearly
demonstrate that the litigants have been heard and their arguments considered.
While a judge need not author a lengthy written opinion, or deliver an hour-long
oral ruling to meet this requirement in every case, he or she must always state
what facts form the basis of his or her decision, and then weigh and evaluate
those facts in light of the governing law "to reach whatever conclusion may
logically flow from" those facts. Slutsky v. Slutsky, 451 N.J. Super. 332, 357
(App. Div. 2017). Because justice requires no less, "[a]ll conclusions must be
supported." Ibid.; see also Dorfman v. Dorfman, 315 N.J. Super. 511, 518 (App.
Div. 1998) (holding that merely stating a conclusion that a litigant in a post-
judgment matrimonial proceeding has not "shown . . . a substantial change of
circumstances warranting a modification" of a prior order is "insufficient under
[Rule] 1:7-4(a), [which] require[s] findings of fact and reasons given for
conclusions reached.").
In sum, "[m]eaningful appellate review is inhibited unless the judge sets
forth the reasons for his or her opinion." Strahan v. Strahan, 402 N.J. Super.
298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443
A-5015-18T2
13
(App. Div. 1990)). Unfortunately, the trial court's rulings in this case did not
satisfy these requirements.
As stated previously, the Family Part judge found plaintiff's grandparent
visitation complaint did not meet the preponderance of the evidence standard,
but allowed the limited visitation suggested by defendants. Based upon our
careful review of the record, we note that the judge engaged in colloquy with
the parties, but did not permit adequate cross-examination. Moreover, the judge
made no finding that such visitation would be adverse to the best interests of
T.H. The judge also did not assess the statutory factors under the GVS and did
not consider whether plaintiff established a reasonable probability of success on
the merits of her claim for visitation under the GVS.
Furthermore, the judge permitted visitation based solely upon defendants'
proposal without analyzing the effects upon T.H. In Slawinski v. Nichols, 448
N.J. Super. 25, 32 (App. Div. 2016), we stated that "[a]bsent fraud or
unconscionability, [appellate] courts will enforce family-related agreements as
they would any contractual agreement." In this case, however, we reverse the
Family Part judge because plaintiff established by a preponderance of the
evidence that she is entitled to grandparent visitation based upon the
overwhelming evidence of her close and consistent contact with T.H. since his
A-5015-18T2
14
birth, and her showing that cessation of visitation would lead to a specified harm
to the child. See Rente, 390 N.J. Super. at 494-95.
Defendants did not refute plaintiff's contention that she had been a
caretaker for T.H. in the past. And, defendants presented no evidence that
grandparent visitation by plaintiff would interfere with their custodial rights.
We are convinced that plaintiff has established, by a preponderance of the
evidence, that significant harm to T.H. will result if she is denied grandparent
visitation. Plaintiff articulated the nurturing and emotional role she has in T.H. 's
life, not to mention the attention she uniquely offers for his special education
needs, and the stable home environment she has provided to him. We therefore
conclude the judge erred by not requiring defendants to file responsive pleadings
to plaintiff's complaint and not scheduling a case management conference to
address discovery under Rule 5:5-1(a) or assigning the matter to a complex
track. Plaintiff is entitled to a plenary consideration of her claims.
On remand, the judge shall consider whether an expert should be
appointed to address the grandparent visitation issue, and whether or not a
guardian ad litem should be appointed for T.H., pursuant to Rule 5:8B, as may
be required consistent with the goals of the GVS.
A-5015-18T2
15
In summary, we reverse and remand to the Family Part judge to do the
following:
(1) direct defendants to file responsive pleadings to
plaintiff's complaint;
(2) conduct a case management conference within
thirty days and address discovery issues pursuant to
Rule 5:5-1(a);
(3) assign the matter to a complex track;
(4) consider the appointment of an expert and guardian
ad litem; and
(5) address pendente lite grandparent visitation for
plaintiff.
Reversed and remanded to the Family Part for further proceedings in
conformity with this opinion. We do not retain jurisdiction.
A-5015-18T2
16