Opinion
DOCKET NO. A-4919-11T2
05-08-2013
L.A.B., Plaintiff-Appellant, v. B.L.P. and C.J.B., Defendants-Respondents.
L.A.B., appellant pro se. Legal Services of Northwest NJ, attorneys for respondent B.L.P. (Grace E. Kelly, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FD-21-00219-11.
L.A.B., appellant pro se.
Legal Services of Northwest NJ, attorneys for respondent B.L.P. (Grace E. Kelly, on the brief). PER CURIAM
Plaintiff L.A.B. appeals from the denial of reconsideration of an earlier order denying her request for grandparent visitation with her granddaughter A.B. under the Grandparents and Siblings Visitation Statute, N.J.S.A. 9:2-7.1 (Visitation Statute). We affirm.
I.
A.B. was born in July 2004 to C.J.B. (Father) and B.L.P. (Mother). In September 2010, plaintiff filed a complaint seeking custody of A.B., alleging that: the parents had threatened plaintiff; the parents drank alcohol, and Father was high on heroin, in A.B.'s presence; the parents' neglect put A.B. in danger; and A.B. was physically abused. Plaintiff added that Mother was "a great mom when she's sober." Trial was to proceed on January 28, 2011.
On January 28, Father and Mother entered into a consent agreement giving Mother sole legal and physical custody of A.B. The agreement provided that Father's parenting time would be supervised by Mother in accordance with a case plan from the Division of Youth and Family Services (Division).
Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.
Also on January 28, plaintiff withdrew her request for custody, seeking only grandparent visitation. Judge Kimarie Rahill found that plaintiff had failed to meet her burden to show "significant harm to the child if there was a denial of grandparent visitation," as required under the case law interpreting N.J.S.A. 9:2-7.1. Because some of plaintiff's paperwork had not reached Mother or Judge Rahill, the judge dismissed plaintiff's complaint without prejudice.
Father did not participate in the trial court litigation after January 28, 2011, and has expressly declined to participate in this appeal.
Plaintiff filed a motion to reinstate her complaint seeking grandparent visitation, making the same and similar allegations as in her complaint for custody. On June 27, 2011, Judge John J. Coyle, Jr., denied plaintiff's motion to reinstate her complaint — as well as her requests for parenting time and a plenary hearing — without prejudice, because she had failed to show the potential for particularized harm to A.B. from lack of grandparent visitation. On August 19, 2011, Judge Coyle denied plaintiff's motion for reconsideration — as well as her requests for grandparent visitation, a plenary hearing, and recusal — without prejudice, for similar reasons.
Despite the absence of an active complaint, plaintiff filed a motion for weekly grandparent visitation, repeating the same allegations of abuse and neglect that she had made in her complaint for custody, supported by alleged new evidence. On January 27, 2012, Judge Anthony F. Picheca, Jr., denied plaintiff's request for grandparent visitation and for a plenary hearing. In a written opinion, Judge Picheca found that plaintiff alleged harm not as the result of the denial of visitation but of "general parental unfitness," and that plaintiff had "failed to show how an established visitation schedule would protect the child from the grave danger she alleges." Judge Picheca added that the Division did not believe that Mother was an unfit parent or that A.B. was in danger.
Plaintiff moved for reconsideration. Judge Picheca issued a written opinion finding her motion "grossly without merit." His April 27, 2012 order in paragraph one denied plaintiff's motion for reconsideration, in paragraph six ruled that, except as modified by that order, all previous orders shall continue in full force and effect, and in the remaining paragraphs denied all other requested relief.
II.
Plaintiff's notice of appeal sought review of paragraphs one and six of the April 27, 2012 order. She raises the following claims:
POINT I - PLAINTIFF [L.A.B.], AS MAIN CAREGIVER AND PATERNAL BIOLOGICAL GRANDMOTHER OF [A.B.], WHOM SHE HELPED RAISE IN A PARENTAL ROLE IN HER HOME AND AT THE DEFENDANT'S HOME FOR 6 YEARS, 3 MONTHS, SINCE BIRTH, WHO, IN ACCORDANCE WITH THE GRANDPARENTS VISITATION STATUTE, N.J.S.A. 9:2-7.1, KEPT THE CHILD FROM "PARTICULAR IDENTIFIABLE HARM", IN THE FORM OF PHYSICAL AND PSYCHOLOGICAL ABUSE AND NEGLECT OF THE CHILD CAUSED BY HER PARENTS, THE DEFENDANTS, AND THIS "PARTICULAR IDENTIFIABLE HARM" WAS ALSO CAUSED BY THE DEFENDANT, [B.L.P.], TO DESTROY THE UNIQUE, EXTREMELY CLOSE AND
LOVING RELATIONSHIP BETWEEN THE PLAINTIFF AND HER GRANDDAUGHTER SINCE THE CHILD WAS 15-MINUTES OLD, DID NOT FAIL TO SHOW HARM TO THE MINOR, THEREFORE THE REQUESTED RELIEF SHOULD BE GRANTED.
POINT II - THE PLAINTIFF PRODUCED PRIMA FACIE EVIDENCE THAT WENT UNOPPOSED ACCORDING TO THE 1/17/12 ORDER OF THE HONORABLE JUDGE ANTHONY F. PICHECA, AND IN ACCORDANCE WITH THE GRANDPARENTS VISITATION STATUTE, N.J.S.A. 9:2-7.1, SECTION C., "IT SHALL BE PRIMA FACIE EVIDENCE THAT VISITATION IS IN THE CHILD'S BEST INTEREST IF THE APPLICANT HAD, IN THE PAST, BEEN THE MAIN CAREGIVER OF THE CHILD". THEREFORE THE REQUESTED RELIEF SHOULD BE GRANTED.
POINT III - THE COURT DID NOT APPLY STRICT SCRUTINY OF THE EVIDENCE: CERTIFICATIONS OF ALL FOUR GRANDPARENTS, PSYCHOLOGICAL ASSESSMENT, PHOTOGRAPHS OF ABUSE AND NEGLECT OF THE CHILD, POLICE REPORTS, ETC. IN DETERMINING THEIR DECISION OF GRANDPARENT VISITATION, NOR DID THE COURT APPLY STRICT SCRUTINY BY BLOCKING THE PLAINTIFF AND HER COUNSEL FROM THE TRIAL AND PLENARY HEARING GRANTED TO PREVENT THEM FROM CROSS-EXAMINING THE GRANDPARENTS AND OTHER WITNESSES, THEREFORE THE REQUESTED RELIEF SHOULD BE GRANTED.
POINT IV - THE COURT ERRED BY LOSING THE PLAINTIFF'S ENTIRE COMPLAINT AND EXHIBITS, WHICH WAS NOT THE FAULT OF THE PLAINTIFF, AS THE PLAINTIFF DID FILE CORRECTLY AND DID MEET THE BURDEN OF PROOF, THIS LOSS OF THE COMPLAINT CAUSING THE COMPLAINT TO BE DISMISSED, AND THE HONORABLE JUDGE KIMARIE RAEHILL [SIC] ALLOWING THE PLAINTIFF TO REINSTATE THE COMPLAINT ON THE SAME DOCKET NUMBER WITH THE TRIAL AND PLENARY HEARING GRANTED TO THE PLAINTIFF AND "PROCEEDING ON REQUEST" TO BE DENIED AS THE JUDGES WERE ROTATED, NEVER AFFORDING THE PLAINTIFF THE FAIR OPPORTUNITY TO PROVE HER CASE FOR
GRANDPARENT VISITATION, THEREFORE THE REQUESTED RELIEF SHOULD BE GRANTED.
POINT V - THE COURT DID NOT APPLY THE 1994 DRUNK DRIVING CHILD PROTECTION ACT WHEN DETERMINING GRANDPARENT VISITATION, AS THE DEFENDANT, [B.L.P.], HAS A PRIOR DUI CONVICTION AND THIS MUNICIPAL RECORD WAS NEVER CONSIDERED TO PROVE THE CERTIFICATIONS OF ALL FOUR GRANDPARENTS STATING THAT THEY HAD WITNESSED THE DEFENDANTS DRIVING UNDER THE INFLUENCE WITH THE CHILD IN THE CAR, AS THE PLAINTIFF HAD REMOVED THE CHILD FROM THE CARS OF FOUR DIFFERENT INTOXICATED DRIVERS, INCLUDING THE CHILD'S MOTHER, ON MANY OCCASIONS, THIS BEING JUST ONE OF MANY REASONS WHY THE CHILD IS BEING HARMED WITHOUT THE PLAINTIFF IN HER LIFE, AND IN THE BEST INTEREST OF THE CHILD THE REQUESTED RELIEF SHOULD BE GRANTED.
Under Rule 2:5-1(f)(3)(A), "'it is only the orders designated in the notice of appeal that are subject to the appeal process and review.'" Petersen v. Meggitt, 407 N.J. Super. 63, 68 n.2 (App. Div. 2009) (citations omitted). Therefore, where a notice of appeal designates only the order denying reconsideration, and not the order of which reconsideration was sought, that original order "is not before us for review," and we address only the order denying reconsideration. Fusco v. Board of Educ, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002); see also R. 2:4-3(e). We may exercise our discretion to review the original order, however, if the case information statement (CIS) "makes clear that this is a matter in which the motion for reconsideration implicates the substantive issues underlying the order for judgment," Tara Enter., Inc. v. Daribar Mgmt. Corp., 369 N.J. Super. 45, 60 (App. Div. 2004), or if "'the substantive issues . . . and the basis for the motion judge's ruling on the summary judgment and reconsideration motions was the same,'" Potomac Aviation, LLC v. Port Authority, 413 N.J. Super. 212, 222 (App. Div. 2010) (quoting Fusco, supra, 349 N.J. Super. at 461). Here, plaintiff's CIS, while seeking to appeal the April 27 order, implicates and discusses the same substantive issues underlying the prior orders.
Even assuming plaintiff's appeal encompasses both the April 27 and January 17, 2012 orders, we affirm for substantially the reasons given by Judge Picheca in his written opinions accompanying those orders. We add the following comments.
We review for abuse of discretion the trial judge's denial of reconsideration. Del Vecchio v. Hemberger, 388 N.J. Super. 179, 189 (App. Div. 2006). A judge's denial without a plenary hearing of a motion to change custody or visitation is also reviewed for abuse of discretion, with deference to the expertise of Family Part judges. Hand v. Hand, 391 N.J. Super. 102, 111-12 (App. Div. 2007) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We must hew to those standards of review.
Plaintiff repeatedly invokes the "best interests of the child" standard used in custody and visitation disputes between parents. N.J.S.A. 9:2-4. That was the standard originally employed in the Visitation Statute. N.J.S.A. 9:2-7.1a, - 7.1b(8). -7.1c. However, in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the United States Supreme Court found unconstitutional a state statute that similarly allowed grandparents to obtain visitation if in the "best interests of the child." See Moriarty v. Bradt, 177 N.J. 84, 106-108 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). To save the Visitation Statute from constitutional infirmity, the New Jersey Supreme Court in Moriarty ruled that the best interest standard was "inapplicable" in making the initial determination whether a grandparent could obtain visitation. Id. at 116.
The Supreme Court in Moriarty held instead "that grandparents seeking visitation under the statute must prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child." Id. at 88. The grandparent must show "harm to the health or welfare of a child," id. at 115, not "harm to the grandparents," Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005). The grandparent must make a "clear and specific allegation of concrete harm to the children." Daniels v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005).
Plaintiff attempts to show harm by alleging that Mother and Father are bad parents who abuse and neglect their child. Such allegations may be a basis for seeking custody, but plaintiff withdrew her request for custody. She is instead seeking grandparent visitation, for which the showing of harm is different. For visitation, the issue is not the parenting abilities of the child's custodial parent(s), but the effect of the "denial of the visitation [the grandparents] seek." Moriarty, supra, 177 N.J. at 88; see Rente v. Rente, 390 N.J. Super. 487, 495 (App. Div. 2007). A grandparent "must establish that denying visitation would wreak a particular identifiable harm, specific to the child." Mizrahi, supra, 375 N.J. Super. at 234. In other words, the alleged harm must be caused by the denial of the requested visitation, and must be cured by the grant of the requested visitation. See Moriarty, supra, 177 N.J. at 121-22.
In Moriarty, the Supreme Court gave an example of the type of harm necessary. There, the Court upheld visitation where an expert opined visitation was needed "'to protect the children from the harm that would befall them if they were alienated from their grandparents,'" which would cause the children to "'believe essentially that half of them, that their mother's half is evil, is damaged, is bad, and that this would cause self-esteem problems.'" Id. at 93-94, 121. The Court agreed with the expert that this harm could be avoided by granting the requested visitation, which would "'continue a bond with their mother's side of the family.'" Id. at 121-22.
Plaintiff's certification for her original motion to Judge Picheca contained no allegations of such harms. Instead, it alleged harms from parental unfitness that are neither caused by the denial, nor curable by the grant, of the weekly visitation she seeks. Thus, the judge did not abuse his discretion in denying the motion.
Plaintiff's certification attached "all of the past certifications under this docket number," which contained about twenty additional pages of allegations raised in prior motions. The factual grounds for a motion, however, must be stated in a single certification not to exceed fifteen pages. R. 5:5-4(b); R. 1:6-6. A judge facing a busy motions calendar is entitled to treat the certification supporting the motion as raising the factual assertions to be addressed in the motion; the judge is not required to be a detective searching for additional factual assertions in attached certifications already addressed by other judges.
In her certification to her motion for reconsideration, plaintiff again focused on harms from parental unfitness. She did briefly allege that she had a close and loving relationship with A.B., and was her main caregiver, for the first six years of the child's life. She then stated: "When a child is completely cut off from a grandparent that they are so close to and that they love, it traumatizes a child and causes great psychological damage in the form of insecurity." Following this apparently generic statement, plaintiff immediately returned to claims of parental unfitness, and asserted that weekly visitation was needed to cure the harms from parental unfitness.
We emphasize that Moriarty requires "some special need for continued contact." Daniels, supra, 381 N.J. Super. at 293. It is not sufficient for a grandparent to allege that she has a "close and loving relationship with her" grandchild, id. at 288, or "'represented the only stable influence in [the child's] life,'" Rente, supra, 390 N.J. Super. at 495. "While we do not denigrate the value of a loving relationship with grandparents, the denial of which might result in some harm to any child, we conclude that the type of harm to which Moriarty referred must be something more substantial." Daniels, supra, 381 N.J. Super. at 293. Even if a grandparent alleges that she "has acted in a parental-type capacity for an extended period of time," she must still allege that specific "serious harm would result to the child should visitation be denied." Id. at 295. "Conclusory, generic items, such as 'loss of potentially happy memories,' are not a sufficient basis to warrant such an intrusion into a parent's decision making." Mizrahi, supra, 375 N.J. Super. at 234. In Mizrahi, we found no basis for visitation even though the trial court found a laundry list of "possible harms," including "'[l]oss of unconditional love, affection and caring, . . . [p]robability of guilt and feeling of inadequacy caused by perceived desertion of Father and Father's parents, [and] . . . [l]oss of ongoing companionship and the special relationship which often arises between the child and her Paternal Grandparents.'" Id. at 233.
Thus, plaintiff's generic statement of possible harm would not be adequate even if it had been raised in her original motion. Because that statement, and her contested allegation that she had been A.B.'s primary caregiver, were not raised in her certification to the original motion, they were not an "appropriate basis for reconsideration," so the judge did not abuse his discretion in denying the motion for reconsideration. See Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010); R. 4:49-2.
The same is true of plaintiff's other similar allegations on appeal, which therefore are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION