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D.M. v. H.B.

September 12, 2007


On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Camden County, FD-04-3195-06.

Per curiam.



Submitted September 4, 2007

Before Judges Payne and Messano.

In an order entered on May 15, 2006, a judge of the Family Part granted temporary legal and residential custody of W.B., a boy, then age six, to his material grandparents, H.B. (grandfather) and C.B. (grandmother), and required that the boy at no time be in the presence of his mother, whose initials are also C.B., without the direct supervision of one of the maternal grandparents. The order further granted child visitation to D.M., the boy's paternal grandmother, on the second and fourth Sunday of each month, from 12:30 to 3:30 p.m., at a specified New Jersey mall, under the supervision of the child's maternal grandparents. In succeeding paragraphs, the order required the paternal grandmother to undergo a risk assessment and home evaluation, and as a final matter, the order provided for phone contact between the boy and his paternal grandmother "a few times a week."

The boy's mother has appealed*fn1 the grandparental visitation provisions of the order, making the following arguments:

1. As a matter of law, it was reversible error for the trial court to sua sponte order visitation to Plaintiff [paternal grandmother], without her filing a complaint for visitation or proving [the boy] would be harmed if the visitation was not granted.

2. It was reversible error for the Court below to sua sponte order visitation to Plaintiff who was allowing her home (where [the boy] resided) to be used for the distribution and consumption of heroin.

The record, which is scantily documented, offers the following: At the age of seventeen and one-half, the mother left her home in New Jersey to live with her much-older boyfriend at the boyfriend's mother's house in Philadelphia. She remained there for approximately seven years until March 10 or 11, 2006, when she returned with her son to her parents' New Jersey home. The boyfriend is the father of the subject child, born on March 11, 2000.

During the period of the mother's and son's residence with the paternal grandmother in Philadelphia, the mother and the boy's father used heroin on a regular basis. Additionally, the father sold heroin from the home, selling to the police in controlled buys on December 13 and December 15, 2004. Following the December 15 sale, the police searched the residence pursuant to a warrant, discovering 280 decks of heroin in the boy's parents' bedroom and 336 decks in the boy's room. The father was arrested, and at the time of the hearing in this matter, he was incarcerated in Pennsylvania.

In the meantime, the mother had received methadone treatment, commencing in December 2003. Although the mother claims not to have used illegal drugs since May 3, 2004, the paternal grandmother alleged at the hearing that the mother had commenced smoking crack cocaine on February 16, 2006. The mother admits to psychiatric difficulties that presently impair her ability to care for her son.

The paternal grandmother acknowledged at the hearing that, while both the boy's mother and father were being treated with methadone, they experienced symptoms of withdrawal that the grandmother sought to alleviate by purchasing additional drugs for them. Following the purchase, the grandmother was arrested on alleged misdemeanor drug charges, received a probationary sentence, and claims that her record has been expunged. The grandmother also admitted to paying off some of the mother's and father's drug debts to keep them from being injured. However, she denied that she knew her residence was being used for drug sales, and as proof of her innocence, she asserted without contradiction that a seizure of her house by Pennsylvania authorities because of its use in drug sales had been rescinded recently upon proof that the grandmother was not involved in the sales. No records regarding the seizure or return were furnished.

On March 10, 2006, allegedly as the result of the mother's continued use of cocaine, the paternal grandmother sought an order by the Pennsylvania courts granting her custody of the boy. However, the complaint was dismissed for lack of jurisdiction. After the paternal grandmother's suit was filed in Pennsylvania, the maternal grandparents and mother filed an order to show cause in the Superior Court of New Jersey, seeking a Family Part order incorporating the parties' agreement that the maternal grandparents be given temporary custody of the child. The paternal grandmother thereupon filed a pro se custody action in New Jersey. Following oral ...

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