On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Camden County, FD-04-3596-06C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
Defendant Michael Sperber, father of five-year-old J.S., appeals from the Family Part's August 31, 2006 order*fn1 setting visitation with plaintiffs, Charles and Mary Reinhardt, the maternal grandparents. Plaintiffs' daughter Mary Ann is J.S.'s mother, and she was married to defendant at the time of her death in 2005. On appeal, defendant contends the court failed to consider the applicable criteria of the Grandparent Visitation Statute (GVS), N.J.S.A. 9:2-7.1, and applied a different standard to the grandparent visitation here simply because one parent had passed away without considering the threshold requirement of alleging harm to the child under Daniels v. Daniels, 381 N.J. Super. 286 (App. Div. 2005). We are not persuaded by defendant's arguments. We are satisfied the trial court applied the proper standard under the GVS and case law, and the record supports a finding that plaintiffs have met the threshold determination of harm under the statute, as construed in Moriarty v. Bradt, 177 N.J. 84, 117-18 (2003), cert. denied, 540 U.S. 1177, 124 S.Ct. 1408, 158 L.Ed. 2d 78 (2004), and Daniels.
Plaintiffs filed a complaint for grandparent visitation pursuant to the GVS on June 2, 2006. They alleged that J.S. was born in 2001, and lived with defendant and their now-deceased daughter, who was diagnosed with a terminal illness in 2002. They further alleged that in April 2004, they relocated from their long-time residence in Philadelphia to the town in New Jersey where their daughter resided to help care for her and their granddaughter. Specifically, during their daughter's illness, they "regularly took care of [J.S.] since she regularly stayed over night with them at their residence" and during the time they spent together, "[J.S.] was always well loved, nurtured and cared for." Moreover, following their daughter's death on May 4, 2005, plaintiffs "continued to see their granddaughter [J.S.] on a regular basis and continued to assist Defendant in caring for [J.S.]." Plaintiffs further alleged that around October of 2005, appellant "began to interfere with and cut-off the relationship between [J.S.] and Plaintiffs" by abruptly canceling scheduled visits without any explanation, "leaving both [J.S.] and Plaintiffs confused and upset." Plaintiffs set forth the following examples:
14. Over the last six months, Defendant has continued to attempt to distance [J.S.] from Plaintiffs. In that time period, aside from one visit over Easter, in which Defendant needed Plaintiffs to take care of [J.S.] because he was ill, Defendant has not allowed Plaintiffs to visit with their granddaughter despite their numerous requests to do so.
15. By way of example, Plaintiffs had made arrangements with Defendant for them to spend time with [J.S.] over Mother's Day weekend (May 13-14, 2006) but Defendant would not answer the door when Plaintiffs came to pick up [J.S.] at the prearranged time and would not answer telephone calls to his residence thereafter.
Tracking the language of the GVS, plaintiffs alleged they were the child's maternal grandparents, they had a "long standing caretaker relationship with [J.S.] and prior to their daughter's death, had a strong relationship with Defendant as well, serving as an aid to Defendant and caretaker" to their daughter and granddaughter during their daughter's three-year illness. Plaintiffs further alleged neither had any history of physical, emotional or sexual abuse or neglect, they made the visitation application in good faith, there were no prior proceedings between the parties, and the visitation "would certainly be in the best interests of the child."
Defendant filed an answer in which he disputed plaintiffs' motive for relocating, claiming they did so because of the "crime and violence" in their old neighborhood. He further claimed plaintiffs did not always care for J.S. properly, contending that on several occasions she caught head lice as a result of staying with them. Furthermore, he believed "Plaintiffs told [J.S.] about her mother's death in an inappropriate manner," explaining as follows:
For quite some time following Defendant's wife's death, Defendant struggled with telling [J.S.] about her mother's death and he tried to "wean her off of her mom, so that two and one-half year old [J.S.] would be able to cope better and not be so emotionally traumatized. However, on one occasion Plaintiffs bluntly told [J.S.] something to the extent that "your mommy is dead, you will never see her again."
Defendant further denied that following his wife's death, plaintiffs continued to assist him in caring for J.S., that there was no history of neglect, and that grandparent visitation would be in his daughter's best interest. Defendant asserted by way of an affirmative defense, failure to state a claim upon which relief may be granted pursuant to Rule 4:6-2(e), because the complaint did not expressly allege "harm" to J.S. resulting from denial of grandparent visitation as required in the wake of Moriarty. Moriarty, supra, 177 N.J. at 114-15. Defendant never filed a motion to dismiss plaintiffs' complaint based on this affirmative defense.
The court-ordered mediation before a probation officer held on June 26, 2006, did not resolve the matter, and the court issued a summons to all parties and counsel to attend a Case Management Conference (CMC) on July 12, 2006. Plaintiffs and their counsel appeared. Defense counsel appeared, but defendant did not and no explanation was provided at the time for his absence. Plaintiffs' counsel posited the harm to the four-year-old of being "cut off completely for no reason whatsoever from her maternal side of the family" six months after her mother's death, without even the opportunity for telephone contact with her grandparents with whom she had enjoyed an ongoing close relationship and who had assumed significant caretaking responsibilities of her and her mother during her mother's lengthy illness. Defense counsel voiced his client's position that maternal grandparent visitation was not in J.S.'s best interest, though he acknowledged that defendant allowed visitation with his parents. He explained that defendant's concern was that after J.S. left her maternal grandparents, there was an "emotional regression" and "episodes of separation anxiety becoming severe" in which she began to cry when defendant left the room. The judge commented at length with respect to these issues, inherently recognizing the harm to the child in disrupting grandparent visitation. She particularly noted the psychological impact of the recent death of a parent on a four-year-old and the fact the maternal grandparents "are the only people on this earth that can pass along to that little girl the legacy" and "heritage" of her mother. As an interim measure, the judge ordered twelve sessions of family counseling with the court-appointed child therapist, six with J.S. and her father and six with J.S. and her grandparents, and scheduled a plenary hearing for September 18, 2006.
Pursuant to plaintiffs' representation at the CMC, they filed a motion on short notice for emergent visitation and also sought to amend their complaint to add a single allegation as to the "harm" suffered by J.S. as a result of defendant's conduct of cutting off their relationship with her. Charles Reinhardt certified that his counsel had inadvertently omitted an explicit allegation that discontinuing visitation would "harm" J.S. but that such harm was implicit in the allegations of the complaint. He further elaborated upon the complaint, noting that plaintiffs actually moved to only a block away from defendant and their daughter in order to be able to regularly care for J.S. during their daughter's illness, and they often stayed overnight at defendant's residence so they could care for J.S. when he went to work and their daughter was too sick or tired to care for the child. He also explained that following his daughter's death, they "continued to see [J.S.] on a regular basis and continued to assist Defendant in caring for [J.S.]." Furthermore, through the summer of 2005, they "often took [J.S.] and cared for her so that Defendant could attempt to put his life back together and move on with the grieving process." However, around October of 2005, defendant began to cut off the relationship with their granddaughter and allowed her to see only her paternal relatives. The grandfather also explained the one ...