November 1, 2007
CHARLES AND MARIE REINHARDT, PLAINTIFFS-RESPONDENTS,
MICHAEL SPERBER, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 11, 2007
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 occasion that J.S. had lice, noting she attends daycare, and attached a medical certification that he had never been diagnosed or treated for lice and that, in fact, J.S. had transmitted the lice to her grandmother. He also disputed defendant's account of statements they allegedly made to J.S. about her mother's death and explained in detail what they told her.
On July 21, 2006, the court entered an order denying plaintiffs' motion for additional grandparenting time, noting the family therapy sessions served as a substitute until a determination was made following receipt of the therapist's report. The court never ruled on plaintiffs' motion to amend their complaint.
Defendant failed to comply with the court-ordered therapy schedule. After taking J.S. to the first of six sessions scheduled with plaintiffs and the expert, defendant did not bring J.S. to another session. By letter of August 21, 2006, plaintiffs' counsel informed the court that despite repeated calls from the court's services supervisor, defendant failed to bring J.S. or to attend any of the required mediation sessions scheduled over the four-week period.
On August 22, 2006, following a teleconference with both counsel, the court ordered that defendant bring J.S. to her counseling session with plaintiffs that week and scheduled another teleconference on August 29 to determine if defendant had complied. He did not. The August 29 teleconference was unrecorded. According to plaintiffs, defense counsel was unable to explain his client's non-compliance with earlier orders and the court then directed counsel "to confer to see if the parties could agree to a visitation schedule" prior to the August 31, 2006 teleconference.
Defense counsel puts a slightly different spin on what happened during the conference, asserting that because defendant failed to appear or produce J.S. for the therapy sessions, the court found that a visitation order was proper and "verbally Ordered counsel to confer with their respective parties and decide on a reasonable grandparent visitation schedule."
Counsel conferred with their clients and agreed upon a detailed permanent visitation schedule, memorialized in a court order, and consented that the order, entered on August 31, 2006, eliminated the need for a plenary hearing on September l8, 2006. The parties have been operating under this visitation schedule since then.
Defendant argues that he did not voluntarily consent to the grandparent visitation schedule and is thus not precluded from challenging the order. See Pressler, Current N.J. Court Rules, comment 2.2.3 on R. 2:2-3 (2008) (a judgment or order entered into with the consent of all parties is ordinarily not appealable for the purpose of challenging its substantive provisions). Rather, defendant contends he agreed to the schedule essentially under duress only after the court ordered him to enter into an agreement on visitation. Defendant points out that the Moriarty procedure requires grandparents who are denied visitation to "bear the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child" in order to overcome the presumption in favor of parental decision making before a parent is required to offer a visitation schedule. Moriarty, supra, 177 N.J. at ll7. Defendant contends that plaintiffs failed to satisfy the threshold "harm" standard because of the deficiency in their pleadings, relying on Daniels, and that the Family Part judge therefore erred in finding the first prong was met and in requiring him to offer a visitation schedule. Defendant asserts that plaintiffs have "not offered one iota of proof, nor was any proffer made, that [J.S.] was affirmatively suffering harm by not having visitation with [them]," and therefore, the judge erred in not dismissing plaintiffs' complaint. We disagree.
The difference between the two versions of what occurred at the April 29 teleconference is not of any particular consequence to our ultimate decision. We note, however, that even accepting defendant's version, if he truly believed his constitutional rights were being "bowled over" and he was being forced to agree to some type of visitation arrangement, as claimed at oral argument, he had a variety of options. He could, for example, have requested a written order, sought a stay and pursued appellate review, filed a motion to dismiss plaintiffs' complaint, and/or pursued the plenary hearing that had been scheduled for September l8 and challenged plaintiffs' proofs procedurally and on their merits.
Be that as it may, we are satisfied plaintiffs presented a sufficient prima facie case of harm under the GVS and case law for the court to schedule the matter for a plenary hearing. We discern no error in the court utilizing the judicial resources of mediation and family counseling in the interim to facilitate resolution or, if unsuccessful, to produce an expert report to assist its determination at the plenary hearing. Defendant, however, thwarted the process at every step by failing to appear or produce J.S. at the court-ordered family therapy sessions and to comply with an evaluation, as well as failing to appear at the court-ordered CMC. He thereafter presented what purported to be an acceptable grandparent visitation schedule to the court and expressly waived the plenary hearing upon entry of the August 31, 2006 order. As defendant's own actions prevented the trial judge from making detailed findings of harm following a plenary hearing prior to the grant of grandparent visitation, defendant cannot now complain about the procedure that was followed in this matter.
It is undisputed that although plaintiffs' complaint tracks the statutory factors for grandparent visitation, through an oversight it omits an express allegation of the Moriarty criteria of harm to the child by denial of visitation. This deficiency, however, is not fatal to plaintiffs' cause of action. First of all, defendant never filed a motion to dismiss plaintiffs' complaint, not even in response to plaintiffs' prompt motion to amend their complaint.*fn2 Secondly, Daniels does not mandate such a result merely because there was no allegation of "harm" in the complaint. In Daniels we held that a grandmother "who neither pleads nor presents proof of any concrete harm" to her grandchildren by a denial of visitation has failed to meet the threshold requirements of the GVS, as construed by the Court in Moriarty. Daniels, supra, 381 N.J. Super. at 294 (emphasis added). Moreover, Daniels involved an intact family in which the grandmother did not assert she acted as a substitute parent for an extended period of time while one of the biological parents had been incapacitated or any unusual or unique circumstances that would give rise to particular harm from denial of visitation. Id. at 288. We contrasted her situation to that in Moriarty, in which the Court found the "most critical findings" in support of visitation to be the death of the children's mother and the children's consequent need to continue a bond with their mother's side of the family, with whom they had spent a considerable time and had a closer than usual relationship. Daniels, supra, 383 N.J. Super. at 292-93; Moriarty, supra, 177 N.J. at 118-21.
Here the type of concrete harm to the child recognized in Moriarty was implicit in the allegations of plaintiffs' complaint, as elaborated upon by plaintiffs' counsel during the July 12, 2006 CMC and in the maternal grandfather's certification. Here, four-year old J.S. was faced with the traumatic circumstance of her mother's death following a three-year illness. It is undisputed that plaintiffs have an unusually close bond to J.S., which began at her birth and was forged at the terribly difficult time when they cared for her during her mother's illness, treatment and death. They continued to provide physical and emotional assistance to J.S. and her father during the grieving months thereafter. Defendant apparently was comfortable with this relationship for most of J.S.'s life and it is difficult not to impute some degree of bad faith in his repeated failure to bring his daughter to the family counseling/therapy sessions. The Family Part judge also astutely recognized the child's need to have a link to her mother and mother's side of the family. We cannot imagine how disrupting the ongoing relationship and potentially severing the bond with J.S.'s maternal grandparents, who have clearly been an integral part of her life, would not cause a further pervasive sense of loss and significant harm to this young child.