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Bratcher v. New Jersey Division of Youth and Family Services

March 27, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FD-21-344-07.

Per curiam.



Submitted March 4, 2008

Before Judges Parrillo and Baxter.

Plaintiff Portia Bratcher appeals from a June 12, 2007 order of the Family Part denying her request for grandparent visitation pursuant to N.J.S.A. 9:2-7.1 and custody of the minor children M.H. and K.H. Some background is in order. M.H., born February 1, 2000, and K.H., born July 15, 2001, along with their two older siblings, were removed from the care and custody of their biological mother K.B. on November 17, 2004 and, after a brief return home, were removed once again on November 30, 2005. One year later, on January 31, 2007, K.B. completed an identified surrender of her parental rights to the current caretakers of M.H. and K.H.*fn1 The minors' biological father, G.H., is deceased. That same day, the Family Part judge accepted the identified surrender and granted the Division of Youth and Family Services (DYFS) guardianship of the two minor children. DYFS then began the process of finalizing an adoption of M.H. and K.H. by their current caretakers.

Plaintiff is the paternal grandmother of M.H. and K.H. Prior to their removal from K.B.'s care, plaintiff had filed for custody on September 11, 2002, which resulted in a February 21, 2003 consent order granting plaintiff visitation with her two grandchildren. However, one year later on February 27, 2004, her visitation was suspended due to substantiation of a claim of neglect against plaintiff arising from a visitation with M.H. and K.H. in September 2003.*fn2 One year following suspension of her visitation, plaintiff filed a complaint for custody of M.H. and K.H., which was dismissed by order of March 18, 2005, because at the time DYFS was attempting to reunify the children with K.B. Plaintiff subsequently refiled for custody, but was denied once again, this time because DYFS had ruled plaintiff out as a resource due to her prior history with the agency and her undisclosed criminal history.*fn3 Thereafter, plaintiff twice more moved for visitation and/or custody and was denied both times for the reason that, in the interim, K.B. had surrendered her parental rights and as a result, plaintiff's rights to visitation as a grandparent had been extinguished.

This appeal follows in which plaintiff argues that because the contemplated adoption has not yet been finalized, her statutory right of grandparent visitation remains intact and the Family Part's summary denial of her request was clearly in error. We disagree.

As a threshold matter, we have since been advised that the adoption pending at time the notice of appeal was filed has been finalized, as evidenced by a judgment of adoption on November 27, 2007, and therefore, plaintiff's claims are moot, inasmuch as the adoption completely terminates a biological grandparent's right to visitation. In re Adoption of a Child by W.P. and M.P., 163 N.J. 158, 168 (2000). Accordingly, we dismiss the appeal as moot.

Although the issue is now moot, we are also satisfied that the Family Part judge did not err in denying plaintiff's request for grandparent visitation even prior to the finalization of the adoption. In this regard, N.J.S.A. 9:2-7.1 provides the framework for grandparent visitation when visitation is proven to be "in the best interests of the child." N.J.S.A. 9:2-7.1(a). Significantly, however, the Supreme Court has held that a natural grandparent does not have a right of contact with grandchildren who have been adopted by a non-relative under the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1. See New Jersey Div. of Youth & Fam. Servs. v. S.S., 187 N.J. 556, 562 (2006); W.P. & M.P., supra, 163 N.J. at 160, 168. In W.P. & M.P., supra, the Court declared that the New Jersey Adoption Act, N.J.S.A. 9:3-37 to -56, trumps the rights of grandparents, as defined in N.J.S.A. 9:2-7.l, reasoning that "the complete termination of the biological parents' rights" has "the logical effect of terminating a biological grandparent's right to visitation." W.P. & M.P., supra, 163 N.J. at 168; see also S.S., supra, 187 N.J. at 562.

Here, at the time of the court's denial, there had been a complete termination of the biological parental rights as the minors' biological mother had completed an identified surrender of her parental rights as to M.H. and K.H. on January 31, 2007 to the current caretakers, and the biological father is deceased. Furthermore, DYFS, as the guardian of M.H. and K.H., was in the process of completing the necessary paperwork for the minors' adoption. Accordingly, the Family Part judge correctly determined that plaintiff's rights to visitation with M.H. and K.H. had been extinguished and on that basis alone properly denied her motion of custody and/or visitation.

Moreover, plaintiff had failed to offer any proof that the minors would suffer by not having any contact with her. See Moriarty v. Bradt, 177 N.J. 84, 117 (2003), cert. denied, 540 U.S. 1177, 124 S.Ct. 1408, 158 L.Ed. 2d 78 (2004). Plaintiff bears the burden of proof in this regard, ibid., and had fallen far short of the measure. Indeed, M.H. and K.H., who are seven-years-old and six-years-old, respectively, had been residing with their current caretakers since July 10, 2006, and have never resided with plaintiff. Since the initial removal of the minor children from their mother's care on November 17, 2004, plaintiff had not visited with them prior to the visitation in September 2006, when, while being explored by DYFS as a resource parent for the children, she visited them twice that month under agency supervision. Plaintiff's last visitation with the minor children was on September 15, 2006, as she was rejected as a resource parent by the agency. In sum, plaintiff does not have a longstanding relationship with M.H. and K.H. such that either child would suffer harm if plaintiff's visitation were terminated.

Accordingly, separate and apart from the extinguishment of her statutory right to visitation contemporaneous with the complete termination of the biological parents' rights, plaintiff had simply failed to prove any harm to either M.H. ...

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