November 7, 2008
T. R.,*FN1 INTERVENOR-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, No. FM-18-421-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2008
Before Judges Wefing, Parker and LeWinn.
Tracy R. appeals from certain aspects of a trial court order entered on November 30, 2007. After reviewing the record in light of the contentions made on appeal, we affirm.
Tracy is the older daughter of plaintiff mother T.R. and defendant father L.R. who, after contentious proceedings, were divorced pursuant to a judgment of divorce entered April 28, 2006. The R.s have a younger daughter, Amy; there is an eleven- year age difference between the two girls.
Unfortunately the parents' divorce proceedings were marked by more than the usual bitterness and anger that can surround such actions. There was at least one domestic violence proceeding in which both parents sought restraining orders against the other. Defendant L.R. involved Tracy in the proceedings, even to the extent of having her testify against her mother. The trial court that heard the domestic violence matter was understandably distressed at the prospect of a child taking sides in such a dispute. T.R. v. L.R., No. A-4466-04T3 (App. Div. Feb. 9, 2006). That proceeding resulted in a final restraining order being entered against defendant L.R., two trial judges having found the testimony of Tracy and her father to lack credibility.
It would be an understatement to say that Tracy is estranged from plaintiff, her mother. Tracy was fifteen years of age in 2004 when her mother filed her complaint seeking a divorce. Part of the record in this case is a summary report of the New Jersey Division of Youth and Family Services ("DYFS") dated March 15, 2007, which sets forth in detail some of the particulars of that estrangement. It notes, for instance, that from January 28, 2005, the date of the first entry, DYFS received more than twelve complaints that plaintiff was abusing Amy, physically, emotionally and sexually. DYFS investigated each of these complaints and found all to be unsubstantiated.
The report states:
There are various problems in this family system. DYFS involvement started when parents were getting divorced in 2005. From January 28, 2005 to present there have been 21 referrals alleging maltreatment of the children, including physical, emotional, and sexual abuse. None of the referrals have been substantiated for abuse/neglect. The constant DYFS referrals and investigations combined with ongoing litigation regarding visitation/custody issues have affected everyone involved. At present, there is a "no contact" order between [Tracy] and her parents as well as no contact between [Tracy] and [Amy]. [Tracy] refuses contact with her mother and alleges that mom has been verbally, physically, and sexually abusive towards her. It is unknown if [Tracy's] accounts are accurate or the product of manipulation by her father, who appears to have had an enmeshed relationship with [Tracy]. [Tracy's] parentified role was characterized by such things as her maternal role with [Amy] and managing funds through her checking account for her father, which was evidenced in the Court hearings. Other safety issues with regards to this case are those of [L.R.] who has been imprisoned on federal charges back in Dec. 2005 - May 2006. [L.R.] is presently missing but is believed to be living at [blanked out]. On 3/7/07, [L.R.] attempted to make contact with [Tracy] by calling the Group Home going against the court ordered no contact clause.
We are informed that during the divorce proceedings between her parents, Tracy made at least four complaints to the Union County Prosecutor's Office that her plaintiff mother had sexually abused her. Tracy asserts the investigations were "dropped" while her mother asserts that each of these accusations was investigated and determined to be unfounded.
At some point during the divorce proceedings, L.R. had custody of both girls. The record before us does not contain the circumstances which led to that determination. In December 2005, he was arrested.*fn2 The record before us indicates that he was arrested on two occasions--once after he fled with both girls when custody was ordered transferred to plaintiff mother and another occasion on an unrelated matter.*fn3 We infer that the December 2005 arrest concerned the unrelated charges because following that arrest, the custody of Amy was transferred to plaintiff mother's sister. The depth of Tracy's estrangement from her plaintiff mother is demonstrated by the fact that following her father's arrest, Tracy, who was still a minor, refused to reside with her mother or her mother's family.
Rather, Tracy elected to have DYFS assume her custody and control, and she resided in a DYFS group home until she attained the age of eighteen.
The record before us does not indicate the date or circumstances under which plaintiff resumed the custody of her daughter Amy. Since resuming that custody, however, she has rebuffed Tracy's attempts to see her younger sister until Tracy engages in therapy to deal with the allegations Tracy presented against her mother. Tracy has refused to do so, maintaining that her allegations that her plaintiff mother sexually abused her were the truth.
On attaining her majority, Tracy filed a motion to intervene in her parents' divorce proceedings.*fn4 According to her motion papers, she sought an order permitting visitation with Amy and regular telephone contact. She also sought return of certain items of personal property and her diaries, notebooks and journals. In her certification submitted in support of her motion, Tracy detailed what she contended was the close relationship that had existed between the two girls, as well as her concern that her mother could be abusing Amy.
Tracy's mother opposed the motion. She submitted a detailed certification in which she recited her concerns about Amy's well-being if Tracy were permitted to have any contact with her younger sister at this point. She attached to her motion papers a report dated March 25, 2007, from a psychologist, William D. Campagna, Ph.D., who had separately interviewed Amy and her mother on two occasions.
Tracy had, in January 2007, made a similar request for visitation with Amy. In connection with that earlier application, the trial court directed Dr. Campagna to evaluate Amy to determine whether contact between the sisters would be psychologically appropriate. Dr. Campagna responded with the March 25, 2007, report.
Within that report, Dr. Campagna described seven-year-old Amy as "a most resilient youngster, who is ebullient, poised, confident and happy." Dr. Campagna also stated the following in his report:
[Amy] clearly misses [Tracy], but apparently not to an excessive degree. Accordingly [sic] to [plaintiff mother], she has seen [Tracy] by chance on two occasions, and [plaintiff mother] permitted them to speak both times. By report, [Amy] was able to separate from [Tracy] without difficulty both times.
[Amy] speaks fondly of [Tracy], but accepted the examiner's suggestion that contact with [Tracy] might depend on [Tracy's] behavior and cooperation as well. The possibility of not seeing her sister was also discussed, and [Amy] accepted this without upset. She has, in some ways, substituted her close-knit family, especially her cousins, and this is functional for her.
This writer obviously cannot offer a direct recommendation regarding renewal of contact without extensive evaluation of [Tracy]. It would be unfair and clinically inappropriate to comment on [Tracy's] current psychological status without interviewing her. This writer was provided with letters written by [Tracy], and these did not bode well in presenting her as a mature and stable 17 year old.
Also, if [Tracy] is still in contact with [L.R.], the undersigned would have extreme concerns regarding [Amy] renewing any sort of direct contact relationship with her sister.
It is this writer's belief that the above is a succinct and accurate presentation of [Amy's] functioning. She will not, in the examiner's opinion, be psychologically harmed or in any way traumatized if contact with [Tracy] was not renewed.
We have not been provided with the letters to which Dr. Campagna referred.
Tracy's mother also attached to her opposition papers a letter dated March 13, 2007, from a psychiatrist, Alexander Iofin, M.D. It is difficult for this court to place this letter in its proper context because it refers to an earlier report dated April 7, 2006, which is not included in the record before us, as well as prior correspondence which is also not in the record before us. Within his March 13, 2007, letter, Dr. Iofin, referring to Tracy, wrote:
As I explained in my psychiatric assessment the information provided [the record does not disclose to what information he refers] pointed toward the possibility of her being a perpetrator of sexual abuse, engaging in sexualized activities with a younger person.
As I mentioned, I would not recommend her placement with children younger than she is. Obviously, this will include her younger sister unless very strict supervision will be imposed to have assurance that they will not engage in any age-inappropriate sexualized activities.
Because of the high level of discord involved with the parents' divorce proceeding, the trial court had, at one point, appointed Bonnie C. Frost, Esq. as a guardian ad litem for the girls. At some point, Ms. Frost was discharged as the guardian for Tracy but continued as Amy's guardian. She submitted a report to the trial court in connection with Tracy's earlier request for visitation with Amy in which she wrote the following:
[Tracy] made many statements, before the Court, that indicated that she had no insight whatsoever as to her behavior, its potential effect on [Amy] nor an understanding of her relationship with her father which might interfere inappropriately with contact with [Amy]. I objected to [Tracy] having contact with [Amy] at that time and I continue my objections as guardian for [Amy]. The present application filed by [Tracy] is no different than the one she has made previously and there is no indication whatsoever that [Tracy] has addressed the concerns raised that she acts as a conduit to press her father's claims.*fn5
This report also notes that after Ms. Frost was discharged as Tracy's law guardian, the trial court appointed two separate guardians for her, each of whom asked to be relieved because of Tracy's refusal to communicate with them.
After reviewing the motion papers and hearing argument, the trial court denied Tracy's request for visitation and telephone contact and granted plaintiff mother's request for a restraining order directing Tracy to remain at least 250 yards from Amy.
Tracy has appealed.*fn6
Her principal contention on appeal is that the trial court used the incorrect standard to analyze her request for visitation with her younger sister.
N.J.S.A. 9:2-7.1 provides:
a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.
b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:
(1) The relationship between the child and the applicant;
(2) The relationship between each of the child's parents or the person with whom the child is residing and the applicant;
(3) The time which has elapsed since the child last had contact with the applicant;
(4) The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;
(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
(6) The good faith of the applicant in filing the application;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and
(8) Any other factor relevant to the best interests of the child.
c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child's best interest if the applicant had, in the past, been a full-time caretaker for the child.
When the statute was originally enacted, it addressed only the question of grandparent visitation. It was amended in 1987 to include sibling visitation. That amendment, of course, was before the decisions of the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed. 2d 49 (2000), and our Supreme Court in Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177, 124 S.Ct. 1408, 158 L.Ed. 2d 78 (2004). Following Troxel's lead, the Court in Moriarty construed N.J.S.A. 9:2-7.1 to require grandparents seeking visitation in the face of parental refusal to demonstrate by the preponderance of the evidence that such visitation was "necessary to avoid harm to the child." 177 N.J. at 117.
Because the Grandparent Visitation Statute is an incursion on a fundamental right (the right to parental autonomy) . . . it is subject to strict scrutiny and must be narrowly tailored to advance a compelling state interest. Our prior jurisprudence establishes clearly that the only state interest warranting the invocation of the State's parens patriae jurisdiction to overcome the presumption in favor of a parent's decision and to force grandparent visitation over the wishes of a fit parent is the avoidance of harm to the child. When no harm threatens a child's welfare, the State lacks a sufficiently compelling justification for the infringement on the fundamental right of parents to raise their children as they see fit.
[Id. at 115.]
The trial court used that framework in analyzing Tracy's application and concluding that it should be denied. On appeal, Tracy argues that the nature of the relationship between siblings is fundamentally different than the relationship which exists between a grandchild and grandparents and thus the Troxel/Moriarty analysis is inapplicable.
Some cases have commented upon the unique relationship which exists between siblings.
Just as grandparents are bound to their grandchildren by the unbreakable links of heredity . . . so too are siblings bound to one another by virtue of the fact that they were born to, and in most cases, raised by, the same biological parents. A sibling relationship can be an independent emotionally supportive factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other. Those of us who have been fortunate enough to experience a sibling relationship are aware of these basic human truths.
[L. v. G., 203 N.J. Super. 385, 395 (Ch. Div. 1985).]
One member of the Supreme Court, Justice Albin, has expressed similar views on the importance of sibling relationships in the context of the termination of parental rights of the siblings' parent.
Some mental health experts believe that the sibling relationship can be "longer lasting and more influential than any other, including those with parents, spouse, or children[,]" and that "[w]hen it is severed, the fallout can last a lifetime." Nat'l Adoption Info. Clearinghouse, The Sibling Bond: Its Importance in Foster Care and Adoptive Placement 1 (1992), http://www.child-welfare.gov/pubs/f--siblin.pdf; see also Ellen Marrus, "Where Have You Been, Fran?" The Right of Siblings to Seek Court Access to Override Parental Denial of Visitation, 66 Tenn. L. Rev. 977, 987 (1999) ("[O]ver the course of an entire lifespan, siblings have significant influence on each other's lives. If nurtured and maintained, these relationships can provide emotional security, affect the intellectual, social, emotional, and moral development of one another, and offer lifetime companionship."). Some commentators have noted that maintaining sibling relationships can provide a sense of stability in the lives of abused children placed outside of their natural homes. See, e.g., Mary Anne Herrick & Wendy Piccus, Sibling Connections: The Importance of Nurturing Sibling Bonds in the Foster Care System, 27 Child & Youth Services Rev. 845, 851-52 (2005).
[N.J. Div. of Youth v. S.S., 187 N.J. 556, 561 (2006).]
The determination whether to grant or to deny an application for such visitation rests essentially within the sound discretion of the court to which it is presented. Because we are satisfied that we are unable to conclude that the trial court abused its discretion when it denied her application, we find it unnecessary to rule upon Tracy's argument that the unique nature of the sibling relationship justifies a different analysis than that applied to grandparent visitation.
The New Jersey Supreme Court has noted the special expertise that develops in family court judges and the responsibility of appellate courts to acknowledge that expertise. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We consider that principle particularly appropriate in a matter such as this, in which the judge who considered and ruled upon Tracy's application had not only significant experience in family court matters but significant experience and familiarity with the dynamics of this dysfunctional family, having presided over a number of hearings between and among family members.
In addition, we have noted at various points in our opinion that the record before us does not contain material that was known both to the parties and the trial court. Tracy's motion papers and her mother's opposing papers clearly reflected the understanding that the judge deciding the motion had such a background and understanding. Issues involving sibling visitation "are of profound importance and touch on far-reaching public policy concerns[.]" S.S., supra, 187 N.J. at 563. We deem it inappropriate to make such a determination having such profound consequences upon such a sparse record.
And, with respect to this last concern, we decline to remand the matter to the trial court to supplement and expand the record. This family has been engaged in litigation almost without ceasing for nearly four years. The emotional, psychological and financial toll of such litigation is enormous. Plaintiff mother, in opposing Tracy's request, stated that she did not foreclose the possibility of contact between these two girls as Amy grew older and matured. We are concerned that any action on our part that would protract this particular litigation would make the future prospect of re-uniting these sisters even more difficult to achieve.
The order under review is affirmed.