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In the Matter of T.B.

May 18, 2011

IN THE MATTER OF T.B., A MINOR.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FC-12-173-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 16, 2011

Before Judges R. B. Coleman and Lihotz.

In this appeal, appellant L.K., the maternal grandmother of T.B., is proceeding pro se. She seeks to reverse an order of the Family Part that terminated her right to visit T.B. L.K. is the mother of T.B.'s birth mother, C.B., whose parental rights were terminated by a Judgment of Guardianship entered on October 15, 2009.*fn1 Although we do not embrace the trial judge's mistaken conclusion that L.K. withdrew her request for further visitation with T.B., and although we believe the better practice would have been for the court to allow the Division of Youth and Family Services (the Division) to present proofs under oath to support its allegations that L.K.'s visits with T.B. were having detrimental effects upon the child, we nevertheless affirm the order to the extent it continued the preclusion of visitation until further order. In light of the subsequent adoption of T.B. by her resource parents, however, a more rigorous standard controls L.K.'s request to visit T.B. L.K. now shoulders the burden of showing that visitation between her and T.B. is necessary to avoid harm to the child. In re D.C., 203 N.J. 545, 573 (2010); Moriarty v. Bradt, 177 N.J. 84, 88 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004).

By way of background, we note that in connection with the October 15, 2009 Judgment of Guardianship terminating the parental rights of T.B.'s mother, C.B., the Family Part entered a case management order providing that T.B. was to remain in the care of foster parents and that L.K. could have visitation supervised by the Division. In a subsequent order dated December 7, 2009, the Family Part also terminated the parental rights of T.B.'s biological father, E.B.*fn2 The Division was awarded guardianship to consent to the adoption of the child. The court additionally ordered a summary hearing to be held in March 2010 to track the status of the planned adoption of T.B.

From March 2009 through December 2009, L.K. was permitted visitation with her granddaughter, under the supervision of the Division. On March 11, 2010, the Division submitted a report to the court which indicated that T.B. experienced nightmares, decreased appetite, increased hyperactivity and oppositional behavior at school following visits with L.K. Following a summary hearing held on March 15, 2010, the court ordered that L.K.'s visits with T.B. cease "[b]ased upon the negative impact of the visits on [T.B.] and the Division's representation that they have spoken with the maternal grandmother regarding the decision to stop the visits." L.K. appealed the March 15, 2010 order and in response to her pro se motion, we entered a May 20, 2010 order reinstating grandparent visitation. That order stated, however, that "[w]e do not . . . foreclose the Division or Law Guardian from seeking cessation or limitation of grandparent visitation." Prior to the occurrence of any additional visits between L.K. and T.B., the Division again moved to preclude visitation.

On June 22, 2010, the Family Part judge entered an order adopting the recommendation of the Child Placement Review Board for adoption of T.B. by the current resource parents.*fn3 That order reiterated that "there shall be no further visitation between [T.B.] and [L.K.] until further order of the court." Thereafter, by letter dated June 24, 2010, the Department of Children and Families advised L.K. that the scheduled visit on June 30, 2010 with T.B. was cancelled and that the matter was scheduled for July 20 at 9:00 a.m. The letter added that "any further scheduled visitation will be contingent upon decisions originating from that court hearing."

L.K. did not appear at the July 20, 2010 hearing,*fn4 and on that date, the judge entered an order terminating visitation between L.K. and T.B. based, at least in part, on L.K.'s own communication to the court wherein she advised that she wished to "withdraw [her] request to be heard about where to visit [her] granddaughter for July 20th." The court's July 20, 2010 order stated:

The Division's motion for termination of visitation between minor [T.B.] and [L.K.] is hereby granted, as said visitation is no longer in [T.B.'s] best interest, and for the reasons stated on the record. [L.K.] was given proper notice of today's hearing and an opportunity to be heard. She did not appear. Further, the court received a handwritten letter from [L.K.] dated June 22, 2010 withdrawing her request for any further visitation.

This appeal ensued.

I.

In this appeal, L.K. contends that, contrary to the trial court's understanding that she was withdrawing her request for visitation with T.B., the letter sent to the court only intended to withdraw her request to be heard regarding where L.K. would be visiting T.B. That letter did not state and was not meant to communicate that she was withdrawing her general request for visitation. Additionally, L.K. asserts she did in fact appear for the hearing but the trial judge held the hearing ...


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