C.A.B. v. C.A.O. (FD-02-0384-16, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0038-20
C.A.B.,1
Plaintiff-Appellant,
v.
C.A.O.,
Defendant-Respondent.
Submitted December 13, 2021 – Decided January 3, 2022
Before Judges Rose and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FD-02-0384-16.
Law Offices of James M. Doyle, attorneys for appellant
(James M. Doyle, of counsel and on the briefs; Jane M.
Personette, on the briefs).
Dimin Fierro, LLC, attorneys for respondent (William
N. Dimin, on the brief).
1
We use initials to protect the privacy of the alleged victim, R. 1:38-3(d), and
pseudonyms for ease of reference.
PER CURIAM
Plaintiff C.A.B. (Father or plaintiff) appeals from an August 20, 2020
Family Part order, denying his application for sibling visits among his three
children at the home of his mother (Paternal Grandmother), while incarcerated
pending trial for sexual abuse charges involving: his son, A.O.-B. (Andrew),
born September 2015; his underage step-niece; and a former coworker. As she
did before the trial court, Andrew's mother, defendant C.A.O. (Mother or
defendant), opposes visitation with Andrew's half-sister, K.B. (Karen), born
November 2012, and half-brother, R.Z.-B. (Ron), born April 2017, and urges us
to affirm the court's order. Paternal Grandmother, Karen's mother, A.O. (Ann),
and Ron's mother, J.Z. (Jane), did not participate in Father's motion before the
trial court and are not parties to this appeal. Because Father failed to
demonstrate sibling visitation was in Andrew's best interests, we affirm.
The parties were never married; Andrew is their only child. By all
accounts, the parties' romantic relationship was brief and their parenting
relationship was discordant. Within six months of Andrew's birth, Father filed
a non-dissolution action for custody and parenting time. On March 9, 2016, the
trial court granted the parties joint legal custody of Andrew, and designated
Mother as the parent of primary residence and Father as the parent of alternate
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residence. Father was granted parenting time every other Saturday and Sunday
without overnights.
Thereafter, the parties agreed to expand Father's parenting time. On
December 19, 2017, another Family Part judge entered a consent order,
affording Father parenting time with Andrew on alternate Friday evenings from
5:00 p.m. to 8:00 p.m., and overnights every other weekend from Friday at 5:00
p.m. to Sunday at 5:00 p.m. Because Father's parenting time with Andrew
overlapped with one or both of his other children, it was held at Paternal
Grandmother's home, which was large enough to accommodate all three children
simultaneously. Sibling visitation continued in that manner for the next two
years but was not formalized by court order.
Father's parenting time with Andrew abruptly ended following plaintiff's
February 14, 2020 arrest for sexually assaulting his step-niece. Unaware of
Father's arrest and incarceration on the charges, Mother brought Andrew to
Paternal Grandmother's home for plaintiff's scheduled parenting time. When
Mother returned to pick up Andrew on Sunday, February 16, 2020, Father's
girlfriend advised of plaintiff's arrest.
Soon thereafter, Mother applied for an order to show cause, seeking
temporary sole legal and residential custody of Andrew, and suspension of
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Father's parenting time with their son. On February 20, 2020, the judge assigned
to the present matter granted Mother's application, thereby suspending Father's
parenting time with Andrew, pending resolution of the criminal matter and
completion of plaintiff's psychiatric evaluation. The order permitted plaintiff,
upon two days' notice to Mother, to "seek to dissolve these restraints."
On March 31, 2020, Father moved to vacate the February 20, 2020 order.
Father also cross-moved, on his own behalf, to compel Mother's compliance
with the parties' previously agreed-upon parenting time schedule "to ensure
continued sibling visits/relationships" while he remained detained pretrial.
According to Father's supporting certification, he and Ann had informally shared
joint legal custody of Karen, and he enjoyed parenting time with Karen three
weekends per month. Similarly, Father asserted he and Jane had informally
agreed to share joint legal custody of Ron, with Father's parenting time
scheduled for every weekend. Absent from Father's application, however, were
supporting certifications of Ann and Jane as to their positions confirming those
agreements or expressing their positions on continued sibling visitation between
their respective child and Andrew.
Sometime in April 2020, Andrew told his maternal grandmother he was
sexually assaulted by Father. Thereafter, detectives assigned to the Bergen
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County Prosecutor's Office interviewed Andrew and on April 24, 2020, Father
was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1),
and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1).2
Pursuant to an investigation commenced by the Division of Child Protection and
Permanency (DCPP), Andrew was referred for a psychosocial evaluation at
Audrey Hepburn Children's House in Hackensack. DCPP thereafter
substantiated Andrew's allegations of digital penetration by Father. In its
August 7, 2020 correspondence, DCPP notified the judge of its findings and
recommendations.3
At the conclusion of argument on August 20, 2020, the judge rendered an
oral decision denying Father's application. Referencing DCPP's findings, the
judge noted Andrew's psychosocial evaluation revealed the child "presented
symptoms of post-traumatic stress disorder as a result of the sexual abuse." The
evaluation recommended various modalities of therapy, including family
sessions with Mother. However, "it was recommended that A[ndrew] not have
2
On May 28, 2020, Father was charged with sexually assaulting a former co-
worker in 2012.
3
The judge released DCPP's correspondence to the parties under a protective
order. The parties did not include the letter on appeal, but do not dispute its
authenticity or the judge's synopsis of its contents.
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any contact with [Father] until the investigation [wa]s completed and [Father is]
assessed for parenting capacities and risk" to avoid "negatively impact[ing]"
Andrew's progress.
The judge also cited DCPP's assessment that Paternal Grandmother was
not "an appropriate and safe supervisor at this time" because "she has stated that
she does not believe the sexual abuse occurred." The judge noted DCPP's
concerns that Paternal Grandmother's disbelief "would impact her interactions
with A[ndrew]."
As to Andrew's best interests, the judge concluded:
At this time, I see nothing before me that would . . . lead
me to conclude that continued access to his two half-
siblings would do A[ndrew] any harm. At this time, I
believe that A[ndrew] needs to focus on his own issues
and his own recovery, and his own therapy, and I would
find that for him to have continued access to [Father]'s
other family at this time would not be in A[ndrew]'s
best interest.
This appeal followed.
On March 5, 2021, the judge granted Mother's ensuing motion to settle the
record pursuant to Rule 2:5-5(a). The judge explained, in pertinent part:
I had stated on the record that there was no
evidence that the child's exposure to his half-siblings
would do A[ndrew] any harm. I had noted [Mother]'s
objection to A[ndrew]'s visitation with the other
children. I also noted that A[ndrew] needed to focus on
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his own issues, his own recovery[,] and his own
therapy. A[ndrew] did not need to be exposed to
possible pressure from [Father]'s family and the other
children. Given the totality of the circumstances, I
found that to grant visitation with [Father]'s other
children would not be in A[ndrew]'s best interest. With
the road lying ahead to A[ndrew]'s recovery, I was not
about to risk it.
On appeal, Father contends the judge abused his discretion by summarily
denying his application to continue sibling visitation at Paternal Grandmother's
house, without holding a plenary hearing; relying on hearsay contained in
DCPP's August 7, 2020 correspondence; and failing to apply the best interests
standard under N.J.S.A. 9:2-7.1. Father also asserts the judge should have
granted his discovery requests to, among other things: have Andrew
independently evaluated by a psychologist of plaintiff's choice; depose
defendant and her mother; restrain Mother "and any other persons coming into
contact with Andrew" from discussing the sexual abuse allegations against
Father; and prohibit Mother from making disparaging remarks about Father and
his family members.
Our limited scope of review of a trial court's findings is well established.
See Cesare v. Cesare, 154 N.J. 394, 411 (1998). We accord deference to the
family courts due to their "special jurisdiction and expertise" in the area of
family law. Id. at 413. We will not disturb the court's factual findings and legal
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conclusions "unless [we are] convinced that they are so manifestly unsupported
by or inconsistent with the competent, relevant and reasonably credible evidence
as to offend the interests of justice." Id. at 412 (quoting Rova Farms Resort,
Inc. v. Inv.'s Ins. Co., 65 N.J. 474, 484 (1974)). Conversely, a trial judge's
decision on a purely legal issue is subject to de novo review. Crespo v. Crespo,
395 N.J. Super. 190, 194 (App. Div. 2007).
The Grandparent and Sibling Visitation Statute, N.J.S.A. 9:2-7.1 (GSVS),
"confers on a child's grandparent or sibling standing to file an action for an order
compelling visitation[,]" Major v. Maguire, 224 N.J. 1, 13 (2016), and "provides
the framework for grandparent and sibling visitation when visitation is proven
to be 'in the best interests of the child,'" N.J. Div. of Youth & Fam. Servs. v.
S.S., 187 N.J. 556, 562 (2006) (quoting N.J.S.A. 9:2-7.1(a)). The applicant
bears the burden of proving "by a preponderance of the evidence that the
granting of visitation is in the best interests of the child." N.J.S.A. 9:2-7.1(a).
When an application is filed pursuant to the GSVS, courts must consider
the following relevant 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;
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(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.
[N.J.S.A. 9:2-7.1(b).]
Lastly, the GSVS provides: "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."
N.J.S.A. 9:2-7.1(c).
In the context of a grandparent's application under the GSVS, our Supreme
Court in Major reaffirmed its earlier holding in Moriarty v. Bradt, 177 N.J. 84(2003), "that, in order to overcome the presumption of parental autonomy in the
raising of children, grandparents who bring visitation actions under N.J.S.A.
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9:2-7.1 must prove by a preponderance of the evidence that denial of visitation
will harm the child." Major, 224 N.J. at 7. Similarly, the Court thereafter held
an adult sister seeking visitation must demonstrate that her minor siblings
"would suffer harm if denied visitation with her." In re D.C., 203 N.J. 545, 575
(2010). According to the Court: "The standard is a stringent one . . . that cannot
likely be satisfied by siblings who have had no connection to each other or by
those whose bonds are flaccid, or worse, toxic." Ibid."Absent a showing that the child will suffer harm if . . . visitation is denied,
a trial court may not mandate visitation pursuant to the best-interests factors of
N.J.S.A. 9:2-7.1." Major, 224 N.J. at 18; see also Slawinski v. Nicholas, 448
N.J. Super. 25, 34 (App. Div. 2015) ("Only after the grandparent vaults the
proof-of-harm threshold will the court apply a best-interests analysis to resolve
disputes over visitation details."). The harm to the child must be "a particular
identifiable harm, specific to the child." Mizrahi v. Cannon, 375 N.J. Super.
221, 234 (App. Div. 2005).
As a preliminary matter, we note Mother did not challenge Father's
standing to cross-move on his own behalf, for visitation among Andrew and
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plaintiff's other two children under the GSVS, or visitation with Paternal
Grandmother.4 Nor does Mother contest Father's standing on appeal.
Clearly, however, Father did not have standing to seek visitation on behalf
of Paternal Grandmother under the GSVS. Further, while we acknowledge a
parent who has sole legal custody of a child may request sibling visitation on
behalf of his child under the GSVS, we cannot ignore Father's certification that
acknowledges he shares joint legal custody of Karen with Ann, and Ron with
Jane. Because Father's application on behalf of Andrew's siblings was not filed
on their behalf with the consent of their mothers, we are not satisfied Father had
standing to file the present application under the GSVS. In sum, we are not
aware of any reported decisions that extend standing under this statute to anyone
other than a third-party "grandparent" or "sibling."
Nonetheless, because Father retained certain parental rights
notwithstanding his loss of parenting time and joint legal custody, we have
considered his contentions on the merits and conclude he failed to demonstrate
4
In his merits brief, Father asserts his application before the trial court "was
specifically and narrowly tailored to address the important issue of Andrew's
visitation with his half-siblings," then notes "[a]s well as with his paternal
relatives including [Paternal Grandmother] and [plaintiff's] sister."
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that the suspension of the parties' informal sibling visitation arrangement
constitutes reversible error.
When a court is confronted with a dispute regarding the best interests of
a child, the court must consider "what will protect the safety, happiness,
physical, mental and moral welfare of the child." Mastropole v. Mastropole,
181 N.J. Super. 130, 136 (App. Div. 1981) (internal quotation marks omitted)
(quoting Beck v. Beck, 86 N.J. 480, 497 (1981)). Indeed, a Family Part judge
has a parens patriae responsibility to consider the welfare of the child in
resolving parenting time disputes. See Fawzy v. Fawzy, 199 N.J. 456, 474-75
(2009). Here, the record reflects the judge understood these responsibilities and
found sibling visits were not in Andrew's best interests because the child
"needed to focus on his own issues, his own recovery[,] and his own therapy"
and "did not need to be exposed to possible pressure from [Father]'s family and
the other children." We perceive no basis to disturb the judge's finding in this
regard.
Although, Father's certification notes Karen's "struggle[s] with her sudden
separation from [plaintiff] and [Andrew]," and that he has "no reason to doubt
that A[ndrew] is similarly missing his sister and brother," Father did not provide
the Family Part judge with competent proof as to why sibling visits would be in
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Andrew's best interests. Moreover, Father did not address whether sibling visits
would negatively impact Andrew's recovery, or whether the child would face
pressure from his siblings or their families. Even on appeal, Father merely
speculates "it may well be harmful to [Andrew] to be suddenly ripped from his
father, paternal relatives and siblings."
Because we conclude Father did not demonstrate there was a material
change in circumstances that would justify a modification of the existing
custody and parenting time orders or that the suspension of sibling time was
contrary to Andrew's best interests, we further conclude a plenary hearing was
unnecessary. See Hand v. Hand, 391 N.J. Super. 102, 105-06 (App. Div. 2007).
To be clear, in the present matter, the judge did not permanently terminate
Andrew's visitation with his half-siblings. Concerned about Andrew's welfare
and recovery process, the judge instead suspended an informal sibling visitation
arrangement. Accordingly, Father is not precluded from seeking reinstatement
of sibling visits in the future, subject to Andrew's successful completion of
therapy.
For the first time on appeal, Father argues DCPP's August 7, 2020
correspondence constituted "a hearsay report" and "relied upon conclusions and
recommendations of another hearsay report." Incongruently, he further asserts:
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"For the sake of this argument, [p]laintiff neither challenges nor accepts the
recommendations by DCPP as summarized by the court." Father also contends
DCPP's recommendations "are entirely irrelevant to the relief sought [by his]
application or on appeal." 5
We disagree. DCPP's August 7, 2020 correspondence, particularly
concerning the myriad of therapeutic services recommended for Andrew,
underscored the judge's decision that sibling visitation was not in Andrew's best
interests and, as such, was highly relevant. Additionally, we are convinced the
judge properly considered DCPP's recommendations in deciding Father's cross-
motion. Notably, Father posed no hearsay objection to those recommendations
during oral argument before the Family Part judge.
To the extent not addressed, Father's remaining arguments lack sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add
only the following comments.
In denying plaintiff's cross-motion, the judge did not expressly address
plaintiff's discovery requests. On appeal, both parties acknowledge those
5
Father's merits brief was filed prior to the judge's March 5, 2021 amplification
statement, which was annexed to Mother's responding brief. However, Father's
reply brief does not address the judge's findings or reliance on DCPP's August
7, 2020 correspondence.
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requests were rendered moot by the judge's denial of sibling visitation.
Moreover, as Father candidly acknowledges in his merits brief, "[t]he discovery
sought by [p]laintiff clearly overlaps with the criminal matter." We therefore
discern no abuse of discretion in the judge's failure to order discovery in this
matter. See Major, 224 N.J. at 24 (recognizing "Family Part judges have broad
discretion to permit, deny, or limit discovery in accordance with the
circumstances of the individual case").
Affirmed.
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