Petition for Writ of Certiorari — Giberna v. Carter

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Supreme Court, U.s.

() | FILED

99 776 ocr 1.81999

No.

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In The

SUPREME COURT OF THE UNITED STATES

October Term, 1999

GREGORY J. GIBERNA

VANESSA M. GIBERNA

Petitioners,

VS.

BEULAH MCMILLAN CARTER

BENNIE JEAN CARTER

Respondents.

On Petition For A Writ Of Certiorari To

The Appellate Division Of New Jersey.

Gregory J. Giberna

Vanessa M. Giberna

901B. Merritt Dr.

Somerville, N.J. 08876

(908) 281-7363

“Pro Se” for Petitioner(s)

i.

QUESTIONS PRESENTED

The New Jersey Grandparent Statute N.J.S.A. 9:2-

7.1 is prima facie unconstitutional & is violative of

parents fundamental rights to privacy & equal

protection guaranteed under the ninth & fourteenth

amendments of the Federal Constitution.

When, the New Jersey Appellate Court overturned

the trial court judgement granting our adoption under

N.J.S.A. 9:3-48a.(2) c. (4) ( & The New Jersey Supreme

Court denied us Certification) it contravened the law

adopted by the state legislature, violated the doctrine

of separation of powers found in the Federal

Constitution, was violative of our rights to equal

protection & due process guaranteed under the

fourteenth amendment of the Federal Constitution.

The New Jersey Appellate Court (along, with the

New Jersey Supreme Court which denied us

Certification) was violative of our fundamental rights

to due process & equal protection guaranteed under

the fourteenth amendment of the Federal Constitution

when it utilized Codified Law in reaching it’s holding,

which was not in effect at the time of trial.

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PARTIES

All parties are on cover.

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS & STATUTES

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Saran tment) COP THE. CASE. .......0cccccccccsccscccccccccccccee 2

A. The New Jersey Appellate Court reverses

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B. The New Jersey Appellate Court denied

our Motion for Reconsideration of their

reversal of the Trial Court Order ................. 5

C. The New Jersey Supreme Court denies our

Pmenene Wr CORCTIIOMEIORS own. occa ccnccncesesecsncess S

I. THE NEW JERSEY SUPREME COURT

DECISION REGARDING THE STATE’S

GRANDPARENT VISITATION STATUTE

CONFLICT’S WITH THIS COURT’S

DECISIONS REGARDING PRIVACY

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I]. THE NEW JERSEY SUPREME COURT

DECISION REGARDING THE STATE’S

GRANDPARENT VISITATION STATUTE

CONFLICTS WITH BOTH, THE GEORGIA

& TENNESSEE STATE SUPREME

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Il. THE NEW JERSEY SUPREME COURT'S

DENIAL OF CERTIFICATION SANCTIONED |

BOTH, A SERIOUS DEPARTURE FROM

THE TRIAL COURT & VIOLATION OF OUR

RIGHT’S TO EQUAL PROTECTION & DUE

PROCESS UNDER THE LAV. ................... 11

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TABLE OF AUTHORITIES

Page

Cases

Brooks v. Parkerson, 265 Ga. 189; 454 S.E. 2d 769:

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Griswold v. Connecticut, 381 U.S. 479 (85 S. Ct. 1678,

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Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993) .......... 10

Meyer v. Nebraska, 262 U.S.390, 399 (43 S. Ct. 625,

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Pierce v. Society of Sisters, 268 U.S. 510, 534 (45 S.

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Prince v. Massachusetts, 321 U.S. 158, 166 (64 S. Ct.

$56, SB 1. EG. GA OO oi id iii isis 8

Wisconsin v. Yoder, 406 U.S. 205, 235 (92 S. Ct. 1526,

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Statutes

New Jersey Adoption Statute 9:3-48 .0..........ccccse. 3, 4

l

PETITION FOR WRIT OF CERTIORARI

Gregory J. Giberna & Vanessa M. Giberna

respectfully request that a writ of certiorari issue to

review the judgement & opinion of the Appellate

Division of New Jersey.

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OPINIONS BELOW

The opinions of the Somerset County trial court

(App.1.) & the New Jersey Appellate Court (App.15.)

are published. The New Jersey Supreme Court did not

render an opinion.

JURISDICTION

The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. § 2403(b) & notifications required by Rule

29.4(c) we certified to the New Jersey Attorney General

the fact the constitutionality of a statute was drawn

into question. The opinion of the Somerset County

trial court was issued on February 6, 1998, the New

Jersey Appellate Court’s opinion was issued October

23, 1998, & the New Jersey Supreme Court’s order

denying us Certification was issued August 3, 1999.

CONSTITUTIONAL PROVISIONS

& STATUTES INVOLVED.

1. New Jersey Adoption Statute N.J.S.A. 9:3-48.

2

2. New Jersey Grandparent Visitation Statute

N.J.S.A. 9:2-7.1.

3. Amendment XIV of the United States Constitution.

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STATEMENT OF THE CASE

Vanessa Bischoff Giberna (herein after known as

V.B.G.) gave birth to Derek Christopher Bischoff

(herein after known as D.C.B.) almost nine years ago

out of wedlock on December 1, 1990. For the next five

years, & until we married on July 15, 1995, she raised

& financially supported her son D.C.B. with the help

of her parents. For about the next four years her son

D.C.B. has been reared & financially supported by the

both of us. From the time D.C.B. was six months old,

Gregory J. Giberna (herein after known as G.J.G.) had

continually & consistently visited with his future step-

son D.C.B. & wife V.B.G..

In contrast, except for a few short visits during the

first several months following D.C.B.’s birth, his

biological father Bennie Jean Carter (herein after

known as B.J.C.) has never visited with & never

financially supported D.C.B. Similarly, Beulah

McMillan Carter (herein after known as B.M.C.), a

paternal grandmother of D.C.B. & mother to BJ.C.,

has never visited with D.C.B.

In May of 1996, with the consent of his wife,

G.J.G. filed a Complaint for Adoption of his step-son

D.C.B., to which the biological father B.J.C. objected.

In January of 1996, over six years after the birth of

D.C.B., B.M.C. filed a Complaint for Visitation against

V.B.G. In response, V.B.G. filed extensive pleadings

citing numerous objections to visitation by B.M.C.

with her son D.C.B. In April of 1997, over seven years

since D.C.B.’s birth & almost one year since G.J.G.

3

filed for the adoption of his step-son D.C.B., B.J.C.

filed a Complaint for Visitation against V.B.G.

In a Letter Opinion with a Court Order dated

February 6, 1998, (App.1.) the trial court judge

dismissed the objection of B.J.C. to the Complaint for

Adoption by G.J.G. & the matter was listed for a

hearing on the complaint for adoption. Further, the

trial judge held B.M.C.’s rights to visitation were

“derivative of those of B.J.C.” “Then, the rights that”

B.M.C. “has must rest upon the rights of B.J.C., if

any”. (App.7.) The trial court acknowledged:

“there are situations in which a grandparent

may indeed have rights of visitation with an

infant which in affect are greater than the

rights of the natural parent, those cases

involve questions of rights of grandparents

who have established and maintained a

relationship with the child in question which

predate the child’s proposed adoption”. “In

this case, moreover it is conceded by B.M.C.

that she has never seen or visited with the

child”. (App.7.)

A. The New Jersey Appellate Court reverses trial

court order.

The Appellate Court held that when there is an

objection from a natural parent to an adoption in a

contested case the trial court must order an adoption

agency investigation, an attorney or a guardian ad

litem, or both for the child. (App.23.) Even though, the

state legislature gave the trial court in the statute the

discretion whether the foregoing need be ordered &

stated specifically that in a step-parent adoption:

“if the child has been in the home of the

plaintiff for at least two years immediately

preceding the commencement of the adoption

4

action, and if the court is satisfied that the

best interest of the child would be promoted

by the adoption the court may dispense with

such evaluation”.(App.37.)

The Appelate Court stated:

“we have previously held the listed parental

functions in the prior version of N.J.S.A. 9:3-

46 should not be viewed as constituting an all

inclusive list, & were provided by the

Legislature as an attempt to identify the core

values of parenthood”. “Further, we rejected

the notion that the Legislature intended to

compel automatic severance of parental ties if

a parent cannot perform one or more of the

listed core functions for the stated time

period”. (App.28.)

In addition, the Appellate Court reversed the trial

court’s opinion that B.M.C.’s Complaint for Visitation

was solely derivative of B.J.C.’s rights as a parent.

The Appellate Court stated:

“In our view, the issue of whether a

grandparent is entitled to visitation can only

be answered through a careful analysis of the

statutory factors set forth in N.J.S.A. 9:2-7.1,

where it remains the burden of _ the

grandparent to prove by a preponderance of

the evidence that the granting of visitation is

in the best interests of the child. The

grandparent’s prior relationship with the child

is only one factor to consider”. (App.32.)

Moreover, the Appellate Court applied Codified

Law in its analysis of this matter which, was not in

effect at the time of trial. N.J.S.A. 9:3-46 the statute

governing adoptions over the objections of biological

parents was codified effective September 11, 1998.

(App.24.) The trial for the adoption was held in

November 12, 1997, almost a full year prior. Lastly,

the Appellate Court stated it reversed & remanded the

5)

trial court based on “procedural irregularities”

(App. 16.) even though none occurred.

B. The New Jersey Appellate Court denied our

Motion for Reconsideration of their reversal of

the trial court order.

On October 27, 1998, we filed with the New Jersey

Appellate Court our Motion for Reconsideration. In an

order dated November 2, 1998, from the Appellate

Court our motion was denied. (App.35.)

In our motion to the Appellate Court we stated

that under the adoption statute it was the trial court’s

discretion, under appropriate circumstances, as to

whether to dispense with the adoption agency report

when a natural parent objected. In addition, we

questioned the Appellate Court’s utilization of the

Codified Adoption Statute in it’s analysis of this

matter. Further, we informed the Appellate Court the

written opinion had contravened the current adoption

law and they had violated our _ constitutional

protections. Moreover, we informed the Appellate

Court the determination of whether grandparents have

a right to visitation of their grandchild lies with

parents and not with the courts. We stated we did not

believe the courts have the legal authority to intervene

in the affairs of family, which are private in nature and

are protected by the Federal Constitution.

C. The New Jersey Supreme Court denies our

Petition for Certification.

On Friday November 13, 1998, we filed with the

New Jersey Supreme Court our Notice of Petition for

Certification. On Monday December 14, 1998, we filed

with the New Jersey Supreme Court our Petition for

Certification. In an Order dated August 3, 1999, the

6

New Jersey Supreme Court denied our Petition for

Certification without opinion. (App.35.)

In our Petition for Certification, we informed the

New Jersey Supreme Court that when the Appellate

Court held when there is an objection from a natural

parent, it is inappropriate to dispense with the agency

investigation they had contravened the current law. In

addition, we informed the court the New Jersey

Grandparent Visitation Statute N.J.S.A. 9:2-7.1 was

prima facie unconstitutional to parent’s because it is

violative of their nght’s to privacy & equal protection

under the Federal Constitution. We stated, allowing

grandparents to both, bring an action against parents

for visitation, & granting visitation over the objections

of parents was violative of parents right to privacy &

equal protection under the Federal Constitution.

Further, we informed the court they were violative of

our constitutional rights to due process & equal

protection when it applied Codified Law in reaching it’s

holding.

REASONS FOR GRANTING PETITION

By the New Jersey Supreme Court refusing to

overturn it’s Appellate Court on the matter of the

state’s grandparent visitation statute it remains in

contrast with both, the state of Georgia & Tennessee,

where their State Supreme Court’s have ruled similar

grandparent statutes unconstitutional. This important

question of law should be settled since, it conflicts

with relevant decisions of this court. Once again, by

the New Jersey Supreme Court refusing to overturn

it’s Appellate Court on the matter of contravening the

existing adoption statute it sanctioned a _ serious

departure from the trial court, soas to call for this

7

Court’s intercession. The foregoing provides a

compelling basis for this court to review the decision of

the New Jersey Supreme Court.

I. THE NEW JERSEY SUPREME COURT DECISION

REGARDING THE STATE’S GRANDPARENT

VISITATION STATUTE CONFLICTS WITH THIS

COURTS DECISIONS REGARDING PRIVACY

RIGHTS.

The New Jersey Appellate Court held:

“under existing law, termination severs all

legally mandated ties with the parent. We are

not so sure as to extended biological family

members, particularly grandparents &

siblings”. (App.31.) Then, they held:

“their continued right’s to court ordered visitations, for

instance, may very well survive termination of parental

rights”. (App.31.) Then, they held:

“But, the practicalities of such continued contact with

extended biological family may well discourage judicial

enforcement of such post adoption contact”. (App.31.)

The foregoing evinces the unilateral disarray of the

Appellate Court on this matter in trying to give validity

to a statute that is clearly unworkable for obvious

reasons. Considering or _ granting grandparent

visitation in situations where parents are vehemently

opposed is potentially destructive & threatens the

established structure of the entire family. Most

importantly, a grandparent filing a complaint for

visitation over the objections of a parent, which forces

upon same the time, energy, cost, anguish & suffering

of defending an unwanted litigation & court

proceedings, will only be deleterious to the grandchild

& the entire family. Should visitation be granted to the

grandparent after the foregoing proceedings, that will

be more deleterious to the entire family for obvious

reasons.

8

Parents have a fundamental right to rear their

children without state intrusion which, is expressed in

the Constitution as a “liberty interest”. This Court has

acknowledged that right derives from privacy inherent

in the Constitution. See Prince v. Massachusetts,

supra, 321 U.S. at 166. Pierce v. Society of Sisters,

268 U.S. 510, 534-535 (45 S. Ct. 571, 69 L. Ed. 2d.

1070) (1925) law prohibiting parents from sending

children to private rather than public’ schools

unconstitutional because it would: “unreasonably

interfere with the liberty of parents... to direct the

upbringing & education of (their) children”. Wisconsin

v. Yoder, 406 U.S. 205, 235 (92 S. Ct. 1526, 32 L. Ed.

2d 15) (1972) exempting Amish from the state

compulsory education law requiring children to attend

school beyond the eighth grade. Meyer v. Nebraska,

262 U.S. 390, 399, (43 S. Ct. 625, 67 L. Ed. 1042)

(1923) state law prohibiting teaching in school of any

modern language except English held

unconstitutional. The right to “liberty” guaranteed in

the fourteenth amendment to the Constitution

includes the freedom “to engage in any of the common

occupations of life, to acquire useful knowledge,

marry, establish a home, & bring up children”.

The United States Supreme Court has long

recognized a constitutionally protected interest of

parents to raise their children without undue state

interference. Prince v. Massachusetts, 321 U.S. 158,

166 (64 S. Ct. 438, 88 L. Ed. 645) (1944)

“the custody, care & nurture of the child

reside first in the parents... It is in recognition

of this that decision have respected the private

realm of family life which the state cannot

enter’.

Parents in this country have a fundamental right

found in the penumbrae of the fourteenth amendment

of the Constitution to establish a home & direct the

9

upbringing & education of their children without

undue state interference. See Pierce v. Society of

Sisters, 268 U.S. 510, 534 (45 S. Ct. 571, 69 L. Ed.

1070) (1925) Meyer v. Nebraska, 262 U.S. 390, 399 (43

S. Ct. 625, 67 L. Ed. 1042) (1923) Parents also have a

right to privacy found in the ninth amendment.

Griswold v. Connecticut, 381 U.S. 479 (85 S. Ct. 1678,

14 L. Ed. 2d 510) (1965)

Il. THE NEW JERSEY SUPREME COURT DECISION

REGARDING THE STATE’S GRANDPARENT

VISITATION STATUTE CONFLICTS WITH BOTH,

THE GEORGIA & TENNESSEE STATE SUPREME

COURT'S.

Brooks v. Parkerson, 265 Ga. 189; 454 S.E.2d

769; 1995 holding grandparent statute

unconstitutional under both their state & federal

constitutions. Brooks v. Parkerson, 265 Ga. 189, 195;

454 S.E. 2d 769, 1995 Ga.

“the relationship between parent & child is

paramount. For this reason I cannot believe in

either the constitutionality or the political

correctness of any law that allows a court”, “

to pierce the delicate, complex & sacred unity

of parent & child against the wishes of fit

parents without a showing of absolute

necessity. While I have no quarrel with

governmental interference where a parents

conduct may injure a child emotionally or

physically, interference on less than those

grounds is contrary to our common law

tradition of protecting the nuclear family as

the foundation of society & leaving fit parents,

the exclusive right to determine what is in

their children’s best interest”.

Brooks v. Parkerson 265 Ga. 189, 194 454 S.E.2d

769, 1995 Ga.

10

“However, even assuming- grandparent

visitation promotes the health & welfare of the

child, the state may only impose _ that

visitation over the parents objection on a

showing that failing to do so would be harmful

to the child. It is irrelevant, to _ this

constitutional analysis, that it might, in some

instances be “better” or “desirable” for child to

maintain contact with a grandparent. The

statute in question is unconstitutional under

both state & federal constitutions because it

does not clearly promote the health or welfare

of the child & does not require a showing of

harm before state interference is authorized”.

Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993)

“we believe that when no substantial 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”.

Hawk v. Hawk, 855 S.W.2d 573, 580 (Tenn. 1993)

“By holding that an initial showing of harm to

a child is necessary before the state may

intervene to determine the “best interests of

the child”, we approve the reasoning of both

Tennessee & federal cases that have balanced

various’ state interests against parental

privacy rights. Implicit in Tennessee case &

statutory law has always been the insistence

that a child’s welfare must be threatened

before the state may intervene in parental

decision-making”.

Hawk v. Hawk, 855 S.W.2d 573, 580, 581 (Tenn.

1993) “The requirement of harm is the sole protection

that parents have against pervasive state interference

in the parenting process.”

The New Jersey Grandparent Visitation Statute

makes no mention of, nor does it require a showing of

1]

harm to the child in question before state intervention

is authorized. The respondent(s) attorney in his Letter

Brief in Opposition to our Petition for Certification to

the Supreme Court of New Jersey could only cite a

1994 Chancery Division case upholding the

constitutionality of the Grandparent Visitation Statute.

Lastly, in that same Letter Brief, the respondent(s)

attorney conceded that parents have a fundamental

right to raise their children without governmental

interference.

Ill. THE NEW JERSEY SUPREME COURT’S DENIAL

OF CERTIFICATION SANCTIONED BOTH, A

SERIOUS DEPARTURE FROM THE TRIAL COURT,

& VIOLATION OF OUR RIGHT’S TO EQUAL

PROTECTION & DUE PROCESS UNDER THE

LAW.

When the New Jersey Appellate Court overturned

the trial court & held that when there is an objection

from a natural parent to an adoption in a contested

case the trial court must order an adoption agency

investigation report, an attorney, or guardian ad litem,

or both for the child, it contravened the law, violated

the doctrine of separation of powers & was violative of

our rights to equal protection & due process. The New

Jersey Supreme Court’s failure to remedy the situation

both, sanctioned the Appellate Court making new law

& violation of our right’s under the law. The New

Jersey Supreme Court also, sanctioned the Appellate

Court’s serious departure from the trial court ruling.

In addition, when the Appellate Court applied

Codified Law in it’s analysis of this matter, which was

not in effect at the time of trial it once again,

contravened the law, violated our right’s to equal

protection & due process. Once again, The New Jersey

Supreme Court’s failure to remedy the situation

sanctioned both, the Appellate Court’s violation of our

ee

12

rights & marked a serious departure from the trial

court ruling.

CONCLUSION

For the foregoing reasons, the Petition for

Certiorari should be granted. The judgement of the

New Jersey Appellate Court should be vacated & the

judgement of the trial court should be re-affirmed. In

addition, the New Jersey Grandparent Visitation

Statute should be held unconstitutional & the law

should be struck down.

Respectfully submitted, j

Gregory J. Giberna

Vanessa M. Giberna

901B. Merritt Dr.

Somerville, N.J. 08876

(908) 281-7363

“Pro Se” for Petitioner(s)

i.

Index to Appendix Materials

Somerset County Trial Court Letter Opinion dated

February 6, 1998, dismissing Bennie Jean Carter’s

objection to Complaint for Adoption ................. App. 1

Somerset County Trial Court Order dated February 6,

1998, dismissing Bennie Jean Carter’s objection to

Complaint for AGOGtGO0 ois ccsescscsssccacaccsacsercaces App. 13

New Jersey Appellate Division Opinion dated October

23, 1998, reversing Trial Court Order ............. App. 15

New Jersey Appellate Division Order dated November

2, 1998, denying our Motion for Reconsideration of

reversal of Trial Court Order .................ceceeeeeee App. 35

New Jersey Supreme Court Order dated August 3,

1999, denying our Petition for Certification ..... App. 36

New Jersey Adoption Statute N.J.S.A. 9:3-48 ..App. 37

New Jersey Grandparent Visitation Statute N.J.S.A.

Wak lB scsicdnsaanespacraaseligaasane eae App. 38

App. 1

SOMERSET COUNTY TRIAL COURT

CHANCERY DIVISION-FAMILY PART

IN THE MATTER OF THE ADOPTION

OF DEREK CHRISTOPHER BISCHOFF

BY GREGORY J. GIBERNA.

Somerset County Trial Court Letter

Opinion Dismissing Bennie Jean Carter’s

Objection to Complaint for Adoption.

(Filed Feb. 6, 1998)

Before Helen E. Hoens Judge.

App. 2

Before the Court is the complaint filed by plaintiff,

G.G. in which he seeks to adopt an infant, D.B. It is

undisputed by all parties that D.B. is the natural child

of V.B.G. and of B.C. The complaint was filed in

Middlesex County in 1996, but was. thereafter

transferred to Somerset County, as this is the County

in which the natural mother and the infant reside with

the plaintiff. Prior to the transfer, the infant’s natural

father, B.C., had filed his written objection to the

adoption and a date for a hearing was set. In addition,

shortly prior to the filing of the complaint, however,

B.C., the infant’s natural father and his mother,

B.M.C., who is the mother of B.C. and the paternal

grandmother of infant D.B., instituted actions in

Middlesex County, their County of residence, seeking

to enforce their respective rights to have visitation

with the infant, which access had been denied to them

by G.G. and V.B.G. The Family Division Judge in

Middlesex County ordered that a_ visitation

investigation be conducted and entered an Order

permitting limited and supervised visitation by B.M.C..,

the infant’s paternal grandmother. Prior to the

commencement of any visitation, however, the

Middlesex County Judge stayed all further

proceedings in the Middlesex County actions, and

ordered that those matters be transferred and

consolidated with the pending complaint for adoption,

previously transferred here.

On the first date set by this Court for a hearing,

the infant’s paternal grandmother requested that she

be granted an opportunity to consult with and be

represented by an attorney, and for reasons expressed

on the record on that date, a new date for a hearing

was set. In short, the reasons for the adjournment

were essentially that on the initially scheduled date,

the parties confirmed for the Court their inability to

reach any consent on any of the issues and the Court

;

App. 3

set the new date with the understanding that there

would be sufficient time on that date for all parties to

appear and be heard on all of the issues. On the

second date set by the Court, the infant’s natural

father, B.C. did not appear and the infant’s paternal

grandmother advised the Court that he had been

remanded to the custody of the Middlesex County Jail

for an indeterminate amount of time. Over the

objections of plaintiff G.G., the Court set a new date

for the hearing, selecting a date on which the Court

would arrange to have B.C. transported to the

Courthouse from the Middlesex County Jail and at

which time any and all issues would be heard.

All parties, including the plaintiff G.G., the natural

mother of the infant, V.B.G., the natural father B.C.

and the paternal grandmother, B.M.C. appeared on

the next scheduled date. As the rights of B.M.C. in

this case may be entirely derivative of the rights of

B.C., see J. & E. v. M.& F., 157 N.J.Super. 478 (App.

Div. 1978), cert. denied, 77 N.J. 490 (1978), the Court

heard first the issues raised in the complaint for

adoption. For the purpose of this phase of the hearing,

the natural father B.C. was represented by counsel

and plaintiff G.G. proceeded pro se. The Court heard

the testimony of V.B.G. and B.C. and received a

variety of documents offered into evidence by the

parties. In addition, the Court heard the arguments of

plaintiff G.G. and of counsel for B.C. and agreed,

based upon the request of G.G., to review and

consider as part of the evidence the report prepared by

the Middlesex County Probation Department

concerning the visitation investigation, and the

objections filed by G.G. to that report in the Middlesex

proceeding. The Court has had ample opportunity to

hear the testimony of the witnesses and review the

evidence offered by the parties. Now before the Court

is the plaintiff's complaint for adoption and B.C.’s

objection thereto.

App. 4

Following the close of the testimony and the

concession of all parties on the record that they had

no further evidence or testimony to offer, plaintiff G.G.

filed with the Court a motion seeking to have the

undersigned judge recuse herself and order a new

hearing before another judge or, in the alternative,

staying all proceedings pending appeal of a denial of

the recusal motion. Thereafter, plaintiff G.G., filed

with the Court a further document seeking to call to

the Court’s attention that certain of the documents

marked for identification by B.C. but not offered into

evidence were forgeries and seeking to have the Court

conduct an independent investigation into the claimed

forgeries. We address this post-hearing motion and

application first.

The motion is based upon the argument of

plaintiff pro se that he was not treated “properly”

during the hearing, that he was disadvantaged

because he was proceeding without an attorney, and

that he was treated in a hostile and confrontational

manner by the Court. He believes that the Court

exhibited bias towards him even prior to the time

when B.C. retained an attorney and that, as a result,

his complaint will be unfairly judged. He believes that

evidence of this bias includes the Court’s refusal to

dismiss B.C.’s objection to the adoption outright when

B.C. did not appear on the scheduled trial date. In

general motions for recusal are raised well before the

close of testimony, a matter which complicates the

analysis of this application greatly. To the extent that

G.G. believed well in advance of the appearance for

the testimony that he was being treated unfairly, his

silence, maintained until after the close of testimony

operates as a waiver of this post-trial motion. Nor is

the underlying basis for his concern, namely that he

was not being permitted to present his evidence as he

chose, an accurate recitation of the events on the day

when the evidence was received. In point of fact, G.G.

App. 5

was so adamant that he be given wide latitude to

revisit and repeat areas of testimony and assist the

natural mother by leading her through her testimony,

that the Court eventually permitted him to proceed as

he demanded. To the extent that he believes that he

was disadvantaged in some fashion, a reading of the

entire transcript will demonstrate that the very

opposite occurred. Moreover, the arguments he raises

relating to the conduct of the hearing and to the

Court's earlier refusal to deny B.C. an opportunity to

be heard are matters best left to the Appelate Division,

particularly in light of the late time when they were

raised. For these reasons, the motion for recusal and

similar relief is denied.

Turning to the issues raised in the complaint, we

make the following findings of fact and conclusions of

law. V.B.G. met B.C. when she was about 17 or 18

years old, at a time when they both had jobs at a

supermarket. They dated for approximately 6 months,

then stopped seeing each other for a time, only to

resume their relationship several months later. In

1990, V.B.G. became pregnant and told B.C. that she

wanted to keep the child. She wanted the relationship

to continue and the couple resided together briefly in

the Fall of 1990. She left after a heated argument and

went to live with her parents. While B.C. wanted her

to return to live with him and asked her to do so, she

refused. The two spoke on the telephone from time to

time thereafter, but she was disappointed that he did

not offer her either financial or emotional support as

the date of the birth approached. On December 1,

1990, the day when the infant was born, he called her

home to speak with her and learned that she was in

labor, after which time he went to the hospital and

saw her. Shortly thereafter, he was invited to her

home by her parents to see his son. He spent between

one hour and one and one-half hours there visiting.

Within a brief time after this visit, she asked him to

App. 6

help her to support the child and they agreed that he

would pay to her $50 each week for this purpose. He

sent to her three checks, dated December 15,

December 28, 1990 and January 5, 1991 each in the

amount of $50 and each of which was returned by the

bank for insufficient funds. From that time forward,

he has not paid nor has he offered to pay anything

toward the support of the child. He has not attempted

to establish a bank account nor has he attempted to

send money to third parties for the child. He has not

sent cards or gifts, although from January of 1991

onward, he has telephoned her from time to time and

ask about the child. During each of these calls, the

subject of financial support would be raised and the

conversation would be terminated. As time went on,

the gaps between these calls increased. In early 1994,

B.C. saw V.B.G. while she was driving and attempted

to stop her. When she refused to stop, she called out

to him to telephone her, but he did not. In the Fall of

1995, after she and G.G. had married and moved to

their current home, B.C. came to their door and asked

to speak with V.B.G. She refused to see him and

plaintiff G.G. sent him away.

B.C. concedes that the three checks did not clear

and that he had never paid any monies for the

support of the child. He contends that he was

prevented from seeing the child and that his efforts to

give the child a New Year’s gift in 1991 were rejected.

He offered an insurance card which was effective in

1992 while he was employed at Sears and which

covered this infant, but concedes that he never

advised V.B.G. that the company had provided health

coverage for the child and that he has never since

procured any insurance for the child.

The probation report prepared in Middlesex

County and the written responses prepared by G.G.

revealed additional pertinent information.

Significantly, B.C. conceded that he has spent little

App. 7

time with the infant. He conceded that from 1992

through 1994, he was involved in a relationship with a

woman which caused his life to fall apart and during

which time he made little or no effort to have any

contact with the infant. He concedes all of the facts

relating to his 1996 conviction and sentence and while

he then expressed an intention to turn his life around,

by the time of the hearing in this matter, he had been

re-incarcerated as a result of an inability to complete

the ISP requirements.

We address first the corollary issue of the rights of

B.M.C., which rights we have earlier described as

derivative of those of B.C. While there are situations in

which a grandparent may indeed have rights of

visitation with an infant which in effect are greater

than the rights of the natural parent, those cases

involve questions of the rights of grandparents who

have established and maintained a relationship with

the child in question which predate the child’s

proposed adoption. See Mimkon v. Ford, 66 N.J. 426

(1975). In the case before this Court, the ground on

which the adoption is being contested is centered on

the acts of B.C. in relationship to the child. In this

case, moreover, it is conceded by B.M.C. that she has

never seen or visited with the child. In this context,

then, the rights that she has must rest upon the

rights of B.C., if any.

The statute governing adoptions and objections

thereto is N.J.S.A. 9:3-46, which provides as follows:

a. A judgment of adoption shall not be entered

over an objection of a parent communicated

by the court by personal appearance or by

letter unless the court finds:

App. 8

(1) that the parent has substantially failed to

perform the regular and expected parental

functions of care and support of the child,

although able to do so, or (2) that the parent is

unable to perform the regular and expected

parental functions of care and support of the

child and that the parent’s inability to perform

those functions is unlikely to change in the

immediate future. The regular and expected

functions of care and support of a child shall

include the following:

(a) the maintenance of a relationship

with the child such that the child

perceives the person as his parent;

(b) communicating with the child or

person having legal custody of the

child and visiting the child unless

visitation is impossible because of the

parent’s confinement in an institution,

or unless prevented from so doing by

the custodial parent or _ other

custodian of the child or a social

service agency over the birth parent’s

objection; or

(c) providing financial support for the

child unless prevented from doing so

by the custodial parent or other

custodian of the child or a social

service agency.

A parent shall be presumed to have failed

to perform the regular and expected parental

functions of care and support of the child if

the court finds that the situation set forth in

paragraph (1) or (2) has occurred for six or

more months. :

App. 9

Judged against this language, there can be no

doubt but that B.C. has “substantially failed” to

perform the “regular and expected parental functions”

relating to this child and that he has been, at the very

same time, “able to do so”. In this regard, the ability to

act as a parent has little to do with the cooperation of

the custodial parent or her new spouse. Rather B.C.

has at all times been able to perform the duties of a

parent. He has been regularly employed and thus able

in that sense to perform as a parent, he was given

numerous opportunities by V.B.G. and her parents to

visit with the child early on in the child’s life, as a

result of which he was indeed given the opportunity to

be involved in the child’s life. His suggestion that he

was thwarted or prevented by V.B.G.’s parents, or

later, her spouse, from access to the child is only true

to the extent that we look to times in the child’s life

that are very recent. Significantly, the very language of

the statute creates, on this record, a presumption

against B.C. The statute presumes a failure to perform

the regular and expected functions of a parent if one

has failed to act for a period of six months. Even

accepting as true B.C.’s testimony as to his efforts,

there are not one but several gaps of significant

lengths of time sufficient to give rise to the

presumption against him. Indeed, the investigation

report prepared in Middlesex County demonstrates a

two year gap during which time he concedes he made

no effort to engage in any contact with this child.

Equally significant to this case is the fact that the

wording of the statute makes clear that the test is one

of “substantial” failure, not absolute and complete

failure. Here, there can be no question but that B.C.’s

only efforts to create or maintain any relationship with

the child were short-lived and sporadic. His unilateral

cessation of providing any funds for the child, his

giving the infant’s mother not one but three checks

App. 10

which did not clear, his decision to leave V.B.G.’s

residence after seeing the child only briefly, his long

absences from any passing effort to have any contact

or communication with the child all operate to support

the conclusion that he has substantially failed to

perform the regular and expected duties of a parent.

Nor can he excuse this failure by arguing that his

efforts were thwarted. Even in the face of the

objections of V.B.G. or others, he could have acted so

as to meet the test of the statute. He could have set up

his own bank account for the child, simply notifying

V.B.G. of that fact in writing. He could have mailed

checks to the infant’s mother. He could have sent gifts

or cards to acknowledge the child’s birthdays or

holidays. He could have made regular calls or visits.

He did none of these things. B.C. having substantially

failed to perform the regularly expected duties of a

parent cannot therefore object to the complaint for

adoption filed by G.G. For the foregoing reasons, we

do not address the alternate ground of the statute,

namely the issue of B.C.’s future ability to so perform.

Finally, we note that B.C.’s attorney argued that

the proper focus of this analysis should be the period

following the filing of the complaint for adoption, and

that as a result, the Court should look only to events

following July, 1995. In addition, we note that his

attorney argued that the recommendation of the

probation report that visitation should be permitted in

an effort to provide B.C. with an opportunity to

develop a relationship with the child should act as an

estoppel of this Court reaching a contrary conclusion.

First, we note that regardless of which time frame we

were to utilize, the result here would be the same.

Apart from the recent effort, initiated by B.M.C.’s

desire to secure her right to visit with the child, B.C.

has done virtually nothing to seek to establish or

maintain any relationship with the child. Viewed in

App. 11

terms of the many efforts he could have pursued

alluded to in this opinion, he has substantially failed

to act for any appreciable period of time. Indeed, he

has done nothing for a substantial time period both

pre and post 1995 and as a result cannot meet the

test of the statute. Moreover, the focus of the

probation report regarding visitation was not and

cannot be the same as the focus of the inquiry that

this Court is obligated to undertake in determining the

issues raised in the complaint of G.G. for adoption.

The focus of those proceedings and of that

investigation is whether it would be in the child’s best

interest going forward to permit visitation and to

permit an effort to establish a relationship. That

choice may appropriately be made with little regard to

a parent’s past behavior. B.C.’s concession to that

investigator that he had not attempted to see this

child for two years because his life was in disarray,

coupled with a hope for a brighter future and a

promise to reform were viewed in that context as

positive indications of concern for the child. The same

information in the context of NJ.S.A. 9:3-46,

however, is a concession of a failure to act for a

period in excess of 6 months, a disqualifying factor in

this proceeding.

Because the focus of the two proceedings is so

different, the prior decision cannot act so as to estop

this Court from deciding adversely to B.C. in this

proceeding. Nor can we say that the adoption statute

should be interpreted so as to require the Court to

focus only on acts following the filing of the complaint.

The appropriate time period for our analysis must be

broadly interpreted so as to permit fair evaluation of

all of the actions of the objecting natural parent

consistent with the statute’s essential purposes. The

suggestion that the recommendation that supervised

visitation be allowed cannot alter the fact, that as that

App. 12

report itself concedes, the natural father simply had

no relationship with the child and indeed has done

nothing to attempt to develop or maintain one.

For all of the foregoing reasons, the objection of

B.C. to the complaint for adoption by G.G. is

dismissed. An appropriate form of Order is enclosed

for the convenience of the parties. Counsel and

plaintiff G.G. shall contact the Surrogate’s Office to

retrieve their original exhibits at their earliest

convenience. The objection having been dismissed, the

matter will be listed for a hearing on the complaint for

adoption in the ordinary course.

App. 13

SOMERSET COUNTY TRIAL COURT

IN THE MATTER OF THE

ADOPTION OF DEREK

CHRISTOPHER BISCHOFF No. FA-18-33-97A

BY GREGORY J. GIBERNA.

ORDER DISMISSING BENNIE JEAN CARTER’S

OBJECTION TO COMPLAINT FOR ADOPTION.

(Filed Feb. 6, 1998)

This matter having come before the Court on the

application of G.G. for an Order dismissing the

objection to the adoption of the minor child D.B. by

the natural father of the child, B.C. & the Court

having heard the testimony of the parties November

12, 1997, & the court having read & considered the

post-trial application & briefs & evidence submitted by

all parties & for good cause shown,

IT IS on this 6 day of February, 1998

ORDERED, that for the reasons expressed in the

Court’s letter opinion dated February 6, 1998, the

objections of B.C. the natural father of D.B. the infant

to be adopted be & the same hereby are dismissed; &

it is further

ORDERED, that for the reasons expressed in the

Court’s letter opinion dated February 6, 1998, the

application of plaintiff G.G. for an Order of recusal, for

App. 14

new trial, for stay of proceedings & other relief is

denied.

/s/ H.E. Hoens,

H.E. Hoens

Judge

i

;

App. 15

APPELLATE DIVISION OF NEW JERSEY

IN THE MATTER OF THE ADOPTION

OF DEREK CHRISTOPHER BISCHOFF

BY GREGORY J. GIBERNA.

Appellate Court Letter Opinion

Reversing Trial Court Order

Dismissing Bennie Jean Carter’s

Objection to the Adoption.

(Filed Oct. 1, 1998)

Before Judges Wallace, Newman & Fall.

PER CURIAM:*

App. 16

In this appeal we examine the _ procedural

requirements in considering a stepparent adoption

over objection of the natural father and paternal

grandmother. V.B.G. gave birth to the child, D.C.B.,

out-of-wedlock on December 1, 1990. B.C. is D.C.B.’s

natural father, and B.M.C. is the child’s paternal

grandmother. G.G. is V.B.G’s husband, who now

seeks adoption of D.C.B. The natural father, B.C., and

paternal grandmother, B.M.C., appeal from an order

entered February 6, 1998, dismissing B.C.’s objection

to the adoption, and from the trial judge’s

determination B.C.M.’s grandparental rights are solely

derivative through B.C. Based on apparent procedural

irregularities in the record, we reverse, and remand for |

further proceedings consistent with this opinion. |

I.

The factual and procedural history of this matter

is complex, convoluted, and requires’ extensive

discussion to fully understand the _ procedural

deficiencies. V.B.G. met B.C. when she was 17 years

old. They dated periodically, and in 1990 V.B.G. and

B.C. conceived D.C.B. The couple attempted to

continue their relationship, cohabiting briefly in the

fall of 1990. After a heated argument, they separated,

V.B.G. leaving to reside with her parents. During the

balance of V.B.G.’s pregnancy, they had occasional

contact, but V.B.G. was disappointed B.C. failed to

offer financial or emotional support as the date of

birth approached.

After D.C.B.’s birth on December 1, 1990, B.C. did

visit with the child at the home of V.B.G’s parents.

During that period, B.C. agreed to pay $50 in weekly

child support. However, B.C. only sent three $50

checks, dated December 15, 1990, December 28,

1990, and January 5, 1991, all returned by the bank

for insufficient funds. B.C. has no further support

|

App. 17

payments, nor has he sent cards or gifts for the child.

From January 1991 onward, B.C. occasionally

telephoned V.B.G. concerning the child, but those

calls were negatively terminated after arguments

ensued over the issue of support. V.B.G. and G.G. met

about six months after D.C.B.’s birth. They were

married on July 15, 1995. B.C. also married in 1995.

In the fall of that year, B.C. and his wife went to the

home of V.B.G. and G.G. to speak with V.B.G., but

she refused to see him, G.G. sending them away.

The procedural history began January 18, 1996,

when the paternal grandmother, B.M.C., filed a

complaint in Superior Court, Chancery Division,

Family Part, Middlesex County, seeking visitation with

her grandson pursuant to N.J.S.A. 9:2-7.1. B.M.C.

had never seen D.C.B., but had sent the child

correspondence and money. V.B.G. and G.G. jointly

responded to that complaint with a motion seeking

denial of visitation or, alternatively, supervised

visitation; a mental health fitness evaluation of B.M.C.

prior to initiating visitation; an investigation and

background check on B.M.C.; and child support.

There were discussions between B.M.C. and V.B.G.

concerning visitation, resulting in B.M.C. withdrawing

her complaint, and the matter was dismissed on

January 30, 1996. The parties were unable to

facilitate their resolution of the visitation issue, so

B.M.C. filed a second grandparent visitation complaint

in Middlesex County on February 21, 1996. By order

entered April 18, 1996, the case was adjourned, and a

probation investigation ordered of V.B.G., B.M.C., and

B.C. in accordance with R. 5:8-1.

On May 7,1996, with V.B.G.’s consent, G.G. filed

a stepparent adoption complaint in Middlesex County,

seeking termination of B.C.’s parental rights and

adoption of D.C.B. Pursuant to N.J.S.A. 9:3-48a, the

court entered an order declaring D.C.B. a ward of the

court; vested custody of the child with G.G.: provided

App. 18

for service of the adoption complaint and order on

B.C.; set July 19, 1996 as the return date for a

preliminary hearing; and, pursuant to N.J.S.A. 9:3-

48(a) (2), dispensed with the appointment of an

approved agency to undertake an investigation and

report, with the understanding the court shall take

direct evidence at the time of the preliminary hearing

of the facts and circumstances surrounding the

adoption.

When the adoption complaint was filed, B.C. was

incarcerated on drug charges. He was served and, on

June 12, 1996, filed an objection to the proposed

adoption, and requested an adjournment due to his

imprisonment. B.M.C., her grandparent visitation case

still pending, also filed an objection to the adoption on

that date.

On January 13, 1997, V.B.G. filed and served a

motion in the grandparent visitation case, seeking

summary judgment dismissing B.M.C.’s complaint. In

the interim, on application of G.G. in the adoption

case, an order was entered on January 24, 1997

appointing Family Options Adoption Agency to prepare

a report, and also appointed counsel for the child.

However, appointed counsel’s request to be relieved of

that appointment was granted by the assignment

judge on February 10, 1997. The record does not

reflect appointment of substitute coursel for D.C.B.

On February 5, 1997, G.G. filed a motion seeking

a change of venue, based on residency of the child in

Somerset County. On March 7, 1997, the court

entered an order transferring venue of the adoption

case to Superior Court, Chancery Division, Family

Part, Somerset County. On March 19, 1997, an

amended order for preliminary hearing was entered in

the adoption case, declaring D.C.B. to be a ward of

the court; placing custody of the child with G.G. and

V.B.G. pending further order; dispensing with

appointment of an approved agency to investigate and

App. 19

report to the court; setting May 23, 1997 as the return

date for a hearing of the facts and circumstances

surrounding the adoption; and providing for service of

B.C. with the amended order at least 20 days prior to

the hearing date. The issue of counsel, or guardian ad

litem, for the child was not addressed.

Meanwhile, the custody and visitation probation

report ordered on April 18, 1996 was finally issued by

Middlesex County on March 7, 1997. It recommended

B.M.C. and B.C. be provided supervised visitation with

D.C.B., and that V.B.G. and G.G. consider placing

D.C.B. in counseling to address family origin issues,

and to assist the chiid in adjusting to the visitation

arrangement. The motion of V.B.G. seeking summary

judgment dismissing B.M.C.’s grandparent visitation

complaint was heard on the papers April 1, 1997, in

Middlesex County. With apparent reliance on the

probation report, the court executed an order on April

7, 1997, denying V.B.G.’s motion, and ordering

supervised visitation for B.M.C., at the home of V.B.G.

for one hour on alternate Sundays.

On April 8, 1997, V.B.G. filed a motion seeking an

order striking the probation report, followed by a

second motion filed on April 9, 1997, seeking

psychological evaluations of the child and all parties

at B.M.C.’s cost. On that same date, V.B.G. filed a

third motion, on an emergent basis, seeking a stay of

the April 7, 1997 grandparent visitation order,

pending completion of the psychological evaluations

sought, and conclusion of the pending adoption

proceeding. She also sought reconsideration of the

April 7, 1997 order denying her summary judgment

motion. The court entered an order on April 10, 1997,

Staying the grandparent visitation order, and directing

the motion for reconsideration be heard on May 1,

1997. As he was not specifically included in the

visitation ordered on April 7, 1997, despite being

included in the original probation investigation

App. 20

ordered April 18, 1996, B.C. then filed a separate

complaint in Middlesex County on April 11, 1997,

seeking visitation with D.C.B. On April 21, 1997,

B.M.C. filed a motion to lift the stay, seeking the

visitation granted in the April 7, 1997 order.

On May 1, 1997, an order was entered

transferring venue of the complaints of B.M.C. and

B.C. for visitation to Somerset County Superior Court,

Chancery Division, Family Part, and ordering they

may be consolidated with the stepparent adoption

case pending in Somerset County, upon further order

of that court. Accordingly, as of May 1, 1997, all

matters were pending in Somerset County.

On May 23, 1997, the court conducted a

scheduling hearing to determine procedure on the

adoption and visitation complaints. The court decided

to proceed first with a hearing on B.C.’ s objections to

the adoption, scheduling same to commence July 15,

1997. In the interim, the stay of visitation entered

April 10, 1997 was continued.

On June 24, 1997, G.G. filed a motion seeking an

order compelling all parties, and the child, to undergo

psychological evaluations to assist the court in

determining the adoption and visitation issues. B.C.,

who was released into the Intensive Supervision

Program (ISP) on July 20, 1996, was not able to

appear at the July 15, 1997 preliminary hearing

because he was reincarcerated on an ISP violation, so

the matter was adjourned. The court declined to order

psychological evaluations, determining it would first

focus on the “abandonment” basis for dismissal of

B.C.’s objections to the proposed adoption in N.J.S.A.

9:3-46a(1). By letter dated October 24, 1997, the trial

judge scheduled the adoption case for a preliminary

hearing on B.C.’s filed objections for November 12,

1997, and arranged for B.C., who was. still

incarcerated, to be transported to the court. The

hearing took place on November 12, 1997 in the

i

App. 21

presence of B.C., V.B.G. and G.G.., all appearing pro

se, and B.M.C., represented by counsel. The trial

judge focused on the issue of whether B.C.

substantially failed to perform the regular and

expected parental functions of care and support of the

child, although able to do so. See N.J.S.A. 9:3-46a(1).

The only witnesses testifying were the mother, V.B.G.,

and the natural father, B.C. G.G., the stepfather and

plaintiff in the adoption case, did not testify, and

B.M.C., through counsel, elected not to testify or call

witnesses. There is some confusion in the record

concerning whether B.M.C.’s counsel was also acting

as attorney for B.C. at the November 12, 1997

hearing. A review of the transcript would certainly lead

one to conclude that he was. The trial judge reserved,

indicating a written decision would be forthcoming.

On the very next day, November 13, 1997, G.G.

filed a motion seeking recusal of the trial judge; a new

hearing on the adoption issue; and a Stay of the

proceedings. On November 20, 1997, V.B.G. filed

similar motions for recusal in the visitation actions.

On February 6, 1998, the trial judge issued a seven-

page written decision, and _ executed an order

dismissing the objections of B.C. to G.G.’s stepparent

adoption, and denying the motions of G.G. and V.B.G.

for recusal, a new trial and a Stay of the proceedings.

While this order does not specifically address B.M.C.’s

objections to the adoption, or her claim for visitation,

the written decision states B.M.C.’s rights are

derivative, and must rest upon the rights of B.C., if

any.

The notice of appeal on behalf of B.C. and B.M.C.

was filed on March 24, 1998. The adoption proceeding

was adjourned, pending resolution of this appeal. G.G.

and V.B.G. filed two motions to dismiss this appeal,

which were denied. On appeal, B.C. and B.M.C.

present the following arguments:

App. 22

POINT I

THE TRIAL COURT ERRED WHEN IT

APPLIED A NARROW MECHANISTIC

LEGAL ANALYSIS TO DETERMINE

WHETHER TO _ DISMISS _ B.C.’S

OBJECTION TO THE ADOPTION.

POINT I

THE TRIAL COURT ERRED IN

APPLYING THE LAW BY

DETERMINING THAT B.M.C.’S

GRANDPARENT VISITATION RIGHTS

ARE DERIVATIVE TO THE NATURAL

FATHER B.C.’S PARENTAL RIGHTS.

POINT Il

THE PROCEDURE BELOW

RESULTED IN AN INFRINGEMENT

OF B.C.’S RIGHTS.

POINT IV

THE MATTER SHOULD BE

REMANDED BACK TO A NEW FACT

FINDER. |

II.

Appellants contend the trial judge erred in failing

to utilize the assistance of an approved agency

investigation, as contemplated by the adoption

statute. Under N.J.S.A. 9:3-48a, when the child

sought to be adopted has not been received from an

approved agency, the court shall appoint an approved

agency to make an investigation and submit a written

report evaluating the prospective adoptive parents and

the circumstances surrounding the _ proposed

adoption. The court is authorized by N.J.S.A. 9:3-

48a(4) to exercise its discretion when considering a

App. 23

stepparent adoption concerning the approved agency

investigation and report, as follows:

Whenever a_ plaintiff is a

stepparent of the child, the court, in

its discretion, may dispense with the

agency investigation and report and

take direct evidence at the

preliminary hearing of the facts and

circumstances surrounding the filing

of the complaint for adoption.

(N.J.S.A. 9:3-48(a) (4).)

In In re the Adoption of a Child by Mercado, 182

N.J. Super. 628, (App. Div. 1982), the stepfather of a

child sought adoption over the objections of the

natural father. The trial judge found there was a

willful and continuous failure on the part of the

natural father to exercise his parental obligations,

which failure was likely to continue, and terminated

his parental rights. Relying on N.J.S.A. 9:3-48a(4), the

trial judge did not order the agency investigation. In

reversing, we held that when there is an objection to

the adoption from a natural parent, it is inappropriate

to dispense with the agency investigation. Mercado, at

630. We also recognized the need for independent

representation for the child in a contested case.

Mercado, at 630-31. Appointment of counsel or a

guardian ad litem, or both, was particularly important

here, in view of the probation report recommending

visitation for the natural father and paternal

grandmother. We see no reason here to depart from

these established procedural guidelines.

There are basic and sound reasons for imposition

of these procedural safeguards. As we stated in the

recent stepparent adoption case, Adoption of Children

by G.P.B., 311 N.J. Super. 38 (App. Div. 1998):

App. 24

A birth parent’s right “to enjoy a

relationship with his or her child is

fundamental and_ constitutionally

protected,” In re Adoption of a Child

by D.M.H., 135 N.J. 473, 480, 641

A.2d 235, cert. denied, 513 U.S. 967,

115 S.Ct. 433, 130 L.Ed.2d 345

(1994). The right to conceive and raise

one’s child is deemed essential and is

far more significant than a property

right. New Jersey Div. of Youth and

Family Servs. v. A.W., 103 N.J. 591,

599, 512 A.2d 438 (1986). Therefore,

any inquiry regarding the termination

of parental rights must be analyzed in

light of the very strong protections

that are afforded to those rights.

D.M.H., supra.

(Id. at 42-43.)

In considering adoption over the objection of a natural

parent, a court must proceed with caution and

circumspection, fully evaluating parental misconduct

and, if appropriate, the welfare of the child. In _ re

Adoption of Two Children by J.J.P., 175 N.J. Super.

420, 426-27 (App. Div. 1980).

The standards governing an adoption over the

objection of a birth parent have been codified in

N.J.S.A. 9:3-46, recently amended by L. 1998, c. 20,

§2, effective September 11, 1998, which provides, in

part:

a. (I)n a contest between a person

who is entitled to notice pursuant to

section 9 of P.L.1977, c.367 (C.9:3-

45) objecting to the adoption and the

prospective adoptive parent, the

standard shall be the best interest of

App. 25

the child. The best interest of a child

requires that a parent affirmatively

assume the duties encompassed by

the role of being a parent. In

determining whether a parent has

affirmatively assumed the duties of a

parent, the court shall consider, but

is not limited to consideration of, the

fulfilment of financial obligations for

the birth and care of the child,

demonstration of continued interest

in the child, demonstration of a

genuine effort to maintain

communication with the child, and

demonstration of the establishment

and maintenance of a place of

importance in the child’s life.

A judgment of adoption shall be

entered over an objection of a person

who is entitled to notice pursuant to

section 9 of P.L. 1977 c. 36 (c.9:3-45)

communicated to the court by

personal appearance of by letter if the

court finds during the six month

period prior to the placement of the

child for adoption or within 120 days

after the birth of a child or prior to the

date of the preliminary hearing,

whichever occurs first, in the case of a

child placed for adoption as a

newborn infant:

(1) that the parent has substantially

failed to perform the regular and

expected parental functions of care

and support of the child, although

able to do so, or

App. 26

(2) that the parent is unable to

perform the regular and _ expected

parental functions of care and support

of the child and that the parent’s

inability to perform those functions is

unlikely to change in the immediate

future.

The regular and expected functions of

care and support of a child shall

include the following:

(a) the maintenance of a relationship

with the child such that the child

perceives the person as his parent;

(b) communicating with the child or

person having legal custody of the |

child and parenting time nghts, or |

unless prevented from so doing by

the custodial parent or _ other

custodian of the child or a social

service agency over the birth parent’s

objection; or

(c) providing financial support for the

child unless prevented from doing so

by the custodial parent or other

custodian of the child or a social

service agency.

A parent shall be presumed to have

failed to perform the regular and

expected parental functions of care

and support of the child if the court

finds that the situation set forth in

paragraph (1) or (2) during the six

month period prior to the placement of

—_----

App. 27

the child for adoption, or within 120

days after the birth of the chiid or

prior to the date of the preliminary

hearing, whichever occurs first, in the

case of a child placed for adoption as

a newborn infant.

In the case where the objecting parent

is incarcerated during the six month

period prior to the placement of the

child for adoption, relevant factors to

be considered in determining whether

that incarcerated parent has failed to

perform the regular and expected

parental functions or is unable to

perform the regular and expected

parental functions pursuant to this

subsection, shall include the extent of

the relationship which existed

between the parent and child prior to

incarceration, including financial

support; the efforts made to continue

a relationship during the

incarceration; the ability to

communicate and visit with the child

during incarceration, and the effect of

the communication and visitation on

the child’s development in terms of

providing nurturing and emotional

support.

(N.J.S.A. 9:3-46.)

These recent amendments represent a significant

clarification in the standards applicable when

considering an adoption over the objection of a natural

parent. The Legislature has made it clear the standard

in such a contest remains the “best interest of the

child”, requiring that a parent affirmatively assume

App. 28

the duties encompassed by the role of being a parent.

In making a determination whether a parent has

affirmatively assumed those parental duties, specific,

yet non-inclusive, considerations are listed in the

statute. The language in N.J.S.A. 9:3-46 has also been

modified by this amendment to make it clear a

judgment of aduption “shall” be entered over an

objection of a parent if the court finds the presence of

conditions set forth in N.J.S.A. 9:3-46a(1) or (2) during

the six-month period prior to the date of the

preliminary hearing. These recent changes also

provide specific factors to consider in cases where the

objecting parent is incarcerated during that six-month

period. These statutory changes will provide further

guidance to the trial court on remand.

We have previously held the listed parental

functions in the prior version of N.J.S.A. 9:3-46

should not be viewed as constituting an all-inclusive

list, and were provided by the Legislature as an

attempt to identify the core values of parenthood. In re

Adoption of a Child by W.P. and M.P., 308 N.J. Super.

376, 383-84 (App. Div. 1998). Further, we rejected the

notion that the Legislature intended to compel

automatic severance of parental ties if a parent cannot

perform one or more of the listed core functions for

the stated time period. Id. at 385. We noted therein:

Instead, termination hinges upon

whether continuation of the parental

relationship would place the child in

imminent danger of serious harm, and

the standards listed in the statute are

to be considered within that context.

(W.P. and M.P., at 386.)

The standards provided by the Legislature must be

considered within the context of whether continuation

of the parental relationship places the child in

|

App. 29

imminent danger of serious harm. Adoption of

Children by G.P.B., 311 NJ. Super. at 45. Nothing in

the recent statutory amendment alters these rulings.

In a private placement adoption, which category

includes _ stepparent adoptions, the _ overall

circumstances concerning the placement of the child,

the actions of all parties and their fitness, including

that of the person seeking adoption, must be fully

explored in order to properly apply the standards

contained in N.J.S.A. 9:3-46. This examination and

investigation should be accomplished by an

independent agency, and be not only from the

perspective of the birth parents and person seeking

the adoption, but also from the perspective of the

child, as seen through an independent representative,

whether that be by way of appointment of counsel for

the child in accordance with R. 5:8A, or through

appointment of a guardian ad litem pursuant to R.

9:8B, or both.

Here, the approved agency report was dispensed

with. The probation investigation ordered and received

is not an adequate substitute for same, as the scope of

the probation investigation was limited to the issue of

visitation, not placement for adoption. Although an

attorney was initially appointed for the child, he was

permitted to withdraw, and no replacement was

named. These are serious procedural irregularities.

Additionally, there was no analysis of whether B.C.’s

periods of incarceration had any impact on his failure

to perform the regular and expected functions of care

and support.

On remand, the trial judge should reconsider the

appropriateness of ordering the psychological

evaluations requested by G.G. in his motion filed June

24, 1997, to assist the court in evaluating the

adoption and visitation issues. This would provide the

court with additional information concerning fitness of

App. 30

all parties and the bonding and attachment of the

child to the parties. |

In view of these clear deviations from established

procedural standards, we are compelled to reverse the

order dismissing B.C.’s objections to the adoption, and

remand the matter for ordering an approved agency

investigation, appointment of an attorney or guardian

ad litem for the child, or both, and a new hearing. The

court shall also reconsider G.G.’s motion seeking

psychological evaluations.

III.

B.C. and B.M.C. contend the matter should be

remanded to a new fact-finder. A matter remanded

after appeal for a new trial should be assigned to a

different judge if the first judge had expressed

conclusions regarding witness credibility during the

original trial. See New Jersey Div. of Youth and Family

Services v. A.W., 103 N.J. 591, 617-18 (1986); In_re

Guardianship of R.G. and F., 155 N.J. Super. 186,

195 (App. Div. 1977); R. 1:12-1(d). Here, the

testimony was at variance in several areas, requiring

the trial judge to make findings of fact and

conclusions based thereon that necessarily involved

credibility determinations. Accordingly, it is |

appropriate for a different judge to conduct the

hearing on remand.

A careful review of the record reveals the volatility

of this case. This is not uncommon in family-related

matters. To an extent, it is understandable, as

emotions run high in cases where the stakes are of

such a significance. The trial judge properly handled

those very delicate and difficult aspects of the case,

and correctly denied the post-trial motions of G.G. and

V.B.G. for recusal.

;

i

is

’

App. 31

IV.

B.M.C. argues the trial judge erred in finding her

visitation rights were derivative of B.C.’s parental

rights. The trial judge ruled that because B.M.C. had

never seen or visited with her grandchild, any

visitation rights she had must rest upon the rights of

B.C. As we pointed out in Matter of Guardianship of

K.H.O., 308 N.J. Super. 432, 435-36 (App. Div.), certif.

granted, NJ. (1998):

Under the existing law,

termination severs all legally

mandated ties with the parent. We are

not so sure as to extended biological

family members, particularly

grandparents and siblings. Cf. S.M. v.

A.W., 281 N.J. Super. 63, 656 A.2d

841 (App. Div.), certif. denied, 142

N.J. 571, 667 A.2d 189 (1995)

(according maternal grandmother

rights to seek custody of grandchild

where deceased daughter’s parenting

deficiencies led to foster care.). Their

continued rights to court ordered

visitations, for instance, may very well

Survive termination of the parental

rights. See N.J.S.A. 9:2-7.1; R.K. v.

A.J.B., 284 N.J. Super. 687, 666 A.2d

215 (Ch. Div. 1995). But the

practicalities of such _ continued

contact with the extended biological

family may well discourage judicial

enforcement of such post-adoption

contact. See Mimkon v. Ford, 66 N.J.

426, 332 A.2d 199 (1975).

(Id., at 435-36 n.2.)

App. 32

In S.R. v. Div. of Youth & Family Services, 311 N.J.

Super. 431 (App. Div. 1998), we affirmed dismissal of

a grandmother’s complaint for custody filed

subsequent to termination of the parental rights of the

natural parents and reposing guardianship with the

Division of Youth and Family Services, noting that the

grandmother was aware of the _ guardianship

proceedings, yet failed to intervene. Here, B.M.C. filed

a complaint for visitation, and interposed an objection

to the proposed adoption. We have also ruled that

where grandparents have a_ direct, personal,

relationship with the grandchild, their rights are

considered independent of the parents’ rights. N.J.

Div. Youth & Family Serv. v. E.D., 233 N.J. Super.

401, 416 (App. Div.), certif. denied, 118 N.J. 232

(1989).

In our view, the issue of whether a grandparent is

entitled to visitation can only be answered through a

careful unalysis of the statutory factors set forth in

N.J.S.A. 9:2-7.1, where it remains the burden of the

grandparent to prove by a preponderance of the

evidence that the granting of visitation is in the best

interests of the child. The grandparent’s prior

relationship with the child is only one factor to

consider. It may be the dispositive factor, but must be

considered in conjunction with the _ remaining

statutory factors. On remand, the trial judge should

take evidence on, make findings on, and examine

these statutory factors in light of all the facts and

circumstances, including considering the

determination made concerning B.C.’s parental rights.

The weighing of these factors is a matter best left to

the discretion of the trial judge, the finder of fact.

V.

Since we have reversed and remanded based on

the procedural irregularities, we need not rule on

App. 33

the remaining arguments. However, we feel some

guidance would be helpful on the “abandonment”

issue.

The trial judge focused on whether B.C.’s actions

constituted an “abandonment” of his parental rights

under N.J.S.A. 9:3-46a(1). The determination of

abandonment is fact-oriented. In re Adoption of a

Child by D.M.H., 135 N.J. 473, 481, cert. denied, 513

U.S. 967, 115 S.Ct. 433, 130 L.Ed.2d. 345 (1994).

While In re Adoption of a Child by F.O. and W.O., 307

N.J. Super. 176, 184 (Ch. Div. 1997) and In re

Adoption of a Child by R.K., 303 NJ. Super. 182, 196

(Ch. Div. 1997) have held the natural parent’s

subjective mental state is no longer at issue in the

“abandonment” analysis, we have held to the contrary.

In re Guardianship of D.M.H., 309 NJ. Super. 179,

210-02 (App. Div. 1998); Adoption of Children by

G.P.B., 311 N.J. Super. at 45. We note there were

significant findings on the abandonment issue by the

trial judge which adequately addressed the

subjectivity requirement. It may very well be that

B.C.’s_ conduct constitutes sufficient reason to

terminate his parental rights. On remand, the

abandonment issue shall be reconsidered in light of

evidence presented at the new hearing. The recent

amendments to N.J.S.A. 9:3-46 provide additional

guidance.

VI.

In summary, we reverse the order dismissing

B.C.’s objections to this stepparent adoption and the

determination B.M.C.’s_ request for grandparent

visitation are solely derivative through B.C.’s rights,

and remand the matter for a new hearing. The trial

court shall order an approved agency investigation;

appoint an attorney or guardian ad litem, or both, for

the child; reconsider G.G.’s motion for psychological

App. 34

evaluations; and take evidence and make findings on

the criteria in N.J.S.A. 9:2-7.1 concerning B.M.C.’s

request for visitation.

Reversed, and remanded. We do not retain

jurisdiction.

App. 35

NEW JERSEY APPELLATE DIVISION

IN THE MATTER OF THE

ADOPTION OF DEREK

CHRISTOPHER BISCHOFF No.004023-97T5S

BY GREGORY J. GIBERNA.

ORDER DENYING RESPONDENT’S MOTION FOR

RECONSIDERATION OF REVERSAL OF TRIAL COURT

ORDER

(Filed Oct. 27, 1998)

THIS MATTER HAVING BEEN DULY PRESENTED TO

THE COURT, IT IS THIS 2D DAY OF November, 1998,

HEREBY ORDERED AS FOLLOWS:

MOTION BY RESPONDENT

- FOR RECONSIDERATION DENIED

/s/ J. E. Wallace, Jr.

J. E. Wallace, Jr.

APPELLATE COURT JUDGE

App. 36

SUPREME COURT OF NEW JERSEY

IN THE MATTER OF THE

ADOPTION OF DEREK

CHRISTOPHER BISCHOFF No. 47,017

BY GREGORY J. GIBERNA.

ORDER DENYING PETITION FOR CERTIFICATION

(Filed Dec. 14, 1998)

To the Appellate Division, Superior Court:

A petition for Certification of the judgement in A-

4023-97 having been submitted to this Court, and the

Court having considered same;

It is ORDERED that the petition for Certification is

denied, with costs.

WITNESS, the Honorable Deborah T. Poritz, Chief

Justice, at Trenton, this 3 day of August, 1999.

/s/ D. T. Poritz

D. T. Poritz

CHIEF JUSTICE

App. 37

9:3-48. Action on complaint for adoption; child not

received from approved agency.

a. When the child to be adopted has not been

received from approved agency, the prospective parent

Shall file with the court a complaint for adoption.

Upon receipt of the complaint, the court shall by its

order

(2) that whenever the plaintiff is a stepparent of the

child, the court may dispense with the agency

investigation and report and take direct evidence at

the preliminary hearing of the facts and

circumstances surrounding the adoption;

é

(4) If the plaintiff is a brother, sister, grandparent,

aunt, uncle, natural father, stepparent or foster

parent of the child, or if the child has been in the

home of the plaintiff for at least 2 years immediately

preceding the commencement of the adoption action,

and if the court is satisfied that the best interests of

the child would be promoted by the adoption the court

may dispense with such evaluation and final hearing

and enter judgement of adoption immediately upon

completion of the preliminary hearing.

App. 38

9:2-7.1. Visitation rights for grandparents or siblings.

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;

(S) 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

App. 39

(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.

App. 40

United States Constitution

Amendment XIV. Right’s to Privacy, Due Process &

Equal Protection Under the Law.

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.