RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4805-15T4

B.C.,

Plaintiff-Appellant,

v. 

NEW JERSEY DIVISION OF CHILD 

PROTECTION and PERMANENCY,

Defendant-Respondent.

____________________________

Argued telephonically March 17, 2017 —

Decided May 11, 2017

Before Judges Reisner, Koblitz and Rothstadt.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Hunterdon 

County, Docket No. FD-10-101-17.

Kenneth Rosellini argued the cause for 

appellant.

Andrea C. D'Aleo, Deputy Attorney General, 

argued the cause for respondent (Christopher 

S. Porrino, Attorney General, attorney; Ms. 

D'Aleo, on the brief). 

The opinion of the court was delivered by

KOBLITZ, J.A.D.

APPROVED FOR PUBLICATION

May 11, 2017

APPELLATE DIVISION
2 A-4805-15T4

B.C. seeks reversal of the Family Part judge's July 1, 2016 

order dismissing his complaint for grandparent visitation filed 

under the FD, non-dissolution, docket. At oral argument before 

us it became apparent that both sides now agree that the FD 

complaint should not have been dismissed. Although the parties 

have reached agreement on this point, we write this opinion to 

suggest the proper procedure for determining what contact B.C. 

should have with his grandchildren and to clear up any 

misunderstanding in the future regarding treatment of 

contemporaneous FN abuse and neglect and FD non-dissolution 

visitation complaints. 

B.C. and his wife1 have provided a resource home for their 

grandchildren during several lengthy placements by the Division 

of Child Protection and Permanency (Division). Most recently, the 

four children were in B.C.'s custody from January until June 2016, 

when the children were removed by the Division because both B.C. 

and his wife failed to cooperate with court-ordered psychological 

evaluations.

After the removal, B.C., represented by counsel, sought 

visitation with his grandchildren by filing an FD complaint and 

order to show cause seeking emergent relief. The Division 

 

1 B.C.'s wife, the maternal grandmother, is not a party to this 

action.
3 A-4805-15T4

responded to the FD complaint by stating it was invalid because 

of an ongoing FN action. The Division suggested a motion to 

intervene in the FN matter would be the proper procedure, although 

the Division made clear it would oppose such a motion. The judge 

hearing the FN complaint denied the emergent FD application and 

dismissed the FD complaint, noting the children were subject to 

an open FN matter and directing B.C. to "file a motion." 

B.C. interpreted this order as requiring him to file a motion 

to intervene in the FN action. He appealed, claiming the FD 

complaint was the proper means of filing a grandparent visitation 

complaint, pursuant to N.J.S.A. 9:2-7.1. The Division responded

that the trial judge appropriately denied B.C.'s request for 

emergent relief under the FD docket because the visitation sought 

was not emergent in nature. The Division, however, conceded at 

oral argument that dismissing the FD complaint was improper. 

We conclude that the procedure followed here failed to 

acknowledge the grandparents' separate legal rights under the 

grandparent visitation statute, N.J.S.A. 9:2-7.1, which they would 

ordinarily seek to assert in the FD docket. But, as illustrated 

by this case, we also acknowledge that the visitation issue is 

relevant to both the FN and FD dockets. We reverse and remand to 

allow the judge to consider the visitation request of B.C., either 

within the FN docket, or as a companion FD case. 
4 A-4805-15T4

Even if the issue is addressed in the FN docket, however, the 

FD docket number should be preserved to allow the grandparents to 

file an enforcement motion, if necessary, without involving the 

Division after the FN matter is resolved and dismissed. In 

general, the FD docket number should be maintained to preserve the 

FD plaintiff's right to pursue visitation.

B.C. and his wife are the maternal grandparents of four 

children; "Albert," the oldest, was thirteen years old when the 

FD complaint was filed.2 The Division has been involved with the 

family since 2008 due to concerns about physical abuse, domestic 

violence and substance abuse by the birth parents. 

The children were initially removed from their parents' 

custody in December 2012 and placed in the licensed resource home 

of their maternal grandparents. After seven months, the children 

were reunified with their mother, K.C., for five months before 

being returned to the grandparents for another eight months, after 

which they were again reunified with their mother. A month later, 

in January 2016, the children were once again removed and placed 

with their maternal grandparents. B.C. states that his 

grandchildren, particularly Albert, have been in his care so often 

 

2 Initials and pseudonyms have been used to protect the parties' 

identity. R. 1:38-3(d)(12).
5 A-4805-15T4

that he has become a psychological parent to them.3 The three 

youngest children have been returned to their mother while Albert

is living in an institutional setting.4 

On February 22, 2016, the judge entered an FN order directing

B.C. and his wife to "undergo psychological evaluation[s] as 

arranged by the Division." An April 2016 letter from a Deputy 

Attorney General to B.C.'s counsel stated the Division sought 

psychological evaluations because there is a "strong possibility" 

that B.C. and his wife's home may be the permanent plan for the 

children. The letter also stated that the Court Appointed Special 

Advocate5 reported a number of behaviors involving the grandparents 

 

3 See V.C. v. M.J.B., 163 N.J. 200, 223 (citations omitted) 

(stating the proof necessary to establish that one is a 

psychological parent: "(1) that the biological or adoption parent 

consented to, and fostered, the petitioner's formation and 

establishment of a parent-like relationship with the child; (2) 

that the petitioner and the child lived together in the same 

household; (3) that the petitioner assumed obligations of 

parenthood by taking significant responsibility for the child's 

care, education and development, including contributing to the 

child's support, without expectation of financial compensation . 

. . ; and (4) that the petitioner has been in a parental role for 

a length of time sufficient to have established with the child a 

bonded, dependent relationship parental in nature"), cert. denied, 

531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). 

4 For the purposes of this appeal, we allow the expansion of the 

record by the Division to include various redacted documents from 

the FN matter, although the better practice is to file a motion 

to expand the record. R. 2:5-5.

5 In J.B. v. W.B., 215 N.J. 305, 332 n.5 (2013), the Court stated:
6 A-4805-15T4

that were a "cause for concern." The letter included examples of 

psychological and development issues with three of the children. 

Albert had been diagnosed with symptoms of obsessive-compulsive

disorder, and there was a suggestion that the grandparents might 

be enabling or exacerbating his behavior. 

A May 2, 2016 FN order required that B.C. and his wife "shall 

follow through with the services for the children and attend the 

psychological evaluations schedule by the Division." A hearing 

was also scheduled for the end of the month to address the issue 

of psychological evaluations for B.C. and his wife.

The parties dispute what happened after this court date. B.C. 

states that the Division requested mediation and that he agreed 

and provided proposed dates. The Division does not address the 

issue of mediation, but instead contends that the grandparents 

continued to object to psychological evaluations. The Division 

also notes that during a June 2016 FN hearing, K.C., the mother,

 

N.J.S.A. 2A:4A-92 . . . authorizes a Court 

Appointed Special Advocate (CASA) program in 

each vicinage. See also Rule 5:8C

(authorizing appointment of special advocate

from CASA program to assist Family Part judge 

in determining best interests of child); 

Administrative Directive #05-13 (July 16, 

2013) (noting that CASA volunteers gather 

information about children who have been 

removed from their homes due to abuse or 

neglect and present that information to 

court).
7 A-4805-15T4

did not object to removal of the children from her parents' home, 

or the court's order that no one would inform the grandparents of 

the removal plan. 

On June 14, 2016, the children were removed by Division 

caseworkers and police while attending a dental appointment for 

two of the children. B.C. alleged that the children, particularly 

Albert, "were visibly upset and traumatized by the forcible 'Big

Brother' type removal." The Division failed to make any 

arrangement for the children to communicate or visit with the

grandparents after the removal. On July 1, 2016, B.C. filed his

FD complaint and order to show cause.

In his FD complaint, B.C. stated that he was the "grandparent, 

caretaker and psychological parent for [his daughter's] children 

for several years, and particularly as to [Albert]". He stated 

that he had "been acting as the caretaker for the children for 

over a year in connection with [the FN matter] . . . in which [the 

Division] removed the children from their parents['] custody, but 

in which no permanency plan has been implemented." He stated that 

"[f]or reasons unknown" the Division removed the children "without 

making any arrangements for grandparent visitation," and that 

prior to this removal, he "ha[d] been in constant communication 

with the children their entire lives, and they have never gone 

this long without any visitation or communication." 
8 A-4805-15T4

In a letter to the judge, the Deputy Attorney General argued 

that the judge should reject the complaint because it was 

"[p]rocedurally . . . deficient on a number of levels." She stated 

"the [m]aternal [g]randparents have failed to file a [m]otion to 

[i]ntervene which would then give them standing to file a [m]otion 

seeking any relief." She argued that B.C. and his wife claimed

to be the psychological parents of the children, but that this

status "requires a legal finding . . . . [that] ha[d] not been 

made." Finally, she contended that the grandparents continued to 

refuse to have psychological evaluations. 

The judge denied B.C.'s order to show cause on July 1, 

writing: "The complaint in this matter is dismissed. The minors 

in this case are the subject of an open FN matter." She also 

handwrote under her signature, "Non-Emergent" and "File a motion." 

After our oral argument, the Division notified us and B.C. that 

the judge had signed an August 30, 2016 FN order without B.C.'s 

participation, directing that the children have no contact with 

the maternal grandparents.

"We accord deference to the Family Court's fact-finding in 

part because of the court's 'special jurisdiction and expertise 

in family matters.' However, that deference is perhaps tempered 

when the trial court did not hear testimony, or make credibility 

determinations based on the demeanor of witnesses." N.J. Div. of 
9 A-4805-15T4

Child Prot. & Permanency v. J.D., 447 N.J. Super. 337, 350 (App. 

Div. 2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

When a "trial court dismisse[s] plaintiff['s] complaint as a 

matter of law, our review of the court's decision is de novo."

R.K. v. D.L., 434 N.J. Super. 113, 142 (App. Div. 2014) (citing

Smerling v. Harrah's Entm't, Inc., 389 N.J. Super. 181, 186 (App. 

Div. 2006)). "A trial court's interpretation of the law and the 

legal consequences that flow from established facts are not 

entitled to any special deference." Zaman v. Felton, 219 N.J.

199, 216 (2014) (quoting Manalapan Realty, L.P. v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995)).

B.C. argues that as a full-time caretaker for the 

grandchildren on numerous occasions for extended periods of time, 

he made "a prima facie case for visitation under the FD docket, 

and therefore, the [t]rial [c]ourt erred in dismissing the case 

without a hearing and without any discovery." B.C. argues that 

the trial court erred in instructing him to file a motion to 

intervene in an open FN docket case "when the FD docket complaint 

was the proper procedure for asserting grandparent visitation in 

the State of New Jersey." On appeal, for the first time, the 

Division conceded that the judge could have heard the FD matter

with the FN matter or heard the two matters one after the other. 
10 A-4805-15T4

Two of the many Family Part docket types are the "FD [docket], 

which consists of child custody, visitation, child support, 

paternity, medical support, and spousal support in non-divorce 

matters; [and the] FN, which consists of abuse and neglect 

matters," as well as children in need of services. N.J. Div. of 

Youth & Family Servs. v. I.S., 214 N.J. 8, 22 n.3, cert. denied, 

___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013). In 

addition to general visitation and support, the "FD docket," which 

is also known as the "non-dissolution docket" includes actions for 

"non-parent relatives seeking custody, child support and/or 

visitation regarding minor children." R.K., supra, 434 N.J. Super.

at 130-31 (quoting Acting Admin. Dir. of the Courts Memorandum, 

"Revised Procedures," (September 2, 2011)). 

While no specific directive states how a judge should proceed 

in the case of an FD complaint filed during the pendency of an 

ongoing FN case, the court staff's Non-Dissolution Operations 

Manual for New Jersey states that: 

[i]f the search for previous case activity 

reveals a current abuse & neglect litigation 

case involving the child for whom 

custody/parenting time is being sought, Family 

Division staff should take the complaint and 

refer the case to the Judge handling the FN 

matter. The FN judge will determine the next 

action to be taken regarding the custody 

complaint.
11 A-4805-15T4

[New Jersey Judiciary Family Division: NonDissolution Operations Manual, § 1107 

(December 2007 Revised Edition).]

Judges who handle FN and FD dockets may choose to handle the 

matters separately or at the same time. See N.J. Div. of Youth & 

Family Servs. v. W.F., 434 N.J. Super. 288, 297-99 (App. Div.), 

certif. denied, 218 N.J. 275 (2014) (finding that in a case where

the trial judge consolidated FN and FD actions, the father's 

agreement to share joint legal custody of three younger children 

in an FD action resolved the FN matter); N.J. Div. of Child Prot. 

& Permanency v. C.S., 432 N.J. Super. 224, 226 (App. Div. 2013) 

(finding that although the grandparents sought custody of one 

grandchild under an FD docket, the court was required to perform 

a bonding evaluation considering the best interests of the child 

in light of an ongoing FN investigation); see also N.J. Div. of 

Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 22 (App. Div. 

2010); (noting in the context of the non-offending parent seeking 

to make a child's placement permanent during the course of a Title 

96 FN litigation, "the same Family Part judge must preside over 

the third-party actions that are inextricably intertwined with the 

Division's case").

 

6 Title 9 actions are brought by the Division "against the wishes 

of a parent when a child is abused or neglected." I.S., supra, 

214 N.J. at 14; see N.J.S.A. 9:6-8.21.
12 A-4805-15T4

Thus, the same judge, who is aware of all of the evidence 

surrounding the welfare of the children, should ordinarily preside 

over both proceedings, whether the FD complaint is heard at the 

same time as the FN matter or not. Hearing both matters 

simultaneously is not necessarily preferable. See I.S., supra, 

214 N.J. at 41-42 (stating "it is preferable for the court to 

ensure that there occurs separate and distinct proceedings" for a 

Title 307 FN action and an FM8 custody dispute, but recognizing 

this "procedure may not always prevail"). Because FD actions

should be heard at the same time or in close proximity to FN 

actions, as both parties now agree, the decision to dismiss B.C.'s 

FD complaint was not correct. 

On remand, the judge must decide the extent to which B.C. 

will have access to the FN proceedings. FN proceedings are 

confidential in nature. N.J.S.A. 9:6-8.10a. Although caregivers 

are notified of proceedings and allowed to make a statement in 

court, this does not confer the right to be present during the 

entire hearing. N.J.S.A. 9:6-8.19a; N.J.S.A. 30:4C-12.2; R. 5:12-

 

7 "Title 30 enables the provision of services to children in need." 

Id. at 14 (citing N.J.S.A. 30:4C-11 and -12).

8 The FM docket consists of complaints for dissolution matters 

including: divorce, dissolution of a domestic partnership, civil 

union dissolution, and palimony, as well as related relief in 

cases where a dissolution complaint has been filed. See id. at 

22 n.3.
13 A-4805-15T4

4(i). The judge must therefore decide what level of access is 

appropriate to serve the best interests of the children while also 

affording B.C. his right to be fully heard on his grandparent 

visitation application. 

As an alternative to filing the FD complaint, B.C. could have 

chosen to file a motion to intervene in the FN matter.

Intervention, however, is not the preferable method of proceeding. 

Although B.C. retained counsel, many families involved with the 

Division are without means to hire a lawyer, and the FD docket is 

constructed to make it easy for a litigant to file a complaint 

without the assistance of counsel. See R.K., supra, 434 N.J. 

Super. at 131-32; In re Adoption of J.E.V., 226 N.J. 90, 93-94 

(2016). Furthermore, motions to intervene in FN matters must be 

considered in light of statutory limitations. See N.J. Div. of 

Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 590 (App. Div. 

2011). Although not the preferred method of proceeding, we will 

briefly discuss the consequences of filing a motion to intervene. 

Intervention as of right is granted when an unnamed party 

meets the following requirements:

(1) "claims an interest relating to the 

property or transaction which is the subject 

of the action," (2) shows she "is so situated 

that the disposition of the action may as a 

practical matter impair or impede the ability 

to protect that interest," (3) demonstrates 

her "interest is [not] adequately represented 
14 A-4805-15T4

by existing parties," and (4) files a "timely" 

application to intervene. 

[Id. at 590 (quoting R. 4:33-1).]

A permissive intervention may be granted in the discretion 

of the court to "anyone . . . if the claim or defense and the main 

action have a question of law or fact in common." R. 4:33-2. 

Permissive intervention "requires a trial court to liberally 

determine 'whether intervention will unduly delay or prejudice the 

adjudication of the rights of the original parties.'" D.P., supra, 

422 N.J. Super. at 590-91 (quoting Am. Civil Liberties Union of 

N.J., Inc. v. Cnty. of Hudson, 352 N.J. Super. 44, 70 (App. Div.), 

certif. denied, 174 N.J. 190, 803 (2002)).

B.C. also seeks discovery. We stated in D.P. that although 

resource parents are entitled by statute to notice and the right 

to speak at hearings concerning the child, they have "no legal 

claim sanctioning their right to discovery or intervention in a 

best interests hearing." Id. at 599, 586-87 (citing N.J.S.A. 9:6-

8.19a, N.J.S.A. 9:3-45.2, and N.J.S.A. 30:4C-12.2).

B.C. does not seek custody of Albert, who remains in an 

institutional setting. If, however, B.C. were found to be Albert's 

psychological parent, he would be in a different position than the 

resource parents in D.P. who sought to intervene in court 

proceedings involving the best interests of an unrelated child 

placed in their home. Should the court find that intervention was 
15 A-4805-15T4

appropriate, B.C. would become a party to the FN case and entitled 

to participate fully. 

As a final matter, it is valuable to review the standards for 

determining grandparent visitation. Generally, N.J.S.A. 9:2-7.1 

requires grandparents seeking visitation "to prove by a 

preponderance of the evidence that the granting of visitation is 

in the best interests of the child." Because this standard 

encroaches upon the fundamental right of parents to make decisions 

regarding the care, custody and nurturing of their children, the 

State may intrude only to avoid harm to the child. Moriarty v. 

Bradt, 177 N.J. 84, 114-15, (2003), cert. denied, 540 U.S. 1177, 

124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Thus, when the parent 

has denied the grandparent visitation, to obtain a hearing the 

grandparent must make a prima facie case under the augmented 

standard of Moriarty "that visitation is necessary to avoid harm 

to the child." Id. at 117; Major v. Maguire, 224 N.J. 1, 6 (2016).

A showing of harm is not required when the party denying 

visitation has custodial rights but not "a constitutionally based 

presumption of parental autonomy." Tortorice v. Vanartsdalen, 422 

N.J. Super. 242, 252 (App. Div. 2011), certif. denied, 209 N.J.

233 (2012). In Tortorice, we affirmed an order granting visitation 

to a child's paternal grandparents over the objection of the 

maternal grandmother who had sole legal custody of the child and 
16 A-4805-15T4

had been designated the psychological parent. Id. at 244, 251-

52. Because the Division is the current legal custodian of Albert

but, like the grandmother in Tortorice, is not vested with the 

constitutionally-based presumption of parental autonomy, the lower 

burden of "best interests of the child" is appropriate with regard 

to B.C.'s request to visit Albert. 

The other three children are now living with K.C., with the 

Division retaining care and supervision only. Thus, absent the 

August 30, 2016 court order to the contrary, K.C. would be able 

to make grandparent visitation decisions with regard to those 

three children, although preferably in consultation with the 

Division. The court should reconsider the August 30 order because

it is not clear from the record that the judge considered K.C.'s 

constitutional right to determine grandparent visitation, as the 

parent and legal custodian of the three younger children.9 We 

remand for that reconsideration as well as consideration of B.C.'s 

FD complaint, either heard with the FN matter or heard separately 

by the same judge.

Reversed and remanded. We do not retain jurisdiction.

 

9 In a letter to us dated October 24, 2016, K.C.'s counsel expressed 

K.C.'s willingness to allow for "some grandparent visitation and 

phone contact in the future; with the time and date to be 

determined solely by her."