E.B.S. and G.S., Plaintiffs–Respondents, v. C.K., Defendant.

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Superior Court of New Jersey, Appellate Division.

E.B.S. and G.S., Plaintiffs–Respondents, v. K.M., Defendant–Appellant, C.K., Defendant.

DOCKET NO. A–5645–11T1

    Decided: April 03, 2014

Before Judges Parrillo and Kennedy.K.M., appellant, argued the cause pro se. Shari B. Veisblatt argued the cause for respondents (Obermayer Rebmann Maxwell & Hippel, attorneys;  Ms. Veisblatt, of counsel and on the brief;  Kevin J. Kotch, on the brief).

Defendant appeals a May 30, 2012 Family Part judgment finding that plaintiffs are psychological parents of Pamela 1 , defendant's then three-year-old great-granddaughter, and declaring that plaintiffs and defendant “shall be joint legal custodians [of the child] with [p]laintiffs being the primary residential parents, and [d]efendant the alternate residential parent.”   Defendant argues that the Family Part judgment is against the weight of the evidence presented at trial.   We disagree and affirm essentially for the reasons expressed by Judge Arnold B. Goldman in his thorough written opinion.   We add only the following.

Defendant's then sixteen-year-old granddaughter gave birth to Pamela in Texas in March 2009.   The biological father is unknown.   The Texas Department of Family and Protective Services notified defendant that unless she agreed to assume custody and supervision of Pamela, it would commence proceedings to remove the child from the granddaughter's custody and place the child elsewhere.   Consequently, soon after Pamela's birth, defendant traveled to Texas to get custody of the child and bring her back to New Jersey.   Defendant's granddaughter later executed a voluntary surrender of her parental rights to Pamela, and consented to defendant adopting the child.

Now, plaintiff, E.B.S., was the daughter of defendant's long-time friend, and she and her husband, plaintiff G.S., had undertaken a long, but unsuccessful, struggle to conceive a child themselves.   Defendant discussed with E.B.S. the possibility that plaintiffs would adopt Pamela, and even “encouraged plaintiffs to feel confident they would adopt the child,” as Judge Goldman found following trial.   Accordingly, E.B.S.'s mother paid defendant's airfare to Texas to get Pamela, and defendant brought Pamela to meet plaintiffs nine days after she returned.

Plaintiffs thereafter spent considerable time with Pamela, bought a crib for her, and even hired a nanny.   Defendant understood from the outset that plaintiffs envisioned becoming the parents of Pamela, and did not want to be simply temporary caretakers of the child.   Judge Goldman found that defendant provided such assurances to plaintiffs on a continual basis.

Pamela spent most of 2010 and a substantial part of 2011 with plaintiffs and became a part of plaintiffs' family.   During this time, defendant experienced the effects of a number of ailments, including high blood pressure, diabetes, thyroid cancer, and depression.   Defendant could not physically care for Pamela as a consequence of the combined effects of her illnesses and, during those periods when Pamela was in her care, defendant relied on her other daughters for assistance.

Due, in part, to defendant's ailments, plaintiffs began caring for Pamela on a full-time basis in May 2010.   Almost a year later, defendant called plaintiffs and demanded they return Pamela to her.   Plaintiffs were bewildered by defendant's demand, and attempted for a while to accommodate her, believing that defendant just wanted to spend some time with the child before defendant's ailments overcame her.

However, when it became clear to them that defendant had changed her mind about helping plaintiffs to adopt Pamela, they brought an action in the Family Part seeking judgment for custody of Pamela.   The complaint named defendant and her granddaughter as parties, and although the granddaughter was served with process, she defaulted.   The judge appointed a guardian ad litem for Pamela, and the parties agreed to a joint expert, Robert Rosenbaum, Ed.D., D.F.C.

Judge Goldman thereafter presided at a six-day bench trial during which various witnesses, including Dr. Rosenbaum, testified.   Dr. Rosenbaum testified that, over time, bonding developed between plaintiffs and Pamela like that between a parent and child.

Judge Goldman found the testimony of plaintiffs and their witnesses to be credible, and found that defendant “led [plaintiffs] to believe that she wanted them to ultimately adopt [Pamela].”   He added that “there can be little doubt that during the period of time that [p]laintiffs were becoming the psychological parents of [Pamela], [defendant] was encouraging them to do so.”   Judge Goldman further found that plaintiffs assumed the “financial obligations of parenthood” and “rearranged their personal and professional careers for the sake of the child.”

Having made these factual findings, Judge Goldman thereafter determined that plaintiffs met the four prong test for finding a third party to be a psychological parent established in V.C. v. M.J.B., 163 N.J. 200, cert. denied, 531 U.S. 926, 121 S.Ct. 302, 148 L. Ed.2d 243 (2000), and that plaintiffs were the psychological parents of Pamela.   Thereafter, Judge Goldman comprehensively evaluated the criteria for custody under N.J.S.A. 9:2–4(c), and, as noted, declared the parties to be joint legal custodians of Pamela, with plaintiffs as the primary residential parents and defendant as the alternate residential parent.

Defendant, in both her brief and oral argument, challenges Judge Goldman's findings of fact as against the weight of the evidence.   We disagree.

The scope of appellate review in family court decisions is limited.   See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448–49 (2012).   A trial court's findings “are binding on appeal when supported by adequate, substantial, credible evidence.”  Cesare v. Cesare, 154 N.J. 394, 411–12 (1998)(citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).   Appellate courts should give deference to the trial court's factual findings based on the trial judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters.  F.M., supra, 211 N.J. at 448;  Cesare, supra, 154 N.J. at 411–13.

The trial court's findings should not be disturbed unless they are so clearly mistaken or unsupported that our intervention is necessary to correct injustice.  N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted).   For child custody matters, “the conclusions of a trial judge are entitled to great weight and will not be lightly disturbed on appeal.”  DeVita v. DeVita, 145 N.J.Super. 120, 123 (App.Div.1976) (citation omitted).

Employing these standards, it is clear that Judge Goldman's fact-findings are supported by substantial credible evidence in the record and may not be disturbed on appeal.   Defendant's arguments do not warrant a contrary conclusion.   Judge Goldman was in the best position to make credibility determinations and he did so in a manner consistent with the evidence submitted by the parties.

In V.C., supra, 163 N.J. 200, our Supreme Court established a four-prong test for determining if an individual has become a child's psychological parent.  Id. at 223.   An individual must show that:  (1) the legal parent consented to and fostered the relationship between the third party and the child;  (2) the third party lived with the child;  (3) the third party performed parental functions for the child to a significant degree;  and (4) a parent-child bond has been forged.  Ibid.

The Court stated that prong one was “critical because it makes the biological or adoptive parent a participant in the creation of the psychological parent's relationship with the child.”  Id. at 224.   The Court further noted that “the fourth prong is most important because it requires the existence of a parent-child bond.   A necessary corollary is that the third party must have functioned as a parent for long enough time that such bond has developed.”   Id. at 226.

In his written opinion, Judge Goldman fully addressed the four-prong standard set forth in V.C. Judge Goldman found that bonding had occurred between plaintiffs and Pamela;  that defendant fostered a relationship between Pamela and the plaintiffs, and that “she led the Plaintiffs to believe that she wanted them to ultimately adopt the child;” that the relationship “was not a mere babysitting arrangement” and that the plaintiffs undertook the responsibilities of acting as Pamela's parents;  and finally that “Plaintiffs have functioned [as Pamela's parents] for a sufficient amount of time to have bonded.”

Thereafter, Judge Goldman thoroughly considered and applied the custody standards set forth in N.J.S.A. 9:2–4(c).  We see no reason to disturb his conclusions.  DeVita, supra, 145 N.J.Super. at 123.



FN1. We use fictitious names, or initials, for the individuals..  FN1. We use fictitious names, or initials, for the individuals.


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