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In re Adoption of a Child by W.P. and M.P.

April 06, 2000

IN THE MATTER OF THE ADOPTION OF A CHILD BY W.P. AND M.P.


The opinion of the court was delivered by: Garibaldi, J.

Argued October 26, 1999

On appeal from the Superior Court, Appellate Division.

The issue in this appeal is whether pursuant to N.J.S.A. 9:2-7.1 (the "Grandparent Visitation Statute"), grandparental visitation by a child's biological grandparents can be enforced over the objections of non-relative adoptive parents. To resolve that issue, we must determine whether an award of visitation under the Grandparent Visitation Statute conflicts with the public policy of the New Jersey Adoption Act, N.J.S.A. 9:3-37 to -56 (the "Adoption Act"), when a child is adopted by a non-relative intact family.

I.

V was born on August 11, 1994, to unmarried parents JH and TS. When V was six months old, JH placed her with nonrelatives WP and MP (the "adoptive parents," or "petitioners"). TS, the child's biological father, was incarcerated at that time. JH executed a consent for V's adoption and her parental rights were terminated.

The prospective adoptive parents filed a complaint for adoption. TS filed a formal answer objecting to the adoption on May 2, 1995. His parents, KS and MS (the "grandparents" or "respondents"), filed an application to intervene to obtain custody of V, to permit grandparental visitation, and to permit them to file a complaint for the adoption of V. The court granted the grandparents the right to intervene on the issues of grandparent visitation and custody if the adoption was not granted. However, their application to adopt was denied. In July 1995, TS was released from prison. He resided with his parents and worked for his father. On September 15, 1995, TS was granted visitation rights, and an order was entered allowing his parents to accompany him during his visitations. The order later was amended to make the grandparents' presence at TS's visitations mandatory. In January 1996, TS was arrested again, this time for possession and theft of handguns from his father's home. As a result of that action, TS's parents obtained a Final Restraining Order against him under the Domestic Violence Law.

Ultimately, TS's parental rights were terminated by court order over his objection. TS's appeal from that order was denied by the Appellate Division. In re Adoption of a Child by W.P. and M.P., 308 N.J. Super. 376, 387 (App. Div. 1998). The panel found that the record supported the court's conclusion that TS was unfit to act in a parental role and that continuation of TS's parental relationship would place V in substantial jeopardy. It noted TS's "chronic addiction to drugs," that he "has lived a life of crime," and that his "life has been punctuated by lengthy periods of incarceration." Id. at 386. It further observed, "TS's volatile relationship with his parents would place him in conflict concerning issues of child care, and thus their ability to assist in raising [V] would inevitably be subverted." Id. at 387 (emphasis added).

An adoption hearing was held in March 1998. By order dated April 1, 1998, the court directed that visitation by the grandparents on the third Sunday of every month was to continue. The order also directed the adoptive parents and the grandparents to submit briefs on whether visitation should continue following the final order of adoption.

On April, 1, 1998, the trial court entered a Final Judgment of Adoption that provided in part:

3. The entry of this Judgment of Adoption shall terminate all relationships between the child and the birth mother, [JH], and putative father, [TS], as well as all rights, duties, and obligations of any person founded on those relationships, including the rights of inheritance under the laws of intestacy of the State of New Jersey except for any rights which may have vested prior to the entry of this judgment; and

4. The entry of this Judgment shall establish the same relationships, rights, duties, and obligations between the child and the adopting parents as if the child was born to the adopting parents in lawful marriage, including all rights of inheritance under the laws of intestacy.

Subsequently, in an unpublished opinion, the trial court found that the Grandparent Visitation Statute was constitutional even as applied to "intact" families. The court also held that the Grandparent Visitation Statute and the Adoption Act were not inherently in conflict. Instead, the court found that when parental rights have been terminated, the statutory scheme required an assessment of continued grandparental visitation on a case-by-case basis, with the best interests of the child being the determining factor.

Given the existing relationship between the grandparents and V, the trial court held that there should be a hearing to afford the grandparents an opportunity to demonstrate that continued visitation will be in V's best interest pursuant to the factors enumerated in the Grandparent Visitation Statute. On October 29, 1998, the court entered an order continuing the ongoing visitation and scheduling a hearing for December 3, 1998, on the issue of what grandparental visitation, if any, should be ordered.

The adoptive parents filed a motion for leave to appeal that order, which the Appellate Division granted. In an unpublished opinion, the panel concluded that the interlocutory appeal had been improvidently granted. The panel determined that a ruling on the interplay between the Grandparent Visitation Statute and the Adoption Act would benefit from the best interests hearing called for by the trial court. Nonetheless, the Appellate Division offered numerous observations and tentative conclusions. Among them was the court's conclusion that the Adoption Act implicitly contemplates rights of post-adoption visitation by the biological family members.

We granted the adoptive parents' motion for leave to file within time and their motion for leave to appeal. 161 N.J. 328 (1999).

II.

We view this appeal as a question of statutory interpretation of the Grandparent Visitation Statute and the Adoption Act, as applied to the rights of biological grandparents who seek visitation over the objections of non-relative adoptive parents following the termination of the parental rights of the child's biological parents, either by consent or by court order. We conclude that such cases present an inherent conflict between the two statutes and find that the overriding public policy and statutory law regarding adoptions preclude the application of the Grandparent Visitation Statute when the child is adopted by intact, non-relative adoptive parents. Because we decide this case on statutory grounds, we do not address the constitutional argument raised by the parties.

A. The Grandparent Visitation Statute

In 1972, the New Jersey Legislature enacted its first version of the Grandparent Visitation Statute. N.J.S.A. 9:2-7.1 (L. 1971, c. 420, § 1, effective Feb. 1, 1972). The Visitation Statute, amended in 1973, afforded standing to grandparents to seek visitation only when "either or both of the parents of a minor child . . . is or are deceased, or divorced or living separate and apart in different habitats . . . ." N.J.S.A. 9:2-7.1 (as amended by L. 1973, c. 100, § 1)). The Statute was subsequently amended again in 1987 to allow siblings to apply for visitation with the child. N.J.S.A. 9:2-7.1 (as amended by L. 1987, c. 363, § 2). Thus, prior to 1993, "intact" families (those not disrupted by death or divorce) were not subject to statutory visitation rights of grandparents.

In 1993, N.J.S.A. 9:2-7.1, was amended to provide:

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;

(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;

(6) The good faith of the applicant in filing the application;

(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and

(8) Any other factor relevant to the best interests of the child.

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. [N.J.S.A. 9:2-7.1 (as amended by L. 1993, c. 161, § 1 (effective June 29, 1993)).]

The new statute expanded the scope of grandparents' visitation rights and removed the requirement that the birth parents be deceased or divorced. The amended Grandparent Visitation Statute became effective June 29, 1993.

B. N.J.S.A. 9:3-50 of the Adoption Act

Toward the end of 1993, the Legislature amended N.J.S.A. 9:3-50 of the Adoption Act, entitled "Effect of adoption; relationships of parent and child; rights of inheritance," to provide:

14.a. (Deleted by amendment, P.L.1993, c.345).

b. The entry of a judgment of adoption shall establish the same relationships, rights, and responsibilities between the child and the adopting parent as if the child were born to the adopting parent in lawful wedlock. For good cause, the court may direct the entry of judgment nunc pro tunc as of the date the action was instituted. In applying the intestate laws of this State, an adopted child shall have the same rights of inheritance as if born to the adopting parent in lawful wedlock.

c. The entry of a judgment of adoption shall:

(1) terminate all parental rights and responsibilities of the parent towards the adoptive child except for a parent who is the spouse of the petitioner and except those rights that have vested prior to entry of the judgment of adoption;

(2) terminate all rights of inheritance under intestacy from or through the parent unless that parent is the spouse of the petitioner or that parent or other relative had died prior to the judgment of adoption; and

(3) terminate all rights of inheritance under intestacy from or through the child which existed prior to the adoption.

d. The court may order counseling for the adopting parents. [N.J.S.A. 9:3-50 (as amended by L. 1993, c. 345, § 13, (effective April 27, 1994)).]

In revising N.J.S.A. 9:3-50, the Legislature deleted language appearing to terminate, in the adoption setting, the rights, duties and obligations of any person "founded upon" a relationship between the child and the biological parents. That amended statute became effective on April 27, 1994.

The grandparents assert that the Legislature, in revising the Adoption Act in 1993, intended to harmonize the Adoption Act with the Visitation Statute, enacted earlier in the same year. However, an examination of the legislative history of the two statutes reveals that the Legislature did not revise the Adoption Act to conform it, or harmonize it, with the Grandparent Visitation Statute, but amended the Adoption Act to facilitate adoptions.

C. Legislative History of the Grandparent Visitation Statute

On May 20, 1993, the General Assembly gave final approval to the Grandparent Visitation Statute. The bill was signed into law by Governor Florio on June 29, 1993, and became effective that same day. As previously stated, the new law eliminated the requirement that a child's parents be deceased, divorced or separated in order for a grandparent to apply for visitation rights. Instead, the statute provides that "a grandparent or any sibling of a child residing in this State" may apply for visitation, and it instructs the Superior Court to consider eight enumerated factors when determining whether the grant of such visitation is in the best interests of the child.

In its original form, the bill did not enumerate factors, requiring only that visitation be in the best interests of the child, with no guidance to the courts. In an apparent response to concerns that it constituted "a gross invasion of the sanctity and privacy of the family unit," the bill was amended, setting forth the eight factors as a way of limiting the intrusive elements of the act. See Letter from Cary B. Cheifetz, Esq., Skoloff & Wolfe, to Gov. Jim Florio (Dec. 22, 1992) (enclosing proposed bill setting forth specific criteria that protect child's best interests).

A precursor to the current statute Assembly Bill No. 1475 was prefiled for introduction in the 1990 session. That bill expressly would have required that the court consider the objections of a parent to an application for visitation by that parent's parent (i.e., the child's grandparent). See Assembly Bill No. 1475, Prefiled for Introduction in the 1990 Session. According to the bill statement accompanying Bill No. 1475, the purpose of that provision was to "ensure that the court does not grant visitation to a parent's own blood relatives without considering whether the parent may object to such visitation." Id. at 2 (emphasis added). Although that provision was not enacted in the final bill, it suggests that the Legislature believed that parental autonomy should be afforded deference. Moreover, we observe that the statement was written in terms of "a parent's own blood relatives." That suggests that, at least in its earlier form, the Grandparent Visitation Statute was not intended to apply to a non-relative adoption.

D. Legislative History of the Adoption Act

On December 16, 1993, almost 7 months after it enacted the Grandparent Visitation Statute, the Assembly gave final approval to Assembly Bill No. 1418/Senate Bill No. 685. That enactment revised and updated New Jersey's Adoption Act. The revisions, many in number, represented the first set of comprehensive changes to the adoption laws in nearly 14 years. The amendatory act contained twenty-three separate sections including revised N.J.S.A. 9:3-50.

The legislative history reveals that section 18 of the Adoption Act was the most controversial of all the revisions. That section, now found at N.J.S.A. 9:3-39.1, permits the use of intermediaries in non-agency settings to facilitate private adoptions. The passed-bill memorandum from Chief Counsel Scott Weiner to Governor Jim Florio summarized the amendatory sections of the bill without reference to the Grandparent Visitation Statute. See Memorandum from Scott A. Weiner, Chief Counsel, to Gov. Jim Florio (Dec. 21, 1993) (summarizing amendatory sections of Adoption Act).

The legislative history reveals that the amendments to N.J.S.A. 9:3-50 were a small part of a larger package of revisions to the adoption laws, the first set of such revisions in early 14 years.

Typically, the newspaper articles reported that:

New Jersey's adoption laws would be revised with the aim of providing more options for prospective adoptive parents, including allowing the use of unpaid intermediaries to arrange adoptions, . . . [Tom Johnson, Bill Voted to Update Adoption Laws as an Aid to Prospective Parents, Newark Star Ledger, Feb. 2, 1993.]

Another article reported:

State lawmakers on Thursday approved a measure that revamps New Jersey's adoption laws to legalize private adoptions and allow unpaid intermediaries to arrange adoptions. [Dunston McNichol, Adoption ...


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