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In re D.C.

September 3, 2009

IN THE MATTER OF D.C. AND D.C., MINORS.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Nos. FC-09-371-06 and FC-09-372-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 12, 2009

Before Judges Wefing, Parker and Yannotti.

N.J. appeals from a trial court order entered October 1, 2008. After reviewing the record in light of the contentions advanced on appeal, we affirm.

N.J. is the half-sister of twin girls, D.C. and D.C., who are four years old. N.J. and D.C. and D.C. have the same mother, N.C. N.C. has given birth to seven children, none of whom are in her care and custody. N.J. was raised by her grandmother, not by N.C. N.J. is in her late twenties and lives in Virginia. One of N.C.'s children, a baby girl, died in a Virginia hospital after having been placed on life support for injuries attributed to shaken baby syndrome.

N.C. moved to New York from Virginia, bringing her oldest son, H.C., now seventeen years old. He also suffered from shaken baby syndrome as an infant and has special needs. While N.C. lived in New York, she gave birth to another child, who is in the custody of his father.

N.C. then gave birth to the twins, D.C. and D.C. D.C. and D.C. lived with N.J. in Virginia for approximately two months after their birth. N.C. then moved to New Jersey with H.C. and the two babies. New York's counterpart to our Division of Youth and Family Services ("DYFS") alerted DYFS that the twins could be at risk. DYFS conducted an investigation, and on August 31, 2005, it removed the three children; on September 2, 2005, it filed a protective services complaint. DYFS placed D.C. and D.C. with a foster mother with whom they have resided ever since. H.C. was placed in a group home.

Eventually, DYFS filed a complaint seeking to terminate N.C.'s parental rights with respect to D.C. and D.C., and on December 20, 2007, the trial court entered an order terminating N.C.'s parental rights to D.C. and D.C. This court recently affirmed that order. N.J. Div. of Youth and Family Servs. v. N.C., No. A-2817-07 (App. Div. Jan. 15, 2009). The New Jersey Supreme Court has denied N.C.'s petition for certification. ___ N.J. ___ (May 19, 2009).

That guardianship litigation in New Jersey concerned only D.C. and D.C. While it was in progress, N.J. sought custody of her oldest half-brother, H.C., and the twins, D.C. and D.C. New Jersey asked Virginia to conduct an interstate evaluation to determine whether it would be appropriate to place these children with N.J. Various delays were experienced in connection with the completion of this evaluation, but N.J. was eventually approved. Virginia's initial recommendation, however, was that H.C. be placed first, to permit adjustment on the part of both of them. H.C. has resided with N.J. since December 2006. While he has struggled academically, the placement has, based upon the record before us, gone well, and N.J. has been appointed his kinship legal guardian.

D.C. and D.C., however, remain with their foster family with whom they have spent virtually their entire lives, and who are committed to adopting the girls.

At various points during the guardianship litigation there was discussion about the possibility of placing these girls with N.J. As we indicated earlier, several delays were encountered as Virginia evaluated whether that would be an appropriate placement. Although at the time that the trial court rendered its decision terminating the parental rights of N.C. to her twin daughters, Virginia had not approved placing the girls with N.J., DYFS's plan was either adoption by the girls' foster family or adoption by N.J. The trial court indicated in its oral opinion terminating N.C.'s parental rights that either could be appropriate dispositions. As N.C.'s appeal progressed, however, DYFS made the decision that foster family adoption was in the best interests of these girls.

Several factors informed that decision. During the course of the interstate evaluations, the Virginia caseworkers expressed concerns at several points about whether N.J. was dealing adequately with H.C.'s academic difficulties. In addition, there was concern because of delays in providing complete information about N.J.'s plans for daycare arrangements for the girls while she was at work. Finally, while the guardianship litigation was proceeding in New Jersey, N.C. gave birth to another child in January 2008. That child has since been transferred to N.J.'s care.*fn1 N.J. is thus responsible for two of N.C.'s children, one of whom is seventeen, and the other under two years of age.

In April 2008, while N.C.'s appeal of the trial court order terminating her parental rights was pending, N.J., who had not participated in the guardianship litigation, filed a motion with the trial court seeking to have custody of D.C. and D.C. transferred to her. Her motion was opposed both by DYFS and by the girls' Law Guardian.

In June 2008, the trial court entered an order denying N.J.'s request for a bonding evaluation between herself and the twins. The order permitted further sibling visitation while N.C.'s appeal continued but provided that the terms of that visitation had to be arranged between N.J. and the girls' foster mother.

Although the foster mother had not interposed any objections to the initial visitation between the twins and N.J., she later changed her mind. We infer from the record before us that an incident of some sort occurred between N.J. and the foster mother, but the details are unclear. The record does, however, contain a draft of a letter N.J. prepared to send to the girls' foster family in which she reiterated at several points her firm intention to pursue obtaining custody of the twins. This letter, moreover, referred to N.J.'s fiancé as sharing her commitment to raising the twins. There was no earlier indication in the record that N.J. shared her home with a fiancé, and thus he was never the subject of a background check.

In any event, N.J. filed a motion in August 2008, seeking to enforce the earlier June order. After hearing argument, the trial court, although it urged cooperation among the parties, declined to order this visitation take place; rather, it made any further visitation contingent upon the agreement of the foster parents. It is from that order that N.J. has appealed.

N.J. makes two contentions on appeal--that the trial court order "improperly elevates foster parent rights" and that there is no evidentiary support for the trial court's order. We are cognizant of the strong emotions this matter has generated among the participants, and we are sympathetic to the positions in which the parties have found themselves. We are obligated, nonetheless, to decide this matter on the basis of the legal arguments presented to us, not swayed by sympathy.

Having carefully reviewed the record of the proceedings below, we reject N.J.'s argument that the trial court conferred upon the foster mother rights she did not legally possess. Rather, it is clear to us that the trial court recognized that at the juncture at which the parties appeared before it, legal guardianship of these children rested with DYFS and that it was up to DYFS to determine whether the visitation that N.J. proposed was in the best interests of D.C. and D.C. N.J.S.A. 30:4C-20 to -22. We find no basis in this record to interfere with the decision on the part of DYFS that compelling such visitation was not in the best interests of these girls but that voluntary visitation could be appropriate.

Despite N.J.'s arguments in her brief with respect to the decision by DYFS to pursue adoption by the twins' foster mother, that issue is not properly before us. N.J.'s notice of appeal is addressed solely to the order of October 1, 2008, which, in turn, only dealt with visitation.

We are not persuaded by N.J.'s arguments which stress the importance of maintaining the sibling relationship. This is not because we do not recognize the value of a sibling relationship, N.J. Div. of Youth & Family Servs. v. S.S., 187 N.J. 556 (2006); it is because the record before us demonstrates that the only relationship which exists at present between the twins and N.J. is biological. DYFS has not acted to interrupt or sever an existing relationship but has made the reasonable judgment that actively attempting to create such a relationship is not in the girls' best interests at this juncture.

During the course of the guardianship litigation, DYFS presented the testimony of Donna LoBiondo, Ph.D., who had conducted a bonding evaluation between the foster mother and D.C. and D.C. In her report, Dr. LoBiondo noted "the presence of a strong positive emotional bond between [the] twins... and their foster mother...." Dr. LoBiondo testified that the girls considered the foster mother their psychological parent and that it would be potentially harmful to remove them. Dr. LoBiondo gave that testimony in November 2007. By the time the trial court's order that is on appeal before us was entered, the girls had spent almost an entire additional year with their foster mother. There was not even a contention, let alone evidence presented, that the emotional and psychological ties the girls had formed had lessened over that time. The only reasonable inference that could be drawn was that those ties had strengthened in the interim.

N.J. failed to present any evidence that it would be in the best interests of D.C. and D.C. to order DYFS to agree to and arrange visitation between these girls and N.J. Her desire to create a sibling unit, while understandable, cannot override what is best for these children.

We add the following comments in response to our dissenting colleague's views. We do not, as our colleague suggests, "presume that time alone in the custody of the foster parent is sufficient to determine the permanent placement of children." Rather, we are satisfied that the record that is before us, and the record that was created in connection with the termination of N.C.'s parental rights, strongly supports DYFS's decision that the best interests of these two four-year-old girls call for them to remain in the only home they have ever known.

Contrary to what our colleague may suggest, we are not unmindful of the strength and value of sibling relationships. We cannot, however, permit our recognition of the emotional and psychological value that can flow from such a relationship to distract us from the legal issues that have been presented to us.

Our colleague refers to New Jersey's statute on grandparent and sibling visitation, N.J.S.A. 9:2-7.1, and criticizes the trial court for not referring to that statute in the context of N.J.'s application. We consider such criticism unwarranted. The New Jersey Supreme Court has expressly declined to address the question whether that statute confers rights that survive a judgment terminating parental rights. New Jersey Div. of Youth v. S.S., supra.

Further, we are satisfied that a close reading of the record does not support certain of the conclusions of our colleague, many of which appear to be taken from N.J.'s certification but which do not find other support in the record. Our colleague states, for instance, that N.C. "moved to New Jersey from Virginia where N.J. and the children's maternal grandmother had been ...


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