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In re D.C.

September 29, 2010

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


On appeal from the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court considers the standards applicable to a sibling's request for visitation after the children are placed outside the home and after they are adopted.

In June 2005, Nina Carson gave birth to twin daughters. Carson is also the biological mother of Nellie, born in 1982, and Hugo, born in 1991. In 2005, the Division of Youth and Family Services removed the twins and Hugo from Carson's care; placed the twins in a foster home, where they currently are awaiting adoption; and placed Hugo in a group home. In February 2006, Nellie, who lives in Virginia, asked the Richmond Department of Social Services (RDSS) to assess her as a candidate for placement of her siblings. RDSS conducted a home study, reported that Nellie was mature for her age and was a viable resource, and recommended that Hugo be placed with Nellie first. In 2007, the Division discussed visitation of the twins with Nellie and Hugo. At the first visit in July 2007, the DYFS worker noted that Nellie seemed knowledgeable about caring for the children, that Hugo was affectionate with the girls, and that the twins seemed happy. In August 2007, RDSS approved placement of the twins with Nellie, but expressed concerns about her ability to support the children and recommended that the Division arrange visitation to ease the transition. In late 2007, RDSS rescinded its recommendation to place the twins with Nellie, citing Hugo's poor grades and noting that Nellie had lost her job.

Carson's parental rights as to the twins were terminated in December 2007. In January 2008, the Division approved Nellie as kinship legal guardian for Hugo, but not the twins, and it informed her that visitation with the twins would be terminated. In April 2008, Nellie filed an action seeking placement of the twins in her care or, alternatively, reestablishment of visitation to assist in developing the sibling relationship and to facilitate reevaluation of her petition for custody. In opposition, the Division relied on the passage of time and its 2007 evaluation of the bonding between the twins and their foster mother. A Court-Appointed Special Advocate (CASA) reported in May 2008 that the twins were happy with their foster mother, who sought to adopt them and move to Puerto Rico. The report indicated that the Division eliminated Nellie from consideration after the RDSS interim report rescinded its recommendation. No bonding evaluation of Nellie, Hugo, and the twins ever took place. Later, the RDSS worker clarified to CASA that the report was not intended to rule out Nellie, but to raise concerns about transferring the twins to her at that time. CASA stated that the twins are very friendly and adjust well to new surroundings, and that, because the Division had not facilitated visitation with Nellie, it was difficult to recommend the best placement option. CASA noted that Nellie had only been unemployed for one month and worked part-time in the meantime; and that Hugo had a history of poor grades and his behavior greatly improved in Nellie's care.

In June 2008, the trial court held that the twins should remain with the foster mother, who was then agreeable to visitation. The court did not provide specific visitation instructions, instead asking Nellie and the foster mother to cooperate; and it relieved the Division of any obligation to facilitate or fund visitation. One month later, the Division advised Nellie that the foster mother was no longer willing to allow visits. In October 2008, the court noted that the children's interests "trumped" any rights Nellie had as a sibling. The court concluded that Nellie could not re-litigate the Division's plan for adoption, and that it could not order the foster mother to permit visitation. The Appellate Division affirmed, stating that only the visitation issue had been properly appealed. The panel held that it was the Division's responsibility to determine whether visitation was in the twins' best interests; that the Division had not interrupted an existing sibling relationship; and that Nellie had not established that visitation was in the twins' best interests. The dissenting judge stated that a hearing should have been held to resolve factual issues, and that the Division caused the placement delay that resulted in the twins' bonding with the foster mother, effectively vesting in her the right to determine visitation. The Court granted certification. 201 N.J. 273 (2010). Nellie has since abandoned her quest for custody, leaving the issue of visitation to be considered.

HELD: Under the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6, visitation between siblings placed outside the home is presumed in the period before adoption, and the Division has an independent obligation to facilitate visitation. To oppose visitation, the Division must prove it is contrary to the child's welfare under the standards provided in the Child Placement Bill of Rights Act. After adoption, adoptive parents are free, within the same limits as biological parents, to raise their child as they see fit. Parental autonomy is not absolute, however. A biological or adoptive family may be ordered to permit third-party visitation where necessary to avoid harm to the child.

1. Historically, third parties had no right to visitation. Social science research began recognizing the important emotional implications of the grandparent relationship. The Grandparent and Sibling Visitation Statute, N.J.S.A. 9:2-7.1 (Visitation Statute) was enacted in 1972. By 1993, grandparents could obtain visitation over the objections of biological parents in an intact family. Social science has also recognized the importance of sibling relationships, which are critical to children who experience chaotic circumstances. When a child is separated from biological parents, a sibling may be a child's only source of social support. In 1987, the Legislature added siblings to the Visitation Statute. The statute recognizes that maintaining contacts with third parties, including siblings, may be necessary to the emotional health of children. (pp. 13-20)

2. The Child Placement Bill of Rights Act, N.J.S.A. 9:6B-4(f), governs sibling visitation during the entire period after a child is placed outside his home, including after parental rights are terminated. Under the Act, the Division has an obligation to nurture sibling relationships, whether or not a sibling has initiated the process and whether or not termination has occurred. The Division's field manual, which recognizes that sibling contact supports a child's identity, underscores that duty by promoting visitation if the Division is unable to keep siblings placed together. (pp. 20-24)

3. Although the Visitation Statute provides that a third party seeking visitation must establish that it is in the best interests of the child, in the placement setting the Child Placement Bill of Rights Act imposes on the Division an independent obligation to facilitate visitation until an adoption is finalized. While a child is in placement, sibling visitation is presumed. If the Division opposes such visitation, it bears the burden of proving, under the standards of the Child Placement Bill of Rights Act, that visitation would be inconsistent with the health, safety, and welfare of the child and the child's development. A foster family's disinclination to be involved with sibling visitation is not even a relevant factor. (pp. 24-27)

4. Parents' constitutional right to autonomy in raising their children is not absolute. The State has an obligation, under the parens patriae doctrine, to intervene where it is necessary to prevent harm to a child. After an adoption, pursuant to the Adoption Act, N.J.S.A. 9:3-37 to -56, the adoptive family has the same rights and is entitled to the same protections as a biological family. The same rules on third-party visitation apply to them, too. (pp. 28-32)

5. In In re Adoption of a Child by W.P., 163 N.J. 158 (2000), the Court recognized that an adoptive family, like a biological family, cannot be forced to permit third-party visitation based on a "best interests" analysis. In Watkins v. Nelson, 163 N.J. 235 (2000), the Court held that application of the best interest standard to evaluate a custody petition by the deceased mother's parents violated the father's right to family autonomy. The Court also recognized that in some cases, it may be required to exercise parens patriae jurisdiction and permit third-party contact, over a parent's objection, to protect a child from harm. In V.C. v. M.J.B., 163 N.J. 200 (2000), the Court exercised parens patriae jurisdiction and granted an application for visitation by the biological mother's former partner, who served as the children's psychological parent. In Moriarty v. Bradt, 177 N.J. 84 (2003), the Court held that grandparents may obtain visitation under the Visitation Statute by proving by a preponderance of the evidence that denial of visitation would harm the child. Under those rulings, siblings can petition for visitation with their brothers and sisters who have been adopted by non-relatives. The sibling must establish by a preponderance of the evidence that visitation is necessary to avoid harm to the child. (pp. 32-38)

6. This matter is remanded for an expedited evidentiary hearing at which Nellie will have the opportunity to establish that the twins would suffer harm if denied visitation with her and Hugo. (pp. 38-40)

7. This opinion should not be viewed as an incursion on the right of fit parents, biological or otherwise, to raise their children without interference. The narrow parens patriae exception to parental autonomy is a stringent one. (pp. 40-42)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED for proceedings consistent with the Court's opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LONG's opinion.

The opinion of the court was delivered by: Justice Long

Argued April 26, 2010

We are here faced with a case involving five-year-old twins who were removed from their mother's custody by the Division of Youth and Family Services (the Division or DYFS) and placed in foster care. Ultimately, the mother's parental rights were terminated. In the interim, the twins' siblings applied for custody and visitation. Some visits occurred. When the siblings were ruled out as potential custodians and the foster mother*fn1 (who had been approved to adopt the twins) balked at continuing contact, visitation was terminated. The trial judge refused to intervene and the Appellate Division, over a dissent, affirmed. With the adoption pending, the siblings now seek to continue contact with the twins in this interim period and after the adoption is finalized.

Thus, we are asked to consider the standards applicable to the siblings' request for visitation during two different time frames: after placement but prior to adoption, and after adoption. We hold, in accordance with the principles in the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6, that visitation between siblings placed outside the home is presumed in the period between placement and adoption, and that the Division has an independent obligation during that period to facilitate such visitation. If the Division opposes visitation for any reason, it bears the burden of overcoming the presumption and proving under the standards in the Child Placement Bill of Rights Act that such visitation is contrary to the child's welfare.

The post-adoption setting presents different considerations. Our law recognizes the family as a bastion of autonomous privacy in which parents, presumed to act in the best interests of their children, are afforded self-determination over how those children are raised. All of the attributes of a biological family are applicable in the case of adoption; adoptive parents are free, within the same limits as biological parents, to raise their children as they see fit, including choices regarding religion, education, and association. However, the right to parental autonomy is not absolute, and a biological family may be ordered to permit third-party visitation, over its objections, where it is necessary under the exercise of our parens patriae jurisdiction to avoid harm to the child. That principle governs adoptive families as well. Because the courts below appeared to believe incorrectly that the authority of the Division and the pre-adoptive family to deny sibling visitation is absolute, and acted accordingly, we now reverse and remand.

I.

In June 2005, Nina Carson*fn2 gave birth to the twin daughters, Dana and Donna, who are the subject of this action. They are presently in foster care awaiting adoption by their foster mother. Ms. Carson is also the biological mother of five other children, one of whom is deceased. The surviving children are Nellie Jackson, born in 1982, who appeals on her own behalf and on behalf of her minor sibling Hugo; Hugo, born in 1991, who currently lives with Nellie; Robert, a son who was removed from Ms. Carson's care and resides with his biological father; and Donald, born in 2008 during the pendency of these proceedings.*fn3

In 2005 Ms. Carson moved from Virginia to New Jersey. One month later, in August 2005, after investigating a claim of abuse in Carson's home, the Division effected an emergency removal of the then three-month-old twins and of Hugo, then thirteen years old. The twins were placed in their current foster home in September 2005. Hugo was placed in a group home. Thereafter, the Division sought termination of Carson's parental rights as to the twins only.

At a hearing in January 2006, Carson provided a Division worker with the names of relatives to be considered as possible candidates for kinship placement, including Nellie. In February 2006, Nellie, residing in Virginia, asked to be assessed by the Richmond City Department of Social Services (RDSS) for placement of Hugo and the twins. After conducting a home study, RDSS reported that Nellie, then twenty-four years old, was "personable" and "mature for her age" and approved her as a "viable resource for the children." RDSS recommended that Hugo be placed with Nellie first, as he required specific services that Nellie would have to arrange.

In a quarterly report submitted in March 2007, an RDSS social worker observed that Nellie had moved to a non-RDSS-approved, two-bedroom apartment and that Nellie's common-law aunt was residing with her and was helping her care for Hugo. The report indicated that the aunt would have to be approved as a resident in the home and that, because Nellie planned to move to a four-bedroom apartment shortly, that apartment would require a new assessment. In the meantime, RDSS would not recommend placement of the twins with Nellie until her home was approved and a background check was completed on her and her aunt.

In March and April 2007, the Division discussed visitation of the twins with Nellie and Hugo. Nellie, citing her schedule and Hugo's upcoming state exams, noted that she was available on weekends and that Hugo wanted to visit the twins as well. The first visit occurred in July 2007 for a six-hour period, at which time the DYFS worker noted that Nellie seemed "very attentive" and "knowledgeable about caring for the children[,]" that Hugo was "very helpful and affectionate with the girls[,]" and that the twins seemed happy with the visit.

In April 2007, Nellie moved to a new three-bedroom home, in which only she and Hugo resided. RDSS approved placement of the twins with Nellie in August 2007, but expressed concerns about Nellie's financial ability to support the children, recommending that the Division arrange visitation prior to placement to ease the transition. RDSS approval of placement was effective from August 27, 2007, through August 31, 2009. However, in a December 2007 quarterly progress report, RDSS rescinded its recommendation to place the twins with Nellie, citing Hugo's poor grades and Nellie's "lack of involvement in Hugo's education." Nellie had also lost her job and was working part-time, leading to further concerns about her finances.

Ms. Carson's parental rights were terminated in December 2007; that decision was affirmed by the Appellate Division. We later denied certification. N.J. Div. of Youth & Family Servs. v. N.C., 199 N.J. 517 (2009).

In January 2008, the Division approved Nellie as a kinship legal guardian of Hugo, but informed her that she had not been approved for kinship placement of the twins and that her visitation with the twins would be terminated. A final visit was arranged for March 2008.

On April 3, 2008, Nellie filed an action in Superior Court seeking placement of the twins in her care. In those proceedings, Nellie certified that she had attempted to keep in contact with the twins but that Carson, angry about the removal of the children from her custody, refused to tell her anything about them or their placement, and that despite her repeated efforts, the Division likewise declined to give her such information. In support of custody, she cited the Commonwealth of Virginia's original approval of her for placement and the award of kinship legal guardianship of her brother, noted the recent approval by the State of New York for the placement of a newborn sibling in her care, and argued that placement of the twins with her would allow the children to remain as a sibling group. Moreover, she certified that after the Commonwealth of Virginia rejected her apartment for the twins' placement, she moved into a new apartment and made several unsuccessful attempts to contact RDSS, as well as the Division, for a new assessment. Finally, Nellie claimed that she was "willing and fully committed to caring for [her] sisters."

In the alternative, Nellie sought reestablishment of visitation with the twins every other Saturday for a six-hour period to assist in developing the sibling relationship, maintaining that such visitation would facilitate the reevaluation of her petition for custody.

In opposition, the Division relied on the passage of time and on its bonding evaluation, conducted in 2007, which identified the "presence of a strong positive emotional bond between the twins . . . and their foster mother[.]" A report issued by the Court-Appointed Special Advocate (CASA) in May 2008 stated that the twins continued to be happy in their foster home, and that the foster mother sought to adopt them and move to Puerto Rico. The report indicated that although placement with Nellie was the original plan for the twins, the Division had eliminated her from consideration after the December 2007 interim report rescinded RDSS's original recommendation. No bonding evaluation of Nellie, Hugo, and the twins ever took place.

In preparation for the court proceeding, CASA conferred with the RDSS worker, who clarified that her 2007 report was never intended to rule out Nellie as a permanent option, but rather to raise concerns about transferring the twins to her care at that point. CASA stated that, although the twins were very fond of their foster mother, "they are very friendly and seem to adjust well to new surroundings"; that visitations, despite having gone well, had stopped when Nellie was rejected as a placement candidate; and that, because the Division had not facilitated visitation between Nellie and the twins, it was difficult to recommend the best placement option for them. CASA further noted that Nellie had only been unemployed for one month and had worked part-time in the meantime; that Hugo had a history of poor academic performance but that his behavior had greatly improved since being placed in his sister's care; and that Nellie had appealed her rejection as a placement candidate.

At a hearing on Nellie's application in June 2008, while acknowledging that "the courts of New Jersey are certainly always interested in having children placed with relatives and particularly with siblings[,]" the trial judge held that the twins should remain with the foster mother, citing their special needs.*fn4 At that point, the foster mother was agreeable to visitation. Thus, the judge allowed Nellie continued visitation, stating that "if the relationships can be kept . . . it's always in [the children's] best interest[,]" but refrained from providing specific visitation instructions, instead asking that Nellie and the foster mother cooperate to make arrangements and relieved the Division of any obligation to facilitate, supervise, or fund visitation.

One month later, in July 2008, Nellie was advised by the Division that the foster mother was "no longer willing to facilitate visits between [Nellie] and the children." In August 2008, Nellie filed a motion to enforce litigants' rights based on the June 2008 order permitting visitation. At an October 2008 hearing, the judge noted that Ms. Carson's parental rights had been terminated and that the best interests of the children "trumped" any rights that Nellie had as a sibling, concluding that she was not in a position to re-litigate the plan of the Division, which remained foster home adoption. The judge expressed a strong belief "that some biological connection should remain with [the] children," but opined that she could not order the foster mother to permit visitation and, therefore, merely was "asking if [she] will please do this," again issuing an order allowing visitation at the foster mother's discretion. The judge "suggest[ed]" that CASA be involved in the visitation arrangements.

The Appellate Division affirmed, stating that only the issue of visitation had been properly appealed, and declined to address Nellie's contentions regarding the approval of the twins' adoption by the foster mother. Noting that legal guardianship of the twins rested in the Division when Nellie filed her motion, the panel held that it was the Division's responsibility to determine whether the visitation sought by Nellie was in the twins' best interests. The panel found that the Division had not "acted to interrupt or sever an existing [sibling] relationship" between Nellie and the twins, as no such relationship existed and that Nellie had presented no evidence that visitation was in the best interests of the twins.

The dissenting member of the panel stated that the facts as reported by the Division, RDSS, and Nellie were "divergent" and that an evidentiary hearing should have been held to resolve those outstanding issues. She further contended that the Division appeared to be responsible for the delay in permanent placement, which in turn resulted in the bonding between the foster mother and the twins, effectively vesting in the foster mother the right to determine visitation.

An adoption hearing was scheduled. The Appellate Division stayed that hearing pending its decision. That stay was dissolved in the court's opinion affirming the trial judge's order. However, in September 2009, we granted Nellie's motion to further stay the adoption proceedings pending her challenge to the panel's decision. Thereafter, Nellie abandoned her custody quest, and DYFS filed a motion to vacate the order staying the adoption. We have granted that motion effective upon the filing of this opinion.

Nellie petitioned this Court for certification in connection with the Appellate Division's decision denying visitation. We granted the petition, ...


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