NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. OF AND (2011)

The Law Guardian for the three minor siblings in this matter, D.J., N.D.R., and N.R., filed a petition for certification of our judgment affirming the Family Part's denial of post-adoption sibling visitation.  N.J. Div. of Youth & Family Servs. v. N.J., 412 N.J.Super.   357 (App.Div.), remanded, N.J. Div. of Youth & Family Servs. v. D.R., 204 N.J. 36 (2010).   Critical to our determination was the finding that the record in the termination of parental rights proceeding did not establish by clear and convincing evidence that serious psychological harm to the children would result from such deprivation.  Id. at 372-73.   Since our opinion, the Supreme Court decided In re D.C., 203 N.J. 545 (2010), holding that pursuant to the Grandparent and Sibling Visitation Statute (Visitation Statute), N.J.S.A. 9:2-7.1, post-adoption sibling visitation is to be evaluated in an evidentiary hearing at which the applicant, to be successful, must prove by the preponderance of the evidence that such visitation is necessary to avoid harm to the affected sibling.  Id. at 562-66, 573-74.   Consequently, the Supreme Court granted the Law Guardian's petition for certification and summarily remanded the matter to us for reconsideration of our judgment in light of D.C. D.R., supra, 204 N.J. at 36.   Having considered supplemental briefing from the parties on the import of D.C., we remand the matter to the Family Part for an expedited evidentiary hearing on the issue of sibling visitation in accordance with the holding in D.C.

Briefly, by way of background, all three children - D.J., N.D.R. and N.R. - shared a common mother (N.J.) and N.D.R. and N.R. shared a common father (D.R.).   The middle child, N.D.R., was born with cerebral palsy, is a spastic quadriplegic and suffers “moderate mental retardation.”   Following a guardianship complaint filed by the Division of Youth and Family Services (DYFS or the Division) seeking to terminate the parental rights of the parents to all three children, N.J.S.A. 30:4C-15 to -20, voluntary surrenders were executed by the mother, N.J., with respect to D.J. and N.R., and by the father, D.R., with respect to N.R.¹ A default was entered against S.W., the father of D.J. Consequently, the court terminated the parental rights of N.J. to D.J. and N.R., and D.R. to N.R. in a judgment of guardianship entered on February 2, 2009.

Meanwhile, the court ordered a consolidated permanency hearing and termination of parental rights trial as to N.D.R., who had been placed at Matheny Educational and Medical Center (Matheny), a long-term specialized school and hospital for children and adults with medically complex developmental disabilities.   At the conclusion of this proceeding, the Family Part judge found that the permanency plan for N.D.R. should remain as select-home adoption, and he terminated the parental rights of the mother and the father to him.   In the February 2, 2009 judgment for guardianship, the judge ordered continued visitation between N.D.R. and his siblings until the siblings were adopted, but held that he did not have the authority to order post-adoption sibling visitation.

As noted, we affirmed the order of the Family Part, having

determined that the lack of clear and convincing evidence supporting a finding of exceptional circumstances did not warrant visitation under the Visitation Statute, N.J.S.A. 9:2-7.1. N.J., supra, 412 N.J.Super. at 371-74.   Prior to the grant of certification, on April 28, 2010 and July 28, 2010, the Family Part held post-termination permanency hearings, ordering that DYFS continue transporting D.J. and N.R. for visits with N.D.R., post-adoption, every other week for so long as T.F. consents and N.D.R. remains at Matheny.   On September 17, 2010, D.J., now twelve years old, and N.R., now nine years old, were adopted by T.F. At the conclusion of the adoption proceedings, T.F. provided DYFS with a written statement that she will transport D.J. and N.R. to Matheny because she no longer “want[ed] to be involved with [DYFS].” Accordingly, on September 23, 2010, DYFS informed the Family Part judge that it would no longer transport D.J. and N.R. to Matheny for bi-weekly visitation.   According to the Law Guardian, as of November 17, 2010, T.F. has not taken D.J. and N.R. to see N.D.R. on her own, and, as a result, no sibling visitation has occurred since September 30, 2010.

On remand from the Supreme Court's grant of certification, D.R., supra, 204 N.J. at 36, and upon reconsideration of our judgment, we now deem it appropriate to remand the matter to the trial court to conduct an expedited evidentiary hearing in accordance with the principles enunciated in D.C. Our reasons for the remand follow.

In D.C., supra, the Court addressed the standards applicable to sibling requests for visitation both pre- and post-adoption.  203 N.J. at 551.   During the entire pre-adoption placement period, the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6 (Child Placement Act), obligates the Division “to nurture sibling bonds ․ whether or not a sibling has initiated the process and whether or not termination [of parental rights] has occurred.”  Id. at 564.   Under the Child Placement Act, “the Division is obliged, on its own and even in the absence of an application by a sibling, to insure and facilitate such visitation under N.J.S.A. 9:6B-4(f), up until the time that an adoption is finalized.”  Id. at 565.   Accordingly, during the pre-adoption placement period, the burden lay on the Division “to show that visitation would be inconsistent ‘with the health, safety, and physical and psychological welfare of the child’ and is inappropriate ‘to the individual circumstances of the child's physical or mental development.’ ”  Id. at 565-66 (quoting N.J.S.A. 9:6B-4).

The post-adoption circumstance, however, presents special countervailing considerations, which the Court in D.C., supra, acknowledged:

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.

[Id. at 551-52 (emphasis added).] 2

Of course, the Legislature had earlier recognized this principle in its enactment of the Visitation Statute, N.J.S.A. 9:2-7.1, the purpose of which is to foster “intergenerational family relationships” and “sibling bonds.”   See id. at 559-61.

Specifically, the Visitation Statute, provides, in relevant part:

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.

[N.J.S.A. 9:2-7.1a (emphasis added).]

However, because the “best-interests standard is an unwarranted incursion on the fundamental right of the parents to raise their children as they see fit [,]” the D.C. Court, in order to maintain the statute's constitutionality, has required the applicant to meet the “exceptional circumstances” standard, which “ ‘requires proof of serious physical or psychological harm or a substantial likelihood of such harm.’ ”  D.C., supra, 203 N.J. at 571-72 (quoting Watkins v. Nelson, 163 N.J. 235, 248 (2000)).   Thus, pursuant to the Visitation Statute, “siblings can petition for visitation with their brothers and sisters who have been adopted by non-relatives, subject to the avoidance of harm standard.”  Id. at 573.

In this regard, the D.C. Court required a standard of proof - preponderance of the evidence - lesser than the one we applied in the instant matter:

[T]he analysis is a fact-intensive one in which the sibling “bear[s] the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child.”  Moriarty[ v. Bradt, 177 N.J. 84, 117 (2003) ].   Any evidence, expert or factual, that bears on the question of harm to the child should be admitted.   It is for the trial judge to determine whether the burden has been satisfied.

[Id. at 574 (alteration in original) (emphasis added).]

Once the applicant has demonstrated the potential harm to the child by a preponderance of the evidence, the presumption in favor of parental decision making is overcome and a court will exercise its parens patriae jurisdiction to require a visitation schedule it deems is in the child's best interests “based on the application of the statutory factors” in N.J.S.A. 9:2-7.1. Id. at 574 (citations omitted).   It is, of course, “for the trial judge to determine whether the burden has been satisfied.”  Ibid. (emphasis added).

Here, a remand to the trial court for an expedited evidentiary hearing on the issue of sibling visitation is appropriate for several reasons.   First, the hearing previously conducted in the Family Part did not focus on the existence or likelihood of harm to N.D.R. in the context of sibling visitation.   Instead, the proceeding was a consolidated permanency and termination of parental rights hearing concerning only N.D.R. Moreover, the trial focused on whether it was in the best interests of N.D.R., who suffers special needs, to be adopted even if it required an out-of-state adoption, which would hamper sibling visitation.

Specifically, a psychologist, Dr. Sean Hiscox, performed an evaluation and “adoptability” assessment of N.D.R. N.J., supra, 412 N.J.Super. at 361.   Although Hiscox found strong sibling bonds and that the lack of sibling visitation “would surely result in some emotional harm to [N.D.R.,]” his assessment focused on parental termination and adoption, not sibling visitation:

[I]f [N.D.R.] was separated from his siblings and they were not able to maintain their current frequency of contact - which seems to be the most severe consequence in this matter - it would surely result in some emotional harm to [N.D.R.]. But, in my opinion, it would be short lived and over time the benefits of having a consistent caregiver would outweigh keeping him in his present placement in order to maintain his current relationship with his siblings, which entails seeing them on an approximately bi-weekly basis for several hours.   Also, regardless of where he is placed, their relationship can be maintained at least to some degree, even if he was placed far away, which would further mitigate the harm to [N.D.R.].

[Id. at 362.]

The other expert, Dr. Leslie Trott, also a psychologist, found it in N.D.R.'s best interest to remain at Matheny and continue his family relationships.   Ibid. These expert opinions, however, focused primarily on the benefit of parental termination and adoption versus the harm in placing N.D.R. on a national adoption registry and potentially moving him to a home outside of New Jersey where he would be further from his siblings.³

Second, there was no “testimony on the potential impact the loss of visitation would have on the other two children, who were already placed together.”   Id. at 373.⁴  Thus, because the court erred when it determined that it did not have the authority to order post-adoption sibling visitation, and because the prior proceeding neither directly addressed sibling visitation outside the context and scope of parental termination and adoption, nor focused on potential harm to D.J. and N.R., we remand the matter to the Family Part for an expedited evidentiary hearing.

Reversed and remanded.

FOOTNOTES

FN1. The voluntary surrenders executed by N.J. and D.R. were both conditioned on the children D.J. and N.R. being adopted by T.F., a family friend in whose care and custody the children had been placed since May 2006..  FN1. The voluntary surrenders executed by N.J. and D.R. were both conditioned on the children D.J. and N.R. being adopted by T.F., a family friend in whose care and custody the children had been placed since May 2006.

FN2. The New Jersey Adoption Act, N.J.S.A. 9:3-37 to -56 (Adoption Act), provides that “[t]he 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.”  N.J.S.A. 9:3-50b.   Thus, “adoptive families stand in the shoes of biological families․  However, an adoptive family is not entitled to greater protections than a biological family.”  D.C., supra, 203 N.J. at 570..  FN2. The New Jersey Adoption Act, N.J.S.A. 9:3-37 to -56 (Adoption Act), provides that “[t]he 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.”  N.J.S.A. 9:3-50b.   Thus, “adoptive families stand in the shoes of biological families․  However, an adoptive family is not entitled to greater protections than a biological family.”  D.C., supra, 203 N.J. at 570.

FN3. In fact, the Family Part judge did not reach the issue of sibling visitation until well into his oral opinion.   At that juncture, the judge addressed the testimony of Doctors Hiscox and Trott, noting the “choice” between finding suitable parents to adopt N.D.R. and keeping N.D.R. at Matheny so that he could continue sibling visitation:  “Is it a judicial exercise in essence arithmetically, however, to place a monthly one approximate hour visit by the two siblings with their brother against the remaining 719 hours that exist in each month?”.  FN3. In fact, the Family Part judge did not reach the issue of sibling visitation until well into his oral opinion.   At that juncture, the judge addressed the testimony of Doctors Hiscox and Trott, noting the “choice” between finding suitable parents to adopt N.D.R. and keeping N.D.R. at Matheny so that he could continue sibling visitation:  “Is it a judicial exercise in essence arithmetically, however, to place a monthly one approximate hour visit by the two siblings with their brother against the remaining 719 hours that exist in each month?”

FN4. The Visitation Statute does not expressly specify whether the applicant seeking visitation must demonstrate harm to the child whose parents object to the contact or whether a showing of harm to any involved child, including the sibling-applicant, rebuts the presumption of parental autonomy and allows the court to invoke its parens patriae power.   The Visitation Statute provides only that it is “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.”  N.J.S.A. 9:2-7.1a. We need not decide that issue in this case because the Law Guardian has made application for sibling visitation on behalf of all three children and, therefore, on remand the Family Part should make individual assessments as to each of the siblings involved..  FN4. The Visitation Statute does not expressly specify whether the applicant seeking visitation must demonstrate harm to the child whose parents object to the contact or whether a showing of harm to any involved child, including the sibling-applicant, rebuts the presumption of parental autonomy and allows the court to invoke its parens patriae power.   The Visitation Statute provides only that it is “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.”  N.J.S.A. 9:2-7.1a. We need not decide that issue in this case because the Law Guardian has made application for sibling visitation on behalf of all three children and, therefore, on remand the Family Part should make individual assessments as to each of the siblings involved.

PER CURIAM