NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. N.J., D.R. AND S.W. IN THE MATTER OF THE GUARDIANSHIP OF D.J., N.D.R., AND N.R., __ N.J. Super. __ (App. Div. 2010), A-3598-08, March 30, 2010:

The critical importance of the sibling relationship has been recognized by social scientists, our courts, and Legislature. In N.J. Div. of Youth & Family Servs. v. S.S., the Court quoted mental health experts who believe “that the sibling relationship can be ‘longer lasting and more influential than any other, including those with parents, spouse, or children[,]‘ and that ‘[w]hen it is severed, the fallout can last a lifetime.’” 187 N.J. 556, 561 (2005) (quoting Nat’l Adoption Info. Clearinghouse, The Sibling Bond: Its Importance in Foster Care and Adoptive Placement 1 (1992), http://www. childwelfare.gov/pubs/f–siblin.pdf); see also Ellen Marrus, “Where Have You Been, Fran?” The Right of Siblings to Seek Court Access to Override Parental Denial of Visitation, 68 Tenn L. Rev. 977, 987 (1999)).

New Jersey law recognizes the value of nurturing and sustaining sibling relationships. The Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6 (the Act), provides, in relevant part:

A child placed outside his home shall have the following rights, consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child’s physical or mental development:
. . . .
d. To the best efforts of the applicable department to place the child in the same setting with the child’s sibling if the sibling is also being placed outside his home;
. . . .
f. To visit with the child’s sibling on a regular basis and to otherwise maintain contact with the child’s sibling if the child was separated from his sibling upon placement outside his home, including the provision or arrangement for transportation as necessary[.]

[N.J.S.A. 9:6B-4.]

In implementing its responsibilities under the Act, DYFS promulgated administrative regulations “to ensure that each child” placed out-of-home has the opportunity to visit with siblings, so as to reinforce the child’s identity and maintain family relationships, among other things. N.J.A.C. 10:122D-1.1(a). Under N.J.A.C. 10:122D-1.4(a) and (d), a written visitation plan must be developed for every child in an out-ofhome placement which must include visits with siblings, either with parental visits or separately.

Further, the DYFS II Field Operations Casework Policy and Procedures Manual (DYFS Manual) directs that DYFS make “every effort” to place siblings together and to reunite them, as placing siblings together “is psychologically beneficial to the children and may help their adjustment.” Id. at § 1504 (March 25, 2002). When siblings cannot be placed together, a written visitation plan must be developed and include sibling visitation. Id. at § 1107.1 (December 27, 2004). The reason is that “[m]aintaining contact with brothers and sisters supports the child’s identity and links him to his past. However, many children in out-of-home placement are not able to be placed with their siblings. In many cases sibling contact helps to maintain an otherwise problematic placement.” Id. at § 911 (December 10, 1993). The DYFS manual further provides that resource parents have a “responsibility to encourage the child’s relationship with his siblings and other relatives” by initiating and supporting contact, whether through letters, visits, or telephone calls. ^[1] Ibid.

These requirements, both legal and administrative, have been imposed in the context of pre-adoption foster care only. In the post-adoption setting, however, countervailing considerations come into play, none more important than the natural and fundamental right of a legal parent to the care, custody, management and control of his or her child. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S. Ct. 1526, 1542, 32 L. Ed. 2d 15, 35 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 2d 645, 652 (1944); V.C. v. M.J.B., 163 N.J. 200, 218, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000); Watkins v. Nelson, 163 N.J. 235, 245 (2000).

In this regard, the interests at stake here are not the rights of the natural parents whose rights have already been terminated, but rather the rights of the adoptive parents, who step into the shoes of the natural parents. Once a child is adopted, “[t]he child becomes the child of the adoptive parents and part of their extended family.” In re the Adoption of Child by W.P. and M.P., 163 N.J. 158, 169 (2000). “[A]doption ends the parental role of the biological parents and transfers that role to the adoptive parents.” In re Adoption of A Child by D.M.H., 135 N.J. 473, 491, cert. denied, 513 U.S. 967, 115 S. Ct. 433, 130 L. Ed. 2d 345 (1994). It is the adoptive parents’ rights that may be infringed in the future, and therefore, it is their rights as parents that must be considered.

This right of parental autonomy is so basic that it may only be infringed by a court, in the exercise of its parens patriae authority to protect the child from serious physical or psychological harm, Moriarty v. Bradt, 177 N.J. 84, 113 (2003) (quoting Watkins, supra, 163 N.J. at 246-47), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004), and to make decisions in the best interests of the child, In re Grady, 85 N.J. 235, 259 (1981), in the face of clear and convincing evidence of parental unfitness, abandonment, gross neglect or “exceptional circumstances.” V.C., supra, 163 N.J. at 219; see also Sorentino v. Family & Children’s Soc’y of Elizabeth, 72 N.J. 127, 132 (1976).

The issue of forced relative visitation in non-relative adoptions was addressed in In re the Adoption of Child by W.P. and M.P., 163 N.J. 158 (2000) (W.P.). There, the issue was whether, pursuant to the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, grandparent visitation could be enforced over the objections of non-relative adoptive parents. Id. at 160. To resolve the issue, the Court examined whether the Grandparent Visitation Statute was at odds with the public policy of the New Jersey Adoption Act, N.J.S.A. 9:3-37 to -56 (Adoption Act). Ibid. Finding “an inherent conflict between the two statutes[,]” id. at 163, the Court concluded that the overriding public policy and statutory law regarding adoptions, which “emphasizes the complete termination of the biological parent’s rights, thus having the logical effect of terminating a biological grandparent’s right to visitation[,]” id. at 168, precluded “the application of the Grandparent Visitation Statute when the child is adopted by intact, non-relative adoptive parents.” Id. at 163.

The “ultimate purpose” of the Adoption Act was to “support the newly-created family and to encourage other families to adopt a child with the knowledge that biological relatives will not interfere with the new family unit.” Id. at 174.

The concerns voiced in W.P. over grandparent visitation after non-relative adoption apply as well to sibling visitation post-adoption. In W.P., supra, the Court relied heavily on the Legislature’s specific rejection of open adoption. 163 N.J. at 171-73. In fact, the Legislature has repeatedly rejected attempts to move New Jersey from a closed adoption system to an open system. In a 1993 proposed amendment, the language contemplated that “post-adoption contact could continue between a child and biological family only with the voluntary consent of the adopting parent.” Thus, the Legislature “never anticipated, even if the concept of open adoption had been enacted, [that visitation be compelled] against the wishes of the adoptive parents.” Id. at 172. At the time of the deletion of the proposed amendment, the Senate Judiciary Committee advised that “[w]hile it is not the intent of the committee in deleting this language to discourage open adoptions, it was felt that the issue of open adoption represents a significant policy issue which should be addressed in separate legislation.” D.M.H., supra, 135 N.J. at 494 (quoting Senate Judiciary Committee, Statement to Senate, No. 685 (1993)).

The Court has even refused to enforce arrangements that had initially been entered into with mutual consent that permitted continued contact between biological relatives and the adopted child, finding that such arrangements could not be “judicially enforced, given the potential for disruption of the child’s family life under such arrangements and the fact that under the adoption laws the adoptive parents’ rights are paramount.” K.H.O., supra, 161 N.J. at 362.

Another consideration in W.P. was the “overarching purpose of the Legislature” that the Adoption Act “facilitate and encourage adoptions.” 163 N.J. at 173. The Court noted the “well-established principle that administrative agencies are entitled to substantial deference in the area of their expertise[,]” and thus gave credence to DYFS’ concern that allowing biological grandparents to visit would “discourage — if not prevent — adoption.” Id. at 173-74. The Court placed “great reliance” on DYFS’ position that post-adoption visitation would have a “chilling effect” on prospective adoptive parents. Id. at 174.

These same concerns over loss of parental autonomy and disruption to the new adoptive family, as well as their consequent chilling effect on adoptions, are all equally implicated in sibling visitation post-adoption.

The sibling relationship is different in kind from the grandparent relationship. Yet the Legislature chose to treat them as equivalent in N.J.S.A. 9:2-7.1.

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1. Federal law also mandates that in order to be eligible for federal payments, states must make reasonable efforts to place siblings removed from their home in the same foster care, kinship guardianship or adoptive placement and, if that is not possible, must provide for frequent visitation or other interaction between siblings. 42 U.S.C.A. § 671(a)(31)(A) and (B). [↩]