Matter Of D.C.

• Decision Date: 29 September 2010
• Parties: In the Matter of D.C. and D.C., Minors.
• Court: New Jersey Supreme Court

203 N.J. 545
4 A.3d 1004

In the Matter of D.C. and D.C., Minors.

Supreme Court of New Jersey.

Argued April 26, 2010.
Decided Sept. 29, 2010.

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COPYRIGHT MATERIAL OMITTED.

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Jeyanthi C. Rajaraman argued the cause for appellant (Legal Services of New Jersey, Melville D. Miller, Jr., President, attorney; Mr. Miller, Ms. Rajaraman, and Mary McManus-Smith on the briefs).

Andrea M. Silkowitz, Assistant Attorney General, argued the cause for respondent Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney).

Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for respondents D.C. and D.C. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney).

Cecilia M. Zalkind, Newark, and Mary E. Coogan submitted a brief amicus curiae on behalf of Association for Children of New Jersey.

Catherine Weiss submitted a brief amici curiae on behalf of Foster Care Alumni of America and Child Advocacy Clinic at Rutgers School of Law-Newark (Lowenstein Sandler, attorneys; Ms. Weiss and Kenneth H. Zimmerman of counsel; Ms. Weiss, Carl M. Greenfeld, Sarah Blaine, Rebecca B. Visvader, and Kelly A. Lloyd, Roseland, on the brief).

Justice LONG delivered the opinion of the Court.

203 N.J. 550

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.

203 N.J. 551

In the interim, the twins' siblings applied for custody and visitation. Some visits occurred. When the siblings were ruled out as potential

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custodians and the foster mother ¹ (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

203 N.J. 552

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 ² 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. ³

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

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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

203 N.J. 553

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.”

203 N.J. 554

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, 973 A.2d 385 (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,

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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.

203 N.J. 555

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...