IN THE MATTER OF D.C. and D.C., Minors

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1608-08T41608-08T4

IN THE MATTER OF

D.C. and D.C., Minors.

______________________________

 

Argued May 12, 2009 - Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Hudson County, Nos. FC-09-371-06 and FC-09-372-06.

Diana Dunker argued the cause for appellant

N.J. (Legal Services of New Jersey, attorney;

Ms. Dunker, on the brief).

Andrea M. Silkowitz, Assistant Attorney General, argued the cause for respondent Division of Youth

and Family Services (Anne Milgram, Attorney General,

attorney; Ms. Silkowitz, of counsel; Lisa N.

Brown, Deputy Attorney General, on the brief).

Olivia Belfatto Crisp, Assistant Deputy Public

Defender, argued the cause for minors D.C. and

D.C. (Yvonne Smith Segars, Public Defender,

Law Guardian, attorney; Ms. Crisp, on the brief).

PER CURIAM

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. 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 caring for them" and that at the July 2007, visit, the twins "recognized and remembered" N.J. and H.C.

The DYFS contact sheet for this July 2007 visit, however, states the following with respect to this visit:

Worker . . . asked [N.J.] how she felt about seeing the girls. She advised Worker that she has not seen the girls in very long time and added that they have gotten very big. Worker asked her when she had met the girls before. She advised that she met the children when they were infants as her mother, [N.C.] had left them for 2 weeks at their grandmother's home. Worker agreed.

There is no indication that the twins "recognized and remembered" N.J., whom they had last seen when they were several weeks old.

Further, a two-week visit with their grandmother when the twins were infants hardly supports a description of N.J. as having been the girls' primary caretaker and, in our judgment, is not prima facie evidence that enforced visitation is in the twins' best interests.

The visit at which N.J. said the twins "recognized and remembered" her took place in July 2007. Our colleague says that DYFS "finally" arranged for this visit. The record makes clear, however, that DYFS first brought up the subject of visitation with N.J. several months earlier, but N.J. said her schedule did not permit it at the time.

Our colleague criticizes the manner in which both DYFS and Virginia treated N.J. Our colleague's opinion states that DYFS, "[r]ather than contact[ing] N.J.", contacted the twins' aunt, who "was very rude" to the DYFS worker. It then goes on to state that N.J. received a letter in February 2006 telling her that she had been "named as potential relative placement" for the twins, implying a significant delay had occurred in contacting N.J. The communication with the aunt, however, only took place several weeks earlier, in January 2006. Further, N.C. had originally told DYFS that she did not want the girls placed with N.J.

N.J. in her certification states, and our colleague repeats, that Virginia ultimately recommended against placing the twins with her because she had missed one parent-teacher conference for H.C. and had lost her employment. The Virginia report, however, contains far more information than one missed parent-teacher conference.

In the previous Quarterly Progress Report, this Worker indicated that there are concerns regarding [H's] grades. [H's] report card continues to reflect poor academic performance. [N.J.] reports that the poor grades are due to [H] failing to complete his homework and being lazy. During the previous home visit, this Worker strongly recommended that [H] should be evaluated by the school for a possible learning issue. This worker discussed this with [N.J.] and provided her with information. [N.J.] did not feel that [H] is in need of a learning evaluation. This Worker explained to [N.J.] that if [H's] first marking period grades are poor, then he needs to be evaluated. This Worker also strongly recommended that [H] attend tutoring in school. [N.J.] reports that [H] is scheduled to receive tutoring after school on Mondays, but chooses not to go. [N.J.'s] response to [H's] refusal to attend tutoring is that he is 16 years old and cannot be forced to attend tutoring. This statement is concerning, as H is a child, not an adult. N.J. reports that she will contact [H's] school for an evaluation for an Individualized Education Plan.

This Worker asked N.J. if she attended Parent/Teacher Conferences during the month of October. N.J. reported that she arrived at the school late and missed meeting with all of [H's] teachers. This Worker then asked whether she met with them at a later date. N.J. replied that she had not thought of rescheduling and has never met with any of [H's] teachers. This Worker explained the importance of meeting with [H's] teachers and playing an active role in his education.

Virginia attached to this report a copy of H.C.'s most recent report card. H.C. was taking seven courses; his grades included three F's and one D.

Our colleague states that the trial court's "findings and conclusions were based on a presumption that the time delay alone was sufficient to find that the twins' best interests were served by leaving them in the custody" of their foster family. The trial court's ruling, and our affirmance of it, rests upon more than the mere passage of time.

Earlier in our opinion, we referred to the expert testimony of Dr. LoBiondo at the guardianship trial. We consider it appropriate to note certain particulars of her testimony. When she was asked if the twins would suffer psychological harm if they were removed from their foster mother, Dr. LoBiondo responded with the following answer:

Well my understanding is that they've been there since they were very young, only a few months old. Now if that's correct and they're now twenty two months old, and they spent most of their lives with this particular person in her household so yes, this is the only parent that they've known and so it would be potentially harmful to remove them from her.

Dr. LoBiondo explained her answer.

Well it's hard to say what to expect definitively but we can say what is possible based upon what we know of development and children who are moved during critical periods of development tend to have difficulty with attachment or could have difficulty with attachment in later life. Some can even develop [a] disorder called reactive attachment disorder. That will not be true in every case but it's possible.

But these children are twenty two months old and they're language delayed so they're emotionally somewhat younger, somewhat younger than that. So this is a very important time for them developmentally and in terms of their primary attachment, creation.

They're very busy developing their personalities, developing that internal model of a nurturing close person that they can use to comfort them when they are -- as they become more independent and if we disrupt that, they would have to start not necessarily all over again but it would be a process that would take a toll on their systems at a time when there are multiple processes already going on.

In her written report, Dr. LoBiondo noted the presence of a "strong positive emotional bond" between the twins and their foster mother. More than a year and a half has passed since Dr. LoBiondo's report and testimony. It is not simply that time has passed, as N.J. argues and our colleague seems to agree. Bonds that existed have deepened; ties have become stronger.

Finally, we think it apparent from the argument before the trial court and the arguments presented to us that N.J. seeks far more than visitation. It is clear that her ultimate goal remains obtaining custody of D.C. and D.C. In that posture, we cannot consider unwarranted the apparent concerns of DYFS and the girls' foster family that further visitation by N.J. at this juncture could be disruptive to these little girls and their sense of security. The trial court acted well within its discretion when it declined to compel further visitation.

We perceive no substantial value to remanding this matter to the trial court. Such a remand, in our opinion, would achieve little and further delay the permanency for these girls.

After the Supreme Court denied N.C.'s petition for certification, a hearing to finalize the adoption of these two girls was scheduled for July 1, 2009. We granted N.J.'s motion to stay those adoption proceedings pending determination of her appeal. Having concluded that the trial court's order that is before us should be affirmed, we dissolve that stay.

The order under review is affirmed.

 

______________________________

PARKER, J.A.D., dissenting

I respectfully dissent from my colleagues' affirmance of the order entered by the trial court on October 1, 2008. The trial court presumed that time alone in the custody of the foster parent is sufficient to determine the permanent placement of children. I do not subscribe to that presumption.

My colleagues expand upon the trial court's decision, pointing to items in the record of this application that have not been tested in an evidentiary hearing. The majority faults my view for relying on N.J.'s affidavit, but that is precisely the reason why an evidentiary hearing is so necessary in this case. None of the evidence, except that presented at the termination trial, has been subjected to cross-examination or the illumination of issues if such a hearing had been held. Moreover, the majority looks to the record in the termination case, in which N.J. never had the opportunity to participate because, as she represents, DYFS told her to wait until conclusion of the termination trial before pursuing custody of the twins.

In my view, the circumstances presented here -- where the agencies were largely responsible for the delay in permanent placement of the children -- require at minimum an evidentiary hearing to determine whether the bond with the foster parent - resulting from the passage of time - vests the foster parent with the right to determine whether the twins may visit with their siblings before they are adopted by her.

The following background information is taken from the same record cited by the majority - clearly demonstrating why an evidentiary hearing is necessary to discern some semblance of the "facts" that should inform the decision of such magnitude for these children and their siblings.

N.J., the oldest of the twins' seven siblings, is no stranger to them. N.J. is now twenty-seven years old and lives in Richmond, Virginia, with her fiancé and her developmentally disabled, seventeen-year-old half-brother, H.C. N.J.'s pursuit of the twins' custody began when the twins and H.C were removed from their mother's custody on August 31, 2005 -- just one month after the mother moved to New Jersey from Virginia where N.J. and the children's maternal grandmother had been caring for them. When N.J became aware of the removal, she represents that she made several attempts to contact DYFS regarding the care and status of the children and that DYFS advised it could not help her locate the children or obtain information about them.

DYFS filed a protective services complaint on September 2, 2005 and the children were ordered to remain in its custody. On October 2, 2005, the mother informed DYFS that placement of the children with her mother and N.J. "was not an option . . . as her mother is older and has problems walking and standing for long period[s] of time, and her daughter has her own life." In January 2006, however, the mother told DYFS that she wanted the children "to be placed with her family in VA . . . where her roots are." When the mother indicated her intention to return to Virginia, she was told she could not live in the same home with the children. Rather than contact N.J., who had been attempting to obtain information about the children, DYFS contacted the children's aunt, who "was very rude on the phone and would not listen to what the worker was trying to explain to her."

In February 2006, N.J. received a letter and phone call from DYFS stating that she had been "named as a potential relative placement for [her] siblings." She immediately agreed to be assessed by VaCPS and completed the application for the interstate evaluation process. VaCPS initially expressed concern that N.J.'s apartment did not have a fenced play area for the children. When the landlord declined to install a fence, N.J. moved to a new apartment, which was approved by VaCPS for placement of the children. VaCPS report stated:

[N.J.] presents as a very personable young lady who appears to be mature for her age. [N.J.] has been compliant with the requests of the Richmond City Department of Social Services in completing the Criminal and CPS background checks, a home study and the foster parent training. All three references have reported positively in regards to the home environment that [N.J.] can provide these children. [N.J.] has a strong family support system to help her in caring for the children.

Richmond City Department of Social Services is approving [N.J] as a viable resource for the children.

. . . .

It is recommended that [H.C.] be the first child placed with [N.J.]. [H.C.] is going require services to be set up such as in home therapy, counseling, mentoring and being enrolled in school. This will also allow [N.J.] time to transition into the parenting role for her brother and having added responsibilities that she did not have as a single young female with no children.

In December 2006, DYFS cleared N.J. for custody of H.C. and sent him to her. She was advised that the twins would follow in thirty days. In a report dated March 8, 2007, VaCPS reported that H.C. was "glad to be with his family and . . . likes attending his current school." Notwithstanding its prior approval of N.J.'s apartment for the three children, VaCPS now indicated she needed a larger home and noted that she was planning to move. In a report dated August 31, 2007, VaCPS noted that N.J. moved to a new home on April 1, 2007, which had three bedrooms and a "spacious backyard and fence for protection."

The report stated that N.J. was employed as a loan officer with a home mortgage company with flexible work hours. VaCPS "approv[ed] the placement of [the twins] with [N.J.]. She is willing to make any necessary adjustments to meet the needs of [the twins]." [Emphasis added]. The report further indicated concerns with the "magnitude of the responsibilities that [N.J.] will be taking on regarding the children being placed in her home" and stated that it would provide a mentor experienced in working with special needs children. The children would also be eligible for financial aid in the form of foster board/subsidy adoption payments. VaCPS recommended that "DYFS arrange visitations between [N.J. and the twins] . . . to promote a smooth transition."

In July 2007, DYFS finally arranged for N.J. and H.C. to visit with the twins in New Jersey. According to N.J., the visit was "great," the twins recognized and remembered them. In August 2007, DYFS informed N.J. that the twins could not be transferred to her until after the termination of parental rights trial was concluded. While awaiting conclusion of the termination case, N.J. and H.C. again visited with the twins in October 2007. N.J. reported that this visit went well and she began to plan for the twins' return to Virginia. N.C.'s parental rights to the twins and H.C. were terminated on December 20, 2007. N.J. was awarded kinship legal guardianship of H.C. on January 15, 2008.

Meanwhile, unbeknown to N.J., VaCPS sent a new report to DYFS in December 2007 indicating that N.J. had been laid off from her job as a loan officer and that she had missed a parent-teacher conference at H.C.'s school. In this report, VaCPS indicated that H.C.'s grades were poor and recommended tutoring. The report stated that N.J. said she could not force him to go to tutoring because he was then sixteen. By the time N.J. learned of the new report, she had already obtained a new job as a loan officer. She explained that she missed the parent-teacher conference because H.C. had an appointment with the eye doctor and she had arranged another conference date. VaCPS agreed to revise its report to DYFS. Less than a month later, however, in January 2008, DYFS informed N.J. that it had ruled her out as a placement for the twins because they had bonded with the foster parent.

In March 2008, N.J. and H.C. visited with the twins once again. In April 2008, N.J. filed her application with the Law Division to have the twins placed in her physical and legal custody. The motion was argued on June 3, 2008, at which time the court determined that "the best interest of the children is the only thing that this [c]ourt needs to consider in a case like this." While acknowledging that this was an "unfortunate" situation "because . . . the courts of New Jersey are certainly always interested in having children placed with relatives and particularly siblings. So it's not any reflection on [N.J.] that this matter wound up with these children in foster care." (Emphasis added).

Without hearing any testimony as to the children's best interests or allowing N.J. to present any expert testimony of her own, the court found that because the twins were developmentally delayed and one had developed asthma and needed to use a nebulizer, the children should not be moved from the foster parent with whom they had been placed after their removal from their mother's custody on August 31, 2005. The court, however, did not see "any harm" in having the twins continue visits with N.J. and H.C. because the "foster mother intends to keep the door open here with the siblings, . . . [and] try to establish whatever relationship could be established in the time between now and when the appeal is finally over." Indeed, the court found that "if the relationships can be kept . . . it's always in their best interests." The court acknowledged that it did not even know at that point whether N.J. could take on the burden of the caring for the twins, but nevertheless made a best interests determination based solely on the length of time the twins had been with the foster mother.

After the trial court entered the order for continued visitation, N.J. attempted to schedule another visit, but on July 24, 2008, her attorney advised that the foster mother would not cooperate in allowing any further visits. N.J. then moved to enforce the June 3 order.

After argument on October 1, 2008, the trial court declined to enforce the order and again determined that because the twins had been with the foster parent since they were removed from their birth mother, it was in their best interests to remain with her, even though the foster parent would not cooperate and had by then disclosed her intent to move to Puerto Rico after the adoption was finalized, thereby removing any likelihood that the twins would ever be able to maintain a relationship with their siblings.

In this appeal, N.J. argues that the trial court improperly elevated the foster parent's rights over those of the siblings and that its ruling lacks evidentiary support. I agree.

We "ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J 261, 293 (2007)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (citing N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where they are supported by "substantial, credible evidence," however, such intervention is unwarranted. In re Adoption of Child by P.S., 315 N.J. Super. 91, 107 (App. Div. 1998).

New Jersey's Grandparent and Sibling Visitation statute provides, in pertinent part:

a. 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.

b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:

(1) The relationship between the child and the applicant;

(2) The relationship between each of the child's parents or the person with whom the child is residing and the applicant;

(3) The time which has elapsed since the child last had contact with the applicant;

(4) The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;

(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;

(6) The good faith of the applicant in filing the application;

(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and

(8) Any other factor relevant to the best interests of the child.

c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child's best interest if the applicant had, in the past, been a full-time caretaker for the child.

[N.J.S.A. 9:2-7.1.]

This statute is part of New Jersey's strong public policy supporting sibling visitation. The majority faults me for looking to the statute and views my criticism of the trial court's failure to reference it as unwarranted because the Supreme Court declined to decide whether the statute applied after parental rights had been terminated. N.J. Div. of Youth & Family Servs. v. S.S., 187 N.J. 556 (2006). We routinely look to statutory authority for guidance, however, even when the statute may not be expressly on point. Here, the trial court could have sought guidance in the statutory factors before concluding - without an evidentiary hearing - that the foster parent had a unilateral right to preclude sibling visitation before the adoption.

Moreover, in S.S. the Supreme Court stated:

The importance of sibling relationships is well recognized by our courts and social science scholars . . . . Some mental health experts 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." Nat'l Adoption Info. Clearinghouse, The Sibling Bond: Its Importance in Foster Care and Adoptive Placement 1 (1992), http://www.child-welfare.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, 66 Tenn. L. Rev. 977, 987 (1999) ("[O]ver the course of an entire lifespan, siblings have significant influence on each other's lives. If nurtured and maintained, these relationships can provide emotional security, affect the intellectual, social, emotional, and moral development of one another, and offer lifetime companionship."). Some commentators have noted that maintaining sibling relationships can provide a sense of stability in the lives of abused children placed outside of their natural homes. See, e.g., Mary Anne Herrick & Wendy Piccus, Sibling Connections: The Importance of Nurturing Sibling Bonds in the Foster Care System, 27 Child. & Youth Services Rev. 845, 851-52 (2005).

[S.S., supra, 187 N.J. at 560-61.]

The trial court readily acknowledged the strong public policy in favor of maintaining sibling relationships. At the June 3, 2008 hearing, the court commented that it is in the children's best interests to maintain family contacts wherever possible, even if the children are in foster care. The trial court spoke of the children's best interests in terms of bonding with the foster parent without considering whether the twins' best interests could be served by allowing them to visit with their siblings.

The trial court's recognition of the importance of sibling relationships was meaningless when it failed to conduct a hearing to determine whether it should enforce its prior order allowing visitation. The court essentially deferred to the foster parent the decision only it had the power to make - when the foster parent had already demonstrated her unwillingness to facilitate such visitation. If New Jersey's strong public policy of preserving sibling relationships is to be honored, the trial court must allow an evidentiary hearing at which N.J. must be permitted to challenge DYFS's representations and present her own expert testimony.

At the October 1, 2008 hearing, the court opined that as of June 3, 2008 (the previous hearing), "it was apparent to me that the sibling visitations were not 'harmful,' at least at that time." The specific harm it then saw on October 1 was based on two events: a letter written by N.J. to the foster parent, but never delivered to her, which in the court's opinion displayed a tone indicating that N.J. "apparently is still looking to hopefully take these children back from the foster parents [sic] and be their custodian;" and a telephone conversation between N.J. and the daughter of the foster parent, in which "apparently there was some indication of rudeness" on N.J.'s part.

Neither the letter nor the telephone call, however, rises to the level of disqualifying N.J. from being entitled to visitation with the twins. The letter was never delivered to the foster parent, and the phone call was placed not by N.J., but by the daughter of the foster parent to N.J.

Inexplicably, N.J. does not challenge the trial court's June 3, 2008 order in which it denied her motion for legal and physical custody of the twins. In my view, the June 3 ruling was erroneous because it was based upon one-sided evidence presented by DYFS and without an evidentiary hearing when critical facts were in dispute. N.J. never had the opportunity to present testimony in support of her application. Thus, the trial court's findings and conclusions were based on a presumption that the time delay alone was sufficient to find that the twins' best interests were served by leaving them in the custody of the foster parent. In my view that is insufficient.

Even a cursory review of the record before us demonstrates the substantial divergences of the "facts" reported by DYFS, VaCPS and N.J. As indicated earlier in this dissent, the record was untested at an evidentiary hearing. Given the issues presented on appeal, I would reverse the October 1, 2008 order and remand the matter for a hearing to allow the concerned parties to present testimonial evidence and for the trial court to consider the statutory factors in its determination.

 

That transfer occurred under the auspices of New York; New Jersey did not have jurisdiction over that child.

The majority noted that N.J.'s fiancé has not been cleared for custody of the twins. Nothing in the record, however, indicates that Virginia Child Protective Services (VaCPS) was not aware that he lived with N.J.

(continued)

(continued)

2

A-1608-08T4

RECORD IMPOUNDED

September 3, 2009