K.D. VS. A.S. (FD-15-0550-19, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3543-18T4
K.D.,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
March 5, 2020
v. APPELLATE DIVISION
A.S.,
Defendant-Respondent.
__________________________
Argued January 23, 2020 – Decided March 5, 2020
Before Judges Fuentes, Mayer and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County,
Docket No. FD-15-0550-19.
Jeyanthi C. Rajaraman argued the cause for appellant
(Legal Services of New Jersey, attorneys; Jeyanthi C.
Rajaraman, of counsel and on the briefs; Melville D.
Miller, Jr., on the briefs).
A.S., respondent, argued the cause pro se.
Erin O'Leary, Assistant Attorney General, argued the
cause for amicus curiae New Jersey Division of Child
Protection and Permanency (Gurbir S. Grewal,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Erin O'Leary,
on the brief).
The opinion of the court was delivered by
ENRIGHT, J.S.C. (temporarily assigned).
In this case, we are asked to determine whether a child's biological
mother, who entered an identified surrender of her parental rights to her
biological mother, the child's maternal grandmother, has standing as the child's
legal sibling, per N.J.S.A. 9:2-7.1, to seek visitation rights against a non-
relative adoptive mother. Stated differently, do biological parents who enter
an identified surrender of their children to their biological parents become
their children's legal siblings? We are satisfied the answer is no. As our
Supreme Court made clear in Moriarty v. Bradt, 177 N.J. 84, 114-15 (2003)
and reaffirmed in Major v. Maguire, 224 N.J. 1, 6 (2016), N.J.S.A. 9:2-7.1 is
subject to strict scrutiny because this statute intrudes on a parent's fundamental
right to raise a child as that parent sees fit. Permitting biological parents, who
knowingly and voluntarily enter identified surrenders of their parental rights,
to acquire the legal rights of siblings pursuant to N.J.S.A. 9:2-7.1 would ignore
the Supreme Court's admonition in Moriarty and Major, and cause needless
disruption and apprehension to countless families who have opened their
homes and their hearts to children in need of adoption.
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I
We summarize the salient procedural history and facts of this highly
idiosyncratic and litigious case in order to give context to our legal analysis.
Plaintiff K.D. appeals from the March 7, 2019 denial of her request to
continue visitation with her biological son, Sam, against the wishes of his non -
relative adoptive mother, defendant A.S.1 K.D. also appeals from the February
8, 2019 order granting amicus status to the Division of Child Protection and
Permanency (Division). We affirm.
Sam was born in 2006. He was diagnosed with Autism Spectrum
Disorder with combined repetitive and expressive language disorder,
developmental fine motor coordination disorder and attention deficit
hyperactivity disorder. The Division removed Sam from his mother's care at
age three, after he was found crying in the middle of an intersection, while
K.D. was intoxicated.
K.D. and Sam's biological father 2 entered into identified surrenders to
allow Sam to be placed with his maternal grandmother, A.D. Once K.D.'s
parental rights were terminated, along with those of Sam's biological father,
1
We use fictitious names for the child and initials for the adults to protect the
privacy of the parties and the minor involved in this matter. R. 1:38-3(d)(12).
2
Sam's biological father is not involved in the instant appeal.
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A.D. adopted Sam in March 2012. Unfortunately, A.D. passed away six weeks
after adopting Sam. Carolyn, Sam's biological sister, agreed to care for him.
However, this arrangement proved to be short lived. A few months after
A.D.'s death, Carolyn advised the Division she was unable to care for her
special needs brother on a permanent basis. She agreed to temporarily care for
him until the Division found a suitable permanent placement. In May 2013,
Sam was placed in A.S.'s care, where he remains.
K.D. engaged in treatment for her alcoholism after her parental rights
were terminated. In June 2014, K.D. filed a motion pursuant to Rule 4:50-1 to
set aside her identified surrender in her guardianship action in Hudson County
and to vacate the judgment of adoption granted to A.D. in Middlesex County.
On January 9, 2015, the motion judge in Hudson County denied K.D.'s
application to set aside her identified surrender and directed her to prosecute
her application to vacate A.D.'s adoption in Middlesex County. K.D. appealed
the order issued by the Hudson County judge. Sam remained in A.S.'s care
during the pendency of K.D.'s appeal.
Consistent with the Family Part decision in Hudson County, K.D. filed
an application in Middlesex County to vacate Sam's adoption by A.D. The
Family Part in Middlesex County heard and denied K.D.'s application to vacate
the adoption as well as her motion for reconsideration. The Middlesex County
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judge memorialized these decisions in orders dated February 27, 2015 and
April 13, 2015, respectively.
Before the Family Part judge in Middlesex County denied K.D.'s motion
for reconsideration, K.D. moved before this court to supplement the record in
her appeal of the order entered by Hudson County Family Part judge. In an
order dated June 3, 2015, this court denied K.D.'s motion without prejudice
and "temporarily remand[ed] the matter to the trial court for the limited
purpose of allowing [K.D.] to file a Rule 4:50 motion in the trial court based
upon [an] alternative theory of changed circumstances." This court also
retained jurisdiction and directed the parties and the Hudson County Family
Part judge to complete all the necessary proceedings within ninety days.
The motion judge adhered to this court's directions and timeframe and
after employing the two-prong test from In re Guardianship of J.N.H., 172 N.J.
440, 474-75 (2002), the judge found K.D. had presented sufficient evidence of
changed circumstances. However, the motion judge also found K.D. did not
prove it was in Sam's best interests to change his placement or to return him to
K.D.'s care and custody. K.D. thereafter amended her notice of appeal to
include this final decision by the Family Part in Hudson County and the orders
issued by the Family Part in Middlesex County denying her application to
vacate the adoption.
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On June 1, 2017, this court affirmed the order entered by the Family Part
judge in Hudson County that "reject[ed] [K.D.'s] challenges to the orders
denying her post-judgment attempts to set aside the voluntary surrender of her
parental rights in favor of [A.D.]" N.J. Div. of Child Prot. & Permanency v.
K.D., Nos. A-2651-14 and A-5513-14 (App. Div. June 1, 2017) (slip op. at
10). We also "conclude[ed] that the Middlesex [County] judge properly
denied the motion to set aside the judgment of adoption." Id. at 12. In
reaching this decision, we expressly held K.D. had not demonstrated that her
"voluntary surrender was ineffectual to terminate her parental rights or that it
is inequitable to further enforce the April 27, 2011 guardianship judgment."
Ibid.
Finally, although not raised as an issue in the appeal, our colleagues took
an extra step to point out the following:
This brings us to the October 1, 2012 order, which
posthumously terminated [A.D.'s] parental rights.
Although [K.D.'s] appeals in the guardianship and
adoptions matters do not implicate this order, which
was entered in a separate matter not before us for
review, we cannot ignore the fact that this order
suffers from the same disabilities found in defendant's
motion to vacate the judgment of adoption. There is
no evidence that notice was given to [A.D.'s] personal
representative or to [K.D.], who, upon [A.D.'s]
adoption of the child, had become in the eyes of the
law the child's sibling. And the Division's application
sought relief the court was not empowered to give: the
termination of parental rights of a deceased parent.
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The issue resolved by that court had been rendered
purely academic; any debate about [A.D.'s] parental
rights ended with her death.
[Id. at 12-13 (emphasis added).]
A.S. adopted Sam on December 3, 2018. As noted earlier, Sam began
residing with his adoptive mother in May 2013, when he was six years old. He
is now fourteen. Although the Family Part authorized K.D. to have limited
visitation rights before A.S. adopted Sam, A.S. decided not to continue the
visits after the adoption became final. K.D. filed an order to show cause on
December 11, 2018, seeking to reinstate her visits over A.S.'s objection. A
Family Part judge in Ocean County denied K.D.'s application for emergent
relief. Although not a party in the case, the Division opposed K.D.'s
application to have visitation rights to Sam and moved to intervene. The court
denied the Division's motion to intervene but granted its supplemental
application to appear and participate as amicus curiae.
On March 7, 2019, the judge heard oral argument on K.D.'s application
to reinstate regular visits with Sam and also heard A.S.'s cross-motion to
dismiss. Because the parties presented documentary evidence which was
outside the four corners of the factual allegations in the pleadings, the judge
sua sponte decided to treat A.S.'s dismissal application as a motion for
summary judgment under Rule 4:46-2(c).
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The judge analyzed K.D.'s request for visitation under certain legal
frameworks, including: her status as the child's biological mother whose
parental rights had been terminated under Title 30; a legal sibling, pursuant to
N.J.S.A. 9:2-7.1; and a psychological parent. See V.C. v. M.J.B., 163 N.J.
200, 223 (2000). The judge concluded that none of these analytical paradigms
created the "exceptional circumstances" necessary for the court's intervention.
Moriarty, 177 N.J. at 114. He further found that under any of these paradigms,
K.D. failed to establish a prima facie case that visitation with Sam was
necessary to avoid harm to the child. Accordingly, the judge determined there
was no need for an evidentiary hearing and he denied K.D.'s request to compel
visits over A.S.'s objection. K.D. filed this appeal after we denied her
application for emergent review.
II
On appeal, K.D. argues the judge's denial of her visitation motion,
without conducting a plenary hearing, constitutes error. Moreover, she
contends the judge erred in allowing the Division amicus status. We disagree.
We start our analysis by addressing whether K.D. became Sam's sibling
"in the eyes of the law" upon A.D.'s adoption of Sam, as mentioned by our
colleagues in their June 1, 2017 unpublished opinion. We are satisfied our
colleagues' reference to K.D.'s sibling status is not legally binding on us based
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on two separate grounds. First, this legal "characterization" of K.D. was
indisputably dictum. Indeed, our colleagues acknowledged in their 2017
opinion that such commentary pertained "[to] a separate matter not before us
for review." K.D., at 12. It is well-settled that "[d]ictum is a statement by a
judge 'not necessary to the decision then being made[,]' and 'as such it is
entitled to due consideration but does not invoke the principle of stare
decisis.'" Bandler v. Melillo, 443 N.J. Super. 203, 210 (App. Div. 2015)
(quoting Jamouneau v. Div. of Tax Appeals, 2 N.J. 325, 332 (1949))
(alteration in original). Second, as Rule 1:36-3 makes clear, "[n]o unpublished
opinion shall constitute precedent or be binding upon any court."
There are profound public policy ramifications to characterizing K.D. as
the legal sibling of her biological son under these circumstances. We begin
our discussion of this extraordinarily delicate area of law, mindful of our
Supreme Court's admonition in In re D.C.:
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
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it is necessary under the exercise of our parents patriae
jurisdiction to avoid harm to the child. That principle
governs adoptive families as well.
[203 N.J. 545, 551-52 (2010).]
As a "parent is entitled to a presumption that he or she acts in the best
interests of the child, . . . the parent's determination whether to permit
visitation is entitled to 'special weight.'" Major, 224 N.J. at 15 (citing Troxel
v. Granville, 530 U.S. 57, 67-69 (2000)). Thus, "the need to avoid harm to the
child is 'the only [S]tate interest warranting the invocation of the State's parens
patriae jurisdiction to overcome the presumption in favor of a parent's decision
and to force [third-party] visitation over the wishes of a fit parent[.]'" Id. at 16
(quoting Moriarty, 177 N.J. at 115) (second alteration in original).
"[A]bsent a showing that the child would suffer harm if deprived of
contact with [the third party], the State [can]not constitutionally infringe on
parental autonomy." Ibid. (citing Moriarty, 177 N.J. at 115). When the third
party does demonstrate such harm, the presumption in favor of parental
decision-making is overcome, and the parent is then obliged to offer a
visitation schedule that is in the child's best interest. Id. at 17. These
principles are applicable to the instant matter, as "[a]ll of the attributes of a
biological family are applicable in the case of adoption." D.C., 203 N.J. at
551.
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On appeal, K.D. renews her argument that Sam will suffer harm if he is
not permitted visits with her and she relies on the case of Kattermann v. Di
Piazza, 151 N.J. Super. 209 (App. Div. 1977) to support her request for post -
adoption visits. Her argument is unavailing. As the Family Part judge aptly
recognized, the Kattermann court applied a now outdated best interests
standard to factual circumstances distinguishable from the case at hand.
Further, as the Moriarty Court made clear, "interference with parental
autonomy will be tolerated only to avoid harm to the health or welfare of a
child." Moriarty, 177 N.J. at 115. Moreover, almost a decade ago, the D.C.
Court confirmed the best interests standard should not be utilized in third -
party, post-adoption visitation disputes, noting:
the application of the best interests standard to a third
party's petition for visitation is an affront to the
family's right to privacy and autonomy and . . .
interference with a biological or adoptive family's
decision-making can only be justified on the basis of
the exercise of our parens patriae jurisdiction to avoid
harm to the child.
[D.C., 203 N.J. at 573 (emphasis added).]
Therefore, a third party seeking to compel contact with a child over an
adoptive parent's wishes must meet the threshold burden of proving by a
preponderance of evidence that the child will suffer harm without the contact.
In fact, the moving party must demonstrate "a particular identifiable harm,
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specific to the child." Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div.
2005). As the D.C. Court confirmed, "an adoptive family is not entitled to
greater protections than a biological family. Thus, to the extent that visitation
by a third party may be compelled over the objections of a biological family,
the same rule applies to an adoptive family." 203 N.J. at 570. Clearly, then, it
is settled law that siblings by adoption have the same legal rights as biological
siblings.
Guided by these principles, we review the Grandparent and Sibling
Visitation Statute, which 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. 9:2-7.1(a).]
Accordingly, the question here is whether K.D. became Sam's legal
sibling when she voluntarily agreed to surrender her parental rights to Sam's
maternal grandmother. If so, she can pursue her rights as a sibling under
N.J.S.A. 9:2-7.1(a).
We hold that to recognize K.D. as the legal sibling of her biological son
under these circumstances would violate the public policy underpinning the
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Division's role under Title 30. We are also satisfied that the Legislature did
not intend to sanction such an outcome when it adopted N.J.S.A. 9:2-7.1.
N.J.S.A. 30:4C-15.1(a) allows a court to permanently sever the legal
relationship between a parent and child only after the court comes to the
consequential decision that a child's welfare has been or will continue to be
endangered by the parental relationship and "proof of parental unfitness is
clear." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012);
see In re Adoption of Child by J.E.V., 442 N.J. Super. 472, 481 (App. Div.
2015) (confirming that "[a]fter the elimination of the death penalty, we can
think of no legal consequence of greater magnitude than the termination of
parental rights.").
Here, K.D.'s decision to enter a voluntary surrender of her parental rights
to her biological son in favor of the child's maternal grandmother permanently
and irrevocably severed all of her legally cognizable familial rights to her son.
Thus, K.D. does not fall within the class of litigants empowered to bring a
summary action under N.J.S.A. 9:2-7.1. Stated differently, K.D. does not have
standing to bring a visitation action in the Family Part under N.J.S.A. 9:2-7.1
because she is not her biological son's legal sibling. As we have
acknowledged, "[a]n adoptive family must be given the right to grow and
develop as an autonomous family, and must not be tied to the very relationship
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that put the child in the position of being adopted." In re Adoption of a Child
by W.P., 163 N.J. 158, 175 (2000). A contrary ruling would consign adoptive
parents to an inferior status. Ibid.; see Mimkon v. Ford, 66 N.J. 426, 441
(1975) (Clifford, J., dissenting).
Next, we acknowledge that an adoptive parent may voluntarily permit a
child to maintain contact with a biological parent. See In re Guardianship of
D.M.H., 161 N.J. 365 (1999). However, as the motion judge recognized,
granting K.D. legal standing to bring a visitation action as a biological parent
would create the functional equivalent of an open adoption. Our Supreme
Court has made clear that the subject of open adoptions "represents a
significant policy issue which should be addressed in separate legislation." In
re Adoption of a Child by D.M.H., 135 N.J. 473, 494 (1994) (quoting Senate
Judiciary Committee, Statement to Senate, Bill No. 685 (1993)).
Accordingly, unless otherwise decided by the Legislature, the judiciary
has no authority to compel A.S. to permit contact between K.D. and Sam based
on K.D.'s biological connection to Sam or her identified surrender to Sam's
maternal grandparent. For the sake of completeness, we also find no basis to
disturb either the motion judge's determination that K.D. does not meet the
criteria to be considered Sam's psychological parent or his decision that no
evidentiary hearing was required.
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Finally, K.D. contends the Family Part judge erred in granting the
Division amicus status and improperly relied on the Division's factual
assertions. Again, we disagree.
Rule 1:13-9 provides that a court "shall grant the motion [for leave to
appear as amicus curiae] if it is satisfied under all the circumstances that the
motion is timely, the applicant's participation will assist in the resolution of an
issue of public importance, and no party to the litigation will be unduly
prejudiced thereby." The order must then define the permitted extent of
participation of amicus. Ibid.
The Division's "statutory mission is to protect the health and welfare of
the children of this state." N.J. Div. of Youth & Fam. Servs. v. E.B., 137 N.J.
180, 184 (1994) (citing N.J.S.A. 30:4C-4). "Traditionally, the role of amicus
curiae was to be advisory rather than adverse." In re State ex rel. Essex Cty.
Prosecutor's Off., 427 N.J. Super. 1, 5 (Law Div. 2012) (citing Casey v. Male,
63 N.J. Super. 255, 258 (Cty. Ct. 1960)). However, the Third Circuit held that
amicus need not be impartial, and that even when parties are very well
represented, amicus "may provide important assistance to the court."
Neonatology Assocs., P.A. v. Comm'r, 293 F.3d 128, 132 (3d Cir. 2002).
Further, "Rule 1:13-9 has been interpreted as establishing 'a liberal standard
for permitting amicus appearances.'" In re State ex rel. Essex Cty. Prosecutor's
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Off., 427 N.J. Super. at 5 (quoting Pfizer, Inc. v. Dir., Div. of Tax'n, 23 N.J.
Tax 421, 424 (Tax 2007)).
Here, the judge determined the Division could participate as amicus but
specified its participation was limited to "the issue of post[-]adoption visitation
by a third party, inclusive of any collateral issue raised by the parties." We are
satisfied he did not abuse his discretion in this regard, particularly given the
Division's involvement with Sam from 2009 onward. While the Division's
position was adverse to K.D.'s post-adoption application, this lone fact did not
preclude the Division's involvement as amicus.
Family courts have special expertise in family matters and "appellate
courts should accord deference to family court factfinding." Cesare v. Cesare,
154 N.J. 394, 413 (1998). "Therefore, an appellate court should not disturb the
'factual findings and legal conclusions of the trial judge unless [it is]
convinced that they are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs. Ins. Co., 65
N.J. 474, 484 (1974)) (alteration in original). However, "[a] trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference." Manalapan Realty, LP v.
Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (citations omitted).
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Governed by these standards, we are satisfied the record amply supports
the motion judge's factual findings. Considering those findings, as well as the
legal principles we have highlighted, we perceive no basis to disturb the
judge's decision to deny K.D. post-adoption visits without the necessity of an
evidentiary hearing.
To the extent we have not addressed K.D.'s remaining arguments, we
find them lacking in merit. R. 2:11-3(e)(1)(E).
Affirmed.
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