I have previously posted several blog entries about custody and parental rights where DYFS (“Division of Youth & Family Services”), NJ’s child protective agency, has involvement. To read those posts click here, here, or here.
On September 29, 2010, the NJ Supreme Court issued an opinion addressing the standards to be applied to a sibling’s request for visitation after children are placed outside the natural family’s home and after they are adopted. The opinion of In the Matter of D.C. and D.C., Minors provides guidelines for those siblings who seek to continue a relationship with their adopted and/or placed siblings and addresses a very important issue for families across this state.
The facts of D.C. can be summed up as follows: Nellie, the biological sister of Hugo and twins sought custody and visitation of her siblings after DYFS removed the children from her mother’s care and placed them in separate homes. In 2005, Nellie, then age 23, resided in Va. Hugo was 14 years old at the time. In 2006, Hugo was placed with Nellie. In 2007, DYFS discussed visitation of the twins with Hugo and Nellie. In August 2007, Va.’s child placement agency (“RDSS”) approved placement of the twins with Nellie and Hugo but expressed concerns about Nellie’s ability to support the children. Based on that concern, visitation was recommended to ease the transition. Then, in late 2007, RDSS rescinded its recommendation for placement of the twins with Nellie and Hugo because of Hugo’s poor grades and Nellie’s job loss.
The biological mother’s parental rights were terminated in December 2007. In January 2008, DYFS approved Nellie as kinship legal guardian of Hugo, but not the twins. At the same time, Nellie was informed visitation with the twins would stop. In April 2008, Nellie filed an action seeking placement of the twins in her care or alternatively reestablishing the sibling visitation. DYFS opposed her application.
In June 2008, the trial court held that the twins should remain with their foster mother who was agreeable to visitation at that time. The court did not provide a specific visitation schedule but relied on DYFS to facilitate and fund the visitation. One month later the foster mother changed her mind and was no longer agreeable to visitation. In October 2008, the trial court held that it couldn’t order the foster mother to permit visitation. The Appellate Division affirmed, stating that it was DFYS’ responsibility to determine whether visitation was in the twins’ best interest. The NJ Supreme Court granted certification.
The Supreme Court wrote a detailed and carefully crafted decision that sought to strike a fair balance between the relationship between siblings and a parent’s right to autonomy in raising a child. The Court held that under the Child Placement Bill of Rights Act, visitation between siblings placed outside the home is presumed in the period before adoption and DYFS has an independent obligation to facilitate visitation. In order to oppose visitation, DYFS must prove it’s contrary to the child’s welfare under the standards set forth in the Child Placement Bill of Rights Act. Parental autonomy isn’t absolute and a biological or adoptive family may be ordered to allow third-party visitation to avoid harm to the child. This holding has been applied to grandparent’s requests for visitation with their grandchildren.
The Child Placement Bill of Rights Act governs sibling visitation during the period when a child is placed outside it’s biological family’s home, including after parental rights have been terminated. Under this Act, DYFS has an obligation to nurture sibling relationships, regardless of whether a sibling has initiated the process or if termination has occurred. If DYFS opposes the visitation, it bears the burden of proving, under the standards set forth in the Child Placement Bill of Rights Act, that the visitation would be inconsistent with the health, safety and welfare of the child and the child’s development. A foster family’s disinclination to be involved with sibling visitation is not a relevant factor. This even means that siblings can petition for visitation with their brothers and sisters who have been adopted by non-relatives. The sibling must establish beyond a preponderance of evidence that visitation is necessary to avoid harm to the child. This is the same standards courts are to apply to requests for grandparent visitation.