In Re the Adoption of a Child by W.P.

representatives of constituen- includes those subcommittee cies. PORITZ and reversal and remandment —Chief Justice

For GARIBALDI, STEIN, COLEMAN, O’HERN, LONG Justices and VERNIERO —7.

Opposed—None.

748 A.2d 515 IN THE MATTER OF THE ADOPTION A CHILD BY W.P. AND M.P. OF Argued April October 1999 Decided 2000. Milks, Dinegar argued the Harriet Miskowski and James W. Miskowski, (MacFall, M.P., Riedl & appellants cause for W.P. attorneys). Solomon, respondents argued cause for K.S.

Toby (Ms. Solomon, Kathleen M.J.S., attorney; Ms. Solomon and briefs). Morehouse, on the General, Seaton, Attorney argued Deputy Senior

Ann Marie Family of Youth and Ser- amicus curiae Division the cause for (John Farmer, Jr., Jersey, Attorney of New General vices J. General, Jacobson, Attorney of coun- attorney; Mary Assistant C. sel). by opinion was delivered

The Court GARIBALDI, J. 9:2-7.1 appeal pursuant whether to N.J.S.A.

The issue this (the Statute”), by grandparental visitation “Grandparent objec- over the biological grandparents can be enforced a child’s issue, we adoptive parents. To resolve that tions of nonrelative the Grand- an award of visitation under must determine whether public policy conflicts with Visitation Statute (the Act, “Adoption to Jersey Adoption N.J.S.A. 9:3-37 -56 New family. Act”), adopted by intact when a child is a nonrelative I. 11, 1994, parents August on to unmarried JH

V was born old, placed nonrelatives six months JH her with TS. When V was (the TS, “petitioners”). “adoptive parents,” or WP and MP father, execut- biological was incarcerated at that time. JH child’s n rights were adoption parental and her ed a consent for Vs terminated. prospective adoptive parents eomplaint

The adoption. filed a for 2,1995. objecting adoption May TS filed formal answer to the on (the parents, His “grandparents” “respondents”), KS and MS or V, application custody filed an to intervene permit to obtain visitation, grandparental permit complaint and to them to file a adoption granted of V. The court right on custody intervene the issues of if visitation and However, granted. application was not their adopt July In was denied. prison. TS was released from He parents resided with his Septem- worked for his father. On 15, 1995, granted rights, ber TS was and an order was allowing parents entered accompany during his him his visita- The grandparents’ tions. order later was amended to make the presence mandatory. January TS’s visitations TS was again, possession handguns arrested this time for and theft of action, from his father’s home. As a result of that TS’s Restraining against obtained Final him Order under the Domes- tic Violence Law.

Ultimately, parental rights TS’s were terminated court order objection. appeal over his TS’s from that order was denied Appellate M.P., Division. In re a Child W.P. and N.J.Super. (App.Div.1998). 706 A .2d panel supported found that the record the court’s conclusion that TS was unfit to act in a role and that continuation of TS’s parental relationship place jeopardy. would V in substantial It drugs,” noted TS’s “chronic addiction to that he “has lived a life of crime,” punctuated by lengthy periods and that his “life has been observed, of incarceration.” Id. at 706 A.2d 198. It further parents place “TS’s volatile with his him in would concerning care, ability conflict issues of child and thus their raising inevitably assist in [V] would be subverted.” Id. at added). (emphasis 706A.2d 198

An hearing By was held in March 1998. order dated 1, 1998, April the court that grandpar- directed visitation the Sunday every ents on the third of month was to continue. The grandparents to adoptive parents and the directed the order also following continue the visitation should briefs on whether submit adoption. final order of 1, 1998, Judgment a Final of trial entered April, the court

On part: Adoption provided that Judgment all shall terminate relationships of this 3. The entry father, [TS], as well mother, [JH], and the birth and putative between the child obligations rights, those founded on relationships, all and duties, any person including rights of the State of New of inheritance under the laws intestacy the rights of this which have vested the prior entry for any may Jersey except

judgment; and rights, Judgment shall establish the same relationships, 4. The of this entry adopting obligations ifas the child the child and the parents between duties, including marriage, adopting all in lawful was to the parents born laws of intestacy. inheritance under the opinion, the trial court found Subsequently, unpublished in an constitutional even as Grandparent Statute was that the that the “intact” families. The court also held Grand- applied to Adoption Act were not inherent- and the Visitation Statute Instead, parental rights court that when ly in conflict. the found terminated, statutory required an assess- scheme have been basis, case-by-case grandparental visitation on ment of continued determining factor. being the child with the best interests of V, grandparents and existing relationship between the Given hearing to afford the trial court held that there should be opportunity to demonstrate that continued visita- grandparents an pursuant to the factors enumerated tion will in Ws best interest 29, 1998, the On October in the Visitation Statute. ongoing continuing the court entered an order hearing on the issue of what scheduling a for December visitation, any, if should be ordered. grandparental appeal a motion for leave to filed order, unpublished Appellate granted. In an Division which interlocutory appeal had opinion, panel concluded ruling panel that a improvidently granted. The determined been Grandparent Visitation Statute and interplay between the on hearing from the best interests Act would benefit Nonetheless, by Appellate called for the trial court. Division Among offered numerous and tentative observations conclusions. implicitly them was the court’s conclusion that the Act contemplates rights post-adoption by biological family members. granted adoptive parents’

We motion for leave to file within 328, appeal. time and their motion leave 161 N.J. 736 A.2d (1999). II. appeal question statutory interpreta

We view this as a Act, Grandparent tion of the Visitation Statute and the applied biological grandparents to the who seek objections adoptive parents visitation over the of nonrelative fol lowing parental rights biologi the termination of the of the child’s parents, by cal either consent or court order. We conclude present that such the two cases inherent conflict between overriding public statutory policy statutes and find regarding adoptions preclude application Grandpar law intact, adopted by ent Visitation Statute when the child is nonrela adoptive parents. statutory tive Because we decide this case on grounds, argument we do not address the constitutional raised parties. Grandparent

A. The Visitation Statute 1972, Jersey Legislature the New enacted its first version of (L. 1971, Visitation Statute. 9:2-7.1 c. N.J.SA 1972). 1, Statute, § effective Feb. The Visitation amended 1973, standing only afforded to seek visitation ... when “either or both of the of a minor child is or are deceased, living separate apart or divorced or different (as 100, by L. habitats----” N.J.SA 9:2-71 amended c. 1). § subsequently again was Statute amended 1987 to siblings apply allow for visitation with child. N.J.S.A. 9:2- (as 2). Thus, prior § L. 7.1 amended c. divorce) (those disrupted not death or were “intact” families subject statutory rights grandparents. of to visitation not 9:2-71, provide: to In was amended N.J.S.A. sibling residing in this make or of a child State may a. A any Court, in with the Rules of for an Court, before the accordance application Superior of the to aby order for visitation. It shall be the burden applicant prove granting of visitation is in the best interests of the evidence that the

preponderance of child. the making on an filed to this the section, In a determination application pursuant b. followingfactors: court shall consider the (1) the child and the The between applicant; relationship (2) of child’s or the with whom The between each the parents person relationship residing the the child is and applicant; (3) which has since the child last had contact with the applicant; The time elapsed (4) that such visitation will have on the between the child The effect residing; child’s or the with whom the child is and the parents person (5) sharing arrangement which If the are divorced or the time parents separated, regard to child; exists between the with the parents (6) good filing The faith of the in the application; applicant (7) neglect or of emotional or sexual abuse the Any history applicant; physical, and (8) the child. other factor relevant to the best interests of Any regard section, c. to made to this it shall be prima With any application pursuant if the had, facie evidence that visitation is the child’s best interest applicant for the child. the been a full-time caretaker past, (as (effective 1993)).] § [N.J.S.A 9:2-7.1 L. c. June 1993, 161, amended by expanded scope grandparents’ The new statute of rights requirement removed the the birth and Visitation Stat- deceased or divorced. amended 29,1993. ute became effective June B. 9:3-50 Act N.J.S.A. of Legislature Toward the end of amended N.J.S.A. 9:3- Act, adoption; relationships 50 of the entitled “Effect of inheritance,” child; parent rights provide: of of and (Deleted 345). 14.a. c. amendment, P.L.1993, judgment same b. The of a of shall establish the entry adoption relationships, rights, adopting if and between the child and the as the child parent responsibilities adopting good born to the in lawful wedlock. For the court cause, were parent judgment action was direct the of nunc tunc as of the date the may entry pro applying instituted. In the intestate laws of this child shall have State, adopted rights adopting same of inheritance if in lawful born wedlock. parent judgment c. The of a of shall: entry adoption (1) rights terminate all and of the towards the responsibilities parent child for a who is the of the except parent spouse petitioner except rights judgment those have vested of the prior entry adoption; (2) rights through terminate all or inheritance under from intestacy parent unless that is the or that or other relative parent spouse petitioner judgment had died to the prior adoption; (3) through all terminate inheritance under from or the child intestacy which to the existed prior adoption. counseling adopting d. The court order for the may parents. (as (effective 27,1994)).] [N.J.S.A. 9:3-50 L. § c. amended by April 9:3-50, revising Legislature language N.J.S.A. deleted terminate, appearing setting, rights, duties obligations any person upon” “founded biological parents. between the child and the That amended 27,1994. April statute became effective on Legislature, revising assert that the in Adoption in Adoption Act intended to harmonize the Act Statute, year. with the Visitation enacted earlier in the same However, legislative history an examination of the of the two Legislature statutes reveals that the did not revise the it, it, Act Grandparent to conform or harmonize with the Visitation Statute, adoptions. but amended the Act to facilitate History Legislative Grandparent

C. Visitation Statute 20, 1993, May Assembly approval gave On the General final to Grandparent signed The bill was into law Statute. by Governor Florio on June and became effective that stated, day. previously same As the new law eliminated the deceased, requirement sepa- that a child’s divorced or rights. in grandparent apply rated order for a to for visitation Instead, provides any sibling that “a or statute visitation, residing may apply a child in this for and it State” Superior eight instructs the Court to consider enumerated factors determining grant in the when whether the of such visitation is best interests of the child. form, factors, original requiring

In its the bill did not enumerate child, only in the of the with no that visitation be best interests response that guidance apparent the courts. In an to concerns .sanctity gross privacy of the it constituted “a invasion amended, unit,” setting eight forth the factors the bill was way limiting the intrusive elements of the act. See Letter as a Cheifetz, Wolfe, Cary Esq., B. & to Gov. Jim Florio from Skoloff (Dec. 1992) (enclosing proposed setting specific forth bill interests). protect criteria that child’s best Assembly Bill precursor A to the current statute No. was expressly That bill prefiled for introduction the 1990 session. objections required of a would have that the court consider (i.e., application parent’s parent grandparent). Assembly Bill the child’s See No. Prefiled for According the bill statement Introduction the 1990 Session. purpose provision accompanying Bill No. of that was to parent’s grant “ensure that the court does not visitation to a own object considering parent may whether the blood relatives without added). 2 (emphasis Although Id. at such visitation.” bill, provision suggests not enacted in the final it that the was autonomy Legislature believed that should be afforded Moreover, deference. we observe that the statement was written that, parent’s suggests in terms of “a own blood relatives.” That form, at least its earlier Visitation Statute was apply adoption. not intended to to a nonrelative History Legislative Adoption D. Act after it On December almost 7 months enacted Statute, Assembly Grandparent gave approval final Assembly to Bill Bill That enactment No. No. 685. 1418/Senate revisions, Jersey’s updated Adoption New Act. The revised number, comprehensive many represented the first set of nearly years. amendatory changes adoption to the laws in The twenty-three separate including act contained sections revised N.J.S.A. 9:3-50. history Adoption 18 of the reveals that section legislative

The section, That most controversial of all the revisions. Act was the 9:3-39.1, permits of intermediaries the use now found N.J.S.A. passed- settings private adoptions. The non-agency to facilitate Scott Weiner to Governor memorandum from Chief Counsel bill amendatory of the bill without Florio summarized the sections Jim See Memoran- to the Visitation Statute. reference Weiner, Counsel, to Jim Florio A. Chief Gov. dum from Scott 1993) (Dec. (summarizing amendatory sections of Act). history that the amendments to N.J.S.A. legislative reveals package revisions to the part larger of a were a small

9:3-50 laws, early years. revisions adoption the first set of such reported that: newspaper Typically, the articles providing aim of more laws would be revised with the New adoption Jersey’s including allowing the use of unpaid for prospective adoptive parents, options arrange ... to adoptions, intermediaries Aid to Laws as an [Tom Prospective Bill Voted Johnson, Update Adoption Ledger, Feb. Parents, 2,1993.] Newark Star reported: Another article a measure that New Jersey’s on Thursday revamps

State lawmakers approved legalize and allow intermediaries unpaid laws private adoptions adoption arrange adoptions. Bergen Record, 1Y, Dec. Advances, Law Revision [Dunston McNichol, Adoption 1993.] Scalera, Director, Division of R. also Letter from Nicholas See Human Jersey Department of Family of New Youth and Services (June 8, Jr., Jersey Services, Senate Emery Ungrady, New J. involvement, 1993) intermediary advisability (questioning the only adoption be authorized continuing recommendation Curtin, Jersey Thomas R. New by approved agencies); letter from (Dec. 23,1993) President, to Florio Bar Gov.Jim State Association Jersey adoption in New it makes easier (supporting bill because laws). current and clarifies pertaining to the documents in the available Nowhere the issue of specific reference to Act is there a history contain some references legislative does visitation. The object addressing parent may the a standards which to termi- parental rights, grandparent nation of but not to visitation. In- deed, 9:3-50, including very heading, “rights N.J.S.A. its of inheri- tance,” suggests Legislature rights that the was concerned with of issues, grandparental inheritance and not rights. other visitation The absence of discussion of visitation indicates Legislature Adoption that the did not revise the Act to harmonize it Grandparent with the Visitation That Statute. is further evi- passage nearly denced 7 months —between the time — Legislature two enactments. If the had wanted to harmonize the Act, Adoption Visitation Statute with the it could expressly have done so the time it revised the latter act. legislative history Based on examination of the of the Grand- Act, Adoption and the Statute we find that the Legislature did not intend to harmonize or conform the two Moreover, separate. statutes. The two statutes are we believe permits parents the statute that of the biological parents adopted by of a child intact nonrelative provisions Adoption conflict with the Act. An statutory Adoption examination of the scheme Act further supports that conclusion. Statutory Adoption

E. Scheme Act

It is a principle discerning well-established that “[i]n [the Legislature’s] only particular intent we consider not statute in question, legislative but also the entire scheme of which it ais Comblatt, Barow, part,” 218, 234, Alan P.A J. v. 153 N.J. (1998)(quoting Inc., A.2d 401 Kimmelman v. McCoy, Henkels & (1987)). 108 N.J. statutory 527 A.2d 1368 scheme of emphasizes Act complete termination of the biological parents’ rights, having logical thus effect of termi nating biological grandparent’s right to visitation. We also confidentiality observe that the adoption procedure of the entire supports also the conclusion Act bars biological grandparent of a child the visitation of continued by adoptive parents. adopted nonrelative 38(f)—defines parent par- “a or parent to include N.J.S.A. 9:3— 9:3-41(a) part that: provides by adoption.” N.J.S.A. ents agency or shall, directly of the the surrender, approved Prior to the execution executing through agent, instrument the surrender that the its inform the person signatory rights end and means the by permanent a surrender of parental and child. contact between the and all parent added).] 9:3-41(a) (emphasis [N.J.S.A. 9:3-41.1(a) part approved that an provides pertinent N.J.S.A agent other than information, with all available a shall provide prospective parent the birth or parent which would identify permit identification of

information n nn child added).] 41.1(a) (emphasis [N.J.S.A. 9:3— all records of provide 9:3-51 was amended N.J.S.A adoption: judgment of court order. be made accessible by

shall be sealed and shall only thereafter added).] (emphasis [N.J.S.A 9:3-51 9:3-52(a) provides that: N.J.S.A. including judgment proceedings relating

[a]U complaint, records of adoption, orders and other relevant briefs, affidavits, testimony and all reports, petitions, and shall at no time under seal the clerk the court shall be documents, filed good copying shown, cause shall court, unless the or upon open inspection order. otherwise added).] 9:3-52(a)(emphasis [N.J.S.A reveal, the Adoption Act provisions of As the above-cited by closed and confi adoption process is characterized traditional final, are adoption is the records proceedings. Once the dential All sealed, only by court order. opened inspection and can be completely are natural legal ties of the child to its of the the child severed. The child becomes permanently family. intent of the part of their extended parents and family unit without promote the creation of a new Legislature is to parents. natural In re interference from the fear of (1994), D.M.H., A.2d 235 cert. 135 N.J. Child denied, Hoxworth, 967, 513 U.S. Hollingshead v. sub nom. (1994). 433, 130 L.Ed.2d change S.Ct. That intent did not upon the enactment of the 1993 amendments to the Act. Jersey directly

No New court has addressed the issue of statutory whether the biological grand of a child’s following can continue parental rights termination of However, of the child nonrelatives. Mimkon v. Ford, (1975), 66 N.J. 332 A.2d 199 this Court considered application of the Visitation Statute in the context of stepparent died, adoption. After the child’s birth mother child’s father adopted by remarried and the child was step her mother. grandmother Ibid. The child’s maternal subsequently objections instituted an action to visit the child over the natural stepmother. father and the child’s Ibid. This Court upheld grandmother’s visitation, the right to holding that statutory right grandparental visitation, to in step the context of parent adoption, in policies was not conflict with the 436, Adoption Act. Id. at 332 A.2d 199. Mimkon was decided prior to the 1993 amendments to the Therefore, Statute and the 1993 amendments to the Act. conclusively However, Mimkon does not resolve this ease. this Court’s regarding policies observations underlying Adop tion Act in Mimkon merit discussion. Mimkon, we stressed that the primarily Act was

designed protect placed children adoption because their parents “unwilling Mimkon, were or unable to care for them.” 434, supra, 66 N.J. at 332 A.2d why judgment 199. “That is adoption relationships terminates all between the child and his parents.” natural emphasized Ibid. The Court that different apply in involving stepparent, considerations cases rather than adoption. nonrelative stepparent adoption, With policy “the insulating parents child from his natural is not so clearly compelling 435, as it in would be other Id. situations.” Specifically, 332 A.2d 199. “nothing we observed that in this opinion suggest is intended grandparent that the could invoke the visitation statute after the child of has in fact obligations and his adjudicated have ‘forsaken been 9:3-17(e).30, policy of N.J.S.A. In that case the adoption ordered.’ Ibid., provided that to n. That statute 3. plainly A controls.” subd. welfare of regarding the policy of the state public to the give effect necessary to it was adoption requiring placement for children of their ... later disturbance adopting parents from “protect the 432, 332 parents.” Id. at by the natural relationships to the child that visitation in Mimkon our observation 199. We reaffirm A.2d policies adoption conflicts with context of nonrelative not holding should of Mimkon Adoption Act. underlying the adoption. to nonrelative be extended tension be addressed the jurisdictions have in other Courts Howev adoption statutes. grandparent visitation tween their statutory specific mainly er, guided are decisions those Jersey’s, are of limited from New which differ provisions, and visitation with value. Jurisdictions precedential impose grandparental ours have declined similar to statutes See, e.g., Sowers adoption settings. nonrelative visitation (1997) (holding that Tsamolias, 717, 941 P.2d 262 Kan. v. “grandparents” longer no of birth adoption, parents after statute); Hicks v. meaning of the visitation within the of the child interplay be (interpreting, Enlow, (Ky.1989) 764 S.W.2d allow visitation adoption statute to statute and tween visitation in the case of adoption, to disallow stepparent but ease of Serv., 67 Department Soc. L.F.M. v. adoptions); nonrelative (1986) (holding grandpar Md.App. 507 A.2d objection confidential of children over right had no to visit ents parents). adoptive prospective

III. the Legislature did not intend finding the that Our adopted the child is where apply to situations Statute by Legis- the supported is further adoptive parents by nonrelative provision open adoption rejection proposed the of specific lature’s agreement be- an Open adoption “reflects Adoption Act. to the 172 adoptive parents

tween the and one or more members of the biological family permitting child’s visitation after the child has formally been adopted.” In re Guardianship of K.H.O., 161 N.J. 337, 361, (1999). exactly 736 A.2d 1246 arrangement That is the case, the asserting are in this albeit without the adoptive parents. consent of the

The 1993 Adoption rejected amendments to the Act proposed a open adoption provision provided: which would have adopting

With the consent of the court parent may provide adoption order for visitation or other of communication with the type child after the adoption biologically by who had a any person with or was related to the child. This adopted be modified provision may court, subsequent good on of petition cause shown. th st 13(d), (N.J. Leg., 1992) (above § [A 1418, 1 language Sess. May 14, enacted).] was never language rejected provision of that contemplated post- that adoption contact could continue between a biological child and family only voluntary with the consent of adopting parent. It was anticipated, thus never even if the concept open adoption of enacted, had compel been against visitation the wishes of the adoptive parents. case, (and adoptive parents this do not never) have consented to such a agreement. visitation permit To post-adoption represents this ease direct Legislature’s conflict With the rejection open adoption. of Jersey New repeatedly courts have reinforced principle open adoption will not be express enforced absent legislative See, e.g., command. K.H.O., In re Guardianship supra, 161 1246; N.J. at 736 A.2d D.M.H., In re Guardianship (1999); N.J. A. 736 2d 1261 In re a Child D.M.H., supra, 135 N.J. at 641 A.2d 235. This Court has question declined to resolve the validity or enforceability of open adoption noting Legislature has deferred its consideration and that “the open adoption issue of represents a significant policy issue which should be separate addressed in legislation.” D.M.H., In re supra, Child N.J. at (quoting A.2d 235 Judiciary Committee, Senate (1993)). Statement to Senate No. 686

173 highlighted importance of cited cases have above raising parents’ autonomy in their child after preserving adoptive biological are terminated. This parental rights parents of of the of primary purpose has that the termination Court noted “protect adoptive adoption rights provision in the statute is in their with post-adoption disruptions from parents children, parents chil adoptive by natural who have surrendered In re adoption parental rights been severed.” dren for or where D.M.H., 491, at A.2d by supra, 135 N.J. 641 Adoption Child of F., N.J.Super. 170 (quoting 235 In re Children of (Ch.Div.1979)). 422-423, acknowledged 406 986 This Court A.2d adop policy that adoption that the statute “maintains revised biological of and transfers tion ends the role parents.” In re a Child that role to the of D.M.H., arrange supra, A.2d 235. Even 135 N.J. ments, permitting into with mutual consent con that are entered child, biological adopted and the relatives tinued contact between given potential disruption judicially enforced “cannot arrangements and the child’s life under such fact para adoptive parents’ are under the laws the K.H.O., Guardianship supra, 161 N.J. at mount.” re added). (emphasis 736A.2d IV. legislative history

An of the demonstrates examination Adop revising Legislature overarching purpose encourage adoptions. It is a well- Act was facilitate and tion agencies entitled principle that administrative are established Mayflower expertise. in the area of their substantial deference (1973). 92-93, Secs., 312 A.2d 497 v. N.J. Secs. Co. Bureau of Family agree position of the Division Youth with the We in this (“DYFS”), amicus which intervened as curiae Services interlocutory was that the Visitation Statute appeal, nonrelatives, adoption by applied in the intended case not to be applied must because court-enforced not be biological discourage prevent adop- would not—if — tion. great position place permit

We reliance on the of that to DYFS application Grandparent adoption by of the Visitation Statute to or involuntary nonrelatives where there has been an termination ease, rights, parental chilling of inas this would have a effect on prospective adoptive parents. DYFS, According January of as 1,049 1995 there legally adop- were children who were for freed tion, awaiting Only and finalization 33 of status. of those awaiting adoption. majority children were a relative The vast of adoptive homes biological have no connection to the child’s family. The effect of Grandparent very Visitation is Statute important the children DYFS serves. purpose Adoption support

The ultimate of the Act is to newly-created family encourage adopt and to other families knowledge biological child with the not relatives will interfere family with the unit. new As DYFS stated in its brief: legislative compelling protecting It is under this scheme that the State’s interest children in a stable and is permanent home established as firmly This paramount. strong biological must not be undermined the forced public policy imposition visitation after must adoption. Statute not be or condition an To interpreted qualify adoption. two statutes in these interpret other would lead to an result any way unintended undermine the effectively derogation governing intended Act, purpose the rules construction. statutory Cooper 5, 12-13, See Hosp., N.J.Super. Adams v. 684 A .2d denied, (1997). 148 N.J. 690A.2d 610 certif. adoptive parents Some reasons fear visitations are evident in adoptive parents this ease. The do not any TS, want further connection with whose were terminat presented ed he continuing safety because threat to Vs M.P., well-being. In re supra, W.P. and Child N.J.Super. They at 706 A.2d fear 198. that on his release prison, from pursue TS will daughter, them and their on either his through parents. observed, own or his As the trial although court parents TS’s have Restraining against obtained a Final Order him Act, vacated at an order can be such under the Domestic Violence their own very to turn aside any It difficult time. is always prison from he past, was released In the when TS child. Certainly, possible it that the parents’ to his home. returned unsupervised opportunity for may provide visitation grandparents’ V, parental rights though his with even to have association TS on unfitness. severed based have been protract- faced Moreover, adoptive parents have the nonrelative subject rights. To expensive litigation over ed and hearing, proposed interests parents now to a best already lengthy and cum- dissent, prolong the further would 539). (Post A.2d at As proceedings. court bersome encourage is to statute the intent of previously, noted hinder them. adoptions, not to and facilitate

V. maintain close contact grandparents wish to that We understand Nonetheless, changes the situation grandchildren. their with adoptive parents also Vs adopted nonrelatives. when a child is grandparents of son, than If the adopted slightly older V. have an rights as sought the same visitation biological parents his case, imagine the confusion in this one can respondents do family unit would be stability the new The of be created. would comply parents would have adoptive seriously jeopardized. families. Under two different schedules with with two visitation adoptive circumstances, very difficult for the it would be such family unit. and intact maintain a new stable family to create and develop right grow given the adoptive must be An very tied to family, and must not be as an autonomous adopted. being position in the put the child relationship “ ‘second- adoptive parents to relegate the Any ruling would other ” Mimkon, A.2d 199 N.J. at supra, 66 class’ status.’ observed, correctly (Clifford, J., dissenting). As Justice Clifford (a ease), every purpose in that is “for mother adoptive parent as much any save blood and in terms every perspective and from the maternal any to the child as is other mother to her (who daughter.” grandparents Ibid. The true of V would have rights Statute) visitation Grandparent under the are now the of her parents. They are now Ys family. judgment

We vacate the Appellate Division and reverse 29,1998. the order of the trial court filed October PORITZ, C.J., dissenting.

This case raises the issue whether who have had a relationship with granddaughter their since she was born can seek (the visitation under “Grandparent N.J.S.A. 9:2-71 Visita Statute”) 1, tion after the age adopted child at four non- relatives. adoptive parents claim, The child’s majority and a agrees, Court that the Visitation Statute conflicts - policies with Act, enunciated in N.J.S.A. 9:3-37 to 56, and given should not be full 163-64, force and effect. Ante at 748 A.2d at adoptive parents 517-18. The applica also claim that tion of the visitation statute to them right would violate their privacy, and specifically, more right their autonomy. I believe that Act and the Grandparent Visitation another, Statute are consonant with one designed each provide for the best interests of the children who come under the Acts’ provisions. I further statute, believe that the applied case, in this impinge does not impermissibly parental rights on showings because of the that must be made grandparents may allowed, before visitation be and because of the restrictions may placed be on visitation protect parents’ interests. I uphold would therefore Visitation Statute. every Because highly dependent case is on the facts adduced statutory standards, under the I would remand the matter to the majority, As does the I will refer to the statute as the "Grandparent although Statute,” I grandparents note that under siblings its terms both and are rights. allowed for visitation petition determine, hearing, visitation would after a whether

trial court interests. in the child’s best

I 11,1994. V, February August On girl, to a on gave birth JH old, voluntarily placed V with JH was six months when V adoption arrangement. On the private through and MP a WP MP, preliminary and a adoption WP filing complaint of a and, April in JH’s adoption hearing was held were terminated. family. biological At her not related to V or and MP are

WP father, TS, was incarcerated placement, her time of the child’s thé subsequently proceedings. He unaware of the objection with adoption and filed an proposed about the learned 21,1995, released July TS was spring in of 1995. On the court parents his and worked he resided with prison, after which from daughter and with his petitioned for visitation father. He for his him at least permitting to visit V September an order obtained twice, thereafter, modified Shortly the order was once a week. (the “grandparents”), to be parents, KS and MS first to allow TS’s at three visits, visitation and then to establish present during his at grandparents require presence per and to hours week during between TS V. all times the visits guns stealing January 1996 for again was incarcerated TS incident, grand- of this As a result parents’ his house. from against their son under restraining order a parents obtained Law, restraining order The 2C:25-28. Violence N.J.S.A. Domestic later, grand- February month is still in effect. One and to adopt themselves court to V petitioned the trial adoption proceed- during the custody or extended obtain ings. they claim that established born, WP claim that is contested day was from the she

with V however, indicates, there has been record and MP. The grandpar- paternal and her ongoing contact between V least some infancy ents from her present. until the The trial court allowed grandparents to intervene in adoption pro- WP’s and MP’s ceedings that, on the provided visitation issue and if adoption was granted MP, not to grandparents WP would have the right custody. to be heard on the issue of The court ordered visitation between grandparents every V and her Sunday third the month from p.m., 9:00 a.m. to 5:00 but grandpar- denied the application proceed adoption. ents’ to with prison TS was released from May on bail in and WP and sought MP to vacate grandparents out of fear gain Vs father would through access to her grandparents. her 30, 1996, On October the trial grandparents’ court denied the request to intervene at preliminary adoption hearing, as well request custody, as their for permission proceed adoption, to with and increased however, visitation. The provided, court’s order adoption granted MP, that if was hearing to WP and would be promptly scheduled to determine visitation. The order also stated adoption that if granted MP, was not grandparents WP and right would have participate in custody trial.

Adoption hearings were held in November and on Decem- ber the trial court opinion issued a written terminating parental rights of TS followed a formal order of termination January on 1997. The termination in part was based on TS’s history drug addiction and criminal appealed convictions. TS ruling unsuccessfully. time, At the grandparents same continued to seek increased permission visitation and proceed adoption, with which the trial court deny. continued to The trial court did allow the intervene future-scheduled hearings visitation, on the sole issue of and continued their same visitation schedule. 1,1998. of V WP and MP was April finalized on provided

The order Judgment that the Adoption: shall all terminate between the child and relationships the birth mother, [JH], and rights, obligations father, all putative [TS], well as duties, and of any person on founded those ... relationships which except any have vested may judgment. to the of this prior entry briefing further on the issue of The trial court also ordered visitation, hearing adoption stayed the final grandparent study. home updated of an On pending the submission opinion trial issued a written September court Grandparent claims that the rejecting WP’s and MP’s Statute, 9:2-7.1, applied is unconstitutional as to this N.J.S.A Act, case, with the N.J.SA and that the statute conflicts grandparents continued seq. et The court awarded the 9:3-37 hearing to determine how visita- visitation and scheduled another initially appealed. Although proceed. WP and MP tion should visitation, stay they sought obtained a they agreed to later however, Division, Appellate Appellate Division. The from the in improvidently granted subsequently appeal dismissed the as 14,1999. opinion May dated July appeal for leave to on granted WP’s and MP’s motion

We 16,1999. years five old. V is now

II A. The Visitation Statute grandparent’s right petition a Legislature first codified 1971, 363, § That focused on the in L. c. 1. statute for visitation parent was de- parents, specifically, whether one status of the ceased, grandparent prerequisite a to a court’s consideration statute, required apply a courts were visitation. Under test, the “consideration of the of the child much like best interests on common law in earlier cases decided child’s welfare” standard 430, Ford, 426, 332 A.2d 199 v. 66 N.J. principles. Mimkon (1975). respect in contours of the test Specific direction 1973, the circum- provided. Legislature In extended was not petition for visitation to grandparent a could stances under which living separate and in which a was “divorced or situations habitats, of a court apart regardless in of the existence different Later, 1987, 100, § L. 1. agreement.” or c. order L. siblings petition for visitation. Legislature permitted also § c. 363 2. passed The current version of the statute was when the Legislature prerequisite decided to eliminate status aas (effective filing petition to the of a for visitation. N.J.S.A. 9:2-7.1 1993). gives trial June The amended statute courts detailed guidance determining may when in a child’s best interests. The statute now states: sibling residing a. A or of a child in this any State make may before the with Court, accordance the Rules of for an application Superior Court, order of visitation. It shall be the burden of the applicant prove by granting of the evidence that the of visitation is in the best interests

preponderance of the child. making on an b. determination filed to this application section, pursuant following court shall consider the factors: (1) The between the child and the applicant; (2) The between each of the child’s or the with whom relationship parents person residing the child is and the applicant; (3) The time which has since the child last had contact with the elapsed applicant; (4) The effect such visitation will have on the between the child residing; and the child’s or the with whom the child is parents person (5) sharing arrangement If the are divorced or the time parents separated, which regard exists between the with to the parents child; (6) good filing faith of the in the applicant application; (7) neglect or emotional or sexual or Any history physical, abuse the applicant; and (8) other factor relevant to the of Any best interests the child. regard c. With to made to this it shall any application section, pursuant prima

facie evidence that visitation is in the if child’s best interest the in had, applicant been a full-time caretaker for the child. past,

[N.J.S.A. 9:2-7!.] Generally, required the court relationships consider child, between always the various members and the with a impact relationships view toward the of those on “the best inter- 9:2-7.1(a). ests of the child.” N.J.S.A.

B. The Act inception, purpose Jersey’s From its of New Act children, protect has also been to parents as well as their natural 1953, 264, adopting parents. § and their L. (repealed c. 1 1977 (effective 1999, 53, 31, § and recodified as amended at L. c. 1 Mar. 1999)). purpose, undergone In of that the Act has furtherance 1977, 1993, major twenty-three years, in past revisions over the recently, Legislature sought time and most 1999. Each response perceived impediments, “to sim- facilitate plify clarify provisions governing adoption proceedings,” and adoption, promote early adoption when private to ease and to Committee, Judiciary accompanying possible. Statement Senate (N.J. 1976). 12, 1631, Leg., Aug. Most relevant S. 197th 1st Sess. revisions, ease, policy public before the 1977 a stated to this “protect adopting parents from ... later distur- Act was to parents.” relationships of their to the child the natural bance 1977). 1953, 1977, 264, (repealed Legislature § L. c. parents by replacing child this shifted focus from the to the liberally that the Act should be provision with a broad statement children, and that promote the best interests of construed persons regard given rights of all affected “[d]ue shall be to the 367, adoption.” (repealed § L. c. 1993 and recodified as 1). 53, § of the Act at L. c. The current version amended adds, safety language goal, and as a “that the retains (effective 1999, 53, § L. c. paramount children be of concern.” 31,1999). Mar. adoption. legal consequences

The 1977 Act also set forth time, entry judgment of a provided At that the Act that the relationships adopted adoption shall “terminate all between duties, any rights, obligations all child and his L. relationships.” on such c. person that are founded 9:3- (repealed § 14 and recodified as amended N.J.S.A. 1993 50). read, Legislature revised this section to In 1993 the pertinent part: rights judgment and of shall ... terminate all parental

The of entry for a is towards the child who parent of responsibilities except those that have vested prior entry of spouse petitioner except judgment of adoption. 50(c).] [N.J.S.A. 9:3— today. Act provision That remains signed into law passed in houses and was The Act both 28,1993. Florio on December Governor 182

III any analysis statutory role of this Court in is to determine The Legislature give if the intent of the effect to its enactments Servs., reasonably possible. Department G.S. v. Human Div. of Servs., 161, 172, (1999); Family Youth 157 723 A.2d 612 & N.J. Of Odom, 395, 401, (1997); Brooks v. 150 N.J. 696 A.2d 619 Green v. (1992). 591, 598, Corp., 127 Auerbach Chevrolet N.J. 606A.2d 1093 enactments, reviewing separate When two has an Court them, duty give affirmative to reconcile so as to effect to both Federanko, expressions of the lawmakers’ will. State v. 26 N.J. 119, 130, (1958); League, Borough 139 A.2d 30 Builders Inc. v. of Hill, 348, 352, N.J.Super. (App.Div.1996). Pine 286 669 A.2d 279 words, obligation every In other it is our to make effort to statutes, conflict, they if separate apparent harmonize even are in insofar as we are able to do so. presumption validity especially strong light of here subject purpose

the similar matter and common of both statutes— protecting the best interests of children. In re Return Cf. J.W.D., (1997) Weapons (reading 149 N.J. 693 A.2d 92 provisions together two of Domestic Violence Act to determine intent); Somerset, Legislature’s County F v. &W Assocs. 276 519, 525-26, N.J.Super. (App.Div.1994)(harmonizing 648 A.2d 482 Jersey Development Municipal New District Act and Land Use traffic); purpose” Law to share “common of control of Division of P.M., Family 80, 90, N.J.Super. Youth & Servs. v. 301 693 A.2d (Ch.Div.1997) (holding together that courts must “construe all matter,” existing subject particularly statutes on the same when problems). statutes address similar Statutes deal with the subject pari same matter br should be read in materia2 and together “unitary construed a as and harmonious whole.” Board Ass’n., Neptune Township Educ. v. Educ. 144 N.J. (1996). statutory A.2d 611 This maxim of especial- construction is adjective, subject,” as an the same matter or or Literally, “upon loosely, conjunction (7th ed.1999). with.” Black's Law adverb, “in Dictionary

183 when, case, ly pertinent question as in this the statutes were passed Mimkon, 433-34, in the same supra, session. at 66 N.J. 199; Borough Spring A.2d Sellitto v. Heights, Lake 277, 288, N.J.Super. denied, (App.Div.1995), 664 A.2d 1284 cert. 324, (1996). 143 N.J. 670A .2d1065 Adoption Grandparent The Act and the Visitation Statute were Legislature considered the approximately at the same time Committee, Judiciary passed the Senate both houses the Legislature only first, apart. six months Grandparent The the Statute, 14, was introduced in January the Senate on 1992, later, 6, 1992, to be April followed three months on Adoption Act. week Grandparent One after the Visitation Statute (June 18, 1992), was referred to Judiciary the Senate Committee Adoption same Committee took the Act under consideration (June 1992). 25, also, Assembly, In the passed three months Grandparent between the introduction of the Visitation Statute 1992) 24, 1992). (February and the (May Act More point, to the moving both houses were through two statutes during period. Ultimately, same time the two laws were approved by Legislature signed by and were Governor apart, Florio six months one on June and the other on 28,1993. December legislative history suggests of these two statutes to me that Legislature fully was possible aware of the interactions be them, parallel

tween policies and of the that motivated their accept enactment. I cannot majority’s assumption that the Legislature members of the they did not know or understand what doing; accept were nor can I majority’s conclusion that the Legislature fully did not intend both statutes to effective. Ante Moreover, majority A.2d at 521. holds that the applied Visitation Statute as families purpose would thwart encourage Act—to adoption. Ante at 748 A.2d at 525. A close examination of legislative both holding. statutes and their histories refutes this

IV Grandparent Application of the Visi- Legislative Intent: A. Adoptive Families to Non-relative tation Statute Legislature never have majority that the could The believes apply adopted children non- statute to intended the visitation reading 166-67, this 748 A.2d at 520. Under Ante at relatives. Act, adopted child and her only between an Adoption the contact adoptive parent non-relative biological that is invited the Adoption in the Act an permitted. I cannot find or Stat prohibit enforcement of the intent to cases. ute such

First, Grandparent Visitation Statute has I observe limiting biological and rela- language visitation never contained allowing grandparent or provision “[a] tive-adoptive families. applies on its face sibling apply for visitation any of a child” 7.1(a). Although the siblings. grandparents all and N.J.S.A 9:2— passed granted a statute that Legislature could have cases, many non-adoption adoption other only in or relative have,3 Alternatively, Legislature it chose not to do so. states specifically Act provision could have added adopted child terminating all contact between post-adoption Exactly opposite is true. biological grandparents. and her (1990); 25-409(F) (Supp.1999); § § Cal. 26-10A-30 3 Ala.Code Ariz.Rev.Stat. 1994); 19-1-117(l)(b) 3102(c) (West (Supp.1996); § § Colo.Rev.Stat. Fam.Code (1999); 752.01(3) (1997); 19-7-3(b) § 750 Ill. Stat. ch. Ga.Code Ann. Comp. Fla. (1997); s/607(b)(2)(B)(West 1999); § Me.Rev.Stat. Ann. Ind.Code 31-17-5-9 Stat. 1998); (West (Supp.1999); § § ch. 39D 19-A, Mass. Gen. Laws tit. (1999); (1998); § § Mo. Miss.Code Ann. 93-16-7 257.022, Minn.Stat. subd. 3 40-9-102(5) (1999); 452.402(6) (Supp.2000); § § N.C. Mont.Code Ann. Rev.Stat. (Michie 1994); (1999); 40-9-2(F) 50-13.2(b)(l) § § Ann. N.M. Stat. Gen.Stat. (Michie (1997); § § 25-4-54 S.D. Laws N.D. Cent.Code 14-09-05.1 Codified 30-5-2(3) 36-6-302(d) 1999); § (Supp.1999); § Utah Code Ann. Tenn.Code Ann. (Michie (1989); (1998); § § 63.1-233 tit. Va.Code Ann. Vt. Stat. Ann. 767.245(3)(c) (1991); 48-2B-9(b) (1999); § § Supp.1999); Wis. Stat. W. Va.Code 1999). 20-7-101(c) (Lexis § Stat. Ann. Wyo. earlier, unequivocally As noted Act severs the child, relationship biological parent between the and the but the 9:3-50(c) (“The stops entry judgment Act there. N.J.S.A. of a See responsibili- shall ... terminate all and child____”); parent ties of adopted towards the N.J.S.A. 9:3- 41(a) (stating permanent that instrument of “means the surrender relationship end of the and all parent contact between the and child”). provisions relationship parent These cover the between only, any biological relationship. and child not other Al- though rights, had 1977 Act terminated “all duties and obli- gations any person [on are founded child],” between which would include 1977, 1993) relatives, § (repealed (empha- and other L. c. added), provision sis this was deleted in 1993. It defies common language deliberately dropped, sense to claim that this was not especially since it would have with the conflicted Statute, by Legisla- which was under consideration the ture at the time. same majority proposed Grandpar

The to a of the points also version Assembly containing provision ent in the a Visitation Statute objections would allow trial courts consider the of a to an application “parent’s the own blood visitation relatives.” 166, Ante at A.2d at 520. The Court attributes to this proposal significance simply Legislature a it If the does not have. give parents power intended to veto visitation over blood relatives, it provision would have included this the final version Legislature’s I of the bill. It intent did not. understand the to be expressed clearly in more the enacted statute rather than the Barrett, provision. Petrangeli N.J.Super. unenacted v. case, (App.Div.1954). any In A.2d313 consent is not irrelevant the visitation under the standards decision set dispute, forth in the In a the trial court current statute. visitation required relationship is the the child’s to consider between 9:2-7.1(b)(2), “any applicants, and the N.J.S.A. other factor child,” 7.1(b)(8), relevant to the interests of the N.J.S.A. best 9:2— parents’ to wheth- necessarily includes the determination as which appropriate. er visitation is confidentiality provisions the majority finds that the also Act, (requiring N.J.S.A.

Adoption 9:3-51 and all records to 9:3-52 court), only by incompati- sealed and accessible order of the are biological concept permitting with the ble 522). togeth- grandparents. at 748 A.2d at When read Ante however, er, confidentiality provi- the visitation statute and complement Act one another. sions This so are, applicable proceeding in a visitation because standards earlier, “relationships” I noted focused on the between the various by petition Only a members affected for visitation. those relationship cases where the have had a with child, showing they a they can even make come threshold Although confidentiality provi- under visitation statute. may operate prevent sions of the Act such relation- exist, they ships developing, from in those cases where do Here, applicable by very terms. visitation statute is its biological grandparents visiting throughout have been V with years actively continuing sought last five have with her since her birth. of Mimkon to this has applicability

Much been said about the Mimkon, case. her child divorced mother and had resided years grandmother with the maternal for over two when the Supra, 66 N.J. mother died. 332 A.2d 199. The father and, care took of his child after her mother’s death when he remarried, child. Ibid. adopted his Because grand- his wife the visitation, subsequently sought was mother denied she relief from Ibid. the courts under the 1973 Visitation Statute. Pashman, Court, writing unique Justice for the described both the grandparents, bond between and their and children the difference relationship allowing parents adop- between a with natural after relationship allowing grandparents: tion and a with with Interference a natural the between the child and the parent relationship adopting conflicting figures introduces alternative and in the parents authority creating child’s in the child life, tremendous emotional tension and ultimately threatening to undermine the and their to authority parents ability decisions. make a role in the parental ordinarily different Grandparents play very figures child’s are not and do not assert life; they authority exclusive possessively generous best, to make decisions. At are sources of they uncondi- tional love and which rather than with conflicts the roles acceptance, complements of the parent. much lesser risk of involves a threat the or [G]randparent physical well-being psychological of the child or the of a and natural healthy development adopting might between child and the than continued relationship parents contact the natural parent.

[*] ^{[*] [*] [*]} biological grandparents grandchildren It is fact that are bound to their links of It human unbreakable is common the concern heredity. experience grandparents grandchildren and interest welfare of their far take exceeds anything biological 'in terms. A purely often explicable very special relationship grandchildren. grandparents arises and continues between and The tensions and conflicts which mar relations between children and are often commonly parents grandchildren. absent those and their between same Visits with a very parents grandparent a are often a of child’s there are and benefits precious part experience grandchild grandparents which from the his devolve with upon Legislature derive which he cannot from other Neither the nor any relationship. grandchildren this Court is blind human truths which have known. always

[Id. 199.] at 332A.2d 435-37, hearing a “as to Court ordered for determination whether not, exist, present or at the time and as circumstances now it would be in child’s best interests to enter order continued visitation.” Id. 332 A.2d 199. footnote Mimkon contained dicta

A distinguishing cases in adjudicated which had been unfit and a Id. at 435 n. sought visitation after an had been ordered. time, only applied 199. At that A.2d visitation statute when or both of of a child ... “either minor are deceased, separate living apart or divorced or different habitats.” L. c. surprising § It is therefore not 1. Court, speculating involving parents, about unfit turned eases Act, now-repealed public policy to the of the 1953 which provided: protect then necessary “[i]t is and desirable ... adopting parents relationships ... from later disturbance of their 188 1953, 264, § L. 1 by parents.” (repealed natural c.

to the child 1977). replaced language been with provision That has since persons regard” given of “all requiring “due be (effective 53, 31, adoption.” § L. c. 1 Mar. affected 1999). twenty-five years after obligation,

It is Mim- now the Court’s kon, grandparent of to consider visitation in the context a non- statutory adoption substantially modified relative under schemes.

B. Legislative Open Intent: majority application The characterizes adoptive open families as an Visitation Statute non-relative Legislature adoption arrangement,4 and notes has ex 171-72, pressly disapproved arrangements. Ante at 748 such Legislature’s majority A.2d at 522-23. The that the concludes pass open adoption provision, reluctance to broad indicates disapproval adoptions. visitation after non-relative Ante at A.2d at 748 523. original version the 1993 Act had contained an

open provision adoption that read: adopting

With of the in the the consent court parent may provide adoption order for visitation or other of communication with the child after type adoption biologically who had a with or to the by any was related person modified child. This the court to the adopted provision may subsequent good for on cause shown. adoption petition (N.J. 1992) (above 13(d), Leg., language § [A 205th 1st Sess. was May 14, enacted).] never ongoing refers contact between a child "Open adoption” any adopted biological agreement non-relatives and his or her relatives. a written Generally, including states, New for but provides open adoption, many Jersey, open See arrangement. informal can be an Carol Amadio Stuart L. Allowing Children to Touch" With Deutsch, Open Adoption: Adopted “Stay (1983) (analyzing L. Relatives, Blood 22 J. Fam. written court-approved adoption); K.H.O., also In re N.J. see contracts Guardianship of open (1999) agreement). (discussing 337, 361, 736 A.2d 1246 informal open adoption provision passage

This was before in deleted final of the bill the bill, Judiciary Senate. the to the the Statement Committee explained: ‘While it is not the intent the in deleting of committee discourage open language adoptions, this it that was felt the open represents adoption significant policy issue of a which issue separate legislation.” accompa- should in be addressed Statement 1418, (N.J. 18,1993). nying Leg., 205th 2d Mar. A. Sess. apparently pass The Court believes that the decision not to a open adoption provision expression broad an legislative of intent prevent any post-adoption biological relatives —an expression strong enough language to overcome the actual of the is, view, Grandparent my plausible It Statute. more sibling Legisla and visitation was as far as the go providing possible ture wished contact with members biological of a a adoption. child’s after non-relative Most telling, deleting open adoption two months provision, after the the Grandparent passed Senate When Visitation Statute. statute, passed version I Senate the final of the visitation must fully presume that it position open was aware of its on respect and its actions with to the Act. See Brewer v. Porch, (1969). plain language N.J. 249 53 A.2d 388 any grandparent of the Visitation Statute allows apply rights, regardless for visitation status of child’s parents, regardless and of whether the child lives with her natural adoptive parents.5 or Legislative Adoptions Intent: To

C. Facilitate (DYFS), Family Depart- The Division of Youth and Services Services, objected application ment Human has to the 5 agreements permitting This has Court indicated recently post-adoption biological recognized contact and between if parents may counseling are entered into with and are advice, mutual, and they voluntary are in the best interests child. 736 K.H.O., 161 N.J. at A.2d supra, (1999). 1246; DMH, In re 736 1261 N.J. A.2d Guardianship of arrangements judicially K.H.O., are However, such not enforceable. supra, N.J. at A.2d 1246. has when there been involun- Grandparent Visitation Statute rights, adop- tary or when non-relative termination DYFS believes enforcement of Grand- tion has been finalized. chilling parent cases would create Visitation Statute those litigation risk of adoptions future because of the effect on grand- biological is also concerned that child’s relatives. DYFS parent facilitate access between a whose visitation could child, involuntarily her been terminated his or have DYFS, litigation view of thereby endangering the child. In the jeopardize confidentiality mandated about visitation could Act, being or lead to named as the defendant DYFS in such cases.6 agency generally

An administrative is afforded substantial def Mayflower expertise. in its area of Secs. Co. v. Bureau erence of Secs., (1973). 92-93, However, appellate A.2d N.J. 312 497 64 way agency’s interpretation “in no of a courts are bound strictly legal a Id. at statute or its determination of issue.” Trustees, 497; Pub. 312 A.2d see also DiBlasi v. Board Em ployees’ Sys., N.J.Super. A.2d 241 Retirement 315 718 (App.Div.1998). agency’s statutory If interpretation contra intent, plain language Legislature’s dicts undermines the or reject agency’s not to this Court has hesitated view. GE Solid Taxation, 306-07, State, Director, Inc. v. Div. 132 N.J. 625 (1993). A.2d 468 where, here, particularly agency This is the case has only general in concerns and anecdotal evidence advanced Grandparent attempt to that enforcement of the demonstrate fact, a adoptions. will have harmful effect on Statute demonstrating there is evidence visitation can in cases. See Amadio and Stuart L. coexist Carol Deutsch, “Stay Open Adoption: Allowing Adopted to Children 6 agency that its contends further to children out-of-state as ability place (1999), § Act, Safe 671 mandated under the Families U.S.C.A. agency's hindered, will be but claim is subsumed under the other this really claims. Relatives, (1983-84) Touch” with Fam. L. Blood J. (describing Department Family Illinois of Children and Services’ recruiting adoptive parents willing permit grandpar- success in children). unwilling ents continued I contact with am to limit the applicability of the Visitation Statute because DYFS presented examples prospective adoptive parents’ has two objections. DYFS, important, contrary expressed by

Most to the fears statutory Grandparents standards in the Visitation Statute and the power equitable of the prevent courts fashion remedies would “parade up by agency. of horribles” offered Under the statute, paramount best interests of the child are Thus, application. the consideration of a visitation the court could supervised prevent biologi- order visitation to contact with an unfit and, danger despite supervi- cal when there is of access sion, anticipate I that visitation would be denied. currently pending County refers to a case

DYFS Camden Court, Family grandmother brought in which a maternal has naming identity visitation action DYFS as a defendant because the unknown, adoptive parents support of the its concern that the confidentiality provisions compromised by Act are readily can I the visitation statute. These concerns resolved. interpret the standards set out in the visitation statute to limit the right petition for visitation to those eases prior where there has been a with the child to formal adoption. ruling Agency’s Such should both ameliorate the prevent unnecessary adopted concerns and interference in the family child’s life.

V Having application Grandparent determined that Visita- language tion Statute does not conflict with the or intent of the Act, petitioners’ I turn to the claim that the Visitation Statute violates the Due Process Clause of the United 192 Const, XIV, 1, Constitution, applied § amend. as U.S.

States my opinion, it does not. In this case.7 Grandparents presumption that begin I with the may rebutted presumption that is constitutional —a Statute clearly of the Constitution is showing provision that a only on a Caffiero, Educ. v. 86 N.J. by the statute. See Board violated of dismissed, 1025, 799, 308, 318, 454 102 S.Ct. appeal A.2d U.S. 431 (1981). argue Grandpar 560, that the 470 Petitioners 70 L.Ed.2d them, Statute, impermissibly intrudes applied to as ents Visitation autonomy. support of process right of upon their due Supreme cases they rely States Court argument, on United their 747-48,102 1388, Kramer, 745, Santosky v. 455 U.S. S.Ct. such (state (1982) 599, 1391-92, paren terminate 603 cannot 71 L.Ed.2d “permanently protect who has been rights except to child tal Yoder, 205, 233-34, 92 S.Ct. neglected”); v. 406 U.S. Wisconsin (1972) (state 1542, 15, compel cannot 32 L.Ed.2d 35-36 school); Stanley v. public to attend children over sixteen Amish 645, 657-58, 1208, 1216, Illinois, 31 L.Ed.2d 92 S.Ct. 405 U.S. (1972) (state away custody children without cannot take 562 unfit); Society Pierce v. hearing establishing 1070, 1078 534-35, 571, 573, Sisters, 69 L.Ed. 268 U.S. S.Ct. (1925) public attendance law invalid due (compulsory school religious upbring liberty education and parent’s interest child’s 625, 626, Nebraska, 390, 399, ing); Meyer v. 262 U.S. 43 S.Ct. (1923) 1042, 1045 right a home and (parent’s to “establish 67 L.Ed. teacher). up right engage German bring children” includes recognize protection from within the a zone These cases child,” “custody, nurture of [a] interference in the care and state Massachusetts, 438, 442, 64 S.Ct. Prince v. 321 U.S. (1944). L.Ed. however, These cases also rights, are not absolute.

Parental in the acknowledge strong parens patriae interest the states’ claim, state constitutional I do not address As WP and MP do not raise a validity Jersey the statute under the New Constitution.

193 children, stability family. welfare of and in the structure of See, 766, 102 1401-02, e.g., Santosky, supra, 455 at at 71 U.S. S.Ct. 615; Prince, 166-67, 442, supra, L.Ed.2d at 321 at 64 S.Ct. at U.S. Thus, L.Ed. at range 88 652-53. the states still retain “a wide power limiting parental authority things for freedom and affect and, also, ing regard “regulation child’s welfare” [a] Prince, 166, 167, public supra, interest.” at 321 U.S. 64 S.Ct. at 442, 652; Yoder, 233-34, supra, 88 L.Ed. at see also 406 U.S. at 92 1542, (recognizing parent’s power S.Ct. at 32 L.Ed.2d at 35-36 may subject to limitation if court determines burden). potential significant By way decision has social sixteen, example, compulsory schooling for children under child laws, procedures labor and mental health commitment for minors upheld permissible regulations they have been state even when Yoder, parental decisionmaking. supra, conflict with See 406 U.S. (state’s 228, 1539, power compel 92 S.Ct. at 32 L.Ed.2d at 32 up age, regulations school attendance to certain make reasonable schools, prescribe public for all curriculum for schools is by parents’ conflicting preferences regarding undiminished child’s education); Prince, 168-69, 443, supra, 321 U.S. at 64 S.Ct. at 88 (requiring persons, including guardians, L.Ed. at 653-54 all laws); J.R., 584, 604, comply with child 442 labor Parham v. U.S. (child 2493, 2505, (1979) 99 S.Ct. 61 L.Ed.2d 120 entitled hearing place before can child in an institution for mental care). health recognize protected parental autonomy,

Because we zone of parents’ concerning when the state intrudes on their decisions children, requires the federal Constitution that this examine Court intrusion, degree importance governmental of the asserted, interest and the extent to which that interest is served Cleveland, challenged regulation. City E. See Moore v. (1977) 52 U.S. S.Ct. L.Ed.2d (plurality opinion). Application legal framework within which difficult these determined involves careful issues.are competing tough consideration of interests and a call on the question. affecting ultimate Decisions are often contro- question us in this versial, highly charged. The before sometimes strongly about us have held views different. Most of case is no permissible state involvement family autonomy and about obligation precedent, to examine consider matters. The Court’s is statute, weigh the constitutional expressed in the and the values Here, respondents. must deter- right Court invoked violates the federal Constitution mine whether a state statute circumstances, visitation, biological permitting in certain between adopted by non- grandchild who has been relatives.

First, split I courts have on whether note that other state have statutes are constitutional. Some impermissible intrusions on invalidated their states’ statutes as Parkerson, 189, See, parental autonomy. e.g., Brooks v. 265 Ga. 942, 769, (Ga.), denied, 116 cert. 516 U.S. S.Ct. 454 S.E.2d 773-74 (1995) 377, (finding L. 2d statute unconstitutional 133 Ed. 301 not federal constitutions because it does “under both the state and clearly promote or welfare of the child and does not the health require showing of harm before state interference is autho 651, rized”); Williams, 778, Va.App. v. 24 485 S.E.2d Williams (1998) (1997), 19, modified, 417 256 Va. 501 S.E.2d 654 aff'd protect paren (Virginia statute’s best interests test insufficient to autonomy rearing right tal in child under the Fourteenth Amendment). Yet, grandpar that other state courts have found significant ent visitation is not a encroachment on consti rights. recognized parents’ rights tutional These courts have upheld on a are not absolute and have visitation statutes based See, 630, e.g., King King, interests test. v. 828 S.W.2d 632 best denied, 378, 121 (Ky.), cert. L.Ed.2d 289 U.S. S.Ct. (1992) (under test, impermissibly rational basis statute does not parents’ not infringe on fundamental because visitation provides adequate safeguards); Herndon v. automatic and statute (Mo.1993) (statute Tuhey, 209-10 constitutional 857 S.W.2d light parent- minimal under rational basis test intrusion on statute); tailoring of Michael v. child and narrow (statute Hertzler, (Wyo.1995) 900 P.2d did not violate test has best interests process rights because statute father’s due interest, adequate safe- compelling contains represents state tailored).8 narrowly parents, and is guards protect patriae Jersey, equity parens their pursuant New custody, visi jurisdiction, family routinely decide issues of courts tation, myriad aspects of rela support, and other domestic child parents’ authority to raise their children without tions that affect See, Beck, e.g., v. 86 N.J. the state. Beck interference from (courts (1981) “authority joint have to decree 432 A.2d 63 custody sponte and sua determination custody of children” 525, discretion); Fantony Fantony, 21 v. N.J. within trial court’s (1956) (court’s custody 535, ability regulate to child 122 A.2d 593 origin pro “has in the independent parents’ domicile and its is helpless”). incompetent or Muhlen tection that is due to the Cf. Patterson, N.J.Super. 320 A.2d 518 Hosp. v. 128 berg (Law Div.1974) ir for infant at risk of (ordering blood transfusion transfusion). objected to damage although parents reparable brain family perceived threaten au Normally, are not to those decisions by respond problems created broken rela tonomy they to because universally perceived tionships at a time when intervention dispute parents involves with necessary, often and because so, response to issues appropriate equal Even interests. clear, always especially when relationships is not broken raised See, v. biological parents. e.g., Watkins parties not the are (2000) Nelson, (custody dispute A.2d 558 163 N.J. 748 parents). deceased mother’s between father and challenge considering to a constitutional States Court is The United Supreme Granville, 99-138, No. Washington’s See Troxel v. visitation statute. (U.S.2000). in that what, unclear if effect the 2000 WL 41235 It is any, opinion Washington statute will have on New statute because applies case Jersey’s guide trial courts in not contain standards and does "any person” (1977) 26.10.160(3) § See Wash. Rev.Code of the best interests test. application (1996)). (amended § Rev.Code 26.09.240 Wash. case, parties parents grandparents, In this are and and the by biological grandparents sole issue is visitation after a child has focus, inquiry adopted been non-relatives. should there- Our fore, governmental grandparent-grandchild on the in the interest relationship degree adoptive parents’ and the of intrusion on the i.e., right family autonomy, to decide who should be allowed to visit their child. Jersey long recognized important

New has that it is for children develop family and maintain a connection with members other parents. grandparents than Our has declared Court particular provide accep can children with “unconditional love and tance, complements which rather than conflicts with the role of Mimkon, parents.” supra, ... 66 N.J. at 332 A.2d 199. It has been relationship demonstrated that children benefit from a grandparents variety ways, with their in a and that such relationships security pride. offer as well as familial and cultural Zablotsky, Peter Grandpar A. To Grandmother’s House We Go: Stepparent Adoption, Wayne ent Visitation L.Rev. After (1985). Zablotsky’s description advantages grand Peter parent-grandchild compelling: interaction is Sociological has literature documented and the benefits analyzed children receive grandparents. from a with their with healthy Contact children who are rooted in and produces their and proud culture, highly grand- secure, and socialized. interaction emotionally Additionally, between grandchildren mitigates ageism children because older love people mitigates grandmothers grandfathers them, sexism because do essentially thing, age grandparents same and eliminates fear of old because serve as ancestor grandparents give grandchildren role models. Finally, can “an emotional sanctu- findings from ary world.” These are with everyday consistent those of other generally agree on child who that it experts development, is for children important ongoing meaningful

to maintain relationships. [Ibid.] Jersey, 107,287 In percent New six eighteen, of children under children, grandparent-headed live in Jersey households. See New Legislature Assembly State Task Grandparenting, Force on Re (Jan.2000). Recommendations, port Findings and 1 As demo graphics change evolve, configurations legisla and .state tures increasingly larger and courts have concept embraced

197 Moore, beyond See family autonomy extending nuclear families. (“[T]he 505, 1938, 2d at 541 52 L.Ed. supra, 431 U.S. at 97 S.Ct. civilization, gained over the centuries accumulated wisdom larger conception history supports ... throughout our honored Indeed, recognizing extended fami trend toward family.”). passed scope; fifty all states have relationships nationwide ly visitation,9 although some form of grandparents that allow statutes by the courts. See have not been sustained all of these statutes does, however, 194-95, at 535-36. This trend supra at 748 A.2d of extended families recognition of the role demonstrate broad derive acknowledges the benefit that children society; it also our relationships relatives other than nurturing with from view, my siblings. and, specifically, with 1998); 1990); (Lexis (West § § 25.20.065 Alaska Stat. 9 Ala.Code 30-34 Ariz. (Michie 1993); § Cal. (Supp.1999); § Ann. 9-13-103 25-409 Ark.Code Rev.Stat. (West 1994); §§ -117.5 §§ 19-1-117 to 3102-3104 Colo.Rev.Stat. Fam.Code 1031(7) (1995); § § 10, Ann. tit (Supp.1996); 46b-59 Del.Code Conn. Gen.Stat. (1999); (1997); (1999); § Ga.Code Ann. 19-7-3 Fla. ch. 752.001-752.07 Stat. (1996); (1999); § 750 Ill. § Idaho Code 32-719 Comp. Haw.Rev.Stat. 571-46.3 (1997); 1999); § (West §§ Iowa Code 598.35 31-17-5-1 to -10 Stat. Ind.Code %07 (1993); § § Ann. 405.021 (Supp.1999); 38-129 Kan. Stat. Ann. Ky.Rev.Stat. (West (Michie 1999); Supp.1999); § Ann. Me.Rev.Stat. La.Rev.Stat. Ann. 9:344 (1999); (West 1998); Law§ 9-102 §§ Ann., Md.Code Fam. 19-A, tit. 1801-1805 25.312(7b) § (Supp.1999); § Mich. Laws 119, ch. 39D Comp. Mass. Gen. Laws (1998); §§ to -7 (Supp.1999); § Ann. 93-16-1 Minn.Stat. 257.022 Miss.Code (1999); (Supp.2000); § § Mont.Code Ann. 40-9-102 452.402 Mo.Rev.Stat. (1998); (1999); 1999, 1999, L. §§ 13, Act of 43-1801 to-1803 May Neb.Rev.Stat. 1999); (effective Ann. § 1, NH.Rev.Stat. Sess. Law Oct. 113, 1, c. 1999 Nev. 1994); (Michie (1992);. §§ -4 N.Y. Dorn. § Ann. 40-9-1 to N.M. Stat. 458:17-d (1999); 1999); § (McKinney N.D. Cent. § Gen.Stat. 50-13.2 N.C. Ret. Law (Anderson (1997); §§ § 3109.11-3109.12 Ohio Rev.Code Ann. Code 14-09-05.1 1998); (West § 6, 1999, L. Supp.1998); Act of July Stat. Ann. tit. Okta. (1998); §§ § 109.123, 109.332 Law; Or. Sess. Or.Rev.Stat. 1999, c. (West §§ Supp.1999); 15—5— §§ R.I. Gen. Laws Ann. 5311-5314 23 Pa. Cons.Stat. 20-7-420(33) (Law.Co-op.Supp. (Supp.1999); § Ann. to -24.3 S.C.Code 24.1 (Michie 1999); 1999); Tenn.Code Ann. §§ to -54 Laws 25-4-52 S.D. Codified (West § (Supp.1999); Ann. 153.433 §§ Tex. Fam.Code 36-6-302, -306, -307 (1998); §§ 1011, § Ann. tit. Supp.2000); 30-5-2 Vi. Stat. Utah Code Ann. (Michie (1989); Supp.1999); §§ Wash. to -124.3 Va.Code Ann. 20-124.1 (1999); 26.09.240(3) (1999); §§ -12 Wis. § 48-2B-1 to W. Va.Code Rev.Code 1999). (Lexis (1991); § 20-7-101 §§ 880.155, Stat. Ann. Stat. 767.245 Wyo. ample support there strong encourag is for the states’ interest in ing relationships. those Statute, respect impact

In of the of the I intrusion, permits only any, would find that the statute a if limited parents’ constitutionally protected on interests. The statute is not parental rights, about the termination of or about who should have child; physical custody of the it is about whether and under what Fiebert, circumstances visitation should occur. v. Zack Cf. N.J.Super. (App.Div.1989). Jersey 563 A.2d 58 New one of provide fourteen states that detailed standards for deter mining application for required visitation. The trial court is to eight bearing largely consider factors relationships on various within the quality. and their duration and N.J.S.A. 9:2— 7.1(b)(1) (8); supra Also, see 748 A.2d at 518. visitation — may not be “applicant prove[s] by awarded unless the [] preponderance of granting the evidence that the of visitation is in 9:2-7.1(a). the best interests of the child.” N.J.S.A The best is, therefore, interests benchmark multiple- circumscribed test, guides judicial factor which but does not limit discretion in making 7.1(b). these sensitive determinations. See N.J.S.A 9:2— Unlike other any state visitation that standing statutes extend person, Jersey’s New statute relationships is limited to blood Legislature i.e., has special importance, determined have statute, siblings. and only Under our grandparent significant who has a relationship grandchild with a would make it test, past step only first of the application if the has been (6). good 7.1(b)(1),(3), filed in faith. See N.J.S.A. 9:2— (b)(4) I interpret also require N.J.S.A 9:2—7.1 grandpar- ent stability visitation cannot threaten parent-child relationship any way. If a court determined that a posed any any threat or risk of a threat the child’s parents, 7.1(b)(7), with his or her petition N.J.S.A 9:2— summarily view, my would be dismissed. the statute give mandates that courts parents’ objections deference to concerning their to their the best interests of and beliefs visitation (4). 9:2-7.1(b)(2), it permitted, If child. See N.J.S.A. visitation safeguards protect to the interests of can be conditioned on Only including supervised and restrictions. parents, visits other parentis grandchild to a a has acted in loco when 9:2- presumption there be a favor of visitation. N.J.S.A. should 7.1(c). statutes, Statute

Like most such the visitation, right only standing petition the provide a does not 9:2-7.1(a). petition When a court visitation. N.J.S.A. See for unfit, visitation, applicant is support as in a case where the cannot has adopted as infant and there or where the child has been grandparents, the court should little or no contact with the been (providing R. for a petition the 5:8-6 dismiss forthwith. Cf. hearing only “genuine that and custody if the court finds there is a issue”). quickly I expect that the courts would substantial petitions and recognize pleadings insubstantial that visitation only merit to claim. petitioner’s be filed when there is would case. dependent in each on the facts in each The result ease is standards, statutory I that If under the believe warranted by grandparent intrusion visitation is constitution- limited effected here, adopted I V was not ally permissible. observe birth, had family shortly child has after that the non-relative years. The Cali- ongoing contact with her five circumstances, Supreme explained Court in such fornia has ignore not in fact that an may law not and cannot adopted person should regard remains off If be cut from his natural affection family. many respects should name of consisten- members of the law not in the family, between natural encouragement feelings those to thwart when undertake cy expression hinder does not relationships. thereof adoptive Zook P.2d [In Zook, re Estate v. Cal.Rptr. 62 Cal.2d banc) (1965) (en ]. findings on trial court for based I remand this case to the would consider, require statutory I would the court standards. factors, unduly interfere visitation among other whether would adoptive have chosen the manner which the with V, objections raise the nature of their (including to visitation their father), concerns about Vs whether parents previous- ly visitation, scope consented to and the sought. I believe that the trial court should decide whether it would be in permit best Vs interests to biological grandpar- visitation with her despite ents the countervailing expressed by concerns her adop- parents. tive

VI For all of the I expressed, reasons have I respectfully dissent majority opinion. from the join PORITZ’s, C.J.,

Justice STEIN opinion. vacating For O’HERN, GARIBALDI, and reversal —Justices COLEMAN, LONG and VERNIERO —5.

For and remandment —Chief Justice PORITZ and affirmance Justice STEIN —2.

748 A.2d 539 V.C., CROSS-APPELLANT, PLAINTIFF-RESPONDENT AND M.J.B., v. DEFENDANT-APPELLANT AND CROSS- RESPONDENT.

Argued April October 1999 Decided 2000.

Case Details

Case Name: In Re the Adoption of a Child by W.P.

Court Name: Supreme Court of New Jersey

Date Published: Apr 6, 2000

Citation: 748 A.2d 515

Court Abbreviation: N.J.