(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued October 26, 1999 -- Decided April 6, 2000
GARIBALDI, J., writing for a majority of the Court.
The issue in this appeal is whether after a child is adopted by non-relatives, the child's biological
grandparents can compel visitation with the child under the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, if the
adoptive parents oppose visitation. To answer the question, the Court must decide whether permitting visitation in
these circumstances would conflict with the public policy of the New Jersey Adoption Act, N.J.S.A. 9:3-37 to -56.
The child, V, was born on August 11, 1994. Her parents, JH and TS, were not married. When V was six
months old, her mother, JH, placed her with WP and MP, a couple unrelated to either parent, and subsequently
signed a consent for V's adoption. At the time, V's father, TS, was incarcerated. The Ps filed a complaint for
adoption, to which TS filed a formal answer objecting to the adoption. His parents, KS and MS, sought to intervene
in the adoption proceedings to obtain custody of V, to permit grandparental visitation with V, and to file their own
complaint for adoption. The court permitted them to intervene on the issues of custody and visitation if the adoption
by the Ps was not granted, but denied their application to adopt V themselves.
When TS was released from prison in July 1995, he was given visitation rights, ultimately only with his
parents present. Although TS initially resided with his parents and worked for his father, he was arrested again in
January 1996 for stealing handguns from his parents' home. His parents obtained a domestic violence restraining
order against him, which remains in effect. TS's parental rights were terminated over his objection; the decision was
affirmed on appeal in 1998.
The court held an adoption hearing in March 1998 and ordered that the grandparents' visitation with V on
the third Sunday of every month was to continue on an interim basis and directed the parties to address whether
visitation should continue following entry of a final order of adoption. On April 1, 1998, the court entered a final
judgment of adoption that terminated all relationships between V and the birth parents and all rights, duties, and
obligations of any person founded on the relationships between V and her birth parents.
Concluding that there was not an inherent conflict between the Adoption Act and the Grandparent
Visitation Statute, the trial court directed on October 29, 1998, that a hearing be held to determine whether it was in
V's best interests, as determined by the factors set forth in the Visitation Statute, for her grandparents to continue to
have visitation following her adoption by the Ps. The court permitted the ongoing visitation to continue pending the
hearing.
The Appellate Division granted the motion for leave to appeal filed by WP and MP, but subsequently
dismissed the appeal as improvidently granted. The court concluded that consideration of the interplay between the
two statutes could benefit from the holding of the best-interests hearing that had been ordered by the trial court and
noted its conclusion that the Adoption Act implicitly contemplates post-adoption visitation by members of the
adopted child's biological family. The Supreme Court granted the motion for leave to appeal filed by WP and MP.
HELD: In the case of a child adopted by non-relatives, the statute that gives visitation rights to biological
grandparents conflicts with and is overridden by the statute that governs adoptions; courts cannot order grandparent
visitation over the objection of the adoptive parents.
1. The Legislature revised the Adoption Act in 1993 to facilitate adoptions, not to conform or harmonize the Act
with the Grandparent Visitation Statute. (pp.6-15)
2. The statutory scheme of the Adoption Act emphasizes the complete termination of the rights of biological parents
and thus, logically, the right of biological grandparents to visitation. The intent of the Legislature is to create a new
family unit without fear of interference from the natural parents. The Court's upholding of a grandparent's right to
visitation in a stepparent adoption context, Mimkon v. Ford ,
66 N.J. 426 (1975), does not extend to a non-relative
adoption setting. Jurisdictions with adoption and visitation statutes similar to New Jersey's have declined to impose
grandparental visitation rights in such settings also. (pp.15-19)
3. Additional evidence that the Legislature did not intend the Grandparent Visitation Statute to apply when a child is
adopted by non-relatives is the fact that when it amended the Adoption Act in 1993, the Legislature specifically
rejected a proposed amendment providing for “open adoption,” by which biological family members could continue
to have contact with the adopted child if the adoptive parents consented. Permitting post-adoption visitation in this
case would conflict directly with the legislative rejection of open adoption. (pp. 20-21)
4. Application of the Grandparent Visitation Act to cases in which a child has been adopted by non-relatives or in
which parental rights have been terminated involuntarily would discourage-- if not prevent-- adoption, a concern of
the New Jersey Division of Youth and Family Services (DYFS). The vast majority of the adoptive homes for
children with whom DYFS is involved have no connection to the child's biological family. An adoptive family
must not be tied to the very relationship that put the child in the position of being adopted. (pp. 22-27)
The judgment of the Appellate Division is VACATED and the order of the Chancery Division, Family Part
filed October 29, 1998, is REVERSED.
CHIEF JUSTICE PORITZ, dissenting, believes that the Adoption Act and the Grandparent Visitation
Statute, each having a focus on the best interests of the child, are consonant with one another. In this case, the
visitation statute does not impinge impermissibly on parental rights because of the showings that must be made
before visitation would be allowed and because of restrictions that can be imposed to protect those interests. CHIEF
JUSTICE PORITZ would uphold the Grandparent Visitation Statute and remand the matter for the trial court to
decide after a hearing whether visitation by the biological grandparents is in the child's best interests.
JUSTICES O'HERN, COLEMAN, LONG, and VERNIERO join in JUSTICE GARIBALDI's opinion. CHIEF
JUSTICE PORITZ filed a separate dissenting opinion in which JUSTICE STEIN joins.
SUPREME COURT OF NEW JERSEY
A-
124 September Term 1998
IN THE MATTER OF THE ADOPTION
OF A CHILD BY W.P. AND M.P.
_____________________________
Argued October 26, 1999 -- Decided April 6, 2000
On appeal from the Superior Court, Appellate
Division.
James W. Miskowski and Harriet Dinegar Milks
argued the cause for appellants W.P. and
M.P., (MacFall, Riedl & Miskowski,
attorneys).
Toby Solomon argued the cause for respondents
K.S. and M.J.S., (Ms. Solomon, attorney; Ms.
Solomon and Kathleen Morehouse, on the
briefs).
Ann Marie Seaton, Senior Deputy Attorney
General, argued the cause for amicus curiae
Division of Youth and Family Services (John
J. Farmer, Jr., Attorney General of New
Jersey, attorney; Mary C. Jacobson, Assistant
Attorney General, of counsel).
The opinion of the Court was delivered by
GARIBALDI, J.
The issue in this appeal is whether pursuant to N.J.S.A.
9:2-7.1 (the “Grandparent Visitation Statute”), grandparental
visitation by a child's biological grandparents can be enforced
over the objections of nonrelative adoptive parents. To resolve
that issue, we must determine whether an award of visitation
under the Grandparent Visitation Statute conflicts with the
public policy of the New Jersey Adoption Act, N.J.S.A. 9:3-37 to
-56 (the “Adoption Act”), when a child is adopted by a
nonrelative intact family.
V was born on August 11, 1994, to unmarried parents JH and TS. When V was six months old, JH placed her with nonrelatives WP and MP (the “adoptive parents,” or “petitioners”). TS, the child's biological father, was incarcerated at that time. JH executed a consent for V's adoption and her parental rights were terminated.
The prospective adoptive parents filed a complaint for adoption. TS filed a formal answer objecting to the adoption on May 2, 1995. His parents, KS and MS (the “grandparents” or “respondents”), filed an application to intervene to obtain custody of V, to permit grandparental visitation, and to permit them to file a complaint for the adoption of V. The court granted the grandparents the right to intervene on the issues of grandparent visitation and custody if the adoption was not granted. However, their application to adopt was denied. In July 1995, TS was released from prison. He resided with his parents and worked for his father. On September 15, 1995, TS was granted visitation rights, and an order was entered allowing his parents to accompany him during his visitations. The order later was amended to make the grandparents' presence at TS's visitations mandatory. In January 1996, TS was arrested again, this time for possession and theft of handguns from his father's home. As a result of that action, TS's parents obtained a Final Restraining Order against him under the Domestic Violence Law.
Ultimately, TS's parental rights were terminated by court order over his objection. TS's appeal from that order was denied by the Appellate Division. In re Adoption of a Child by W.P. and M.P., 308 N.J. Super. 376, 387 (App. Div. 1998). The panel found that the record supported the court's conclusion that TS was unfit to act in a parental role and that continuation of TS's parental relationship would place V in substantial jeopardy. It noted TS's “chronic addiction to drugs,” that he “has lived a life of crime,” and that his “life has been punctuated by lengthy periods of incarceration.” Id. at 386. It further observed, “TS's volatile relationship with his parents would place him in conflict concerning issues of child care, and thus their ability to assist in raising [V] would inevitably be subverted.” Id. at 387 (emphasis added). An adoption hearing was held in March 1998. By order dated April 1, 1998, the court directed that visitation by the grandparents on the third Sunday of every month was to continue. The order also directed the adoptive parents and the grandparents to submit briefs on whether visitation should continue following the final order of adoption.
On April, 1, 1998, the trial court entered a Final Judgment of Adoption that provided in part:
3. The entry of this Judgment of Adoption shall terminate all relationships between the child and the birth mother, [JH], and putative father, [TS], as well as all rights, duties, and obligations of any person founded on those relationships, including the rights of inheritance under the laws of intestacy of the State of New Jersey except for any rights which may have vested prior to the entry of this judgment; and
4. The entry of this Judgment shall establish the same relationships, rights, duties, and obligations between the child and the adopting parents as if the child was born to the adopting parents in lawful marriage, including all rights of inheritance under the laws of intestacy.
Subsequently, in an unpublished opinion, the trial court found that the Grandparent Visitation Statute was constitutional even as applied to “intact” families. The court also held that the Grandparent Visitation Statute and the Adoption Act were not inherently in conflict. Instead, the court found that when parental rights have been terminated, the statutory scheme required an assessment of continued grandparental visitation on a case-by-case basis, with the best interests of the child being the determining factor.
Given the existing relationship between the grandparents and V, the trial court held that there should be a hearing to afford the grandparents an opportunity to demonstrate that continued visitation will be in V's best interest pursuant to the factors enumerated in the Grandparent Visitation Statute. On October 29, 1998, the court entered an order continuing the ongoing visitation and scheduling a hearing for December 3, 1998, on the issue of what grandparental visitation, if any, should be ordered.
The adoptive parents filed a motion for leave to appeal that order, which the Appellate Division granted. In an unpublished opinion, the panel concluded that the interlocutory appeal had been improvidently granted. The panel determined that a ruling on the interplay between the Grandparent Visitation Statute and the Adoption Act would benefit from the best interests hearing called for by the trial court. Nonetheless, the Appellate Division offered numerous observations and tentative conclusions. Among them was the court's conclusion that the Adoption Act implicitly contemplates rights of post-adoption visitation by the biological family members.
We granted the adoptive parents' motion for leave to file within time and their motion for leave to appeal. 161 N.J. 328 (1999).
We view this appeal as a question of statutory interpretation of the Grandparent Visitation Statute and the Adoption Act, as applied to the rights of biological grandparents who seek visitation over the objections of nonrelative adoptive parents following the termination of the parental rights of the child's biological parents, either by consent or by court order. We conclude that such cases present an inherent conflict between the two statutes and find that the overriding public policy and statutory law regarding adoptions preclude the application of the Grandparent Visitation Statute when the child is adopted by intact, nonrelative adoptive parents. Because we decide this case on statutory grounds, we do not address the constitutional argument raised by the parties.
A. The Grandparent Visitation Statute
In 1972, the New Jersey Legislature enacted its first version of the Grandparent Visitation Statute. N.J.S.A. 9:2-7.1 (L. 1971, c. 420, § 1, effective Feb. 1, 1972). The Visitation Statute, amended in 1973, afforded standing to grandparents to seek visitation only when “either or both of the parents of a minor child . . . is or are deceased, or divorced or living separate and apart in different habitats . . . .” N.J.S.A. 9:2 7.1 (as amended by L. 1973, c. 100, § 1)). The Statute was subsequently amended again in 1987 to allow siblings to apply for visitation with the child. N.J.S.A. 9:2-7.1 (as amended by L. 1987, c. 363, § 2). Thus, prior to 1993, “intact” families (those not disrupted by death or divorce) were not subject to statutory visitation rights of grandparents.
In 1993, N.J.S.A. 9:2-7.1, was amended to provide:
a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.
b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:
(1) The relationship between the child and the applicant;
(2) The relationship between each of the child's parents or the person with whom the child is residing and the applicant;
(3) The time which has elapsed since the child last had contact with the applicant;
(4) The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;
(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
(6) The good faith of the applicant in filing the application;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and
(8) Any other factor relevant to the best interests of the child.
c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child's best interest if the applicant had, in the past, been a full-time caretaker for the child.
[N.J.S.A. 9:2-7.1 (as amended by L. 1993, c. 161, § 1 (effective June 29, 1993)).]
The new statute expanded the scope of grandparents' visitation rights and removed the requirement that the birth parents be deceased or divorced. The amended Grandparent Visitation Statute became effective June 29, 1993.
B. N.J.S.A. 9:3-50 of the Adoption Act
Toward the end of 1993, the Legislature amended N.J.S.A. 9:3-50 of the Adoption Act, entitled “Effect of adoption; relationships of parent and child; rights of inheritance,” to provide:
14.a. (Deleted by amendment, P.L.1993, c.345).
b. The entry of a judgment of adoption shall establish the same relationships, rights, and responsibilities between the child and the adopting parent as if the child were born to the adopting parent in lawful wedlock. For good cause, the court may direct the entry of judgment nunc pro tunc as of the date the action was instituted. In applying the intestate laws of this State, an adopted child shall have the same rights of inheritance as if born to the adopting parent in lawful wedlock.
c. The entry of a judgment of adoption shall:
(1) terminate all parental rights and responsibilities of the parent towards the adoptive child except for a parent who is the spouse of the petitioner and except those rights that have vested prior to entry of the judgment of adoption;
(2) terminate all rights of inheritance under intestacy from or through the parent unless that parent is the spouse of the petitioner or that parent or other relative had died prior to the judgment of adoption; and
(3) terminate all rights of inheritance under intestacy from or through the child which existed prior to the adoption.
d. The court may order counseling for the adopting parents.
[N.J.S.A. 9:3-50 (as amended by L. 1993,
c. 345, § 13, (effective April 27, 1994)).]
In revising N.J.S.A. 9:3-50, the Legislature deleted language
appearing to terminate, in the adoption setting, the rights,
duties and obligations of any person “founded upon” a
relationship between the child and the biological parents. That
amended statute became effective on April 27, 1994.
The grandparents assert that the Legislature, in revising
the Adoption Act in 1993, intended to harmonize the Adoption Act
with the Visitation Statute, enacted earlier in the same year.
However, an examination of the legislative history of the two
statutes reveals that the Legislature did not revise the Adoption
Act to conform it, or harmonize it, with the Grandparent
Visitation Statute, but amended the Adoption Act to facilitate
adoptions.
C. Legislative History of the Grandparent Visitation
Statute
On May 20, 1993, the General Assembly gave final approval to
the Grandparent Visitation Statute. The bill was signed into law
by Governor Florio on June 29, 1993, and became effective that
same day. As previously stated, the new law eliminated the
requirement that a child's parents be deceased, divorced or
separated in order for a grandparent to apply for visitation
rights. Instead, the statute provides that “a grandparent or any
sibling of a child residing in this State” may apply for
visitation, and it instructs the Superior Court to consider eight
enumerated factors when determining whether the grant of such
visitation is in the best interests of the child.
In its original form, the bill did not enumerate factors,
requiring only that visitation be in the best interests of the
child, with no guidance to the courts. In an apparent response
to concerns that it constituted “a gross invasion of the sanctity
and privacy of the family unit,” the bill was amended, setting
forth the eight factors as a way of limiting the intrusive
elements of the act. See Letter from Cary B. Cheifetz, Esq.,
Skoloff & Wolfe, to Gov. Jim Florio (Dec. 22, 1992) (enclosing
proposed bill setting forth specific criteria that protect
child's best interests).
A precursor to the current statute Assembly Bill No. 1475
was prefiled for introduction in the 1990 session. That bill
expressly would have required that the court consider the
objections of a parent to an application for visitation by that
parent's parent (i.e., the child's grandparent). See Assembly
Bill No. 1475, Prefiled for Introduction in the 1990 Session.
According to the bill statement accompanying Bill No. 1475, the
purpose of that provision was to “ensure that the court does not
grant visitation to a parent's own blood relatives without
considering whether the parent may object to such visitation.”
Id. at 2 (emphasis added). Although that provision was not
enacted in the final bill, it suggests that the Legislature
believed that parental autonomy should be afforded deference.
Moreover, we observe that the statement was written in terms of
“a parent's own blood relatives.” That suggests that, at least
in its earlier form, the Grandparent Visitation Statute was not
intended to apply to a nonrelative adoption.
D. Legislative History of the Adoption Act
On December 16, 1993, almost 7 months after it enacted the
Grandparent Visitation Statute, the Assembly gave final approval
to Assembly Bill No. 1418/Senate Bill No. 685. That enactment
revised and updated New Jersey's Adoption Act. The revisions,
many in number, represented the first set of comprehensive
changes to the adoption laws in nearly 14 years. The amendatory
act contained twenty-three separate sections including revised
N.J.S.A. 9:3-50.
The legislative history reveals that section 18 of the
Adoption Act was the most controversial of all the revisions.
That section, now found at N.J.S.A. 9:3-39.1, permits the use of
intermediaries in non-agency settings to facilitate private
adoptions. The passed-bill memorandum from Chief Counsel Scott
Weiner to Governor Jim Florio summarized the amendatory sections
of the bill without reference to the Grandparent Visitation
Statute. See Memorandum from Scott A. Weiner, Chief Counsel, to
Gov. Jim Florio (Dec. 21, 1993) (summarizing amendatory sections
of Adoption Act).
The legislative history reveals that the amendments to
N.J.S.A. 9:3-50 were a small part of a larger package of
revisions to the adoption laws, the first set of such revisions
in early 14 years. Typically, the newspaper articles reported
that:
New Jersey's adoption laws would be revised
with the aim of providing more options for
prospective adoptive parents, including
allowing the use of unpaid intermediaries to
arrange adoptions, . . .
[Tom Johnson, Bill Voted to Update Adoption Laws as an
Aid to Prospective Parents, Newark Star Ledger, Feb. 2,
1993.]
Another article reported:
State lawmakers on Thursday approved a
measure that revamps New Jersey's adoption
laws to legalize private adoptions and allow
unpaid intermediaries to arrange adoptions.
[Dunston McNichol, Adoption Law Revision Advances,
Bergen Record, Dec. 17, 1993.]
See also Letter from Nicholas R. Scalera, Director, Division of
Youth and Family Services of New Jersey Department of Human
Services, to Emery J. Ungrady, Jr., New Jersey Senate (June 8,
1993) (questioning the advisability of intermediary involvement,
and continuing recommendation that adoption be authorized only by
approved agencies); letter from Thomas R. Curtin, New Jersey
State Bar Association President, to Gov. Jim Florio (Dec. 23,
1993) (supporting bill because it makes adoption easier in New
Jersey and clarifies current adoption laws).
Nowhere in the available documents pertaining to the
Adoption Act is there a specific reference to the issue of
grandparent visitation. The legislative history does contain
some references addressing the standards by which a parent may
object to termination of parental rights, but not to grandparent
visitation. Indeed, N.J.S.A. 9:3-50, including its very heading,
“rights of inheritance,” suggests that the Legislature was
concerned with rights of inheritance and other issues, not
grandparental visitation rights.
The absence of a discussion of grandparent visitation
indicates that the Legislature did not revise the Adoption Act to
harmonize it with the Grandparent Visitation Statute. That is
further evidenced by the passage of time -- nearly 7 months -
between the two enactments. If the Legislature had wanted to
harmonize the Grandparent Visitation Statute with the Adoption
Act, it could have done so expressly at the time it revised the
latter act.
Based on an examination of the legislative history of the
Grandparent Visitation Statute and the Adoption Act, we find that
the Legislature did not intend to harmonize or conform the two
statutes. The two statutes are separate. Moreover, we believe
that the statute that permits visitation rights of parents of the
biological parents of a child adopted by intact nonrelative
adoptive parents is in conflict with the provisions of the
Adoption Act. An examination of the statutory scheme of the
Adoption Act further supports that conclusion.
E. Statutory Scheme of the Adoption Act
It is a well-established principle that “[i]n discerning
[the Legislature's] intent we consider not only the particular
statute in question, but also the entire legislative scheme of
which it is a part,” Cornblatt v. Barow,
153 N.J. 218, 234
(1998)(quoting Kimmelman v. Henkels & McCoy, Inc.,
108 N.J. 123,
129 (1987)). The statutory scheme of the Adoption Act emphasizes
the complete termination of the biological parents' rights, thus
having the logical effect of terminating a biological
grandparent's right to visitation. We also observe that the
confidentiality of the entire adoption procedure also supports
the conclusion that the Adoption Act bars the continued
visitation of the biological grandparent of a child adopted by
nonrelative adoptive parents.
N.J.S.A. 9:3-38(f) -- defines parent to include “a parent or
parents by adoption.” N.J.S.A. 9:3-41(a) provides in part that:
Prior to the execution of the surrender, the
approved agency shall, directly or through
its agent, inform the person executing the
surrender that the instrument is a surrender
of parental rights by the signatory and means
the permanent end of the relationship and all
contact between the parent and child.
N.J.S.A. 9:3-41.1(a) provides in pertinent part that an
approved agent
shall provide a prospective parent with all
available information, other than information
which would identify or permit the
identification of the birth parent of the
child, . . .
N.J.S.A. 9:3-51 was amended to provide that all records of
judgment of adoption:
shall be sealed and thereafter shall be made
accessible only by court order.
N.J.S.A. 9:3-52(a) provides that:
[a]ll records of proceedings relating to
adoption, including the complaint, judgment
and all petitions, affidavits, testimony
reports, briefs, orders and other relevant
documents, shall be filed under seal by the
clerk of the court and shall at no time be
open to inspection or copying unless the
court, upon good cause shown, shall otherwise
order.
As the above-cited provisions of the Adoption Act reveal,
the traditional adoption process is characterized by closed and
confidential proceedings. Once the adoption is final, the
records are sealed, and can be opened for inspection only by
court order. All legal ties of the child to its natural parents
are completely and permanently severed. The child becomes the
child of the adoptive parents and part of their extended family.
The intent of the Legislature is to promote the creation of a new
family unit without fear of interference from the natural
parents. In re Adoption of a Child by D.M.H.,
135 N.J. 473, 491
(1994), cert. denied. sub nom. Hollingshead v. Hoxworth,
513 U.S 967 (1994). That intent did not change upon the enactment of the
1993 amendments to the Adoption Act.
No New Jersey court has directly addressed the issue of
whether the statutory visitation rights of a child's biological
grandparent can continue following the termination of parental
rights and adoption of the child by nonrelatives. However, in
Mimkon v. Ford,
66 N.J 426 (1975), this Court considered the
application of the Grandparent Visitation Statute in the context
of a stepparent adoption. After the child's birth mother died,
the child's father remarried and the child was adopted by her
stepmother . Ibid. The child's maternal grandmother subsequently
instituted an action to visit the child over the objections of
the natural father and the child's stepmother. Ibid. This Court
upheld the grandmother's right to visitation, holding that the
statutory right to grandparental visitation, in the context of
stepparent adoption, was not in conflict with the policies of the
Adoption Act. Id. at 436. Mimkon was decided prior to the 1993
amendments to the Grandparent Visitation Statute and the 1993
amendments to the Adoption Act. Therefore, Mimkon does not
conclusively resolve this case. However, this Court's
observations regarding the policies underlying the Adoption Act
in Mimkon merit discussion.
In Mimkon, we stressed that the Adoption Act was primarily
designed to protect children placed for adoption because their
parents were “unwilling or unable to care for them.” Mimkon,
supra, 66 N.J. at 434. “That is why the judgment of adoption
terminates all relationships between the child and his natural
parents.” Ibid. The Court emphasized that different
considerations apply in cases involving stepparent, rather than
nonrelative adoption. With stepparent adoption,
“the policy of insulating the adoptive child from his natural
parents is not so clearly compelling as it would be in other
situations.” Id. at 435. Specifically, we observed that
“nothing in this opinion is intended to suggest that the
grandparent could invoke the visitation statute after the child
of the grandparent has in fact been adjudicated to have 'forsaken
his parental obligations and adoption ordered.' In that case the
policy of N.J.S.A. 9:3-17(c).30, subd. A plainly controls.”
Ibid., n.3. That statute provided that to give effect to the
public policy of the state regarding the welfare of children
requiring placement for adoption it was necessary to “protect the
adopting parents . . . from later disturbance of their
relationships to the child by the natural parents.” Id. at 432.
We reaffirm our observation in Mimkon that visitation in the
context of nonrelative adoption conflicts with the policies
underlying the Adoption Act. The holding of Mimkon should not be
extended to nonrelative adoption.
Courts in other jurisdictions have addressed the tension
between their grandparent visitation and adoption statutes.
However, those decisions are guided mainly by the specific
statutory provisions, which differ from New Jersey's, and are of
limited precedential value. Jurisdictions with adoption and
visitation statutes similar to ours have declined to impose
grandparental visitation rights in nonrelative adoption settings.
See, e.g., Sowers v. Tasmolias, 941 P.2d 949, 951 (Kan. 1997)
(holding that after adoption, parents of birth parents no longer
“grandparents” of the child within the meaning of the visitation
statute); Hicks v. Enlow,
764 S.W 2d 68, 73 (Ky. 1989)
(interpreting interplay between visitation statute and adoption
statute to allow visitation in case of stepparent adoption, but
to disallow visitation in the case of nonrelative adoptions);
L.F.M. v. Department of Soc. Serv., 507 A.2d 1151, 1159 (Md. App.
Div. 1986) (holding that grandparents had no right to visit
children over objection of confidential prospective adoptive
parents).
Our finding that the Legislature did not intend the Grandparent Visitation Statute to apply to situations where the child is adopted by nonrelative adoptive parents is further supported by the Legislature's specific rejection of the proposed open adoption provision to the Adoption Act. Open adoption “reflects an agreement between the adoptive parents and one or more members of the child's biological family permitting visitation after the child has been formally adopted.” In re Guardianship of K.H.O., 161 N.J. 337, 361 (1999). That is exactly the arrangement the grandparents are asserting in this case, albeit without the consent of the adoptive parents.
The 1993 amendments to the Adoption Act rejected a proposed open adoption provision which would have provided:
With the consent of the adopting parent the court may provide in the adoption order for visitation or other type of communication with the child after the adoption by any person who had a relationship with or was biologically related to the adopted child. This provision may be modified by the court, subsequent to the adoption on petition of the adoptive parent for good cause shown.
[A. 1418, § 13(d), 205th Leg., 1st Sess. (N.J. May 14, 1992) (above language was never enacted).]
The language of that rejected provision contemplated that post adoption contact could continue between a child and biological family only with the voluntary consent of the adopting parent. It was thus never anticipated, even if the concept of open adoption had been enacted, to compel visitation against the wishes of the adoptive parents. In this case, the adoptive parents do not (and have never) consented to such a visitation agreement.
To permit post-adoption visitation in this case represents a direct conflict with the Legislature's rejection of open adoption. New Jersey courts have repeatedly reinforced the principle that open adoption will not be enforced absent express legislative command. See, e.g., In re Guardianship of K.H.O., supra, 161 N.J. at 361; In re Guardianship of D.M.H., 161 N.J. 365, 386 (1999); In re Adoption of a Child by D.M.H., supra, 135 N.J. at 493. This Court has declined to resolve the question of the validity or enforceability of an open adoption noting that the Legislature has deferred its consideration and that “the issue of open adoption represents a significant policy issue which should be addressed in separate legislation.” In re Adoption of a Child by D.M.H., supra, 135 N.J. at 494 (quoting Senate Judiciary Committee, Statement to Senate No. 685 (1993).
The above cited cases have highlighted the importance of preserving adoptive parents' autonomy in raising their child after the parental rights of biological parents are terminated. This Court has noted that the primary purpose of the termination of rights provision in the adoption statute is to “protect adoptive parents from post-adoption disruptions in their relationship with adoptive children, by natural parents who have surrendered children for adoption or where parental rights been severed.” In re Adoption of a Child by D.M.H., supra, 135 N.J. at 491 (quoting In re Adoption of Children by F., 170 N.J. Super. 419, 422-423 (Ch. Div. 1979)). This Court acknowledged that the revised adoption statute “maintains the policy that adoption ends the parental role of the biological parents and transfers that role to the adoptive parents.” In re Adoption of a Child by D.M.H., supra, 135 N.J. at 491. Even arrangements that are entered into with mutual consent permitting continued contact between biological relatives and the adopted child, “cannot be judicially enforced given the potential for disruption of the child's family life under such arrangements and the fact that under the adoption laws the adoptive parents' rights are paramount.” In re Guardianship of K.H.O., supra, 161 N.J. at 362 (emphasis added).
An examination of the legislative history demonstrates that the overarching purpose of the Legislature in revising the Adoption Act was to facilitate and encourage adoptions. It is a well-established principle that administrative agencies are entitled to substantial deference in the area of their expertise. Mayflower Secs. Co. v. Bureau of Secs., 64 N.J. 85, 92-93 (1973). We agree with the position of the Division of Youth and Family Services (“DYFS”), which intervened as amicus curiae in this interlocutory appeal, that the Grandparent Visitation Statute was not intended to be applied in the case of adoption by nonrelatives, and must not be applied because court-enforced visitation by biological grandparents would discourage -- if not prevent -- adoption.
We place great reliance on the position of DYFS that to permit application of the Grandparent Visitation Statute to adoption by nonrelatives or where there has been an involuntary termination of parental rights, as in this case, would have a chilling effect on prospective adoptive parents. According to DYFS, as of January 1995 there were 1,049 children who were legally freed for adoption, and awaiting finalization of that status. Only 33 of those children were awaiting a relative adoption. The vast majority of the adoptive homes have no connection to the child's biological family. The effect of the Grandparent Visitation Statute is very important to the children DYFS serves.
The ultimate purpose of the Adoption Act is to support the newly-created family and to encourage other families to adopt a child with the knowledge that biological relatives will not interfere with the new family unit. As DYFS stated in its brief:
It is under this legislative scheme that the State's compelling interest in protecting children in a stable and permanent home is firmly established as paramount. This strong public policy must not be undermined by the forced imposition of biological family visitation after adoption. The Grandparent Visitation Statute must not be interpreted to qualify or condition an adoption. To interpret these two statutes in any other way would lead to an unintended result and effectively undermine the intended purpose of the Adoption Act, in derogation of the rules governing statutory construction.
See Adams v. Cooper Hosp., 295 N.J. Super. 5, 12-13, certif. denied, 148 N.J. 463 (1997).
Some of the reasons adoptive parents fear grandparent visitations are evident in this case. The adoptive parents do not want any further connection with TS, whose rights were terminated because he presented a continuing threat to V's safety and well-being. In re Adoption of Child by W.P. and M.P., supra, 308 N.J. Super. at 386. They fear that on his release from prison, TS will pursue them and their daughter, either on his own or through his parents. As the trial court observed, although TS's parents have obtained a Final Restraining Order against him under the Domestic Violence Act, such an order can be vacated at any time. It is very difficult for parents to turn aside their own child. In the past, when TS was released from prison he always returned to his parents' home. Certainly, it is possible that the grandparents' visitation may provide unsupervised opportunity for TS to have association with V, even though his parental rights have been severed based on parental unfitness.
Moreover, the nonrelative adoptive parents have faced protracted and expensive litigation over visitation rights. To subject the adoptive parents now to a best interests hearing, as proposed by the dissent, would further prolong the already lengthy and cumbersome court proceedings. (Post at ___ (slip op. at 39). As noted previously, the intent of the adoption statute is to encourage and facilitate adoptions, not to hinder them.
We understand that grandparents wish to maintain close contact with their grandchildren. Nonetheless, the situation changes when a child is adopted by nonrelatives. V's adoptive parents also have an adopted son, slightly older than V. If the grandparents of his biological parents sought the same visitation rights as the respondents do in this case, one can imagine the confusion that would be created. The stability of the new family unit would be seriously jeopardized. The adoptive parents would have to comply with two visitation schedules with two different families. Under such circumstances, it would be very difficult for the adoptive family to create and maintain a new stable and intact family unit.
An adoptive family must be given the right to grow and develop as an autonomous family, and must not be tied to the very relationship that put the child in the position of being adopted. Any other ruling would relegate the adoptive parents to “'second class' status.'” Mimkon, supra, 66 N.J. at 441 (Clifford, J., dissenting). As Justice Clifford correctly observed, an adoptive parent (a mother in that case), is “for every purpose and from every perspective and in any terms save blood as much the maternal parent to the child as is any other mother to her daughter.” Ibid. The true grandparents of V (who would have visitation rights under the Grandparent Visitation Statute) are now the parents of her adoptive parents. They are now V's family. We vacate the judgment of the Appellate Division and reverse the order of the trial court filed October 29, 1998.
JUSTICES O'HERN, COLEMAN, LONG, and VERNIERO join in JUSTICE GARIBALDI's opinion. CHIEF JUSTICE PORITZ filed a separate dissenting opinion in which JUSTICE STEIN joins. SUPREME COURT OF NEW JERSEY
A- 124 September Term 1998
IN THE MATTER OF THE ADOPTION
OF A CHILD BY W.P. AND M.P.
_____________________________
PORITZ, C.J., dissenting.
This case raises the issue whether grandparents who have had
a relationship with their granddaughter since she was born can
seek visitation rights under N.J.S.A. 9:2-7.1 (the “Grandparent
Visitation Statute”)See footnote 11, after the child at age four is adopted by
non-relatives. The child's adoptive parents claim, and a
majority of the Court agrees, that the Grandparent Visitation
Statute conflicts with policies enunciated in the Adoption Act,
N.J.S.A. 9:3-37 to -56, and should not be given full force and
effect. Ante at ___ (slip op. at 6-7). The adoptive parents
also claim that application of the visitation statute to them
would violate their right of privacy, and more specifically,
their right of parental autonomy. I believe that the Adoption
Act and the Grandparent Visitation Statute are consonant with one
another, each designed to provide for the best interests of the
children who come under the Acts' provisions. I further believe
that the visitation statute, as applied in this case, does not
impinge impermissibly on parental rights because of the showings
that must be made by the grandparents before visitation may be
allowed, and because of the restrictions that may be placed on
visitation to protect the parents' interests. I would therefore
uphold the Grandparent Visitation Statute. Because every case is
highly dependent on the facts adduced under the statutory
standards, I would remand the matter to the trial court to
determine, after a hearing, whether visitation would be in the
child's best interests.
WP and MP are not related to V or her biological family. At the time of the child's placement, her father, TS, was incarcerated and unaware of the adoption proceedings. He subsequently learned about the proposed adoption and filed an objection with the court in the spring of 1995. On July 21, 1995, TS was released from prison, after which he resided with his parents and worked for his father. He petitioned for visitation with his daughter and obtained an order in September permitting him to visit V at least once a week. Shortly thereafter, the order was modified twice, first to allow TS's parents, KS and MS (the “grandparents”), to be present during his visits, and then to establish visitation at three hours per week and to require the presence of the grandparents at all times during the visits between TS and V.
TS was incarcerated again in January 1996 for stealing guns from his parents' house. As a result of this incident, the grandparents obtained a restraining order against their son under the Domestic Violence Law, N.J.S.A. 2C:25-28. The restraining order is still in effect. One month later, in February 1996, the grandparents petitioned the trial court to adopt V themselves and to obtain custody or extended visitation during the adoption proceedings.
The grandparents claim that they established a relationship with V from the day she was born, a claim that is contested by WP and MP. The record indicates, however, that there has been at least some ongoing contact between V and her paternal grandparents from her infancy until the present. The trial court allowed the grandparents to intervene in WP's and MP's adoption proceedings on the visitation issue and provided that, if adoption was not granted to WP and MP, the grandparents would have the right to be heard on the issue of custody. The court ordered visitation between V and her grandparents every third Sunday of the month from 9:00 a.m. to 5:00 p.m., but denied the grandparents' application to proceed with adoption.
TS was released from prison on bail in May 1996, and WP and MP sought to vacate visitation by the grandparents out of fear that V's father would gain access to her through her grandparents. On October 30, 1996, the trial court denied the grandparents' request to intervene at the preliminary adoption hearing, as well as their request for custody, permission to proceed with adoption, and increased visitation. The court's order provided, however, that if adoption was granted to WP and MP, a hearing would be promptly scheduled to determine visitation. The order also stated that if adoption was not granted to WP and MP, the grandparents would have the right to participate in a custody trial.
Adoption hearings were held in November 1996, and on December 24, 1996, the trial court issued a written opinion terminating the parental rights of TS followed by a formal order of termination on January 24, 1997. The termination was based in part on TS's history of drug addiction and criminal convictions. TS appealed the ruling unsuccessfully. At the same time, the grandparents continued to seek increased visitation and permission to proceed with adoption, which the trial court continued to deny. The trial court did allow the grandparents to intervene at future-scheduled hearings on the sole issue of visitation, and continued their same visitation schedule.
The adoption of V by WP and MP was finalized on April 1, 1998. The order provided that the Judgment of Adoption:
shall terminate all relationships between the child and
the birth mother, [JH], and putative father, [TS], as
well as all rights, duties, and obligations of any
person founded on those relationships . . . except for
any rights which may have vested prior to the entry of
this judgment.
The trial court also ordered further briefing on the issue of
grandparent visitation, and stayed the final hearing of adoption
pending the submission of an updated adoption home study. On
September 28, 1998, the trial court issued a written opinion
rejecting WP's and MP's claims that the Grandparent Visitation
Statute, N.J.S.A. 9:2-7.1, is unconstitutional as applied to this
case, and that the statute conflicts with the Adoption Act,
N.J.S.A. 9:3-37 et seq. The court awarded the grandparents
continued visitation and scheduled another hearing to determine
how visitation should proceed. WP and MP appealed. Although
initially they agreed to visitation, they later sought and
obtained a stay from the Appellate Division. The Appellate
Division, however, subsequently dismissed the appeal as
improvidently granted in an opinion dated May 14, 1999.
We granted WP's and MP's motion for leave to appeal on July
16, 1999. V is now five years old.
The Legislature first codified a grandparent's right to petition for visitation in L. 1971, c. 363, § 1. That statute focused on the status of the parents, specifically, whether one parent was deceased, as a prerequisite to a court's consideration of grandparent visitation. Under the statute, courts were required to apply a best interests of the child test, much like the “consideration of the child's welfare” standard in earlier cases decided on common law principles. Mimkon v. Ford, 66 N.J. 426, 430 (1975). Specific direction in respect of the contours of the test was not provided. In 1973, the Legislature extended the circumstances under which a grandparent could petition for visitation to situations in which a parent was “divorced or living separate and apart in different habitats, regardless of the existence of a court order or agreement.” L. 1973, c. 100, § 1. Later, in 1987, the Legislature also permitted siblings to petition for visitation. L. 1987, c. 363 § 2.
The current version of the statute was passed in 1993, when the Legislature decided to eliminate parental status as a prerequisite to the filing of a petition for visitation. N.J.S.A. 9:2-7.1 (effective June 29, 1993). The amended statute gives trial courts detailed guidance for determining when visitation may be in a child's best interests. The statute now states:
a. A grandparent or any sibling of a child residing
in this State may make application before the Superior
Court, in accordance with the Rules of Court, for an
order of visitation. It shall be the burden of the
applicant to prove by a preponderance of the evidence
that the granting of visitation is in the best
interests of the child.
b. In making a determination on an application filed
pursuant to this section, the court shall consider the
following factors:
(1) The relationship between the child and the applicant;
(2) The relationship between each of the child's parents or
the person with whom the child is residing and the
applicant;
(3) The time which has elapsed since the child last had
contact with the applicant;
(4) The effect that such visitation will have on the
relationship between the child and the child's parents
or the person with whom the child is residing;
(5) If the parents are divorced or separated, the time
sharing arrangement which exists between the parents
with regard to the child;
(6) The good faith of the applicant in filing the
application;
(7) Any history or physical, emotional or sexual abuse or
neglect by the applicant; and
(8) Any other factor relevant to the best interests of the
child.
c. With regard to any application made pursuant to
this section, it shall be prima facie evidence that
visitation is in the child's best interest if the
applicant had, in the past, been a full-time caretaker
for the child.
Generally, the court is required to consider the relationships
between the various family members and the child, always with a
view toward the impact of those relationships on “the best
interests of the child.” N.J.S.A. 9:2-7.1(a).
B. The Adoption Act
From its inception, the purpose of New Jersey's Adoption Act
has also been to protect children, as well as their natural
parents and their adopting parents. L. 1953, c. 264, § 1
(repealed 1977 and recodified as amended at L. 1999, c. 53, § 1
(effective Mar. 31, 1999)). In furtherance of that purpose, the
Act has undergone major revisions over the past twenty-three
years, in 1977, in 1993, and most recently, in 1999. Each time
the Legislature sought to facilitate adoption in response to
perceived impediments, “to simplify and clarify the provisions
governing adoption proceedings,” to ease private adoption, and to
promote early adoption when possible. Senate Judiciary
Committee, Statement accompanying S. 1631, 197th Leg., 1st Sess.
(N.J. Aug. 12, 1976). Most relevant to this case, before the
1977 revisions, a stated public policy of the Act was to “protect
the adopting parents from . . . later disturbance of their
relationships to the child by the natural parents.” L. 1953, c.
264, § 1 (repealed 1977). In 1977, the Legislature shifted focus
from the parents to the child by replacing this provision with a
broad statement that the Act should be liberally construed to
promote the best interests of children, and that “[d]ue regard
shall be given to the rights of all persons affected by an
adoption.” L. 1977, c. 367, § 1 (repealed 1993 and recodified as
amended at L. 1999, c. 53, § 1). The current version of the Act
retains that language and adds, as a goal, “that the safety of
children be of paramount concern.” L. 1999, c. 53, § 1
(effective Mar. 31, 1999).
The 1977 Act also set forth the legal consequences of
adoption. At that time, the Act provided that the entry of a
judgment of adoption shall “terminate all relationships between
the adopted child and his parents and all rights, duties, and
obligations of any person that are founded on such
relationships.” L. 1977, c. 367, § 14 (repealed 1993 and
recodified as amended at N.J.S.A. 9:3-50). In 1993 the
Legislature revised this section to read, in pertinent part:
The entry of judgment of adoption shall . . .
terminate all parental rights and
responsibilities of the parent towards the
adoptive child except for a parent who is the
spouse of the petitioner and except those
rights that have vested prior to entry of the
judgment of adoption.
That provision remains in the Adoption Act today.
The Act passed in both houses and was signed into law by
Governor Florio on December 28, 1993.
The presumption of validity is especially strong here in light of the similar subject matter and common purpose of both statutes -- protecting the best interests of children. Cf. In re Return of Weapons to J.W.D., 149 N.J. 108, 115 (1997) (reading two provisions of Domestic Violence Act together to determine Legislature's intent); F & W Assocs. v. County of Somerset, 276 N.J. Super. 519, 525-26 (App. Div. 1994) (harmonizing New Jersey Development District Act and Municipal Land Use Law to share “common purpose” of control of traffic); Division of Youth & Family Servs. v. P.M., 301 N.J. Super. 80, 90 (Ch. Div. 1997) (holding that courts must “construe together all existing statutes on the same subject matter,” particularly when statutes address similar problems). Statutes that deal with the same matter or subject should be read in pari materiaSee footnote 22 and construed together as a “unitary and harmonious whole.” Board of Educ. v. Neptune Township Educ. Ass'n., 144 N.J. 16, 23 (1996). This maxim of statutory construction is especially pertinent when, as in this case, the statutes in question were passed in the same session. Mimkon, supra, 66 N.J. at 433-34 ; Sellitto v. Borough of Spring Lake Heights, 284 N.J. Super. 277, 288 (App. Div. 1995), cert. denied, 143 N.J. 324 (1996).
The Adoption Act and the Grandparent Visitation Statute were considered by the Legislature at approximately the same time by the Senate Judiciary Committee, and passed in both houses of the Legislature only six months apart. The first, the Grandparent Visitation Statute, was introduced in the Senate on January 14, 1992, to be followed three months later, on April 6, 1992, by the Adoption Act. One week after the Grandparent Visitation Statute was referred to the Senate Judiciary Commi