NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3598-08T43598-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

N.J. and D.R.,

Defendants-Respondents,

and

S.W.,

Defendant.

IN THE MATTER OF THE GUARDIANSHIP

OF D.J., N.D.R., AND N.R.,

Minors-Appellants.

______________________________

Argued March 9, 2010 - Decided

Before Judges Carchman, Parrillo and Ashrafi.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-098-08.

Randi Mandelbaum, Designated Counsel, argued the cause for minor appellants (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Mandelbaum, on the brief).

Wilbur Van Houten, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Van Houten, on the brief).

Joseph F. Suozzo, First Assistant Child Advocate, argued the cause for amicus curiae Office of the Child Advocate (Mr. Suozzo, attorney; Jo Astrid Glading, Assistant Public Advocate, of counsel; Mr. Suozzo, on the brief).

Kenneth H. Zimmerman argued the cause for amicus curiae Foster Care Alumni of America (Lowenstein Sandler, attorneys; Mr. Zimmerman, of counsel; Mr. Zimmerman, Sally Christie Na, David M. Reiner and Rebecca B. Visvader, on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent D.R. (Dianne Glenn, Designated Counsel, of counsel and on the brief).

Respondent N.J. has not filed a brief.

The opinion of the court was delivered by

PARRILLO, J.A.D.

In this parental termination case, the Law Guardian for three children appeals from the Family Part's denial of her request to compel the prospective adoptive parents to continue visitation among the siblings as a function both of the court's parens patriae power and the children's constitutional right to associate with their siblings post-adoption. We affirm.

N.J. is the mother of three children, D.J., born in 1998, N.D.R., born in 1999, and N.R., born in 2001. S.W. is the father of D.J.; D.R. is the father of N.D.R. and N.R. The middle child, N.D.R., was born with cerebral palsy. He is a spastic quadriplegic, had reactive airway disease and suffers "moderate mental retardation."

This family first came to the attention of the Division of Youth and Family Services (DYFS) in January 2000, when N.D.R., then six-months old, sustained second-degree burns from a radiator after being left unattended. Neglect was substantiated against both parents, all three children were removed for a time, but they were later returned to their mother's care.

DYFS had no further contact with the family until August 2005, when D.J., then seven years old, and N.D.R., then four years old, were left alone in the family's apartment. When they were discovered by the police after an anonymous call, N.D.R. was wearing a dirty diaper and had cockroaches crawling on him. Pots on the stove and in the sink had maggots and mold, and there was a plate of insect-infested cat food on the floor. All three children were removed and put into foster care.

On August 25, 2005, DYFS filed a complaint pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 alleging abuse and neglect of the children by all three parents. In February 2006, N.D.R. was placed at Matheny Educational and Medical Center (Matheny), a long-term specialized school and hospital for children and adults with medically complex developmental disabilities. In May 2006, D.J. and N.R. were placed in a foster home with a family friend, T.F.

On October 25, 2007, DYFS filed a guardianship complaint pursuant to N.J.S.A. 30:4C-15 to -20, seeking to terminate the parental rights of the three parents to D.J. and N.R. At a permanency hearing regarding N.D.R., concluding on November 16, 2007, the court agreed with DYFS that select home adoption was an appropriate permanency plan for him. Consequently, on December 16, 2007, DYFS filed an amended guardianship complaint seeking to terminate the parental rights of the parents to all three children.

On September 11, 2008, the mother, N.J., signed a voluntary surrender of her children D.J. and N.R., providing that they be adopted by T.F. The father of D.J., S.W., was never located, and default was entered against him on January 20, 2009. On the same date, D.R., the father of N.R., voluntarily surrendered his rights to N.R., conditioned on N.R. being adopted by T.F. Accordingly, the judge terminated the parental rights of N.J. to D.J. and N.R, and D.R. to N.R. in a judgment of guardianship entered on February 2, 2009.

Meanwhile, on November 21, 2008, DYFS advised the court that after consultation with its expert, its permanency goal for N.D.R. had changed from select home adoption to long term specialized care. The Law Guardian opposed the new permanency goal and requested parental rights be terminated. The judge ordered a consolidated permanency hearing and termination of parental rights trial, which was held in December 2008 and January 2009.

N.D.R.'s special needs were addressed at trial. On account of his cerebral palsy and spastic quadriplegia, N.D.R. required assistance with eating and was totally dependent on others for transfers, bathing and toileting. He was able to propel himself in a manual wheelchair, but required supervision to do so safely. N.D.R. had periodic behavioral outbursts where he uncontrollably cried, spit and scratched.

N.D.R.'s development improved at Matheny. In February 2008, his individualized education program noted that N.D.R. was "easy going" and "cooperative." He adapted well to new situations, made progress with speech and emotions and enjoyed participating in activities. A report by a Matheny psychologist around the same time noted that N.D.R.'s "communication and social functioning" were his strongest areas, and he showed some "beginning signs of independence."

In August 2008, at the request of the Law Guardian, psychologist Sean Hiscox performed a psychological evaluation and "adoptability" assessment of N.D.R. Hiscox found N.D.R. to be a "likeable" child whose behavior problems were "manageable." He noted that N.D.R. needed around-the-clock care, would require a wheelchair-accessible home and vehicle and, as he got older, would require two adults to bathe him. To date, DYFS was not able to locate an appropriate adoptive parent in New Jersey, and given that there is no long-term foster care in New Jersey, the choices were to keep N.D.R. at Matheny or to put him on a national adoption registry. According to Hiscox, if N.D.R. were put on the registry and a home was located, he would likely have to move out-of-state.

Nevertheless, Hiscox opined that N.D.R. needed parents who were emotionally invested in his welfare. Hiscox found that there was a strong sibling bond, as N.D.R. reacted positively to his siblings' visits; however, he believed that finding an adoptive family had precedence over the sibling relationship. He concluded:

Despite the positive tie between [N.D.R.] and his siblings, I see this as a much different relationship compared to a relationship with a parent or caregiver, who is providing care -- including self-help care -- on a day-to-day basis. Such a relationship is not structured around always having fun together, which is the case with [N.D.R.] and his siblings. As a result, if [N.D.R.] was separated from his siblings and they were not able to maintain their current frequency of contact -- which seems to be the most severe consequence in this matter

-- it would surely result in some emotional harm to [N.D.R.]. But, in my opinion, it would be short lived and over time the benefits of having a consistent caregiver would outweigh keeping him in his present placement in order to maintain his current relationship with his siblings, which entails seeing them on an approximately bi-weekly basis for several hours. Also, regardless of where he is placed, their relationship can be maintained at least to some degree, even if he was placed far away, which would further mitigate the harm to [N.D.R.].

Dr. Leslie Trott, a psychologist retained by DYFS, performed a psychological evaluation of N.D.R. and spoke with the staff at Matheny. Trott found that N.D.R. had the cognitive capability of establishing emotional ties with people; yet he believed it was in N.D.R.'s best interest to remain at Matheny and continue his family relationships, as he was comfortable with his siblings and they would advocate on his behalf.

At the conclusion of trial, the Family Part judge found that the permanency plan for N.D.R. should remain as select-home adoption, and he terminated the parental rights of the mother and the father to him. In the February 2, 2009 judgment for guardianship, the judge ordered continued visitation between N.D.R. and his siblings until the siblings were adopted, but held that he did not have the authority to order post-adoption sibling visitation.

Subsequent to the filing of her appeal from the final order denying sibling visitation post-adoption, the Law Guardian moved for the Family Part to stay the finalization of the adoptions of D.J. and N.R. The judge ordered that the "processing of the adoption shall continue, but the matter shall not be sent to the adoption attorney until after a decision by the Appellate Division on the appeal."

The critical importance of the sibling relationship has been recognized by social scientists, our courts, and Legislature. In N.J. Div. of Youth & Family Servs. v. S.S., the Court quoted mental health experts who believe "that the sibling relationship can be 'longer lasting and more influential than any other, including those with parents, spouse, or children[,]' and that '[w]hen it is severed, the fallout can last a lifetime.'" 187 N.J. 556, 561 (2005) (quoting Nat'l Adoption Info. Clearinghouse, The Sibling Bond: Its Importance in Foster Care and Adoptive Placement 1 (1992), http://www.

childwelfare.gov/pubs/f--siblin.pdf); see also Ellen Marrus, "Where Have You Been, Fran?" The Right of Siblings to Seek Court Access to Override Parental Denial of Visitation, 68 Tenn L. Rev. 977, 987 (1999)).

New Jersey law recognizes the value of nurturing and sustaining sibling relationships. The Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6 (the Act), provides, in relevant part:

A child placed outside his home shall have the following rights, consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child's physical or mental development:

. . . .

d. To the best efforts of the applicable department to place the child in the same setting with the child's sibling if the sibling is also being placed outside his home;

. . . .

f. To visit with the child's sibling on a regular basis and to otherwise maintain contact with the child's sibling if the child was separated from his sibling upon placement outside his home, including the provision or arrangement for transportation as necessary[.]

[N.J.S.A. 9:6B-4.]

In implementing its responsibilities under the Act, DYFS promulgated administrative regulations "to ensure that each child" placed out-of-home has the opportunity to visit with siblings, so as to reinforce the child's identity and maintain family relationships, among other things. N.J.A.C. 10:122D-1.1(a). Under N.J.A.C. 10:122D-1.4(a) and (d), a written visitation plan must be developed for every child in an out-of-home placement which must include visits with siblings, either with parental visits or separately.

Further, the DYFS II Field Operations Casework Policy and Procedures Manual (DYFS Manual) directs that DYFS make "every effort" to place siblings together and to reunite them, as placing siblings together "is psychologically beneficial to the children and may help their adjustment." Id. at