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SYLLABUS

(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).

New Jersey Division of Youth & Family Services v. S.S. In the Matter of the Guardianship of A.M.S., Minor Child (A-48-05)

Argued March 7, 2006 -- Decided July 18, 2006

ALBIN, J., writing for a Unanimous Court.

The Family Court terminated S.S.'s parental rights to her biological daughter, A.M.S. The Appellate Division affirmed the termination, and S.S. does not challenge that determination.

When A.M.S. was born, her four older siblings had been removed from S.S.'s home. As A.M.S. approaches her fourth birthday, she lives happily with the only family she has known, a foster family that wishes to adopt her. A.M.S.'s four older siblings, now aged six, nine, thirteen, and sixteen, live with another family that has already adopted them. Through the cooperation and caring of these two families, A.M.S. has been able to visit and maintain a continuing relationship with her siblings.

The Law Guardian petitioned for certification on behalf of A.M.S. The Court granted certification, limited solely to whether the Division of Youth & Family Services (DYFS) or the courts have an affirmative duty to ensure that contact between siblings is maintained, even in a post-adoption context, when the siblings are in a separate home.

HELD: Because a sibling relationship is not in jeopardy in this case, the Court has no genuine controversy before it and therefore vacates the grant of certification as having been improvidently entered. The Court commends to the Legislature's attention the important issues raised concerning the scope of sibling rights in the context of the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6, the Grandparent and Sibling Visitation Statute, N.J.S.A. 9:2-7.1, and the Adoption Act, N.J.S.A. 9:3-37 to -56.

1. The Law Guardian argues that A.M.S.'s right to visit with her adopted siblings should not be dependent on the discretion of their respective families. Amicus curiae New Jersey Child Advocate supports that position, but adds that siblings, even when adopted by separate families, possess a right of visitation under Article I, Paragraph 1 of the New Jersey Constitution. DYFS, on the other hand, contends there is no constitutional right to post-adoption sibling visitation and that enforceable post-adoption sibling visitation is inconsistent with the State's adoption laws and the Grandparent and Sibling Visitation Statute. (pp. 3-6)

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2. Case law and literature make it clear that we cannot underestimate the value of nurturing and sustaining sibling relationships. The internal DYFS Field Operations Casework Policy and Procedures Manual and the Child Placement Bill of Rights Act encourage both placement of siblings in the same home and sibling visitation for those placed in separate homes. (pp. 6-8)

3. Although the Grandparent and Sibling Visitation Statute provides the framework for grandparent and sibling visitation when it is in the best interests of the child, the Court has held that a natural grandparent does not have a right of contact with grandchildren who have been adopted by a non-relative. The Court has not, however, had occasion to consider whether the rights provided to siblings under the Child Placement Bill of Rights Act and the Visitation Statute are still viable after parental rights have been terminated and the siblings have been adopted by separate families. In addition, the Court has not addressed whether a child has a constitutional right to visit with a brother or sister who has been adopted by another family. (pp. 8-10)

4. The Court is reluctant to address social issues of such paramount importance in a factual setting that raises no legitimate dispute. It also is mindful that the courts should not reach a constitutional question unless its resolution is imperative to the disposition of the litigation. If the issues were squarely before the Court, it would address them. (pp.10-11)

5. The competing public policy concerns presented by the parties and amicus curiae would benefit from legislative review. The state legislatures that have addressed the issue of sibling visitation after adoption have taken a variety of approaches. Thus, our Legislature may have an interest in addressing the issues discussed here. The Court expresses no opinion on the merits of the issues raised by the parties and amicus curiae. (pp. 1214)

The Court VACATES its Order of certification as having been improvidently granted.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, WALLACE, and RIVERA-SOTO join in JUSTICE ALBIN's opinion.

SUPREME COURT OF NEW JERSEY A- 48 September Term 2005

NEW JERSEY DIVISION OF YOUTH & FAMILY SERVICES,

Plaintiff-Respondent,

v.

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S.S.,

Defendant,

IN THE MATTER OF THE GUARDIANSHIP OF: A.M.S., MINOR CHILD,

Appellant.

Argued March 7, 2006

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New Jersey Law