                          RECORD IMPOUNDED

                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-3543-18T4

K.D.,
                                             APPROVED FOR PUBLICATION
        Plaintiff-Appellant,
                                                     March 5, 2020

v.                                               APPELLATE DIVISION


A.S.,

     Defendant-Respondent.
__________________________

              Argued January 23, 2020 – Decided March 5, 2020

              Before Judges Fuentes, Mayer and Enright.

              On appeal from the Superior Court of New Jersey,
              Chancery Division, Family Part, Ocean County,
              Docket No. FD-15-0550-19.

              Jeyanthi C. Rajaraman argued the cause for appellant
              (Legal Services of New Jersey, attorneys; Jeyanthi C.
              Rajaraman, of counsel and on the briefs; Melville D.
              Miller, Jr., on the briefs).

              A.S., respondent, argued the cause pro se.

              Erin O'Leary, Assistant Attorney General, argued the
              cause for amicus curiae New Jersey Division of Child
              Protection and Permanency (Gurbir S. Grewal,
              Attorney General, attorney; Melissa H. Raksa,
              Assistant Attorney General, of counsel; Erin O'Leary,
              on the brief).
      The opinion of the court was delivered by

ENRIGHT, J.S.C. (temporarily assigned).

      In this case, we are asked to determine whether a child's biological

mother, who entered an identified surrender of her parental rights to her

biological mother, the child's maternal grandmother, has standing as the child's

legal sibling, per N.J.S.A. 9:2-7.1, to seek visitation rights against a non-

relative adoptive mother. Stated differently, do biological parents who enter

an identified surrender of their children to their biological parents become

their children's legal siblings? We are satisfied the answer is no.       As our

Supreme Court made clear in Moriarty v. Bradt, 177 N.J. 84, 114-15 (2003)

and reaffirmed in Major v. Maguire, 224 N.J. 1, 6 (2016), N.J.S.A. 9:2-7.1 is

subject to strict scrutiny because this statute intrudes on a parent's fundamental

right to raise a child as that parent sees fit. Permitting biological parents, who

knowingly and voluntarily enter identified surrenders of their parental rights,

to acquire the legal rights of siblings pursuant to N.J.S.A. 9:2-7.1 would ignore

the Supreme Court's admonition in Moriarty and Major, and cause needless

disruption and apprehension to countless families who have opened their

homes and their hearts to children in need of adoption.




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                                       I

        We summarize the salient procedural history and facts of this highly

idiosyncratic and litigious case in order to give context to our legal analysis.

        Plaintiff K.D. appeals from the March 7, 2019 denial of her request to

continue visitation with her biological son, Sam, against the wishes of his non -

relative adoptive mother, defendant A.S.1 K.D. also appeals from the February

8, 2019 order granting amicus status to the Division of Child Protection and

Permanency (Division). We affirm.

        Sam was born in 2006.        He was diagnosed with Autism Spectrum

Disorder with combined repetitive and expressive language disorder,

developmental fine motor coordination disorder and attention deficit

hyperactivity disorder. The Division removed Sam from his mother's care at

age three, after he was found crying in the middle of an intersection, while

K.D. was intoxicated.

        K.D. and Sam's biological father 2 entered into identified surrenders to

allow Sam to be placed with his maternal grandmother, A.D. Once K.D.'s

parental rights were terminated, along with those of Sam's biological father,


1
  We use fictitious names for the child and initials for the adults to protect the
privacy of the parties and the minor involved in this matter. R. 1:38-3(d)(12).
2
    Sam's biological father is not involved in the instant appeal.


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A.D. adopted Sam in March 2012. Unfortunately, A.D. passed away six weeks

after adopting Sam. Carolyn, Sam's biological sister, agreed to care for him.

However, this arrangement proved to be short lived.       A few months after

A.D.'s death, Carolyn advised the Division she was unable to care for her

special needs brother on a permanent basis. She agreed to temporarily care for

him until the Division found a suitable permanent placement. In May 2013,

Sam was placed in A.S.'s care, where he remains.

      K.D. engaged in treatment for her alcoholism after her parental rights

were terminated. In June 2014, K.D. filed a motion pursuant to Rule 4:50-1 to

set aside her identified surrender in her guardianship action in Hudson County

and to vacate the judgment of adoption granted to A.D. in Middlesex County.

On January 9, 2015, the motion judge in Hudson County denied K.D.'s

application to set aside her identified surrender and directed her to prosecute

her application to vacate A.D.'s adoption in Middlesex County. K.D. appealed

the order issued by the Hudson County judge. Sam remained in A.S.'s care

during the pendency of K.D.'s appeal.

      Consistent with the Family Part decision in Hudson County, K.D. filed

an application in Middlesex County to vacate Sam's adoption by A.D. The

Family Part in Middlesex County heard and denied K.D.'s application to vacate

the adoption as well as her motion for reconsideration. The Middlesex County



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judge memorialized these decisions in orders dated February 27, 2015 and

April 13, 2015, respectively.

      Before the Family Part judge in Middlesex County denied K.D.'s motion

for reconsideration, K.D. moved before this court to supplement the record in

her appeal of the order entered by Hudson County Family Part judge. In an

order dated June 3, 2015, this court denied K.D.'s motion without prejudice

and "temporarily remand[ed] the matter to the trial court for the limited

purpose of allowing [K.D.] to file a Rule 4:50 motion in the trial court based

upon [an] alternative theory of changed circumstances."        This court also

retained jurisdiction and directed the parties and the Hudson County Family

Part judge to complete all the necessary proceedings within ninety days.

      The motion judge adhered to this court's directions and timeframe and

after employing the two-prong test from In re Guardianship of J.N.H., 172 N.J.

440, 474-75 (2002), the judge found K.D. had presented sufficient evidence of

changed circumstances. However, the motion judge also found K.D. did not

prove it was in Sam's best interests to change his placement or to return him to

K.D.'s care and custody. K.D. thereafter amended her notice of appeal to

include this final decision by the Family Part in Hudson County and the orders

issued by the Family Part in Middlesex County denying her application to

vacate the adoption.



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        On June 1, 2017, this court affirmed the order entered by the Family Part

judge in Hudson County that "reject[ed] [K.D.'s] challenges to the orders

denying her post-judgment attempts to set aside the voluntary surrender of her

parental rights in favor of [A.D.]" N.J. Div. of Child Prot. & Permanency v.

K.D., Nos. A-2651-14 and A-5513-14 (App. Div. June 1, 2017) (slip op. at

10).    We also "conclude[ed] that the Middlesex [County] judge properly

denied the motion to set aside the judgment of adoption."           Id. at 12.    In

reaching this decision, we expressly held K.D. had not demonstrated that her

"voluntary surrender was ineffectual to terminate her parental rights or that it

is inequitable to further enforce the April 27, 2011 guardianship judgment."

Ibid.

        Finally, although not raised as an issue in the appeal, our colleagues took

an extra step to point out the following:

              This brings us to the October 1, 2012 order, which
              posthumously terminated [A.D.'s] parental rights.
              Although [K.D.'s] appeals in the guardianship and
              adoptions matters do not implicate this order, which
              was entered in a separate matter not before us for
              review, we cannot ignore the fact that this order
              suffers from the same disabilities found in defendant's
              motion to vacate the judgment of adoption. There is
              no evidence that notice was given to [A.D.'s] personal
              representative or to [K.D.], who, upon [A.D.'s]
              adoption of the child, had become in the eyes of the
              law the child's sibling. And the Division's application
              sought relief the court was not empowered to give: the
              termination of parental rights of a deceased parent.

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               The issue resolved by that court had been rendered
               purely academic; any debate about [A.D.'s] parental
               rights ended with her death.

               [Id. at 12-13 (emphasis added).]

          A.S. adopted Sam on December 3, 2018. As noted earlier, Sam began

residing with his adoptive mother in May 2013, when he was six years old. He

is now fourteen. Although the Family Part authorized K.D. to have limited

visitation rights before A.S. adopted Sam, A.S. decided not to continue the

visits after the adoption became final. K.D. filed an order to show cause on

December 11, 2018, seeking to reinstate her visits over A.S.'s objection. A

Family Part judge in Ocean County denied K.D.'s application for emergent

relief.     Although not a party in the case, the Division opposed K.D.'s

application to have visitation rights to Sam and moved to intervene. The court

denied the Division's motion to intervene but granted its supplemental

application to appear and participate as amicus curiae.

          On March 7, 2019, the judge heard oral argument on K.D.'s application

to reinstate regular visits with Sam and also heard A.S.'s cross-motion to

dismiss.      Because the parties presented documentary evidence which was

outside the four corners of the factual allegations in the pleadings, the judge

sua sponte decided to treat A.S.'s dismissal application as a motion for

summary judgment under Rule 4:46-2(c).



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      The judge analyzed K.D.'s request for visitation under certain legal

frameworks, including: her status as the child's biological mother whose

parental rights had been terminated under Title 30; a legal sibling, pursuant to

N.J.S.A. 9:2-7.1; and a psychological parent. See V.C. v. M.J.B., 163 N.J.

200, 223 (2000). The judge concluded that none of these analytical paradigms

created the "exceptional circumstances" necessary for the court's intervention.

Moriarty, 177 N.J. at 114. He further found that under any of these paradigms,

K.D. failed to establish a prima facie case that visitation with Sam was

necessary to avoid harm to the child. Accordingly, the judge determined there

was no need for an evidentiary hearing and he denied K.D.'s request to compel

visits over A.S.'s objection.      K.D. filed this appeal after we denied her

application for emergent review.

                                        II

      On appeal, K.D. argues the judge's denial of her visitation motion,

without conducting a plenary hearing, constitutes error.         Moreover, she

contends the judge erred in allowing the Division amicus status. We disagree.

      We start our analysis by addressing whether K.D. became Sam's sibling

"in the eyes of the law" upon A.D.'s adoption of Sam, as mentioned by our

colleagues in their June 1, 2017 unpublished opinion. We are satisfied our

colleagues' reference to K.D.'s sibling status is not legally binding on us based



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on two separate grounds.       First, this legal "characterization" of K.D. was

indisputably dictum.     Indeed, our colleagues acknowledged in their 2017

opinion that such commentary pertained "[to] a separate matter not before us

for review." K.D., at 12. It is well-settled that "[d]ictum is a statement by a

judge 'not necessary to the decision then being made[,]' and 'as such it is

entitled to due consideration but does not invoke the principle of stare

decisis.'"   Bandler v. Melillo, 443 N.J. Super. 203, 210 (App. Div. 2015)

(quoting Jamouneau v. Div. of Tax Appeals, 2 N.J. 325, 332 (1949))

(alteration in original). Second, as Rule 1:36-3 makes clear, "[n]o unpublished

opinion shall constitute precedent or be binding upon any court."

      There are profound public policy ramifications to characterizing K.D. as

the legal sibling of her biological son under these circumstances. We begin

our discussion of this extraordinarily delicate area of law, mindful of our

Supreme Court's admonition in In re D.C.:

             Our law recognizes the family as a bastion of
             autonomous privacy in which parents, presumed to act
             in the best interests of their children, are afforded self-
             determination over how those children are raised. All
             of the attributes of a biological family are applicable
             in the case of adoption; adoptive parents are free,
             within the same limits as biological parents, to raise
             their children as they see fit, including choices
             regarding religion, education, and association.
             However, the right to parental autonomy is not
             absolute, and a biological family may be ordered to
             permit third-party visitation, over its objections, where

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                                         9
             it is necessary under the exercise of our parents patriae
             jurisdiction to avoid harm to the child. That principle
             governs adoptive families as well.

             [203 N.J. 545, 551-52 (2010).]

       As a "parent is entitled to a presumption that he or she acts in the best

interests of the child, . . . the parent's determination whether to permit

visitation is entitled to 'special weight.'" Major, 224 N.J. at 15 (citing Troxel

v. Granville, 530 U.S. 57, 67-69 (2000)). Thus, "the need to avoid harm to the

child is 'the only [S]tate interest warranting the invocation of the State's parens

patriae jurisdiction to overcome the presumption in favor of a parent's decision

and to force [third-party] visitation over the wishes of a fit parent[.]'" Id. at 16

(quoting Moriarty, 177 N.J. at 115) (second alteration in original).

       "[A]bsent a showing that the child would suffer harm if deprived of

contact with [the third party], the State [can]not constitutionally infringe on

parental autonomy." Ibid. (citing Moriarty, 177 N.J. at 115). When the third

party does demonstrate such harm, the presumption in favor of parental

decision-making is overcome, and the parent is then obliged to offer a

visitation schedule that is in the child's best interest.       Id. at 17.     These

principles are applicable to the instant matter, as "[a]ll of the attributes of a

biological family are applicable in the case of adoption." D.C., 203 N.J. at

551.



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      On appeal, K.D. renews her argument that Sam will suffer harm if he is

not permitted visits with her and she relies on the case of Kattermann v. Di

Piazza, 151 N.J. Super. 209 (App. Div. 1977) to support her request for post -

adoption visits. Her argument is unavailing. As the Family Part judge aptly

recognized, the Kattermann court applied a now outdated best interests

standard to factual circumstances distinguishable from the case at hand.

Further, as the Moriarty Court made clear, "interference with parental

autonomy will be tolerated only to avoid harm to the health or welfare of a

child." Moriarty, 177 N.J. at 115. Moreover, almost a decade ago, the D.C.

Court confirmed the best interests standard should not be utilized in third -

party, post-adoption visitation disputes, noting:

            the application of the best interests standard to a third
            party's petition for visitation is an affront to the
            family's right to privacy and autonomy and . . .
            interference with a biological or adoptive family's
            decision-making can only be justified on the basis of
            the exercise of our parens patriae jurisdiction to avoid
            harm to the child.

            [D.C., 203 N.J. at 573 (emphasis added).]

      Therefore, a third party seeking to compel contact with a child over an

adoptive parent's wishes must meet the threshold burden of proving by a

preponderance of evidence that the child will suffer harm without the contact.

In fact, the moving party must demonstrate "a particular identifiable harm,



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specific to the child." Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div.

2005). As the D.C. Court confirmed, "an adoptive family is not entitled to

greater protections than a biological family. Thus, to the extent that visitation

by a third party may be compelled over the objections of a biological family,

the same rule applies to an adoptive family." 203 N.J. at 570. Clearly, then, it

is settled law that siblings by adoption have the same legal rights as biological

siblings.

      Guided by these principles, we review the Grandparent and Sibling

Visitation Statute, which provides in relevant part:

            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.

            [N.J.S.A. 9:2-7.1(a).]

      Accordingly, the question here is whether K.D. became Sam's legal

sibling when she voluntarily agreed to surrender her parental rights to Sam's

maternal grandmother. If so, she can pursue her rights as a sibling under

N.J.S.A. 9:2-7.1(a).

      We hold that to recognize K.D. as the legal sibling of her biological son

under these circumstances would violate the public policy underpinning the



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Division's role under Title 30. We are also satisfied that the Legislature did

not intend to sanction such an outcome when it adopted N.J.S.A. 9:2-7.1.

      N.J.S.A. 30:4C-15.1(a) allows a court to permanently sever the legal

relationship between a parent and child only after the court comes to the

consequential decision that a child's welfare has been or will continue to be

endangered by the parental relationship and "proof of parental unfitness is

clear." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012);

see In re Adoption of Child by J.E.V., 442 N.J. Super. 472, 481 (App. Div.

2015) (confirming that "[a]fter the elimination of the death penalty, we can

think of no legal consequence of greater magnitude than the termination of

parental rights.").

      Here, K.D.'s decision to enter a voluntary surrender of her parental rights

to her biological son in favor of the child's maternal grandmother permanently

and irrevocably severed all of her legally cognizable familial rights to her son.

Thus, K.D. does not fall within the class of litigants empowered to bring a

summary action under N.J.S.A. 9:2-7.1. Stated differently, K.D. does not have

standing to bring a visitation action in the Family Part under N.J.S.A. 9:2-7.1

because she is not her biological son's legal sibling.            As we have

acknowledged, "[a]n adoptive family must be given the right to grow and

develop as an autonomous family, and must not be tied to the very relationship



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that put the child in the position of being adopted." In re Adoption of a Child

by W.P., 163 N.J. 158, 175 (2000). A contrary ruling would consign adoptive

parents to an inferior status. Ibid.; see Mimkon v. Ford, 66 N.J. 426, 441

(1975) (Clifford, J., dissenting).

      Next, we acknowledge that an adoptive parent may voluntarily permit a

child to maintain contact with a biological parent. See In re Guardianship of

D.M.H., 161 N.J. 365 (1999).         However, as the motion judge recognized,

granting K.D. legal standing to bring a visitation action as a biological parent

would create the functional equivalent of an open adoption. Our Supreme

Court has made clear that the subject of open adoptions "represents a

significant policy issue which should be addressed in separate legislation." In

re Adoption of a Child by D.M.H., 135 N.J. 473, 494 (1994) (quoting Senate

Judiciary Committee, Statement to Senate, Bill No. 685 (1993)).

      Accordingly, unless otherwise decided by the Legislature, the judiciary

has no authority to compel A.S. to permit contact between K.D. and Sam based

on K.D.'s biological connection to Sam or her identified surrender to Sam's

maternal grandparent. For the sake of completeness, we also find no basis to

disturb either the motion judge's determination that K.D. does not meet the

criteria to be considered Sam's psychological parent or his decision that no

evidentiary hearing was required.



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      Finally, K.D. contends the Family Part judge erred in granting the

Division amicus status and improperly relied on the Division's factual

assertions. Again, we disagree.

      Rule 1:13-9 provides that a court "shall grant the motion [for leave to

appear as amicus curiae] if it is satisfied under all the circumstances that the

motion is timely, the applicant's participation will assist in the resolution of an

issue of public importance, and no party to the litigation will be unduly

prejudiced thereby."    The order must then define the permitted extent of

participation of amicus. Ibid.

      The Division's "statutory mission is to protect the health and welfare of

the children of this state." N.J. Div. of Youth & Fam. Servs. v. E.B., 137 N.J.

180, 184 (1994) (citing N.J.S.A. 30:4C-4). "Traditionally, the role of amicus

curiae was to be advisory rather than adverse." In re State ex rel. Essex Cty.

Prosecutor's Off., 427 N.J. Super. 1, 5 (Law Div. 2012) (citing Casey v. Male,

63 N.J. Super. 255, 258 (Cty. Ct. 1960)). However, the Third Circuit held that

amicus need not be impartial, and that even when parties are very well

represented, amicus "may provide important assistance to the court."

Neonatology Assocs., P.A. v. Comm'r, 293 F.3d 128, 132 (3d Cir. 2002).

Further, "Rule 1:13-9 has been interpreted as establishing 'a liberal standard

for permitting amicus appearances.'" In re State ex rel. Essex Cty. Prosecutor's



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Off., 427 N.J. Super. at 5 (quoting Pfizer, Inc. v. Dir., Div. of Tax'n, 23 N.J.

Tax 421, 424 (Tax 2007)).

      Here, the judge determined the Division could participate as amicus but

specified its participation was limited to "the issue of post[-]adoption visitation

by a third party, inclusive of any collateral issue raised by the parties." We are

satisfied he did not abuse his discretion in this regard, particularly given the

Division's involvement with Sam from 2009 onward. While the Division's

position was adverse to K.D.'s post-adoption application, this lone fact did not

preclude the Division's involvement as amicus.

      Family courts have special expertise in family matters and "appellate

courts should accord deference to family court factfinding." Cesare v. Cesare,

154 N.J. 394, 413 (1998). "Therefore, an appellate court should not disturb the

'factual findings and legal conclusions of the trial judge unless [it is]

convinced that they are so manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to offend the interests

of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs. Ins. Co., 65

N.J. 474, 484 (1974)) (alteration in original).      However, "[a] trial court's

interpretation of the law and the legal consequences that flow from established

facts are not entitled to any special deference."      Manalapan Realty, LP v.

Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (citations omitted).



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      Governed by these standards, we are satisfied the record amply supports

the motion judge's factual findings. Considering those findings, as well as the

legal principles we have highlighted, we perceive no basis to disturb the

judge's decision to deny K.D. post-adoption visits without the necessity of an

evidentiary hearing.

      To the extent we have not addressed K.D.'s remaining arguments, we

find them lacking in merit. R. 2:11-3(e)(1)(E).

      Affirmed.




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