Category: reason

Rocker Nick Cave Defends Old Songs From ‘Perpetually Pissed Off Coterie of Pearl-Clutchers’

The last time Reason wrote about Australian musician and genre-bending Goth heartthrob Nick Cave, he was making a bold statement in favor of free speech and creative expression while slamming “woke” culture and what he saw as its analogs on the far right:

Antifa and the Far Right…with their routine street fights, role-playing and dress-ups are participants in a weirdly erotic, violent and mutually self-sustaining marriage, propped up entirely by the blind, inflexible convictions of each other’s belief systems. It is good for nothing, except inflaming their own self-righteousness.

This time I want to quote him in a discussion with a fan who asks the (good) question, “Do you ever feel the need to change lyrics, when performing live, which may be problematic in 2020, for example ‘a fag in a whalebone corset dragging his dick across my cheek’? Or are you happy to preserve the lyric as a product of its time, and respect the original content?”

Cave publishes a monthly newsletter, The Red Hand Files, in which he answers questions from his audience. In the new edition, he responds to the above query with a direct statement that should be a model for other creatives who are feeling weak-kneed in the face of rapidly changing standards of acceptability.

What songwriter could have predicted thirty years ago that the future would lose its sense of humour, its sense of playfulness, its sense of context, nuance and irony, and fall into the hands of a perpetually pissed off coterie of pearl-clutchers? How were we to know? 

Perhaps we writers should have been more careful with our words—I can own this, and I may even agree—however, we should never blame the songs themselves. Songs are divinely constituted organisms. They have their own integrity. As flawed as they may be, the souls of the songs must be protected at all costs. They must be allowed to exist in all their aberrant horror, unmolested by these strident advocates of the innocuous, even if just as some indication that the world has moved toward a better, fairer and more sensitive place. If punishment must be administered, punish the creators, not the songs. We can handle it. I would rather be remembered for writing something that was discomforting or offensive, than to be forgotten for writing something bloodless and bland.

Cave is not some reactionary rock star whose best years are behind him or whose oeuvre is packed with worn-out rock-star cliches about feminine pulchritude. The song referenced above, “Papa Won’t Leave You, Henry,” the opening track to an acclaimed 1992 album with his band The Bad Seeds, is a “kind of a nasty fucked-up lullaby” (in his own words) that Cave says he used to sing to his young son. It’s a hauntingly surrealistic tormented ballad that defies any easy categorization. The Australian native is a long-lived, hard-thinking observer of modern life who has been in the public eye since the early 1980s and whose output includes dozens of albums, novels, screenplays, and nonfiction pieces. His interests, modes of expression, and style have all evolved over time but one constant is his defense of free speech and artistic independence.

In 2017, he pushed back against calls from musicians such as Roger Waters and Brian Eno to respect the Boycott, Divestment, and Sanctions (BDS) movement’s demand that no musical act perform in Israel. Besides making it harder for critics of the Israeli government to plead their case directly from the stage, Cave wrote in an open letter, BDS supporters were also trying to “bully, shame and silence musicians” into adopting a party line. Last fall, he insisted that “free speech was a clear-cut and uncontested virtue.”

We live in a world where the old guard often cowers to pressure, especially from the young, out of fear or forgotten principles. As a musician, Cave works in an industry that rewards groupthink, especially when it comes to politically sensitive issues and sensibilities. His willingness to speak his beliefs is doubly notable, first because he is doing it at all and second because he does it without acrimony or aversion. As a rule, rock stars age with all the grace of jack-o’-lanterns left out on the porch for way too long, but Nick Cave is teaching a master class in aging gracefully and seriously.

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Rocker Nick Cave Defends Old Songs From ‘Perpetually Pissed Off Coterie of Pearl-Clutchers’

The last time Reason wrote about Australian musician and genre-bending Goth heartthrob Nick Cave, he was making a bold statement in favor of free speech and creative expression while slamming “woke” culture and what he saw as its analogs on the far right:

Antifa and the Far Right…with their routine street fights, role-playing and dress-ups are participants in a weirdly erotic, violent and mutually self-sustaining marriage, propped up entirely by the blind, inflexible convictions of each other’s belief systems. It is good for nothing, except inflaming their own self-righteousness.

This time I want to quote him in a discussion with a fan who asks the (good) question, “Do you ever feel the need to change lyrics, when performing live, which may be problematic in 2020, for example ‘a fag in a whalebone corset dragging his dick across my cheek’? Or are you happy to preserve the lyric as a product of its time, and respect the original content?”

Cave publishes a monthly newsletter, The Red Hand Files, in which he answers questions from his audience. In the new edition, he responds to the above query with a direct statement that should be a model for other creatives who are feeling weak-kneed in the face of rapidly changing standards of acceptability.

What songwriter could have predicted thirty years ago that the future would lose its sense of humour, its sense of playfulness, its sense of context, nuance and irony, and fall into the hands of a perpetually pissed off coterie of pearl-clutchers? How were we to know? 

Perhaps we writers should have been more careful with our words—I can own this, and I may even agree—however, we should never blame the songs themselves. Songs are divinely constituted organisms. They have their own integrity. As flawed as they may be, the souls of the songs must be protected at all costs. They must be allowed to exist in all their aberrant horror, unmolested by these strident advocates of the innocuous, even if just as some indication that the world has moved toward a better, fairer and more sensitive place. If punishment must be administered, punish the creators, not the songs. We can handle it. I would rather be remembered for writing something that was discomforting or offensive, than to be forgotten for writing something bloodless and bland.

Cave is not some reactionary rock star whose best years are behind him or whose oeuvre is packed with worn-out rock-star cliches about feminine pulchritude. The song referenced above, “Papa Won’t Leave You, Henry,” the opening track to an acclaimed 1992 album with his band The Bad Seeds, is a “kind of a nasty fucked-up lullaby” (in his own words) that Cave says he used to sing to his young son. It’s a hauntingly surrealistic tormented ballad that defies any easy categorization. The Australian native is a long-lived, hard-thinking observer of modern life who has been in the public eye since the early 1980s and whose output includes dozens of albums, novels, screenplays, and nonfiction pieces. His interests, modes of expression, and style have all evolved over time but one constant is his defense of free speech and artistic independence.

In 2017, he pushed back against calls from musicians such as Roger Waters and Brian Eno to respect the Boycott, Divestment, and Sanctions (BDS) movement’s demand that no musical act perform in Israel. Besides making it harder for critics of the Israeli government to plead their case directly from the stage, Cave wrote in an open letter, BDS supporters were also trying to “bully, shame and silence musicians” into adopting a party line. Last fall, he insisted that “free speech was a clear-cut and uncontested virtue.”

We live in a world where the old guard often cowers to pressure, especially from the young, out of fear or forgotten principles. As a musician, Cave works in an industry that rewards groupthink, especially when it comes to politically sensitive issues and sensibilities. His willingness to speak his beliefs is doubly notable, first because he is doing it at all and second because he does it without acrimony or aversion. As a rule, rock stars age with all the grace of jack-o’-lanterns left out on the porch for way too long, but Nick Cave is teaching a master class in aging gracefully and seriously.

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Minnesota Is Latest State to Consider Ban on Single-Family Zoning

Minneapolis became a national leader in housing reform in 2018 when it eliminated single-family-only zoning to allow three-unit homes citywide.

Now a bipartisan group of Minnesota state lawmakers is following suit by introducing a package of a dozen bills that would pare back zoning regulations across the state, reform the way fees are charged to developers, and limit local governments’ ability to micromanage how new homes look.

Senate File (S.F.) 4064, authored by Sens. Richard Draheim (R–Madison Lake) and John A. Hoffman (D/FL–Champlin), would allow the construction of duplexes on all residential land currently zoned to only allow single-family homes.

Should that bill pass, Minnesota would become the second state to officially abolish single-family zoning.

Oregon was the first to do that in 2019, passing legislation that allows duplexes on all residential land in towns of 10,000 or more people, and four-unit homes on all residential land in communities of more than 25,000 people. California, by allowing homeowners to build up to two accessory dwelling units on their property, has also effectively eliminated single-family-only zoning.

Other bills authored or sponsored by Draheim—who chaired a select committee on housing affordability—would go further.

That includes a bill that would limit local governments to requiring only one garage per single-family home. Other legislation would address the fees localities can charge new developments, capping them in some instances and requiring more information to be reported on how fee money is spent.

Language in other bills in Minnesota’s housing package would also forbid local governments from conditioning the approval of new housing on the use of “specific materials, design, amenities, or other aesthetic conditions” not already required by state law.

Local governments’ use of planned unit developments—discretionary approval processes that can allow developers to bypass local zoning laws in exchange for them agreeing to pay additional fees or abide by specific design requirements—would also be restricted.

Budget-conscious localities have an incentive to attract residents who pay a lot of taxes and consume few city services, Salim Furth, a housing policy expert at George Mason University’s Mercatus Center, told Reason in December. Passing design requirements that only allow for high-end housing is one way to ensure you get high-income residents.

“There’s a level of micromanaging, even in places that allow growth, they’re more and more allowing it through a highly discretionary planned unit development process,” said Furth. “[Local governments] have certain priorities that never include affordability, that never include the diversity of housing typology. Its always about pushing quality, and therefore price, up.”

Minnesota’s Housing Affordability Institute, a developer-backed nonprofit, noted in a recent report that local design requirements intended to improve the aesthetic of homes can be quite detailed and add thousands to the costs of a new home.

That report gave the example of Corcoran, Minnesota, whose city code “outlines the design requirements for all new homes in the city, including materials used on the façade of homes, percentage of varying materials for the home, architectural styles, the percentage of the garage on the front elevation and garage door designs, just to name a few.”

The Housing Affordability Institute’s report surveyed homebuilders who said regulations in certain Minnesota communities add as much as 30 percent to the final costs of a home.

The National Association of Home Builders (NAHB) has found that government regulation pushes up the costs of single-family homes by 25 percent, and multi-family units by 30 percent.

“It is a question of affordability. Do we want people to have the American dream? Do we want a family to grow up in a home?” says Grace Keliher of the Builders Association of Minnesota.

With housing affordability becoming a nationwide concern, the last thing we need is local governments dictating how a new home should look or how big of a garage it needs.

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Minnesota Is Latest State to Consider Ban on Single-Family Zoning

Minneapolis became a national leader in housing reform in 2018 when it eliminated single-family-only zoning to allow three-unit homes citywide.

Now a bipartisan group of Minnesota state lawmakers is following suit by introducing a package of a dozen bills that would pare back zoning regulations across the state, reform the way fees are charged to developers, and limit local governments’ ability to micromanage how new homes look.

Senate File (S.F.) 4064, authored by Sens. Richard Draheim (R–Madison Lake) and John A. Hoffman (D/FL–Champlin), would allow the construction of duplexes on all residential land currently zoned to only allow single-family homes.

Should that bill pass, Minnesota would become the second state to officially abolish single-family zoning.

Oregon was the first to do that in 2019, passing legislation that allows duplexes on all residential land in towns of 10,000 or more people, and four-unit homes on all residential land in communities of more than 25,000 people. California, by allowing homeowners to build up to two accessory dwelling units on their property, has also effectively eliminated single-family-only zoning.

Other bills authored or sponsored by Draheim—who chaired a select committee on housing affordability—would go further.

That includes a bill that would limit local governments to requiring only one garage per single-family home. Other legislation would address the fees localities can charge new developments, capping them in some instances and requiring more information to be reported on how fee money is spent.

Language in other bills in Minnesota’s housing package would also forbid local governments from conditioning the approval of new housing on the use of “specific materials, design, amenities, or other aesthetic conditions” not already required by state law.

Local governments’ use of planned unit developments—discretionary approval processes that can allow developers to bypass local zoning laws in exchange for them agreeing to pay additional fees or abide by specific design requirements—would also be restricted.

Budget-conscious localities have an incentive to attract residents who pay a lot of taxes and consume few city services, Salim Furth, a housing policy expert at George Mason University’s Mercatus Center, told Reason in December. Passing design requirements that only allow for high-end housing is one way to ensure you get high-income residents.

“There’s a level of micromanaging, even in places that allow growth, they’re more and more allowing it through a highly discretionary planned unit development process,” said Furth. “[Local governments] have certain priorities that never include affordability, that never include the diversity of housing typology. Its always about pushing quality, and therefore price, up.”

Minnesota’s Housing Affordability Institute, a developer-backed nonprofit, noted in a recent report that local design requirements intended to improve the aesthetic of homes can be quite detailed and add thousands to the costs of a new home.

That report gave the example of Corcoran, Minnesota, whose city code “outlines the design requirements for all new homes in the city, including materials used on the façade of homes, percentage of varying materials for the home, architectural styles, the percentage of the garage on the front elevation and garage door designs, just to name a few.”

The Housing Affordability Institute’s report surveyed homebuilders who said regulations in certain Minnesota communities add as much as 30 percent to the final costs of a home.

The National Association of Home Builders (NAHB) has found that government regulation pushes up the costs of single-family homes by 25 percent, and multi-family units by 30 percent.

“It is a question of affordability. Do we want people to have the American dream? Do we want a family to grow up in a home?” says Grace Keliher of the Builders Association of Minnesota.

With housing affordability becoming a nationwide concern, the last thing we need is local governments dictating how a new home should look or how big of a garage it needs.

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Salty Sanders Supporters Say They Won’t Settle For Biden

Did Democratic voters hand Donald Trump the election yesterday? The mood on the left following former Vice President Joe Biden’s besting of Sen. Bernie Sanders (I–Vt.) in Tuesday’s primaries is one of defiance and scorn about the way the most establishment candidate pretty much always wins in Democratic Party politics. Many are rejecting the idea that it’s now their duty to vote for Biden and are pledging not to back Biden should he get the party’s nomination, which now seems very likely.

“We don’t want to be overly dramatic, but it does seem as if the writing is on the wall for Sanders’s campaign after tonight,” wrote Sarah Frostenson at FiveThirtyEight shortly after midnight. “And that’s because if he was going to mount a comeback, he needed to start tonight. Some of the most favorable states for Sanders left on the primary calendar voted tonight, which means things moving forward are only going to get harder, not easier.”

Biden won in Idaho, Michigan, Mississippi, and Missouri yesterday, while Sanders won in North Dakota. Washington state has still not been called.

With 1,991 Democratic Party delegates declared overall as of 9:30 a.m. this morning, Biden has 846 and Sanders 683, according to the Associated Press. (Going into Tuesday’s elections it was 664-573.) When all delegates from yesterday’s contests are awarded, 53 percent will still be in play. The math might not be strictly stacked against Sanders yet; the political consensus among journalists, pundits, and political representatives rapidly is. But Sanders supporters seem to be rejecting the idea that this means they must fall in line…

For some segments of Democratic punditocracy, this has only provoked more attempts to shame their more radical elements into supporting Biden:

But there’s a (relatively) new twist to this old story: allegations that the drama is all just a product of Russian bots!

People have also been casting blame on Sen. Elizabeth Warren (D–Mass.) for Sanders’ loss…

… something that Trump, too, has gotten in on:

Interestingly, both Trumpian Republicans and left-leaning Democrats have converged on the idea that Sanders’ loss yesterday was Trump 2020’s gain.

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Salty Sanders Supporters Say They Won’t Settle For Biden

Did Democratic voters hand Donald Trump the election yesterday? The mood on the left following former Vice President Joe Biden’s besting of Sen. Bernie Sanders (I–Vt.) in Tuesday’s primaries is one of defiance and scorn about the way the most establishment candidate pretty much always wins in Democratic Party politics. Many are rejecting the idea that it’s now their duty to vote for Biden and are pledging not to back Biden should he get the party’s nomination, which now seems very likely.

“We don’t want to be overly dramatic, but it does seem as if the writing is on the wall for Sanders’s campaign after tonight,” wrote Sarah Frostenson at FiveThirtyEight shortly after midnight. “And that’s because if he was going to mount a comeback, he needed to start tonight. Some of the most favorable states for Sanders left on the primary calendar voted tonight, which means things moving forward are only going to get harder, not easier.”

Biden won in Idaho, Michigan, Mississippi, and Missouri yesterday, while Sanders won in North Dakota. Washington state has still not been called.

With 1,991 Democratic Party delegates declared overall as of 9:30 a.m. this morning, Biden has 846 and Sanders 683, according to the Associated Press. (Going into Tuesday’s elections it was 664-573.) When all delegates from yesterday’s contests are awarded, 53 percent will still be in play. The math might not be strictly stacked against Sanders yet; the political consensus among journalists, pundits, and political representatives rapidly is. But Sanders supporters seem to be rejecting the idea that this means they must fall in line…

For some segments of Democratic punditocracy, this has only provoked more attempts to shame their more radical elements into supporting Biden:

But there’s a (relatively) new twist to this old story: allegations that the drama is all just a product of Russian bots!

People have also been casting blame on Sen. Elizabeth Warren (D–Mass.) for Sanders’ loss…

… something that Trump, too, has gotten in on:

Interestingly, both Trumpian Republicans and left-leaning Democrats have converged on the idea that Sanders’ loss yesterday was Trump 2020’s gain.

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Liu v. SEC: the short version

A friend recently asked for a two-sentence summary of my view of Liu v. SEC. (I’m not sure why the friend thought that once I got started answering a question about equity and restitution I might want to go on for more than two sentences!) At any rate, here was my answer:

I think the statutory reference to “equitable relief” authorizes a traditional accounting (so only profits, not revenues; payable to the victims at least in the first instance and not to the SEC), though without any limitation to fiduciaries. I also think disgorgement is a confusing term that hides the law/equity and proprietary/non-proprietary distinctions, and it would be good to abandon it.

If you want a longer version, Henry Smith and I filed an amicus brief in the case.

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Liu v. SEC: the short version

A friend recently asked for a two-sentence summary of my view of Liu v. SEC. (I’m not sure why the friend thought that once I got started answering a question about equity and restitution I might want to go on for more than two sentences!) At any rate, here was my answer:

I think the statutory reference to “equitable relief” authorizes a traditional accounting (so only profits, not revenues; payable to the victims at least in the first instance and not to the SEC), though without any limitation to fiduciaries. I also think disgorgement is a confusing term that hides the law/equity and proprietary/non-proprietary distinctions, and it would be good to abandon it.

If you want a longer version, Henry Smith and I filed an amicus brief in the case.

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My Daughter / My Sister / My Daughter / My Sister

Mother allows Grandmother to adopt Son—but then later (after Grandmother’s death) seeks visitation with Son as Son’s sister (since he is the adopted son of her mother), under a New Jersey statute (N.J.S.A. 9:2-7.1) that allows sibling visitation.

No, the N.J. Appellate Division held Thursday, in K.D. v. A.S. (opinion by Superior Court Judge Catherine Enright, joined by Appellate Division Judges Jose Fuentes and Jessica Mayer):

As our Supreme Court made clear …, 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 … and cause needless disruption and apprehension to countless families who have opened their homes and their hearts to children in need of adoption….

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 of Child Protection and Permanency] removed Sam from his mother [K.D.]’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 [who is not involved in this appeal] 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, 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. {A.S. adopted Sam on December 3, 2018.}

K.D. engaged in treatment for her alcoholism after her parental rights were terminated. [She sought to vacate the adoption, but the family court rejected that attempt, and the court of appeals affirmed. -EV] … [T]he Family Part authorized K.D. to have limited visitation rights before A.S. adopted Sam, [but] 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….

As noted earlier, Sam began residing with his adoptive mother in May 2013, when he was six years old. He is now fourteen….

There are profound public policy ramifications to characterizing K.D. as the legal sibling of her biological son under these circumstances…. “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 it is necessary under the exercise of our parents patriae jurisdiction to avoid harm to the child. That principle governs adoptive families as well.”

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.'” 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[.]'”

“[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.” … “[T]he 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.” …

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.”

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 Division’s role under Title 30 [of the N.J.S.A.]. 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.”

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…. [G]ranting 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.”

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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My Daughter / My Sister / My Daughter / My Sister

Mother allows Grandmother to adopt Son—but then later (after Grandmother’s death) seeks visitation with Son as Son’s sister (since he is the adopted son of her mother), under a New Jersey statute (N.J.S.A. 9:2-7.1) that allows sibling visitation.

No, the N.J. Appellate Division held Thursday, in K.D. v. A.S. (opinion by Superior Court Judge Catherine Enright, joined by Appellate Division Judges Jose Fuentes and Jessica Mayer):

As our Supreme Court made clear …, 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 … and cause needless disruption and apprehension to countless families who have opened their homes and their hearts to children in need of adoption….

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 of Child Protection and Permanency] removed Sam from his mother [K.D.]’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 [who is not involved in this appeal] 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, 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. {A.S. adopted Sam on December 3, 2018.}

K.D. engaged in treatment for her alcoholism after her parental rights were terminated. [She sought to vacate the adoption, but the family court rejected that attempt, and the court of appeals affirmed. -EV] … [T]he Family Part authorized K.D. to have limited visitation rights before A.S. adopted Sam, [but] 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….

As noted earlier, Sam began residing with his adoptive mother in May 2013, when he was six years old. He is now fourteen….

There are profound public policy ramifications to characterizing K.D. as the legal sibling of her biological son under these circumstances…. “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 it is necessary under the exercise of our parents patriae jurisdiction to avoid harm to the child. That principle governs adoptive families as well.”

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.'” 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[.]'”

“[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.” … “[T]he 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.” …

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.”

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 Division’s role under Title 30 [of the N.J.S.A.]. 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.”

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…. [G]ranting 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.”

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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