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Rushin v. Board of Child Welfare

Decided: February 20, 1961.


Conford, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.


This is an appeal from a final order of the Civil Service Commission, upholding the action of the State Board of Child Welfare in removing petitioner from her employment as a permanent social case worker and temporary child welfare analyst. The discharge stemmed from the alleged violation of agency regulations prohibiting the placement of Board-supervised children in the homes of staff members or their relatives and requiring that permanent records be kept of all official interviews.

Petitioner was first employed by the Board in 1947 and assigned to its Camden office. She served as a social case worker until September 1958, when she was appointed -- temporarily, pending examination -- to the position of child welfare analyst. The factual prelude to petitioner's dismissal commenced in late October 1958, when she had occasion to interview, at the Camden office, Mrs. M. The latter had given birth the previous June to a baby boy and was in search of information with respect to adoption procedures. The circumstances of the child's birth are beclouded in the record, but it is clear that Mrs. M.'s husband was not the father of the child. Mrs. M. and her husband were members of the Caucasian race; the child was beginning to develop Negroid features. At the insistence of her husband that the child be removed from the M. household -- which included two legitimate children -- she had, with great reluctance, visited the Board offices for guidance. Petitioner, a Negress herself, recognized the unusual strain and conflict

besetting Mrs. M., who deeply desired to retain the child. It was therefore suggested to Mrs. M. that she return to the Board office with her husband for a further conference.

The meeting took place on October 31, 1958. Petitioner explained to Mr. and Mrs. M. the Board's voluntary care program, its foster home plan, and various other of its services. Mr. M. was particularly interested in the foster home program, but, upon learning that under such a plan he would have to contribute to the child's maintenance, he declined to make application for placement. At this juncture, according to petitioner, she was asked by Mr. M. whether she would consider taking the child herself; she responded, "I would like to have a child like that, but I am an employee of this Agency and I would not be permitted to take the child. Anybody would like to have a child like him. He is such a handsome little fellow." Mr. M. persisted, asking, "What about your relatives?" Petitioner told him that she "knew they would be glad to take the child. They love children and they have children of their own." On the witness stand petitioner explained that these comments had been made because "I didn't want him to feel that I, too, was rejecting the child. I know he was, and I knew he had a good reason to."

Additional discussion ensued over whether Negroid characteristics were apparent in the child; petitioner claims that at this point she brought the child into her supervisor's office for an opinion on this question and for advice on how to proceed in the entire matter. The supervisor, under oath, could not recall such an incident, and professed ignorance of the entire affair until several months thereafter. In any event, petitioner assured Mr. and Mrs. M. that the child did indeed appear to be Negro. Mrs. M. thereupon repeated her unwillingness to surrender the baby, and the couple left the Board office without having signed any application forms or having come to any conclusion regarding the infant. Petitioner testified that after Mr. and Mrs. M. had left, she was asked what had transpired by the assistant

supervisor, Miss Thompson, and she replied, "They didn't give their child up, but I think the woman will break under the strain." Miss Thompson then allegedly suggested to petitioner that she make her own private arrangements for placement of the child. Called as a witness by respondents, Miss Thompson vigorously denied ever having suggested private arrangements to any employee under her supervision.

About two or three weeks after this meeting petitioner received a telephone call at her office from Mrs. M. The latter, extremely upset, stated that her husband had demanded that the child be removed from the house and that she was fearful for the safety of the infant. She pleaded for help, insisting that petitioner was the only one who seemed to understand her problem. But she steadfastly refused petitioner's suggestion that she put the child up for adoption. According to petitioner, Mrs. M. asked her if "somebody would take care of the child until she decided what to do." Petitioner's response to this plea, corroborated by Mrs. M., is best described by her own testimony:

"I contacted a couple of people and asked them if they would be interested in keeping a child for a woman who was sick. They weren't interested. * * * I tried to get one of my relatives to take care of the child for her. * * * I told her she had the responsibility for her other children, that I knew how her husband felt. * * * I knew how she felt, that she should talk to someone and get some professional help so that she could come to some decision about this child.

My sister said that she would take care of the child until Mrs. M. decided what she wanted to do."

As a consequence of the foregoing entreaty and petitioner's sympathetic response thereto, petitioner and her sister arrived at the M. home late one evening in November 1958 and received the baby and some of its clothing from Mr. and Mrs. M. The child was taken to the sister's home in Lawnside, about six miles outside of Camden, where he remained for over three months. During that time, the infant was supported solely by donations from the various

members of petitioner's family. Petitioner testified that she neither received nor contemplated receiving any benefits from the taking of custody of the child. She was herself pregnant at the time of this incident and had no personal interest in retaining the infant; the sister with whom she left the baby had three youngsters of her own.

In early February 1959 Mr. M. contacted the Board office for the purpose of inquiring of petitioner whether the baby was a deductible item on his income tax return. As Mrs. Rushin was out, he was connected with the assistant supervisor and, allegedly for the first time, petitioner's actions came to the attention of her superiors. An investigation was immediately undertaken, resulting in her suspension on February 9, 1959 and the preference of charges shortly thereafter.

About two weeks after the suspension petitioner attempted to return the baby to Mr. and Mrs. M., encountered resistance from Mr. M., but finally succeeded in effecting the transfer, with the help of a timely intervention by a local pastor. On February 25, 1959 Mr. and Mrs. M. ...

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