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M. v. Family and Children''s Service Inc.

Decided: September 30, 1974.

M., PLAINTIFF,
v.
FAMILY AND CHILDREN'S SERVICE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT



Yaccarino, J.s.c.

Yaccarino

[130 NJSuper Page 215] This matter came before the court on a verified complaint for an order to show cause why defendant agency should not be enjoined from interfering with plaintiff in her care of the infant child sought to be adopted. Defendant consented without prejudice to an order permitting

the child to remain in plaintiff's custody until the return date of the show cause order, which was fixed for August 16, 1974. Prior to the return date defendant agency moved to dismiss the complaint and order to show cause, alleging that the court lacked jurisdiction. The order to show cause and the motion to dismiss for lack of jurisdiction were consolidated and argument thereon was heard by the court on August 29, 1974. On that date the court denied defendant's motion, continued the status quo and fixed a date for a plenary hearing for the reasons hereinafter stated.

The facts are as follows. Sometime in August 1971 plaintiff and her husband made application with defendant agency for the placement of a child in their home for the purpose of adoption. On January 7, 1974 defendant agency placed a female child in plaintiff's home and the parties executed an "Adoption Placement Agreement." One of the provisions of the agreement required plaintiff and her husband to notify the defendant agency of any "marital problems."

In May 1974 plaintiff discovered that her husband had been seeing another woman and that he was desirous of securing a divorce. Plaintiff made known this information to defendant through one of its caseworkers. On August 2, 1974 defendant advised plaintiff that the placement agreement was being terminated and that the child would be removed from plaintiff's home. Hence this action.

Our present law governing adoption was enacted in 1953 (L. 1953, C. 264) and is embraced in N.J.S.A. 9:3-17 et seq. These statutes provide for two distinct methods of adoption. They provide for separate time periods that the child must be in the home of the adoptive parents prior to instituting suit for adoption (N.J.S.A. 9:3-21), who is qualified to adopt (N.J.S.A. 9:3-22), and the manner in which the adoption shall be secured (N.J.S.A. 9:3-23 and 24).

N.J.S.A. 9:3-23, entitled "Action on Complaint," provides that unless it appears in the action

(1) that the child sought to be adopted has been received into the home of the plaintiff from or with the approval of an approved agency;

(2) that such approved agency has, by written document signed and acknowledged by its authorized officer or representative, consented to the adoption;

(3) that at least one year prior to the institution of the action the custody of the child had been surrendered to such approved agency by each parent or other person having custody of the child, and that by the terms of such surrender the approved agency had been authorized to place the child for adoption; or that an order or judgment had been entered by a court of competent jurisdiction terminating parental rights and transferring custody of the child to such approved agency or granting guardianship of the child to such approved agency; and

(4) that such child has been living continuously in the home of the plaintiff for not less than six months prior to the institution of the action; * * *;

the court must declare the child to be a ward of the court, appoint an agency to investigate, study and direct plaintiff, assist in the report and ...


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