This matter is before this court on an amended complaint for guardianship filed by the Division of Youth and Family Services (Division) pursuant to N.J.S.A. 30:4C-15 seeking to terminate parental rights under the authority of N.J.S.A. 30:4C-20.
The basis for such action in the present case may be found in N.J.S.A. 30:4C-15(c).
Whenever * * * (c) it appears that the best interests of any child under the care or custody of the Division of Youth and Family Services require that he be placed under guardianship * * *
and in N.J.S.A. 30:4C-20,
The children affected by these proceedings are Brenda Wunnenburg, born January 28, 1974; Cynthia Wunnenburg, born August 7, 1975; and Junelle Wunnenburg, born June 11, 1976.
The natural parents, Bruce and Virginia Wunnenburg, are 25 and 28, respectively, and were married on April 8, 1973.
Insofar as the basis for these proceedings emanates from the prior "care or custody" of a child with the Division, (N.J.S.A. 30:4C-12) a review of the legal history of this family must be examined.
As in Doe v. Downey, N.J. Super. (App. Div. 1976), this matter was initially instituted by the Division on a complaint
seeking an order of removal of Brenda filed pursuant to N.J.S.A. 9:6-8.31 alleging child abuse or neglect, which complaint additionally sought to make Brenda a ward of the court, placing her under the care and supervision of the Division pursuant to N.J.S.A. 30:4C-12.
Care is statutorily defined by N.J.S.A. 30:4C-2(c) as "cognizance of a child for the purpose of providing necessary welfare services, or maintenance, or both."
Care is distinguished from "custody," which is statutorily defined by N.J.S.A. 30:4C-2(d) as "continuing responsibility for the person of a child, as established by a surrender and release of custody or consent to adoption, for the purpose of providing necessary welfare services, or maintenance, or both."
As is required in child abuse-neglect matters, by virtue of N.J.S.A. 9:6-8.43(a), and due to the indigency of the natural parents, counsel was assigned and a law guardian, N.J.S.A. 9:6-8.21(d); N.J.S.A. 9:6-8.23, appointed to appear on behalf of Brenda. See also, Crist v. N.J. Div. of Youth and Family Services , 135 N.J. Super. 573 (App. Div. 1975).
On August 8, 1975 an order removing Brenda from her parents was entered and she was placed by the Division in a foster home where she has continued to reside.
The second child, Cynthia, has resided in a foster home since she was five weeks old, pursuant to a foster care agreement voluntarily executed by her natural parents on September 29, 1975, pursuant to N.J.S.A. 30:4C-11.
Testimony at this trial revealed that the voluntary placement of Cynthia occurred after her parents were advised that the Division intended to file a child abuse-neglect complaint and an application for the involuntary removal of Cynthia from the home of her parents.
Prior to the birth of Junelle Wunnenburg, the Division filed a separate complaint seeking to terminate parental rights as to Brenda and Cynthia.
The third child, Junelle, was removed from the custody of her parents on June 24, 1976, on a third complaint filed pursuant to N.J.S.A. 30:4C-12. Thereafter, the second complaint was amended, seeking to terminate parental rights as to Junelle as well as Brenda and Cynthia.
The three matters were consolidated for trial.
This factual background clearly raises a question of first impression: May a child be involuntarily removed from the custody of its parents under N.J.S.A. 30:4C-12 and thereafter can the parental rights of said parents be terminated under N.J.S.A. 30:4C-15 and N.J.S.A. 30:4C-20?
To answer this question a complete analysis of proceedings under N.J.S.A. 30:4C-1 et seq. is necessary. Such an analysis was recently prepared by Judge Abraham L. Rosenberg for the New Jersey Judicial Seminar on Child Abuse and Neglect, and he states:
Title 30:4C [30:4C] provides three types of child care and protective procedures. Under 30:4C-11, a voluntary application for care or custody may be made by a parent or relative or a person or agency having a special interest in the child or by the child itself or even on behalf of an unborn child. Proceedings under 30:4C-12 and 30:4C-15 are involuntary. Title 30:4C-12 permits a complaint for parental misconduct to be made to D.Y.F.S. by an interested person or agency. The Division is thereupon required to investigate. If intervention is determined to be essential, the parent is given an opportunity to make a voluntary application for Care under 30:4C-11. If the parent refuses, the Court at a summary hearing, may place the child under the Care of D.Y.F.S. for a period of six months, such placement being subject to extension. At this juncture it is necessary to distinguish the concepts of "Care", "Custody" and "Guardianship" as defined in 30:4C-2. "Care" includes welfare services or maintenance or both; "Custody" involves control over the person and "Guardianship" includes control over the property as well as the person. As stated, D.Y.F.S. may accept the child for custody as well as care pursuant to a voluntary application made under 30:4C-11. It is curious, however, that when an ...