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W.C. and B.M. v. P.M.

Decided: January 23, 1978.


Halpern, Larner and King. The opinion of the court was delivered by Larner, J.A.D.


This appeal involves an attack upon the decision of the New Jersey Division of Youth and Family Services (Division) to return two minor children, 8 and 11 years of age, from foster parents to their natural mother. The factual and procedural history preceding the hearing of the appeal is material to its disposition.

After a referral and subsequent investigation by the Division the appellant P.M. in June 1974 executed a voluntary placement agreement requesting the Division to place three of her children in foster care because of her inability to care for them adequately and properly. Two other children were retained in her care. One of the three children released to the Division was placed in a foster home and returned to his mother in June 1975. The other two, G. and P., were placed in foster care with the plaintiffs on June 12, 1974 and have remained in their home to this date. This placement was made pursuant to the approval by the Division of plaintiffs as foster parents and their execution of a form of agreement which, among other undertakings, acknowledges the temporary character of the placement.

Plaintiffs fully performed their duties and obligations and provided excellent care and nurture to both children and expressed to the assigned social worker of the Division their interest in adopting them. In May 1977 plaintiffs were advised

that the Division would not support any application for adoption and that further inquiry would be made of the mothers as to her plans for the return of her children. This inquiry elicited the decision in May 1977 by the mother that she would not surrender custody of the children for adoption and would be prepared for their return in about six months.

On October 20, 1977 the mother advised the social worker that she had obtained a home in Bradley Beach which would be adequate to house all her children and requested the return of the two children in plaintiffs' foster care on November 1, 1977. However, at the suggestion of the Division the date of return was postponed to the latter part of November so that arrangements could be made for the smooth transfer of the children from the adoptive home to that of their mother.

On October 31, 1977, the Division notified plaintiffs that the children would be returned to their mother on November 29, to which plaintiffs objected strenuously.

The record also reveals that the mother of these children has maintained contact with and interest in them throughout the period of foster care by many visits and communications, all of which were with the cooperation and consent of the foster parents. Apparently, the children have been fully cognizant of their relationship to their natural mother and their siblings residing with her.

The determination of the Division to accede to the mother's request for the return of the children was based upon the mother's change of circumstances and the agency's conclusion that she is now capable of caring for them and has an adequate home to house them. In addition, the Division arranged for a psychological evaluation to determine whether there would be any emotional harm to the boys if removed from their foster placement. The expert's report concluded "that there is nothing substantial enough to warrant a negative statement regarding a move of the children to a permanent adoptive home." (He did not realize that the proposed move was to the natural mother.)

The final report of the caseworker and his supervisor to the Division included the following findings with respect to the mother:

Mrs. P.M. has developed into a very effective mother. She has improved in both self-deportment and insight since she has been supervised by this agency. From the first contact with the client, her main stated purpose was to regain her children in placement and to establish herself as the responsible figure in her family. To accomplish this she has been zealous in obtaining suitable housing, providing structure for her family and being open to any and all suggestions raised to enhance the family setting. She is a strong willed individual who has now channeled her efforts in very positive ways. When the apartment she obtained in Harrison, New Jersey, was thought too small to house herself and all of her children, she found a new one and was very resourceful in accomplishing her move to the new apartment by herself. She has been very effective with ...

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