Saunders, J.c.c. (temporarily assigned).
[158 NJSuper Page 587] It is well settled law that for the State to temporarily or permanently deprive indigent parents of their children under statutes concerned with dependent and neglected children, without providing
counsel, constitutes a fundamental deprivation of procedural due process. Crist v. N.J. Div. Youth and Family Serv. , 128 N.J. Super. 402 (Law Div. 1974), aff'd in part, rev'd in part on other grounds, 135 N.J. Super. 573 (App. Div. 1975).
The novel question before this court is whether the State, having initiated an action for protective services and guardianship under N.J.S.A. 30:4C-1 et seq. and the parent being represented by counsel, can negotiate directly with the parent to obtain a voluntary "Surrender of Custody and Consent for Adoption" under N.J.S.A. 9:2-16 or N.J.S.A. 30:4C-23 so as to terminate all parental rights.
A review of the procedural and factual background is necessary to fully understand the problem.
C.M. was born on May 28, 1964 to H.M., who was then unmarried. The child was referred to the Division of Youth and Family Services (DYFS) in 1966 because of a possible neglect situation, and the family has been under protective services supervision since that time. Since January 1, 1975 the child has been staying with his aunt, apparently with the informal consent of H.M.
When H.M. refused to sign a foster care agreement for C.M., DYFS filed a petition requesting that the child be placed in its care and supervision, including authorization to assume physical custody. Thereafter, the Passaic County Legal Air Society (Legal Aid) represented H.M. and consent orders were entered on April 18, 1975 and May 6, 1975 placing C.M. in the temporary care of DYFS, with the child to remain in the physical custody of the aunt pending final determination.
On January 27, 1976 an order to show cause with a new complaint was filed by DYFS requesting termination of parental rights and guardianship of C.M. to DYFS pursuant to N.J.S.A. 30:4C-15 (Dependent and Neglected Children).
A copy of the pleadings was personally served on H.M. on February 19, 1976,*fn1 at which time the DYFS caseworker discussed with H.M. the possibility of her voluntarily signing a Surrender of Custody and Consent for Adoption form, which was refused. Five days later, on February 24, the caseworker was called by E.B. (a male companion residing with H.M.). As a result, he went to the home of H.M. where he was told by her that she desired to sign the necessary papers for adoption since she thought it best for the child to be adopted. H.M. was asked by the caseworker if she wanted to speak to her attorney and H.M. indicated that she did not. H.M. and E.B. were then transported by the caseworker to the DYFS office where H.M. signed a Surrender of Custody and Consent for Adoption form with an "X" as her signature. H.M. is blind. The documents were read aloud to both E.B. and H.M. in the presence of the caseworker, two assistant supervisors and a notary public who witnessed the signature. The entire process took about an hour.
Legal Aid learned from the Deputy Attorney General representing DYFS that DYFS was in possession of a fully executed "surrender." After speaking to H.M., Legal Aid advised DYFS that H.M. objected to the legality of the procedure since she was not represented and she did not understand the effect of the document.
New Jersey has enacted a comprehensive scheme governing the surrender of custody of children to agencies and the ...