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Doe v. State

Decided: January 24, 1979.


On appeal from Superior Court, Chancery Division, Sussex County.

Fritz, Bischoff and Morgan. The opinion of the court was delivered by Bischoff, J.A.D.


This appeal by plaintiffs John and Jane Doe, foster parents of five-year-old D.W., is from an administrative determination of the Division of Youth and Family Services (DYFS) that D.W. should be removed from her foster home and returned to the home of her natural parents. There are important issues presented concerning the procedural and substantive rights of foster parents, natural parents and foster children.

The events which first brought D.W. into the physical custody of plaintiffs occurred in 1974, when D.W. was but eight months of age. On March 27 of that year R.W., the mother of D.W., attempted to murder her by placing D.W. in a sealed garbage bag and leaving her abandoned out of doors. R.W. was indicted for attempted murder. As a result of plea negotiations, R.W. pleaded guilty to an accusation charging her with child cruelty and child neglect. In conformity with the plea bargain an order was entered in the criminal action pending in the Superior Court on September 10, 1975, placing the custody of D.W. in DYFS pursuant to N.J.S.A. 9:6-8.18 "until such time as [R.W.] establishes to the court's satisfaction that she has progressed sufficiently in the course of her psychiatric treatment to again be vested with the custody, control and supervision of the child and the further order of the court." R.W. commenced psychiatric treatment. By an earlier order, dated May 2, 1974, the Juvenile and Domestic Relations Court made D.W. a ward of the court and placed her in the custody of DYFS pursuant to N.J.S.A. 30:4C-12. Although this order is dated May 2, 1974, D.W. had been in the custody

of DYFS since early April 1974 and, by DYFS at that same time, placed in the care of plaintiffs, where she has continuously resided to the present time.

These present proceedings were commenced by the filing of a complaint and order to show cause in the Superior Court, Chancery Division, on August 3, 1977. In the complaint plaintiffs named DYFS and the natural parents of D.W. defendants, and plaintiffs sought restraint against increased visitation of D.W. by her natural parents, a termination of parental rights, adoption of D.W. by plaintiffs or, in the alternative, guardianship of D.W.

On August 4, 1977 an order was entered consolidating this matter with the actions previously pending in the Juvenile and Domestic Relations Court and the Superior Court. The order further made D.W. a ward of the court while maintaining her legal custody in DYFS and her physical custody in plaintiffs.

Subsequent orders were entered in the action which: (1) provided for a psychological examination of D.W. and her natural parents; (2) granted limited visitation rights to defendants -- which were later increased in both frequency and duration until finally overnight visitation was granted; (3) restrained the natural father of D.W. from exercising any custodial rights; (4) granted the application of DYFS to have a psychiatric examination of D.W.; (5) denied a motion originally made by DYFS and later made by plaintiffs for the appointment of a guardian ad litem for D.W., and (6) denied the application of plaintiffs to examine the records and files of DYFS, though the court directed DYFS to furnish copies of the reports referred to in (4) above to all counsel.

In support of their various applications for relief, plaintiffs filed with the court affidavits of friends and neighbors of D.W. and of D.W.'s pediatrician. All indicated that D.W. was completely identified -- emotionally and psychologically -- with plaintiffs as her only family. Also filed with the court was a report of Dr. Lentchner, a psychologist engaged by

DYFS to examine D.W. He expressed the opinion that D.W. identified with plaintiffs as her psychological parents and not with her natural parents. He recommended that the custody of D.W. remain with plaintiffs, expressing the opinion that D.W. would be seriously psychologically injured by any parental replacement at this time.

Also before the court was the report of Dr. Santos, a Pennsylvania psychologist engaged by DYFS to examine D.W. He, too, classified plaintiffs as D.W.'s psychological parents, indicating D.W.'s relationship with the natural parents was secondary. He also saw that problems would probably result from any change in D.W.'s parents. The concluding paragraph in the report reads:

Should the court return [D.W.] to her natural parents, the immediate affects [sic] would probably be her reactions from the separation from her psychological parents and family of three years. Her sense of origin and identity can be a problem for both the present and future adjustments. The natural parents feelings and attitudes as well as [D.W.] and other significant people in her life, towards the near tragic separation or rejections can be a difficult and complicated conflict to deal with in the future. The [W's] and [D.W.] with proper support may have the potential to deal with the problems noted above.

DYFS has closely supervised D.W.'s visits with her natural parents and maintained caseworker records and reports concerning the child's adjustment to those visits.

DYFS determined unilaterally in October 1977 that D.W. should be removed from the physical custody of plaintiffs and return to the physical custody of her natural parents. This decision was apparently based upon the cryptic concluding sentence in the report of Dr. Santos, quoted above. Having reached that decision, DYFS made it known to plaintiffs and moved to dismiss plaintiffs' pending action. The motion was granted by the judge for the reason that exclusive jurisdiction of the matter was vested in the Appellate Division. Plaintiffs appealed from the order of dismissal, and we granted plaintiffs' motion for a stay pending appeal.

The natural parents have not participated in any of the proceedings in the Chancery Division or on this appeal.

While the preceding recital has omitted many procedural steps not necessary to the resolution of this appeal, one further proceeding must be mentioned. The original order in the criminal action dated September 10, 1975 retained jurisdiction to review the progress of R.W. following her psychiatric treatment. The order of August 4, 1977 consolidated the criminal action with the proceedings pending in the Chancery Division. Despite that fact and during the pendency of this appeal a motion was filed by R.W. in the criminal action seeking termination of probation and a declaration of her fitness to assume custody of D.W. We are informed that one hearing on this motion has occurred and all further proceedings on the "fitness hearing" in the trial court have been stayed by order of the Supreme Court dated November 21, 1978.

Lurking behind all the procedural maneuverings are the fundamental issues of (1) whether plaintiffs are the psychological parents of D.W. and whether a transfer of D.W. from their custody at this time will cause serious psychological and emotional harm to D.W., Sorentino v. Family & Childrens' Soc. of Elizabeth , 74 N.J. 313 (1977); Sees v. Baber , 74 N.J. 201 (1977); Sorentino v. Family & Childrens' Soc. of Elizabeth , 72 N.J. 127 (1976); Hoy v. Willis , 165 N.J. Super. 265 (App. Div. 1978), and (2) whether the best interests of D.W. require her return to the care, custody and control of R.W., who committed a criminal assault upon her.

This appeal presents complex issues concerning the standing of foster parents to intervene and be heard by DYFS prior to an administrative termination of their relationship with a foster child, the respective rights of natural and foster parents to the custody of D.W., the validity of the administrative decision of DYFS, and the proper method of assuring adequate representation of the child in a proceeding instituted to determine her best interests.


Plaintiffs contend the trial judge erred in dismissing the complaint for lack of jurisdiction. They argue that the "entire controversy" doctrine precludes Appellate Division jurisdiction and mandates that the case be heard and determined in the Chancery Division. Plaintiffs concede that part of the controversy springs from the administrative determination to remove D.W. from their custody but point to unresolved issues concerning (1) the applicability of the psychological parentage principle and the court's position as parens patriae of all minor children; (2) guardianship, and (3) adoption, and stress the impracticality of holding an evidentiary ...

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