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New Jersey Division of Youth and Family Services v. Wunnenberg

Decided: July 20, 1979.


On appeal from Juvenile and Domestic Relations Court, Cumberland County, whose opinion is reported at 149 N.J. Super. 64.

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


The parents of Brenda, Cynthia and Junelle Wunnenberg appeal from an order of the trial court, in an action brought by the New Jersey Division of Youth and Family Services (D.Y.F.S.), involuntarily terminating their parental rights. The opinion of the trial judge appears at 149 N.J. Super. 64.

Appellants first attack the judgment below on grounds involving the initial removal of Junelle. They argue that the trial judge erred "by determining that appellants' child Junelle could be involuntarily removed from her parents' custody under N.J.S.A. 30:4C-12 and by further determining that such a removal could serve as the basis for thereafter terminating parental rights." Appellants concede (as they must; R. 2:6-2(a)(1)) that this point was not raised below.

Because it is of particular significance in our determination of the first point above, it is appropriate that we record here and now our firm conviction that the result below represents substantial justice with respect to the interests of all concerned and is eminently correct. In view of this we have no hesitancy at all in invoking the proposition that an appellate court need not consider an issue not presented below, State v. Souss , 65 N.J. 453, 460 (1974); Campbell v. Atlantic Cty. Freeholder Bd. , 158 N.J. Super. 14 (App. Div. 1978), and we do decline to undertake such consideration here for the first time. Not only is this new objection of a nature which might be characterized as technical (although we do not disparage insistence on statutory compliance) but, perhaps more to the point, had it been timely made below the course of the litigation might easily have been steered in a straighter path. Additionally, even if we were to accept appellants' argument, it is difficult to discern exactly how they have been prejudiced by the aberration of which they now complain. They were not denied a full adversarial hearing on the ultimate issues. However, in these circumstances our affirmance herein must not be deemed necessarily to constitute an agreement with or endorsement of that appearing in the published opinion of the trial judge, either expressly or by inference, regarding these issues.

Appellants next contend that since the "so-called 'voluntary' surrender" of Cynthia was obtained without the presence of counsel, that "surrender was void, ab initio , making all subsequent procedures with respect to Cynthia also void." The only case cited in support of this proposition is In re Guardianship of C.M. , 158 N.J. Super. 585 (J. & D.R. Ct. 1978). That case is readily distinguishable from this one. There the paper signed was a "Surrender of Custody and Consent for Adoption" during a time in which formal proceedings for termination of parental rights were already pending. A caseworker contacted the involved parent directly even though the parent was represented by counsel, which counsel had expressly requested that no papers be presented

without the presence of an attorney. Crist v. N.J. Div. of Youth & Family Serv. , 128 N.J. Super. 402 (Law Div. 1974), aff'd in part, rev'd in part, 135 N.J. Super. 573 (App. Div. 1975), which meets the counsel problem head on, is also distinguishable on its facts.

Nevertheless, the comment of Justice Pashman in his concurring opinion in In re Guardianship of Dotson , 72 N.J. 112 (1976) has not escaped our attention:

With respect to Cynthia, it is doubtful if her surrender was in the course of a "proceeding," as Justice Pashman intended that word. Certainly her parents were not yet "subjected" to a "proceeding" at that point. Any other interpretation would very substantially devitalize many of the useful services available only through state agencies on a voluntary basis and conjure up the unlikely necessity of no communication at all without first bringing counsel into the picture.

What we have here is a severely infected and malnourished newborn baby whose parents perhaps could not understand the urgent need for the medication (in the case of the mother), or did not care (in the case of the father), who had to be rehospitalized and with respect to whose care in this effort the parents voluntarily surrendered the child. These facts were specifically found by the trial judge and are reasonably supported by sufficient evidence in the record. Rova Farms Resort v. Investors Ins. Co. , 65 N.J. 474 (1974).

Lastly in this respect, even were we to assume that the presence of counsel on the initial surrender was imperative, we would have great difficulty in identifying any resultant harm in the circumstances. In considering the problem we ...

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