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In re Adoption of Two Children

Decided: August 17, 1979.

IN THE MATTER OF THE ADOPTION OF TWO CHILDREN BY A.M. AND L.M.


On appeal from Middlesex County Court.

Allcorn, Seidman and Botter. The opinion of the court was delivered by Seidman, J.A.D.

Seidman

At issue in this matter is the propriety of a judgment entered in the Middlesex County Court for the adoption of two children by A.M. and L.M., with whom the children had been placed by the Division of Youth and Family Services (DYFS) as foster parents pursuant to an order issued by the Middlesex County Juvenile and Domestic Relations Court in a proceeding under N.J.S.A. 30:4C-12. The natural parents, who had vigorously contested the adoption, appealed from the judgment.

Claiming that they could not afford the cost of furnishing transcripts of the 16-day hearing or to pay the required deposit of $3,200, the natural parents sought from this court an order for a transcript to be prepared at public expense under R. 2:5-3(d). The motion was denied without prejudice to an application for that purpose to the trial court. The natural parents moved before the Supreme Court for leave to appeal. The motion was granted only to the extent of directing acceleration of the appeal and ordering prompt application to the trial court for the transcript. After a hearing on that issue the trial judge ordered DYFS to provide funds for the deposit for and payment of the full cost of the transcript, with reimbursement to be made by the children's natural father at the rate of $25 a month. DYFS appealed from this order. We stayed the order pending our determination of this aspect of the appeal.

In the course of the several motions made before us the natural parents questioned whether the County Court had "jurisdiction" to entertain the complaint for adoption in view of the purpose for which the children had been placed with the adoptive parents and the pending proceedings in the Juvenile and Domestic Relations Court. Although the point was not raised below, we deemed it of sufficient importance to be noticed as

plain error under R. 2:10-2. We also were of the view that if the issue were to be resolved in favor of the natural parents, the need for a transcript of the adoption proceedings would be rendered moot. Accordingly, we directed the filing of briefs on the indicated limited issue and heard it on an accelerated basis. For reasons that follow, we determine that the judgment of adoption should be reversed and the matter remanded to the Middlesex County Juvenile and Domestic Relations Court for such further proceedings as may be appropriate.

DYFS filed a "Complaint for Protective Services" in the Middlesex County Juvenile and Domestic Relations Court on May 9, 1975. It recited the hospitalization of the children's mother because of a severe mental problem, the alcoholism of their father, and alleged mistreatment of and other improper, abusive and indecent conduct toward the children, who were then, respectively, two and six years of age. The complaint stated that although the parents had agreed in January to the voluntary placement of the children in foster care, they had now "refuse[d] to voluntarily have their children placed out of their home." Judgment was sought placing the children "in the care and supervision of the New Jersey Division of Youth and Family Services, including authorization to assume physical custody and authorization to consent to emergency medical treatment." It appears that the complaint was filed pursuant to N.J.S.A. 30:4C-12, which enables DYFS, in an appropriate case,*fn1 to apply [170 NJSuper Page 325] to the Juvenile and Domestic Relations Court of the county in which the child resides for an order making the child a ward of the court and placing such child under the care and supervision of DYFS. By order dated May 9, 1975 the two children were "made wards of this court and placed in the physical custody of [DYFS] pending hearing on the Complaint in this matter." The parents were ordered to show cause why the custody of the children in DYFS "should not continue pursuant to N.J.S.A. 30:4C-12 for a period of six months."*fn2 On the same day DYFS placed the children with A.M. and L.M. as foster parents.*fn3 See N.J.S.A. 30:4C-26. While the record before us does not reflect what, if anything, occurred on the return day, it appears that a hearing took place in October 1975 at which the parents were present, as well as their attorneys and a representative of DYFS. A consent order was entered "grant[ing] the care, custody and supervision of the infants * * * fore a period of six months commencing from the date of this order pursuant to N.J.S.A. 30:4C-12 * * *," and allowing the parents separate visitation with the infants at least once a month under the supervision of DYFS. In August 1976, on motion of DYFS, the court ordered a psychiatric evaluation of the children's father. The hearing was continued to a date to be fixed by the court upon receipt of the evaluation. The court further ordered that the children remain "in the care, custody and supervision" of DYFS, and directed it to "make reasonable efforts to increase visitation" between the parents and the infants.

Thereafter, but while the foregoing proceedings were still pending in the Juvenile and Domestic Relations Court, A.M. and L.M. filed a complaint in the Middlesex County Court, Probate Division, for the adoption of the two children. The complaint set forth, among other things, that the children had been under the continuous care of plaintiffs since May 9, 1975, "at which time the said children were placed with the Plaintiffs by the Department of Institutions and Agencies, Division of Youth and Family Services." The record does not indicate that the County Court judge was informed of the pending matter in the Juvenile and Domestic Relations Court, or that DYFS had knowledge of the filing of the adoption complaint. In any case, an order was entered in the County Court making the children sought to be adopted the wards of that court, designating the Catholic Welfare Bureau of Trenton to investigate and report to the court, and fixing March 25, 1977 as the date for hearing. The natural parents filed an answer to the complaint opposing the adoption.

It is to be noted that throughout this period and thereafter there was considerable activity in connection with the Juvenile and Domestic Relations Court proceedings. On January 31, 1977 the children were ordered to "be produced for simultaneous [psychiatric] examination with the natural father and natural mother."*fn4 A report was issued in May by the Rutgers Medical School Community Mental Health Center, Early Prevention Program, with respect to the relationship between the children and their natural parents. A dispute arose between the parents and DYFS, the former charging the Division "with instilling fear and depression in the children in an attempt to bolster the foster parents action for adoption." In May (without any indication

of an awareness of the adoption action) the Juvenile and Domestic Relations Court directed that "reasonable visitation, twice a month," take place elsewhere than at the foster home under the supervision of DYFS. On July 5, 1977, on DYFS' motion, the court ordered "a gradual return of the infants * * * to the custody of the defendants [natural parents], * * * to be accomplished gradually by increasing visits and contacts with defendants, which return will be completed by mid-August, 1977." The parents and the children were ordered to attend family therapy sessions, DYFS agreed to supply a homemaker to assist the natural mother, and DYFS undertook to ...


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