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New Jersey Division of Youth and Family Services v. Wunnenburg

Decided: November 30, 1979.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT,
v.
VIRGINIA WUNNENBURG AND BRUCE WUNNENBURG, DEFENDANTS-RESPONDENTS



On appeal from Juvenile and Domestic Relations Court, Cumberland County.

Allcorn, Morgan and Horn. The opinion of the court was delivered by Morgan, J.A.D.

Morgan

In 1977 respondents Bruce and Virginia Wunnenburg were deemed unfit parents and parental ties with their three children were, accordingly, terminated. N.J. Div. of Youth & Fam. Serv. v. Wunnenburg , 149 N.J. Super. 64 (J.D.R. Ct. 1977), aff'd 169 N.J. Super. 417 (App. Div. 1979). The evidential foundation for this serious action can be found in the cited opinions and we will not burden this opinion with repeating it. For present purposes it is sufficient to recount the summary of the trial court's ultimate findings in that 1977 litigation:

From the facts above and other clear, convincing, and credible testimony offered at trial, as well as the court's observations of Virginia Wunnenburg, I find that the State has clearly established that Virginia Wunnenburg is incapable of caring for children.

The testimony is further clear and convincing that Bruce Wunnenburg is unlikely and unwilling to change his negative and uncompromising attitude against accepting supportive community services. Without such services it is clear that Virginia Wunnenburg could not properly care for one child, let alone three.

It is equally clear that the Wunnenburgs have failed to demonstrate any sincere interest in or affection for their children. . . .

This court finds as a fact that Brenda's and Cynthia's health was endangered while residing with their parents, and that Brenda's entire development, both physical and emotional, was in fact impaired, which finding is predicated upon uncontradicted medical testimony offered at trial. [149 N.J. Super. at 75; emphasis supplied]

On appeal the foregoing findings were affirmed as being "eminently correct." 169 N.J. Super. at 420.

It is, however, the fourth child, Michael, born to the Wunnenburgs after the above-quoted findings were made, presently a little over a year old, who is the focus of the present appeal. On November 2, 1978, about two months after Michael's birth, two caseworkers from the Division of

Youth and Family Services (DYFS) arrived unannounced at the Wunnenburgs' home for an investigation and were denied entrance. Rebuffed, DYFS, pursuant to N.J.S.A. 30:4C-12, applied to the same trial judge who decided the 1977 matter for an order compelling the Wunnenburgs to cooperate in its investigation into Michael's circumstances within the Wunnenburg home. After hearing testimony from one of the two caseworkers who were denied entry, the trial judge denied DYFS the order it requested concluding that (1) to obtain the desired order, DYFS was required to show probable cause to believe that respondents were neglecting or abusing Michael; (2) the findings in the 1977 litigation were too remote to establish such probable cause, and (3) because contemporary facts supportive of DYFS' requested order were absent, DYFS' application would be denied without prejudice. DYFS appeals. We reverse.

The enactment governing disposition of the present controversy is N.J.S.A. 30:4C-12 which, in essence, authorizes, and indeed requires, DYFS to investigate all information received concerning the neglect or abuse of any child. The critical statutory language continues as follows:

If the parent, parents, guardian, or person having custody and control of the child shall refuse to permit or shall in any way impede investigation, and the [Division] determines that further investigation is necessary in the best interests of the child, the (Division) may thereupon apply to the Juvenile and Domestic Relations Court of the county where the child resides, for an order directing the parent, . . . to permit immediate investigation. The court, upon such application, may proceed to hear ...


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