On appeal from the Essex County Juvenile and Domestic Relations Court.
Michels, McElroy and J. H. Coleman. The opinion of the court was delivered by Michels, P.J.A.D.
[183 NJSuper Page 48] The New Jersey Division of Youth and Family Services (DYFS) appeals from a portion of an order for guardianship of the Essex County Juvenile and Domestic Relations Court which requires the adoption or placement of the minor children C.W., M.W. and N.F. "as an intact family unit unless further ordered by th[e] court." The trial court terminated the parental rights of G.W. and T.F. with respect to these three minor children and ordered that they be committed to the guardianship of DYFS for all purposes, including the right of DYFS to consent to the adoption of said children subject to the above restriction.
The events which gave rise to this appeal commenced in January 1978 when DYFS filed a complaint pursuant to N.J.S.A. 9:6-8.21 et seq. , and N.J.S.A. 30:4C-1 et seq. , charging G.W. and T.F. with child abuse and neglect of G.W.'s five minor children, C.W., C.W., M.W., Y.F. and N.F. The Public Defender was appointed law guardian for the five children and thereafter the trial court granted DYFS protective custody of them. All of the children, with the exception of Y.F., were immediately placed in the foster care of a Mrs. R. In July 1978 custody of Y.F. was awarded to her father T.F., and in June 1980 custody of C.W. was returned to his mother G.W.
In April 1980 an order was entered authorizing DYFS to seek termination of parental rights in C.W., M.W. and N.F. In May 1980 DYFS filed a complaint seeking both a termination of parental rights and guardianship of these three children. In October 1980, at the conclusion of a consolidated N.J.S.A. Title 9 and Title 30 hearing, the trial court terminated all parental rights in C.W., M.W. and N.F. and granted guardianship of these three children to DYFS for all purposes, including the right of DYFS to consent to the adoption of these children and to act fully and completely as guardians of their person and property pursuant to N.J.S.A. 30:4C-15 through N.J.S.A. 30:4C-22. However, the trial court placed the following restriction upon any adoption or placement of these children while under the guardianship of DYFS:
Ordered that the minor children, C.W., M.W. and N.F., while under the guardianship of the New Jersey Division of Youth and Family Services shall only be adopted or placed as an intact family unit unless further ordered by this court.
In January 1981 DYFS moved to modify the order of guardianship, requesting that the above restriction be deleted on the ground that circumstances had changed in that C.W. had moved out of the foster home. A hearing was held before the trial court at which time C.W., the oldest of the three children, testified that early in December 1980 she left the foster home as a result of a disagreement with one of Mrs. R.'s natural daughters.
Since December 1980 C.W. has been living with an aunt who has two teenage children close to C.W.'s age. C.W. and her aunt's two children attend the same public high school and apparently get along well. C.W. is still being seen by a therapist and advised by a DYFS case worker. M.W. and N.F. are presently living with their foster mother, Mrs. R., and C.W. has maintained contact with them. According to C.W. both of these sisters are happy. When C.W. was asked if Mrs. R. had indicated a desire to adopt her, C.W. testified that she had not learned of that fact until after she had moved to her aunt's home. However, C.W. further testified that she wanted to continue living with her aunt.
The trial judge denied DYFS's motion on the ground that there was insufficient evidence of changed circumstances to warrant a modification of the order of guardianship. In reaching this conclusion, the trial judge, in part, pointed out that Mrs. R. had not made a good faith effort to adopt all three of the children in accordance with his prior order, and that further investigation by DYFS was necessary before consideration could be given to adoption of all or even part of this family. Thus, the court refused to give prospective approval to the adoption of the two younger children by Mrs. R., and continued the restriction requiring adoption of all three as a unit, reasoning in part:
These are children of another family that are closely knit unto themselves. And though you may have . . . varying reactions to these children, I think that [DYFS is] going to have to demonstrate to the Court that it would still be in the children's best interest to allow them to be adopted in this manner. And that is a consideration I t[ook] into account when I issued the form of order that I did finally issue. I'm not prepared to modify at this time based upon what I've heard to allow the family to be adopted individually. I think the Division will have to come back with more and show what good faith effort Mrs. R. has made to keep C.W. with her sisters. And, you know, it seem to me that C.W.'s reason for leaving is even possibly twofold. One, that she's not really wanted. And two, that she's not getting along, or did not get along, with Mrs. R.'s teenage daughter. . . .
Now, whether this is just a sign of rivalry and childhood friction, I don't know. Whether it's symbolic of something more serious, which might be disruptive of the entire household, I think [is] something that bears investigation before
consideration can be given to adoption of all of the family or to even ...