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In re Guardianship of J.E.D.

Decided: January 27, 1987.


On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County.

King, Deighan and Havey. The opinion of the court was delivered by King, P.J.A.D.


[217 NJSuper Page 2] This proceeding for termination of parental rights and commitment of a child to the guardianship of the Division of Youth and Family Services (DYFS), "pursuant to N.J.S.A. 30:4C-15 through N.J.S.A. 30:4C-22 and R. 5:12," resulted in an order in favor of the Division. On May 20, 1986 the judge committed the child to the "guardianship and control of the Division" pursuant to the statutes and terminated parental rights. Because of certain interim developments and procedural concerns with the record, we conclude that the interests of justice require a reversal and a remand for a prompt supplementation of the record, and reconsideration of the judge's oral decision of April 29, 1986 in light of these concerns.

This is our view of the proceedings to date. A DYFS worker took M. (Mary*fn1) from her mother (Jane) on December 1, 1982. That day DYFS filed a protective services complaint against Jane for abuse and neglect of Mary. The family court judge signed orders on December 16, 1982 and March 15, 1983 continuing Mary in the custody of the Division. Jane was ordered to undergo a mental health evaluation. Following a fact-finding hearing the judge found that Jane abused Mary within the meaning of the N.J.S.A. 9:6-8.21 et seq. and signed an order on June 10, 1983 continuing Mary in the custody of DYFS for a period of six months and ordering Jane to undergo therapy. The judge signed orders maintaining Mary in the custody of DYFS on December 15, 1983 and March 5, 1985.

On April 16, 1985 DYFS filed a complaint for guardianship of Mary. A hearing was held before the family court judge on September 19, 1985 and November 7, 1985. On April 29, 1986 he rendered an oral decision and signed a final order for guardianship with DYFS on May 20, 1986. This appeal followed.

A motion to stay the court's judgment of guardianship was heard and denied by the judge on July 11, 1986. On August 18, 1986 the judge signed an order denying Jane's request for reinstatement of visitation privileges pending appeal but enjoined any adoption proceedings pending this appeal.

By order of October 7, 1986 we permitted the supplementation of the record by DYFS with an affidavit by foster parent Barbara Smith which stated in full

Barbara Smith [fictitious] of full age, being duly sworn according to law, upon her oath deposes and says:

1. I am the foster mother for [Mary].

2. [Mary] has lived in my home since December 1, 1982 except for the period of time of August 30, 1983 through October 13, 1983.

3. Prior to the guardianship hearing for [Mary], I stated that I was not interested in adopting [Mary] because her biological mother knew where I lived and had threatened to kidnap [Mary] if I tried to adopt her.

4. On April 30, 1986, I was advised by a Division worker that the Division had been granted guardianship of [Mary] the day before. I advised the worker immediately that my husband and I wished to adopt [Mary] I also told the worker that I really always wanted to adopt [Mary] but I did not want the child's biological mother to know this.

Her husband, the foster father, filed a parallel affidavit; both were dated September 16, 1986.

These are the facts we glean from the record. Jane was a foster child most of her life and became a mother at age 19 on July 3, 1982. She was unmarried and the child's father was not involved in helping to care for Mary. When Mary was a newborn, mother and daughter lived with Jane's former foster parents. About three months later they moved in with two friends of Jane's. In November 1982 Jane went with a friend to DYFS for help. She told a social worker there that she was having trouble taking care of her daughter and that she had hit her hard enough to leave a mark. She wanted help in order to stop hurting her daughter. She also asked for help finding her own place to live. DYFS later received a anonymous phone call about Jane and apparently a second phone call from a woman who knew Jane from a parents' "anonymous group" where Jane was seeking help. DYFS sent a social worker to visit Jane and Mary on December 1, 1982.

The social worker saw that Jane was not properly caring for Mary. For example, she noticed Jane making cereal from hot milk and feeding it to the baby without testing the temperature. Jane told the social worker that she was trying to find a place to live on her own. The social worker told Jane that she felt Jane was not ready for that and tried to get Jane to voluntarily sign a foster care agreement but Jane refused. Jane then became very angry and locked herself with Mary in the bedroom. When Jane came out of the bedroom she hit the social worker. Mary was then taken from Jane and placed in a foster home.

DYFS filed a complaint for abuse and neglect on December 1, 1982. Jane voluntarily went to live at Mission Teen, a residential treatment program for drug, alcohol or emotional problems. (There is no evidence that she had a drug or alcohol problem). Mission Teen forbade her to visit Mary and she voluntarily left on January 28, 1983. She had received a scholarship for cosmetology school which she could use only if she lived in Gloucester Township. She was unable to find housing in Gloucester Township and never attended that school but instead she moved in with friends, the Schueles in Pine Hill. She tried working at McDonald's but was unable to keep the job because she had trouble operating the cash register. During this period she visited with Mary and also attended high-school equivalency classes in Camden. The Schueles supported her financially and assisted her with transportation to classes and to visit Mary.

Initially, from December 1982 to March 1983 DYFS scheduled Jane's visitations with Mary for once a month. From March until the following September she visited Mary regularly, usually once a week at the DYFS office for about an hour. A few visits were cancelled, some by Jane, some by the foster parents. The visits went very well. She changed her daughter's diaper, fed her with a bottle, and was happy to see her. Starting in June 1983 she attended court-ordered counseling at Treatment Alternatives for Families with Children at Risk.

On June 29 the agency increased the visitations to two hours a week. In July, the agency began to allow Jane to have visits outside of the office. On July 13, 1983 Jane had a birthday party for Mary with her family and the Scheules which went well. On September 21 DYFS allowed Mary to visit her mother in her grandfather's home for six and one-half hours. This visit also went well. Jane also continued to attend counselling regularly.

In April of 1983 Jane became pregnant. She told the DYFS social worker she had been raped in Philadelphia. The social

worker noticed that she did not seem upset and that she had not informed the police of the incident. Later Jane named Robert Hunt as the father. A couple of months after she became pregnant she met her future husband, Alvin Gaylord, at the Living Waters Community Fellowship, a religious group. Jane said that they met on a Sunday and that "he fell in love on Monday and proposed on Tuesday."

In August she began to have problems with the Schueles and moved to her father's home. DYFS moved Mary to a foster home nearer to Jane to make visits more convenient. However, the placement did not work out and Mary was eventually moved back to her original foster parents. Living with her father did not work for Jane; the reasons why are disputed. She told a social worker that her father had thrown her out of the house for coming home an hour late. She also said she had spent a night at a hotel in Philadelphia and a night on a park bench but later said that this was not true.

A few nights after Jane left her father's house, she and Gaylord decided to move to Florida where Gaylord had an opportunity to attend data entry school. DYFS advised her that this ...

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