On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County.
Petrella, Shebell and Gruccio. The opinion of the court was delivered by Shebell, J.A.D.
[233 NJSuper Page 403] K.D., the father of the infant K.D., and the infant's paternal grandmother, C.D., appeal from an order of the Family Part dated December 30, 1987, which was amended on February 10, 1988, to provide that, R.D. and N.D., the maternal uncle and aunt of the infant K.D., respectively, receive physical custody of appellant's infant son K.D., but that he remain in the legal custody of the New Jersey Division of Youth and Family Services (DYFS). The order under review denies K.D. and C.D.
visitation "in the best interest of the child," but grants E.D., the natural mother, limited visitation.
The infant K.D. was born July 5, 1986 to E.D. and K.D., who were not married. Soon after the infant's birth, DYFS was notified of the hospital's concern that the mother could not care for her child, as E.D. was homeless and had recently been discharged from a methadone maintenance program on suspicion of illegal drug use. The child was born drug addicted. DYFS established immediate supervision with the mother and infant. After several months the two moved to the mother's grandmother's home. The DYFS worker who visited the home noticed that E.D. frequently appeared to be under the influence of drugs.
During the fall of 1986, E.D. was incarcerated, and her grandmother cared for the infant. In November 1986, when the infant was hospitalized with bronchitis, his mother visited and began screaming in an hysterical and delusional manner, reportedly under the influence of drugs which she had taken in the hospital bathroom. Her counsel conceded that because of her addiction she was unable to care for the infant as of the time of the initial Family Part hearing. DYFS moved for an order giving it custody of the infant. DYFS was granted custody, and the infant was placed with foster parents.
The infant's mother informed the trial court that she wanted her brother and his wife, R.D. and N.D., to have custody of the infant. They live in South Carolina, but came to New Jersey for the hearing. At the time of the hearing, R.D. was finishing his last year of studies to be a doctor of chiropractic medicine. He and his wife stated that they wanted to obtain custody of the infant. R.D. maintained that he wanted the infant to have a "normal life," and that if the court granted visitation to either the infant's mother or father or any other paternal relatives, he would not comply with the court order. R.D. and N.D. have one child of their own. R.D. asserted that he and his wife intend to maintain custody of the infant K.D. for six months,
and then file for adoption pursuant to South Carolina law. A DYFS worker stated at trial that it was the intention of DYFS to maintain supervision of the child for six months, after which time the file would be closed and the South Carolina "sister" office would take control.
K.D., the infant's father, was present at the hearing but did not testify. Although he was then and continues to be an inmate in state prison, his attorney stated that it was his client's desire to maintain custody of the infant. Appellant C.D., the 74-year old paternal grandmother of the infant K.D., intervened in the Family Part action, requesting that she be granted custody of the infant. She and her daughter, D.D., live in a two bedroom apartment in New Brunswick. D.D. was 52-years old at the time of the hearing and worked two jobs; full-time as a university secretary, and part-time, some evenings and weekends, at a local toy store.
Under the trial court order, the infant has been living with the maternal uncle and aunt in South Carolina since January 1988. The order permits visitation by the mother E.D. one day per month.
Appellants contend that DYFS' plan to monitor the infant K.D. for six months and then to close the file amounts to termination of the rights of the infant's parents in violation of New Jersey law, as DYFS has been granted custody of the child on a temporary basis only and no proceeding to terminate the parents' rights has been instituted. The State submits that placement of the infant K.D. with its South Carolina relatives was in the best interest of the child, and that appellants' arguments are misplaced as the proceeding, as stated repeatedly during the course of trial, was only "for a determination as to with whom custody of the minor should be placed."
DYFS may place a child who is in its custody in the custody of a relative. See N.J.S.A. 9:6-8.54. There is no restriction that the child be placed only with relatives within the jurisdiction of this state. We must, however, be concerned with
whether the court's order, in granting legal custody of the infant to DYFS and physical custody to the maternal relatives in South Carolina, might act as a de facto termination of, or infringement upon, the parental rights of E.D. and K.D..
Therefore, we first examine whether the South Carolina courts would have jurisdiction over R.D. and N.D.'s proposed adoption of the infant. The Uniform Child Custody Jurisdiction Act (UCCJA) has been adopted by both New Jersey and South Carolina. See N.J.S.A. 2A:34-28 et seq.; S.C.Code Ann. § 20-7-782 et seq. (Law. Co-op 1976). The Parental Kidnapping Prevention Act of 1980 (PKPA) governs all states. 28 U.S.C.A. § 1738A (West Supp.1989). The UCCJA seeks to introduce certainty and stability in the choice of forum in interstate custody disputes and to encourage interstate cooperation in the interest of the child. E.E.B. v. D.A., 89 N.J. 595, 603 (1982), cert. den. 459 U.S. 1210, 103 S. Ct. 1203, 75 L. Ed. 2d 445, reh'g den. 460 U.S. 1104, 103 S. Ct. 1806, 76 L. Ed. 2d 369 (1983). "While UCCJA focuses on custody disputes between family members, its operative provisions are broad enough to include a dispute between a natural parent and adoptive parents." Id. at 607. While one of the purposes of PKPA is to deter interstate abduction of children by contesting parents in custody disputes, it applies as well "to disputes between all persons who seek custody of a child." Id. at 603 citing Pub.L. No. 96-611, § 7, 94 Stat. 3568.
The adoption of the infant K.D. by his maternal uncle and aunt would constitute a modification of the February 10, 1988 order that the infant "shall remain in the legal custody of the New Jersey Division of Youth and Family Services, with physical custody of the minor being placed with the maternal uncle and aunt, [R.D. and N.D.], in South Carolina. . . ." Both PKPA and UCCJA prohibit modification of a child custody order unless the revising forum has jurisdiction, and the state that rendered the original order has lost jurisdiction or has declined to exercise it. E.E.B., 89 N.J. at 611; compare 28 U.S.C.A. § 1738A(f) (West Supp.1989) with N.J.S.A. 2A:34-42a. Two or
more states cannot have concurrent jurisdiction to modify a court order under UCCJA. Neger v. Neger, 93 N.J. 15, 29 (1983). But see Bowden v. Bowden, 182 N.J. Super. 307, 313-14 (App.Div.1982).
South Carolina would have jurisdiction over the infant K.D. as the UCCJA provides that a state has jurisdiction over a child if it is the child's home state. S.C.Code Ann. § 20-7-788(a)(1)(i) (Law. Co-op 1976); N.J.S.A. 2A:34-31a(1)(i). Jurisdiction in South Carolina is reinforced by reason of the fact that "the child and at least one contestant [the maternal uncle and aunt], have a significant connection with [South Carolina] and . . . there is available in [South Carolina] substantial evidence concerning the child's present or future care, protection, training and personal relationships. . . ." S.C.Code Ann. § 20-7-788(a)(2) (Law. Co-op 1976); N.J.S.A. 2A:34-31a(2). Nonetheless, the order under review may be modified by South Carolina only if its courts determine that New Jersey has lost jurisdiction or has declined to exercise it. See E.E.B., 89 N.J. at 611.
The New Jersey courts have placed the infant in the physical custody of his maternal uncle and aunt after being told that it is their intention to adopt the child in South Carolina after six months' time has elapsed, and that New Jersey DYFS intends to close the case file on the child after a six-month period. There is a distinct possibility under these circumstances that South Carolina courts would feel confident that New Jersey had relinquished jurisdiction of the child, and therefore feel free to amend the trial court's order and permit the adoption of the infant by residents of South Carolina.
We cannot agree with the contention of DYFS that in a South Carolina proceeding E.D. and K.D. are guaranteed the same protections they are entitled to in New Jersey against termination of their parental rights. If the maternal aunt and uncle move to adopt the infant in South Carolina, the child's parents,
to effectively defend against the action, would be required to go to that state.
Pursuant to South Carolina law, prior to adoption of a child, consent or relinquishment of ...