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In re A.S.

November 6, 2006

IN THE MATTER OF A.S.
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.S., J.S., R.S. AND T.S., DEFENDANTS,
IN THE MATTER OF THE GUARDIANSHIP OF A.S. A LOVING CHOICE ADOPTION ASSOCIATES, MOVANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-97-06A.

The opinion of the court was delivered by: Lihotz, J.T.C. (temporarily assigned)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted October 11, 2006

Before Judges Kestin, Graves and Lihotz.

Appellant, A Loving Choice Adoption Associates (ALCAA), appeals from the Family Part order denying its motion to intervene in protective services litigation filed by respondent, Division of Youth and Family Services (DYFS or the Division). The issue is whether a natural parent may surrender parental rights to an approved agency after having agreed to transfer custody of the child to another person, from whom the Division effectuated an emergency removal, which was later confirmed by an order granting the Division custody, care and supervision of the child. We find the natural parent's surrender was ineffective and, thus, we affirm.

K.S. is the natural mother of A.S. born on June 17, 2003. K.S. suffered from substance abuse, and the whereabouts of the child's natural father remain unknown. By order dated January 21, 2005, under Docket No. FD-13-1115-05A, K.S. consented to the grant of legal and physical custody of A.S. to her brother, R.S. and his wife, T.S.

On August 31, 2005, an anonymous referral to DYFS expressed concerns for the physical well-being of A.S. After an investigation, the Division's representative confirmed the concerns for the child's physical condition and was also presented with the desires of T.S. and R.S. to have the child removed. The custodians additionally explained K.S. was contemplating the placement of A.S. for private adoption with a couple in Florida. That same day, DYFS executed an emergency removal of A.S., pursuant to N.J.S.A. 9:6-8.29.

On September 6, 2006, DYFS received a facsimile from counsel for the "the prospective adoptive parents of [A.S.]," who provided a copy of a document prepared by ALCAA, entitled "Birth Parent's Statement of Intent." The statement, signed by K.S. on August 2, 2005, expressed her desire to place A.S. for adoption with ALCAA. Counsel was advised DYFS had custody of the child and was looking for K.S. to notify her of the impending litigation.

Also on September 6, 2005, DYFS applied to the Family Part for "an order making the child a ward of the court and placing [her] under the care and supervision of the Division of Youth and Family Services." N.J.S.A. 30:4C-12. The court conducted a summary hearing after notice to T.S. and R.S., who both appeared. The whereabouts of the child's natural parents were unknown. DYFS sustained its burden to present credible evidence that the best interests of the child necessitated the emergent involuntary placement. See N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 260-61 (App. Div. 2002). The court continued custody, care and supervision with DYFS and the return date was scheduled for September 22, 2005.

K.S. was in the offices of ALCAA on September 6, 2005, signing a surrender of custody of A.S., accompanied by a consent for adoption of the child, pursuant to N.J.S.A. 9:3-38(j). K.S. also expressed her desire to avoid the foster placement system when finding the child a permanent home.

ALCAA's motion, filed September 16, 2005, sought to intervene in the litigation and gain custody of A.S. based on K.S.'s surrender. Following argument and the submission of additional briefs, the motion judge issued an order, accompanied by a written decision, dated January 11, 2006, determining ALCAA was without standing to intervene because K.S.'s executed surrender to ALCAA had no effect as "she attempted to give up a legal right she no longer possessed."

In its appeal, ALCAA maintains the motion judge erred, as K.S.'s surrender of the child for adoption to an approved agency supersedes DYFS's action and binds the court because the statute does not require the natural parent have custody, at the time the surrender is issued, in order to make it effective. Further, invoking the best interests of the child, ALCAA argues that K.S's wishes for her child to be placed for ...


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