Guardianship of J. R., Matter of

• Decision Date: 25 April 1980
• Parties: In the Matter of the Guardianship of J. R., a Minor.
• Court: New Jersey Superior Court — Appellate Division

Page 211

174 N.J.Super. 211

416 A.2d 62

In the Matter of the Guardianship of J. R., a Minor.

Superior Court of New Jersey, Appellate Division.

Argued March 10, 1980.

Decided April 25, 1980.

Joseph B. Young, Plainfield, for appellant (Community Mental Health Law Project, attorney; David Lazarus, Director of Litigation, East Orange, Joseph B. Young, Plainfield, on the brief).

Brenda Talbot Lewis, Deputy Atty. Gen., for respondent (John J. Degnan, Atty. Gen., attorney; Erminie L. Conley, Asst. Atty. Gen., of counsel; Brenda Talbot Lewis on the brief).

Before Judges ALLCORN, MORGAN and FRANCIS.

The opinion of the court was delivered by

MORGAN, J. A. D.

This is an appeal by a natural mother from an order severing parental ties with and granting guardianship of her son J. R. (now seven years of age) to the Division of Youth and Family Services (DYFS) under N.J.S.A. 30:4C-15(c) and (d), in anticipation of his adoption by the foster parents with whom he has continuously lived since placement at six months of age. In an oral opinion delivered at the close of a plenary hearing the trial judge found that the mother had failed to plan for her child for at least a year as the basis for the severance.

The essential facts are as follows: J. R. was born on March 6, 1973 the second child of M. R. the appellant herein. The first child, Luis, was by a different father. Soon after J. R.'s birth the family unit moved into the paternal grandmother's house where they lived for some time in increasing marital disharmony. The marriage was apparently a tempestuous one, marked by frequent arguments and little money, and in June 1973 appellant mother left the home.

After she left, two criminal complaints were lodged against her. One charged her with assault and battery on her husband, a charge ultimately withdrawn. The other charged an assault and battery against her first born son, Luis. The disposition of that charge is unclear. Although appellant does not remember doing so, the record suggests that she either pleaded guilty or was found guilty. In any event, the trial judge found these circumstances to be of no moment in reaching his conclusions in this matter:

. . . I do not in my deliberation consider the charge of abuse on Luis against M. R. I believe that the turmoil, havoc, she was in in 1973 should not in 1979 be used against her.

In July 1973 appellant corresponded with her estranged husband, seeking a reconciliation. Her husband responded. She appeared in court on August 15, 1973 to answer the assault charges against her first son and it was on this date that both parents agreed to place both children in the custody of DYFS until a joint decision between DYFS and the parents was reached. Visitation rights were to be arranged by DYFS and both parents agreed to have the children placed separately. Both parents agreed to accept casework services from DYFS and family counseling.

Ultimately Luis found his way to the home of his maternal grandparents. On November 1, 1973 J. R. was placed in the foster home where he has resided to this day. The trial judge viewed J. R.'s placement with DYFS as a voluntary one caused by the necessities of appellant's turbulent marriage and precarious finances.

Because the infrequency of appellant's visits with DYFS and J. R. provided one of the essential reasons for the trial court action, the events attendant thereto will be dealt with in greater detail. Appellant did not attempt to visit her son until February 11, 1974, over three months after placement in the foster setting, when it appears that she called DYFS to report a change in her address. At this time she made her first request to visit J. R. and did so, in the DYFS office on March 11, 1974.

The next recorded communication by appellant was a phone call to the DYFS office in November 1974, about eight months after the prior visit with J. R. and a year after his placement with the foster family. The caseworker was not, however, in the office, and nothing was accomplished. Appellant relates an attempted contact in June 1974 in which she sought to visit J. R. but was rebuffed because she had failed to maintain contact. The DYFS case record does not reflect this attempt; the trial judge made no specific finding as to this fact.

Thus, after the March 11, 1974 visit, appellant's only corroborated contact was her fruitless call of November 1974. Her next contact with DYFS came more than 13 months later, after the case file had been assigned to a new social worker, in December 1975. The new social worker saw appellant for the first time on January 28, 1976. Hence, there was no contact between appellant and DYFS during the entire year of 1975 and DYFS claims to have been unaware of appellant's whereabouts.

Appellant's efforts to explain the reasons for her remoteness from her son and DYFS are somewhat less than satisfactory. She claims she had a miscarriage, tried to commit suicide and was hospitalized in October 1975. She also claims that in December 1975 she permanently broke off relations with her husband.

After meeting with her new social worker in January 1976, appellant started to maintain a more steady relationship with DYFS. She visited with her caseworker on February 4, 1976, February 13, 1976 and March 3, 1976. At these times appellant expressed her desire to have J. R. returned to her. Despite the absence of any adjudication of unfitness, or indeed any attempt to obtain one, J. R. was not returned and, as the trial judge specifically found, visitation was repeatedly denied appellant. Thereafter, appellant's communications with DYFS continued on a more or less regular basis. On May 6, 1976 she telephoned her caseworker to tell her that she was now caring for her eldest child Luis. On June 24, 1976 she called her caseworker for an appointment, stating that she wanted J. R. returned. Because she worked and was unable to visit the DYFS office, her caseworker agreed to visit her home. She never did. Again, on September 7, 1976 appellant visited the caseworker, told her of a new address and wanted to know what was expected of her to get J. R. back. During this visit, counselling, adequate living quarters and day care were discussed. They did not, however, discuss visitation or J. R.'s return to appellant. Other visits to DYFS ensued on September 21, 1976 and October 19, 1976. On December 8, 1976, pursuant to the caseworker's suggestion, appellant made an appointment with the Elizabeth General Hospital Community Mental Health Center for December 14, 1976, an appointment which she failed to keep. A similar appointment was made for January 11, 1977 after she met with her caseworker on December 21, 1976, at which visit she signed a "contract" agreeing to certain conditions by certain dates, the failure of which would result in DYFS seeking guardianship of J. R. On January 11, 1977 appellant kept her appointment, became involved in group therapy and attended regularly thereafter. To this date in 1977, no effort had been made by DYFS to arrange visitation between J. R. and appellant.

During 1977 appellant's visits to DYFS continued on a fairly regular basis although no visitation with J. R. was arranged. On July 28, 1977 appellant signed another "contract" similar to the one signed on December 21, 1977. Ultimately, she met all "contract" requirements. On August 1, 1977 appellant obtained a new four-room apartment that was visited by her caseworker and determined to be satisfactory. Earlier in 1977 appellant's caseworker had received letters from appellant's psychiatric counseling group advising that appellant had been keeping her appointments and that she was no longer in danger of losing her feelings. No visit with J. R. was arranged during all this time.

Appellant's caseworker testified that DYFS, between September 1977 and February 1978, was contemplating an evaluation of J. R. to see how a return to appellant would affect him. There is no question but that during this period of effort by appellant, 1976 and 1977, DYFS contemplated returning J. R. to appellant and that she was fully aware of its position. It was not until October 5, 1977 that she was first advised that the foster parents with whom J. R. had been living since November 1, 1973 wanted to adopt him. That news was greeted with alarm, appellant responding that she would not consider surrendering him and that she wanted his return.

On November 1, 1977 appellant met with her caseworker and the latter's supervisor, at which time she was again told of the foster parents' desire to adopt J. R., that the foster parents had retained legal counsel, that court action would follow and that any further planning would be held in abeyance.

An evaluation of J. R. by the DYFS psychologist, Dr. Edward Higgins, followed in January 1978. It must be borne in mind that during this entire two-year period, 1976-1977, J. R. had not visited with appellant despite her obviously sincere efforts to obtain his return. The last recorded visit was in March 1974. Indeed, as it turns out, J. R. had not even been told that he was a foster child and that those with whom he had been living were not his natural parents. Higgins testified that DYFS told him of its intention to return J. R. to appellant. His response, in his report and his testimony, was, not surprisingly, that J. R. was psychologically bonded to his foster parents and that uprooting him from this environment

. . . would be catastrophic for his psychological welfare and would eventuate in serious psychological problems. This youngster could not sustain such a loss without suffering serious emotional havoc.

Higgins believed that J. R. was "vulnerable and would be dealt a deadly blow" if taken from the "only parents he knows." Higgins' report concludes that to "remove J. R. from his present home would be tantamount to cruel and inhuman punishment which could result in irreparable psychological damage."

On May 5, 1978 appellant...