NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff, v. V., Parent Of Debra, Defendant

• Decision Date: 30 November 1977
• Citation: 154 N.J.Super. 531,381 A.2d 1241
• Parties: Page 531 154 N.J.Super. 531 381 A.2d 1241 NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff, v. V., Parent Of Debra, Defendant. Juvenile and Domestic Relations Court, Cumberland County, New Jersey
• Court: New Jersey Superior Court

Page 531

154 N.J.Super. 531

381 A.2d 1241

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff, v. V., Parent Of Debra, Defendant.

Juvenile and Domestic Relations Court, Cumberland County,

New Jersey.

Nov. 30, 1977.

William H. Mild, Deputy Atty. Gen., for plaintiff (William F. Hyland, Atty. Gen., attorney).

Carl W. Cavagnaro, Vineland, for defendant (Reuss, Spall & Cavagnaro, Vineland, attorneys).

KLEINER, J. C. C., Temporarily Assigned.

The novel question raised in these proceedings is: When and under what circumstances should a minor under age 18 be judicially declared emancipated? The history of this litigation reveals the context within which this question is clearly raised.

Pursuant to N.J.S.A. 30:4C-12, the Division of Youth and Family Services (Division) filed a complaint requesting an order to compel defendant V. to cooperate in an investigation respecting the care then being extended by defendant to her 14-year-old pregnant unmarried daughter Debra. Such an order was granted and thereafter the Division applied to this court for an order making Debra a ward of the court. On September 3, 1975 Debra was placed in foster care pursuant to an order authorizing the Division to provide care and supervision of Debra until one month after the birth of her unborn child.

On April 6, 1976 and on October 28, 1976 orders were again entered extending the foster care arrangement for Debra for additional periods of six months. In each instance this court determined that the defendant's psychiatric condition rendered her "unfit to be entrusted with the care and education" of her daughter. N.J.S.A. 30:4C-12.

At all times referred to above Debra's infant son continued to reside with her in the foster home originally selected by the Division.

On June 22, 1977 the Division again filed a motion to extend the foster care arrangement for an additional period of six months.

Insofar as the Division had failed to comply with the statutory time requirement of N.J.S.A. 30:4C-12, testimony was heard to determine whether defendant's psychiatric condition still rendered her unfit to be entrusted with the care of Debra who as of that date was age 16. The facts elicited at this hearing may be briefly summarized.

Defendant is now residing in Philadelphia, having moved from New Jersey. She resides with her own four-year-old son (Debra's brother), is a full-time student at Temple University, and receives public assistance as her sole means of support. The psychiatric ideation which endangered Debra's welfare is no longer evident.

Debra is now a senior in high school where she is enrolled in a college preparatory course and is an honor roll student. She participates in varsity sports and actively partakes in church activities with her foster parents.

In an interview in chambers conducted pursuant to the procedure suggested in Lavene v. Lavene, 148 N.J.Super. 267, 271, 272, 372 A.2d 629 (App.Div.1977), Debra expressed a firm desire to remain in foster care and not to return to the home of her natural mother. Her decision was predicated upon several reasons: (1) she would prefer to reside in a rural agricultural environment rather than in a large metropolitan area; (2) she prefers to graduate with her present high school class and not have her high school education disrupted by relocation and readjustment to a new school; (3) she is reluctant to remove her own child from his present home insofar his daily care would be transferred from the "foster grandmother" to an unknown babysitter in Philadelphia or to a public day care center which is utilized by defendant for the daily care of Debra's brother.

It must be noted at this juncture that prior to this hearing, Debra herself, pursuant to N.J.S.A. 30:4C-11, executed a voluntary foster care agreement with the Division on behalf of her infant son.

Defendant contends that this court is required to return Debra to her custody insofar as she is no longer "unfit" to provide proper care. N.J.S.A. 30:4C-12. Although defendant's interpretation of N.J.S.A. 30:4C-12 is essentially correct, the factual background of this case requires that defendant's contention be rejected, insofar as her view fails to give proper consideration to the competing interest of Debra's independent right to provide care and supervision for her own infant son.

Insofar as defendant's argument would transfer care and supervision of Debra to defendant, which are indicia of custody, and would naturally affect the life of Debra's infant son, this court is compelled to review the custody decisions of our courts to determine their applicability to the case at bar.

A decision by this court to automatically return Debra to the custody of defendant would evade the responsibility of the court as parens patriae of all minor children. Sorentino v. Family & Children's Society of Elizabeth, 72 N.J. 127, 367 A.2d 1168 (1976).

Although our courts are reluctant to deny a parent custody of his or her child, In re Mrs. M., 74 N.J.Super. 178, 186, 181 A.2d 14 (App.Div. 1962), when the best interests of the child will be clearly served by a custody award to a third party, a finding of parental unfitness is not a prerequisite to the entry of a custody order. S. M. v. S. J., 143 N.J.Super. 379, 363 A.2d 353 (Ch.Div.1976).

The pivotal factor and paramount consideration in custody proceedings is the safety, happiness, physical, mental and moral welfare of the child which are the bases upon which a court determines what is in the best interests of the child affected by the court's decision. In re Adoption of B., 152 N.J.Super. 546, 378 A.2d 90 (Cty.Ct.1977); Sheehan v. Sheehan, 51 N.J.Super. 276, 291, 143 A.2d 874 (App.Div.1958); Fantony v. Fantony, 21 N.J. 525, 526, 122 A.2d 593 (1956).

In custody proceedings, in determining best interests the court should take the express choice of the mature child into consideration, Lavene v. Lavene, supra ; Clemens v. Clemens, 20 N.J.Super. 383, 90 A.2d 72 (App.Div.1952); Callen v. Gill, 7 N.J. 312, 81 A.2d 495 (1951).

Insofar as there is no statutory authority pursuant to N.J.S.A. 30:4C-12 to require Debra to remain in foster care where the natural parent is not deemed "unfit," other decisions of our courts must be reviewed to discover a solution to the dilemma confronting this court, to wit, that based upon the testimony offered, it is this court's conclusion, that it...