MARGARET SEES, PLAINTIFF-APPELLANT, v. CHARLES K. BABER AND JERRI BABER, DEFENDANTS-RESPONDENTS.
Supreme Court of New Jersey
Argued May 10, 1977—Decided July 27, 1977.
74 N.J. 201
For reversal — None.
Mr. Bernard L. Albert argued the cause for respondents (Messrs. Cole, Berman and Belsky, attorneys).
The opinion of the court was delivered by
HANDLER, J. This is an action by an unmarried mother for the return of her child whom she had surrendered to defendants for adoption. The events critical in this litigation unfolded quickly. The child was born on July 3, 1976; a consent for adoption was executed on July 6th; the next day the baby was surrendered to the custody of defendants; two days later on July 9th, the mother told the doctor and defendants’ attorney that she had changed her mind; within a few days her request for the return of the child was refused. On July 22, 1976, she instituted this action in the Chancery Division of the Superior Court in Passaic County seeking immediate return of the child.
On July 30, 1976, the return date of an order to show cause which had issued, the court set the matter down for a plenary hearing on August 9, 1976. Prior to the hearing, defendants filed an answer alleging that they had started
Plaintiff Margaret Sees became pregnant in November 1975 when she was nineteen years of age. She was living with her family at the time, but did not disclose her pregnancy to anyone until June 9, 1976 when she told her mother. That day, she and her mother went to see the family doctor. A week later, on June 16, 1976, Ms. Sees registered at the prenatal clinic of St. Joseph‘s Hospital. She there met one Margaret Willoughby, a case worker, to whom plaintiff stated she planned to give her child for adoption. Miss Willoughby explained different adoption procedures and offered
On June 30, 1976, Ms. Sees and her mother met Dr. James P. Thompson, the director of the Department of Obstetrics and Gynecology of St. Joseph‘s and a private practitioner in this specialty. Plaintiff informed Dr. Thompson it was her intention to relinquish the child for adoption. He advised her of alternate means of placing the child for adoption. He also asked plaintiff and her mother not to make any decision at that time but to think about it and to call back when a decision was made. On the next day, July 1, 1976, Dr. Thompson received a call from plaintiff‘s mother stating that plaintiff had made a decision to give up the child for adoption through private placement.
Within two days of this meeting, on July 3, 1976, plaintiff gave birth to her child. Dr. Thompson assisted with the delivery. The court determined that both plaintiff and her mother had been advised by the doctor that plaintiff had no commitment to surrender the child unless she clearly elected to do so and that she could have counselling. Dr. Thompson further testified that he anticipated the mother would be discharged on July 7, and therefore he made the arrangements for the surrender of the child to coincide with this “conventional” discharge date.
Three days after the birth of her child, on July 6, 1976 (coincidentally her twentieth birthday), plaintiff had several meetings with Judith De Spirito, a nurse recommended by Dr. Thompson, specializing in the care and counselling of new mothers. At the first visit this witness found plaintiff to be happy and alert. When asked if she was sure that she wanted to give the child for adoption, plaintiff responded affirmatively. At the second meeting on that day she took plaintiff to the nursery to see the child. Mrs. De Spirito told plaintiff it would be harder to give up the child than to keep him. Plaintiff responded it was in the best interests of the baby to give him up.
At the time of plaintiff‘s discharge on July 7th, the following day, Mrs. De Spirito explained to plaintiff the manner in which she would have to identify her child and turn him over to the adoptive parents. She said plaintiff had no questions concerning the procedure and did in fact surrender the child. Plaintiff handed her baby to defendants in the hospital parking lot.
Within two days of her discharge, plaintiff changed her mind. Dr. Thompson was called by plaintiff‘s mother on July 9th and was told that plaintiff wanted her baby back. On receiving this call, Dr. Thompson said “within an hour” he called defendants’ attorney to tell him. The attorney was also told by plaintiff‘s mother on that very day that plaintiff
Based upon factual findings, the trial judge concluded
* * * that the decision of plaintiff to relinquish her child for adoption was not made on the spur of the moment but was one which was first considered by her in June, as early as June 9, 1976, when she discussed the matter with her mother * * * followed by a series of conversations and consultations * * *. There is no testimony or evidence in this case of fraud, coercion, undue influence, over-reaching or pressure which was imposed upon plaintiff to make this decision. * * * [P]laintiff‘s consent was based upon her considered judgment and was not hurried, abrupt or given under personal stress. * * * * * * [T]he totality of plaintiff‘s conduct both prior to and at the time of the physical surrender of the child, constituted a forsaking of parental rights and obligations. * * * [B]y the weight of the evidence in this case, of which J-1 [the executed consent] is but a part * * * at the time of the surrender of the child on July 7, 1976, plaintiff relinquished her parental obligations. The fact that plaintiff had a change of mind just two days later does not in my opinion alter this finding.
The Appellate Division affirmed substantially for the reasons expressed by the trial court. It was convinced that ample credible evidence supported the lower court‘s detailed findings and since this in great part involved an evaluation of the credibility of witnesses, it did not disturb the conclusion that “plaintiff voluntarily undertook to surrender the child and forsake her parental rights and obligations.” Though it had not been raised at the plenary hearing, the Appellate Division addressed the further issue of whether the direct surrender of the child under the circumstances and the physician‘s conduct were in violation of the adoption laws and therefore invalidated the mother‘s consent and surrender. The court concluded that there was no statutory interdiction against the legal validity of a direct surrender of a child by its parent to prospective adoptive parents and that “* * * the direct relinquishment of the child to defendants without the intervention of an appropriate placement agency does not constitute a violation of the Adoption Act
We reverse. It was error for the courts below to have concluded under these circumstances that plaintiff had abandoned or forsaken her child and that her parental rights in her child should be terminated.
I
The parties have proceeded, and the matter is before us, within the context of our statutes governing adoptions.
Under the adoption laws, if the child sought to be adopted has been privately placed, as in this case, that is, the youngster has not been received into an adoptive home under the supervision of an “approved agency” as defined by
Under the adoption statute, parental rights may not be terminated unless it is determined by the court that a parent suffers from a specific statutory disability or has engaged in parental conduct amounting to “forsaken parental obligations.”
The statutory standard of “forsaken parental obligations” is itself legislatively defined as: “willful and continuous neglect or failure to perform the natural and regular obligations of care and support of a child.”
In the present case, it is obvious that the mother‘s consent to the adoption and the actual surrender of her baby to the adoptive parents were crucial acts on her part which impelled the court to conclude that she had abandoned the child and forsaken parental claims. It is important, therefore, to examine the special role which “consent” and “voluntary surrender” have been assigned by the Legislature in the statutory scheme for the adoption of children.
In the first adoption act in New Jersey, L. 1877, c. 383 and its early revision, L. 1902, c. 92, consent was a requirement for an adoption. Such consent provisions were carried forward in considerable detail in subsequent revisions and amendments. L. 1905, c. 149;
Under present law, parental consent was eliminated as an independent or alternative statutory basis for adoption, at
The Legislature carefully circumscribed the factors of consent and voluntary surrender in adoptions. Only where an adoption proceeds on the basis of a placement with an approved agency may consent and surrender become a statutory basis for terminating parental rights. A surrender of the custody of a child is not valid unless made to an approved agency.
In contrast, neither consent nor voluntary surrender is singled out as a statutory factor in terminating parental rights where an adoption stems from the unregulated private placement of a child, such as occurred here. Rather, the statute directs that the forfeiture of parental prerogatives must be based on the more embracive standard of “forsaken parental obligations.”
In the setting of a private placement, several New Jersey cases have dealt with consent and surrender for adoption as factors in determining whether there had been a statutory forsaking of parental obligations. The approach followed in these cases was expressed in In re Adoption by B., supra 63 N. J. Super. at 103:
Although consent is no longer a jurisdictional prerequisite in private adoption proceedings, it may have relevance in the frame of reference of possible abandonment or the forsaking of parental obligations. Cf. Lavigne v. Family and Children‘s Society of Elizabeth, 11 N. J. 473 (1953). Whether the consent, or its attempted withdrawal, should be given any weight in determining if the adoption should be allowed, would depend on a variety of circumstances, such as the conditions under which the consent was originally given, the length of time between the giving and the withdrawal of the consent, the extent of reliance on the consent by the potential adoptive parents, and the development of the child while in their custody.
In none of the decisions was there a forfeiture of parental rights based solely upon a consent and surrender without there being present significant additional conduct evidencing
In In re P., and wife, supra, the court went so far as to state that “where the natural parent * * * voluntarily, freely and understandingly gives consent, with a present resolution to abandon parental rights, that consent should be irrevocable and binding, absent fraud or some overriding equitable consideration, and assuming that such a result is not inimical to the welfare of the child.” 114 N. J. Super. at 591-592. That declaration went considerably beyond the facts of that case which we would emphasize as equally im-
It seems to us significant that in only a handful of other jurisdictions does it appear that the consent to a surrender or adoption by a natural parent is considered absolutely irrevocable, and then usually when it is given pursuant to statutory or judicial strictures. Annotation, “Right to withdraw consent to adoption,” 74 A. L. R. 3d 421 (1976). Despite differences in statutory treatment, there are illustrative cases in other jurisdictions similar to the cited New Jersey decisions. E.g. Williams v. Pope, 281 Ala. 416, 203 So. 2d 271 (1967); In re Holman, 80 Ariz. 201, 295 P. 2d 372 (1956); Batton v. Massar, 149 Colo. 404, 369 P. 2d 434 (1962); In re Adoption of Cannon, 243 Iowa 828, 53 N. W. 2d 877 (1952); Lee v. Thomas, 297 Ky. 858, 181 S. W. 2d 457 (1944); In re F, 26 Utah 2d 255, 488 P. 2d 130 (1971); compare, People ex rel. Kropp v. Shepsky, 305 N. Y. 465, 113 N. E. 2d 801 (1953); People ex rel. Scarpetta v. Spence-Chapin Adoption Service, 28 N. Y. 2d 185, 321 N. Y. S. 2d 65, 269 N. E. 2d 787 (1971), cert. den. and appeal den., 404 U. S. 805, 92 S. Ct. 54, 30 L. Ed. 2d 38 (1971); In re D. L. F., 85 S. D. 44, 176 N. W. 2d 486 (1970). The matter was succinctly put in In re Nicky, 81 Misc. 2d 132, 364 N. Y. S. 2d 970, 975 (Surr. Ct. 1975), aff‘d (App. Div. November 24, 1975, unreported).
Many decisions consider the revocation of “surrender instruments” and “consents“. Although these decisions articulate general principles — “the primacy of the status of the natural parent“; “the fitness, competency and ability of the natural parents to maintain, support and educate the child“; “the best interests of the child“; — a key factor in all of the decisions in which revocation has been allowed is the fact that the natural parent has “an early change of mind” soon after the surrender or consent: contra however where there has been a long delay or equivocation and indecision on the part of the natural parents. Delay is evidence of a settled purpose to surrender the child: it is as well harmful to the well-being of the child.
The court below, on challenged testimony, determined as a fact that plaintiff did form an intent to relinquish her child prior to his birth and that her consent and surrender of the baby for adoption were knowing, voluntary and deliberative acts on her part. Although the reliability of such a consent and surrender in the context of an unstructured private placement is open to grave question, we accept the court‘s factual finding. State v. Johnson, 42 N. J. 146 (1964). We do not share its ultimate conclusion, however, that this resulted in the abandonment of the child, or in a forsaking of parental obligations. The court‘s peripheral perspective of the problem was sharply constricted because, closing one eye as it were, it effectively disregarded plaintiff‘s immediate change of mind and prompt, diligent attempts to regain the child. These factors were entitled to great weight; they were accorded none. In consequence, the resulting conclusion was at odds with the reality of the record, which, from a wider vantage point, discloses that plaintiff neither abandoned nor relinquished her child.
Our conclusion in this respect is buttressed by the important fact that the adoption was attempted through an unsupervised and unregulated private placement of the child.
There is no question that the obverse, the private direct placement of children for adoption, is very much disfavored. Under our statutes, criminal sanctions may be invoked against a person who places, offers to place or in any manner assists in the placement of a child in a home of another for purposes of adoption unless the adoptive person is a brother, sister, aunt, uncle, grandparent or step-parent of the child.
The dangers inherent in private placements are underscored in this very case. The only time plaintiff saw Dr. Thompson prior to the birth of her baby was on June 30, 1976. The doctor testified, however, that he did not at this meeting consider himself to be plaintiff‘s doctor but rather professed to be acting as the head of a medical department of the hospital. The doctor‘s allegiance to plaintiff was further blurred because defendants were his social friends. He also acknowledged that his main concern was plaintiff‘s physical condition since she was overdue and that the primary purpose of this visit was to give her a medical examination. Moreover, he admitted he was not knowledgeable in the state‘s adoption laws but he still gave his opinion as to the relative advantages to the private placement of a child for adoption. One such benefit was private medical care without expense. He also told plaintiff she would “know” the adoptive parents through a private placement, although plaintiff, in no sense, came to know the defendants or their qualifications for parenthood. Dr. Thompson also arranged for plaintiff to meet with defendants’ attorney, describing this as a mere “formality.” The attorney did not suggest that plaintiff obtain independent legal advice or any other form of counselling. He admitted the consent document had been completed with information furnished by Dr. Thompson and that a portion of the document — a statement that the plaintiff was unable to care for her child — was just an assumption on his part. He also explained certain critical language therein, to wit, “I voluntarily give my consent and execute my appearance in the Essex County Court for the adoption of said child.” Although this language is not free from am-
It may be that the doctor and lawyer, who acted as intermediaries, were highly motivated and well-intentioned. We assume they were. This, however, does not lessen the risk of an ill-advised and inappropriate placement of a child. “Good intentions cannot be a substitute for careful and complete investigations.” Note, 16 Rutgers L. Rev., supra at 405; cf. Matter of Anonymous (G), Misc. 393 N. Y. S. 2d 900 (Surr. Ct. 1977); also, Witmer, Herzog, Weinstein and Sullivan, Independent Adoptions (1963), pp. 359-360.
In sum, it is clear from this record that plaintiff had promptly repudiated her consent to the adoption of the child, and without delay, in a diligent and concerted fashion attempted to regain her child, all within three weeks of his birth. Though her consent and surrender for adoption were voluntary and understanding when undertaken, they did not become fixed or immutable before plaintiff changed her mind just two days later. Accordingly, after plaintiff demanded the return of her child, there was no justifiable reason for defendants to have retained the child. Under such circumstances, plaintiff did not exhibit the willful and continuous neglect or failure to respond to parental duties, as required by the adoption statute, in order to constitute forsaken parental obligations and claims. Hence the decision to terminate her parental rights was in error and must be reversed. In so ruling, this obviates our consideration of the further issue raised by plaintiff, and decided by the Appellate Division, as to whether the private placement of the child constituted an illegal act and should be set aside on grounds of invalidity.
II
Neither the courts below nor the parties have been called upon to consider the issue which we now address. It having been determined that plaintiff‘s parental rights in
We endorse the view expressed in In re Adoption of Children by D., supra, that if there has not been “established upon a thorough consideration of all the evidence” a statutory forsaking of parental obligations, “the rights of a natural parent may not be cut off, adoption must be denied at that point and the case should proceed no further” (61 N. J. at 95). That being so, we are entirely satisfied that there is no statutory or legal basis upon which to deny or resist plaintiff‘s claim qua parent to the full custody of her child. It is possible, however, for facts to arise in a given setting which might obtrude upon what is otherwise a clear legal picture in favor of a natural parent, and move the court to exercise its equitable powers pursuant to its parens patriae jurisdiction with respect to the custody of the child.
Such a case is Sorentino v. The Family and Children Society of Elizabeth, 72 N. J. 127 (1976). There we ordered a plenary hearing to be conducted to determine the potential danger of serious and permanent injury to the well-being of a child which might result from a change in custody. The facts and circumstances of that case, however, are readily distinguishable from those here. The Sorentino child was almost three years old and had lived with the adoptive parents uninterruptedly from the time she was one month old. That circumstance itself would deter this court from ordering the immediate return of the child to her natural parents — complete strangers as far as the child is concerned — with-
These considerations do not obtain in this case. Indeed, we are prompted to dispense with any further hearing because it would not likely add illumination or help us to know truly what is right and wise to do. We would expect at such a hearing that there would be testimony to the effect that a filial relationship takes root in the earliest stages of child development and that this cannot be destroyed or changed without some risk of emotional harm to the child. It has been recognized that the psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood. Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973); see also Bowlby, Attachment and Loss (Vol. I, 1969; Vol. II, 1973); Note, “Alternatives to ‘Parental Right’ in Child Custody Disputes Involving Third Parties,” 73 Yale L. J. 151 (1963); Comment, 26 Rutgers L. Rev. 693 (1973); and see, Note, 3 Seton Hall L. Rev. 130, 140 (1971). The insuperable difficulty, however, is that the nature and duration of such psychological damage are imponderable, at least where an infant is involved. There is simply no firm basis to conclude that an inquiry focusing upon the existence of “psychological parenthood,” in a case such as this, with an infant just one year old, would be at all helpful or productive in deciding whether that child could not now be raised adequately and decently by his own mother without ruinous psychological trauma. That far truth is still beyond our ken. Okpaku, “Psychology in Child Custody Cases,” 29 Rutgers L. Rev., 1117 (1976); Comment, 26 Rutgers L. Rev., supra at 699-700, n. 41, 702; Michaels, “The Dangers of a Change of Parentage in Custody and Adoption Cases.” 83 L. Q. Rev.
It does not otherwise appear that the welfare of the child will be undermined by his return to his natural mother. The fitness of the plaintiff is a relevant factor, of course, in determining whether she is entitled to custody. In this case there was testimony establishing that fitness and the ability of the plaintiff to take proper care of her child. The trial court understandably made no finding with respect to the fitness of plaintiff to exercise her parental responsibilities, but we have no hesitancy on the record before us to prevent further delay, and in the exercise of our original jurisdiction,
At this phase of the proceedings, we deal with the question of custody in the context of an adoption action, which has now been aborted. Nevertheless, while the welfare of the child remains the paramount and overriding concern, all of the interests staked out in various provisions of the adoption statute, including those of the natural and adoptive parents, should be considered in pari materia.
Again Sorentino is distinguishable. In that case, the unwed mother clearly considered giving up her child for adoption and retained custody of the child only for one month. She was in frequent consultation with an approved agency. She in fact consented to the adoption and surrendered her child, although, we have ruled this was not a voluntary act on her part. Nevertheless, from the standpoint of the adoptive parents, they had no reason to believe that the surrender of the child was not valid or that the consent thereto was not irrevocable as generally provided by statute. In addition, notwithstanding the objections later raised by the mother and father, no legal action was instituted for the return of the child for more than a year. The adoptive parents thus relied upon the conduct of the natural parents, with the further encouragement and assurance of an approved agency. Reasonably secure in the custody of the
In holding as we do that there should be an immediate return of the child to the plaintiff without any further hearings, we are sensitive to the goals and objectives of our adoption laws. Among the purposes of that law is “to protect the child from unnecessary separation from his natural parents” and “to protect the natural parents from hurried or abrupt decisions to give up the child.”
By our ruling, we conceive that the adoption act is being “administered so as to * * * promote policies and procedures which are socially necessary and desirable * * *.”
Accordingly, consistent with this opinion we order the immediate return of the child to plaintiff with full and exclusive rights of custody. In order to assure the prompt transfer of the child, the matter is remanded to the trial court which is hereby instructed to secure compliance with this directive without delay. No costs.
SULLIVAN, J. (concurring). I am in full agreement with the majority opinion but wish to make the following observations. Our Adoption Act permits a parent to make a private placement of a child for adoption but then requires that in such case, as one of the prerequisites to adoption, the court make a finding that the parent has “forsaken parental obligations.” This is a misnomer. In my opinion, the Legislature has misconceived the real issue. The question is not whether the parent has forsaken parental responsibility but rather whether the parental surrender was voluntary with full knowledge and understanding of the consequences.
I think that all placements for adoption should be required to be through an approved adoption agency. However, as long as the statute permits private placements, it should at least articulate what the real issue is. Moreover, in the case of a private placement, I would give the parent the absolute right, within a reasonable time as fixed by the Legislature, to void the surrender and recover the child back.
CLIFFORD, J. (dissenting). The arguments marshalled by the majority in support of its reversal of the judgment terminating plaintiff‘s parental rights are persuasive, as is the analysis of the underlying law upon which that deter-
Such a condition of uncertainty tends to raise in the natural parents false expectations that they can simply have a change of heart or mind and reclaim the child, while at the same time dooming the putative adoptive parents to a state of suspense, waiting for the knock on the door that signals the end of their parenthood. While it is true that only two days elapsed in this case before plaintiff sought to renege on her voluntary agreement to surrender (preceded, as it was, by counseling and information from a doctor, a nurse, a caseworker and an attorney), the fact remains that the child involved is now almost 13 months old and a complete stranger to his natural mother as, more importantly, she is to him. See n. 2, infra. If the arrangement can start to become unravelled after two days, what about after two weeks? Two months (see In re Adoption by P., 114 N. J. Super. 584 (App. Div. 1971))? Longer? The potential for disruption implicit in these uncertainties seems to underlie the concerns, which I share, expressed by the court in In re Adoption of a Child by R. D., 127 N. J. Super. 311, 319 (App. Div. 1974);
If the normal emotional distress of a surrendering parent or the inherent pressures of a situation involving the giving up of her child by an unwed mother shortly after its birth were held sufficient, months later, to vitiate an otherwise voluntary decision, few surrenders for adoption by unwed mothers would stand. See In re Surrender of Minor Children, 344 Mass. 230, 181 N. E. 2d 836, 839
(Sup. Jud. Ct. 1962); In Re Adoption of F., 26 Utah 2d 255, 488 P. 2d 130, 131, 134 (Sup. Ct. 1971).
But, I repeat, the arguments to the contrary of this position, as set forth in the opinion of the Court, have considerable force. Were this the only point of departure from the majority viewpoint, I might ordinarily incorporate my reservations in a concurring opinion.
However, on a different phase of the case I find myself in profound disagreement with the majority. For even if the courts below were in error in reversing the judgment terminating plaintiff‘s parental rights, it does not at all follow that as an immediate — even abrupt — consequence of today‘s decision the only child these defendants have ever had should be wrenched from the only home he has ever known, and this without so much as a by-your-leave of a Sorentino hearing to determine whether such an obviously drastic change will be accompanied by “the probability of serious harm to the child,” Sorentino v. Family & Children‘s Soc. of Elizabeth, 72 N. J. 127, 133 (1976) — a hearing, incidentally, readily conceded by plaintiff‘s attorney at oral argument before us to be not inadvisable. Were we adjudicating rights in a ‘57 Plymouth or an egg-beater, we would not give such short shrift to a hearing.1 Certainly no less solicitude and protection should attend the disposition of flesh and blood.
This is, unhappily, one more situation2 calling for this
But I do not understand either “common experience” or the weight of scientific authority to be to that effect at all. As far as “common experience” is concerned, I suppose all we have to go on is our own fallible perceptions of what is good or bad for a child of this age. Mine differ from the majority‘s, cf. Small v. Rockfeld, 66 N. J. 231, 253 (1974) (Clifford, J., dissenting), and based thereon I can conclude only that the course definitively charted by the Court may very well put this child in shoal waters. As for authority, much of the literature on the subject expresses serious doubts about the advisability of effecting a transfer of custody after a child has achieved an age of 4 to 6 months.3 This infant,
None of this is undercut in the least by the additional factor upon which the Court relies to determine the custody issue, namely, the method of placement, said to have “some impact on the deeper question of whether the custodial claims of the natural mother do not outweigh those of defendants.” Ante at 224. Assuming that we are to shift our gaze from the child‘s best interest and focus upon the placement factor, it seems to me that at best the scales come down no more on the side of the plaintiff than on that of defendants. This tragic dilemma was set in motion by plaintiff, who knowingly, unmistakably, and voluntarily undertook to relinquish all parental rights. In measuring her custodial claim I would not think it amiss to hold plaintiff accountable for the consequences of her own conduct. The participation of the physician and attorney is no worse than neutral; in attempting to effectuate plaintiff‘s express intention they were hardly Svengali-type interlopers. And defendants’ sole offense seems to lie in their opening their hearts to the infant, taking him into their home in good faith and refusing to relinquish him when plaintiff changed her mind.
At stake here is nothing less than the destiny and well-being of a non-actor, the innocent child. I think his interests have been badly short-changed and the significant risks attendant upon his transfer overlooked. It is my respectful
For reversal and remandment — Chief Justice HUGHES, and Justices MOUNTAIN, SULLIVAN, PASHMAN, SCHREIBER and HANDLER — 6.
Dissenting — Justice CLIFFORD — 1.