SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5407-96T3
In the Matter of the Adoption
of a Child by P.F.R. and V.A.I.
Argued February 3, 1998 - Decided February
20, 1998
Before Judges Long, Stern and Kleiner.
On appeal from the Superior Court of
New Jersey, Chancery Division, Family Part,
Somerset County.
James W. Miskowski and Henry M. Price argued
the cause for appellants P.F.R. and V.A.I.
(Macfall, Riedl & Miskowski, and Lowenstein,
Sandler, Kohl, Fisher & Boylan, attorneys;
Mr. Miskowski, of counsel and on the brief;
Henry M. Price and Harriet Dinegar Milks, on
the brief).
Diane K. Smith argued the cause for
respondent R.S. (Somerset Sussex Legal
Services, attorneys; Ms. Smith, on the
brief).
Cecilia M. Zalkind, attorney for amicus
curiae Association for Children of New
Jersey.
Frederick J. Magovern (Magovern and Sclafini)
of the New York bar, admitted pro hac vice,
argued the cause for amicus curiae American
Academy of Adoption Attorneys (Cofsky &
Zeidman, and Mr. Magovern, attorneys; Mr.
Magovern and Diane Michelsen, President,
American Academy of Adoption Attorneys, of
counsel; Donald C. Cofsky and Mr. Magovern,
on the brief).
Teri S. Appelson, Deputy Attorney General, argued the cause for amicus curiae Division of Youth and Family Services (Peter Verniero,
Attorney General, attorney; Mary C. Jacobson,
Assistant Attorney General, of counsel; Ms.
Appelson, on the brief).
Amicus curiae Catholic Charities Diocese of
Metuchen joins in appellant's brief.
The opinion of the court was delivered by
KLEINER, J.A.D.
Baby D was born on January 31, 1994. His natural mother
Joan ToddSee footnote 1 surrendered him for adoption to an approved agency,
Catholic Charities Diocese of Metuchen ("Catholic Charities") on
February 10, 1994. See N.J.S.A. 9:3-38a (defining "approved
agency"). Thereafter, Baby D was placed in the home of
plaintiffs, Peter Robinson and Vivian Robinson, on February 23,
1994, where he has continuously resided.
Effective April 27, 1994, adoptions in New Jersey are
governed by N.J.S.A. 9:3-38 to -55. This appeal requires us to
construe N.J.S.A. 9:3-46a where the natural father of a child
born out of wedlock contests an adoption after the natural mother
surrenders the child for adoption to an approved agency.
Although there have been two reported opinions construing this
statute, In re Adoption of a Child by R.K.,
303 N.J. Super. 182
(Ch. Div. 1997), and In re Adoption of a Child by F.O. and W.O.,
N.J. Super. (Ch. Div 1997), both opinions involved
natural fathers who knew of their child's existence from the date
of birth. Here, the natural father, Richard Simpson, in
objecting to the Robinson's adoption, alleged that he first
learned of the birth of his infant son on October 22, 1994.
Thus, he argued that a determination of whether he "substantially
failed to perform the regular and expected parental functions of
care and support of the child, although able to do so," N.J.S.A.
9:3-46, must be based on an analysis of his conduct commencing on
that date.
Plaintiffs countered that they were entitled to the
statutory presumption, embodied in N.J.S.A. 9:3-46, that "[a]
parent shall be presumed to have failed to perform the regular
and expected parental functions of care and support of the child
if the court finds that the situation set forth in [N.J.S.A. 9:3-46a(1)] or [N.J.S.A. 9:3-46a(2)] has occurred for six or more
months."
The essence of plaintiffs' contention is that the statutory
presumption commences at birth, here January 31, 1994, and thus
plaintiffs were entitled to that presumption effective July 31,
1994. Thus, plaintiffs argue that despite Sampson's lack of
knowledge of Baby D's birth, the statutory presumption entitled
them to a judgment, after proof that they met all other statutory
criteria for adoption. Stated differently, plaintiffs argue that
ignorance of a child's existence is, by itself, insufficient to
overcome the statutory presumption. Alternatively, plaintiffs
contend that Sampson failed to perform the "regular and expected
parental functions of care and support of the child" even after
he learned of Baby D's birth.
The trial judge agreed with Sampson. The eleven-day trial
focused upon the entire relationship of Sampson and Todd,
exploring the veracity of Sampson's claim that he did not learn
of Todd's pregnancy or of Baby D's birth until October 22, 1994,
and exploring and evaluating Sampson's conduct after October 22,
1994.
At the conclusion of the trial on March 27, 1997, the judge
rendered a fifty-one page oral opinion. After reviewing in
meticulous detail the testimony of each witness, and then, again
in meticulous detail, explaining why certain portions of the
testimony were not worthy of belief and why other portions of
testimony were substantially credible, the judge concluded,
"Based upon those findings, the Plaintiffs have failed to
demonstrate by clear and convincing evidence that [Sampson]
abandonedSee footnote 2 this child within the meaning of that term within
N.J.S.A. 9:3-46a(1). The judge thus concluded that plaintiffs'
complaint for adoption must be denied. The judge also orally
concluded that visitation between Sampson and Baby D should
immediately commence, and that a transition plan should be
established resulting in Baby D's move from plaintiffs' home in
New Jersey to Sampson's home in West Virginia.
Immediately following the judge's oral decision, plaintiffs
made a motion for a stay of the order transferring the child
pending appeal, a motion for a "best interests hearing,"See footnote 3 and
requested the opportunity to file a motion for reconsideration.
Sampson's counsel immediately contended:
[T]he adoptive parents at this time have no
legal right to restrain the child. The only
person who has the right to restrain that
child or to hold that child is the father. .
. . [T]he adoptive parents have absolutely
no right to a best interest hearing. They
have no right to a custody hearing because
the time that they have held this child is
not custody, it's possession . . . .
The judge delayed the implementation of her ruling to permit the
filing of appropriate motions.
On March 31, 1997, Sampson filed a petition seeking,
pursuant to N.J.S.A. 2A:67-13, a writ of habeas corpus demanding
sole custody of Baby D. On that same day plaintiffs filed a
motion for reconsideration of the judge's oral decision.
Plaintiffs also filed on that day a complaint for custody.See footnote 4
Plaintiffs' motions were heard by the court on April 4, 1997.
The court entered orders on April 7, 1997, granting visitation to
Sampson, denying plaintiffs' motion for reconsideration,
dismissing plaintiffs' count one of the adoption complaint and
declaring the dismissal to be a final judgment, and denying
plaintiff's application for a "best interests hearing."See footnote 5
Thereafter, on April 22, 1997, plaintiffs sought an order from
this court declaring the trial court's order final for purposes
of appeal, for a stay of the transfer of Baby D, and for a stay
of visitation. On May 28, 1997, we granted plaintiffs' motion to
stay the trial court's order regarding custody, denied their
application to stay visitation, and accelerated the appeal.
Our standard of review is articulated in Rova Farms Resort,
Inc. v. Investors Ins. Co.,
65 N.J. 474, 484 (1974):
"[O]ur appellate function is a limited one:
we do not disturb the factual findings and
legal conclusions of the trial judge unless
we are convinced that they are so manifestly
unsupported by or inconsistent with the
competent, relevant and reasonably credible
evidence as to offend the interests of
justice," and the appellate court therefore
ponders whether, on the contrary, there is
substantial evidence in support of the trial
judge's findings and conclusions.
[Ibid. (citations omitted).]
In a non-jury case, such as here, a judgment:
should not be overthrown except upon the
basis of a carefully reasoned and factually
supported (and articulated) determination,
after canvassing the record and weighing the
evidence, that the continued viability of the
judgment would constitute a manifest denial
of justice. . . . It is only upon the
predicate of a determination that there has
been a manifest miscarriage of justice, that
corrective judicial action is warranted.
[Baxter v. Fairmont Food Co.,
74 N.J. 588,
597-98 (1977). See Dolson v. Anastasia,
55 N.J. 2, 6-8 (1969) (noting the appellate
tribunal's deference to the trial judge in
matters "not transmitted by the written
record"); Liqui-Box Corp. v. Estate of
Elkman,
238 N.J. Super. 588, 596 (App. Div.),
certif. denied,
122 N.J. 142 (1990).]
We are therefore compelled, after our thorough review of the entire record, and after careful analysis of the oral arguments presented by counsel, including the amici briefs and oral arguments of amici counsel,See footnote 6 to affirm the trial judge's conclusion denying plaintiffs' complaint seeking adoption of Baby D. However, we conclude that the judge's decision denying plaintiffs' post-trial motion for a hearing was error. A hearing, as envisioned in Sorentino v. The Family and Children's Soc'y of Elizabeth, 72 N.J. 127 (1976) (Sorentino I), and as further amplified in Sorentino v. The Family & Children's Soc'y of Elizabeth, 74 N.J. 313 (1977) (Sorentino II), was mandatory under the facts of this case.See footnote 7 We therefore affirm in part, reverse in part, and remand to the Family Part for further accelerated proceedings, as discussed infra. We shall retain
jurisdiction and shall consider, on an accelerated basis, any
application necessitated by the decision of the Family Part at
the conclusion of the "Sorentino-type" hearing.
When Todd surrendered Baby D to Catholic Charities for adoption, she did not reveal the identity of Baby D's biological father.See footnote 8 Although Catholic Charities placed Baby D in the home of plaintiffs on February 23, 1994, plaintiffs' complaint seeking adoption was not filed until October 4, 1994.See footnote 9 On November 9, 1994, an order was entered scheduling the adoption hearing for December 9, 1994. The hearing was rescheduled for December 23,
1994, due to a scheduling conflict. At that hearing, the court
was informed that after plaintiffs' complaint was filed, a man
identifying himself as Richard Sampson and claiming to be the
father of Baby D had called Catholic Charities to inquire about
the child. Pursuant to N.J.S.A. 9:3-45, the court ordered that
Sampson be given notice of the adoption proceeding. Plaintiffs'
counsel directed a notice to Sampson at his residence in West
Virginia that same day. On January 9, 1995, Sampson, through
counsel, entered a notice of his objection to plaintiffs'
adoption of Baby D.See footnote 10
On March 31, 1995, a case management order was entered by
the court ordering a paternity test to determine whether Sampson
was, in fact, the biological father of Baby D. We glean from the
record that either preceding the management conference or during
the conference Sampson admitted that he learned of Baby D's birth
on October 22, 1994, while serving a one-year prison sentence in
West Virginia for assault. Sampson was released from jail in
early-March 1995. Upon his release from jail, Sampson obtained
employment in June 1995, and voluntarily commenced forwarding
support for Baby D. Plaintiffs rejected Sampson's support
payments and those payments have been deposited to plaintiffs'
counsel's trust account. After a lengthy discovery process,
following the management order, Sampson was confirmed to be the
biological father of Baby D.
On June 13, 1995, Sampson filed a motion for visitation with
Baby D. Sampson's motion requested visitation in New Jersey once
per month. Plaintiffs and the guardian ad litem appointed by the
court to represent Baby D filed objections to this request.
Plaintiffs' counsel's certification stated, in part:
5. Our firm has conducted a preliminary
investigation with respect to the criminal
background of [Mr. Sampson] and the nature of
the offenses in which he has been involved.
We have obtained from the Circuit Court of
Ohio County, West Virginia, and attached
hereto as Exhibit A, the police reports
issued by the Wheeling Police Department . .
. . This activity took place approximately
one year ago and two months after the child
was born and placed for adoption. These
reports are self-evident and constitute prima
facie proof that [Mr. Sampson] is a violent,
abusive and dangerous person who would pose
an extreme emotional and physical threat to
the safety of the child. Such evidence also
directly refutes his self-serving statement
that he is "fit to parent".
On September 8, 1995, an order for a risk assessment for
visitation was entered. The report of the Family Crisis
Intervention Unit was submitted September 25, 1995, finding that
Sampson "readily admits his involvement in domestic violence
incidents, but he does not acknowledge the severity of the
crimes. He blithely dismissed a brutal attack on another
individual as a mistake and excused a stalking complaint because
the charges were dismissed." The assessment concluded that if
Sampson were to be granted visitation, it should be supervised.
Further, the assessment found Sampson could benefit from a
program to assist batterers as well as from a parenting course.
Sampson's motion for visitation was denied.See footnote 11
On October 15, 1996, plaintiffs filed a motion for summary
judgment arguing that the objection to the adoption filed by
Sampson had been untimely as a matter of law. Sampson cross-moved for immediate custody on October 29, 1996. The guardian ad
litem for Baby D filed her report on November 6, 1996, opining
that it was in Baby D's best interests to remain in the physical
custody of plaintiffs. Both motions were denied in a letter
opinion dated November 15, 1996. Trial commenced November 19,
1996. As noted, the trial was held over eleven days between
November 19, 1996, and January 23, 1997, with the judge rendering
her oral opinion on March 27, 1997.
Plaintiffs primary contention is that Sampson's objection was untimely. Baby D was born on January 31, 1994. Sampson first expressed an interest in Baby D when he telephoned Catholic Charities from jail in mid-November 1994. Thus, plaintiffs contend they were entitled to the statutory presumption of N.J.S.A. 9:3-46, which provides:
A person who is entitled to notice . . . shall have the right to object to the
adoption of his child. A judgment of
adoption shall not be entered over an
objection of a parent communicated to the
court by personal appearance or by letter
unless the court finds:
(1) that the parent has
substantially failed to perform the
regular and expected parental
functions of care and support of
the child, although able to do so,
or
(2) that the parent is unable to
perform the regular and expected
parental functions of care and
support of the child and that the
parent's inability to perform those
functions is unlikely to change in
the immediate future.
The regular and expected functions of
care and support of a child shall include the
following:
(a) the maintenance of a
relationship with the child such
that the child perceives the person
as his parent;
(b) communicating with the child or
person having legal custody of the
child and visiting the child unless
visitation is impossible because of
the parent's confinement in an
institution, or unless prevented
from so doing by the custodial
parent or other custodian of the
child or a social service agency
over the birth parent's objection;
or
(c) providing financial support for
the child unless prevented from
doing so by the custodial parent or
other custodian of the child or a
social service agency.
A parent shall be presumed to have
failed to perform the regular and expected
parental functions of care and support if the
court finds that the situation set forth in
paragraph (1) or (2) has occurred for six or
more months.
The trial judge concluded that the operative words "although
able to do so" in N.J.S.A. 9:3-46a(1) connote knowledge of a
child's birth, and, therefore, unless a parent has actual
knowledge of a child's birth, the parent cannot have
"substantially failed to perform the regular and expected
parental functions of care and support of the child." The trial
judge equated failing to perform this obligation with
abandonment.See footnote 12
Predicated upon the trial judge's interpretation of N.J.S.A.
9:3-46a(1), the trial focused upon these essential issues: when
Sampson actually or constructively knew that Todd was pregnant;
alternatively, if Sampson did not know, either actually or
constructively, that Todd was pregnant, when Sampson actually or
constructively learned that Todd had given birth.
We need not recount the testimony of the numerous witnesses
presented at trial. As noted, the trial judge concluded that
Sampson did not actually or constructively know of Todd's
pregnancy or of Baby D's birth until he was informed by Todd
while he was an inmate in a West Virginia jail on October 22,
1994. The trial judge's conclusion could "reasonably have been
reached on sufficient credible evidence in the record"
considering "the proofs as a whole" with due regard to the
opportunity of the one who heard the witnesses to judge their
credibility. State v. Johnson,
42 N.J. 146, 161-62 (1964).
N.J.S.A. 9:3-46a(1) does not expressly define the words
"although able to do so." We have reviewed the legislative
history of the amended Adoption Act and find that the legislative
history is silent and provides no specific clue as to the
Legislature's specific intent.
We discern a basis to interpret the meaning of "although
able to do so" when we compare N.J.S.A. 9:3-46a(1) with N.J.S.A.
9:3-46a(2). As argued by Sampson, subsection (1) deals with
willful failure to maintain a parent-child relationship and looks
to the conduct of a parent in terms of past conduct; subsection
(2) deals with inability to maintain a parent-child relationship
that is "unlikely to change in the immediate future."
It seems quite obvious that where a parent has voiced no
objection to an adoption, the parent's conduct, either past or
future, will not be a consideration before the court when asked
to approve an agency-placed adoption. Six months from the date
of placement, if the adoptive parents are otherwise deemed fit,
the adoption will be approved.
Where a parent does voice an objection, either because the
parent has been specifically identified at or before the date of
surrender and has been notified of the adoption, or when, as in
this case, the parent learns of the birth after the surrender and
before the finalization of the adoption, the parent's past
conduct must be scrutinized. If the parent was "unable to
perform the regular and expected parental functions of care and
support of the child," but that inability is likely "to change in
the immediate future," the adoption must be denied. See N.J.S.A.
9:3-46a(2).
Both subsections (1) and (2) require an analysis of a
parent's conduct. Both statutory subsections hinge on a parent's
abilities: subsection (1) on past abilities; subsection (2) on
future abilities "immediate[ly]" commenced.
Where, as here, the trial judge determines that a natural
father did not know or have reason to know of the natural
mother's pregnancy, and did not know or have reason to know of
the birth of a child he fathered, his parenting conduct or his
failure to act as a parent must be evaluated from the time he
gained sufficient knowledge which would warrant that he "perform
the regular and expected parental functions of care and support
of the child," because it is from that point that he may be
deemed to have been "able to do so." N.J.S.A. 9:3-46a(1).
We are aware of precedent in other jurisdictions which
considers a parent's conduct prior to the birth of a child. See
Robert O. v. Russell K.,
604 N.E.2d 99 (1992).See footnote 13 However, the
scheme of New York's adoption statute permits affirmative action
by an unwed father prior to the birth of a child. But even
Robert O, as we read that decision, is premised upon knowledge of
a pregnancy. We do not reject the concept that pre-birth conduct
may be utilized in scrutinizing a parent's conduct. We simply
determine that it is irrelevant in those situations where, as
here, the natural father is found by credible evidence in the
record to not have actually or constructively known of either the
pregnancy or birth of his child prior to learning of that fact
before the finalization of the adoption of the child.
The decision in this case does not hinge on the
constitutional rights of unwed fathers to notice. See Lehr v.
Robertson,
463 U.S. 248,
103 S. Ct. 2985,
77 L. Ed.2d 614 (1983);
Caban v. Mohammed,
441 U.S. 380,
99 S. Ct. 1760,
60 L. Ed.2d 297
(1979); Quilloin v. Walcott,
434 U.S. 246,
98 S. Ct. 549,
54 L.
Ed.2d 511 (1978); Stanley v. Illinois,
405 U.S. 645,
92 S. Ct. 1208,
31 L. Ed.2d 551 (1972). Here, Sampson obtained notice.
Once his identity was known, he was given the opportunity to
object, which he exercised, and presented evidence that, but for
his lack of prior notice, he would have been "able" to "perform
the regular and expected functions of care and support of the
child." N.J.S.A. 9:3-46a(1).
We have already noted that immediately upon hearing the trial judge's findings of fact and conclusions of law, R. 1:7-4, plaintiffs' counsel orally sought a hearing to determine the "best interests" of Baby D. Plaintiffs' motion was renewed in writing three days thereafter. The trial judge erroneously denied that motion.
In Sorentino I, supra, in an adoption proceeding, the natural mother, then married to the natural father, sought to revoke her pre-marital surrender of a child, predicated upon her contention that her decision to surrender the child for adoption was coerced by an adoption agency. 72 N.J. at 128. Despite a finding by the trial court that the mother was coerced, our Supreme Court refused to order a return of the child to the natural parents without an additional investigation to determine the best interests of the child in light of the potential psychological damage inherent in a custody change. Id. at 131-33. The Court specifically recognized that a "court cannot evade its responsibility, as parens patriae of all minor children, to preserve them from harm," and that "[t]he possibility of serious psychological harm to the child . . . transcends all other considerations." Id. at 132 (citations omitted).
The child in Sorentino I was then thirty-one months of age and, as of the date of the decision, December 17, 1976, had been residing with the prospective adoptive parents since July 9, 1974. Id. at 128. See Sorentino II, supra, 74 N.J. at 317.
Here, Baby D has been residing in plaintiffs' home since February
23, 1994. The trial judge, who rendered her oral opinion on
March 27, 1997, was compelled to abide by the dictates of
Sorentino I.
Our Supreme Court has continued to adhere to its recognition
that serious and enduring psychological harm may befall a child
when separated from an alternate caretaker. New Jersey Div. of
Youth and Family Services v. A.W.,
103 N.J. 591 (1986) (stating
that the potential injury to a child caused by severing his or
her attachment to an alternate caretaker may be considered a harm
to the child which a parent is unable to eliminate). "It has
been recognized that the psychological aspect of parenthood is
more important in terms of development of the child and its
mental and emotional health than the coincidence of biological or
natural parenthood." Sees v. Baber,
74 N.J. 201, 222 (1977).
Further, the Legislature has fully recognized the prospective
harm to a child when separated from an alternate caretaker. See
N.J.S.A. 30:4C-15.1a(2); In re Guardianship of J.C.,
129 N.J. 1
(1992); In re Guardianship of K.L.F.,
129 N.J. 32 (1992).
Although the proceedings here were solely within the context
of the Adoption Act, the effect of the trial court's decision as
to plaintiffs is akin to a termination of putative parental
rights and, most importantly, ignored the potential harm to Baby
D. We reject Sampson's suggestion that Sorentino I is applicable
only to contested custody cases. Sorentino I arose in the
context of a revocation of the surrender of a child for adoption.
Although the natural mother sought custody of her child who she
had placed for adoption, the ultimate decision of the court, both
in Sorentino I, and thereafter in Sorentino II, was an analysis
steeped in precedent in cases having root under the rubric of
adoption, termination of parental rights, and custody. Pervading
each case is the need to address the best interests of the child.
Ignoring that issue by denying plaintiffs' post-oral decision
motion which sought a "best interests" hearing was plain error.
We remand to the Family Part for a hearing to be concluded
by April 1, 1998, on the issue of whether transferring the
custody of Baby D to his natural father will raise the
probability of serious harm to Baby D. In accord with Sorentino
I, supra, and paraphrasing the Court, 72 N.J. at 133, Sampson
will have the burden of proving by a preponderance of the
credible evidence that the potentiality for serious psychological
harm accompanying or resulting from such a move will not become a
reality. The Assignment Judge of Somerset County shall
immediately assign this remand hearing to another judge assigned
to the Family Part.See footnote 14 To assure objectivity, the trial judge,
in his or her discretion, may appoint an impartial expert
witness. Pursuant to Rule 1:7-4, findings of fact and
conclusions of law shall be rendered within one week of the
conclusion of the remand proceedings. All parties shall submit
and simultaneously exchange and file briefs directed to the
findings of fact and conclusions of law within two weeks of the
trial judge's opinion. Oral argument on the decision shall be
heard in this court on May 12, 1998.
Affirmed in part, reversed and remanded in part for further
proceedings consistent with this opinion. We retain
jurisdiction.
Footnote: 1 Because of the issues involved in this case, we will use
fictitious names for all of the parties. Cf. State v. Harris,
141 N.J. 525, 534 (1995).
Footnote: 2 The word "abandoned" is not used in N.J.S.A. 9:3-46a(1).
The trial judge should have concluded that plaintiffs had not
proved that Simpson had forsaken his parental obligations. See
In re Adoption of Children by D.,
61 N.J. 89, 94 (1972).
Footnote: 3 Plaintiffs' counsel did not define the words "best
interests hearing."
Footnote: 4 Although plaintiffs filed a complaint for custody, they
never served that complaint on Simpson and have not pursued that
action.
Footnote: 5 The judge did not define "best interests hearing."
Footnote: 6 The Division of Youth and Family Services ("DYFS"),
American Academy of Adoption Attorneys ("Adoption Attorneys"),
Association for Children of New Jersey ("Association for
Children") and Catholic Charities were granted permission to
appear as amicus curiae. Two amici, DYFS and Adoption Attorneys,
presented oral argument.
Footnote: 7 As noted in Sorentino II, the use of the words "best
interests" was in its "ordinary sense," id. at 316, and did not
implicate the criteria for an award of custody, N.J.S.A. 9:2-4.
The purpose of the remand in Sorentino I was to determine
"whether transferring the custody of the child . . . will raise
the probability of serious harm to the child." 72 N.J. at 133.
See Sorentino II, 74 N.J. at 317.
We note, however, that Sorentino II was decided in 1977.
Since that date, there have been numerous decisions which
consider other factors determinative of the rights and
obligations of parties and the rights of children who deserve
protection. Thus, the trial court on remand is mandated to
consider psychological harm as to Baby D, but the scope of the
hearing shall be left to the trial judge's discretion.
Footnote: 8 N.J.S.A. 9:3-45d provides:
In any case where the identity of a
parent cannot be determined or where the
known parent of a child is unable or refuses
to identify the other parent, and the court
is unable from other information before the
court to identify the other parent, service
on that parent shall be waived by the court.
(emphasis added).
This statutory provision was embodied in the predecessor
adoption act and remains unchanged in the present adoption
statute effective April 27, 1994.
Footnote: 9
As of the date of this placement, plaintiffs were not
permitted to file a complaint for adoption until Baby D was in
their home for a least six months. N.J.S.A. 9:3-47.
The statute, as amended, now provides: "In the discretion
of the approved agency, a complaint may be filed prior to that
time and the court may schedule a hearing to resolve all matters
except finalization of the adoption. The adoption shall not be
finalized under this section unless the child has been in the
home of the adoptive parent for at least six months."
Footnote: 10 On that same date, Todd, through counsel, also filed an
objection to plaintiffs' adoption of Baby D.
Footnote: 11 Although plaintiffs filed an amended complaint for
adoption and joined as party defendants Catholic Charities, Roman
Catholic Diocese of Metuchen and Sister Pat Kelly, charging
negligence, the negligence claim was severed from the adoption
complaint. The pendency of the severed counts, however, rendered
the ultimate decision of the trial court interlocutory.
Footnote: 12 See supra note 2.
Footnote: 13 As noted in Robert O.:
Domestic Relations Law § 111-a(2) provides the father of a child born outside wedlock can qualify for notice of an adoption proceeding in any one of several ways: by having been adjudicated to be the father, by filing a timely notice of intent to claim paternity, by living openly with the mother and child and holding himself out as the father, by having been named the father in a
sworn statement by the mother, by having
married the mother subsequent to the birth,
or by filing with the Putative Father
Registry.
[604 N.E. 2d at 101.] Footnote: 14 This assignment in no way constitutes a reflection upon the trial judge, but is done so as to conform our decision with Sorentino I, supra, 72 N.J. at 133.