(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 8, 1993 -- Decided April 28, 1994
HANDLER, J., writing for a majority of the Court.
The questions presented on this appeal are whether under the private-adoption statute, N.J.S.A. 9:3-48(c)(1), the parental rights of the biological mother should be terminated on the grounds of intentional
abandonment; whether intentional abandonment of a child is subject to reversal; and whether an adoption
may be subject to an agreement that allows the biological parent to maintain a relationship with the child.
Jeanne H. (J.H.) became pregnant in the fall of 1989. She was twenty years old, unmarried and
already the mother of an infant boy. In the spring of 1990, J.H. decided to give up her unborn child for
adoption by Donna and Steve H. In May of 1990, J.H. contacted an attorney to represent her in the
adoption. The parties agreed that J.H. would receive pictures of the child and would be able to visit the
child. J.H. wanted to be a part of the baby's life, to be like a nanny or an aunt to the child. J.H. delivered a
baby boy on July 22, 1990. On July 27th, she surrendered the child to Donna and Steve H., who named the
boy Steven. On October 15, 1990, J.H. signed a consent form for the adoption. During the first year of
Steven's life, J.H. called Donna and Steve H. approximately once a month to obtain photos of the child and
to inquire about his development.
The relevant private-adoption statute provides that to terminate a biological parent's rights, a court
must find "intentional abandonment or a very substantial neglect of parental duties without a reasonable
expectation of reversal of that conduct in the future."
On May 28, 1991, Donna and Steve H. filed a complaint for adoption of Steven. On July 16, J.H.
sent a letter to the Atlantic County Surrogate's Office objecting to the adoption. On July 22nd, J.H. filed a
complaint for custody. The trial court found that the parties had agreed that J.H. could visit with the child
and be informed of the child's progress; that J.H. had knowingly and voluntarily signed the adoption
agreement with legal counsel present; and that J.H. had never communicated with Donna and Steve her
decision to regain custody of the child until she filed her custody complaint in July of 1991. Based on those
findings, the trial court concluded that J.H. had intentionally abandoned her child. The court noted,
however, that the private-adoption statute provides for the reversal of conduct demonstrating intentional
abandonment, and ruled that there was "a reasonable expectation of reversal" of the conduct constituting
intentional abandonment. Accordingly, the court declined to terminate J.H.'s parental rights and denied the
Hs' complaint seeking adoption. The court awarded Donna and Steve H. custody of Steven and granted
visitation rights to J.H.
On appeal, a majority of the Appellate Division interpreted the statute not to permit the reversal of
conduct constituting intentional abandonment. The majority found that J.H. had intentionally abandoned the
child, ordered the termination of J.H.'s parental rights, and authorized the adoption by Donna and Steve H.,
without any rights of visitation for J.H. One judge dissented from the determination of intentional
abandonment and the interpretation of the statute that would foreclose a reversal of conduct constituting
intentional abandonment.
On the basis of the dissent below, J.H. appealed to the Supreme Court as a matter of right.
HELD: Jeanne H. intentionally abandoned her child Steven in surrendering him for adoption and in
consenting to his adoption by Donna and Steve H., and thereafter, in failing immediately,
promptly, or within a reasonable time to withdraw or negate that surrender and consent or to
take any actions sufficient to provide a reasonable expectation that she would reverse the conduct
constituting intentional abandonment. Further, Donna and Steve H. fully and reasonably relied
on the actions of J.H. in intentionally abandoning the child for the purpose of his adoption.
1. Abandonment requires a state of mind that indicates the purposeful repudiation of parental rights.
While surrender and consent are factors that bear on abandonment, they are not dispositive of an intent to
repudiate parental rights. Surrender and consent can be overcome by the biological parent's change of mind,
which must ordinarily occur within a reasonable period of time after the surrender of the child for adoption
and be followed by actions intended to regain parental rights over the child. Here, the record supports the
determination of intentional abandonment. The evidence convincingly demonstrates that J.H. voluntarily and
knowingly gave up the child for adoption. Moreover, within a reasonable time, J.H. did not change her mind
or take any effective action to regain the child and assume full parental responsibilities. Finally, Donna and
Steve H. reasonably and fully relied on J.H.'s decision to surrender and consent to the adoption of Steven.
(pp. 7-14)
2. There is no reason to impute to the Legislature an intent to foreclose a parent who intentionally
abandons his or her parental rights and obligations from demonstrating within a reasonable time that such
conduct has or may change. Thus, under the private-adoption statute, intentional abandonment may be
overcome if within a reasonable time, a reasonable expectation exists that conduct demonstrating a
repudiation of parental rights will be reversed in the future. (pp. 14-17)
3. The record does not support a finding that the biological mother engaged in activity giving rise to a
reasonable expectation of the reversal of the conduct that demonstrated intentional abandonment. J.H.'s
conduct did not sufficiently demonstrate a reasonable expectation that she would perform the regular and
expected parental functions of care and support. Nor did she, within a reasonable time, demonstrate conduct
that would suffice to counteract her intentional abandonment of the child. The appropriate period in which
a biological parent may demonstrate a reversal of the conduct constituting intentional abandonment is a
reasonable time beginning at the time of the surrender of the child for adoption. What constitutes
reasonable time must be determined in light of all the surrounding circumstances. (pp. 17-20)
4. The H's have withdrawn their consent to visitation by J.H. Thus, the Court does not address the
validity of voluntary and consensual open adoption agreements. Visitation rights cannot be predicated on the
parental rights of J.H. in light of the determination that her parental rights must be terminated. No other
grounds justify continued visitation with the child by J.H. Nothing in the record suggests that the child's best
interests require a continuing relationship with J.H. (pp. 20-27)
Judgment of the Appellate Division is AFFIRMED and visitation pending appeal is terminated.
JUSTICE O'HERN, concurring in part and dissenting in part, agrees with the majority that a
parent who has voluntarily surrendered a child to another for private-placement adoption is not foreclosed
before the judgment of adoption from demonstrating that he or she is not forsaking parental obligations.
Justice O'Hern dissents from the finding that no basis exists to terminate J.H.'s parental rights under the J.C.
standards. The child may suffer irreparable injury if taken from Donna and Steve H. That is for a court to
decide. J.H. must be given a chance to present her case on the issue of whether bonding with Donna and
Steve is so strong that it could not be broken.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, POLLOCK, GARIBALDI and STEIN
join in JUSTICE HANDLER's opinion. JUSTICE O'HERN filed a separate concurring and dissenting
opinion.
SUPREME COURT OF NEW JERSEY
A-
85 September Term 1993
IN THE MATTER OF THE
ADOPTION OF A CHILD BY
D.M.H. and S.H.
Argued November 8, 1993 -- Decided April 28, 1994
On appeal from the Superior Court, Appellate
Division.
Iraisa Orihuela-Reilly argued the cause for
appellant, J.H. (J. Paul Mohair, Director,
Cape-Atlantic Legal Services, attorney).
Barry J. Beran argued the cause for
respondents D.M.H. and S.H. (Beran & Beran,
attorneys).
Nancy Goldhill argued the cause for amicus
curiae, Legal Services of New Jersey
(Melville D. Miller, Jr., President,
attorney).
The opinion of the Court was delivered by
HANDLER, J.
The controversy in this case is between a mother, who voluntarily surrendered her newborn baby for adoption but subsequently objected to the adoption, and the adoptive parents,
who seek to terminate the mother's parental rights so that they
can adopt the child.
The surrender of the child for adoption took place
privately. The parties agreed that the biological mother could
have some continuing contact with the child following his
adoption. Almost a year after the surrender of the child, the
adoptive parents brought this action for adoption. At that time,
the biological mother objected and filed a complaint for custody.
The trial court found that the biological mother had
intentionally abandoned her child, but the court refused to
terminate her parental rights because it had a reasonable
expectation that she would reverse her conduct constituting
abandonment. The court therefore dismissed the adoption
complaint, although it ordered custody of the child to remain
with the would-be adoptive parents, subject to visitation by the
biological mother.
On appeal, the Appellate Division determined that the
biological mother had intentionally abandoned her child and that
the abandonment was not subject to reversal, but was final. It
therefore terminated the mother's parental rights and ordered
that the adoption be granted. On the basis of a dissent, which
found that the biological mother had not intentionally abandoned
the child, the mother appealed to this Court as a matter of
right. R. 2:2-1(a)(2).
The central issue on appeal is whether under the private
adoption statute the parental rights of the biological mother
should be terminated on grounds of intentional abandonment. A
related issue is whether under the statute the intentional
abandonment of a child is subject to reversal. This case also
raises the issue of whether an adoption may be subject to an
agreement that allows the biological parent to maintain a
relationship with the child.
Jeanne H. (also sometimes referred to as "J.H.") became pregnant in the fall of 1989. She was then twenty years old, unmarried, and the mother of an infant boy, Bobby. J.H. apparently had misgivings about having or keeping the baby, or both. She had considered abortion in November 1989. In January 1990, she first began to think about giving up the baby for adoption.
Donna and Steve H. (also sometimes referred to as "Hs") wanted to adopt a baby when, after two years of marriage, they realized that they could not have one of their own. Donna H. has two teenage daughters from her previous marriage. She began inquiring at the pediatrician's office where she was employed whether the patients knew of any expectant parents who might be interested in giving up their baby for adoption. Through a mutual acquaintance Donna H. first contacted Jeanne H. in February 1990. The Hs initiated discussions with Jeanne H. about the possibility of adopting her unborn child. The discussions continued throughout the period of J.H.'s pregnancy. Eventually, Donna H. took J.H. to the hospital clinic for prenatal visits.
Jeanne H. apparently reached a decision in the spring of
1990 to give up her child for adoption. Around May 1990, she
called an attorney about representing her in the adoption.
According to J.H., she decided to give up the child for adoption
only on June 29, 1990. The trial court found that J.H. had made
the decision to have the Hs adopt her child "late in the
pregnancy, possibly as late as June of 1990." J.H. stated that
she had had "enough time to think about giving up [her] child to
the Hs in July of 1990" and that hers had not been a "snap
decision."
The parties agreed that Jeanne H. would receive pictures of
the child and would be able to visit him. J.H. stated that she
was going to be able to visit the baby at least "twice a month"
and believed that she would be "a big part of the baby's life" as
a "nannie" or "Aunt Jeannie" to the child. Donna H. stated: "We
had agreed that when the baby was a certain age . . . he would
get to meet his brother and any other children that she had had
later on in years." (Since this litigation began, Jeanne H. had
another child, who currently lives with her and her other son
Bobby, and is engaged to be married). The trial court found that
the parties had agreed that J.H. "could visit with the child and
be informed as to the child's progress."
On July 22, 1990, J.H. delivered a healthy baby boy. A few
days later, on July 27, 1990, she surrendered the child to the
Hs, who named the child Steven. On October 15, 1990, J.H. signed
a consent form for the adoption. The trial court found that J.H.
had knowingly and voluntarily signed the document with legal
counsel present and that she knew "the nature of the consent form
document which she was signing."
During the first year of the child's life, J.H. called the
Hs approximately once a month to obtain photos of the child and
to inquire about the child's development. J.H. testified that
she had called the Hs in September, October, November, and
December of 1990. At another point, however, J.H. stated that
she had asked to see the child "every other week" since the
surrender of her child. The parties also had dinner in January
1991.
The Hs filed their complaint for the adoption of Steven on
May 28, 1991. Shortly thereafter, on July 16, the parties argued
about whether J.H. could see the child to give him his birthday
present. After repeated conversations between Donna H. and J.H.,
Steve H. spoke on the phone with J.H. She said: "Well I'm going
to -- I want to come and get my baby." Steve H., in anger and
frustration, responded: "Well, then come and get the baby." On
the same day, July 16, Jeanne H. sent a letter to the Atlantic
County Surrogate's office objecting to the adoption. On July 21,
1991, the day before the child's first birthday, the parties met
and J.H. saw Steven for the first time since she had surrendered
the child. At that time, as found by the trial court, Jeanne H.
"made a decision to attempt to regain custody of the child." On
the following day, July 22, J.H. filed a complaint for custody.
That complaint alleged that the Hs had "requested that she [J.H.]
take the child back."
J.H. stated that at one point she had wanted "her child
back" starting about four months after the surrender. Her friend
testified that J.H. had wanted the child back "[a]fter she came
home from the hospital." J.H. further explained that she "didn't
want to let them [the Hs] know that I wanted him back, because I
knew if I said anything like that, I would not be able to see my
son at all." At the same time, J.H. said that she did not go
forward with a request for the child's return because she wanted
"to keep my end of the deal." J.H. also claimed that she thought
she had up to one year to change her mind, seemingly basing that
assumption on a conversation with her attorney. Therefore, she
thought she would be able to reclaim the child and take the child
back "permanently."
The trial court found that Jeanne H. had never communicated
to the Hs her decision to regain custody of the child until she
filed her custody complaint. Before July 1991, according to the
court, phone conversations only involved updates on the child's
development, not his return. "There was never a request for [the
child's] return until July of 1991."
The trial court determined that J.H. had intentionally
abandoned her child. However, the court ruled that the private
adoption statute, N.J.S.A. 9:3-48(c)(1), provides for the
reversal of conduct demonstrating intentional abandonment, and
the court determined that it had "a reasonable expectation of
reversal" of the conduct constituting intentional abandonment.
Accordingly, the court ruled that termination of J.H.'s parental
rights was impermissible and denied the Hs' complaint seeking
adoption, but awarded the Hs custody of Steven and granted
visitation rights to J.H.
The majority in the Appellate Division interpreted the
statute not to permit the reversal of conduct constituting
intentional abandonment. According to the majority, the
intentional abandonment of the child by J.H. was final, and that
court ordered the termination of her parental rights and
authorized the adoption by the Hs, without any rights of
visitation for J.H.
The dissent disagreed with the majority's determination of
an intentional abandonment as well as with its interpretation of
the statute, which would foreclose a reversal of conduct
constituting abandonment. Therefore it would have denied the
termination of parental rights.
All inquiries that bear on whether parental rights may be terminated must be considered in light of the extraordinarily strong protections that surround those rights. The right of a biological parent to enjoy a relationship with his or her child is fundamental and constitutionally protected. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed.2d 551 (1972); In re Adoption of Children by L.A.S., 134 N.J. 127 (1993). As
this Court stated in New Jersey Division of Youth & Family
Services v. A.W.,
103 N.J. 591 (1986):
[W]e emphasize the inviolability of the
family unit, noting that "[t]he rights to
conceive and to raise one's children have
been deemed 'essential,' * * * 'basic civil
rights of man,' * * * and '[r]ights far more
precious * * * than property rights'. . . ."
The interests of parents in this relationship
have thus been deemed fundamental and are
constitutionally protected.
[Id. at 599 (quoting Stanley,
supra, 405 U.S. at 651, 92 S. Ct.
at 1212, 31 L. Ed.
2d at 558).]
Accordingly, strict standards must be satisfied before a parent's
rights will be terminated. Santosky v. Kramer,
455 U.S. 745,
762-64,
102 S. Ct. 1388, 1399-1400,
71 L. Ed.2d 599, 612-13
(1982); In re Guardianship of J.C.,
129 N.J. 1, 10 (1992).
The private-adoption statute controlling this litigation provides that to terminate a biological parent's rights, a court must find "intentional abandonment or a very substantial neglect of parental duties without a reasonable expectation of reversal of that conduct in the future." N.J.S.A. 9:3-48(c)(1). Alternatively, a court may terminate parental rights if the parent "has substantially failed to perform the regular and expected parental functions of care and support of the child, which shall include maintenance of an emotional relationship with the child." N.J.S.A. 9:3-46(a).
"Abandonment" in both private and public adoptions requires
a state of mind that indicates the willful or purposeful
repudiation of parental responsibilities. L.A.S., supra, 134
N.J. at 134-35 (noting that despite differences in public- and
private-adoption statutes regarding termination of parental
rights, substantive standards are "roughly equivalent"); In re
Baby M.,
109 N.J. 396, 444-45 (1988) (same). "Abandonment
requires a finding that a parent has willfully foresaken
obligations, although physically and financially able to
discharge those obligations." L.A.S., supra, 134 N.J. at 134;
accord In re Guardianship of K.L.F.,
129 N.J. 32, 39 (1992);
J.C., supra, 129 N.J. at 17. The biological parent "must have
engaged in a course of conduct that 'evidences a settled purpose
to forego all parental duties and relinquish all parental claims
to the child.'" L.A.S., supra, 134 N.J. at 135 (quoting In re
N.,
96 N.J. Super. 415, 426 (App. Div. 1967)).
A court's determination of abandonment is fact-oriented.
Our case law establishes that surrender and consent are factors
that bear on abandonment. See, e.g., Sees v. Baber,
74 N.J. 201
(1977); James B. Boskey, Adoption, The Termination of Parental
Rights and Baby M.,
18 Seton Hall L. Rev. 866, 869, 873 n.44
(1988) (noting that private surrender may be some evidence to be
considered by court in terminating parental rights). Further,
[w]hether 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 re Adoption by B.,
63 N.J.
Super. 98, 103 (App. Div. 1960).]
The court must also consider whether the biological parent
communicated the decision to withdraw consent to the potential
adoptive parents, and whether prompt and diligent actions to
secure the return of the child in order to exercise parental
rights over the child followed the withdrawal of consent. Sees,
supra, 74 N.J. at 214; In re Adoption of One Child by R.A.C.,
154 N.J. Super. 513, 516 (App. Div. 1977), certif. denied,
75 N.J. 607 (1978); In re Adoption of a Child by P. and Wife,
114 N.J.
Super. 584, 591-92 (App. Div. 1971).
The deliberative, informed, and voluntary nature of the
decision to surrender the child and to consent to the child's
adoption tends to demonstrate intentional abandonment. R.A.C.,
supra, 154 N.J. Super. at 518 (noting that biological mother did
not surrender child for adoption on "spur-of-the-moment"); In re
Adoption of a Child by R.D.,
127 N.J. Super. 311, 319 (App. Div.)
(observing that biological parent had decided to put child up for
adoption more than six months before child's birth), certif.
denied,
65 N.J. 293 (1974). Surrender and consent, however, are
not dispositive of an intent to repudiate parental obligations.
Baby M., supra, 109 N.J. at 433-34, 445. A surrender and consent
to adoption can be overcome by the biological parent's "change of
mind." Sees, supra, 74 N.J. at 208. Such a change of mind must
ordinarily occur within a reasonable period of time after the
surrender of the child for adoption. Compare id. at 211-12
(emphasizing that biological mother sought to regain custody of
her child only two days after surrender) with R.D., supra, 127
N.J. Super. at 319 (terminating parental rights where biological
parent raised no objection to adoption for at least six months
until adoptive parents had begun formal adoption proceedings),
and R.A.C., supra, 154 N.J. Super. at 513 (noting that "the four
to five-month period it took [biological mother] to renounce the
objectively critical action of physically surrendering the child
to the [adoptive parents] constitutes the determinative factor").
Moreover, a change of mind usually must be accompanied and
followed by actions intended to regain parental rights over the
child. See, e.g, Baby M., supra, 109 N.J. at 445 (noting that
court will not find intentional abandonment "where the natural
parents, having surrendered their child for adoption through
private placement, change their minds and seek the return of
their child"); Sees, supra, 74 N.J. at 216 (finding surrender and
consent to adoption overcome by "immediate change of mind and
prompt, diligent attempts to regain the child" by biological
parent).
The trial court found that Jeanne H. had intentionally
abandoned her child. It determined that J.H.'s surrender and
consent were deliberative and informed. She "spent sufficient
and substantial time thinking about . . . giving up the child for
adoption" and "had the opportunity for counseling, even if she
chose not to avail herself of that opportunity." J.H. "knew what
she was doing at the time . . . the surrender was made." It was
not a "snap decision." See, e.g., R.A.C., supra, 154 N.J. Super.
at 518. Additionally, three months after the surrender of the
child, on October 15, 1990, J.H. knowingly and voluntarily signed
an adoption consent form, with the advice of counsel.
Furthermore, the surrender and consent were voluntary.
Although J.H. seemed to claim at some points that she was under
financial strain and that her family had exerted some pressure
against her keeping and raising the child, the record includes no
evidence that J.H. was "financially and physically" unable to
discharge her parental responsibilities. See A.W., supra, 103
N.J. at 616. The trial court, moreover, found that the kind of
"stress" that J.H. had experienced did not interfere with her
ability to make a voluntary decision to surrender her baby for
adoption.
The trial court also did not find that the surrender and
consent were negated by a change of mind. Even the dissent in
the Appellate Division believed that J.H. merely had had "second
thoughts" about her decision to surrender the child for adoption.
However, she had not actually experienced a "change of mind"
immediately or even shortly following the decision either to
surrender the child or to consent to his adoption. See Sees,
supra, 74 N.J. at 201; R.A.C., supra, 154 N.J. Super. at 516.
Further, J.H. took no "prompt, diligent steps to regain the
child." See Sees, supra, 74 N.J. at 216. As the trial court
found, Jeanne H. did not "attempt to exercise any parental
function" and "never [made] a request for [the child's] return
until July of 1991."
Moreover, the Hs relied on the decision of the biological
mother to surrender and consent to the adoption of the child.
See B., supra, 63 N.J. Super. at 103. J.H. never confronted the
Hs with a challenge to their rights to adopt the child until she
had decided to contest the adoption complaint. Cf. Baby M.,
supra, 109 N.J. at 446-47 (observing that when adoptive parents
"[know] almost from the very day that they [take the baby] that
their rights [are] being challenged by the natural mother," who
sedulously seeks to regain child, she will be deemed to have
"retained her rights as a mother"); Sees, supra, 74 N.J. at 216
(noting that claims of adoptive parents were almost immediately
challenged by biological mother, who took "prompt, diligent steps
to regain the child"). Further, the child, as found by the trial
court, had "completely bonded with the Hs," and thus found the Hs
to be "his parents."
The dissent believed that Jeanne H. had expressed interest
in the child but "[m]ost" of those expressions of interest had
been "rebuffed" by the Hs, who "wanted to prevent opportunities
for affectionate contact." Nevertheless, J.H. did not wish to
regain custody of her child so that she might assume "the regular
and expected parental functions of care and support for [the]
child," see A.W., supra, 103 N.J. at 616, or become the child's
"parent." Cf. L. 1993, c. 345, § 10 (providing that regular and
expected parental functions include "maintenance of a
relationship with the child such that the child perceives the
person as his parent"). Rather, J.H. wished only to be "a part"
of the child's life. Thus, J.H.'s wishes did not present any
challenge to the claims of the Hs as adoptive parents.
The record fully supports the determination of the
intentional abandonment of the child. The evidence convincingly
demonstrates that Jeanne H's decision to give up the child for
adoption was voluntary, uncoerced, deliberate, and informed.
Moreover, within a reasonable time J.H. did not change her mind
or take any effective action to regain the child to assume full
parental responsibilities. Finally, the adoptive parents
reasonably and fully relied on the biological mother's decision
to surrender and consent to the adoption of the child.
The further issue is whether an intentional abandonment can be reversed. N.J.S.A. 9:3-48(c)(1), to reiterate, provides that a termination of parental rights can be based on "intentional abandonment or very substantial neglect of parental duties without a reasonable expectation of a reversal of that conduct in the future."
The Court, in In re Adoption of D., 61 N.J. 89 (1972), considered a prior private-adoption statute, N.J.S.A. 9:3-18(d), repealed by L. 1977, c. 367, § 20. The Court examined the provision authorizing the termination of parental rights based on
a repudiation of or failure to perform parental responsibilities.
It construed this statute "to require a past course of conduct
amounting to intended abandonment or very substantial neglect of
both parental duties and claims, with no reasonable expectation
of any reversal of that conduct in the near future." Id. at 94-95.
We conclude that the Legislature intended the text of
N.J.S.A. 9:3-48(c)(1) to adopt the Court's interpretation of the
prior private-adoption statute. That view has generally been
shared by courts that have considered the question. The adoption
statute "codified the requirement that there must be, in addition
to past intentional abandonment or substantial neglect, an
absence of a reasonable expectation of a reversal of that conduct
in the future." J.J.P., supra, 175 N.J. Super. at 427; see,
e.g., K.L.F., supra, 129 N.J. at 39; Baby M., supra, 109 N.J. at
427; Sees, supra, 74 N.J. at 210-13.
The majority of the Appellate Division, however, rejected
the view that conduct constituting intentional abandonment may be
subject to a finding of a reasonable expectation of reversal:
"[A]bandonment is abandonment, and one either has abandoned a
child or has not. There are no degrees of abandonment." It
observed further: "Abandonment is a terminal act not subject to
reasonable expectation of reversal."
Although in some cases abandonment may reflect a clear and
definitive decision to repudiate parental responsibilities, and
perhaps may be viewed as a "terminal act," abandonment also may
be, and indeed often is, based on a course of conduct that from
time to time may reflect uncertainty or ambivalence. Thus, as
with conduct suggesting only substantial neglect of parental
responsibilities, conduct that demonstrates intentional
abandonment may change over time. Hence, we perceive no reason
to impute to the Legislature an intent to foreclose a parent
whose course of conduct gives rise to the intentional abandonment
of parental rights and obligations, as opposed to the substantial
neglect of parental duties, from demonstrating within a
reasonable time that such conduct has changed or is likely to
change. Accord L. 1993, c. 345, § 12 (amending adoption statute,
specifically N.J.S.A. 9:3-48(c)(1), to provide for termination of
parental rights if "substantial failure to perform" or "inability
to perform" "regular and expected parental functions of care and
support of a child" is "unlikely to change in the immediate
future").
The Appellate Division majority also emphasized that the
language of the termination provision reflects a legislative
determination to modify the Court's opinion in D., supra, 61 N.J.
at 89, because the Legislature "purposefully omitted a comma
between the 'neglect' portion and the 'reversal of that conduct'
part of the statutory language." We are not persuaded, however,
that the Legislature deleted the comma to impart a different
meaning to the standard for termination of parental rights from
that expounded in D. We can think of no sound reason to limit
the possibility of reversal of conduct only to behavior evincing
neglect but not to conduct constituting intentional abandonment
of parental duties. Thus, under the private-adoption statute, an
intentional abandonment that is itself largely predicated on a
course of conduct may be overcome if within a reasonable time a
reasonable expectation exists that such conduct will be reversed
in the future.
The trial court, as well as the dissent on appeal,
determined that notwithstanding intentional abandonment on the
part of Jeanne H., a reasonable expectation existed of reversal
of that conduct constituting intentional abandonment, and that
termination of J.H.'s parental rights was therefore not
permissible.
According to the trial court, the facts that justified the
determination of reversal were that J.H. "is prepared to support
her child monetarily, to the extent possible on her income; to
provide input and guidance; and to communicate that through
contact and through love." The dissent also noted J.H.'s
"affirmative expressions of continued interest in the child," and
believed that "the trial judge responded to those factors by
concluding that there was a reasonable expectation of reversal."
We conclude that the record does not support a finding that
the biological mother engaged in action giving rise to a
reasonable expectation of the reversal of the conduct that
demonstrates intentional abandonment. Because intentional
abandonment involves the willful repudiation of parental
obligations, a reversal of abandonment must, minimally, involve
conduct that is tantamount to the purposeful resumption of
parental obligations.
Parental obligations encompass the performance of the
regular and expected functions of care and support of the child.
See L.A.S., supra, 134 N.J. at 134; A.W., supra, 103 N.J. at 616;
see also L. 1993, c. 345, § 12 (continuing to recognize that
"substantial failure to perform the regular and expected parental
functions of care and support of the child, although able to do
so," may warrant termination of parental rights).
Jeanne H. did not engage in conduct sufficient to
demonstrate a reasonable expectation that she would perform the
regular and expected parental functions of care and support.
Following her surrender of the child for adoption, her actions
failed to overcome the conduct that amounted to the intentional
repudiation of her parental obligations. As noted, J.H. never
sought to have the child regard her as "his parent." See L.
1993, c. 345, § 10. At no time did she express the wish to
undertake the normal parental responsibilities for the child; she
wanted simply to be a "big part" of his life and to be a sort of
"nannie" or "aunt" to the child. Her interest was only in seeing
the child and in being informed of his progress. Even in
contesting the adoption, although she professed to seek
"custody," J.H. clearly sought essentially visitation rights.
Therefore, Jeanne H. was not confronted with Solomon's test, post
at __ (slip op. at 2), because while she loves her biological
child, she did not seek to assume parental responsibility for
him.
Equally important, J.H. did not within a reasonable time
demonstrate any conduct that would suffice to counteract her
intentional abandonment of the child. The trial court believed
that a reasonable expectation of a reversal of conduct could be
demonstrated at any time between the physical surrender of the
child and the preliminary adoption hearing. We disagree with
that analysis.
The Hs did not file their adoption complaint until ten
months after that surrender. N.J.S.A. 9:3-48(a)(4) provides for
not less than a two-month nor more than a three-month waiting
period after an adoption complaint has been filed before a
preliminary hearing may be scheduled. Thus, the court held the
preliminary hearing more than a year after Steven had been
surrendered. N.J.S.A. 9:3-48(c)(4) also provides for not less
than a six-month nor more than a nine-month waiting period
between that preliminary hearing at which parental rights are
terminated and the final hearing at which adoption is ordered.
Under the trial court's analysis, the earliest time adoptive
parents in private adoptions could seek to attain permanent
custody would be eight months from the time of surrender, and
therefore that would be the latest time within which the
biological mother could endeavor to demonstrate the expectation
of a reversal of her intentional abandonment of the child.
We conclude that the appropriate period within which a
biological parent may demonstrate a reversal of the conduct
constituting intentional abandonment is a reasonable time
commencing from the time of the surrender of the child for
adoption. What constitutes a reasonable time must be determined
in the light of all of the surrounding circumstances. R.A.C.,
supra, 154 N.J. Super. at 513; R.D., supra, 127 N.J. Super. at
319.
We acknowledge that adoptive parents should be encouraged to
file adoption complaints as early as possible. See N.J.S.A. 9:3-44 (providing that private adoptive parents institute actions
with "reasonable promptness," but failure to so act "shall not be
a sole basis for refusal of the adoption"); cf. L. 1993, c. 345,
§ 8 (deleting "reasonable promptness" language of adoption law
and providing that private adoption complaint be filed within
forty-five days after child to be adopted is brought into home).
Nevertheless, whether or not an action is brought promptly by
adoptive parents, the biological parent must within a reasonable
time engage in a course of action that demonstrates a reasonable
expectation that the conduct constituting the intentional
abandonment of the child has been or will be reversed. That did
not occur in this case.
We conclude that the biological mother, Jeanne H., intentionally abandoned her child Steven in surrendering him for
adoption and in consenting to his adoption by the Hs, and
thereafter in failing immediately, promptly, or within a
reasonable time to withdraw or negate that surrender and consent
or to take any action sufficient to provide a reasonable
expectation that she would reverse the conduct constituting
intentional abandonment. Further, the adoptive parents fully and
reasonably relied on the actions of the biological mother in
intentionally abandoning the child for the purpose of his
adoption.
J.H. argues further that the decision to surrender the child for adoption was subject to a mutual agreement that she would be able to maintain certain contacts with the child and that that agreement was not fulfilled by the Hs.
The trial court found that the parties had agreed that Jeanne H. "could visit with the child and be informed as to the child's progress." The court, however, believed that such an agreement had "absolutely no legal effect."
We conclude that this conditional agreement does not give the mother legally-enforceable rights to rescind the decision to surrender the newborn child for adoption because our private- and public-agency adoption statutes do not provide for post-adoption rights, including visitation, on the part of biological parents. The statute governing this case provides, in pertinent part:
a. The entry of a judgment of adoption shall terminate all relationships between the
adopted child and his parents and all rights,
duties and obligations of any person that are
founded upon such relationship, including
rights of inheritance under the intestate
laws of this State, except such rights as may
have vested prior to entry of the judgment of
adoption; provided, however, that when the
plaintiff is a stepfather or stepmother of
the adopted child and the adoption is
consummated with the consent and approval of
the mother or father, respectively, such
adoption shall not affect or terminate any
relationship between the child and such
mother or father or any rights, duties or
obligations based thereupon.
The court has defined the primary purpose of that provision "to protect adoptive parents from post-adoption disruptions in their relationship with adopted children, by natural parents who have surrendered children for adoption or where parental rights have been judicially severed." In re Adoption of Children by F., 170 N.J. Super. 419, 422-23 (Ch. Div. 1979); see C. v. R., 169 N.J. Super. 168 (Ch. Div. 1979); Mimkon v. Ford, 66 N.J. 426 (1975). The new statute maintains the policy that adoption ends the parental role of the biological parents and transfers that role to the adoptive parents. L. 1993, c. 345, § 14(b).
Most courts, including those in New Jersey, tend not to recognize a birth parent's right to visit a child once a final adoption order has been entered to "strangers," that is non-relative, adoptive parents. See Carol Amadio & Stuart L. Deutsch, Open Adoption: Allowing Adopted Children to "Stay in Touch" with Blood Relatives, 22 J. Fam. L. 59, 60 (1983-84); see also B. Lee Phillips, Note, Open Adoption: A New Look at Adoption
Practice and Policy in Texas,
43 Baylor L. Rev. 407, 409 (noting
that open-adoption policy of Texas is not "legally sanctioned
process"). See generally Danny R. Veilleux, Annotation,
Postadoption Visitation by Natural Parents,
78 A.L.R. 4th 219
(1990 & Supp. 1993) (reviewing post-adoption visitation cases).
A few New Jersey courts have considered post-adoption
visitation in adoption agreements between a biological parent and
another biological parent, step-parent, or grandparent. See,
e.g., Kattermann v. DiPiazza,
151 N.J. Super. 209 (App. Div.
1977) (holding that post-adoption visitation of child who was
adopted by grandparents on basis of biological parent's
unconditional consent was required to promote child's best
interests); In re F., supra, 170 N.J. Super. at 425 (ruling that
post-adoption visitation rights to biological father, where
stepfather was allowed to adopt children on biological father's
condition to continued visitation to promote best interests of
child, but noting that "it may be unprecedented in New Jersey for
an order of visitation to be specifically incorporated within a
judgment of adoption by a stepparent"); cf. In re Guardianship of
R.O.M.C.,
243 N.J. Super. 631 (App. Div. 1990) (holding that
public-agency adoption termination of mentally-ill biological
parent's rights that mandated visitation between biological
parent and child inappropriate because applicable termination
statutes "spoke in absolute terms"; noting, however, that
continued contact between biological parent and child possible on
voluntary basis without court order).
The argument proffered by the biological mother may
implicate the issue of whether the parties in this case
contemplated a so-called "open adoption." "An open adoption
occurs when, prior to the adoption, it is agreed in writing that
the child will have continuing contact with one or more members
of his or her biological family after adoption is completed."
Amadio & Deutsch, supra, 22 J. Fam. L. at 61-62; cf. Laurie A.
Ames, Note, Open Adoptions: Truth and Consequences, 16 Law &
Psychology Rev. 137, 137 (1992) (stating that "[a]n open adoption
occurs when the adopted child and one or more members of the
biological family maintain contact after adoption has occurred").
The type of contact provided for in open adoptions ranges from
visits to telephone calls to the provision of photographs.
Joseph R. Carrieri, "The Legal Handbook of the Foster Care
System," Criminal Law and Urban Problems, at 7 (PLI Litig. &
Admin. Practice Course Handbook Series No. 163, 1992).
"Open adoptions" engender sensitive and complex
considerations of public policy. Amadio & Deutsch, supra, 22 J.
Fam. L. at 66; Judy E. Nathan, Note, Visitation After Adoption:
In the Best Interests of the Child,
59 N.Y.U. L. Rev. 633 (1984);
Sandra Gardner, Beyond Records: Open Adoption, N.Y. Times, June
20, 1992 (N.J. Weekly), at 17. Courts have differed with respect
to the clarity and strength of public policy on the issue of
"open adoptions" under their respective statutory schemes.
Compare In re Gregory B.,
542 N.E.2d 1052 (N.Y.) (recognizing
that post-adoption visitation limited to when adoptive parents
are grandparents, siblings, or foster parents), reh'g denied sub
nom. In re Willie John B.,
547 N.E.2d 96 (N.Y. 1989) with Michaud
v. Wawruck,
551 A.2d 738, 740-42 (Conn. 1988) (stating that as
long as "best interests of the child" is framework, "public
policy does not forbid an agreement about visitation rights
between a genetic parent and adoptive parents").
The adoption statute governing this case does not expressly
contemplate an agreement between biological and adoptive parents
to permit a continuing relationship between the former and the
child. Moreover, the recent revision of the adoption statute
rejected a proposed open-adoption provision, L. 1993, c. 345, §
13(d), which would have provided that:
With the consent of the adopting parent the
court may provide in the adoption order for
visitation or other type of communication
with the child after the adoption by any
person who had a relationship with or was
biologically related to the adopted child.
This provision may be modified by the court,
subsequent to the adoption on petition of the
adoptive parent for good cause shown.
See Toby Solomon & James B. Boskey, Adoption Reforms are Signed
Into Law,
3 N.J. Law 55, 77 (Jan. 10, 1994) (reporting that
Legislature explicitly rejected open-adoption provision that
provided for "a visitation schedule or other type of
communication between the birth parent and the adopted child").
As the Senate Statement notes:
[T]he amendments delete language which would
have allowed a court to provide, in an
adoption order, a visitation schedule or
other type of communication between the birth
parent and the adopted child. While it is
not the intent of the committee in deleting
this language to discourage open adoptions,
it was felt that the issue of open adoption
represents a significant policy issue which
should be addressed in separate legislation.
[Senate Judiciary Committee,
Statement to Senate, No. 685
(1993).]
Notwithstanding the absence of legislation, voluntary and
informal open-adoption arrangements do exist and, for some
families, such arrangements may balance the needs of biological
and adoptive parents. See Phillips, supra,
43 Baylor L. Rev. at
409 (noting that open adoptions in Texas are popular, despite not
being "legally sanctioned"). Because the Hs have withdrawn their
consent to visitation by the birth mother, we need not and do not
address or resolve the validity of a voluntary and consensual
open adoption arrangements.
The trial court, in denying the adoption, authorized the Hs
to maintain physical custody of the child. It reasoned that the
child had been in the Hs' continuous custody, at the time of
trial, for "his entire life." The court also found "that this
child is completely bonded with the Hs . . . [and] that he sees
them as his parents." Therefore, the court concluded "that [the
Hs] . . . are, in fact, his parents."
Nevertheless, the trial court authorized continued
visitation for J.H., not because it believed the agreement for
post-adoption contact by J.H. to be in the best interests of the
child or independently enforceable, but because the court
determined that it could not terminate J.H.'s parental rights.
In Baby M., supra, 109 N.J. at 463-68, the Court authorized a
similar disposition. However, in this case, unlike in Baby M.,
visitation rights cannot be predicated on the parental rights of
the biological mother in light of our determination that J.H.'s
parental rights must be terminated.
Further, no other grounds justify continued visitation with
the child by the biological mother. As noted, the agreement
itself cannot, under the circumstances, constitute a basis for
the award of such visitation to J.H. The agreement was intended
only to enable J.H. to be a part of her child's life. Nothing in
the record and the trial court's findings suggests that the
child's best interests might require a continuing relationship
with his biological mother. Cf. J.C., supra, 129 N.J. at 26
(recognizing that public-agency adoptions may exist in which "the
welfare of children . . . reasonably requires continued contact
with natural parents subsequent to guardianship being granted to
DYFS"). The trial court determined, as already noted, that the
child had fully bonded to his adoptive parents and "that Miss H
is to [the child] . . . for all practical purposes a complete
stranger."
The judgment of the Appellate Division is affirmed and visitation pending appeal is terminated.
Chief Justice Wilentz and Justices Clifford, Pollock,
Garibaldi, and Stein join in this opinion. Justice O'Hern has
filed a separate opinion concurring in part and dissenting in
part.
SUPREME COURT OF NEW JERSEY
A-
85 September Term 1993
IN THE MATTER OF THE
ADOPTION OF A CHILD BY
D.M.H. AND S.H.
O'HERN, J., concurring in part and dissenting in part.
I agree with the majority that a parent who has voluntarily
surrendered a child to another for private-placement adoption is
not foreclosed before the judgment of adoption from demonstrating
that he or she has not forsaken parental obligations. That is
the holding of In re Baby M,
109 N.J. 396 (1988). Except in the
case of approved-agency adoptions, a consent to surrender custody
of a child is always revocable.
"[I]n an unsupervised private placement,
since there is no statutory obligation to
consent, there can be no legal barrier to its
retraction." The only possible relevance of
consent in these matters, we noted, was that
it might bear on whether there had been an
abandonment of the child, or a forsaking of
parental obligations. Otherwise, consent in
a private placement adoption is not only
revocable but, when revoked early enough,
irrelevant.
[Id. at 433-34 (quoting Sees v. Baber,
74 N.J. 201, 215 (1977)) (citations omitted).]
Because of that, the only basis on which a termination of
parental rights may be premised is the familiar four-part
standard set forth in In re Guardianship of J.C.,
129 N.J. 1
(1992).
The first finding is that the child's health
and development have been or will be
seriously impaired by the parental
relationship. Secondly, the court must
conclude that the parents are unable or
unwilling to eliminate the harm and that a
delay in permanent placement will add to the
harm. Third, the court should be convinced
that alternatives to terminating parental
rights have been thoroughly explored and
exhausted, including sufficient efforts made
to help the parents cure the problems that
led to the placement. Fourth, all of those
considerations must inform the determination
that termination of parental rights will not
do more harm than good.
That is because although "[t]he statutory descriptions of the
conditions required to terminate parental rights differ[,] their
interpretation in case law, however, tends to equate them." Baby
M, supra, 109 N.J. at 444.
In this case, as in Baby M, "the trial court never found
[the birth mother] an unfit mother * * *." Id. at 445. I must,
therefore, disagree with the majority that grounds for
termination of the birth mother's parental rights have been
demonstrated. All that we have is a confused and hesitant young
woman confronted by the eternal riddle posed by Solomon's test:
which of the two, a birth mother or an adopting parent, most
loves this child?
Recognizing her own weaknesses, Jeanne, the birth mother,
was willing to yield custody of her child to Donna and Steve, the
adopting parents, but did not want to give up all contact with
her child. Her rights to her child should be decided now on a
level playing field. She did not know the rules that governed
her conduct when she met with Donna and Steve. How could she
possibly have understood the complexities of open adoption
outlined by the majority in its opinion or that we would hold
that it is not an option for her? But an open adoption is what
she wanted and what may turn out. In a private-placement
adoption, a mother who wishes to remain in contact with her child
cannot realistically be shut out of the child's life. Some day,
somehow, they may or will be reunited.
Jeanne was a twenty-year-old single parent of a two-year-old
child when she conceived her second child. She received public
assistance. Jeanne had only a ninth-grade education. She was
living in the home of her father and step-mother. Her parents
gave her no emotional support. In fact, her father told her that
she would have to move out if she kept the baby. Jeanne thought
of an abortion, but she chose life for her child and in January
1990 began to consider adoption as a means of providing for the
welfare of her unborn child.
In February 1990, through a friend of Jeanne, Donna
communicated with Jeanne about the possible adoption of her
child. Jeanne, Donna, and Steve discussed the adoption. Donna
convinced Jeanne that her baby would have a better life in her
home. Jeanne agreed to give Donna and Steve her baby for
adoption provided that she would still have contact with the
baby, that the baby would know her as next-of-kin, and that the
baby would know his older brother.
On July 27, 1990, five days after delivering her son, Jeanne
surrendered her newborn to Donna and Steve for a private
adoption. On October 15, 1990, with the advice of counsel,
Jeanne signed a consent form for that adoption. Jeanne
understood she would have six months to a year after surrendering
the child to regain custody. She was correct.
Where a surrender [of a child] is given
to one other than an approved agency, the
effectiveness of the surrender is even more
open to question. There is no statutory
authority for honoring such a surrender, and
the language of the adoption statute makes it
quite clear that such surrender has no per se
legal effect. The surrender may serve as
some evidence of the intent of a parent to
surrender his or her parental rights, so that
a child may be adopted, or of the failure of
the parent to meet the standards for
objecting to an adoption, but it does not, in
and of itself, provide a basis for the
termination of parental rights. The court
must, in the course of the preliminary
hearing in an adoption action, confirm the
failure of the parents to meet the standards
for objecting to the adoption or determine
that the parents have lost their rights to
the child under the standards set forth in
the statute.
[James B. Boskey, Adoption, The Termination
Of Parental Rights And Baby M,
18 Seton Hall
L. Rev. 866, 869-70 (1988) (footnotes
omitted).]
Certainly, the idea of an "abandonment" of Jeanne's child on the
basis of her surrender is "open to question."
As the trial court found and the majority states, "The
parties agreed that Jeanne H. would receive pictures of the child
and would be able to visit him." Ante at ___ (slip op. at 4).
Jeanne believed that even though she had no physical custody of
her baby, she would still be "a big part of the baby's life," and
was not totally abandoning her child. Jeanne testified that
after surrendering the child, she made numerous telephone calls
to Donna and Steve requesting pictures of the child and
permission to see him. Donna denies receiving such requests but
states she provided pictures and a videotape of the child to
Jeanne.
During the months after surrendering her child and before
Donna and Steve filed their complaint for adoption, Jeanne had
second thoughts about giving up her child, and wanted her child
back. Jeanne never told this to Donna and Steve because she
wanted "to keep [her] end of the deal." In early 1991, however,
she communicated with the attorney, who advised her when she
first considered allowing Donna and Steve to adopt her child.
She requested the attorney's assistance to revoke her consent to
the adoption and gain custody of her child, but the attorney
refused to continue representation. She communicated with other
attorneys; however, she had no money with which to hire a lawyer.
On learning that she might be eligible to obtain the assistance
of Legal Services, she immediately communicated with that office.
Within months of the complaint for adoption, Jeanne sent a
letter to the Atlantic County Surrogate objecting to the
adoption. Through the assistance of Legal Services, Jeanne filed
a complaint for custody on July 22, 1991. Subsequently, she
filed a motion for visitation.
Jeanne had always tried to maintain communication with her
child. She continuously talked with Donna and Steve by telephone
concerning the health, welfare, and development of the child.
She had dinner with Donna and Steve in January 1991. As the
majority notes, Jeanne stated that she asked to see the child
"every other week" from the time of surrendering her child.
However, not until the day before the child's first birthday did
Donna and Steve permit Jeanne to see her son.
Although Jeanne surrendered physical custody of her child,
she never "abandoned" him and had not "forsaken [her] parental
obligations" when she placed her child in a home with people whom
she believed performed "the natural and regular obligations of
care and support of [her] child." N.J.S.A. 9:2-13(d). Nothing
in this record indicates that Jeanne seriously impaired or will
seriously impair her child's health and development. Is she to
be condemned because she sought, without full knowledge of the
law, to provide a better place for her child to grow up? This
record contains no evidence of harm to the child from exposure to
his mother Jeanne. In short, no basis exists to terminate
Jeanne's parental rights under the J.C. standards, except for the
possible harm due to psychological bonding.
Because this child has lived with Donna a