IN THE MATTER OF THE ADOPTION OF A CHILD BY D.M.H. AND S.H.
Case Date: 04/28/1994
Docket No: SYLLABUS
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(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
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 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.
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."
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."
That complaint alleged that the Hs had "requested that she [J.H.]
take the child back."
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.
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):
[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)).
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).
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).
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.
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."
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 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.
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").
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.
conduct that is tantamount to the purposeful resumption of
parental obligations.
child, she did not seek to assume parental responsibility for
him.
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 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).
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).
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").
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:
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
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.
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.
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.
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.
[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.
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.
[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."
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.
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. |