Adoption of G, In re

• Citation: 89 N.J.Super. 276,214 A.2d 549
• Decision Date: 29 October 1965
• Docket Number: No. 1604,1604
• Parties: In the Matter of the ADOPTION OF G.
• Court: New Jersey County Court. New Jersey County Court — Probate Division

Page 276

89 N.J.Super. 276

214 A.2d 549

In the Matter of the ADOPTION OF G.

No. 1604.

Monmouth County Court

Probate Division, New Jersey.

Decided Oct. 29, 1965.

Chester Apy, Red Bank, for plaintiffs (Abramoff & Apy, Red Bank, attorneys).

Charles L. Morgan, West Long Branch, for Family and Children's Service, Inc.

Joseph N. Dempsey, Asbury Park, guardian ad litem for the infant G.

FISHER, J.C.C.

Plaintiffs move to vacate a judgment of adoption entered in the Monmouth County Court on March 12, 1965.

The following narrative recites the facts as the court finds them:

The adoptive parents are fine, upstanding young people of better than average means. On January 22, 1960 this couple adopted twin boys. These youngsters are normal, healthy and active. In 1963 plaintiffs decided to apply to an approved agency for a little girl, and were successful. This baby was born on October 7, 1963 and was surrendered to the approved agency on October 21, 1963. At birth the child was in apparent good condition, but weighed only 5 lbs. 3 ozs. Before the little girl was placed in plaintiffs' home she was regularly examined by a pediatrician. In addition to this, a further examination was made of the child by a psychologist when she was three months old. Plaintiffs obtained the baby on January 21, 1964 and they have had her with them since that date. On the day the baby was accepted she was taken by plaintiffs to a physician for an examination and was seen by the same doctor every month thereafter regularly and between these dates when necessary.

The baby appeared well with the exception that when she became of an age where a normal baby would sit up, she did not. Concerned because of the child's apparently slow development the adoptive mother took the baby back to the doctor in July 1964. X-rays were ordered and found to be normal. Another physician was consulted and he found the baby to be normal except for the slow development.

In January 1965 the child had been in the care of plaintiffs for one year, thus satisfying the statutory requirement. Plaintiffs then filed a complaint for adoption in this court on February 26, 1965. Final hearing took place on March 12, 1965. Plaintiffs were advised at that time of the seriousness of this step and the fact that the infant would be their daughter from that time forward.

After the adoption the plaintiffs noticed the continued slow development of the child and were finally referred to Dr. D.M., a specialist and concededly an expert in the field of pediatric neurology. Upon the completion of his examination the doctor confronted plaintiffs with the tragic revelation that the baby was retarded to such an extent that she would eventually require commitment to an institution. With this dilemma facing them, plaintiffs sought the advice of counsel and this motion ensued. By consent of the attorneys Dr. M.'s deposition was taken and that testimony clearly indicates that the child is uneducable and trainable only to a limited extent. The chances of her being an independent individual are sharply limited. Her intellectual ability when she is fully matured will be no greater than 50% Of normal and the limit of her self-sufficiency will be walking, feeding, toilet needs and some communication. Dr. M. felt that it would make little difference to this child whether she remained in plaintiffs' home or was placed in an institution.

At the request of and by order of the court a guardian Ad litem was appointed for the baby and is serving commendably and without fee.

Testimony was taken in this case on September 24, 1965, at which time plaintiffs were called as witnesses. The court also requested that the director of the approved agency involved be called as a witness. Plaintiffs presented their problem to the court and in so doing were impressive by their candor and fairness. They felt that although the twin sons were bearing up well under this problem, as time went on both the financial burden which would be imposed upon the parents and the time necessary to care for the infant would have an adverse effect on the other children.

The director's testimony consisted chiefly of what would occur should this adoption be vacated. The child would be returned to the custody of the agency and the natural mother would be notified with regard to the future care of the baby. The agency has no facilities to cope with this problem and the State would then become involved as well as the natural mother.

At the outset counsel for the agency took the position that this court has no jurisdiction to vacate a judgment of adoption, pointing out that the intention of the act is well defined in N.J.S.A. 9:3--17, but is completely silent as to any machinery to set aside these judgments. The agency admits, however, that the court would have jurisdiction where fraud is alleged.

The question of jurisdiction has been raised in two reported decisions in our State. In Matter of Adoption of L, 56 N.J.Super. 46, 151 A.2d 435 (Cty.Ct.1959), holds only that in view of the facts recited therein the court would not vacate the judgment even if it...