Adoption of O, In re

• Decision Date: 24 May 1965
• Citation: 210 A.2d 440,88 N.J.Super. 30
• Parties: In the Matter of the ADOPTION OF O.
• Court: New Jersey County Court. New Jersey County Court — Probate Division

Page 30

88 N.J.Super. 30

210 A.2d 440

In the Matter of the ADOPTION OF O.

Essex County Court

Probate Division, New Jersey.

May 24, 1965.

John A. Matthews, Jr., Newark, for petitioner Catholic Children's Aid Association.

Maurice M. Krivit, Jersey City, for the wife (Krivit & Krivit, Jersey City, attorneys, Spencer N. Miller, Jersey City, on the brief).

Frank Palmieri, Orange, for the husband.

CAMARATA, J.C.C.

This matter arises on a petition filed December 10, 1964 by the Catholic Children's Aid Association of New Jersey, hereinafter referred to as the agency.

The agency alleges fraud by the adopting parents and seeks to vacate the judgment of adoption entered by this court on August 19, 1964 and a return of the minor child (now 27 months old) to the agency.

In view of the nature of the allegations in the petition it is not set forth in full; it is incorporated by reference; it is a part of the adoption proceedings.

Defendant adopting mother, hereinafter referred to as W, filed an answer to the petition denying the allegations and lack of jurisdiction by the court to hear or determine the petition.

The agency contends that it is an arm of the court and that a fraud committed by the adopting parents on the agency would be a fraud on this court.

Research fails to show a case in New Jersey exactly on point where an adoption decree has been vacated; nor is there a provision in the adoption statutes permitting the application now before the court. While the point was raised in one case in New Jersey, it was not necessary for the court to decide it. The court there indicated that where an adoption is brought about by fraud or misrepresentation, the court has inherent power to control its own judgments. In re L's Adoption, 56 N.J.Super. 46, 151 A.2d 435 (Cty.Ct.1959). R.R. 4:62--2 does not limit the power of a court to set aside a judgment or proceeding for a fraud upon the court.

The rationale of In re L's Adoption, supra, was followed in In re Doe's Adoption, 197 A.2d 469, 474 (Del.Orph.Ct.1964), and in In re Emery, 191 Cal.App.2d 428, 12 Cal.Rptr. 685 (D.Ct.App.1961).

The N.J. adoption laws, N.J.S.A. 9:3--17 et seq., effective January 1, 1954, provide for a recommendation to be made by an agency to the court as to whether or not an adoption should be approved. N.J.S.A. 9:3--23, subd. A(4)(b), 9:3--24, subd. C, 9:3--26, 9:3--27. In granting judgments of adoption our courts rely on the recommendations of an agency. In conclude:

(a) An approved agency is an arm of the court.

(b) Any fraud perpetrated on an agency is a fraud on the court.

(c) The court has jurisdiction to hear the instant matter.

On or about November 19, 1964 the adopting father, hereinafter referred to as H, filed a petition in this court and cause seeking the revocation of the final judgment of the adoption entered August 19, 1964, alleging fraud by W. Motion thereon was returnable November 24, 1964. The charges against the wife in H's petition, if true, are scandalous and charge moral turpitude. These charges are not set forth at length; they are part of the adoption proceedings and are incorporated herein by reference.

On the return day of H's motion it was ascertained that on October 27, 1964 W had filed a suit for separate maintenance against H in the Superior Court, Chancery Division, Hudson County. No reference is purposely made to the names of the parties or the docket number in that action. No action was taken by this court on H's petition pending a determination in the separate maintenance action. W's basis for her cause of action was as set forth in paragraph 2 of her complaint; it charges eight acts of extreme cruelty, the first specific date being in the month of May 1963--the last September 29, 1964. From the complaint it appears that H and W cohabited with each other until on or about September 29, 1964. On December 7, 1964 W amended her separate maintenance action to one for divorce on the grounds of extreme cruelty, identical with those acts alleged in her separate maintenance suit. H in his answer to W's amended complaint admitted that he and W cohabited as therein alleged. The judgment Nisi was in favor of W and granted her custody of the adopted minor child.

This court took testimony on the agency's petition on April 28, 1965, the witnesses being two of its case workers assigned to H and W and the supervisor of the agency. No proof was offered by the agency as to any of the allegations set forth in H's petition (seeking to set aside the judgment of adoption), nor was there any proof that W was and is an unfit person to have the child or that the child is not properly being taken care of. H did not testify, although he and his attorney were present.

The agreement to place the child for adoption was signed by H and W on May 7, 1963. It did not require H and W to make known to the agency any changes in their situation.

The case workers were at all times satisfied that H and W were fit persons to adopt the child. They made several visits to H and w's home and recommended the adoption to the court. The written recommendation is confidential and is not set forth. Several days before August 19, 1964, the date of the adoption hearing, one of the workers telephoned and spoke with W, who asked H for certain information--indicating that H was there. Both H and W testified on August 19, 1964 in connection with the proposed adoption. The adoption was approved.

I have examined the agency's case record. It confirms the conclusion of the case workers that H and W were fit persons to adopt the child.

The agency's supervisor was questioned by the court as to what the agency's policy would have been in the event it had notice that there was any difficulty between H and W....