Adoption of Two Children by H.N.R., Matter of

• Decision Date: 27 October 1995
• Parties: , 64 USLW 2351 In the Matter of the ADOPTION OF TWO CHILDREN BY H.N.R.
• Court: New Jersey Superior Court — Appellate Division

Page 1

285 N.J.Super. 1

666 A.2d 535, 64 USLW 2351

In the Matter of the ADOPTION OF TWO CHILDREN BY H.N.R.

Superior Court of New Jersey Appellate Division.

Argued Sept. 12, 1995.

Decided Oct. 27, 1995.

Barbara S. Fox, Upr Montclair, argued the cause for appellant (Harris, Dickson, Buermann, Tanner, Ashenfelter, Slous, Fox & Boyd, attorneys; Ms. Fox, on the brief).

Annamay T. Sheppard, Newark, and Marsha Wenk, Belvidere, submitted a brief on behalf of amicus curiae American Civil Liberties Union of New Jersey.

Before Judges PRESSLER, KEEFE and WEFING.

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

The fundamental question raised by this appeal is whether the adoption laws of this State permit the adoption of children by the same-sex cohabiting partner of their natural mother without affecting the mother's parental rights. We disagree with the trial court's negative response to this question and, consequently, reverse the judgment below dismissing plaintiff's adoption complaint. We are, moreover, persuaded that, since the adoption here sought plainly serves the best interests of the children, the judgment of adoption must be granted.

The issue arises in the context of a non-traditional family unit, which, according to the literature, is one of increasing currency. ¹ As appears in this record, plaintiff Hannah (a fictitious name) is the committed partner of Mary (a fictitious name). They have been living together for some fourteen years, and both regard their relationship as permanent. Both women are trained radiation therapists. Hannah has further training in oncological radiation and is now employed as the administrative director of the department of radiation oncology in a New Jersey hospital. The two women own a home in a prosperous suburban community which they purchased as joint tenants with right of survivorship. Most of their other assets are in joint ownership as well.

From the outset of their relationship, the women discussed the prospect of having children, and that was their intention. Hannah, the elder, attempted to conceive by anonymous-donor artificial insemination but was unsuccessful. Mary then attempted to conceive in the same fashion and was successful. During Mary's pregnancy, the women agreed that since Hannah's income was the higher, Mary would remain at home as the primary care giver and Hannah would continue to work to support the family. Hannah was much involved with the pregnancy, attending Lamaze classes with Mary, who was delivered of twins, a boy Z. and a girl M., by Caesarean section in August 1992. Hannah was present during the delivery. Since the twins were premature, they required neonatal care, remaining in the hospital for some seven weeks after their birth. Mary and Hannah took turns in attending the children at the hospital.

From the time the twins were brought home, Hannah has been fully involved in their care and nurturing. She was able to take a month of accumulated leave at that time and participated equally with Mary in their first weeks at home. She has since arranged her work schedule so as to enable her arrival home each day by 3:00 or 3:30 p.m., and thus to participate in dinner preparations and the children's late afternoon and bedtime care and activities. According to the report of the Children's Aid and Adoption Society, appointed to make a report and recommendation to the court when the adoption complaint was filed, the children, now three years old, appear equally bonded to both women. They call Hannah "Mom" and Mary "Mommie." Decisions respecting the twins' upbringing are made jointly by the two women. The extended families of both women, who are supportive of their family unit, are much involved in their lives, sharing visits, holidays, and the like. Hannah has taken particular pains to foster a relationship between the twins and her four nephews, two teenagers and two young adults.

The women have given careful consideration to the future. They have set aside a college fund for the twins. They have provided for each other and the children by will. They have discussed the possibility of their future separation, an event neither now believes is remotely likely, and have agreed that should that occur, Mary would remain the primary custodial parent and Hannah would have liberal visitation rights as well as the continued support obligation.

Both women are strongly in favor of Hannah's adoption of the twins. Although neither foresees that a judgment of adoption will effect any fundamental change in the way the family lives, they are both desirous of creating the legal relationship between Hannah and the children in order to confer dependency benefits on the twins, such as coverage under Hannah's employer-provided health insurance, to confer parental rights on Hannah, and, in general, to assure the continuity of the custodial and financial rights and responsibilities characterizing the parental relationship. Mary executed a consent to Hannah's adoption of the children, and, accordingly, Hannah filed this adoption complaint.

The report of the Children's Aid and Adoption Society, admitted into evidence, which is strongly supportive of Hannah's adoption, describes the family members and their functioning as a family in part as follows:

Since their birth, the twins have been under the continuous care and supervision of [Mary] and [Hannah] with [Mary] acting as their primary care giver. This plan was made prior to the children's birth.

The twins have been monitored closely by their physicians since their premature birth ... necessitated their spending the first seven weeks of their life in the neonatal intensive care unit of the hospital....

Z. and M. have had all age appropriate immunizations and are generally healthy. The twins sleep well and have excellent appetites. Each child has a bedroom beautifully decorated in appropriate childhood motifs with M. having a feminine design and Z. a masculine design.

.... [Hannah] and [Mary] have shared in all the joys and trauma of having children.... While the twins were hospitalized one or the other was at their bedside almost constantly. Both women share not only in the children's care but also in their discipline. They themselves were raised in loving supportive families that did not use physical punishment. They agree that techniques such as re-direction and patient explanation are effective for young children and deprivation of privilege most appropriate for older. They heartily disapprove of physical punishment.

Although [Hannah] and [Mary] have a long term committed relationship, they have looked to all future possibilities. They not only have provided for the twins in their wills but have also agreed in writing that in the event of their separation, the twins would remain with [Mary] and [Hannah] would have liberal visitation and input into their lives. In the event of an untimely death, they have confidence in each other's ability to raise the twins as a single parent.

[Hannah] and [Mary] plan to be open and honest with the children about the circumstances of their birth and non-traditional family composition. Their plan is to provide the children with information suitable to their ability to understand. More detail is to be furnished as the twins mature. Both parents want the children to have good self esteem and a good sense of gender identity. They will provide the children every opportunity for an excellent education and development of skills and talents.

The consequent recommendation of the Children's Aid and Adoption Society concludes as follows:

[Hannah] is seeking to legally adopt Z. and M.... The children have been in the continuous custody of [Mary] and [Hannah]. These parents provide traditional love, nurture, physical and financial care of their children. This is reflected by the excellent growth and development of both children.

[Hannah] is an intelligent, sensitive person who enjoys all aspects of parenthood. She wants to provide love, security, and an enriching family life for the children.

It would appear from the agency's limited contact with this family that it is in the best interest of Z. and M. to be adopted by [Hannah].

The trial judge denied the adoption on the ground that same-sex partner adoptions are not permitted under the New Jersey adoption statute. We conclude, however, that his reading of the statute was erroneously over-restrictive.

We begin our analysis with the adoption statute itself, noting that N.J.S.A. 9:3-37 requires that the "act be liberally construed to the end that the best interests of children be promoted." That is, of course, our touchstone. We further note that the statute is silent in respect either of joint adoption by unmarried persons or adoption by an unmarried cohabitant of his or her partner's child with the partner's consent. Since the statute does not expressly prohibit such adoptions, the question is whether it should be read as permitting them if they will serve the children's best interests.

We are satisfied that there are only two other relevant statutory provisions whose construction informs that decision. First is N.J.S.A. 9:3-43a, which permits "any person" to institute an action for adoption, provided only that if the person is married, the action be brought either jointly with or with the consent of the person's spouse. Clearly, in this jurisdiction at least, an unmarried person, either heterosexual or homosexual, qualifies. Compare M.P. v. S.P., 169 N.J.Super. 425, 404 A.2d 1256 (App.Div.1979) (mother's homosexuality does not require loss of post-divorce custody). The second relevant provision is N.J.S.A. 9:3-50, prescribing the legal effects of a judgment of adoption and providing that entry of the judgment absolutely terminates the parental rights of the natural parents unless, to the extent here pertinent, the plaintiff "is a stepfather or stepmother of the adopted child and the adoption is consummated...