Lavigne v. Family & Children's Soc. of Elizabeth

• Decision Date: 09 May 1952
• Docket Number: No. A--45,A--45
• Citation: 88 A.2d 640,19 N.J.Super. 401
• Parties: LAVIGNE et ux. v. FAMILY & CHILDREN'S SOC. OF ELIZABETH.
• Court: New Jersey Superior Court — Appellate Division

Page 401

19 N.J.Super. 401

88 A.2d 640

LAVIGNE et ux. v. FAMILY & CHILDREN'S SOC. OF ELIZABETH.

No. A--45.

Superior Court of New Jersey, Appellate Division.

Argued April 28, 1952.

Decided May 9, 1952.

Donald G. Davis, Elizabeth, argued the cause for plaintiffs-respondents.

Edward Terner, West Orange, argued the cause for defendant-appellant and for applicants to intervene.

Whittemore, Porter & Pollis, Elizabeth, for defendant-appellant.

Edward Terner, West Orange, for Children's Aid & Adoption Soc.

Doris H. Webster, Highland Park, for applicants to intervene.

Before Judges EASTWOOD, BIGELOW and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.C.C.

The natural parents involved in this proceeding surrendered their child to the appellant society for purposes of adoption. Thereafter the society placed it in the custody of prospective adoptive parents. Before adoption proceedings were instituted and during the probationary period of this custody, a change came about in the unfortunate conditions which induced the natural parents to make the surrender. They then repented their decision and sought the return of the child. Following a hearing, Chancery Division directed its return.

On appeal the trial court's determination was affirmed and this Court declared (18 N.J.Super. 559, 87 A.2d 739, 747 (App.Div.1952)):

'* * * it clearly appearing that the plaintiffs are fit and proper persons to have their child, that their present economic situation is sufficiently established to provide a suitable home for her and to the end that she may be reared in the atmosphere and the guidance of her natural parents, her best interests demand that she be returned to their custody.'

In the course of the opinion reference was made to the fact that the prospective adopting parents are not parties to the action, that the record disclosed no proof as to who they are, their financial position, the kind of home they maintain, and what attachments, if any, have been formed. Thereafter, and before the execution of the mandate, the society filed a petition for rehearing, requesting that:

'a. It be afforded the opportunity to present evidence either by direct testimony in this Court or in the court below or by an independent investigation by an agency appointed by this Court to submit a report to this Court regarding:

'(1) The status of the adopting parents and their home,

'(2) The financial position of the adopting parents,

'(3) The child's status in their home and her attachment to it,

'(4) The condition and health of the child when she came to the adopting parents' home, and

'(5) The progress said child has made while in that home and the effect of her removal at this time.

'b. Any further evidence which this Honorable Court considers pertinent regarding the best interests of the child involved.'

The prospective adopting parents also moved for leave to intervene, to adopt the petition for rehearing 'as their pleading' and to participate in whatever proceedings were ordered by the court.

Under the practice a rehearing in an appellate tribunal is based upon the record then on file. Whatever the effect of Rule 1:4--10 with respect to the authority to sit as a court of original jurisdiction, research has disclosed no case where evidence which was available at the time of the trial was permitted to be added to the record after argument and disposition of an appeal in order to buttress an appellant's position that the trial court erred. And the orderly administration of justice would not permit such practice. Matthison v. Payne, Director General, 98 N.J.L. 383, 119 A. 771 (Sup.Ct.1923), affirmed 99 N.J.L. 285, 122 A. 926 (E. & A.1923).

In certain situations this court has the undoubted power to remand a record to the trial court for the taking of additional testimony. However, this power should not be exercised merely for the purpose of having cumulative evidence added or of receiving evidence which could have been produced originally and which is not in the category of newly discovered proof.

On the argument of the petition and the motion certain significant admissions were made. Both the agency and the applicants for leave to intervene admitted that the prospective adoptive parents were aware of the demand for the return of the child and the refusal to comply with the demand. When the Habeas corpus proceeding was brought the prospective parents were notified immediately. They and their attorney conferred with the society about the matter and the deliberate decision was reached that they would not intervene, participate, offer any evidence or appear as witnesses at the hearing. They and their attorney were present at all of the hearings, but merely as observers. The brief submitted in support of their position here says: 'They have been following every aspect of the case and have employed a lawyer to help them in...