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

• Decision Date: 24 February 1953
• Docket Number: No. A--68,A--68
• Citation: 95 A.2d 6,11 N.J. 473
• Parties: LAVIGNE et ux. v. FAMILY & CHILDREN'S SOC. OF ELIZABETH et al.
• Court: New Jersey Supreme Court

Page 473

11 N.J. 473

95 A.2d 6

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

No. A--68.

Supreme Court of New Jersey.

Argued Dec. 8 and 15, 1952.

Decided Feb. 24, 1953.

Alan V. Lowenstein, Newark, argued the cause for the appellant (Riker, Emery & Danzig, Newark, attorneys).

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

Russell E. Watson, New Brunswick, argued the cause for the defendants-intervenors (R. E. & A. D. Watson, New Brunswick, attorneys).

The opinion of the court was delivered by

VANDERBILT, C.J.

This proceeding, in the nature of an application for a writ of Habeas corpus, was brought by the plaintiffs to regain custody of their daughter whom they had placed for adoption with the defendant Society. The Chancery Division of the Superior Court granted the relief sought and ordered that the custody of the child be returned to the plaintiffs. The defendant appealed from this judgment to the Appellate Division of the Superior Court, where the judgment of the Chancery Division was affirmed. The defendant thereafter petitioned the Appellate Division for a rehearing or in the alternative, that the case be remanded to the Chancery Division for the taking of additional testimony with respect to the status of the adoptive parents, the court in its opinion having indicated that such evidence might be of some concern. At the same time the adoptive parents petitioned the Appellate Division for leave to intervene. Both the petition for rehearing and the petition to intervene were denied by the Appellate Division. The defendant then sought certification here, which was granted, as was a motion of the adoptive parents to intervene. The intervenors' motion to remand the case for taking further testimony before the hearing of the appeal was denied.

I

Diane, the child concerned in these proceedings, was born on March 5, 1949, while her father, the plaintiff Joe B. Lavigne, was an undergraduate at the University of California. After his graduation the Lavignes moved to Roselle, New Jersey in June, 1949, when he obtained employment as a chemist in a nearby plant. During the summer of 1949 he became subject to severe emotional disturbances due to a variety of causes--the presence of the child in the home, his wife's poor health resulting from the birth of the child, his difficulty in finding a suitable place to live, and his own hay fever.

On September 26, 1949 the Lavignes took the child, then nearly seven months old, to the defendant Family and Children's Society of Elizabeth, to discuss their problem. Interviews with case workers of the Society took place about once a week over the course of a month. At these interviews the representatives of the Society explored the possibilities of keeping the family together, but both parents were insistent that the child be placed in a foster home as soon as possible. In the first interview Lavigne said that 'he could not stand the child,' that 'she is a damn nuisance,' that 'he did not feel he could ever accept or want any children and that the only thing he could see was to get her out of the home, and to get her adopted.' In a later interview he stated that 'he became very angry with her not only when she made crying noises and unpleasant noises, but also when she gurgled and made cheerful noises.' It was made clear to the case workers that the reason the parents wished to place their child was not financial, but rather because of the stress and strain that the presence of the baby created for the father.

On October 21, 1949 the Society agreed to place Diane in a temporary foster home where she remained until May 26, 1950. During this period of seven months the case workers of the Society interviewed Mr. and Mrs. Lavigne at least twice a month, but the parents visited the child only twice and displayed almost no interest in her welfare, declining to take her back for Thanksgiving or the Christmas holidays and failing to send her any toys or other presents. In one interview shortly before Christmas it was brought out that they had left Diane's name off all their Christmas cards except those sent to people whom they felt would notice the absence. They did not ask to take the child for Christmas, Mrs. Lavigne testified, 'because again there was the problem of bringing her back, which wasn't convenient for everyone.'

In May 1950 the foster parents were leaving on a trip and could no longer care for Diane, so the Society returned her to her parents on May 26, 1950. The Society had to provide a crib and play pen for her because the Lavignes, in acquiring additional furniture, had made no provision for her needs. Lavigne persisted in his desire to place Diane for adoption and Mrs. Lavigne agreed. Diane was returned to the Society on July 31, 1950, when the Lavignes executed a formal surrender and consent to her adoption:

'Surrender

'This is to certify that I, Louise Lavigne, being the mother, and Joe Lavinge, being the father of the female child, Diane Lavigne, born March 5, 1949 in Berkeley, California, do hereby voluntarily surrender and entrust said child to the Family and Children's Society of Elizabeth, Union County, New Jersey, from this date forever.

'I do hereby give and authorize said Society to use and have full power and control of said child and to make and sign all necessary papers for the future care and keeping and maintenance, education and adoption of said child. I promise not to interfere or encourage or allow anyone else to interfere with plans made by said Society for the said child.

'(signed) Louise Lavigne

'Joe Lavigne.'

This instrument was formerly acknowledged by the plaintiffs.

The representatives of the Society testified that they explained their views of the irrevocable effect of the instrument the Lavignes were signing. At the trial 14 months later Lavigne testified that he thought that he might be able to regain the custody of the child even after executing the surrender. On the other hand, he also testified, 'No, we were not told that we could take the child back,' and that he had told his mother of their intention to give up Diane before he signed the surrender. His own psychiatrist testified, 'they said they signed the paper and finally decided to give the child away for adoption because it seemed Mr. Lavigne was unable to cope with the situation and rejected the child in the beginning and was so disturbed by the presence of the child.' Likewise Mrs. Lavigne testified that Mrs. Reiner, a social worker of the defendant Society 'read the paper out loud and explained that it was irrevocable or that it was a strong bond.' Mrs. Reiner was even more clear: 'I took the opportunity to point out that surrender was as final as death, that it was the end and it broke the tie completely and forever. That was clearly understood that morning.' There can be no doubt that in fact the Lavignes understood fully the nature of their act in signing the surrender and that it was in fact the consummation of a purpose determined upon by them months before.

The defendant Society is licensed by the Department of Institutions and Agencies of this State for the purpose of making suitable adoption. It sought out a suitable home for Diane, then a year and a half old, and ultimately placed her for adoption in August 1950 with Professor and Mrs. Henry C. Torrey, of Highland Park, who have a boy nine years old.

In April 1951 Lavigne called at the office of the Society and requested that the child be returned to him. He was informed that the surrender of Diane to the Society was irrevocable. He then consulted the Legal Aid Society of Union County, where he was referred by it to his present counsel, and the action now under review was instituted in June 1951.

At the trial the Society presented the testimony of its two case workers. Each stated that in their first interviews with the parents Lavigne wished to place the child for permanent adoption while Mrs. Lavigne was more inclined to a temporary removal of the child from the house. After the child had been placed temporarily with the foster parents, however, it became obvious that Mrs. Lavigne did not miss the child, felt no maternal instincts toward it, and chose to keep her husband in preference to her child. The plaintiffs now reside in California, where Lavigne has a teaching position from which he has a sufficient income to support his wife and child. They have saved $775 in order to repay the Society for its expenses in connection with the child. Both admitted that they had made a great mistake and insisted that they were quite capable now of providing the child with a suitable home. The psychiatrist appearing for them testified that Lavigne was now well adjusted, sincere and required no treatment though he had 'suffered from what we call a mild or moderately severe character neurosis,' but the 'danger of a relapse is not too serious.' On the other hand, the defendant's psychiatrist testified that the father was 'either psychotic or suffering from a deep-seated character neurosis' and that it was 'extremely unlikely' that he has been cured. He considered it unsafe and unfair to the child to return her to the plaintiffs; 'What is risked is a disaster for the child.'

The plaintiffs do not dispute the fitness of the adoptive parents or their capacity or desire to care for Diane. When it was suggested at the oral argument that it might be desirable to remand the case to the trial court for taking testimony as to the conditions under which Diane was living with the Torreys so that the court would be in a better position to judge what would be best for Diane, the plaintiffs took the position that this would be useless as the Torreys were good people and were giving Diane a good home. The Torreys did not seek to intervene in the trial court, not because of any lack of interest in the matter but because the defendant Society requested them not to do so but to...