N, In re

• Decision Date: 18 August 1967
• Docket Number: No. A--1232,A--1232
• Citation: 233 A.2d 188,96 N.J.Super. 415
• Parties: In the Matter of the Adoption of Children by N. M, Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 415

96 N.J.Super. 415

233 A.2d 188

In the Matter of the Adoption of Children by N. M, Appellant.

No. A--1232.

Superior Court of New Jersey, Appellate Division.

Argued Dec. 19, 1966.

Decided Aug. 18, 1967.

Harvey Weissbard, Orange, argued the cause for appellant (Querques & Isles, Orange, attorneys).

Morris Dobrin, Fair Lawn, argued the cause for respondent (Dobrin, Muscarella & Saunders, Fair Lawn, attorneys, Robert E. Pollan, Passaic, on the brief).

Before Judges LEWIS, LABRECQUE and GOLDMANN.

The opinion of the court was delivered by

LEWIS, J.A.D.

In this matter the Bergen County Court, Probate Division, granted the petition of N (herein stepfather) to adopt S, age 7, and G, age 3, children of his present wife R, formerly Miss V, (herein mother). M, the natural father of the two children (herein father), contested the proceedings as to the older child. He appeals from that part of the judgment allowing S to be adopted by the boys' stepfather.

The trial court, in granting the adoption, made no finding that the father abandoned his child or was an unfit parent. The judge stated that 'all of these people are fine people,' but he 'felt' that the interests of the child would be better served by granting the adoption and terminating the natural relationship between father and child. The validity of that approach to the resolution of a controverted adoption proceeding is called into question by this appeal.

THE ISSUES

M contends that the court failed to make the required statutory finding that he had 'forsaken parental obligations' and that no such finding would have been justified by the evidence.

N argues: (1) the findings are adequate and no additional findings are essential, (2) the natural father's consent is unnecessary, and (3) the judgment in his favor is sustainable since the trial court found that the adoption of S was for the child's best interests.

THE UNDISPUTED FACTS

The mother of the two children was pregnant with S at the time she married appellant in 1958. She knew that he was then marred to another woman; a divorce from the first wife, however, was obtained later that year. S was born on January 30, 1959, and another son, G, was born January 1, 1963, approximately four months after the parents, who were then living in Michigan, had separated. The father moved to Canada in September 1963 and, eventually, the Michigan Circuit Court entered a default judgment annulling the V(R)-M marriage. That judgment declared that the children were the legitimate issue of the parties, gave their custody to the mother until they reached 18 years of age or 'until the further order of this court,' awarded $30 per week for their support, and provided for the right of visitation by the father.

M operates three music schools; he has remarried and has a child of that union. Since moving to Canada visits with his son S have been infrequent and neither party has strictly complied with the Michigan order for support and visitation rights. In August 1964 the mother of S and G married N, a widower with four children, and in March 1965 the couple, with their respective children, moved to New Jersey. There is now one child of that marriage. N is employed as a materials engineer.

THE LAW

The history of adoption reaches back into antiquity but was never recognized by the English common law. ¹ Such an artificial relationship, with its concomitant rights and responsibilities, exists in our present society solely by legislative authority 'to serve a socio-familial policy of prime import.' In re Holibaugh, 18 N.J. 229, 233, 113 A.2d 654, 656, 52 A.L.R.2d 1222 (1955). Note, In re Coe, 42 N.J. 485, 489--490, 201 A.2d 571 (1964). Cf. Nickell v. Gall, 49 N.J. 186, 189, 229 A.2d 511 (1967).

The first adoption statute in New Jersey was enacted in 1877 (L. 1877, c. 83, p. 123). The law, as it existed prior to 1954, ² required the consent of a living, competent and available parent before the parent-offspring relationship could be judicially servered, unless the parent had 'forsaken parental obligations or been divorced from the father or mother of the child because of his or her adultery or desertion or extreme cruelty'. R.S. 9:3--4(c). The term 'forsaken parental The 1953 legislation provides that upon final hearing in private adoption matters, 'If, from the (approved agency) report and the evidence presented, the court shall be satisfied that the best interests of the child would be promoted by the adoption, the court shall enter a judgment of adoption.' N.J.S.A. 9:3--27, subd. C. Neither our present statutes nor rules of Court (R.R. 4:112--1 et seq.), in such cases required the natural parents to consent to the adoption. As observed in In re Jacques, 48 N.J.Super. 523, 527, 138 A.2d 581, 583 (Ch.Div.1958), 'the Legislature removed an incongruous situation from this field of law, where a justified adoption advantageous to the best interest of the child could be defeated.' In short, consents have been replaced by investigations and reports of an approved agency. In re Adoption By B., 63 N.J.Super. 98, 102, 164 A.2d 65 (App.Div.1960). See No. 6 of the listed 'Principal Changes' in the statement attached to the new act, which was taken verbatim from the Report of the Advisory Committee on the Revision of the Child Adoption Statute of New Jersey, § IV(6), p. 3 (1953).

obligations' was declared to have the meaning of willful and continuous neglect or failure 'to perform the natural and regular obligations of care and support of the child.' R.S. 9:3--4(h). See Winans v. Luppie, 47 N.J.Eq. 302, 304--305, 20 A. 969 (E. & A. 1890). Consent was a jurisdictional prerequisite except in cases covered by the enumerated exceptions. Stawicky v. Stawicky, 12 N.J.Super. 72, 76, 79 A.2d 72 (App.Div.1951); In re Robinson, 26 N.J.Super. 440, 444, 98 A.2d 111 (App.Div. 1953). See generally, R.S. 9:3--1 through R.S. 9:3--16, repealed L.1953, c. 264, p. 1768 et seq., effective January 1, 1954, now N.J.S.A. 9:3--17 to 9:3--36.

It does not follow from that salutary procedural change that the Legislature intended to nullify basic rights of a natural parent or that such rights should be lightly considered. It is fundamental that a statute is to be construed in its entirety 'to clear up any obscurities and ambiguities in the law and to make the whole of the law and every part N.J.S.A. 9:3--17, which declares that the act shall be administered in such a way as 'to promote polices and procedures which are socially necessary and desirable for the protection of such (adoptive) children, Their natural parents and their adopting parents.' In attaining these ends it is declared to be 'necessary and desirable (a) to protect the child from unnecessary separation from His natural parent * * *; (b) to protect The natural parent from hurried or abrupt decisions to give up the child * * *' (emphasis supplied) ³; and

of its harmouious and effective.' McCaffrey, Statutory Construction, § 44, p. 86 (1953). The question is one of legislative intent. 'The sense of the law is to be gathered from its object and the nature of the subject matter, the contextual setting, and the statutes In pari material.' State v. Brown, 22 N.J. 405, 415, 126 A.2d 161, 166 (1956); In re Adoption of D., 78 N.J.Super. 117, 122--123, 187 A.2d 628 (Cty.Ct.1963). The public policy expressed in the statute should be considered. Note, In re T., 95 N.J.Super. 228, 236, 230 A.2d 526 (App.Div.1967). Accordingly, the aforequoted excerpt from N.J.S.A. 9:3--27, subd. C should not be read out of context; other pertinent sections include:

N.J.S.A 9:3--24, subd. C, which in dealing with situations where a preliminary hearing is necessary provides:

'If the court shall determine, from the report of the approved agency and the evidence presented at the preliminary hearing, that a parent of the child sought to be adopted * * * has Forsaken parental obligations * * * the court may declare that such parent has no further right to Custody of the child * * *.' (Emphasis supplied)

Thus it appears that our current laws to recognize as a matter of public policy, that parental rights are essential factors for judicial consideration in an adoption contest. The parental relationship is an integral part of the 'best interests' test; otherwise, any person could adopt a child if he were potentially a better parent than the child's natural mother or father. The welfare of a child is inextricably bound up with the rights of the parent. Note, Bell v. Leonard, 102 U.S.App.D.C. 179, 251 F.2d 890, 894--895 (D.C.Cir.1958). See generally 2 Am.Jur.2d, Adoption, § 7, p. 866 (1962).

Of special significance is the statutory provision that in cases where a preliminary hearing is required a court may terminate the right of custody if the parent has forsaken parental obligations. It is incomprehensible that findings of parental fault should be required to terminate a right of custody but are an unnecessary prerequisite for an absolute severance of the parental relationship.

The distinction between custody and adoption has had universal acceptance throughout the literature and law of filial relations. When custody is at issue the court is much more likely to make the temporary grant, always subject to reconsideration, on the basis of the best welfare of the child in light of the advantages and opportunities offered by the competing parties. Deeper and broader considerations, however, are commanded in adoption proceedings where the parent-child relationship is sought to be permanently severed. Hill v. Allabaugh, 333 Ill.App. 602, 78 N.E.2d 127, 129 (App.Ct.1948); Adoption of Harvey, 375 Pa. 1, 99 A.2d 276, 277--278 (Sup.Ct.1953); Foster & Freed, 'Child Custody (Part I),' 39 N.Y.U.L.Rev. 423, 442--443, n. 92 (1964). As stated by the Supreme Court of New Mexico, adoption should be undertaken only with 'the most adequate safeguards against abuse.' Barwin v. Reidy, 62 N.M. 183, 307, P.2d 175, 180 (1957).

Normally and...