T, In re

• Decision Date: 31 May 1967
• Docket Number: No. A--43,A--43
• Citation: 230 A.2d 526,95 N.J.Super. 228
• Parties: In re T.
• Court: New Jersey Superior Court — Appellate Division

Page 228

95 N.J.Super. 228

230 A.2d 526

In re T.

No. A--43.

Superior Court of New Jersey

Appellate Division.

Argued March 13, 1967.

Decided May 31, 1967.

Annamay T. Sheppard, Newark, of the Newark Legal Services Project, for appellants.

John A. Matthews, Jr., Newark, for respondents.

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiffs M and W appeal from a judgment of the Essex County Court, Probate Division, discharging an order to show cause issued on their complaint and dismissing the proceedings thereunder. The complaint demanded judgment requiring defendant agency to disclose the identity and whereabouts of the persons having custody of their child; that they be advised of any adoption proceedings, whether pending or not, and that they be afforded the opportunity of appearing and answering the petition for adoption and contesting it.

The child who is the subject of the proceedings about to be outlined was born to W out of wedlock on March 21, 1965. M is allegedly the natural father. The mother surrendered the child to defendant, an approved agency, four days later for the purpose of adoption. Defendant soon thereafter placed the child with an approved couple. The County Court approved the placement following a preliminary hearing held in June 1965 pursuant to N.J.S.A. 9:3--24.

Plaintiffs were married October 30, 1965. On December 22, 1965 they brought a Chancery Division action (Docket C--1206--65) demanding that defendant be ordered to show cause why a writ of Habeas corpus should not issue to bring the child before the court in order that the legality of their right to its custody and possession might be determined. The complaint alleged that the child had been surrendered to defendant without the father's knowledge and that at that time the mother was 'under great stress, mentally disturbed, incapable of making a decision, and was not fully aware of the consequences of her act.' Further, that it was in the best interests of the child to live with its natural parents, who had unlawfully been deprived of custody and were entitled to have the child returned to them. An order to show cause issued, a plenary hearing held, and on March 16, 1966 the Chancery Division judge discharged the order and dismissed the proceedings. The judgment of dismissal bears the consent of plaintiffs' then attorney as to form.

Shortly after entry of that judgment plaintiffs' attorney phoned counsel for defendant to inform him that he was planning to take an appeal, and requested assurance that the agency would not institute proceedings for the adoption of the child pending perfection of the appeal. That assurance was given. Plaintiffs' attorney also wrote defendant directly on April 1, 1966, advising of the proposed appeal, the stated purpose of the letter being that the agency defer adoption proceedings pending perfection of the appeal. Defendant honored the request. More than 45 days passed without notice of appeal being filed, as required by R.R. 1:3--1(b). Defendant's attorney thereupon advised the agency that adoption proceedings might be instituted by the couple having custody of the child in view of the fact that this was an agency adoption, the child had been surrendered more than a year prior, and it had resided in the adoptive home for almost 13 months. See N.J.S.A. 9:3--24(C).

Realizing that notice of appeal had not been timely filed, plaintiffs' attorney moved on May 17, 1966 for an enlargement of time to do so. Following the filing of affidavits and briefs another Part of this court denied the application for the reason that there was absent a 'clear showing of a good cause,' citing R.R. 1:27B(d); In re Appeal of Syby, 66 N.J.Super. 460, 169 A.2d 479 (App.Div.1961).

The present proceedings were initiated by a complaint filed in the Essex County Court, Probate Division, on June 23, 1966. Plaintiffs again claimed that the child had been surrendered to defendant without the father's consent and 'under duress while she (the mother) was mentally disturbed and without an opportunity to consult her husband and at a time when she was incapable of making a decision.' The complaint further alleged that plaintiffs desired to contest the validity of any adoption proceedings on the ground that the best interests of the child required its return to its natural parents. As already stated, plaintiffs demanded judgment that defendant be required to disclose the names and address of the persons having custody of the child, that they be advised of any proposed adoption proceedings, and that they be afforded an opportunity to intervene in such proceedings. An order to show cause issued on June 27, defendant answered, and the matter was argued on July 26, 1966. The county judge discharged the order and dismissed the proceedings.

In the course of the argument on the order to show cause it was revealed that adoption proceedings had been concluded the preceding month and plaintiffs' attorney had just learned of that fact. He argued that the Chancery Division Habeas corpus proceedings were not Res judicata because the issue of what was in the best interests of the child had not been litigated. (We observe that the complaint in those proceedings did speak of the best interests of the child being served by permitting it to live with its parents.) The argument was also advanced that although the father had not given his consent at the time the child was surrendered to the agency, the intervening marriage retroactively gave him such status as to require his consent to any surrender of the child for placement in an adoptive home. Plaintiffs' counsel once again raised the issue of duress, contending that the mother's circumstances had been such that she did not surrender the child of her free will.

The argument of counsel for defendant was that the surrender was irrevocable under N.J.S.A. 9:2--16, except at the discretion of the approval agency taking the surrender or unless a court of competent jurisdiction set it aside upon proof of fraud, duress or misrepresentation. These matters had been decided against plaintiffs in their Chancery Division action. They and their attorney, he stressed, knew that the child had been placed for adoption, and a timely appeal not having been taken and more than a year having passed, adoption proceedings could validly be pursued.

In discharging the order to show cause and dismissing the proceedings thereunder, the trial judge said that he knew of no obligation on defendant's part to have held up the adoption after the time for appeal had expired; that by her surrender the mother had lost all right to have notice of the time and place of the adoption proceedings, and to grant plaintiffs' demand that defendant make discovery of the identity and whereabouts of those having custody of the child would run counter to the policy of the Adoption Act. The adoption proceedings having been completed, plaintiffs' other demands--that they be advised of the proposed adoption proceedings and be afforded the opportunity of intervening--were moot. As for the issue of duress, that had been decided in the Chancery Division action; to relitigate the question would be completely improper. Finally, plaintiffs were bound to include in their prior action any and all causes they then had: they could not try their complaints piecemeal. Accordingly, the county judge entered the judgment here under appeal.

Plaintiffs are now represented by substituted counsel. It is readily apparent from the record that they find themselves in their present situation because of the failure of their former counsel to take timely and proper action. He had an opportunity to intercede on their behalf at a time when the adoption proceedings were at an interlocutory stage and parental rights had not yet been terminated by a final adoption order. Cf. In re Adoption of D, 78 N.J.Super. 117, 123--124, 187 A.2d 628 (Cty.Ct.1963). He chose to institute Habeas corpus proceedings in the Chancery Division, and at that time could have fully argued the issues presently raised. Finally, he failed to file within time a notice of the appeal from the adverse decision of the Chancery Division.

Plaintiffs argue that the county judge should have treated their complaint as an application to vacate the adoption proceedings and to hear their action on the merits. They would in this way avoid their former attorney's lack of diligence.

Mere carelessness or lack of proper diligence on the part of an attorney is ordinarily not sufficient to entitle his clients to relief from an adverse judgment in a civil action. Cf. Schulwitz v. Shuster, 27 N.J.Super. 554, 558--560, 99 A.2d 845 (App.Div.1953); Hodgson v. Applegate, 31 N.J. 29, 30, 155 A.2d 97 (1959). Such carelessness may be excusable when attributable to honest mistake, accident, or any cause not incompatible with proper diligence, but in such case the moving party is required to show a meritorious cause.

The defect in plaintiffs' present claim that the trial judge should have proceeded to deal with the matter as a motion to vacate the adoption proceedings, and this in the interest of justice and the best interests of the child, is that they were not parties to the adoption proceedings and therefore would have no standing to vacate or reopen the adoption judgment. True, a judgment of adoption like any other final judgment, may be vacated pursuant to R.R. 4:62--2, but one who seeks that relief must have been a party to the adoption proceedings. It is for this reason that plaintiffs are mistaken in their reliance on In re Adoption of G, 89 N.J.Super. 276, 214 A.2d 549 (Cty.Ct.1965), for in that case it was the adoptive parents who moved to vacate the judgment of adoption when they found that the child was mentally retarded. And see In re Adoption of O, 88 N.J.Super. 30, 210 A.2d 440 (Cty.Ct.1965), where the adoption agency unsuccessfully...