Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
[18 NJSuper Page 562] The fundamental question is whether a written "surrender" of their child, executed by the parents,
Joe B. Lavigne and Louise P. Lavigne, plaintiffs, to the defendant-appellant, The Family and Children's Society of Elizabeth (hereinafter referred to as the "Society"), is irrevocable. The Chancery Division held that, under the circumstances, it was revocable and ordered the defendant society to return the infant child to her parents. The defendant appeals from the ensuing judgment.
The pertinent facts are: The plaintiffs were married on November 26, 1947. Diane was born to them on March 5, 1949, at Berkeley, California, where the father was an undergraduate student at the University of California. Upon his graduation, the family moved to New Jersey where the father became employed as a chemist with Merck & Company. On September 23, 1949, the plaintiffs brought their daughter, then six months old, to the Society's office to discuss the plaintiffs' problems with respect to her care. Interviews with the parents were held with a representative of the Society about once a week thereafter until October 21, 1949, when the parents agreed that the Society might place the baby in a foster home, where, after placement, Diane remained until May 26, 1950. During that time representatives of the Society interviewed the plaintiffs about twice a month. Because of the inability of the owner of the foster home to care for the child, she was returned to her parents on May 26, 1950. She remained with them until July 31, 1950, when she was returned to the defendant Society. At that time, the plaintiffs executed a written waiver of all custody and control of the child and consented that the Society, an approved agency, place the child for adoption. In August, Diane was placed by the Society in a private home for adoption. In mid-April, 1951, the father called at the Society's office and demanded the return of his child. Upon its refusal, the plaintiffs instituted this action in June, 1951, to compel the return of the child to them. The trial court held that under the circumstances, the surrender agreement was not irrevocable and that the best interests of the child would be promoted by awarding custody to the plaintiffs.
The Society's case was based largely upon the testimony of its two case workers. These witnesses, Mrs. Reiners and Mrs. Haddock, testified that in their earliest contacts with the plaintiffs, when the child was only six months of age, both parents insisted upon removing the child from their home; that from the beginning, the father wanted to make this removal permanent, saying he could never accept the child whom he called "a damned nuisance"; that only twice during the seven months the child was in a foster home did the plaintiffs request to see their child; that neither parent sent their daughter any presents for her birthday, Christmas and other occasions, except possibly a few items of clothing; that the parents left the child's name off their Christmas cards, except where they thought it might be missed by the recipient; that their primary concern seemed to be what to tell friends and parents about their giving up Diane; that Mrs. Lavigne told Mrs. Reiners in March, 1950, that she was quite certain her husband would never change his determination to give up the child permanently; that she had no maternal instincts and did not miss the baby when she was away and chose to keep her husband in preference to her child; that when the surrender agreement was signed, Mrs. Reiners carefully explained the agreement and its finality and irrevocability and that it was understood by them; that in the final interview held with Mrs. Lavigne in September, 1950, the mother expressed no misgivings and regrets, but felt that it was all for the best.
The plaintiff, Joe B. Lavigne, in his testimony, frankly admitted his blameworthy attitude towards his child; that it was caused by "The fact that my wife, after birth of our daughter, was sick in the hospital for three weeks. That, in itself, imposed additional financial burdens upon us, and at the same time, I was studying for my examinations in my last semester of school. We came East, and I had to borrow money from the University that had to be paid back. I had no friends or relatives close. We were all alone, and I became emotionally upset under those circumstances"; that [18 NJSuper Page 565] both he and his wife felt they had "made a terrible mistake, and that the child should be with her natural parents" and wanted the child back "to establish a normal relationship between our daughter and ourselves." Mrs. Lavigne's testimony substantially corroborated that of her husband. The plaintiffs denied the testimony of Mrs. Haddock, that at their early interviews Mr. Lavigne wanted the child permanently removed; that their original purpose was merely to provide a foster home until they could solve their problems; that the matter of adoption was not seriously considered by them until May, 1950, after the child had been returned to their home, although Mrs. Haddock had previously mentioned it to them on several occasions and later by Mrs. Reiners in her interviews with Mrs. Lavigne. Mr. Lavigne testified further that "the agency had given us the fact that there was no foster home available and if we felt we couldn't take care of Diane at the present time, there was nothing left to do but put her up for adoption." At the trial, it was developed that Mr. Lavigne was living in California, where he had a teaching position, and other income sufficient to provide a suitable home for their daughter and that he and his wife were so anxious to have the return of their child, they were willing to return to New Jersey and live here if the court decided that such a condition should be imposed; that they had deposited in the bank the sum of $775 to repay the Society for the financial outlay that had been occasioned in boarding their child; that originally, under the then existing circumstances, he had considered the child a burden in that she was an added expense and that that was one of the reasons for his emotional upsets, stating, "I realize now the child should be placed first above everything. I didn't realize that at the time. That is why I am willing to come back to New Jersey to care for Diane as necessary. I will do anything that should be done to take care of Diane and have her with her family again." He testified further that although the language of the assignment agreement was read and understood by him, they thought that after the one-year
trial period, they had the privilege of giving the child back or the agency had the privilege of taking the child back; that "we feel that any ties of affection that would be broken would be more than replaced by the natural ties of affection between us and our daughter, Diane, between the natural parents and our own daughter." With respect to the plaintiffs' testimony that they assumed that the surrender agreement was not a finality, Mrs. Reiners, one of the agency's representatives, testified: "I probably told them the first year's placement was a trial; that the agency is still responsible for the welfare of the child in the first year, although normally when a child is placed we are pretty certain it is a good home from the beginning."
The appellants contend that (1) the plaintiffs legally abandoned their child and may not now repent and revoke their surrender; and (2) the parents' past conduct has proven them unfit parents of the child and to return her to them would be contrary to her best welfare. By permission of the court, several family and child welfare societies as amici curiae have filed a joint brief wherein they support the position taken by the Society.
The right of adoption, while known to the ancients of Greece and Rome, and probably to other ancient peoples, and while practised among many of the continental nations under the civil law from the remotest antiquity, was unknown to the common law of England, and exists in this country in those jurisdictions having that law as the basis of their jurisprudence, only by virtue of statute. However, adoption statutes must be construed so as to authorize the adoption of a child by strangers only in cases where the natural parents consent to the adoption, or where the proof shows that the child has been abandoned by its natural parents or that it is manifestly to the interest of the child that it be taken from their custody by some judicial proceeding of which they had notice. 1 Am. Juris., Adoption of Children, secs. 3 and 4, pp. 622, 624. In re Book's Will , 89 N.J. Eq. 509 (Prerog. 1918); reversed on other grounds,
90 N.J. Eq. 549 (E. & A. 1919); Elmer v. Wellbrook , 110 N.J. Eq. 15 (Ch. 1932). Statutes authorizing adoption of children, being in derogation of the common law, are to be strictly construed. Gardner v. Hall , 132 N.J. Eq. 64, 68 (Ch. 1942); affirmed 133 N.J. Eq. 287 (E. & A. 1943). In all cases involving the custody of an infant child, the primary consideration is its welfare. Lippincott v. Lippincott , 97 N.J. Eq. 517 (E. & A. 1925); Price v. Sainsot , 103 N.J. Eq. 355 (E. & A. 1928); Ex parte Kirschner , 111 A. 737 (Ch. 1920); In re Moffett , 5 N.J. Super. 82 (App. Div. 1949); Stawicky v. Stawicky , 12 N.J. Super. 72 (App. Div. 1951). However, parents may, by abandonment, lose their right to a child, Winans v. Luppie , 47 N.J. Eq. 302 (E. & A. 1890); Richards v. Collins , 45 N.J. Eq. 283 (E. & A. 1889). The purpose of abandonment may be repented of, and in proper cases all parental rights again acquired, including the statutory right of preventing adoption by withholding consent. Winans v. Luppie, supra. Normally, the parents of a legitimate child are entitled against all others to its custody, unless it is shown they are unfit. Ziezel v. Hutchinson , 91 N.J. Eq. 325 (E. & A. 1920); Price v. Sainsot, supra.
At the outset of our discussion, we point out that the issue should be decided not upon the basis of any emotional appeal but rather on the law and the facts.
Under point (1), the Society argues that the proofs establish that the plaintiffs legally abandoned their child and consequently may not now repent and revoke their surrender to regain her custody. Based upon a thorough research of the cases in this and other states, it is clear -- and it is so conceded by the parties -- that the factual question of abandonment must be determined by ascertaining the mental attitude and intent of the parents; and, further, that assuming an abandonment has taken place, the primary factor in determining the future custody of the child is its welfare and what will promote its best interests. The leading case in
New Jersey relied upon by the Society is that of Winans v. Luppie, supra , ...