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Lavigne v. Family and Children''s Society of Elizabeth

Decided: February 24, 1953.


On appeal, on certification granted to the Appellate Division of the Superior Court.

For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Burling and Brennan. For affirmance -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Vanderbilt, C.J. Wachenfeld, J. (dissenting). Heher, J., joins in this dissent.


[11 NJ Page 474] 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.


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:


This is to certify that I, Louise Lavigue, being the mother, and Joe Lavigne, 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 formally 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 ...

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