Goldmann, Freund and Kilkenny.
This is an appeal from a County Court judgment denying plaintiffs' application for the adoption of baby girl M, now two years old, awarding custody of the infant to respondent natural mother, and directing plaintiffs to return the child to her. Judgment was stayed pending disposition of this appeal. The trial court thereafter filed findings of fact and conclusions of law.
The child was born illegitimately to respondent, who is a sister of the female plaintiff, on July 12, 1958. While there was some conflict in the testimony, the trial court found that the child was placed with plaintiffs for adoption by consent of the natural mother, and we agree. Plaintiffs received custody of the child from her on October 25, 1958. Respondent was then over 21. Shortly thereafter, on November 12, respondent signed an affidavit irrevocably consenting to the adoption of the child by plaintiffs and also consenting to placing the baby in their custody. After the filing of the complaint for adoption the court entered an order setting the matter down for preliminary hearing on September 25, 1959 and directing the State Board of Child Welfare, Department of Institutions and Agencies, to make the investigation and written report required by N.J.S.A. 9:3-23(A)(4). Notice of the preliminary hearing was duly given the natural mother, the State Board promptly filed a report of its investigation into the merits of the complaint, the Mercer County Probation Department also filed a report pursuant to the order of the court, and the matter proceeded to hearing. At the hearing respondent objected to the adoption.
In addition to finding that the child had been placed for adoption by consent of the natural mother, the court found that the mother was divorced, unemployed, and had two
minor children for whom she received Home Aid; that the natural father was known and was not supporting the child; that the mother objected to adoption "within the time designated by statute" (not specified); that if the objection were successful the child (it was inferred) would become another public ward; that there was no evidence of unfitness in the natural mother other than the child's illegitimacy and the inference of financial inability; and, finally, that plaintiffs were "fit and able in all respects and demonstrate unrestricted solicitation for the welfare of the child to whom they offer affection and loving care."
The court then concluded as a matter of law that the mother's objection should be sustained because "seasonably made" and that neither the illegitimacy of the child nor the natural mother's financial inability made her unfit and unentitled to possession of her child. The trial court made no specific finding as to whether the adoption would be for the best interests of the child, although the investigation reports weighed very heavily in favor of the adoption; nor was there an express finding that the natural mother had abandoned the child or forsaken parental duties.
Plaintiffs seek a reversal of the judgment, contending that (1) parental consent for adoption is no longer necessary under the statute, N.J.S.A. 9:3-17 et seq. , so that withdrawal of such consent is irrelevant and without legal consequence in the adoption proceedings; (2) the court erred in applying the standard of the natural mother's fitness, rather than the best interests of the child, in deciding the case, and (3) it erred as a matter of law in not concluding that parental rights had been abandoned. Respondent did not file a brief.
R.S. 9:3-4, repealed by L. 1953, c. 264, § 18, effective January 1, 1954, required that a petition for adoption be accompanied by a written consent duly acknowledged. The consent of one parent was sufficient under the repealed act if the other was dead, unknown or mentally incompetent, or his place of residence could not be ascertained notwithstanding due inquiry, or had forsaken parental obligations
or been divorced from the father or mother of the child. R.S. 9:3-4(c). Such consent, whether the minor child was legitimate or not, was valid irrespective of the age of the parent at the time of granting consent. R.S. 9:3-4(k).
The consent of the natural parent is no longer a statutory prerequisite to an action for adoption, where no approved agency of the State is involved. In re Jacques , 48 N.J. Super. 523 (Ch. Div. 1958). The consent provisions of R.S. 9:3-4, now repealed, have not been duplicated in the present adoption statute, N.J.S.A. 9:3-17 et seq. Parental consent is mentioned in the new statute only with respect to the surrender of a child to an approved agency for adoption, N.J.S.A. 9:2-16, 9:3-19.1, such consent being irrevocable except at the discretion of the agency or upon order or judgment of the court setting aside the voluntary surrender upon proof of fraud, duress or misrepresentation, N.J.S.A. 9:2-16. The statement attached to the repealing act, L. 1953, c. 264 (now N.J.S.A. 9:3-17 et seq.) notes that "Consents to adoption have been supplanted by investigation and report of an approved agency and review by the court at a preliminary hearing held to consider the entry of an interlocutory order," and "Under the present adoption act, written parental surrenders of custody of children for adoption purposes are recognized only when given to an approved adoption agency."
It is entirely clear from the statutory scheme and the statement accompanying the new Adoption Act that the Legislature intended to and did in fact eliminate the need of parental consent for adoption in a case like the present one. Nor do our rules, R.R. 4:112-1 et seq. , setting up the procedure in adoption actions, mention parental consent under the circumstances here present. A child may be directly placed for adoption with certain relatives, including an aunt or uncle, as here. N.J.S.A. 9:3-19. When complaint for adoption is made by such a close ...