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 (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 ...