For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None.
[61 NJ Page 91] In this contested adoption case, the County Court allowed plaintiff D to adopt two children, a girl aged seven and a boy aged six, born to his present wife and defendant U during their marriage, and to change their surnames to his. The Appellate Division affirmed the judgment, one judge dissenting. The opinions are unreported. U's appeal to this court is here as of right by reason of the dissent. R. 2:2-1(a)(2). All effect of the judgment has been stayed pending the outcome of the appellate process.
Involved is the not uncommon situation, but one which has had very little appellate consideration in this state, of children born to parents later divorced, custody in the natural mother, remarriage of the mother, and an application by her new husband to adopt the children, with the mother's consent but objected to by the natural father. This is obviously not a case where a child is "placed for adoption" by a natural parent in the usual sense of that phrase. Nor does it involve the physical custody of the children; the father does not seek it and is content that they continue to live with their mother and stepfather. It is to be stressed that what we have to say relates principally to a divorced parents situation.
Before dealing with the facts of this case, we ought to delineate the applicable law. Our current adoption statute, N.J.S.A. 9:3-17 to 36, L. 1953, c. 264, p. 1768, as amended, is a complicated enactment and, being primarily geared to the requirements and procedure for adoption by persons other than relatives of children "placed for adoption," is not entirely clear in setting forth the requisite procedures and standards in the divorced parents situation. Judicial construction is therefore required.
Two fundamental matters are plain. The first, contained in the statement of public policy found in N.J.S.A. 9:3-17 is that "it is necessary and desirable (a) to protect the child from unnecessary separation from his natural parents . . . ." The second, emphasizing the drastic and final nature of a judgment of adoption, is the effect of such a judgment, specifically set forth in N.J.S.A. 9:3-30: "The entry of a judgment of adoption shall terminate all relationships between the child and his parents, and shall terminate all rights, duties, and obligations of any person which are founded upon such relationships . . . ." (emphasis supplied), except that when the adopting parent is a stepparent and the adoption is with the consent of one natural parent, the adoption shall not affect the relationship between the child and the consenting parent nor the right
of inheritance by intestacy from the other natural parent. The other side of the coin, specified by the same section, is that "[t]he entry of a judgment of adoption shall establish the same relationships, rights, duties and obligations between the child and the adopting parent as if such child were born to such adopting parent in lawful wedlock," including the right to inherit by intestacy.
This means that, on the one hand, a non-consenting natural parent is thereby permanently cut off from all parental rights and benefits, tangible and intangible, including even the privilege of seeing and visiting his child, as if it were never his, and, on the other hand, the child is forever deprived of every connection with and benefit from his parent except the right to inherit. Adoption, being immutable, is quite different from a mere award of custody, which is impermanent and subject to alteration as changing circumstances require. These weighty incidents dictate that a court must act with great caution and circumspection when one natural parent does not consent to the proposed adoption, particularly in the divorced parents situation. As the Appellate Division put it in a similar case: "Such an action [a judgment of adoption] is of the first magnitude and should be sanctioned only after serious consideration of the consequences . . . . The child's relationship with the parent is of such significance that all doubts are to be resolved against its destruction." In re N., 96 N.J. Super. 415, 425 (App. Div. 1967).
The statutory procedural scheme provides first, upon the filing of the complaint (which cannot be done until the child has been living in the home of the plaintiff for not less than six months), for a court-ordered investigation and report to the court to be made by some approved agency. When the plaintiff is a relative (including a stepparent), as here, the investigation may be limited "to an inquiry concerning the status of the parents of the child." N.J.S.A. 9:3-23, subd. A(4). (We may digress to note that in the instant case the investigating agency failed to interview the
defendant natural father; its report therefore was of limited value to the court, but the deficiency was remedied by a full exploration of his status at the hearing.)
The second step in the procedural scheme is a two-stage process -- a preliminary hearing and a final hearing separated by a period of time. N.J.S.A. 9:3-23 to -27. When, however, as here, the plaintiff is a relative or stepparent, the two hearings may be held successively on the same date and, as a practical matter, generally merge into one. N.J.S.A. 9:3-25, subd. A. Nonetheless the differing purposes and issues of the two hearings should be adhered to. N.J.S.A. 9:3-24 specifies the questions to be determined at the preliminary hearing; subsection C thereof indicates that the prime question is whether the non-consenting parent should have any "further right to custody of the child." This terminology must be taken to mean, at least in the divorced parents situation when the preliminary and final hearings are being held at the same time, nothing less than whether all parental rights should be permanently terminated. Here the only pertinent statutory standard for determination of this question is whether the natural father has "forsaken parental obligations,"*fn1 defined, N.J.S.A. 9:3-18(d), as "willful and continuous neglect or failure to ...