Conford, Handler and Meanor. The opinion of the Court was delivered by Conford, P.J.A.D.
This is an appeal from an order in an adoption proceeding directing that plaintiffs, intended adopting parents, surrender custody of the child in question to defendant K., its natural mother. The order in effect dismissed the adoption proceedings.
The child was born to Miss K., a Pennsylvania resident, in a Philadelphia hospital January 6, 1973, and was turned over to plaintiffs, New Jersey residents, by Miss K. and R., the natural father, at the hospital on January 9, 1973, the latter both signing affidavits expressing a present intent to give up the child for adoption because they "were not married and [were] unable to care for the child." Plaintiffs have had custody of the child ever since, the order under appeal having been stayed pending the appeal. No issue of choice of law is raised in this appeal, and we apply New Jersey law.
When K. was given notice of the pendency of this proceeding in July 1973 she decided to resist the adoption and engaged counsel to contest it. It appears that K's doctor during pregnancy and delivery, a Dr. R., was instrumental in indicating the possible availability of K.'s child for adoption to the plaintiffs through Mrs. D.'s mother, a Philadelphia church acquaintance of Dr. R. Moreover, he made the physical arrangements for the actual delivery of the child to plaintiffs at the hospital. The trial judge found that K. was under such "pressure" under the attending circumstances, partially contributed to by the acts of Dr. R. both before and after the birth of the child, as to compel the conclusion that her surrender of the child was not "full, free and understanding." Although the judge expressly found that the best interests of the child would be served by leaving it with plaintiffs, he felt that the adoption statute precluded severance of the natural mother's right to the child unless she could be found to have "forsaken parental obligations," N.J.S.A. 9:3-24(C), a finding he could not make in the absence of a
showing of a voluntary, free and understanding surrender by her of the child.
We agree with the trial judge's concept of the law but disagree with his factual conclusion that the surrender by K. of the child was not voluntary, free and understanding, in the context of the statutory purposes and objectives. Our decision is not affected by considerations of appraisal of credibility of witnesses, as to which the superior vantage point of the trial judge ordinarily carries considerable weight. We accept the judge's conclusion that Dr. R.'s testimony was in some instances not deserving of credence and his implication that Dr. R. was biased in favor of plaintiffs. We also accept the judge's favorable impression of the general credibility of K. But objective facts and circumstances apparent to us from the record as a whole impel the conviction that although K. was unhappy about her decision at the time she acted on it and over the considerations which motivated her to make it, the decision was nevertheless deliberate, long under consideration, and with clear knowledge of its probable consequences. In such circumstances we are satisfied that the statutory factor of protection of the adopting parents "from later disturbance of their relationships to the child by the natural parents", N.J.S.A. 9:3-17(c), ought to have weighty effect.
Plaintiffs argue that the "best interests of the child" control in adoption and that that factor is here determinative, whether or not the trial court erred in finding the surrender of the child involuntary. Conceding that the best interests of the child seem to lie with her retention by plaintiffs as against her return to the immature and financially insecure K., we are persuaded that the analysis of the statute and the implications of the opinion in In re Adoption of Children by D., 61 N.J. 89 (1972), preclude a cutting off of the parental rights of a natural parent under the aegis of the adoption
statute unless that parent has forsaken his parental obligations. Id. at 94. While it is true that the court there qualified its construction of N.J.S.A. 9:3-24 to require a prerequisite determination at the preliminary hearing that the natural parent has forsaken parental obligations, by use of the phrase, "at least in the divorced parents' situation,"*fn1 Ibid., we can discern no rational basis for not requiring that prerequisite in the instant situation. The statutory language makes no distinction, in this regard, as to the case of an adopting parent who is not related to either of the natural parents. And considerations of natural justice would seem to militate against a construction of the statute which could deprive a natural parent of her child without the showing of an abandonment or forsaking of the child by that parent, regardless of whether the child would be better off with others. See In re N., 96 N.J. Super. 415, 421-423 (App. Div. 1967) which was cited in In re Adoption of Children by D., supra, 61 N.J. at 93, for its statement that "The child's relationship with the parent is of such significance that all doubts are to be resolved against its destruction" 96 N.J. Super. at 425.
Any reported cases reflecting a different viewpoint must be regarded as disapproved by the Supreme Court's holding and admonition in In re Adoption of Children by D., supra. See 61 N.J. at 95.
In relation to the question of the fitness of the plaintiffs to rear this child, it may be noted that Mr. D. is an administrative officer at a college. Mrs. D. was a school teacher but gave up the job to take over the care of this child and another, about a year older, which they shortly thereafter accepted for adoption. The D's are about 30. The probation report and testimony by physicians and others demonstrate that optimum ...