Carton, Crahay and Handler. The opinion of the court was delivered by Handler, J.A.D. Crahay, J.A.D. (dissenting).
In this most unusual adoption case, one parent murdered the other. The overriding issue created by this occurrence is whether the natural father as the guilty parent had thereby forsaken his parental obligations to the child of the marriage and thus forfeited his legal rights as parent under the adoption statute.
On November 25, 1973 the maternal grandparents of the child, J, filed an adoption complaint in the Probate Division of the Essex County Court. The natural father and his parents answered on February 14, 1974, opposing the adoption. A counterclaim was also filed for custody of the child in the father upon his release from prison, for placement of the child in a neutral foster home until the father's release, and for visitation rights for the paternal grandparents. The counterclaim was later dismissed and a consent order was entered permitting the paternal grandparents and certain other relatives of the child visitation rights.
On December 20, 1973, the trial judge entered an order making the child a ward of the court and fixed a date for a
preliminary and final hearing. On October 10 and 11, 1974 a hearing was held, and on October 24, 1974 a written opinion was delivered. On December 3, 1974 judgment was issued dismissing the complaint, "said dismissal being only on the record presently before the Court and without prejudice * * *." Entry of judgment was stayed pending application by the maternal grandparents for appointment as guardians of the child. On January 20, 1975 such an order was entered, consented to by counsel for the father and the paternal grandparents. The father's right to apply for the custody of his daughter or for visitation rights was reserved pending his release from prison. On January 8, 1975 plaintiffs filed notice of appeal from the decision and order dismissing their complaint.
J, the child, was born in June 1970. Her mother, D, was two months pregnant with J when D and J's father, F, were married. The marriage was not a particularly stable one. F worked on and off as a motorcycle and automobile mechanic. D remained at home, taking care of the child. The couple at various times lived in their own apartment, in the home of D's parents, and at a summer home owned by F's parents. Money was a constant problem.
In September 1972, F and D separated. In November D filed a complaint for desertion and nonsupport. F agreed to pay $35 weekly support, but by May 1973 was in arrears. Although F and D never again maintained a common residence after the September 1972 separation, they saw each other frequently and maintained a sexual relationship.
In early 1973 D filed a complaint for assault and battery against her husband. The complaint related to an incident where F broke down a door to D's apartment and flicked a lit cigarette at her. The matter was adjusted in the Belleville Municipal Court and, at the judge's suggestion, the couple saw a marriage counselor several times.
Matters came to a tragic pass in the early morning hours of May 24, 1973. F believed that D had been unfaithful to him. He went to her apartment and after some discussion,
which did not satisfy him, he stabbed her with a kitchen knife, causing her death. F himself called the police and an ambulance. The same morning J's maternal grandparents came for the child, who has remained with them ever since.
F entered a plea of non vult to a charge of murder and was sentenced to an indeterminate to ten-year term at the Youth Reception and Correction Center, Yardville. He is currently serving that sentence.
No one disputes the fact that plaintiffs have provided a secure, comfortable and loving home for J. Neither is it disputed that plaintiffs would make excellent adoptive parents. Testimony was unrebutted that plaintiffs had become the "psychological parents" of J and that any significant interruption in their relationship would be severely, and possibly permanently, damaging to J.
There was also testimony from plaintiffs' psychologist that he had evaluated F and found, because of personality disorders, F would not be an acceptable parent figure or a good parent.
On behalf of F there was testimony that he had been in frequent contact with his daughter during the separation period; that he had purchased presents for her and had sporadically given D money for her own and J's support. There was testimony from a lifetime friend of F that he had always been deeply concerned for the welfare of his wife and daughter. Other witnesses testified that F was deeply remorseful over his act, that he had adapted to Yardville extremely well, was earning college credits, had set goals for himself, was in a satisfactory treatment program, and was, by and large, straightening himself out. Since the hearing F has had weekend furloughs from prison.
The trial judge, in his written opinion, found the following as facts: (1) that F had not forsaken his parental obligations prior to the killing; (2) that he had done everything possible after D's slaying to help J, including assisting getting social security benefits to her; (3) that F's failure to
object initially to J going to plaintiffs was not abandonment of J "any more than any other father's permitting a natural mother keeping custody of small children upon a separation where he maintains visitation rights."
Plaintiffs understandably have stressed throughout the proceedings that the vital interests of the child demand literally that she be adopted by her maternal grandparents. Although not so phrased, it is urged vigorously that the paramount or dominant criterion for adoption, in this particular case, should be the welfare of the child and, in this unique and special situation, the statutory standard of "forsaken parental obligations" on the part of the nonconsenting natural parent should at most be a consideration ancillary or subordinate to the good of the child.
New Jersey's adoption act directs a court, in an adoption matter, to conduct a preliminary hearing into (1) the circumstances under which the child came into plaintiffs' home; (2) the status of the child's natural parent(s); (3) the child's fitness for adoption; and (4) plaintiffs' fitness to adopt the child. N.J.S.A. 9:3-24A. At the close of the preliminary hearing, the ...