For remandment -- Chief Justice Hughes and Justices Mountain, Sullivan, Clifford and Schreiber. Concurring and dissenting -- Justice Pashman and Judge Conford. Conford, P.J.A.D., Temporarily Assigned, concurring and dissenting. Justice Pashman joins in this opinion.
[72 NJ Page 128] This appeal involves the right of an unwed mother, who surrendered her newborn child for placement for adoption under undue pressure by an adoption agency, to regain custody of the child. Also implicated are the rights of the natural father, who has since married the mother; the prospective adopting parents, who have had custody of the child since July 9, 1974; and, of great importance to the Court, the well-being of the child herself.
The mother, then aged 16, gave birth to the child May 5, 1974. The natural father, then 18, being unwilling to marry her, and the maternal grandmother being unwilling to maintain the girl and the child in her home in those circumstances, the mother surrendered the child for temporary foster care to the defendant agency on May 30, 1974. This arrangement was for a thirty-day period, at the end of which the mother was either to take the child back or surrender it for adoption.
At then end of the thirty-day period, on June 28, 1974, the mother had decided to retain her child. When she so informed an agency representative by telephone, the agency supervisor required her to come to the agency at once with her mother. The Chancery Division judge made a finding of fact that on arrival the girl told the agency representatives she wished to keep her child. He also found that as a result of ensuing unwarranted pressures exerted by the supervisor on the girl when she came there with her parents, of threats of harassment and litigation by him, and of his failure to inform her of options for care of the child other than an immediate choice either of irrevocable surrender for adoption or return of the child, she was coerced within a half-hour or so into signing a surrender of the child for adoption. The Appellate Division affirmed a judgment for plaintiffs based on these findings of fact, and we are unable to say that they are not sufficiently supported by the evidence.
The natural father, who learned on June 30, 1974 of the surrender of the child, apparently went to the agency in July and told a representative he opposed the surrender and would contest it. He was told that as an unwed father he had no "say-so.'
The parents returned to the agency together both in September and December 1974 to request the return of the child, but were refused. They sought counsel in January 1975, but were unfortunately advised to withhold institution of action until the mother attained the age of 18, in
June 1975. The present complaint, for a return of the child, was filed on July 9, 1975, by the parents jointly.
The case was heard and decided in September 1975. In addition to the findings aforestated, the trial judge ruled that the natural father had been denied his constitutional rights when the agency accepted the child without notice to him or affording him an opportunity to state his objections, he being the known and admitted father of the child. He found the plaintiffs fit to take custody and ordered the child transferred to them at once, denying a stay pending appeal. However, the Appellate Division did grant such a stay. That tribunal affirmed in a per curiam opinion filed February 9, 1976. This Court ordered a further stay pending consideration of petitions for certification by the defendant agency and the prospective adopting parents. We granted both petitions, 70 N.J. 511 (1976), and continued the stay. Thus the child has continued in the custody of the prospective adoptive parents ever since. No formal adoption proceeding has been instituted by them because of a restraint entered in the Chancery Division which has not been vacated.
We consider first the merits of the judgment as it applies to the plaintiff mother. The evidence supports the trial finding of coercion and duress by the agency against the mother. The case of In re Adoption of a Child by R.D., 127 N.J. Super. 311 (App. Div.), certif. den., 65 N.J. 292 (1974), is factually distinguishable, the court there having found the surrendering mother's decision was "deliberate, long under consideration, and with clear knowledge of its probable consequences.' 127 N.J. Super. at 314. The circumstances here are markedly different. The trial judge had before him sufficient to conclude that the decision to surrender here was hasty and coerced and was not a voluntary act.
In view of the foregoing adjudicated facts, it cannot be held that N.J.S.A. 9:3-19.1, which renders the duly executed written consent by a parent to surrender of a child
for adoption "valid and binding', is effective for purposes of the case. The surrender is a legal nullity. Consequently the plaintiff mother cannot be held to have lost her rights to custody of the child merely because it might be determined that the best interests of the child, in the ordinary sense, would be ...