Bischoff, Morgan and King. The opinion of the court was delivered by Bischoff, J.A.D. Morgan, J.A.D. (dissenting).
Plaintiff Frances Kattermann appeals from an order denying her visitation rights with her son, who was adopted by her parents. The appeal is unopposed and the facts are undisputed.
Plaintiff is the natural mother of John DiPiazza, who was born out of wedlock on September 27, 1961. Plaintiff continued to live with her parents, Salvator DiPiazza (age 76) and Antonina DiPiazza (age 68), defendants herein. When the infant was approximately two years of age plaintiff, then 20 years old, consented to his adoption by her parents. In June 1964 plaintiff married and left her parental home. For the periods September 1964 through September 1965 and September 1966 through September 1967, plaintiff had full care and custody of John while both defendants were working. John, now 15 years of age, has known for years that plaintiff is his natural mother and has, in the past, continually enjoyed visitation with her at the home of his adoptive parents. However, defendants have refused to permit John to visit plaintiff's home, except for the two occasions mentioned above. On several recent occasions John has run away from home and sought to live with his natural mother. This caused defendants to charge him in Juvenile and Domestic Relations Court with being incorrigible; the complaints doing so, however, were dismissed.
Defendants have indicated that if John continues to run away they will continue to file complaints against him in the Juvenile and Domestic Relations Court. Defendants have since refused all visitation between plaintiff and John.
This proceeding was instituted by the filing of a verified complaint and order to show cause in which plaintiff sought a judgment "granting reasonable visitation rights including the right to take the infant John from the home of defendants at reasonable times." Defendants did not answer the complaint and did not appear on the return date of the order to show cause, and plaintiff submitted the matter for decision on the moving papers. The trial judge ordered the Division of Youth and Family Services to investigate the family background of the DiPiazzas and their adopted son, John, and also ordered an investigation into the family background of plaintiff. After receipt of those reports, the judge entered an order denying plaintiff the relief sought, stating the reasons for doing so as follows:
The legal basis for the court's conclusion was that the legislature expressed a clear statement of public policy when it adopted N.J.S. 9:3-17c. The purpose of the statute was to protect an adopted child from interference by his natural parents after he had been established in his adoptive home and to protect the adopting parents from later disturbance of their relationship with the child by the natural parents.
Plaintiff appeals from the order denying her visitation rights contending: (1) she is entitled to a plenary hearing on the merits of her petition, and (2) she is entitled to visitation with her biological son.
We approach the resolution of this appeal with full recognition of the firmly entrenched principle of law that "in matters involving custody and visitation the ultimate concern of our courts is always for the welfare of the infant. This is the controlling element." Mimkon v. Ford , 66 N.J. 426, 430 (1975); see also, concurring opinion of Justice Sullivan at 439.
N.J.S.A. 9:3-17, upon which the trial judge relied, provides in pertinent part:
This act shall be administered so as to give effect to the public policy of this State to provide for the welfare of children requiring placement for adoption and so as to promote policies and procedures which are socially necessary and desirable for the protection of such children, their natural parents and their adopting parents. To that end, it is necessary and desirable
(c) to protect the adopting parents from assuming responsibility for a child without sufficient knowledge of the child's heredity and capacity for physical and mental development, and, having accepted a child for adoption, from later ...