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Sees v. Baber

Decided: July 27, 1977.


For reversal and remandment -- Chief Justice Hughes, and Justices Mountain, Sullivan, Pashman, Schreiber and Handler. Dissenting -- Justice Clifford. The opinion of the court was delivered by Handler, J. Sullivan, J. (concurring). Clifford, J. (dissenting).


This is an action by an unmarried mother for the return of her child whom she had surrendered to defendants for adoption. The events critical in this litigation unfolded quickly. The child was born on July 3, 1976; a consent for adoption was executed on July 6th; the next day the baby was surrendered to the custody of defendants; two days later on July 9th, the mother told the doctor and defendants' attorney that she had changed her mind; within a few days her request for the return of the child was refused. On July 22, 1976, she instituted this action in the Chancery Division of the Superior Court in Passaic County seeking immediate return of the child.

On July 30, 1976, the return date of an order to show cause which had issued, the court set the matter down for a plenary hearing on August 9, 1976. Prior to the hearing, defendants filed an answer alleging that they had started

an action for adoption in Essex County.*fn1 They also counterclaimed that plaintiff had forsaken her parental rights. On August 9, 10 and 11, 1976, a plenary hearing was held, and on August 27, the judge issued an opinion and an order for judgment denying the relief sought by plaintiff and granting judgment in favor of defendants on their counterclaim, terminating plaintiff's parental rights in the child. Plaintiff filed a notice of appeal on August 30, 1976. The Appellate Division affirmed the final judgment on January 17, 1977. Plaintiff then filed a petition for certification and a motion for acceleration on February 10, 1977, which were granted on March 1, 1977. 74 N.J. 251 (1977).

Plaintiff Margaret Sees became pregnant in November 1975 when she was nineteen years of age. She was living with her family at the time, but did not disclose her pregnancy to anyone until June 9, 1976 when she told her mother. That day, she and her mother went to see the family doctor. A week later, on June 16, 1976, Ms. Sees registered at the prenatal clinic of St. Joseph's Hospital. She there met one Margaret Willoughby, a case worker, to whom plaintiff stated she planned to give her child for adoption. Miss Willoughby explained different adoption procedures and offered

assistance. Apparently, as a result of her efforts, plaintiff was later contacted by a representative of an unspecified "state adoption agency."

On June 30, 1976, Ms. Sees and her mother met Dr. James P. Thompson, the director of the Department of Obstetrics and Gynecology of St. Joseph's and a private practitioner in this specialty. Plaintiff informed Dr. Thompson it was her intention to relinquish the child for adoption. He advised her of alternate means of placing the child for adoption. He also asked plaintiff and her mother not to make any decision at that time but to think about it and to call back when a decision was made. On the next day, July 1, 1976, Dr. Thompson received a call from plaintiff's mother stating that plaintiff had made a decision to give up the child for adoption through private placement.

Within two days of this meeting, on July 3, 1976, plaintiff gave birth to her child. Dr. Thompson assisted with the delivery. The court determined that both plaintiff and her mother had been advised by the doctor that plaintiff had no commitment to surrender the child unless she clearly elected to do so and that she could have counselling. Dr. Thompson further testified that he anticipated the mother would be discharged on July 7, and therefore he made the arrangements for the surrender of the child to coincide with this "conventional" discharge date.

Three days after the birth of her child, on July 6, 1976 (coincidentally her twentieth birthday), plaintiff had several meetings with Judith De Spirito, a nurse recommended by Dr. Thompson, specializing in the care and counselling of new mothers. At the first visit this witness found plaintiff to be happy and alert. When asked if she was sure that she wanted to give the child for adoption, plaintiff responded affirmatively. At the second meeting on that day she took plaintiff to the nursery to see the child. Mrs. De Spirito told plaintiff it would be harder to give up the child than to keep him. Plaintiff responded it was in the best interests of the baby to give him up.

An attorney representing the adopting parents met with plaintiff at the hospital that day, July 6th. Dr. Thompson had told plaintiff earlier that as a "formality" a lawyer for the adoptive parents would visit her. It so happened that Dr. Thompson knew this attorney previously, as well as the defendants, whom he had told of the availability of the child. The attorney presented a document (a written consent for the adoption) for her examination and review. Prior to plaintiff's execution of it, the document was explained to plaintiff paragraph by paragraph, and subsequently reviewed again with plaintiff and her mother when her mother joined the meeting. The lawyer explained to both plaintiff and her mother that the provision relating to "consent" meant that plaintiff was abandoning any and all rights to the child. He also informed plaintiff that she personally would have to turn the child over to the adopting parents. The attorney further advised plaintiff as to the adoption procedure, indicating that she would be served with pleadings in the adoption action and that the adoption procedure would take one year to become final. He mentioned that there would be hearings but he did not tell plaintiff or her mother, contrary to plaintiff's testimony, that she had 20 days to contest the proceeding after service or that she had a right to change her mind after executing the document.

At the time of plaintiff's discharge on July 7th, the following day, Mrs. De Spirito explained to plaintiff the manner in which she would have to identify her child and turn him over to the adoptive parents. She said plaintiff had no questions concerning the procedure and did in fact surrender the child. Plaintiff handed her baby to defendants in the hospital parking lot.

Within two days of her discharge, plaintiff changed her mind. Dr. Thompson was called by plaintiff's mother on July 9th and was told that plaintiff wanted her baby back. On receiving this call, Dr. Thompson said "within an hour" he called defendants' attorney to tell him. The attorney was also told by plaintiff's mother on that very day that plaintiff

wanted her baby back. The defendants were themselves informed that plaintiff wanted the return of her baby. The request, as noted, was refused.

Based upon factual findings, the trial judge concluded

The Appellate Division affirmed substantially for the reasons expressed by the trial court. It was convinced that ample credible evidence supported the lower court's detailed findings and since this in great part involved an evaluation of the credibility of witnesses, it did not disturb the conclusion that "plaintiff voluntarily undertook to surrender the child and forsake her parental rights and obligations." Though it had not been raised at the plenary hearing, the Appellate Division addressed the further issue of whether the direct surrender of the child under the circumstances and the physician's conduct were in violation of the adoption laws and therefore invalidated the mother's consent and surrender. The court concluded that there was no statutory interdiction against the legal validity of a direct surrender of a child by its parent to prospective adoptive parents and that "* * * the direct relinquishment of the child to defendants without the intervention of an appropriate placement agency does not constitute a violation of the Adoption Act

nor serve as a basis for invalidating the voluntary and understanding surrender and consent to adoption."

We reverse. It was error for the courts below to have concluded under these circumstances that plaintiff had abandoned or forsaken her child and that her parental rights in her child should be terminated.


The parties have proceeded, and the matter is before us, within the context of our statutes governing adoptions. N.J.S.A. 9:3-17 to N.J.S.A. 9:3-36. The result of the decision below is that plaintiff would have no further custodial rights in her child. This relief was based on defendants' answer and counterclaim which projected their claims as prospective adoptive parents and sought a termination of plaintiff's parental rights in the child. The resultant determination was intended to be conclusive upon the parties in the separate adoption action, then pending but stayed, in Essex County. It thus had the statutory effect of a determination terminating parental rights rendered in a preliminary hearing pursuant to N.J.S.A. 9:3-24. Reflecting this, the final order of the trial court authorized defendants to proceed with the adoption action in Essex County, and the Appellate Division itself ruled that "the judgment below is controlling [in the pending adoption proceeding] on the issue of voluntary surrender and the natural parent's forsaking of parental rights and obligations."

Under the adoption laws, if the child sought to be adopted has been privately placed, as in this case, that is, the youngster has not been received into an adoptive home under the supervision of an "approved agency" as defined by N.J.S.A. 9:3-18(a), a preliminary hearing must be conducted. N.J.S.A. 9:3-23A(1). One of the purposes of the preliminary hearing is to determine whether a natural parent should have "[any] further right to custody of the child." N.J.S.A. 9:3-24C; In re Adoption of Children by D., 61 N.J. 89, 94

(1972).*fn2 In effect, the termination of the rights of the natural parent is a condition precedent which must be met before an adoption can proceed to finality. In re Adoption of J., 139 N.J. Super. 533, 538-539 (App. Div. 1976), rev'd on other grounds on dissent below. 73 N.J. 68 (1977); In re Adoption by R.D., 127 N.J. Super. 311 (App. Div.), certif. den. 65 N.J. 292 (1974).

Under the adoption statute, parental rights may not be terminated unless it is determined by the court that a parent suffers from a specific statutory disability or has engaged in parental conduct amounting to "forsaken parental obligations." N.J.S.A. 9:3-24 C. There is no suggestion in this case that plaintiff suffers any disablement enumerated in the statute. Thus, her parental rights may be severed only if she has "forsaken parental obligations," the phraseology in fact used by the trial court to express its ultimate conclusions and reiterated by the Appellate Division in its affirmance.

The statutory standard of "forsaken parental obligations" is itself legislatively defined as: "willful and continuous neglect or failure to perform the natural and regular obligations of care and support of a child." N.J.S.A. 9:3-18(d). This definition, it has been observed, requires "a past course of conduct amounting to intended abandonment or very substantial neglect of both parental duties and claims, with no reasonable expectation of any reversal of that conduct

in the near future." In re Adoption of Children by D., supra ...

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