For affirmance and remandment -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For reversal -- None.
[74 NJ Page 316] These proceedings have their origin in the attempt of an unwed mother to regain custody of the child she had surrendered for placement for adoption by an adoption agency, The Family and Children's Society of Elizabeth. This Court previously found sufficient evidence to support the trial court's finding that the natural mother's consent to surrender to the agency had not been voluntarily given. Therefore, on the record then before us, the surrender was void ab initio and the mother "[could] not 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 promoted by the adoption rather than by returning the child to the natural parents.' Sorentino v. Family & Children's Soc. of Elizabeth, 72 N.J. 127, 131 (1976) (hereinafter Sorentino I). Moreover, the father, having legitimatized his relationship to the child by
his subsequent marriage to the mother, also retained those rights of a natural father at the birth of a child. 72 N.J. at 134. However, because the child had been in the custody of prospective adopting parents from July 9, 1974, one month after birth, to December 17, 1976, the date of our decision (a period of some 31 months), the case was remanded to the Chancery Division for a hearing on what then remained as the single question in the case, namely, "whether transferring custody of the child to plaintiffs * * * will raise the probability of serious harm to the child.' 72 N.J. at 133. The burden of proof on this issue was placed on the plaintiffs, as they were seeking to alter the status quo of the child.
At the hearing the trial judge took testimony on that issue from both plaintiffs, the child's pediatrician, plaintiffs' expert, defendants Doe and their three expert witnesses. Promptly thereafter he rendered his decision continuing custody in the defendants-adoptive parents. He concluded that plaintiffs had failed to satisfy him by a fair preponderance of the credible testimony that transfer of the child would not raise the probability of serious harm to the child, the "convincing evidence' being to the contrary. Plaintiffs seek review of that determination consistent with the provision in our earlier opinion that "any party may notice the matter for review in this court * * *,' 72 N.J. at 133, for which purpose we retained jurisdiction. In addition defendants have petitioned the Court directly for a determination that under all the circumstances now obtaining they are entitled to adopt the child.
With respect to the initial issue in the case, that is, whether custody should remain with defendants, four points are presented for our consideration. The first, which need not long detain us, is that the trial court should have permitted plaintiffs to produce certain alleged expert and
lay testimony directed to the effect upon a child when told it has been adopted. Scheduling difficulties prevented the production of these witnesses (whose names and copies of whose reports had not been timely furnished to defense counsel as agreed) in the order in which they ordinarily would have appeared in the course of plaintiffs' case. Were there any error, which we do not perceive, in the trial judge's exercise of discretion in not permitting these witnesses to testify after all the other evidence on both sides had been presented, it was completely dissipated by his acceptance of the fact, as stated on the record, that while there are "problems' with regard to adopted children, those problems do not always arise in every case. To the extent that the witnesses would have supported this general thesis by resort to actual examples, the court dealt with the offer of proof by accepting the conclusional facts of their sum testimony that "the adoption in those specific cases brought on dramatic emotional consequences in the adopted child's life.' Under the circumstances no prejudice inured to plaintiffs by the barring of these witnesses' testimony, the substance thereof having been duly considered by the court.
Nor was there any error, as alleged, in the refusal of the trial judge to disqualify himself by virtue of the fact that he is the father of adopted twins. As it happens, this judge had also been the father of a natural daughter who died several years ago. In any event the argument for disqualification is almost specious, for if an adoptive parent could not judge this case simply because of his adoptive status, then the asserted ground for disqualification presumably could be argued by putative adoptive parents and applied with equal force against a judge who was a natural parent. And it might well be urged that a judge who never enjoyed the blessings of parenthood would likewise be without the qualifications to decide any custody matter, not because of potential prejudice or conflict but rather because of the lack of any experience upon which to form an understanding of the relationships involved. Were all of these
contentions accorded respectability, there would be no pool of judicial officers from which to draw a judge for this case. In any event we have no difficulty in avoiding this artificial quagmire. Nothing in the record before us calls for the application of either the disqualification statute, N.J.S.A. 2A:15-49, or our rule on the subject, R. 1:12-1.
Plaintiffs' next contention is couched in federal constitutional terms, the argument being that this Court has denied the petitioners their Ninth and Fourteenth Amendment rights by depriving them of "the presumption of a primary right to the custody of their natural child and impos[ing] the burden of proving that no serious psychological harm would come to the child upon transfer to the natural parents.' Assuming, arguendo, that such a right may be found in the Constitution (see, e.g., Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965); Griswold v. Conn., 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)), assuredly it is not absolute. Indeed, plaintiffs appear to concede as much in their brief by conditioning any such primary right to custody on the absence of "some overriding consideration [which] dictates a termination of that right.' Just such an overriding consideration was projected in the first appeal in this case -- the "potentiality for serious psychological harm' resulting from a transfer of custody from the intending adoptive parents to the natural parents in view of the substantial period of time that the child had been in the only real home she had known. Sorentino I, supra, 72 N.J. at 133. The whole point of the remand was to determine whether that risk would ...