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In re Adoption of A Child

September 25, 1978


Young, J.c.c.


[162 NJSuper Page 588] The issue presented in this adoption proceeding is whether the circumstances of the private placement of the child constituted an illegal act and should be set aside on grounds of invalidity. The circumstances

in this unregulated placement are highly suggestive of the so-called black and gray market in babies. The evidence to be reviewed, and the determinations to be made are framed by the provisions of the Adoption Act of 1953 and the decisional law interpreting that legislative scheme. That legislation mandates a preliminary hearing when an infant has not been received into plaintiffs' home under the supervision of an "approved agency" as defined by N.J.S.A. 9:3-18(a). N.J.S.A. 9:3-23A(4).

A complaint was filed October 19, 1977, followed by an amended complaint, sworn to November 8, 1977. The latter pleading is a printed form with spaces for averments to be filled in. Following the recitals which identify plaintiffs, the pleading alleges that the child to be adopted is Baby Boy R, who was born September 22, 1977 in Tucson, Arizona.*fn1 The amended complaint further avers that plaintiffs have one other child, J, born July 27, 1973 in Tucson, Arizona; plaintiffs received the child to be adopted from the natural mother, and are not related to the child; the child came under the care of plaintiffs on September 26, 1977 and has continued to the date of commencement of this action; the natural mother of the child is B.R., who resides at Oracle, Arizona, and who is not married to the natural father of the child; plaintiffs are citizens of the United States; the child to be adopted has no property; the intended name of the child is M.T.; the occupations of plaintiffs are housewife for K.T. and "tax shelter sales" for I.T.

There is annexed to the pleading a document which purports to set forth the consent of the natural mother to the adoption, notarized and reflecting the signature of two witnesses in lieu of an acknowledgment as sanctioned by Arizona law. A.R.S.A. 8-107(A). Reference will be made presently to the validity of the instrument to achieve

its intended effect of conferring consent to adoption, and waiver of notice.

Judge Gilmore, J.J.D.R.C. t/a, entered an order for preliminary hearing dated December 5, 1977. The recitals of that order followed the provisions of N.J.S.A. 9:3-23 in that it declared the child to be a ward of the court; that the custody of the child shall be subject to the further order of this court, and that the Division of Youth and Family Services shall make an investigation and report concerning (a) the circumstances under which the child was received in plaintiffs' home, (b) the status of the parents of the child, (c) the potential fitness of the child for adoption and (d) the potential fitness of plaintiffs to adopt the child. It was further ordered that the notice of preliminary hearing, scheduled for January 13, 1978, "shall either be given personally to the natural mother as provided by the statute within 30 days of the date hereto, or notice waived by her." The attorney's inclusion of the waiver of notice provision will be the subject of comment.

In addition to the scope of the preliminary hearing here outlined, another purpose thereof is to determine whether a natural parent should have "[any] further right of custody of the child." N.J.S.A. 9:3-24C; In re Adoption of Children by D. , 61 N.J. 89, 94 (1972). As stated by the Supreme Court in the most recent decision on the subject, "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." Sees v. Baber , 74 N.J. 201, 210 (1977).

The initial report of the Division of Youth and Family Services, filed January 10, 1978, related that the child, Baby Boy R, was born in Tucson, Arizona, on September 22, 1977, to a 16-year-old unwed mother, B.R., then residing at Oracle, Arizona. It appears that an attorney in Tucson, J.A.E., acted as an intermediary in planning the placement of the infant prior to birth. The attorney enlisted an unnamed "friend" to physically take the child on September

26, 1977, four days after birth, from Arizona to J.F. Kennedy International Airport, New York, where the waiting plaintiffs took custody of the child. The initial report recites payments by plaintiffs totalling $5,074, as follows: $600 for air fare, hotel expenses for "a friend of the attorney"; $1,890 for hospital and "medical fees"; $84 for "miscellaneous items such as clothes, telephone calls, birth certificate"; $2,500 for "legal expenses" not otherwise explained. No information was supplied relating to the natural father.

The source of this information was plaintiffs, who are K.T., 30, with two years of college training and experience as a dental assistant and secretary, and her husband, I.T., 33, who holds bachelor's and master's degrees in accounting and finance. Mr. T. has been a securities analyst, co-owner of a manufacturing establishment in needle crafts, and presently the principal of a firm which renders financial services specifically in the tax shelter field. I.T. testified to annual earnings "in excess of $50,000."

At the preliminary hearing, January 13, 1978, it was disclosed that Baby Boy R is the second child acquired by plaintiffs via the efforts of J.A.E. in Tucson. The modus operandi by which plaintiffs obtained custody of a female child in 1973 were in many respects similar to the manner in which custody was obtained of the child now a ward of this court. A judgment of adoption of the female child was entered in the Bergen County Court October 2, 1974. During those years an investigation was conducted by the office of the prosecutor of Bergen County, ranging to many parts of the United States, probing the activity known as black market in babies. That inquiry culminated in the return on September 9, 1976 of four separate indictments against counsel for plaintiffs.*fn2 The trial on those indictments

is scheduled for the September 1978 Term. Sometime after the adoption proceedings in Bergen County plaintiffs herein moved to Hudson County.

This court, not satisfied with the scope of the initial investigation, requested the Division of Youth and Family Services to expand its inquiry and to enlist the cooperation of the Division's counterpart in Phoenix, Arizona. The Division submitted an "Addendum to the Preliminary Report," dated May 31, 1978, the delay attributed to a bureaucratic error in Arizona in routing the letter to the appropriate county. Again, as in the preliminary report, most of the contents were supplied by plaintiffs themselves. Plaintiffs related that they learned of J.A.E., the attorney-intermediary in Tucson, through plaintiff's brother who "had a friend in Arizona whose wife had gone to high school with him." J.A.E. would phone plaintiffs to relate that "a client of his was pregnant and wanted to place her child for adoption." Plaintiffs went by air to the Tucson Medical Center and brought the female child to New Jersey. The circumstances of the placement now under review are said to have their origin in a telephone call by J.A.E. to plaintiffs on July 27, 1977, when he related that he had another pregnant client who wanted to give up her child. The only precondition imposed by plaintiffs was that the child yet to be born be free from physical defects. J.A.E.

telephoned plaintiffs on September 23, 1977, advising that a male child in apparent good health was born to his client on the day before.

The agency's report notes that because of "reservations about finances," plaintiffs did not travel to Tucson. Instead, J.A.E. enlisted "a family friend, Mrs. S.K.," to bring the baby boy to J. F. Kennedy International Airport, New York, on September 26, four days following the child's birth. The report quotes plaintiffs as saying that they gave Mrs. K. no financial reimbursement.

Plaintiffs admit to financial payments here summarized: to Edward Terner, counsel herein, fees of $1,030; hospital expenses attending the confinement, $1,206.25 (which includes charges for an earlier admission for false labor); physician's fees and lab charges, $692; air fare and hotel charges for Mrs. K., $600; miscellaneous, including telephone charges, clothing for the infant, birth certificate, $84; and "attorney's fees" of $2,500 to J.A.E. in Tucson, Arizona.

During the months of March and April the court pressed the Division of Youth and Family Services to obtain additional information, with special reference to the natural mother. By letter of transmittal dated April 25, 1978 that agency provided a photocopy of what purports to be an affidavit executed by the natural mother. The instrument bears the printed name and address of a law firm, L., K. & H., Tucson, and recites in relevant part:

That she is the mother of an infant boy, born in Tucson, Arizona, on September 22, 1977. That your affiant determined that it would be in the best interests of the child if the child be placed for adoption and that your affiant, with the assistance of her physician and relatives, obtained the services of attorney, M.J.G., to arrange for the placement of said child for adoption. That your affiant is fully aware that the child has been placed for adoption and that the adoption of the child has been and is now your affiant's desire.

Mr. G., a member of the law firm aforementioned, states in his letter to the Division of Youth and Family Services that he prepared the affidavit and forwarded it to the mother through her aunt and uncle "here in Arizona." The affidavit reflects the County of Pennington, State of South Dakota, and bears no acknowledgment.

Counsel for plaintiffs concedes, for the purposes of this proceeding, that J.A.E. is not licensed to place children for adoption in the State of New Jersey. Presumably, the same concession would extend to Mrs. S.K., who was enlisted by the Arizona attorney to transport the infant from Arizona to the airport in New York City.

At the outset the court will dispose of the effect of the two purported affidavits assertedly executed by the natural mother. A reading of both documents leads to the conclusion that they are the handiwork of skillful draftsmen, with the overriding design to make the proceedings impervious to attack. They are what may be called "affidavits of adhesion." The scrivener of the affidavit annexed to the amended complaint made sure that, among other things, the natural mother waived one of her rights of due process, namely, notice of these proceedings. As for the document submitted by Mr. G., who included a description of himself as attorney of the natural mother, it is admitted that he drafted the contents in his office in Arizona and, through relatives of the natural mother, had it ...

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