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In re Adoption of A Child

Decided: December 14, 1978.


On appeal from Juvenile and Domestic Relations Court, Hudson County, which opinion is reported at N.J. Super. ( ).

Lora, Michels and Larner. The opinion of the court was delivered by Larner, J.A.D.


This is an appeal by prospective adoptive parents from the dismissal of a complaint for adoption at a preliminary hearing held pursuant to N.J.S.A. 9:3-24. The order of the trial court dismissed the complaint and directed plaintiffs to surrender custody of the child to the Division of Youth and Family Services (DYFS). We granted a stay of this order, appointed George Warren as guardian ad litem for the infant and accelerated the appeal in order to resolve the status of the child as soon as possible.

The important question posed by this appeal is whether the participation of prospective adoptive parents in the illegal placement of a child suffices as a basis for rejecting an adoption where the record fully supports the conclusion that such adoption would be in the best interests of the child. The lengthy opinion of the trial judge, reported at 162 N.J. Super. 587, is focused upon the conclusion that plaintiffs participated in obtaining the child from another state in violation of the letter and spirit of the policy expressed by the Legislature in the statutes framed to prevent and discourage

the "black" and "gray" market in babies. See N.J.S.A. 9:3-19; N.J.S.A. 2A:96-6; N.J.S.A. 2A:96-7.*fn1

As a consequence of this finding, he concluded:

Only in the implementation of the clearly stated policy of the Legislature does there lie a real opportunity of inhibiting and suppressing the opprobrious black market in children. * * * Judicial implementation of that policy will advance the welfare of Baby R and all other infants who may become separated from their natural parents by irregular practices. * * *

Implementation will also safeguard the usually forgotten victims of black market adoptions, the large number of would-be adoptive parents. Hundreds of couples are required to wait four years or more for an agency placement, unwilling to lend themselves to this kind of transaction. Why should a court lend its aid to endorse an illegal placement which enables a couple to go to the head of the line by circumventing the law?

Finally, implementation of the public policy will safeguard the integrity of the judicial system, the final victim of baby-selling.

It is evident from the record and the reports and recommendation of DYFS that plaintiffs are eminently qualified to undertake parenthood of the child and that it is to the best interests of the child that he remain in their custody for ultimate adoption. It is equally evident, therefore, that the sole ground upon which the judge rested his dismissal of the complaint was the impropriety inherent in the means and method by which plaintiffs obtained the child for placement in their home.

Furthermore, this litigation is unusual in that it lacks the characteristics of the normal adversary proceeding. In the trial court, plaintiffs and DYFS urged that the criteria of N.J.S.A. 9:3-25 had been fully met and that an order was warranted setting a date for final hearing in accordance with the statutory scheme of the Adoption Act. The judge acted sua sponte in denying relief. Similarly, in this court,

the appeal is uncontested since counsel for plaintiffs, counsel for DYFS and the appointed guardian ad litem all take the position that the trial judge erred and that the order of dismissal should be reversed.

A brief review of the factual complex underlying the placement of the child is appropriate.

I.T. and K.T. were married in 1969. In 1973, when they realized that they were unable to have children of their own, they explored the possibility of adopting a child. As a result of referral by friends they contacted J.E., an attorney of Tucson, Arizona, and advised him of their interest in adopting a child. Sometime thereafter J.E. advised I.T. and K.T. that a client was pregnant and wished to place her child to be born for adoption. Accordingly, in July 1973, when notified of the birth, I.T. and K.T. went to Tucson and returned with a baby girl who was thereafter adopted without complications in October 1974.

After a few years the couple decided to expand their family and again contacted J.E. In July 1977 he notified I.T. and K.T. about an expectant mother who desired to arrange for the adoption of her baby. On September 23, 1977 they were notified that a baby boy had been born on the day before. Arrangements were then made for the baby to be transported by a Mrs. K., a friend of J.E., to Kennedy Airport where the baby who is the subject of this adoption proceeding was delivered to I.T. and K.T.

Shortly thereafter they retained an attorney who filed an adoption complaint in November 1977. The complaint set forth the salient facts relating to plaintiffs, the birth of the child, and the name and address of the mother, and prayed for a judgment granting adoption and changing the name of the child to M.T. Attached to this complaint was an affidavit by plaintiffs verifying the allegations of the complaint and setting forth some of the circumstances surrounding the child's placement in their home. In addition, there was attached an affidavit and consent, dated September 27, 1977, by Bankr. which stated that she is the natural

mother of Baby Boy R, born in Tucson on September 22, 1977, that she is 16 years of age and has never been married. She further declared therein that she relinquishes all rights of whatever nature and surrenders the infant to I.T. and K.T. for the purpose of adoption, waives all notices of adoption proceedings and consents to the adoption by the couple. The document is signed by two witnesses and sworn and subscribed to before a notary public.

A supplemental affidavit of the mother, dated October 31, 1977, was also submitted which stated that she refused to disclose any information as to the putative father, together with a declaration by the parents of Bankr. that they "join" in the consent dated and executed on September 27, 1977.

Pursuant to the order of the trial court, DYFS, as the approved agency, rendered a report of its investigation in December 1977, wherein it recited information relating to the child, its placement and the biographical material relating to I.T. and K.T. Included in this report was the additional information to the effect that I.T. and K.T. paid for the medical and hospital expenses incident to the birth, expenses for the round trip fare of the woman who brought the child from Tucson to New York, a $2,500 legal fee ...

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