Lutheran Social Services, an agency licensed by the State to place children for adoption, asks this court to determine whether, in a termination of parental rights proceeding, service by publication upon the natural father of an illegitimate child, where the mother refuses to reveal his identity, is consistent with the requirements of due process. In each of the above cases, the child's mother has surrendered her rights pursuant to N.J.S.A. 9:3-41. Lutheran Social Services would like to place the two infant children for the purposes of adoption as soon as possible. It seeks to terminate parental rights at this juncture so that the adoptive parents are not faced with this problem at the time of adoption proceedings after they have become attached to the child.
N.J.S.A. 9:3-45 requires that notice of adoption proceedings be given to each parent of the child to be adopted, except those parents who have surrendered their rights pursuant to N.J.S.A. 9:3-41 or those whose rights have been terminated "in a separate judicial proceeding by court order." Having secured valid surrenders from the two mothers of the infants presently in its care, Lutheran Social Services is presently seeking to terminate the rights of the two fathers involved.
The facts in each case further illustrate the unique issue which is presented here. In the case of B. the mother refused to give any information to Lutheran Services concerning the identity of her child's father or his whereabouts. The mother signed an affidavit asserting that the father was not involved with her during the pregnancy or after the delivery of the child. Lutheran Services was granted leave to proceed by way of notice through publication and such notice was published on July 16,
1979. Lutheran is presently seeking to proceed with termination on the basis of this notice.
The facts of the case of J. are somewhat more involved. Initially, the mother of this child refused to name the father but agreed to serve the necessary papers on him herself. Lutheran Services proceeded in this manner and all necessary papers were prepared and delivered to the mother. In the interim, however, the mother ceased to cooperate and Lutheran Services does not know her present whereabouts. The mother had given the agency some personal information regarding the father, including his age, his employer and the fact that he was not a United States citizen. The agency sought to serve defendant by way of his employer, but the employer refused to cooperate or provide any further information. Lutheran Services wishes to serve the father by way of publication so that it might proceed with termination.
N.J.S.A. 9:2-18 sets forth requirements for an action to terminate parental rights. For the purposes of this section "parent" does not include a father of an illegitimate child. N.J.S.A. 9:2-13. In addition, the statute directs the presiding court to find that a father shall have no right to custody once the court determines that the child is illegitimate. Under the law of New Jersey, it would appear that the natural fathers of these two children are not entitled to notice before termination. In fact, the statute suggests that these men have no rights to be terminated. However, the constitutionality of these statutory sections has been questioned in light of the United States Supreme Court's decision in Stanley v. Illinois , 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). In In re Adoption by A.R. , 152 N.J. Super. 541 (Cty.Ct.1977), the New Jersey court declined to give full consideration to the continued validity of these sections but found that an unwed father had a "right to notice and an opportunity to be heard before his parental rights are terminated." (At 543).
Service of process in termination of parental rights cases is governed by R. 4:93-2(a), which provides: "Service or substituted
service upon each person having custody of the child shall be made as provided by R. 4:78." R. 4:78-1 expressly provides: "Service of process in all matrimonial actions shall be made in accordance with the applicable provisions of R. 4:4." Service of process in a termination proceeding is to be made pursuant to R. 4:4, the general rules governing service of process in civil matters, to the same extent that that rule applies to matrimonial matters.
R. 4:78 was amended in 1975, and these amendments were discussed by the Appellate Division in Drobney v. Drobney , 146 N.J. Super. 317 (1977), where Judge Pressler, writing for the court, concluded:
The evident intention of this rule was to permit service in all matrimonial actions pursuant to R. 4:4-4, including its long-arm provisions where applicable if personal jurisdiction were sought, or service pursuant to R. 4:4 5 if ...