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E.E.B. and J.E.B. v. D.A.A/K/A D.M.

Decided: June 21, 1982.

E.E.B. AND J.E.B., HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
D.A.A/K/A D.M. AND J.M. AND CHILDREN'S SERVICES DIVISION, HOLMES COUNTY, DEPARTMENT OF PUBLIC WELFARE, DEFENDANTS-APPELLANTS



On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz, and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by Pollock, J.

Pollock

The issue on this appeal is whether the courts of New Jersey have jurisdiction to determine the best interest of a child in an interstate custody dispute. In this case, prospective adoptive parents seek to retain custody of a three and one-half year old girl who has lived with them since six days after her birth. The Chancery Division determined that the best interest of the child was to remain with the adoptive parents. Previously, the natural mother had obtained a writ of habeas corpus from the Holmes County Juvenile Court in Ohio, the state of residence of the mother and adoptive parents at the time of the child's birth. In that proceeding, the Ohio courts determined the natural mother's rights to custody and, without conducting a best interest hearing, ordered the return of the child to her.

We must determine whether the decision of the Chancery Division gave proper effect to the Ohio determination in light of the full faith and credit clause, U.S.Const., Art. IV, § 1, the Parental Kidnapping Prevention Act of 1980, § 8, 28 U.S.C.A., § 1738A (PKPA), and the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 to -52 (UCCJA). We conclude that, by

declining to determine the best interest of the child, Ohio enabled the New Jersey courts to modify the determination without violating the full faith and credit clause or the federal and state statutes.

I

In the vortex of this interstate child custody dispute is a little girl. She was born in Ohio on October 13, 1978 and has lived in New Jersey since October, 1979. A month before the child's birth, her natural mother consulted with the Ohio Welfare Department concerning relinquishment of the child at birth. On October 16, 1978, three days after the child's birth, the natural mother and father, who were unmarried, signed a sworn "Permanent Surrender of Child" form that surrendered custody of the child to the Holmes County Welfare Department. Three days later the Department delivered the child to the prospective adoptive parents. On October 23, 1978, one week after signing the surrender form, the natural mother appeared at the Department and orally revoked the surrender. Nonetheless, the Department did not inform the Ohio Juvenile Court of the revocation, and that court approved the surrender on the following day.

Two months later, on December 29, 1978, the mother instituted a habeas corpus proceeding to obtain custody of the child. The natural father did not join in the Ohio proceeding, but is joined as a defendant in the present proceeding. In February, 1979, the Ohio Juvenile Court rendered a written opinion finding that the mother had validly consented to the surrender and denying the writ. The Ohio Court of Appeals affirmed that decision in June of 1979. In both courts, the adoptive parents not only opposed the issuance of the writ, but sought a best interest hearing for the child.

On July 23, 1979, the mother filed an appeal to the Supreme Court of Ohio. In October, 1979, while the case was pending before that Court, the adoptive parents and the child moved

from Ohio to New Jersey because the father, a clergyman, had been appointed pastor of a church in Wayne, New Jersey. Before leaving Ohio, the adoptive parents notified the Department of their plans and continued to communicate with the Department throughout the proceedings.

On July 23, 1980, the Ohio Supreme Court reversed and remanded the matter to the Juvenile Court. 63 Ohio St. 2d 227, 407 N.E. 2d 524 (1980). The Supreme Court concluded that the natural mother had revoked her consent before the Juvenile Court approved the surrender of the child to the Department. Id. at 229-31, 407 N.E. 2d at 526-27. The adoptive parents filed a motion with the Ohio Supreme Court for a rehearing, asserting that the Court should have remanded the case to the Juvenile Court "to conduct a best interest hearing prior to any decision as to whether the writ of habeas corpus should issue."

While the motion for rehearing was pending, the Juvenile Court held an informal meeting attended by counsel for the natural mother, counsel for the Department and counsel for the adoptive parents. At the meeting, counsel for the adoptive parents stated that if the Ohio Supreme Court denied the motion, he would nonetheless press for a best interest hearing before the Juvenile Court. On September 12, 1980, the Ohio Supreme Court denied the motion for rehearing, and on September 23, 1980 the Juvenile Court issued the writ of habeas corpus.

The adoptive parents instituted this action for custody on September 29, 1980 in the Superior Court of New Jersey, Chancery Division. On December 1, 1980, the Chancery Division found that it had jurisdiction and ordered a best interest hearing. Although the Appellate Division denied the natural mother's motion for leave to appeal, we directed the Appellate Division to review the Chancery Division's finding of jurisdiction. In an unpublished opinion, the Appellate Division sustained the finding of jurisdiction of the New Jersey courts. We denied a motion for leave to appeal.

Simultaneously with the remand to the Appellate Division, we remanded the matter to the Chancery Division for an expedited best interest hearing. 85 N.J. 503 (1981). Underlying our remand to the Chancery Division was the need for a hearing to resolve the competing claims of the natural mother and adoptive parents in the best interest of the child. We remanded out of a profound respect for the ties that normally bind natural parents and child. See Santosky v. Kramer, U.S. , 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (in an action determining rights of parents in natural child, due process requires proof of "permanent neglect" by clear and convincing evidence). Nonetheless, we also recognized that the psychological bonding between adoptive parents and child may become stronger than natural ties. Sorentino v. Family & Childrens Soc. of Elizabeth, 74 N.J. 313, 322-25 (1977); Sees v. Baber, 74 N.J. 201, 222-23 (1977).

Although duly notified, neither the mother nor her attorney appeared or participated in the best interest hearing in the Chancery Division. After appointing a guardian ad litem for the child, the Chancery Division concluded that her best interest was to remain with the adoptive parents. The guardian ad litem for the child supports that conclusion. On this appeal, the natural mother, who has never seen the child, does not challenge the finding that the best interest of the child is to remain with the adoptive parents, and we accept that finding.

Before us, the natural mother contends that under the full faith and credit clause, PKPA, and UCCJA, the Ohio decree precluded the New Jersey courts from considering the best interest of the child. The adoptive parents do not seek to relitigate the invalidity of the natural mother's surrender of the child. They accept that determination, but contend that because Ohio declined to ...


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