On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Dreier, Shebell and Stern. The opinion of the court was delivered by Dreier, J.A.D.
Plaintiffs A.L. and B.L.*fn1 have appealed from a summary judgment entered by Judge Cassidy in the Law Division. He dismissed their complaint for out-of-pocket expenses and consequential damages arising from the alleged breach by defendants P.A. and M.A. of a contract to permit plaintiffs to adopt defendants' infant son.
The child was born to M.A. when she was 20 years old and P.A. was 19. They were unmarried and living separately. M.A. lived with her parents who helped care for the infant, and P.A. visited regularly. The situation continued for the first nine to ten months of the child's life. When her parents informed her that they would be traveling after her father's retirement in a few months, M.A. became concerned about being able to care for her child properly. She then discussed the matter at length with her baby-sitter and indicated that she was contemplating placing her son in a foster home preparatory to offering him for adoption. Based upon her fondness and trust for the baby-sitter, M.A. agreed to give the sitter temporary custody while she made up her mind concerning the adoption. This was accomplished, again with no compensation, for a period of approximately six weeks. During this period the baby-sitter learned that her cousins, plaintiffs A.L. and B.L., were interested in adopting a child and the natural mother
was so informed. Although the testimony diverged slightly as to the events of the next month, it is clear that with the sitter merely passing messages between them, the parties were brought together on several occasions to exchange information and discuss the adoption.*fn2 At these meetings plaintiffs expressed their desire to adopt the child, explaining that they were unsuccessful in prior attempts to adopt through adoption agencies. Plaintiffs' claim that defendants gave them repeated assurances that they had given adequate consideration to their decision and were completely satisfied with it. They thereupon gave custody of their son, then 10 months old to plaintiffs.
Plaintiffs filed their complaint for adoption soon after receiving the baby. Defendants were duly served with a notice of the hearing accompanied by an affidavit of no contest for them to sign. They waited nearly six weeks and then signed and returned the affidavit. Approximately one week later the Children's Aid and Adoption Society prepared its report for the court after meeting with both the natural mother and the prospective adopting parents. (The father was unavailable because of his work schedule). The mother told the social worker that she and P.A. had consented to the adoption because under the circumstances they could not provide their child with proper security and stability. The social worker concluded that plaintiffs were financially and emotionally capable of being parents to the child.
Ten days after they signed their affidavits of consent the natural parents retracted their consent to the adoption and
commenced unspecified "legal proceedings" for the return of their child. They were married soon thereafter.
Plaintiffs continued to pursue their adoption action for the next three months; but then and with some obvious discomfort and reluctance, they withdrew their adoption action, relinquished their efforts to adopt the child, and returned him to the custody of his natural parents with whom he has remained. Three months later they filed this action for damages for breach of contract. They alleged that B.L. had left her job of seven years in order to devote herself full-time to the care of the child. In addition to this lost income, plaintiffs also assert that they incurred expenses for food, clothing and medical care for the child and suffered emotional distress resulting from defendants' breach of the alleged contract. Judge Cassidy in a nine-page formal opinion concluded:
No New Jersey decision has been brought to the attention of the Court which would allow damages to be awarded in this instance. Additionally, nowhere in the extensive statutory language dealing with adoptions and parental rights, N.J.S.A. 9:3-37 et seq. had the legislature expressly created a cause of action for damages in this situation.
Based upon this finding, Judge Cassidy granted defendants' motion for summary judgment. We agree and affirm. Since, however, this is a case of first impression, ...