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In re Adoption of A Child

Decided: April 13, 1993.


Whitken, J.s.c.


This matter involves an issue not yet decided by the courts of New Jersey as to whether an adoption can be finalized when the potential adoptive parent has died subsequent to the preliminary court hearing but prior to the final hearing required for a private placement adoption. For the reasons expressed hereafter I find that there is no authority for such adoption under New Jersey Law and therefore the adoption cannot be granted.


On January 22, 1992, N.E.Y. filed a complaint for the adoption of a minor child with this court indicating she was forty-two years of age and a widow. The child she sought to adopt was a female

infant, born November 26, 1991, in Southampton, New York, and was under her continuous care since December 3, 1991.

The plaintiff's good friends, C.M. and S.M., had agreed to conceive a child for the plaintiff to thereafter adopt and, in fact, the infant was conceived by C.M., and during her pregnancy all parties considered the baby she carried to be the child of the plaintiff.

Subsequent to the birth of the child she was cared for by her biological parents until December 3, 1991, when she was surrendered to the plaintiff at her New Jersey home.

Since this was a private placement adoption, a preliminary hearing was held on April 16, 1992, pursuant to N.J.S.A. 9:3-48, at which time this court took testimony and reviewed the favorable report of Children Of The World. This court then entered an order on April 16, 1992, terminating the parental rights of the natural mother and father of the infant child and declaring the child potentially fit for adoption, at which time a final hearing was scheduled for Thursday, October 22, 1992. This court's order further appointed Children Of The World, Inc., as the next friend and indicated that the child shall hereafter be known as J.M.M.,*fn1 except that her birth certificate was not to be amended until the final judgment was entered, and further providing that the plaintiff could act in her own name in providing for the health and education of the child and directing that the plaintiff was not to remove the child from this state other than for vacations and temporary visits except on order of the court.

Unfortunately, N.E.Y. died on September 11, 1992, due to a recurrence of cancer.

This court has been advised that N.E.Y. named the child's biological parents as her guardian and also named the child as the sole beneficiary under her last will and testament. Counsel for

N.E.Y. has represented to the court that the inheritance that the child will receive from N.E.Y. pursuant to her last will and testament is in the approximate sum of $300,000.00.

A motion was thereafter filed on behalf of N.E.Y. requesting that this court enter an order finalizing the adoption and awarding custody of the child to S.M. and C.M., her biological parents and the guardians designated under the last will and testament of N.E.Y.

In support of that motion, a certification has been submitted by the attorney for the plaintiff, indicating that the child was considered to be that of the plaintiff by the biological parents from the moment of conception, that Children Of The World was appointed to conduct the adoption investigation and they approved the adoption, and the child was conceived with the knowledge by all parties that the plaintiff had cancer but that it was in remission at the time of the preliminary hearing.

The certification further states that the parties planned that should there be a recurrence of the plaintiff's cancer resulting in her death, the biological parents would be named as guardians under the plaintiff's will.

The certification of the attorney indicates that the plaintiff died prior to the finalization of the adoption but it is clear that had she survived, the adoption would have been finalized. The certification further argues that the finalization of the adoption is in the best interest of the child and indicates that since the child is the sole beneficiary under the last will and testament of the plaintiff, should the adoption be approved, the child will receive the estate free of inheritance taxes, be entitled to social security survivorship benefits, and that adoption will also provide a simple vehicle to return the child to her biological parents who have physical custody at this time. The certification of the attorney further indicates that although N.E.Y. was a widow at the time of the birth, the last name has great meaning to her deceased husband's parents, who are Japanese.

A certification of the biological parents indicates clearly that they conceived the child at the request of the plaintiff, their dear friend, and considered the child to be hers from the moment of conception. It further indicates that it would be in the best interest of the child that the adoption be finalized and that the child be declared to legally be N.E.Y.'s daughter; that the infant is the sole legatee under the last will and testament of N.E.Y. and if she becomes N.E.Y.'s child the estate would not be reduced by inheritance taxes, and, more importantly, that the child would be entitled to social security survivorship benefits. They further request that if the adoption is finalized they be given custody of the child and be declared the designated guardians pursuant to the will.

A certification of G.Y. indicates he is the Executor of the estate of N.E.Y., the plaintiff, who died on September 11, 1992; that the placement was made by the biological parents with the knowledge that the decedent had breast cancer, but it was in remission and the prognosis was good; and that, in fact, being aware of the uncertainties of life, the decedent executed a will leaving her estate to her "daughter," the child sought to be adopted, and appointing the birth parents as guardians of the child in the event of her death.

As a representative of the estate of the plaintiff, the executor asks that the court finalize the adoption and declare the child the daughter of the decedent, which would give legal effect to what was the reality of the situation and it would be in the best interests of the child in that she would inherit free of inheritance tax and be entitled to social security survivorship benefits.

Finally, attached to the certifications is a letter dated November 27, 1992, from Children Of The World recognizing that the plaintiff has died and indicating that they had completed a thorough Adoption Court Investigation (ACI) and had found the plaintiff to be a fit parent, and they understand that the reason for having the adoption completed is because of the social security survivorship benefits and other benefits that will inure to the benefit of the

child, including a relationship with the parents of the decedent, and they also support the request in the decedent's will to return the child to her birth parents.


As indicated in In re Holibaugh, 18 N.J. 229, 113 A.2d 654 (1955), adoption was known to the ancient Greeks and Romans but the right of adoption was unknown to the common law of England. Thus, in this country the right of adoption and the consequences flowing therefrom are of statutory ...

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