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Matter of Adoption of L.A.S.

Decided: August 5, 1993.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 258 N.J. Super. 614 (1992).

For modification, affirmance and remandment -- Chief Justice Wilentz, and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. For reversal -- none. The opinion of the Court was delivered by Handler, J.



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This appeal raises the issue of whether parental rights may be terminated because the parent will be incarcerated for a lengthy period. The parent whose rights are at stake in this case is the natural father of two children. He was convicted of murder, for which he is serving a life sentence subject to a period of parole ineligibility for thirty years. The husband of the natural mother, the stepfather of the children, petitioned for their adoption. The petition was opposed by the natural father.

The trial court found that the natural father's incarceration constituted an abandonment of parental duties and terminated his parental rights. The Appellate Division, in a reported decision, 258 N.J. Super. 614, 610 A.2d 925 (1992), reversed and remanded for a more extensive hearing, ruling that a parent's incarceration cannot be the sole basis for terminating parental rights. This Court granted the adoptive father's petition for certification, 130 N.J. 599, 617 A.2d 1222 (1992).


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H.E., the natural father, and L.S. were married on October 29, 1976. H.E. and L.S. had two sons: H.A.E., born May 8, 1977, and J.E., born December 14, 1978. The parents separated in 1980 and were divorced on September 8, 1982. Joint custody was awarded at that time and visitation was granted to H.E. In 1980 L.S. met plaintiff, L.A.S., and began living with him six months later. L.A.S. began supporting the children in 1981, and married L.S. in December 1982.

In early 1985, H.E. and his brother were arrested and charged with hiring a man to kill his brother's ex-wife. H.E. was convicted of conspiracy to commit murder and first-degree murder on June 17, 1986, and was sentenced to life imprisonment with thirty years' parole ineligibility. J.E. and H.A.E. were eight and six years old at the time of L.E.'s imprisonment. H.E. has been and is currently incarcerated in New Jersey State Prison.

L.A.S. filed a complaint for adoption of J.E. and H.A.E. on October 12, 1990, in the Chancery Division. The court set a date for the preliminary hearing and ordered an investigative report from Better Living Services, Inc. on the placement of the children in petitioner's home, pursuant to N.J.S.A. 9:3-48a(2). Better Living Services evaluated the children and the adoptive family, but not the adoptive father, and recommended adoption. H.E. entered an objection to the adoption.

At the adoption hearing, L.S. testified that since the separation, H.E. had seen his children a few times and once while in prison five or six years ago. L.S. stated that the boys had been "very scared" to see their father in prison. After the visit they told her and her husband that they did not want to go back because "it was a very scary situation for them." At the close of the applicant's case, the court denied a motion to dismiss, stating that the applicant had presented evidence of a prima facie case of "constructive abandonment."


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H.E. then testified that he had had a "great relationship" with his sons before the separation from his wife. After the separation, he saw his sons on a weekly basis, as well as during two-week summer vacations. Initially following H.E.'s incarceration in 1985, he was able to communicate with his children on a weekly basis by phone and through letters and cards. H.E. submitted a psychological report compiled shortly after his incarceration, which found that the children seemed emotionally well-adjusted but were confused and frightened about H.E.'s incarceration. The report noted that the children had had "consistent experience with their father," that they had a need to continue contact with their father, and that arrangements should be made to facilitate such contact without traumatizing the children.

H.E. testified that he had seen his sons once since his imprisonment, and that they had been very happy to see him on that occasion. After that visit, however, L.A.S. changed addresses. H.E. stated that he had written to his sons repeatedly but had received no response. H.E. had not been able to maintain contact with his children despite the efforts of the prison priest and a social worker to locate them. In 1990, H.E. had also attempted to communicate with his ex-wife and L.A.S. to arrange visitation with his children, but had received no response.

The court asked the boys, aged fourteen and twelve respectively, whether they wanted him to grant their stepfather's application for adoption. The boys replied that they did. The court also interviewed them in camera to determine that the boys were not speaking under any duress.

Following H.E.'s testimony, the court decided on the record that H.E. had abandoned his children. The court based its Conclusion on the fact of H.E.'s lengthy period of incarceration, stating that during the past five or six years of H.E.'s imprisonment, "he has not been able to render any of the regular or expected parental functions of care and support of these children as required." The court stressed that H.E.'s incarceration would last a total of thirty years, during which time he would continue to be unavailable to {PA}

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his children as a parent. It determined that the commission of a crime is equivalent to intending the consequences of that crime, including imprisonment. The court concluded by terminating H.E.'s parental rights and granting the adoption by L.A.S., noting, "The evidence clearly indicates that the granting of this application is in the best interests of [H.A.E. and J.E.]."

The Appellate Division reversed the trial court judgment to terminate H.E.'s parental rights, concluding that the trial court erred in basing its decision solely on the fact of H.E.'s incarceration. 258 N.J. Super. at 621, 610 A.2d 925. It noted that courts are generally reluctant to terminate "something so fundamental as the relationship of natural parent and child." Id. at 618, 610 A.2d 925. Therefore, parental rights should be terminated only after the trial court has engaged in a "multi-facet [ sic ] evaluation of abandonment in which incarceration is but one of the factors considered." Id. at 620-21, 610 A.2d 925. Accordingly, it remanded the matter for a further hearing in which both sides could present evidence refuting or supporting abandonment. Id. at 621, 610 A.2d 925.


The right of a parent to enjoy a relationship with his or her child is considered fundamental, and is constitutionally protected. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); New Jersey Div. of Youth & Family Services v. A.W., 103 N.J. 591, 599, 512 A.2d 438 (1986). Termination of parental rights -- in contrast to the loss of custody of one's children -- permanently severs the relationship between children and their biological parents. In re Guardianship of J.C., 129 N.J. 1, 10, 608 A.2d 1312 (1992). The United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 762-64, 102 S. Ct. 1388, 1399-1400, 71 L. Ed. 2d 599, 612-13 (1982), has evaluated the evidentiary standard to be applied ...

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