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Matter of Adoption of Child by T.W.C.

Decided: February 8, 1994.

IN THE MATTER OF THE ADOPTION OF A CHILD BY T.W.C. AND P.C.


On appeal from the Superior Court, Chancery Division - Family Part, Morris County.

Gaulkin, R.s. Cohen and Wallace. The opinion of the court was delivered by Gaulkin, P.J.A.D.

Gaulkin

This case presents questions of jurisdiction and choice of law in an interstate private-placement adoption. N.C. (the mother), a New York resident, privately placed her newborn son for adoption by New Jersey residents T.W.C. and P.C. (the Coes, a fictional name). The Coes commenced an adoption proceeding in New Jersey, but the mother gave notice that she revoked her consent to the adoption. The Family Part Judge determined that New Jersey had jurisdiction and that New Jersey law applied. The result was that the adoption was denied and the child was returned to the mother. The Coes appeal. We affirm.

I

The mother had been seriously injured in an automobile accident at age 16. When she became pregnant some seven years later, she believed that her disabilities made her unable to parent a child. She sought out a California adoption counsellor who provided profiles of prospective adoptive families, including the Coes. Arrangements for the private placement were made; the mother was represented by New York counsel paid by the Coes.

The child was born July 14, 1992 in a Connecticut hospital. The mother and child left the hospital on July 16 and went with the Coes directly to a restaurant in New York State. The Coes there took custody of the child after the mother executed and acknowledged a document consenting to the anticipated adoption, stating that the identity of the natural father was unknown and reciting that the mother was represented by the named New York attorney. Those matters appeared at the end of a printed form, captioned in the Superior Court of New Jersey but purportedly authorized by a New York statute, Domestic Relations Law § 115-b. The document provided:

This consent may be revoked within 45 days of the execution of this document. If the consent is not revoked within said 45 days, no proceeding may be maintained by the parent(s) for the return of the custody of the child.

The revocation must be in writing and received by the court where the adoption proceeding is to be commenced within 45 days of the execution of the consent. The name and address of the court in which the adoption proceeding has been or is to be commenced is

SUPERIOR COURT OF THE STATE OF NEW JERSEY, COUNTY OF MORRIS, CHANCERY DIVISION, FAMILY PART, ADMINISTRATION & RECORDS BUILDING, MORRISTOWN, NEW JERSEY 07963-0900

If the adoptive parents contest the revocation, timely notice of revocation will not necessarily result in the return of the child to the parent(s), and the rights of the parent(s) to the custody of the child will not be superior to those of the adoptive parents. A hearing before a Judge will be required to determine: (1) whether the notice of revocation was timely and properly given; and, if such notice was timely and properly given and the adoptive parents have contested the revocation, (2) whether the best interests of the child will be served: (A) by returning custody of the child to the parent(s); or (B) by continuing the adoption proceedings commenced by the adoptive parents; or (C) by Disposition other than adoption by the adoptive parents; or (D) by placement of the child with an authorized agency. If any such determination is made, the court will make such Disposition of the custody of the child as will best serve the interests of the child.

On August 17, 1992, the Coes filed their adoption complaint in the Superior Court of New Jersey, Chancery Division -- Family Part, which entered an order fixing a preliminary hearing for October 30 (later adjourned to November 20) and directing notice to be given to the mother. See N.J.S.A. 9:3-48; R. 5:10-4. By letter dated October 1, 32 days after expiration of the 45-day revocation period stated in the consent document, the mother notified the court that she revoked her consent. The Coes responded with a motion to enforce the consent "in accordance with and as required by New York law, and terminating the parental rights of said mother"; alternatively, they requested a hearing "to determine whether the best interests of the child . . . will be served by returning custody . . . to the birth mother, or by his adoption."

At the same time, the Coes brought an action in New York to terminate the mother's parental rights and to consummate the adoption and also moved in the New Jersey action to dismiss their complaint in favor of the New York proceedings. The mother

then filed an answer to the New Jersey adoption complaint, which included demands for a declaration that New Jersey had jurisdiction over the adoption, for a declaration that New Jersey law governed and for an order enjoining the Coes from proceeding in New York.

Following argument on those applications and cross-applications, the Family Part Judge entered an order (1) holding that New Jersey had jurisdiction, (2) declaring that "the decisional and statutory law of . . . New Jersey shall control Disposition of [the lawsuit]," (3) enjoining the Coes from proceeding further in the New York action, (4) denying the Coes' motion to dismiss their complaint, (5) appointing Dr. David M. Brodzinsky, a clinical psychologist, to report "relative to the [mother's] ability to parent the minor child" and (6) scheduling a plenary hearing on all "issues raised." At the Conclusion of the plenary hearing, conducted over four days in March 1993, the Judge found no adequate basis under New Jersey law to terminate the mother's parental rights. She accordingly entered final judgment dismissing the Coes' complaint with prejudice and returning the child to the mother's custody. The trial court, this court and the Supreme Court all denied the Coes' applications for stay pending appeal.

II

In approaching the jurisdictional questions, we start with the proposition, accepted by the parties, that the New Jersey Adoption Act, N.J.S.A. 9:3-37 to -56, grants our courts subject-matter jurisdiction of adoptions by New Jersey residents, whether the children are received from within or without New Jersey. See N.J.S.A. 9:3-47, -48; In re Adoption by D.F.H., 230 N.J. Super. 445, 553 A.2d 866 (App.Div.1989). But an interstate placement requires consideration also of the Interstate Compact on Placement of Children (ICPC), N.J.S.A. 9:23-5 to -17, the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52, and the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A.

The ICPC is designed to promote the proper placement of children and to provide "[a]ppropriate jurisdictional arrangements for the care of children." N.J.S.A. 9:23-5 (ICPC, art. I). New Jersey and New York are both signatories to the compact. N.Y.Soc.Serv. Law § 374-a (McKinney 1992). An interstate placement is unlawful if it is effected in violation of the ICPC's terms. N.J.S.A. 9:23-5 (ICPC, art. IV). The record here indicates, and the parties do not question, that the New York placement of the child for removal to New Jersey was in full compliance with the compact, on notice to and with the approval of the New York compact administrator. Id. (ICPC, art. III). The ICPC thus presented no obstacle to the Family Part's exercise of jurisdiction under the New Jersey Adoption Act; indeed, N.J.S.A. 9:23-17 specifically directs that the court "shall follow the procedures and implement the requirements as are otherwise contained in law" in its administration of placements subject to the compact.

The UCCJA and the PKPA, however, do impose strictures on the court's exercise of jurisdiction here. The UCCJA, which has also been enacted in New York, see N.Y.Dom.Rel.Law §§ 75-a to 75-z (McKinney 1988), fixes standards and procedures for determining "when a state should exercise original jurisdiction in a custody proceeding, that is, when no state is in the midst of custody proceedings or has made a custody award after such proceedings." Neger v. Neger, 93 N.J. 15, 25, 459 A.2d 628 (1983). The UCCJA term "custody proceeding" has been held "to include a dispute between a natural parent and adoptive parents." E.E.B. v. D.A., 89 N.J. 595, 607, 446 A.2d 871 (1982). Although E.E.B. involved habeas corpus proceedings, its rationale warrants application of the UCCJA in adoption proceedings as well. See, e.g., State ex rel. Torres v. Mason, 315 Or. 386, 848 P. 2d 592 (1993); Bernadette W. Hartfield, The Uniform Child Custody Jurisdiction Act and the Problem of Jurisdiction in Interstate Adoption: An Easy Fix?, 43 Okla.L.Rev. 621 (1990). E.E.B. also implicitly holds, as other courts have held, that the PKPA applies to adoption proceedings. E.E.B., supra, 89 N.J. at 611-12, 446 A.2d 871; Adoption of Zachariah K., 6 Cal.App. 4th 1025, 1033, 8

Cal.Rptr. 2d 423, 428 (1992); In re B.B.R., 566 A.2d 1032, 1038 (D.C.App.1989); Rogers v. Platt, 641 F. Supp. 381 (D.D.C.1986), rev'd on other grounds, 814 F. 2d 683 ...


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