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Matter of Adoption of a Child by D.M.H.

Decided: April 28, 1994.


On appeal from the Superior Court, Appellate Division.

Handler, Wilentz, Clifford, Pollock, Garibaldi, Stein, O'Hern


The opinion of the court was delivered by


The controversy in this case is between a mother, who voluntarily surrendered her newborn baby for adoption but subsequently objected to the adoption, and the adoptive parents, who seek to terminate the mother's parental rights so that they can adopt the child.

The surrender of the child for adoption took place privately. The parties agreed that the biological mother could have some continuing contact with the child following his adoption. Almost a year after the surrender of the child, the adoptive parents brought this action for adoption. At that time, the biological mother objected and filed a complaint for custody.

The trial court found that the biological mother had intentionally abandoned her child, but the court refused to terminate her parental rights because it had a reasonable expectation that she would reverse her conduct constituting abandonment. The court therefore dismissed the adoption complaint, although it ordered custody of the child to remain with the would-be adoptive parents, subject to visitation by the biological mother.

On appeal, the Appellate Division determined that the biological mother had intentionally abandoned her child and that the abandonment was not subject to reversal, but was final. It therefore terminated the mother's parental rights and ordered that the adoption be granted. On the basis of a Dissent, which found that the biological mother had not intentionally abandoned the child, the mother appealed to this Court as a matter of right. R. 2:2-1(a)(2).

The central issue on appeal is whether under the private-adoption statute the parental rights of the biological mother should be terminated on grounds of intentional abandonment. A related issue is whether under the statute the intentional abandonment of a child is subject to reversal. This case also raises the issue of whether an adoption may be subject to an agreement that allows the biological parent to maintain a relationship with the child.


Jeanne H. (also sometimes referred to as "J.H.") became pregnant in the fall of 1989. She was then twenty years old, unmarried, and the mother of an infant boy, Bobby. J.H. apparently had misgivings about having or keeping the baby, or both. She had considered abortion in November 1989. In January 1990, she first began to think about giving up the baby for adoption.

Donna and Steve H. (also sometimes referred to as "Hs") wanted to adopt a baby when, after two years of marriage, they realized that they could not have one of their own. Donna H. has two teenage daughters from her previous marriage. She began inquiring at the pediatrician's office where she was employed whether the patients knew of any expectant parents who might be interested in giving up their baby for adoption. Through a mutual acquaintance Donna H. first contacted Jeanne H. in February 1990. The Hs initiated Discussions with Jeanne H. about the possibility of adopting her unborn child. The Discussions continued throughout the period of J.H.'s pregnancy. Eventually, Donna H. took J.H. to the hospital clinic for prenatal visits.

Jeanne H. apparently reached a decision in the spring of 1990 to give up her child for adoption. Around May 1990, she called an attorney about representing her in the adoption. According to J.H., she decided to give up the child for adoption only on June 29, 1990. The trial court found that J.H. had made the decision to have the Hs adopt her child "late in the pregnancy, possibly as late as June of 1990." J.H. stated that she had had "enough time to think about giving up [her] child to the Hs in July of 1990" and that hers had not been a "snap decision."

The parties agreed that Jeanne H. would receive pictures of the child and would be able to visit him. J.H. stated that she was going to be able to visit the baby at least "twice a month" and believed that she would be "a big part of the baby's life" as a "nannie" or "Aunt Jeannie" to the child. Donna H. stated: "We had agreed that when the baby was a certain age . . . he would get to meet his brother and any other children that she had had later on in years." (Since this litigation began, Jeanne H. had another child, who currently lives with her and her other son Bobby, and is engaged to be married). The trial court found that the parties had agreed that J.H. "could visit with the child and be informed as to the child's progress."

On July 22, 1990, J.H. delivered a healthy baby boy. A few days later, on July 27, 1990, she surrendered the child to the Hs, who named the child Steven. On October 15, 1990, J.H. signed a consent form for the adoption. The trial court found that J.H. had knowingly and voluntarily signed the document with legal counsel present and that she knew "the nature of the consent form document which she was signing."

During the first year of the child's life, J.H. called the Hs approximately once a month to obtain photos of the child and to inquire about the child's development. J.H. testified that she had called the Hs in September, October, November, and December of 1990. At another point, however, J.H. stated that she had asked to see the child "every other week" since the surrender of her child. The parties also had dinner in January 1991.

The Hs filed their complaint for the adoption of Steven on May 28, 1991. Shortly thereafter, on July 16, the parties argued about whether J.H. could see the child to give him his birthday present. After repeated conversations between Donna H. and J.H., Steve H. spoke on the phone with J.H. She said: "Well I'm going to -- I want to come and get my baby." Steve H., in anger and frustration, responded: "Well, then come and get the baby." On the same day, July 16, Jeanne H. sent a letter to the Atlantic County Surrogate's office objecting to the adoption. On July 21, 1991, the day before the child's first birthday, the parties met and J.H. saw Steven for the first time since she had surrendered the child. At that time, as found by the trial court, Jeanne H. "made a decision to attempt to regain custody of the child." On the following day, July 22, J.H. filed a complaint for custody. That complaint alleged that the Hs had "requested that she [J.H.] take the child back."

J.H. stated that at one point she had wanted "her child back" starting about four months after the surrender. Her friend testified that J.H. had wanted the child back "after she came home from the hospital." J.H. further explained that she "didn't want to let them [the Hs] know that I wanted him back, because I knew if I said anything like that, I would not be able to see my son at all." At the same time, J.H. said that she did not go forward with a request for the child's return because she wanted "to keep my end of the deal." J.H. also claimed that she thought she had up to one year to change her mind, seemingly basing that assumption on a conversation with her attorney. Therefore, she thought she would be able to reclaim the child and take the child back "permanently."

The trial court found that Jeanne H. had never communicated to the Hs her decision to regain custody of the child until she filed her custody complaint. Before July 1991, according to the court, phone conversations only involved updates on the child's development, not his return. "There was never a request for [the child's] return until July of 1991."

The trial court determined that J.H. had intentionally abandoned her child. However, the court ruled that the private-adoption statute, N.J.S.A. 9:3-48(c)(1), provides for the reversal of conduct demonstrating intentional abandonment, and the court determined that it had "a reasonable expectation of reversal" of the conduct constituting intentional abandonment. Accordingly, the court ruled that termination of J.H.'s parental rights was impermissible and denied the Hs' complaint seeking adoption, but awarded the Hs custody of Steven and granted visitation rights to J.H.

The majority in the Appellate Division interpreted the statute not to permit the reversal of conduct constituting intentional abandonment. According to the majority, the intentional abandonment of the child by J.H. was final, and that court ordered the termination of her parental rights and authorized the adoption by the Hs, without any rights of visitation for J.H.

The Dissent disagreed with the majority's determination of an intentional abandonment as well as with its interpretation of the statute, which would foreclose a reversal of conduct constituting abandonment. Therefore it would have denied the termination of parental rights.


All inquiries that bear on whether parental rights may be terminated must be considered in light of the extraordinarily strong protections that surround those rights. The right of a biological parent to enjoy a relationship with his or her child is fundamental and constitutionally protected. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re Adoption of Children by L.A.S., 134 N.J. 127 (1993). As this Court stated in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 512 A.2d 438 (1986):

We emphasize the inviolability of the family unit, noting that "the rights to conceive and to raise one's children have been deemed 'essential,' * * * 'basic civil rights of man,' * * * and 'rights far more precious * * * than property rights'. . . ." The interests of parents in this relationship have thus been deemed fundamental and are constitutionally protected.

[Id. at 599 (quoting Stanley, supra, 405 U.S. at 651, 92 S. Ct. at 1212, 31 L. Ed. 2d at 558).]

Accordingly, strict standards must be satisfied before a parent's rights will be terminated. Santosky v. Kramer, 455 U.S. 745, 762-64, 102 S. Ct. 1388, 1399-1400, 71 L. Ed. 2d 599, 612-13 (1982); In re Guardianship of J.C., 129 N.J. 1, 10, 608 A.2d 1312 (1992).


The private-adoption statute controlling this litigation provides that to terminate a biological parent's rights, a court must find "intentional abandonment or a very substantial neglect of parental duties without a reasonable expectation of reversal of that conduct in the future." N.J.S.A. 9:3-48(c)(1). Alternatively, a court may terminate parental rights if the parent "has substantially failed to perform the regular and expected parental functions of care and support of the child, which shall include maintenance of an emotional relationship with the child." N.J.S.A. 9:3-46(a).

"Abandonment" in both private and public adoptions requires a state of mind that indicates the willful or purposeful repudiation of parental responsibilities. L.A.S., supra, 134 N.J. at 134-35 (noting that despite differences in public- and private-adoption statutes regarding termination of parental rights, substantive standards are "roughly equivalent"); In re Baby M., 109 N.J. 396, 444-45, 537 A.2d 1227 (1988) (same). "Abandonment requires a finding that a parent has willfully foresaken obligations, although physically and financially able to discharge those obligations." L.A.S., supra, 134 N.J. at 134; accord In re Guardianship of K.L.F., 129 N.J. 32, 39, 608 A.2d 1327 (1992); J.C., supra, 129 N.J. at 17. The biological parent "must have engaged in a course of conduct that 'evidences a settled purpose to forego all parental duties and relinquish all parental claims to the child.'" L.A.S., supra, 134 N.J. at 135 (quoting In re N., 96 N.J. Super. 415, 426 (App. Div. 1967)).

A court's determination of abandonment is fact-oriented. Our case law establishes that surrender and consent are factors that bear on abandonment. See, e.g., Sees v. Baber, 74 N.J. 201, 377 A.2d 628 (1977); James B. Boskey, Adoption, The Termination of Parental Rights and Baby M., 18 Seton Hall L. Rev. 866, 869, 873 n.44 (1988) (noting that private surrender may be some evidence to be considered by court in terminating parental rights). Further,

whether the consent, or its attempted withdrawal, should be given any weight in determining if the adoption should be allowed, would depend on a variety of circumstances, such as the conditions under which the consent was originally given, the length of time between the giving and the withdrawal of the consent, the extent of reliance on the consent ...

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