The opinion of the court was delivered by: Hunter
This is a contested stepfather adoption of a six-year-old child. The stepfather argues that since the natural father has substantially failed to perform the regular and expected parental functions of care and support of the child, though able to do so, his parental rights should be terminated, and the adoption allowed to go forward over the natural father's objections. The natural father argues that the natural mother prevented him from fulfilling his parental obligations.
J.S., the father of the child, and M.S., the mother of the child, met in Florida. Their relationship resulted in a female child, born June 29, 1989. In September 1989, the couple married. The marriage was not happy and in March 1990, M.S. took the child and moved to New Jersey, where she was originally from, and where she with the child commenced living with her parents.
J.S. testified at trial that he did not consent to the child being removed; and he did not know his wife and the child were going away; he came home after work one day and they were gone. M.S. testified that she told J.S. she was taking the child and returning to New Jersey.
On August 21, 1990, the Superior Court, Chancery Division, Family Part, Hudson County under Docket # FD-09-691-91, awarded M.S. custody of the child; despite notice, J.S. did not appear at the hearing. On March 8, 1991, J.S. filed for a divorce in Florida; and on May 16, 1991, M.S. filed for a divorce in New Jersey. In his divorce complaint, J.S. requested an order that his wife continue as the residential parent, that he receive liberal visitation including alternate holidays and the summer months, and that the parties share in the support of the child.
In M.S.'s divorce complaint, she cited as extreme cruelty her husband's failure to support herself and the child since March 23, 1990, when she left for New Jersey, and asked for custody of the child, restraint of her husband from visiting the child and removing the child from New Jersey until further order of the court, and for alimony and child support. On July 1, 1992, the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, granted a divorce pursuant to J.S.'s application, during which proceedings J.S. was represented by an attorney. The divorce judgment, without mentioning child custody, support, or visitation, dissolves the bonds of marriage between the couple and goes on to recite: "That this Court specifically retains jurisdiction as to all other matters contained in the Petition for Dissolution of Marriage."
By order dated August 14, 1992, M.S.'s complaint for divorce was dismissed pursuant to the final judgment of divorce entered in Florida, and visitations for J.S. and the child with a court-ordered supervisor at the courthouse were ordered: two visitations for the week of September 7, and on September 14 and 15. The order further stated that the day after the last visit, the child, without J.S. being present, was to be brought to the supervisor for an evaluation of the visits, and later that same day both parents and their attorneys were to conference with the court to evaluate the visitation, and discuss future visitation.
On February 5, 1994, M.S. married R.K. and he became the stepfather of the child he now seeks to adopt. In November 1994, a daughter was born to M.S. and R.K.
R.K.'s adoption petition was filed August 30, 1994. J.S., having been duly given notice of the adoption in accordance with N.J.S.A. 9:3-45, made his objections known to the court in accordance with N.J.S.A. 9:3-46. He filed a certification in October 1994 stating his former wife, M.S., had thwarted his efforts to have a relationship with the child, and that he did not know she was getting a divorce until she had been out the state of Florida over six months by which time his right to bring her back to Florida had elapsed.
An order issued July 25, 1995, pursuant to the adoption petition, stated that R.K. through his expert could submit a preliminary evaluation to the court and to J.S.; and that J.S. could retain his own expert. In 1995 the child, her mother, and stepfather were evaluated by a psychologist, Gerard Costa, Ph.D., who in his report of November 15, 1995, and as a trial witness, recommended the adoption as being in the child's best interests. Dr. Costa also testified at trial that he unsuccessfully attempted to evaluate J.S., who in turn testified that he did not want to come to New Jersey just to be evaluated; nor did he retain his own expert in Florida.
On February 13, 1996, a case management conference was held in chambers, attended by the attorneys for R.K. and J.S., respectively. As a result of that session, the court issued a case management memorandum dated February 14, 1996, which stated: that it appeared that J.S. was interested in pursuing a relationship with his daughter and at the present time did not want to have his parental rights terminated; that the court's suggestion, as based on the representation of J.S.'s attorney that her client had no objection thereto, was that the child's surname be changed to that of her stepfather; that M.S. pursue a URESA application for support; that the court order visitation for J.S. and the child; that the adoption be suspended pending a determination of how visitation and support worked out; that R.K.'s attorney would speak to her client; that if he was not in agreement with the court's suggestions, perhaps the matter should be listed for an involuntary termination hearing.
Subsequently the parties prepared for trial, which took place during three days in November and December of 1996. Dr. Gerard Costa, R.K., M.S., J.S., and J.O., M.S.'s father, testified.
In addition, the court interviewed the child in chambers in the presence of the attorneys. The child told the court that her stepfather had come to court to try to adopt her, that she knew what adoption meant, and she wanted to be adopted by her stepfather and be known under his name. She said that she knew that J.S., whom she addressed by his first name, was her father; she had no memories of him. She added that R.K. was her "Daddy". The child impressed the court as a well-adjusted youngster, secure and happy with her school, friends, and present family.
A judgment of adoption cannot be entered over the objection of a parent unless the court finds that the parent has substantially failed to perform the regular and expected parental functions of care and support. N.J.S.A. 9:3-46a. Such a determination is bound to be heavily fact-oriented. See Matter of Adoption of a Child by D.M.H., 135 N.J. 473, 482, 641 A.2d 235 (1994). Accordingly, the following is a breakdown of the pertinent evidence relating to J.S.'s relationship to the child.
On August 8, 1990, M.S. filed a URESA complaint, Docket No. FD-09-2656-91, seeking $50 a week in child support. At some point after that, J.S. sent M.S. a check and she returned it saying URESA was handling the support matter. The URESA complaint was eventually dismissed without J.S., as he testified, ever receiving notice of it, though his address and phone had not changed since his marriage to M.S.
Introduced into evidence was a letter, which J.S. knew of, dated July 28, 1992, from M.S.'s attorney to J.S.'s Florida attorney, asking for child support payments of $75 a week and medical insurance for the child. J.S. provided no explanation for why he did not respond to the letter except to say that he believed his attorney was handling his actions. J.S. testified he did not know why support was not addressed by his attorney during the divorce proceedings. Except for two checks for $200, each sent in 1992 and 1993 respectively, J.S. apparently paid no child support. J.S. seemed to suggest he sent more than the $400 M.S. testified to; however, he adduced no proof of such.
J.S. said that he did not send more money because his one check was returned. He also sent the child $500 to $600 worth of gift certificates from a national chain of toy stores, and a few gifts consisting of clothes, and Mini Mouse and Barbie dolls during the 1991-1992 period. Furthermore, he sent the child a gift every year for her birthday and Christmas until 1995. He said that when M.S. once asked him for money he sent it to her. She never supplied him with the child's medical bills.
J.S. testified he has not made any financial provision for the child, such as putting monies aside. He stated on the stand that if the adoption was not granted, he would be willing to pay the accumulated child support arrears of $15,000 that would have accrued if URESA had been enforced, and regular child support, calculated pursuant to the child support guidelines; if the court deemed it necessary he would obtain medical insurance for the child; and ...