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In re Adoption of A Child

February 23, 1998

IN THE MATTER OF THE ADOPTION OF A CHILD BY P.F.R. AND V.A.I.


Argued February 3, 1998 - Decided February 20, 1998

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County.

Before Judges Long, Stern and Kleiner.

The opinion of the court was delivered by: Kleiner, J.A.D.

Baby D was born on January 31, 1994. His natural mother Joan Todd *fn1 surrendered him for adoption to an approved agency, Catholic Charities Diocese of Metuchen ("Catholic Charities") on February 10, 1994. See N.J.S.A. 9:3-38a (defining "approved agency"). Thereafter, Baby D was placed in the home of plaintiffs, Peter Robinson and Vivian Robinson, on February 23, 1994, where he has continuously resided.

Effective April 27, 1994, adoptions in New Jersey are governed by N.J.S.A. 9:3-38 to -55. This appeal requires us to construe N.J.S.A. 9:3-46a where the natural father of a child born out of wedlock contests an adoption after the natural mother surrenders the child for adoption to an approved agency. Although there have been two reported opinions construing this statute, In re Adoption of a Child by R.K., 303 N.J. Super. 182 (Ch. Div. 1997), and In re Adoption of a Child by F.O. and W.O., N.J. Super. (Ch. Div 1997), both opinions involved natural fathers who knew of their child's existence from the date of birth. Here, the natural father, Richard Simpson, in objecting to the Robinson's adoption, alleged that he first learned of the birth of his infant son on October 22, 1994. Thus, he argued that a determination of whether he "substantially failed to perform the regular and expected parental functions of care and support of the child, although able to do so," N.J.S.A. 9:3-46, must be based on an analysis of his conduct commencing on that date.

Plaintiffs countered that they were entitled to the statutory presumption, embodied in N.J.S.A. 9:3-46, that " parent shall be presumed to have failed to perform the regular and expected parental functions of care and support of the child if the court finds that the situation set forth in [N.J.S.A. 9:3-46a(1)] or [N.J.S.A. 9:3-46a(2)] has occurred for six or more months."

The essence of plaintiffs' contention is that the statutory presumption commences at birth, here January 31, 1994, and thus plaintiffs were entitled to that presumption effective July 31, 1994. Thus, plaintiffs argue that despite Sampson's lack of knowledge of Baby D's birth, the statutory presumption entitled them to a judgment, after proof that they met all other statutory criteria for adoption. Stated differently, plaintiffs argue that ignorance of a child's existence is, by itself, insufficient to overcome the statutory presumption. Alternatively, plaintiffs contend that Sampson failed to perform the "regular and expected parental functions of care and support of the child" even after he learned of Baby D's birth.

The trial Judge agreed with Sampson. The eleven-day trial focused upon the entire relationship of Sampson and Todd, exploring the veracity of Sampson's claim that he did not learn of Todd's pregnancy or of Baby D's birth until October 22, 1994, and exploring and evaluating Sampson's conduct after October 22, 1994.

At the Conclusion of the trial on March 27, 1997, the Judge rendered a fifty-one page oral opinion. After reviewing in meticulous detail the testimony of each witness, and then, again in meticulous detail, explaining why certain portions of the testimony were not worthy of belief and why other portions of testimony were substantially credible, the Judge concluded, "Based upon those findings, the Plaintiffs have failed to demonstrate by clear and convincing evidence that abandoned *fn2 this child within the meaning of that term within N.J.S.A. 9:3-46a(1). The Judge thus concluded that plaintiffs' complaint for adoption must be denied. The Judge also orally concluded that visitation between Sampson and Baby D should immediately commence, and that a transition plan should be established resulting in Baby D's move from plaintiffs' home in New Jersey to Sampson's home in West Virginia.

Immediately following the Judge's oral decision, plaintiffs made a motion for a stay of the order transferring the child pending appeal, a motion for a "best interests hearing," *fn3 and requested the opportunity to file a motion for reconsideration. Sampson's counsel immediately contended:

he adoptive parents at this time have no legal right to restrain the child. The only person who has the right to restrain that child or to hold that child is the father. . . . he adoptive parents have absolutely no right to a best interest hearing. They have no right to a custody hearing because the time that they have held this child is not custody, it's possession . . . . The Judge delayed the implementation of her ruling to permit the filing of appropriate motions.

On March 31, 1997, Sampson filed a petition seeking, pursuant to N.J.S.A. 2A:67-13, a writ of demanding sole custody of Baby D. On that same day plaintiffs filed a motion for reconsideration of the Judge's oral decision. Plaintiffs also filed on that day a complaint for custody. *fn4

Plaintiffs' motions were heard by the court on April 4, 1997. The court entered orders on April 7, 1997, granting visitation to Sampson, denying plaintiffs' motion for reconsideration, dismissing plaintiffs' count one of the adoption complaint and declaring the dismissal to be a final judgment, and denying plaintiff's application for a "best interests hearing." *fn5 Thereafter, on April 22, 1997, plaintiffs sought an order from this court declaring the trial court's order final for purposes of appeal, for a stay of the transfer of Baby D, and for a stay of visitation. On May 28, 1997, we granted plaintiffs' motion to stay the trial court's order regarding custody, denied their application to stay visitation, and accelerated the appeal.

Our standard of review is articulated in Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974):

"ur appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial Judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of Justice," and the appellate court therefore ponders whether, on the ...


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