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In re Adoption of Children

May 05, 1998


Before Judges Muir, Jr., Kestin and Cuff.

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

[9]    Submitted: December 17, 1997

On appeal from the Chancery Division, Family Part, Cape May County.

This is a contested adoption of two boys, now aged ten and eight, by their stepfather. The boys' birth father, M.M., appeals from an order terminating his parental rights and allowing the adoption by the stepfather. In this case, we must determine whether the facts as found by the trial Judge satisfy the statutory criteria of N.J.S.A. 9:3-46, which governs adoption over the objection of the birth parent. We reverse.

M.M. and A.B. married in 1981. Several months after their marriage, A.B. realized that M.M.'s alcohol consumption was excessive. They separated and reconciled only after M.M. promised to stop drinking and participate in Alcoholics Anonymous. In 1987, A.B. became pregnant with the couple's first child, R.M. During this pregnancy, M.M. started to drink and to drink to excess. M.M. worked with a counselor; however, during A.B.'s pregnancy with their second child in 1989, M.M. resumed abusing alcohol.

The problem intensified after the birth of the second child, A.M. At times, M.M. did not come home. When he was home he could not hold a conversation. He lost fifty pounds, and the family's financial foundation was severely compromised by M.M.'s improvident expenditures and lack of attention to existing obligations. A.B. learned of this situation when she began to receive calls from creditors concerning unpaid and overdue bills. On one occasion, M.M. threatened to drive himself and his family into a tree. Finally, in spring 1990, when A.M. was only five months old, A.B. discovered M.M. holding the baby and trying to have the baby acknowledge that Jesus was his savior. The couple separated the next day.

The next two years were marked by several psychiatric hospitalizations for M.M., at least one of which led to an involuntary commitment. He was diagnosed with a bipolar disorder aggravated by substance abuse (alcohol and antihistamines). In February 1992, after one of his hospitalizations, the parties were divorced. The property settlement agreement granted sole custody of the children to A.B. M.M. agreed to pay $200 a week in child support and he agreed to have no visitation with the children. Prior to the divorce, M.M. saw the boys in a supervised setting. Since the divorce, A.B. has not allowed M.M. to see the children.

A.B. met G.B. in 1990. They started to date in 1991 and married in August 1994. Their daughter was born in 1995. A.B. and her husband testified that the boys consider G.B. as their father. They know that M.M. is their birth father but they have no relationship with him. G.B. is fully involved in the boys' lives. He serves as the soccer coach for one boy's team and the assistant coach for the other boy's baseball team. Both boys want to be known by G.B.'s last name. One of the boys cannot spell his birth surname. The older child has some recollection of his father; the younger child has none.

The medical testimony reveals that M.M.'s psychiatric condition is now stabilized. He no longer has bouts of manic behavior which in the past created such emotional and financial havoc. He continues to abstain from alcohol. There have been no episodes of delusional behavior. Two recent hospitalizations in 1995 and 1996 were required solely to adjust his medications.

In 1992, M.M. was declared disabled by the Social Security Administration. He receives a monthly stipend of $892. His children by his marriage to A.B. each receive monthly stipends of $93. At one time, due to his disability and multiple hospitalizations, M.M. accrued substantial child support arrears. These arrears have been satisfied and A.B. received a $5500 lump sum payment on behalf of the boys when M.M. was declared disabled.

M.M. has remarried. He resides with his wife and her four children from her prior marriage and the two children born during this marriage. M.M. is also attending college full-time and was close to completion of degree requirements at the time of trial.

M.M. has not seen his children since M.M.'s psychiatric condition stabilized. A.B. will not allow visitation. M.M. has, however, filed repeated motions for visitation which A.B. has opposed. Each of his motions has been denied.

Following a three-day trial, the trial Judge concluded that if "the children fail to perceive their father as their parent and should this circumstance exist for more than six months parental rights may be terminated." The trial Judge also noted that such proof must be by clear and convincing evidence and that the subsequent adoption must be in the best interests of the children. He then found that no relationship exists between M.M. and his sons and that M.M. was able to substantially perform the regular and expected parental functions of care and support since mid-1993. He further found that the adoption by G.B. was in the best interests of the children.

A birth parent's right "to enjoy a relationship with his or her child is fundamental and constitutionally protected." In re Adoption of a Child by D.M.H., 135 N.J. 473, 480, cert. denied, 513 U.S. 967, 115 S. Ct. 433, 130 L. Ed. 2d 345 (1994). The right to conceive and raise one's child is deemed essential and is far more significant than a property right. New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Therefore, any inquiry regarding the termination ...

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