Articles Posted in Adoption

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The calendar turning to September signifies different things to different people. For some it signals the court-rules-225x300end of heat and humidity, cooler temperatures and changing leaves. For others, it’s the kids finally going back to school. To still others, it signals the start of the football season, the excitement of baseball pennant races and playoffs, or the opening of basketball or hockey training camps. However, for lawyers such as myself, the holidays come early as each September brings with it special gifts, namely the annual amendments that have been approved by our Supreme Court to the Rules Governing the Courts of the State of New Jersey.

Unlike last year, a number of these recent Rule Amendments directly impact upon Family Part practice, many being in response to, or in clarification of, statutory changes that went into effect over the last few years. I will summarize and discuss these Amendments over the course of several blog posts.

Arbitration

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In the published Appellate Division opinion in NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.O. and M.C.D. A-1871-16, (App. Div.  Oct. 30, 2018), the AppellateIMG_1930-1-300x225 Division addressed the 2011 emergency removal of two children, ages 7 and 2, from their undocumented immigrant parents. While the two children remained in resource homes, the parents were removed from the United States. The mother was prohibited from returning to the U.S. for 10 years and the father was prohibited from returning to the U.S. for 20 years. In 2013, the parents appeared by telephone, represented by counsel, and entered into an identified voluntary surrender of their parental rights to a family they had identified to the Division as a potential resource placement. Both of the parents confirmed that in the event the family whom they identified for resource placement did not adopt their children, then  their parental rights would be reinstated and litigation would be reopened. Ten months later, the trial court ruled against moving the children to the family identified as a potential resource placement. Without notice to the parents, the trial court vacated the identified voluntary surrenders, reinstated the biological parents’ parental rights and reopened the guardianship litigation. Thereafter, the father was provided with services needed for reunification with the children.  The mother could not be provided with reunification services because she could not be located.  She failed to keep in contact with the Division after leaving the U.S.   She ultimately resumed living with the children’s father, but both parents were inconsistent in maintaining contact with the Division.

Neither of the children speak Spanish. One of the children had a language disorder that would make it difficult for him to learn Spanish if he were sent to live with his parents. Additionally, the children had bonded with the resource parents and wanted to be adopted by them. The trial court found that termination of parental rights was in the best interest of the children.

The parents appealed the trial court’s decision, arguing that their due process rights were violated because they did not receive notice of the pending dissolution of the identified surrender and because many of the hearings that were before the termination trial and were not held on the record. Even though the parties did not raise these arguments in the trial court, the Appellate Division agreed that the parties should have been notified before the identified surrender judgment was vacated. More importantly, the Appellate Division stated that every proceeding should have been placed on the record even when the parents were in agreement with the provisions of the order being entered. All Children In Court proceedings resulting in orders should be on the record. Particularly when the parents, who have not unconditionally abandoned their rights, are not parties to the proceedings. Nevertheless, the failure to do so in this case was not fatal because the parents rights were restored and they were parties to a full trial on the merits.

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As an attorney who practices family law, I can attest to how painful battles for custody over children are when couples separate.   Even more painful are disputes between adoptive and biological14688d11364778879628f618a4504f40-300x169 parents fighting over custody of a baby.   Among the most famous and newsworthy of such disputes was the New Jersey case of “Baby M”, which was decided ultimately by the Supreme Court of New Jersey in 1988 in In re Baby M,109 N.J. 396 (1988).   In that case, a couple hired a surrogate mother to give birth to their child, after which the surrogate mother claimed that the surrogacy contract was invalid and that her parental rights were improperly terminated, and the child improperly adopted by the biological father’s wife.   The Supreme Court in In re Baby M, invalidated the surrogacy contract and restored the surrogate mother’s biological rights.   This case was splayed out in the news at the time, but was ultimately still a dispute between biological parents.

It is still heartbreaking when there are disputes between biological and adoptive parents over custody of a child.  A recent unpublished decision of the Appellate Division in the case of In re Adoption of a Child by R.C.W. and S.M.W., A-2907-17 (App. Div. Aug. 7, 2018) has recently been in the news in New Jersey, though not with the same attention as the “Baby M” surrogacy case.   In this case, the biological mother of “Baby J” sought to set aside the adoption of her biological child by its adoptive parents.  The Appellate Division addressed the heartache head-on, writing “Few cases have so much potential for calamity.  The adopting parents could lose their only child, the child they have nurtured since birth, and in consequence suffer a lifetime of emotional pain and heartbreak. The birth mother could see her decision to surrender her child upheld, have her parental rights terminated, and in consequences suffer a lifetime of regret and sorrow.  The child could be abruptly removed from the only parents and home it has ever known, placed in the hands of a virtual stranger, and in consequence suffer permanent emotional damage.”  The Court’s statement acknowledges the weight and impact of the decision before it.

In this case, the 19 year old birth mother “Mya” was a full-time college student, with a part-time job, and living with her mother.  She had terminated two prior pregnancies at the request of her mother, and indicated that she was surprised by this pregnancy as she used birth control.  She did not tell her mother other family members about this pregnancy, fearing that she would lose the support of her mother.   Moreover, after she and her mother were evicted from their apartment and she came to live with her sister and her sister’s family, Mya did not feel that she would be financially able to care for the child, and expressed that she needed to finish college.  She told only a new boyfriend and a teacher/mentor about the pregnancy.

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For the third time since 2012, the New Jersey lawmakers have passed legislation that would allow persons to enter into gestational carrier agreements; namely for the intended parents to enter into a contract with a woman 21 years of age or older to become pregnant by assisted reproductive technology without the use of her own egg, and to surrender custody of the child to the intended parent immediately upon birth, and considered neither an adoption nor termination of parental rights, as long as the requirements of the statute are strictly adhered to. While two prior legislative attempts were vetoed by then Gov. Christie, it is expected that this Baby-M-movie-300x238current legislation (S482) will be signed by Gov. Murphy soon and become law. Many people continue to refer to the agreements covered by the statute as “surrogacy contracts”, and that they would in effect overturn the Supreme Court ruling in Matter of Baby M, 109 N.J. 396 (1988) which deemed such surrogacy contracts invalid. Continue reading ›

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TANGEL 13he jurisdiction of the Family Part of the New Jersey Superior Court to make orders determining custody is based upon the common law doctrine of parens patriae, which imposes upon the court an affirmative duty to protect the best interests of minor children. The members the New Jersey Judiciary that serve our State in making these decisions will tell you that these decisions are some of the most difficult they have faced in their professional careers and also some of the most rewarding. On December 15, 2015, the Supreme Court of New Jersey issued an opinion modifying and affirming the Appellate Division’s decision denying the appeal by the New Jersey Division of Child Protection & Permanency in the case of New Jersey Division of Child Protection & Permanency v. K.N. and K.E., 435 N.J. Super. 16 (App.Div. 2014), wherein the “Division” appealed from a June, 2013 order that awarded custody of T.E. (“Tommy”), the six-year-old son of K.N. (“Kara”) and T.E. (“Kevin”) to his maternal grandmother as a paid resource placement parents. Continue reading ›

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For more than three decades a debate has been waged in New Jersey on the adoption front over the extent to which adoptees can access their birth records and uncover information about their biological parents. In 1940, New Jersey began sealing adoption records.   In 1977, New Jersey allowed the records to be accessible by court order. N.J.S.A. 9:3-51.   Anti-abortion/pro-life activists advocated for birth records to be sealed because birth mothers who wished for anonymity might be more inclined to have an abortion if her privacy were not protected, or birth mothers might be more inclined to use New Jersey’s Safe Haven Infant Protection  law that allows a newborn who is less than thirty days old to be left legally and anonymously at a police station or hospital emergency room without having to give any identifying or health information about the birth mother.  Continue reading ›