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 biological 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 A recent unpublished decision of the Appellate Division in the case of In re Adoption of a Child by R.C.W. and S.M.W., A-2907-17 (App.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.
Mya filled out paperwork from the adoption agency and contacted the potential adoptive parents, Stephen and Stephanie. She told them that she was certain she wanted the baby to be adopted and that she did not want to see the baby when it was born. Mya said that she wanted no contact with with baby other than photos of the child on holidays and birthdays, but told them that the child could contact her when it was older if it wanted to meet her (Baby J’s gender was not revealed in the written opinion). In the exchanges between them leading up to the birth, Mya expressed no reservations to them about the adoption.
While the regulations require the adoption agency to provide three counseling sessions with the birth mother in a private, professional setting, there was not much time leading up to the birth. The adoption agency counselor had two sessions with Mya before the both, both of which were in a crowded Starbucks. At the hearing before the trial court, Mya and the counselor disagreed with how long the sessions were and the extent of what was discussed. Mya indicated that at the first meeting, she explained that she and her mother had been evicted and that she did not feel that she could care for the child. Mya denied that the counselor told her about adoption alternatives, other than the potential for a friend to care for the child, nor did the counsel suggest foster care or placement with the Division of Child Placement and Permanancy (DCPP). She denied that the counselor told her about social programs that might assist her in providing for the child such as WIC, SNAP, Workfirst New Jersey, Cares for Kids, New Jersey Family Leave Insurance Program, Temporary Assistance for Needy Families, TANF, housing assistance, Section 8 and the like. The adoption counselor indicated more was discussed including Mya’s interest, her income, her education and Mya’s desire that no one know that she was pregnant or giving birth. She indicated that she did not think the child could be placed with DCPP though they discussed different kinds of adoption, placement with a friend or family member, foster care, and post-placement contact with the child. n and college attendance, her income, and the biological mother’s desire that no one know that she was giving birth. The counselor indicated that the biological mother was committed to adoption.
At a second meeting between the adoption agency’s counselor and the biological mother, the counselor and Mya discussed a birth plan, whether the adoptive parents could be present at the birth, and Mya’s desire to give birth anonymously and in a non-maternity room as she wanted no one to know about. Again Mya and the counselor disputed the extent of the discussions in this session. The counselor indicated that they again discussed other options beyond adoption, advising the biological father for support, and telling Mya’s family, all of which she claimed Mya rejected. Mya also indicated that she wanted only the adoptive parents’ names on the child’s birth certificate not her own.
There was no third counseling section as Mya gave birth to Baby J in July. She did want to hold the baby, and she and the baby were visited by the biological father and his sister, as well as a coworker of Mya’s. Mya turned the baby over to the adoption agency and left the hospital just a few hours after birth, refusing to stay overnight as her mother would wonder why she was not at dinner, and because she had to work the next day. Mya met the next day with the adoption counselor in the hospital lobby to sign documents authorizing the baby’s discharge to the adoption agency and transfer of physical custody of Baby J to the adoptive parents. The counselor explained that Mya refused the suggestion that she tell her mother about the birth, told her that this document was not a termination of parental rights, and claimed to have discussed options other than adoption. At the hearing, the counselor asserted that she took handwritten notes in all cases including this one, but claimed that for the first time ever, she shredded those notes after typing them.
They met for a final time at the agency in order for Mya to meet the attorney hired by the agency to advise her about the surrender documents. The attorney did not inform Mya about the connection to the adoption agency, but informed her that once she signed the documents to surrender, her parental rights were terminated, that this was permanent and irrevocable and that she could not change her mind. At the hearing, Mya testified that she felt rushed to sign the documents and was unsure about the adoption. Thereafter, she exchanged text messages over the next few weeks with the adoptive parents, Stephen and Stephanie, but expressed no regret or remorse about the adoption.
This changed at the end of August, 2017 when Mya finally told her mother and sisters about having given birth and given up the baby for adoption. In September, Mya’s sister sent a text message to Stephanie indicating that Mya wanted the child returned. Mya sent an email to Stephanie expressing regret for giving up the baby and her desire for Baby J to be returned. She also wrote to the adoption agency to seek to revoke the adoption, stating that she did not realize when she gave the baby up that she would have the support of her family in keeping the baby. Mya filed a verified petition seeking to revoke the surrender and asked the court for Baby J to be returned, asserting that she would not have given the baby up for adoption if the adoption agency had met its statutory requirements, including advising her about options other than adoption and the availability of public programs that would have assisted her in providing for the child.
The trial court found that Mya’s testimony was credible, and that the adoption agency counselor was not. He noted that they did not provide her with three private counseling sessions before the birth, that they did not provide her with adoption options or advise her as to the availability of public assistance services, and believed that the counselor’s typewritten notes were fake. By this point, Baby J was seven months old and had been in the sole care of the out-of-state adoptive parents. The Appellate Division granted a stay of that order, and accelerated the appeal.
The Appellate Division reversed the decision of the trial court and upheld the surrender of the child for adoption signed by Mya. The Appellate Division examined the “Adoption Act”, N.J.S.A. 9:3-37 et seq., which requires that it be “liberally construed to the end that the best interests of children . .. be of paramount concern”, and which requires that a “completed adoption establishes ‘the same relationship . . . between the child and the adopting parent as if the child were born to the adopting parent.” The statute requires that in order for a child to be adopted, the parental rights of the birth parents must be terminated. This can occur voluntarily when a parent surrenders a child to a state approved agency for adoption. The statute indicates that a surrender is a written, voluntary relinquishment of parental rights to allow the child to be adopted, and it means the “permanent end of the relationship and all contact between the parent and child”. Surrenders are irrevocable “except at the discretion of the approved agency taking such surrender or upon order or judgment of a court of competent jurisdiction setting aside such surrender upon proof of fraud, duress or misrepresentation by the approved agency”. A parent seeking to rescind the surrender of a child for purposes of adoption has to prove one of the statutory grounds by a preponderance of the evidence.
In addition to ascertaining whether the adoption agency’s non-compliance with portions of the regulatory requirements of N.J.A.C. 3A:50-5.4(c) was constituted a material misrepresentation that would be enough to nullify Mya’s surrender of the child, the Appellate Division noted that the trial court had to consider the best interest of Baby J, which the trial judge did not do. The trial judge did not consider the potential psychological harm to taking Baby J away from the parents who had nurtured her since birth. The Appellate Division also noted that it was not its role to second guess the trial court, the Appellate Division did take note that Mya’s testimony at the hearing was inconsistent with all of the documentary evidence generated in the matter between the discovery of the pregnancy and Baby J’s birth.
The Appellate Division noted that not all violations of the statutory regulations are sufficient to constitute a misrepresentation that would be enough to void a valid surrender. For instance, while the counselor met with the birth mother at a public location like Starbucks in lieu of an office or other private location was not considered to be sufficient to void the surrender; in some cases, that is the more convenient location for the birth mother, and it is better to counsel her at such a convenient place than not at all. In addition, the Appellate Division found that Mya did not provide that the agency made any statements that were false, material and relied on by her. For example, while Mya complained at the hearing that she as not advised by the adoption agency of public assistance programs, she did not attempt to demonstrate that she would have qualified for such assistance. Given that Mya was employed, had health insurance and was able to purchase a home shortly after Baby J’s birth, the Appellate Division had reason to doubt that she would have qualified for public assistance had she been told about it.
This case illustrates the heart breaking realities faced often by judges in the area of family law, and the weight that such decisions our court system needs to bear.