Opinion
DOCKET NO. A-4609-13T4
07-22-2015
IN THE MATTER OF THE ADOPTION OF A CHILD BY L.K. AND C.K.
Francine Del Vescovo argued the cause for appellants A.M. and N.D. (Lomberg & Del Vescovo, LLC, attorneys; Ms. Del Vescovo, on the briefs). Richard J. Mirra argued the cause for respondent Better Living Adoption Services, Inc. (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Mirra, of counsel and on the brief; Nicole C. Tracy and Andrea C. Mackaronis, on the brief). Adam B. Sklar, attorney for respondents L.K. and C.K.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Maven. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FA-0022-13. Francine Del Vescovo argued the cause for appellants A.M. and N.D. (Lomberg & Del Vescovo, LLC, attorneys; Ms. Del Vescovo, on the briefs). Richard J. Mirra argued the cause for respondent Better Living Adoption Services, Inc. (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Mirra, of counsel and on the brief; Nicole C. Tracy and Andrea C. Mackaronis, on the brief). Adam B. Sklar, attorney for respondents L.K. and C.K. PER CURIAM
Plaintiffs A.M. (Andrea) and N.D. (Nick) appeal the Family Part's April 15, 2014 order terminating their parental rights to their son Tommy so that he could be adopted by defendants L.K. (Larry) and C.K. (Carol). We affirm.
We use pseudonyms to refer to the individuals in this case for the sake of confidentiality and clarity.
I.
We discern the following facts and procedural history from the record on appeal.
Tommy was born in July 2012. Two days later, he left the hospital with Carol and Larry, in anticipation of their adoption of Tommy as arranged through defendant Better Living Adoption Services, Inc. (Better Living). Andrea and Nick executed forms consenting to Tommy's adoption by Carol and Larry the following day.
Carol and Larry filed a complaint for adoption in September. However, in November, Andrea and Nick filed withdrawals of their consent and objections to the adoption. In December, they filed a verified complaint seeking to prevent the adoption so that they could raise Tommy. The judge held a bench trial on the two complaints on eleven days between September 2013 and April 2014. The facts that follow were developed during that trial.
Andrea was nineteen years old at the start of the trial. She lived with her parents for a few years following her birth. Her grandparents then obtained custody of Andrea and her younger brother, and they lived with the grandparents and a great- grandmother. Andrea was an active member of her church and went to mass every Sunday. Andrea testified that she lived a relatively sheltered life, socializing mostly with her maternal aunt, who was also her godmother.
Andrea described herself as a good student in high school. She has never been diagnosed with a psychological impairment or learning disability. At the time of trial, she was a college sophomore planning to major in early childhood education and sociology. She had a 3.8 grade point average.
In 2010, Andrea met Nick, who was three years older. Nick described himself as an average high school student, although he testified that he had some problems with reading and writing. After graduation, he attended an automotive trade school and completed a certification program offered by Ford Motor Company. He was subsequently hired to work at a Ford dealership as an automotive technician.
In October 2011, Andrea and Nick had sexual intercourse. According to Andrea, that was the first and only time they were intimate. Andrea took a home pregnancy test in April 2012 and learned that she was pregnant. She had just turned eighteen years old and was a senior in high school.
Andrea did not tell her family about the pregnancy, and testified that she was concerned it might cause her grandmother's Lupus to flare up. On April 26, Andrea called the office of her obstetrician/gynecologist, and spoke with Susan Kadlec, a certified nurse midwife. She told Kadlec that she had not been truthful during her March appointment, when she told Kadlec that she was not sexually active. Kadlec's notes from the call reflect that Andrea told her that she did not want the pregnancy and did not want her grandmother to know about it. She scheduled Andrea for an abortion the following day.
On April 27, Andrea went to an abortion clinic. She was unable to terminate the pregnancy because it was too advanced. At trial, Andrea denied any recollection of going to the clinic. However, she later stipulated that she did appear at the clinic for an elective termination of the pregnancy.
On May 8, Andrea met with Kadlec for her first prenatal examination. Kadlec's notes reflect that Andrea wanted to give the child up for adoption and that she referred Andrea to an adoption agency. Andrea testified, however, that after the visit she and Nick began buying baby supplies because they planned to live in an apartment below Nick's mother's and become a family. Later that month, Andrea went to her pediatrician for a physical, but did not disclose her pregnancy.
Andrea subsequently identified Better Living through a social media search for adoption agencies. On June 26, she sent an email to Better Living, stating that she was interested in arranging an adoption and asking how long the adoption process would take. Andrea explained that she was due to give birth soon. On June 27, Kathleen Sateary, a licensed social worker and a case supervisor at Better Living, responded to Andrea's email. She told Andrea that the process could take more or less time depending on the needs of the birth parents. Sateary explained that she could provide Andrea with profiles of potential adoptive parents, and that Andrea would have the opportunity to meet with them either before or after birth, depending on the due date.
Andrea responded to Sateary's email the same day, asking when she could start filling out paperwork and looking at profiles. Sateary replied that she needed to know what type of adoptive family Andrea was interested in, her due date, and whether she would be interested in an open or closed adoption. She requested that Andrea call her.
When Andrea subsequently spoke to Sateary on the telephone, she explained that she was interested in an open adoption, including an agreement for visitation after placement. On July 4, Sateary emailed Andrea to advise her that she had gathered some profiles of families interested in adopting. She invited Andrea and Nick to visit her office to review the profiles.
Andrea and Nick met with Sateary at her office in Westfield on July 9. Sateary testified that she provided the couple with their first options counseling session at that time. She explained that she began the meeting by bringing the couple into a private conference room, where she informed them that adoption was only one of several options, but that it was permanent. She told them that their other options were parenting the child themselves, temporary foster care, and assistance from family and friends. Sateary's typed case notes reflect that she gave that advice.
Sateary further testified that she asked some preliminary questions and completed a birth parent information form. The completed form reflects that Andrea's family was not aware of her pregnancy and that both Andrea and Nick wanted to pursue an adoption.
Following the counselling session, Andrea and Nick reviewed the profiles of potential adoptive parents with Sateary. They told Sateary that they wanted a large family for their child because they both came from close-knit, large families. Andrea requested copies of two profiles and asked for additional information about the two couples. Sateary gave her copies of the profiles, one of which was for Carol and Larry.
Andrea testified that she was not provided with options counseling during the first meeting with Sateary, but was told that the three required sessions would be handled by Meryl Buczek, who was on vacation. Andrea further testified that she went to Better Living to talk to someone about the foster-care option she saw on Better Living's website. She thought Better Living was going to pay Carol and Larry to take care of Tommy for three weeks. Nick testified to a similar understanding, adding that they needed time before they told Andrea's grandmother about the baby.
On July 12, Andrea called Sateary to tell her that she and Nick had selected Carol and Larry as the adoptive parents. According to Sateary's notes and testimony, Andrea told her that Carol and Larry seemed family oriented and the baby would have a big brother. Andrea expressed an interest in meeting the adoptive parents, but wanted to do an options counseling session first. Andrea admitted that she told Sateary that she liked Carol and Larry because they were family oriented and that she wanted a counseling session before meeting them, but did not remember telling her that that she liked the idea that the baby would have a big brother.
On July 17, Andrea and Nick met with Buczek for a counseling session at the Montclair Public Library. Because the library was crowded, the session took place outside on a bench adjacent to the library. According to Buczek, the location afforded some privacy and their conversation could not be overheard by others. When asked by Buczek, neither Andrea nor Nick expressed any discomfort with the setting. Buczek described Andrea as withdrawn, and Nick as more talkative, although he cried occasionally.
Buczek testified that she has a mental checklist as to what the applicable regulations require to be covered during the options counseling sessions. She emphasized to Andrea and Nick that, although surrenders were final, they had an absolute right to change their minds before signing the surrender documents. She also explained alternatives to adoption, including support from friends or family members, support from social services, and temporary foster care. Buczek testified that neither Andrea nor Nick appeared confused, and that she believed they understood what she told them. According to Buczek, they wanted an adoption placement. She characterized Andrea as definitive in that regard.
Andrea and Nick told Buczek that they would like to see the baby once or twice a week after the adoption. Buczek responded that this was not a typical arrangement, but that she would discuss it with Carol and Larry. Andrea and Nick also asked to meet Carol and Larry, and agreed to let Buczek take a picture of them with her cell phone to show them. Andrea told Buczek that her grandparents did not know that she was pregnant. Following the counseling, Buczek emailed Andrea to inform her that Better Living would be in contact with the "adoptive parents" to arrange a time to meet.
In her testimony, Andrea maintained that Buczek did not discuss alternatives to adoption during the July 17 meeting. She maintained that she was under the impression that she and Nick were arranging temporary custody of the baby. Andrea explained that she wanted to arrange for temporary custody after childbirth because she thought there was a "high percentage" that she would die in childbirth. However, she conceded that no doctor ever mentioned that possibility to her.
The trial judge asked Buczek whether there was any indication that Andrea was under the impression she was arranging for temporary custody. Buczek responded that there was not. She added that she had explained to Andrea the nature of temporary foster care.
On July 18, Sateary spoke with Andrea by telephone regarding her desire for weekly visitation with Tommy. She explained that such an arrangement was not typical, and that Andrea should consider temporary placement in foster care or placement with a family member if she wanted to maintain contact with the child. According to Sateary, Andrea responded that she was not interested in temporary foster care and that adoption was the best option for her. Sateary provided her with Carol's telephone number and requested that Andrea call her back after she had spoken with Carol. Andrea responded that she needed some time to think and would call Carol the next day.
On July 22, Andrea and Nick met with Carol and Larry. Nick testified that they wanted to meet them so they could get to know them and see "what they were about." Larry testified that the purpose was to discuss a post-placement agreement and make sure that they were comfortable with one another. Larry further testified that he and Carol did not agree to Andrea's request for weekly visits. They proposed two visits in the first year, and one or two visits in the second year, with subsequent visits to be discussed at a later date.
According to Larry, Nick asked questions about the schools in the area where he and Carol lived, the family's church-going habits, and the size of their family. Nick testified that he asked about the schools in the town out of curiosity, not because he believed the placement would be permanent.
Carol testified that Andrea told her about her background and explained that she wanted more for her baby. Andrea told Carol and Larry that she had been abandoned as a child and lived with her grandparents. She characterized her grandmother as very strict, and said that, if she learned about the pregnancy, she would force her to give the baby to her aunt. Andrea explained that she was not comfortable with that proposal because she did not want to see the child being cared for by her aunt and she wanted more for the baby. Carol responded that Andrea should make her decision carefully.
On July 23, Carol called Better Living and spoke with its director, Barbara Fraley. Carol expressed her concern that the placement might not happen because she was not confident that Andrea and Nick were serious. Fraley informed Sateary, who did not follow up with Andrea or Nick about that concern. Buczek testified that she was unaware of Carol's concern, but acknowledged that she would have addressed it with Andrea and Nick during a counseling session had she known.
Andrea saw Kadlec on July 23. She told Andrea that she would need to be admitted to the hospital to induce labor. On July 24, Kadlec called Sateary to inform her that Andrea would be admitted to the hospital the next day, with birth anticipated on July 26.
Andrea conceded that she arranged for Tommy to be discharged to Better Living. However, she explained that the discharge plan was only temporary, in case she died during childbirth or, if she survived, to give her and Nick time to get their affairs in order before they started to care for him.
On July 25, Andrea was admitted to the hospital in the late afternoon. She testified that the procedure to induce labor began around 8:00 p.m. Buczek arrived for an options counseling session around 8:30 p.m. Buczek testified that, prior to their discussion, Andrea told her she was not in any discomfort. Andrea, however, testified that she did not remember the meeting, explaining that she was in pain, tired, and under a lot of stress.
Buczek testified that she advised Andrea that she still had the right to change her mind, even though she had contacted an adoptive family. She stressed that the surrenders, once signed, were irrevocable. She suggested that if Andrea needed more time to decide, she could consider temporary foster care or help from family and friends. According to Buczek, Andrea responded that she wanted to proceed with adoption and that she very much liked Carol and Larry.
Tommy was born on July 26. Dorothy Kurzweil, a licensed clinical social worker in the hospital's maternity department, was assigned to have a consultation with Andrea because of her plan to place her baby for adoption. Kurzweil understood that Andrea had made arrangements for an adoption through Better Living. Kurzweil reviewed New Jersey's adoption laws with Andrea and Nick. She told them that they had the right to three counseling sessions, that they could not sign away their rights sooner than seventy-two hours after the birth, and that, once they did, the decision was almost always final. Kurzweil concluded that Andrea and Nick understood their rights and that they were aware that the adoption would be irreversible. Kurzweil further testified that Andrea told her, with Nick present, that she had decided to place Tommy for adoption because it was not a good time for her and Nick to take care of a child. Andrea also told Kurzweil that neither of their families was aware of the pregnancy.
Sateary communicated with Andrea several times on July 26, through telephone and text messages. Her notes reflect that Andrea, who was to be discharged that day, called her regarding Tommy's anticipated discharge from the hospital a few days later. Sateary told Andrea that she could be present when Tommy was discharged and that she was permitted to return to the hospital to visit Tommy during the interim as long as she kept her bracelet on. She also told Andrea that she could still change her mind about the adoption prior to signing the surrender forms. Andrea testified at trial that she did not recall having that conversation. Kurzweil testified that, later that evening, Andrea signed a form consenting to Tommy's discharge to Better Living.
Andrea wanted to leave the hospital on July 26 because her grandparents were expecting her home. She had told them that she was going to a college orientation.
On July 27, Carol called Sateary to discuss some concerns after speaking with an attorney, who had advised against the placement and the open adoption agreement. After a lengthy discussion, Carol agreed to go forward with the placement because she understood that the post-placement visitation agreement was not legally binding and could be changed at any time.
Sateary's call notes from July 27 reflect that Andrea called at approximately 1:00 p.m. to tell her that she planned to visit Tommy that day. She told Sateary that she wanted to go forward with the adoption. Andrea also told Sateary that she wanted Tommy discharged to Better Living for placement with Carol and Larry pending the signing of the surrender forms seventy-two hours after birth and that she planned to be at the hospital for the discharge and placement. Andrea testified that she did not make such a call.
Later that day, Sateary sent Andrea an email attaching a post-placement agreement, which Andrea and Nick had discussed with the adoptive parents.
I know we did not get a chance to finish our conversation as your doctor called you. Please call me so that we can talk a bit more about the plans for this weekend.
I have attached a post[-]placement agreement for contact for you to review. It is my understanding from speaking to both of you and [Carol] and [Larry] that this was the arrangement agreed upon by all. Please review. This is not a legal document, simply a[n] agreement made in good faith.
It would be expected that as long as you and [Nick] as well as [Carol] and [Larry] are all in agreement, that everyone signs this agreement on Saturday on the day of discharge.
Again, please call me. If you continue to plan towards adoption and wish to continue to work with Better Living, I will need to hear from you as to the time of discharge so that everyone meets at the same time. Of course, if you choose to discharge the baby yourself and place privately with adoptive parents, I would also appreciate your letting me know that you no longer wish to have Better Living assist you with your plans.
At trial, Andrea testified that she could not recall reading the email. Sateary's call notes reflect, however, that Andrea called to confirm her receipt of the email and attached agreement. Sateary explained to Andrea that the agreement was not legally binding, but was only a moral agreement made in good faith. She told Andrea that the parties would review the agreement and sign it at the hospital the next day. Sateary reminded Andrea that she had to wait seventy-two hours after the birth before they could sign the surrender document.
On July 28, Buczek met with Andrea and Nick for another counseling session. Buczek testified that the meeting took place at the hospital, in a darkened room adjacent to the nursery. Buczek again discussed alternatives to adoption. She reminded Andrea and Nick that they could still change their minds and utilize temporary foster care, parent the child with the help of social services, or seek support from friends or family members. Andrea and Nick told Buczek that they wanted to proceed with adoption. According to Buczek, Andrea appeared happy and less withdrawn, while Nick was relaxed. She further testified that neither of them said anything to suggest they misunderstood what they were told.
Andrea testified that she and Nick met with Buczek for ten minutes at the hospital, but that the options counseling did not take place. She conceded that Buczek was at the hospital for a few hours that day, but spent the rest of the time talking to the nurses and a social worker. Andrea maintained that Buczek was never alone in a room with her and Nick.
Tommy was discharged from the hospital at around 4:00 p.m. that day. As had been previously arranged, he left with Carol and Larry. Carol testified that she would not have brought Tommy home if she had thought the placement was temporary. Larry also testified that he would not have gone forward had he thought the placement was temporary.
On Sunday, July 29, Andrea and Nick went to Better Living's office to sign documents surrendering custody to Better Living. Shortly after 9:00 p.m., Buczek held a counseling session with Andrea and Nick in a private conference room. She emphasized that they did not have to sign the surrenders unless they were certain that it was what they wanted. She also reviewed the alternatives to adoption. They told her they wanted to proceed with the adoption.
After the counseling session, Andrea, Nick, Sateary, Buczek, and Fraley met to go over and sign the surrender documents. Sateary testified that both Andrea and Nick appeared calm and relaxed. Before she began the process, Sateary asked Andrea and Nick if they understood why they were there and if they had any questions. They both responded that they understood and did not need any more time.
Sateary testified that she carefully reviewed the documents with Andrea and Nick before they signed them. She read each document out loud and asked them to stop her if they have any questions. Buczek testified that she was present when Sateary read through each document and had them initial the documents to verify their understanding. She confirmed that neither Andrea nor Nick showed any signs of distress or lack of understanding.
When Sateary came to the document through which Andrea and Nick surrendered their parental rights, she made sure that they understood what they were doing. She asked them if they needed a break before going further. They responded that they did not, and proceeded to sign the document.
The documents signed by Andrea and Nick provided as follows:
1) I was offered counseling that explore[d] alternatives plans for my child, including but not limited to foster care, day care and care by relatives.The documents signed by each of them were then notarized.
2) I was informed that only legal parents or legal guardians have the right to custody and control of their child and to surrender their child for adoption.
3) I was prepared for surrender and separation.
4) I was referred to other community services when the agency could not provide needed services.
5) [crossed out]
6) I was advised that I may sign a written statement at any time indicating my willingness to be contacted and/or provide
information if requested by the adoptee or adoptive family.
7) I was asked to update and submit to Better Living Adoption Services, Inc. any new address or medical information required on the medical [f]orm, so that the medical information could be shared with the adoptive family and/or adult adoptee.
Andrea testified that paragraph five, which read, "I was informed that the agency may contact me in the future if the adult adoptee or adoptive family or emancipated minor requests information or wishes to meet the birth parents," did not apply to her situation. She therefore crossed out that paragraph and replaced it with "open adoption." She explained that she focused on that section without reading the remainder of the document.
Nick also changed paragraph five on his birth parent statement and replaced it with "open adoption" and initialed the change. Like Andrea, he testified that he just focused on that paragraph and decided to change it, even though he maintained that he did not fully understand what it meant.
Andrea and Nick completed responses on an affidavit of surrendering parent, which contained the following questions:
10. Do you understand that if you sign the surrender of custody [and] consent for adoption form, you are giving up all of your rights as a parent over your child forever?In the affidavit, both Andrea and Nick swore that they understood the consequences of the actions listed in questions ten through thirteen. They also denied that they were threatened or pressured into signing the surrender as indicated in questions sixteen and seventeen. Sateary testified that Andrea and Nick did not appear upset or under any duress during the process.
11. Do you understand that if you sign the surrender of custody and consent for adoption [f]orm, [Better Living] will become the only guardian of your child until finalization?
12. Do you understand that if you sign the surrender of custody and consent for adoption [f]orm, your child will be placed for adoption?
13. Do you understand that even if you change your mind at any time in the future, your child will not be returned to you because the surrender is irrevocable and binding?
. . . .
16. Were any threats made in order to obtain your signature of this surrender?
17. Did anyone attempt to pressure you into signing the surrender?
Andrea acknowledged that she signed both forms voluntarily, and that she was not threatened or coerced into signing the forms. She maintained, however, that she did not read the documents prior to signing them. Nevertheless, she confirmed that Sateary had read them aloud while she was signing. Andrea maintained that she believed at the time that she was signing papers for a temporary placement of three weeks. Nick asserted that he did not fully read or understand the papers as he signed them, but admitted that he did not tell anyone that he did not understand them at the time.
On August 17, Buczek received a call from Andrea, who was crying. Andrea told Buczek that her grandparents learned about the baby. Because she had learned that her aunt could not have a baby, she wanted to give Tommy to her aunt. Buczek told Andrea that Tommy could not be removed from Carol and Larry unless there was a serious concern for his safety. She instructed Andrea to contact Sateary.
As instructed, Andrea called Sateary later that day. She told Sateary that she had been trying to reach Carol, but had been unsuccessful. Sateary noticed that Andrea sounded stressed. Sateary attempted to contact Carol and Larry, but was unable to reach them. When Andrea called back about twenty minutes later, Sateary explained that Carol and Larry were probably on vacation, but that she would try to get in touch with them.
Andrea called Sateary again a few hours later. During that call, Andrea explained that she had told her aunt about Tommy, expecting that she would keep the secret. Instead, her aunt told Andrea's grandmother. Andrea then learned that her aunt could not conceive a child, so she wanted her aunt to have the baby. She asked Sateary about her options. Sateary explained that she and Nick had signed the surrenders and their rights were terminated. Andrea asked how she could go about doing an "adoption disruption." According to Sateary, Andrea did not say anything about the placement being temporary.
Andrea's aunt testified that she first learned that Andrea had given birth from her mother, Andrea's grandmother, on August 17. According to the aunt, her mother had looked through Andrea's belongings and found Tommy's wrist bracelet from the hospital. When they broke the news to Andrea's grandfather, he told them he wanted to get the child back.
Andrea's aunt was present when Andrea called Better Living. When Andrea finished the call, she told her aunt that she had been told to get a lawyer. Later that night, Nick and his mother met with Andrea and her family to discuss throwing their support behind getting the baby back and hiring a lawyer. According to Andrea's aunt, she never considered adopting Andrea's baby or discussed such an adoption.
Andrea, however, testified that she called Better Living on August 17 because she and Nick thought they were going to get the baby back on August 19. Andrea was unable to explain why she thought so, other than that Sateary and Buczek had represented that the placement was temporary.
Andrea and Nick presented expert testimony from Allwyn Levine, M.D., a forensic psychiatrist. He testified to his opinion that Andrea was clinically depressed in July 2012, based on his review of Buczek's notes indicating that Andrea was quiet and withdrawn during counseling sessions, as well as her family history of mental illness. However, he was not able to form an opinion as to whether Andrea was so depressed that she was not competent to sign the adoption paperwork. Levine reviewed Sateary's certification submitted in opposition to the verified complaint in which Sateary stated that she explained to Andrea that she could visit the baby in the hospital after birth, and that she and Nick could bring him a "coming home outfit," and could dress and feed him. Levine testified to his opinion that Better Living was sending Andrea and Nick inconsistent messages by encouraging them to interact with the baby and buy clothes for him while facilitating the adoption. He further testified to his opinion that there were indications that Andrea was not serious about the adoption that were never addressed by Better Living.
Nick presented Cela Martino Redler, Psy.D., who testified about Nick's level of understanding of the legal papers he signed to relinquish his parental rights. She opined that it was highly likely that Nick did not understand the papers he was signing. She based her conclusion on her neuropsychological evaluation of Nick, which included a clinical interview and testing to assess his brain function. She placed Nick's IQ at sixty-eight, which she considered to be an intellectual disability. Redler testified that she did not think Nick had manipulated the test, although she conceded that she had not performed any formal symptom validity testing.
Better Living offered Rosemarie Scolaro Moser, Ph.D., as its expert neuropsychologist. Based on the results of her symptom validity testing, Moser opined that Nick did not put forth his best effort in taking her intellectual ability tests. She also noted that Nick's low test scores could not be reconciled with his actual academic and occupational history. Moser opined that Nick could understand the surrender documents and the meaning of the word "adoption."
Following testimony, the judge placed an oral decision on the record on April 8, 2014. He explained his reasons for denying Andrea and Nick's application to set aside the surrender.
The judge determined that the testimony and evidence adduced at trial led to the conclusion that "the parents knew all along exactly what they were doing." He found that Andrea made two rational decisions that explained her subsequent conduct. First, she decided that she was too young to become a mother and that neither she nor Nick had the resources to care for the child. Second, she decided that she could not tell her grandmother about the pregnancy because she was afraid of the consequences.
The judge noted that Andrea was steadfast in her attempts to keep her pregnancy and the adoption from her family, and guided the process to ensure that they would remain secret. He also found that Andrea's plan unraveled when she was careless and her family found out that she had been pregnant and allowed the baby to be adopted. The family then "forced" her to contact Better Living and seek to undo the surrender of parental rights.
The judge determined that Andrea was truthful when she explained to Buczek and Sateary in August that she was seeking to get Tommy back because her family discovered the adoption and wanted her to undo the renunciation of parental rights. However, Andrea changed her story when the litigation arose.
[S]he was entirely rational as to the manner in which she chose to conduct this case. She knew she could not say [that] the aunt wants [Tommy]. She understood that under the law that wouldn't fly. She had to say that she was confused. She had to construct a story. She had to say that she always wanted to raise the child, and the aunt was here to go along with that story. There was a problem, the abortion attempt . . . that she had to cover up. And she did. She made a decision to deny it in her interrogatories. . . . And then she decided to come up with a story, although it was an impossible story, that she did not remember going to the abortion clinic.The judge found that Andrea's and Nick's testimony was not credible. Instead, he concluded that they understood what they were doing, but crafted a story after their families bonded together to get the baby back.
While this might show a contempt for the truth, it's not irrational. It is a choice. She made conscious decisions to refute the testimony of four women who were involved in this case, actually five, in one form or another. Ms. Fraley, Ms. Sateary, Ms. Buczek, Ms. Kurzweil, and the [adoptive parents]. She had to outright deny each of their accounts as to what happened. Unfortunately for her, she was not supported by the facts.
The judge also rejected the opinions offered by Andrea and Nick's experts. He found that Levine's conclusion that Andrea was depressed was not supported by the facts. The judge noted that Andrea followed through with her plans and attended every meeting with Better Living. He discounted Redler's opinion that Nick was unable to understand the surrender documents, concluding that Nick was intentionally deceptive and that his deception rendered Redler's testing process unreliable. In doing so, the judge pointed to the fact that Nick had graduated high school, completed automotive and technical training, and demonstrated an ability to communicate, understand, and recall while on the witness stand.
While rejecting the truthfulness of Andrea's and Nick's testimony that they did not know what adoption meant and thought that they were signing over the child for a temporary placement of three weeks, the judge credited the testimony of the Better Living employees "completely." He also credited the testimony given by Carol and Larry. In addition, he credited and relied on "the testimony of those people who were not on either side," referring to Kurzweil and Kadlec.
In applying the law to the facts, the judge reached the following conclusions:
Under [N.J.S.A.] 9:3-41, it is the responsibility of the parents in order to succeed in a case like this, to establish to this Court's satisfaction that there has been on the part of the licensing agency, in this case Better Living, fraud, misrepresentation, or coercion. They have been unsuccessful in each of those. There has been an argument raised that beyond fraud, misrepresentation, and coercion, there is another reason to reject this surrender. And that is that the agency, atConsequently, the judge held that Andrea and Nick had failed to prove that there was a legal basis to set aside the surrender.
various points in time, did not comply completely with those items required under the New Jersey Administrative Code as they apply to adoption agencies. And more particularly the information that they should provide to the birth parents. And most particularly I'm talking about [N.J.S.A.] 10:121A-5.4(C).
The Court has considered that argument. There is nothing in the statute suggesting that a per se violation of the Administrative Code in one form or another is grounds to take this outside of the purview of [N.J.S.A.] 9:3-41. The only thing the Court can consider is whether or not these violations may be considered as relevant on the final issue of whether or not there was fraud, misrepresentation[,] or coercion.
None of the demonstrated deficiencies, including the failure to provide a manual, to the extent there wasn't [one]. By the way, the Court also finds that virtually [in] every other aspect of it the agency complied with all the requirements of the regulations, that they meticulously sought to [e]nsure that the parents understood all of their rights. They not only did it once, they did it not just the required three times, they did it more than that. And the real question is, not even whether they did it three times or five times or even two times, the question is were the parents defrauded? Were misrepresentations made to them? Were they coerced in doing it?
The overall record in this case is the parents knew all along exactly what they were doing. As a matter of fact, they were the driving force, despite the fact that everyone else was concerned. And acted on those concerns. [Andrea and Nick's counsel] makes the argument, well, why didn't they seek more counseling for the mother when it
was that the [adoptive parents] became concerned about whether or not this adoption would go through.
And in reality they did that. They went back again. How many more times do they need to be sold the same thing. And how many times did the mother, especially the mother, but the mother and the father have to demonstrate that no matter what you throw at us, this is what we want to do. And that's what they did.
On April 15, the judge entered an implementing order terminating Andrea and Nick's parental rights. He scheduled the adoption hearing for April 23, which was adjourned to June 17 at Andrea and Nick's request.
In May, Andrea and Nick filed an emergent motion for leave to appeal and for a stay of the April 15 order pending disposition of the appeal. We granted leave to appeal, but denied the stay.
We subsequently denied Better Living's motion to dismiss the interlocutory appeal.
II.
Andrea and Nick raise the following issues on appeal:
POINT I: THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER THE OBLIGATIONS OF THE ADOPTION AGENCY PURSUANT TO N.J.A.C. [10:]121A.
POINT II: THE AGENCY'S FAILURE TO PROVIDE COUNSELING PURSUANT [TO] THE REGULATIONS AMOUNTS TO FRAUD AND THE SURRENDERS SHOULD BE VACATED.
POINT III: [THE] FAILURE OF THE AGENCY TO FOLLOW ITS OWN PROCEDURES [] INVALIDATES THE CONSENT AND PLACES THE PETITIONER IN THE POSITION OF ONE WHO ENTERED INTO A PRIVATE AGREEMENT FOR ADOPTION.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc., supra, 233 N.J. Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
Before turning to the applicable law, we address the issue of the judge's findings of fact. There was conflicting trial testimony concerning the events that led up to the signing of the surrender documents, as well as why Andrea and Nick sought to rescind them. Andrea and Nick maintained that they did not understand that they were surrendering their parental rights so that Tommy could be adopted by Carol and Larry, but understood instead that they were arranging for them to care for Tommy temporarily while they prepared to raise him themselves. The witnesses who testified on behalf of Better Living, as well as Carol and Larry, testified in stark contrast that Andrea and Nick understood what they were doing and that Andrea did not attempt to get the baby back until her family discovered that she had been pregnant and surrendered her baby for adoption.
The trial judge clearly explained his reasons for rejecting Andrea's and Nick's testimony, concluding that they had received thorough counseling concerning their options and knew exactly what they were doing when they signed the surrender documents. He explained his credibility findings, which were based on his observations of the witnesses, the documentary evidence that was consistent with his findings, and the testimony of two witnesses, Kurzweil and Kadlec, who were not affiliated with either side. We note that the testimony of Andrea's aunt confirmed that Andrea called Better Living after her family discovered the birth and adoption. The judge also explained his reasons for rejecting the expert testimony offered by Andrea and Nick, which reasons also find support in the record.
The judge's findings of fact are well supported in the record. We find nothing in the record to suggest that the judge's factual findings were "'so wide of the mark that a mistake must have been made,'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc., supra, 233 N.J. Super. at 69). Consequently, we view the legal issues in the light of those findings of fact.
An identified adoption must satisfy the requirements of N.J.S.A. 9:3-41, which provides, in pertinent part, as follows:
An "identified adoption" is one in which an adoption agency "becomes involved in providing services" to birth parents or prospective adoptive parents, or both, in which the birth parents surrender their parental rights in favor of specific adoptive parents. N.J.A.C. 10:121A-1.5(b)(3).
a. Surrender of a child to an approved agency for the purpose of adoption . . . shall be by a signed instrument acknowledged by the person executing the instrument before an officer authorized to take acknowledgments or proofs in the State in which the instrument is executed. Prior to the execution of the surrender, the approved agency shall, directly or through its agent, inform the person executing the surrender that the instrument is a surrender of parental rights by the signatory and means the permanent end of the relationship and all contact between the parent and child. The approved agency shall advise the parent that the surrender shall constitute relinquishment of the person's parental rights in or guardianship or custody of the child named therein and consent by the person to adoption of the child. The approved agency shall offer counseling to the parent, prior to the execution of the surrender. The surrender shall be valid and binding without regard to the age of the person executing the surrender and shall be irrevocable except . . . 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. . . .
. . . .
d. At the request of a parent of the child, an approved agency authorized to receive surrenders, may receive that parent's surrender of his child for purposes of having the child adopted by a person specified by the surrendering parent. The agency shall follow all regulations regarding the securing of a surrender and shall cooperate with the prospective parents in the processing of the proposed adoption. An adoption based on a surrender under this subsection shall be deemed one in which the child was received from an approved agency for purposes of [N. J.S.A. 9:3-47].
e. A surrender of a child shall not be valid if taken prior to the birth of the child who is the subject of the surrender. A surrender by the birth parent of a child shall not be valid if taken within 72 hours of the birth of the child.
[(Emphasis added).]
The statute refers to regulations adopted by the Department of Children and Families. N.J.A.C. 10:121A-5.4(c) provides, in pertinent part, as follows:
Before taking a surrender, the agency shall document that the birth parents were:
1. Provided at least three face-to-face counseling sessions conducted in a private and professional setting as specified in N.J.A.C. 10:121A-3.7(e), or at the birth parents' home, by qualified social work staff on separate days and that the birth parents were:
i. Offered counseling that fully:
(1) Explores alternatives to adoption;
(2) Addresses any presented emotional problems;
(3) Includes referrals to mental health agencies when such emotional problems interfere with the birth parents' decision-making regarding adoption; and
(4) Explores alternative plans for the child, including, but not limited to, temporary foster care, day care and care by relatives.
[(Emphasis added).]
The cited regulation does not exist. We conclude that the intended reference was to N.J.A.C. 10:121A-3.7(a), which provides that an agency "shall provide space that affords privacy for conducting interviews at its office facilities."
Andrea and Nick argue that their surrenders should be invalidated primarily because they did not receive the minimum three required face-to-face counseling sessions "conducted in a private and professional setting," N.J.A.C. 10:121A-5.4(c)(1). They also argue that Better Living (1) should have provided counseling to address Andrea's emotional problems, as required by N.J.A.C. 10:121A-5.4(c)(1)(i)(2); (2) failed to comply with N.J.A.C. 10:121A-5.2(c)(1) because they did not provide "[a] written description of its current adoption program, including information on [its] services, the adoption process, including the availability of subsidy for special needs children, and other major referring agencies with whom [it] works"; and (3) failed to comply with N.J.A.C. 10:121A-3.4(a), which requires an agency to "provide [] birth parents and adoptive applicants with a written statement or pamphlet indicating certain parental and agency rights and responsibilities," which must include information outlined in N.J.A.C. 10:121A-3.4(b).
Although we agree that Better Living did not strictly comply with the "private and professional" setting requirement, we find no reason in the record to set aside the surrenders on that basis. The first counseling session took place at Better Living's offices, which provided a private and professional environment. Sateary testified that she explained the options available to Andrea and Nick: adoption, temporary foster care, and assistance from family or friends.
The second session took place on a bench outside of the Montclair Public Library. Although not the type of "professional" setting envisioned by the regulation, Buczek explained that the location afforded some privacy and that their conversation could not be overheard by others. She testified that, when asked, Andrea and Nick both said they were "okay" with the setting. Buczek further testified that she explained their options, including adoption, foster care, assistance from social services, and assistance from family and friends.
The third session took place in Andrea's room at the hospital on the night before she gave birth. Only Buczek and Andrea were present, which means that this session cannot be considered as a counseling session for Nick. The conversation took place after Andrea's doctors had started the process of inducing labor. Buczek testified that Andrea told her she was not experiencing any discomfort at the time, but Andrea maintained that she did not remember the discussion because of her condition. Buczek again explained that foster care and assistance from family or friends were alternatives to adoption. Although the hospital room was not a professional setting, it was private.
The fourth session was held in a darkened room at the hospital with only Andrea, Nick, Tommy, and Buczek present. Buczek testified that she again explained the alternatives to adoption. Although not a professional office setting, it was a quiet, private location.
The fifth counseling session took place prior to the execution of the surrender in Better Living's conference room. Buszek again explained to Andrea and Nick the alternatives to adoption, including foster care, assistance from social services, and help from family and friends.
We note that, although Kurzweil's counseling session was not conducted on behalf of Better Living, she met with Andrea and Nick following Tommy's birth. She explained New Jersey's adoption law to them. Andrea told her that she and Nick had decided on an adoption.
The record also reflects that, throughout the process, there were frequent exchanges of email and telephone calls between Sateary and Buczek on behalf of Better Living and Andrea and Nick. They reflect Andrea and Nick's interest in adoption.
Based upon our reading of the record and the judge's factual determinations, we conclude that Andrea and Nick received the three required counseling sessions in compliance with the applicable regulation. Not including the session with Kurzweil, Andrea had five counseling sessions and Nick had four. The fact that some of the sessions were not in a conference room or other "professional" setting does not detract from the fact that the counseling was given to and understood by Andrea and Nick.
The argument concerning the failure to supply mental-health services pursuant to N.J.A.C. 10:121A-5.4(c)(1)(i)(2) is not viable because the trial judge determined, as a matter of fact, that such a referral was not warranted. He relied on his credibility assessments and his evaluation of the expert testimony in doing so.
The technical regulatory violation of failing to provide written information regarding agency and parental rights and responsibilities cannot be a basis to set aside the surrender in light of the information provided orally by Better Living personnel and Kurzweil, as well as the information available in the documents they provided. There is no basis in the record to find that Andrea and Nick were actually prejudiced by their failure to receive the required written information.
The trial judge found that Better Living "meticulously sought to [e]nsure that the [birth] parents understood all of their rights." That finding is fully supported by the record. We agree with the judge that the record demonstrates a change of mind by Andrea and Nick, most probably resulting from parental pressure, rather than their failure or inability to understand what they were doing or any deceit or misconduct by Better Living.
We also agree with Judge Terence P. Flynn's legal determination that primarily technical violations of the regulatory scheme, such as the location of meetings or the failure to provide a document, cannot be the basis for voiding what has been found to be a knowing and intelligent surrender of parental rights, unless they actually amount to the type of "fraud, duress or misrepresentation by the approved agency" required for vacation of a surrender under N.J.S.A. 9:3-41(a). We reject Andrea and Nick's argument that the regulatory deficiencies in this case amounted to fraud, duress, or misrepresentation. We also reject their argument that such technical violations should be read into the language of N.J.S.A. 9:3-41(a) as an independent basis for vacating an otherwise proper surrender. The language of the statute does not support such an interpretation. Finally, the argument that the adoption at issue in this case was in reality a private adoption is without merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION