Adoption Reforms Are Signed Into Law

On December 28, 1993, Governor Florio signed bills A-1418 and S-685 into law. This was the culmination of a more than seven year effort and crusade on our part. The bill was sponsored by Senators William Gormley, James Cafiero, Edward O'Connor and John Ewing and in the Assembly by Gary Stuhltrager and Harriet Derman who was especially steadfast in her support of this legislation and spent considerable time and effort in supporting the bill.

The adoption legislation was actually a collaborative effort in large part due to the bill's formidable opposition, which included Catholic Charities, the State Adoption Agencies and the Division of Youth and Family Services. It was those opposing the legislation that pointed out even the remotest possibility of potential problems with the proposed legislation.

Many unlikely scenarios were played out in letters and testimony to both the Assembly and Senate, and extensive compromises were made. Untold hours were spent on extensive amendments, and up to its passage by the Assembly and Senate, and signing by the Governor, a great deal of time was spent dispelling misinformation and misconceptions regarding the legislation. The extensive amendments to the bill indeed made passage possible.

What made this bill so controversial? Actually, one section of the bill, that which allows the use of unpaid intermediaries which is currently prohibited caused the most controversy. The role of an unpaid intermediary is to merely act as an "introducer". For example, if a priest knows of a loving couple in his congregation who wants to adopt a child and also knows of a birth mother in his congregation wanting to have her child adopted (with the birth father's consent), it is presently illegal for the priest to introduce the parties or to even tell one party of the other's existance. The new law will allow the priest or any other person to "introduce" or tell the parties about each other. Safeguards have been added to prevent the occurrence of situations like that of Joel Steinberg who was allowed to bring into his home, a child, who died at his hand by being beaten to death, when no agency knew he had the child. Under the present law this situation is actually more likely to occur in an intrastate adoption, since no person, court or agency need be notified prior to the child being brought into the house. The current Statute only requires that an Adoption Court Investigation take place "after" the Complaint for Adoption is filed, which must be filed "within a reasonable time" and the Order for a preliminary hearing is executed by the Court. Under the new law, however, the prospective adoptive parent(s) must, before the child is placed in their home, have a "home study", an approved New Jersey adoption agency's formal assessment of their capacity and readiness to adopt a child. Moreover, the agency must perform a criminal history background check which might reveal a history of child abuse or neglect by the prospective parents or any member of their household. The agency which conducted the home study must be notified as soon as the child is brought into the home.

Further, the new law provides that a Complaint for Adoption must be filed within 45 days after the child to be adopted is brought into the home, as opposed to the vague "within a reasonable time" language in the present law. Moreover, the intermediary must be identified.

The new law allows prospective adoptive parents in a private adoption to pay reasonable living expenses of the mother of the child during her pregnancy and up to four weeks after the pregnancy, including payments for reasonable food, clothing, medical expenses, shelter and religious, psychological, vocational or similar counseling services. These payments may be made directly to the birth mother or on her behalf. A safeguard provides that written notice be given to the birth mother and adoptive parents that payments by the adoptive parents are not refundable if the birth mother changes her decision to place the child for adoption.

One of the most important provisions of the new law is the clarification of termination of parental rights standard in adoption cases. The bill provides that a judgment of adoption shall not be entered over the objection of a parent unless the court finds "that the parent is unable to perform the regular and expected parental functions of care and support of the child and that the parent's inability to perform those functions is unlikely to change in the immediate future. Moreover, the regular functions of care and support of a child are defined, as well as the setting of a time limit for a birth parent's failure to perform the expected parental functions, giving assistance to the Courts which have had to deal with vague and conflicting standards.

The notification requirements of the new law should be of assistance in processing an adoption and avoiding future claims of parenthood. Notification of an adoption proceeding must be given to the birth mother's husband and the alleged birth mother and alleged birth father of the child.

Of great help is the provision that, in the case of a foreign adoption, approval by federal immigration authorities is sufficient to waive notice upon birth parents. The lack of this provision has caused both courts and adoptive parents nightmares. Often the foreign birth parents cannot be located and no search or due diligence will enable them to be properly noticed. Courts, attorneys and prospective parents have been caught in intolerable dilemmas.

Likewise a surrender executed in another state or foreign country by a domiciliary of that state or country and valid where executed is deemed a valid surrender in this State. A surrender of a child taken in New Jersey, however, shall not be valid if taken within 72 hours of the birth of the child. The denial of paternity, on the other hand, by an alleged father, at any time including prior to the birth of the child, is deemed a surrender for purposes of allowing the child to be adopted.

Some of the less controversial provisions will prove to be extremely helpful in clarifying and simplifying the adoption process. Under present law, in a private placement there is a 60 to 90 day period, after the filing of the Complaint for Adoption until the preliminary hearing. The prospective adoptive parents live in terror that the birth mother or birth father will change her or his mind during that time. The law is actually vague as to whether the preliminary hearing is a final determination as to the termination of the birth parent's rights. Under the new law, however, after the preliminary hearing, "a final order" as to the termination of parental rights shall be entered. Further, the bill provides that a birth mother or birth father may appear before a court and a hearing be held at which the surrendering parent is heard as to whether the surrender was voluntary, and if the court determines that the surrender was voluntary and proper, the surrender will be final and irrevocable and will constitute a waiver of all notice of any subsequent proceedings with regard to the child. This will eliminate much of the anxiety that often accompanies private placements. It will also allow the birth parents to go forward with their lives and not be repeatedly reminded of their painful decision. Practically, the birth parent will be free to leave the jurisdiction and have privacy. Under the present law the birth parent's desire for privacy means that the attorney representing the adoptive parents must often engage in an exhaustive letter writing campaign and search for the birth parents, more often then not delaying the preliminary hearing.

Another provision in the new bill, which will be welcomed by foster parents whose current rights with regard to their foster children are very unclear, provides that any person who has provided care and supervision in his home for the child for a period of six months or one half of the life of the child, whichever is less, in the two years prior to the complaint, shall be given notice to the action and shall have standing to object to the adoption. It has been a matter of great controversy as to whether foster parents have standing and the right to object to adoptions for children with whom they have bonded and have been the only parents for years. Courts have afforded foster parents few rights, finding their parent-child relationships as merely "contractual".

The passage of this bill is a great accomplishment and will benefit New Jerseyans seeking to adopt a child. Much of the criticism to the bill was based on misinformation, misunderstanding and the pecuniary interests of some. For example, opposition to the bill stemmed from the fact that it did not include a provision for open records, the right of an adoptee to have access to court records in order to locate his or her birth parent(s). This issue, however, is the subject of other pending legislation.

There is still work to be done. A provision allowing open adoption -- which would have allowed a visitation schedule or other type of communication between the birth parent and the adopted child was deleted. Hopefully, this issue will be addressed in separate legislation. Perhaps the most compelling current issue is the reaction to the highly publicized case of Jessica DeBoer, the baby girl who had been received by an adoptive family, but whose custody was awarded to her biological parents. Presently, there is no clear cut answer as to whether the same case would have the same result in New Jersey. It is less likely to occur under the new law, however, but not impossible. Further, legislation addressing this precise issue could be drafted.

In conclusion, after more than seven years and hundreds of hours of work, it is the hoped that this bill will benefit all parties in the adoption triad, including people wanting to adopt, birth parents and, especially children who have recently been given short shrift by New Jersey courts. (See In Whose Best Interest: Child v. Parent? Toby Solomon and James B. Boskey, N.J. Lawyer, 157 at 36 (November/December 1993)). This bill will also assist courts in an area of the law, where their decisions have potentially devastating effects on the parties. The opponents to the bill should have solace that their opposition was beneficial in helping to draft more effective legislation with greater safeguards to all. We are confident that they will ultimately be persuaded that this bill is a significant improvement over current law.

Reprinted with permission of New Jersey Lawyer.

Toby Solomon is an attorney in Roseland, New Jersey and James B. Boskey is a law professor at Seton Hall Law School in Newark. Both are members of the NJSBA Family Law Section and wrote an article, "In Whose Best Interests: Child v. Parent," in the latest New Jersey Lawyer magazine. They received the 1993 NJSBA Distinguished Legislative Service Award for their work on amending the adoption laws.