Major Litigation

Lead counsel-James W. Miskowski, Esq.

Birth father’s Rights

“Baby D.” In the Matter of the Adoption of a Child by P.F.R and V.A.I., 308 N.J. Super. 250, (App. Div. 1998) A Trial Court in Somerset County ruled that a four year old boy who had been living with his adoptive parents shortly after the birth must be sent to live with his biological father in another State because the biological father had timely objected to the proposed adoption. At the time Baby D was born, the biological father was in jail. The court found that he did not know that his girlfriend had given birth and placed Baby D for adoption until a year transpired. The Court construed the Adoption Statute to permit him to veto the birth mother’s adoption plan since the adoption had not been finalized. The adoptive parents argued that by statute the adoption should have been finalized within seven months after placement. A four month delay in scheduling the finalization hearing was not the adoptive parent’s fault but that of the adoption agency and court calendar. Furthermore, the adoptive parents contended that by the time the birth father came forward, the child was emotionally and physiologically bonded with them and would be irreparably harmed if removed from them as his putative family.

The Appellate Division upheld the court’s factual findings and concluded the birth father had not abandoned his opportunity interest to parent. The Appellate Court reversed the Trial Court however, and remanded the case for a hearing based on the lower court’s failure to mandate a “best interests” hearing following denial of an adoption to determine whether a change in custody will result in significant harm to the child.

The case made national news. It was upsetting for adoption attorneys and adoptive families all over the State because it stood for the proposition that a birth father could come forward months or even years after a placement, and prevent an adoption, by claiming that he did not know of the pregnancy and birth. It also left unanswered the issue as to whether such an argument could be used to vacate Final Judgments of Adoption for which there are thousands of similar situations in New Jersey and throughout the country. This could have had a huge impact on adoption in our State, because as practitioners in the field know, many women who chose to place their children for adoption do not know the identity of the biological father,or because of abuse or neglect or some legitimate reason, chose not to identify him. There is usually nothing which as an adoptive family can do to secure themselves against the appearance of an unknown birth father. Baby’s D prospective adoptive parents did everything the law directed them to do in pursuing the adoption. They were approved as a adoptive family by a licensed home study agency; and they properly filed a complaint for adoption. For the first ten months of their life together, there were no clues that anything was amiss. Their life was shattered just as the adoption was about to be finalized.

Thereafter the State Legislators based upon Mr. Miskowski recommendations amended the adoption laws concerning the rights and obligations of birth fathers; establish the “best interest” of the child vs “parental unfitness” as the standard to terminate parental rights; and limited the amount of time a birth father has to establish paternity. The legislation now places the interests of the child in the forefront and prevent disruptions in adoption placements by eleventh-hour appearances of putative birth fathers who claim they were unaware of the birth of the child. It also protects women’s privacy rights by relieving hem of the responsibility of confronting past sexual partners with the fact of their pregnancy.

As a result these substantive changes in the Adoption statutes, the new law will significantly benefit the lives of the innocent children who unwittingly find themselves the subject of such proceedings. Whether the television dramas will continue is uncertain. At least in New Jersey, the Courts now have the statutory framework to decide these cases expeditiously and base their decision upon what is in the best interest of the child.

Grandparents’s Rights

In the Matter of the Adoption of a Child by W.P. 748 A.2nd 515, 163 N.J. 158 (2000). The Supreme Court addressed the issue of competing public policy interests between the Grandparent Visitation Statute and the Adoption Statute. The paternal grandparents of an adopted child demanded visitation rights after their son’s rights were terminated by a trial court and the adoption was finalized. The trial court however granted his parents visitation. The adoptive parents took an appeal because they did not want further involvement with the paternal family. The Appellate Division affirmed the trial court’s Order of visitation. Mr. Miskowski appealed the decision to the Supreme Court.

He took the position before grandparent visitation can be forced upon a family, over their objection, the U.S. Constitution requires the grandparent to demonstrate that the child will be at risk of substantial harm unless visitation is granted. Any less of a standard, such as a best interest analysis, is an unconstitutional infringement by the State on a family’s right to raise their children without governmental interference.

In this landmark decision the Supreme Court reversed the Appellate Division and trial court and held that in the case of a child adopted by a non-relative person the statute that gives visitation rights to biological grandparents’conflicts with and is overridden by the statute that governs adoptions. Once an adoption is finalized, the adoptive parents have all rights as if the child was naturally born unto them.

An adoptive family must be given the right to grow and develop as an autonomous family, and must not be tied to the very relationship that put the child in the position of being adopted. The true grandparents of the child are now the parents of the adoptive parents. They are now the child’s family. Therefore the lower courts can not order biological grandparents visitation over the objection of the adoptive parents. The grandparents took an appeal to the United States Supreme Court which was denied by the court.

Pre-Birth Abandonment

In the Matter of the Child by E.T. and T.T., 302 N.J. Super. 533 (App. Div. 1997), cert. denied, 152 N.J. 12 (1997). This case dealt with the issue of whether the conduct of a birth mother or father during the pregnancy may be considered by the courts in determining whether the parent’s rights should be terminated notwithstanding that parent’s objection. The trial court and the Appellate Division held that their conduct could be considered and also constitute grounds to terminate parental rights based on a theory of pre-birth abandonment. The case made new law regarding their conduct during the pregnancy and their commitment to the adoptive parents.

Jurisdiction/Conflict of Laws – Which State Laws apply in an Interstate Adoption

In the Matter of the Adoption of a Child by T.W.C., 270 N.J. Super. 445, (App. Div. 1994). the Appellate Division addressed the issues of Jurisdiction and Conflict of laws in an interstate adoption (the birth parents live in a State different from that of the adoptive parents). In this case of first impression, the Appellate Divison began its analysis with the presumption that the receiving state’s statute, New Jerseys’, confers subject matter jurisdiction upon the courts of that state over adoptions filed by its residents. However when the child to be adopted is received from another state, like the birth mother here in New York, one must consider the laws of the sending state under the Interstate Compact on the Placement of Children (ICPC), and the Uniform Child Custody Jurisdiction Act (UCCJA). Since neither State was deemed the “home state” of this newborn child under the definition in those statutes, the court held New Jersey, as the receiving state, had jurisdiction due to “significant connections” and its laws had priority over those of the sending state, New York. Thereafter all interstate adoptions were handled in this matter by the Interstate Compact Office in New Jersey based upon this cases’s rational and principles.

Wrongful Agency Adoption

In the Matter of the Adoption of Baby S, App. Div.2005 (A-6462-03TA), this was a Wrongful Adoption case against a licensed adoption agency. The birth mother desired to rescind and vacate an Agency Surrender of her parental rights after its execution. She alleged misconduct by the Agency’s social workers and deviation from State regulations regarding the procedure to be followed including options counselling. The birth mother also made allegations of fraud, duress and undue influence by the Agency. The Appellate Division upheld the trial court’s findings that the violation of administrative regulations were evidential on the question of whether the surrender was freely and voluntarily executed, but not conclusive. It also held the birth mother’s claim of fraud and duress prior to taking of the surrender did not rise to the standard of fraud and duress under the law.
The analysis of what constitutes “legal duress” is thoroughly explored in a 64 page opinion and the court remarked “legal duress” is not achieved by stress which flows from an adoption situation. The case is also important because it established the legal standard regarding the burden of proof to vacate surrenders in contested adoptions. The surrender was found to be legal and binding on the birth mother. The birth mother filed an appeal to the Supreme Court which was denied.

International Adoption

Doe vs. Living Bridges, United States District Court for the Eastern District of Pennsylvania (97-6355). Mr. Miskowski with local counsel handled this wrongful adoption case against an unlicensed not-for-profit organization illegally facilitating adoptions of Mexican children through orphanages in Mexico. Many unsuspecting couples adopted these children with grave consequences to their adoptive families. Legal issues included misrepresentation of emotional and psychological problems with the children presented by the orphanage; failure to provide complete medical records including social history of the children; fraud; and malfeasance by the organization. Instead of suing for monetary damages Mr. Miskowski’s clients, who had adopted three such children, decided to seek the legal dismantling of the PA operation. Diplomatic sources were employed to address the issues with Mexico since the Mexican orphanages were the initial source of the problem. Notwithstanding huge hurdles of international law particularly regarding jurisdictional issues since the adoptions were finalized in Mexico, the case settled with the organization agreeing to terminate all activities with the Mexican orphanages regarding placing children for adoption into the United States. Today many of these issues are addressed in an international treaty commonly referred to as the Hague Treaty, provided the countries involved are both signatories of the Treaty. Russia and some other major counties have not sign on as members.

Gestational Surrogacy

A.H.W. v. G.H.B., 722 A.2nd 948 (N.J. Super. 2000), a gestational surrogate carried the genetic child of her sister and her husband, and sought an order to permit the genetics parent’s names to be placed directly on the birth certificate without the need for an adoption. The court recognized the need for the biological parents to be permitted to be on the birth certificate of a child. The court granted the application provided the surrogate did not contest such an order surrendering any potential rights within three days after birth. The court did not address the issue as to what would happen if she failed to issue her consent. This was the first published decision in New Jersey, which in this evolving area of the law. Here it was done for autistic reasons and no money was paid to the surrogate. Few states in the country have enacted statutes to date. New Jersey and New York prohibits arrangements where a surrogate is paid for her services to avoid the commercialization of the practice.