Brief for the Respondent in Opposition — Mojar v. Signorelli

In The

eme Court of the United S

October Term

he a

* No. 72-280

LIDA MOJAR, :

Petitioner,

vs.

PETER A. SIGNORELLI, Et Ux,

Respondents.

| BRIEF OF RESPONDENTS IN OPPOSITION TO PETITION

ho FOR WRIT OF CERTIORARI

c.,

ERNEST GROSS

nd Attorney for Respondents

103 Bayard Street

. New Brunswick, New Jersey 08901

e

55.

LUTZ APPELLATE PRINTERS, INC.

Lew and Financia! Printing

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TABLE OF CONTENTS

Jurisdiction Sees 668 6 6 6 6 66 68 0

Counterstatement „ 0 0 0 „ „ 0 „ 6 „ „ 0 60

Argument:

In opposition to granting of Writ of

Certiorari * * 6 . * * „ e „ e * * „ *

Conclusion e 0 G G e 0 0 „ 6 6 6 6 „ 6 6

Table ef Citations

CASES CITED:

Griswold v. State of Connecticut, 381 U.S.

479, 492-496 ‘ete Re @ @ © 2 So & 4 ©

La Vigne v. Family and Children Society

of Elizabeth, 11 N.J. 473 (1953) ....

Meyer v. State of Nebraska, 262 U.S. 390,

399 . * * e se * * * * * * * 9 * * * . . *

P. and Wife, In Re, 114 N. J. Super. 584

(App. Div. 1971) „ „ b eee 66 „6 „

Portnoy v. Strasser, 303 N.Y. 539, 542

Prince v. Massachusetts, 321 U.S. 158,

166 * * 8 7 5 . * — J * e J 7 se * *

Spence-Chapin Adoption Service v. Polk,

29 N.Y.2d 196, 203 „ „ 6 „ „6 66 6

r ²˙ :! RIN ELATED TIE TI

l

nnn. . 405 US. (sss

A ( r

Rule 19 of the Rules of the United States

Supreme Court „ „% „„ » » „„ % » „ „ „„ „% „ 1

Rules of Practice of the New Jersey Sup-

reme Court:

Rule 2:6-3

Rule 2:5-4

„ „„ „„ „„ „ „„ „„ „% „„ „% „% „% „ „ „ „ 5

Consent of Natural Mother to Adoption

(PL-E-1, R.114)

eb eeneeenpenose

In The

Supreme Court of the United States

October Term, 1972

.

No. 72-280

LIDA MOJAR, Natural Mother, at

Petitioner,

vs.

PETER A. SIGNORELLI, Et Ux,

Respondents.

Jurisdiction

Recognizing that Rule 19 does not state every

possible reason for Certiorari, nevertheless, the

main test in a petition of this type is that.. . a

State Court has decided a Federal question in a

way probably not in accord with applicable deci-

sions of this Court.”

It is respectfully submitted that it is well

settled law that adoption with or without the con-

sent of natural parents is recognized where there

has been notice of hearing, and a hearing.

777 SEIS EIEN Li ENT

er

In the instant case, there was a full trial. Peti-

toner and her present spouse testified and in

addition presented two fact witnesses and one

expert witness. Respondents both testified and

in addition presented two fact witnesses and one

expert witness, and a pediatrician who was both

witness to facts and aiso an expert. Separate

from depositions, there was two full days of

trial and all witnesses were examined and cross-

examined at length. The trial transcript, ex-

clusive of depositions and motions is 312 pages.

Counterstatement

Petitioner contends that the transcript of the

hearing below “is replete with reference to the

pressures which were brought to bear on the

petitioner to give her son up for adoption, and

the repeated efforts on her part to retain his

custody.” Such reference in the transcript are

to petitioner’s own direct testimony. The records

also show that respondents were not the first

people to whom petitioner offered her child for

adoption. The transcript also shows that petitioner

had advice of her own counsel. When respondents

first spoke to petitioner about the adoption, peti-

tioner told respondents to look at the child and be

sure that respondents wanted the child.

After the petitioner had agreed by telephone

to give her child to respondents for adoption,

there was a delay of some five days because

petitioner wanted to consult her attorney about the

consent to adoption agreement (Rla). Petitioner

did not give over her child for adoption until

after she had gone over the matter with her own

attorney and executed a formal agreement con-

senting to the adoption.

The transcript also shows through two dis-

interested witnesses that petitioner was not under

pressure to give up her son and in fact turned

down an opportunity to live with one of the wit-

nesses (a divorced mother at the time) and take

care of petitioner’s child and the witnesses’. She

chose to give her child up for adoption instead.

Argument in Oppesition te Granting of

Writ ef Certierari

The crux of petitioner’s argument is that

Ninth Amendment rights are violated. In support

of this argument, petitioner relies on Meyer v.

262 U.S. 390, 399; Portnoy v.

Strasser, 303 N.Y. 539, 542, as authority. How-

ever, Meyer construed a statute prohibiting the

teaching of German. This Court in listing some

of the rights protected by the Fourteenth Amend-

ment stated that a protected right was that to

marry, establish a home and bring up children.

Portnoy was an action by a maternal grandmother

to take a child away from its natural mother

because the natural mother, a Caucasian was

married to a Negro, and in addition was a

communist. The Trial Court found as the facts

in Portnoy that the child was well adjusted ina

healthful and sufficient home and even though

the child received no religious training, based

on Meyer, the natural mother had control of

religious training. Even that case recognized that

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The Appellate Division of the Superior Court

found there was “substantial credible evidence in

the records to support the conclusion that the

surrendered her child for adoption by the adopt-

The Appellate Court also found that

natural mother knowingly, willingly and freely

ing parents.

1

the record amply supported the conclusion that

it was in the best interest of the child that it be

permitted to remain with its adopting family, cit-

114 N.J. Super. 584 (App.

ing

Div. 1971) (R-14a).

It is the practice in New Jersey in appeals

where there is a verbatim transcript for a copy

to be filed with the Appellate Court (Rules of

Practice 2:5-3). The record on appeal con-

sists of all papers, filed below, all entries made

on the record below, and the stenographic tran-

script where there is one NJ. R2:5-4 of Court.

The Appellate Division, therefore, reviewed the

entire record and not just the briefs and excerpts

of testimony.

The crux of petitioner’s argument is that since

Meyer recognized that there is a protected right

to marry, establish a home and bring up children,

therefore, there is a presumption that a natural

mother has a fundamental right to custody of

her child and a child has a right to his mother.

The issue before the Court is not inconsistent

with Griswold v. State of Connecticut, 381 U.S.

479, 492-496; Stanley v. Illinois, 405 U.S. 645;

Prince v. Massachusetts, 321 U.S. 158, 166;

or Meyer, supra. It is not the integrity of the

family unit, or the right of a child at first in-

stance to reside with his parents which is before

the Court. The issue that was presented below

after examination and cross-examination was

whether a parent in fact gave up her child for

adoption and that being established, was it then

— — — NOs a>

in the best interest of the child for that child

to be given to respondents permanently so that a

new family unit may be established.

Whether or not there is a presumption which

is a Ninth Amendment right is beside the point.

The New Jersey Courts have recognized that

the natural parents’ have a most important and

basic right, and so do adopting parents, and the

child also has rights. To say the child’s welfare

is paramount is only to put the matter in per-

spective. It is the natural mother who puts the mat-

ter afoot. It she did not knowingly, willingly and

freely surrender her child for adoption as the

Appellate Division of the Superior Court found,

the matter would not be in litigation at all.

It is not the rights of a parent as an ab-

stract proposition of law that is before this

Honorable Court. What is before this Court is

a specific case on a specific record in which

a Trial Court found in favor of respondents and

the Appellate Division on review held there was

substantial, credible evidence in the record to

support the conclusions as to a knowingly, willing

and free surrender of the child and to support

the ultimate conclusions that the adoption be

approved. The Supreme Court of New Jersey,

by denying Certification, concurred.

- |

For the foregoing reasons, it is respectfully

submitted that the Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

ERNEST GROSS

Attorney for and

Counsel to

Respondents

la

Consent ef Natural Mether te Adeptien

MIDDLESEX COUNTY COURT

PROBATE DIVISION

In the Matter of

THE ADOPTION AND CHANGE OF

NAME OF A CHILD BY PETER A.

SIGNORELLI AND JO-ANN

SIGNORELLI, husband and wife

WHEREAS, I, LIDA DAVIS, am the natural

mother of an infant born on the 22nd day of June,

1968, in Brooklyn, New York; and

WHEREAS, the name of the said infant child

is STEPHEN JAY DAVIS; and

WHEREAS, this child was born out of wed-

lock; and

WHEREAS, I am desirous of placing the said

child for adoption and of allowing the adopting par-

ents to change the name of the said child to their

own name;

NOW, THEREFORE, this writing is to witness,

certify and acknowledge that I, LIDA DAVIS, age

23 years, and presently residing at 2819 West

17 Street, Brooklyn, New York, the natural mother

of said infant, do hereby consent in writing inat

my said infant, STEPHEN JAY DAVIS, may be legal-

a 22 ͤ LF... 7

2a

Consent of Natural Mother to Adoption

ly adopted for all intents and purposes by the said

PETER A. SIGNORELLI andJO-ANN SIGNORELLI,

husband and wife; that the said adopting parents

may change the name of my infant child from

STEPHEN JAY DAVIS to STEPHEN PETER SIG-

NORELLI; that henceforth the said PETER A.

SIGNORELLI and JO-ANN SIGNORELLI, husband

and wife, shall be jointly vested with all the ob-

ligations, duties, rights and powers with reference

to my said infant child, the same as if the said

child were born to them,

I hereby certify and acknowledge voluntarily

and of my own free will and accord that I will

never in any way, at any time or place, claim or

assert any claim, privilege or right to the care,

custody or control of my said infant child, it

being understood and agreed that I am hereby

and forever divesting myself of any right, privi-

lege or claim in connection with the care, custody,

control or any other interest in and for the said

infant.

The reason for my giving this writing and

acknowledged consent to the adoption of my said

child by the adopting parents as hereinbefore named

is that I conceived this child out of wedlock and

am unable to support and maintain the same and

have no means of providing the economic neces-

sities for this child. I am confident and satis-

fied that the best welfare and interest of this child

will be promoted by this adoption, the adopting

parents having the facilities, personal qualities and

financial resources to give the child a sound,

permanent and advantageous home atmosphere.

PEE TEES NE tas

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Consent of Natural Mother to Adoption

I further state that I was born of the Roman

Catholic faith and that I concur and approve that

my said child being adopted by the adopting par-

ents as hereinbefore mentioned, shall be brought

up in the Roman Catholic faith.

IN WITNESS WHEREOF, I have hereunto set

my hand and seal this 18th day of February, 1969.

s/ Lida Davis (L.S.)

STATE OF NEW YORK

288.

COUNTY OF KINGS

BE IT REMEMBERED, that on this 18th day of

February, 1969, before me, the subscriber, per-

sonally appeared LIDA DAVIS, who, I am satis-

fied, is the person mentioned in the. within In-

strument, and thereupon she acknowledged that

| she signed, sealed and delivered the same as

| her act and deed, for the uses and purposes

therein expressed.

s/ Samuel M. Koren

SAMUEL M. KOREN

Notary Public, State of New York

No. 24-7338600 — Qual. in Kings County

Commission Expires March 30, 1970

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