Opposition Brief — B. J. M. v. Family Options

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No. 00-1924 #

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Jn the

Supreme Court of the United States

B.J.M.,

Petitioner,

v.

FAMILY OPTIONS,

E.R.B. and P.L.B., h/w,

Respondents.

Own Petition For Writ OF CERTIORARI

To Tue Superior Court Or New JERSEY

APPELLATE DIVISION

RESPONDENT'S BRIEF IN OPPOSITION

SAMUEL L. PELUSO, ESQ.

Counsel of Record

PELUSO STAUFENBERG CASTELLUCI

& HANULA

740 BroapD STREET, HIGHWAY 35

SHREWSBURY, N.J. 07702

(732) 345-8445

Counsel for Respondent,

Family Options

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

CORPORATE DISCLOSURE

Respondent Family Options is not a publicly traded

company nor does it have any parent or subsidiary companies.

TABLE OF CONTENTS

CORPORATE DESUL AIR cee a eat cs i

TABLE OF CONTENTS «:i5.4460000 Segoe eae il

TABLE OF AUTHROIRES tee ou cs eee ks iv

STATEMENT OF THE CARE acer ee a es l

A Credibility of Witnesses ........... l

B. Findanes OF PAG otras ek «8 l

i Petitioner's Voluntary Surrender Of

Her Parental Rights Complied With

The Requirements Of TheNew Jersey

Adoption AGL. . Soiree er ees 7

ARGUMENT .. ... .)<s s asset ee 11

A. The Standards Of DueProcess Are Not

Applicable To This Case Because The

Voluntariness Of Pettioner’s Waiver

Of A Fundamental Right Was Not The

Issue Before The Trid Court ........ 11

B. The Trial Court Imposed The Proper

Burden Of Proof Upon The Proper

Party... 64 n sates ee 17

Ba New Jersey's Adoption Statue Is Not

ee ee ee 20

il

D. There Is Not A Conflict Between New

Jersey And Other States Concerning

The Standard Of Proof In Non State

Agency Waiver Cases ............. 24

Sagas, as ae Ors a4 WA Td ee Re aN 27

ill

TABLE OF AUTHORITIES

Cases

Clark v. Jeter,

Gee Ue. POD 6 ks OR eae eee 17

Flagg Bros., Inc., v. Brooks,

C20 4.5. $69, HOC CSTE)... ee a eee es 13

Johnson v. Zerbst,

ee Me CI oo ayes oS en ee es 15,16

In the Matter of the Adoption of Children by D.,

Oe re See ee eS ee ere wenn iZ, 22

In the Matter of a Female Child,

Dae F206 VIRSCT IG87) . wo ae cine eee, 26

In the Matter of K.A.S..,

oe A ae CP: NORD kee ee Fe 14

In Re Baby M.,

109 N.J. 396 (1988) ............ S, 9, 2), Zz

In re Children by N.M.

we Wee. WOON. Wh Ie) 6 ek se ee cs ee ws 23

In re Jay R.,

EO Ce. AGO. 28 ZOU CURR) oe ke eee 14

InreJ.J.P.,

175 N.J. Super. 420 (App. Div. 1980) ....... 23

iV

Meza v. Rodriguez,

SD WL AGODE TTT TTR v6 abe tae eee 25

New Jersey DYFS v. A.W. and R.W.,

DGS 0.3; 208 CORE os ss Ca eta eee ee 12

O.A.H. v. R.L.A.,

TiZS. BESO Te 66 so a ee 14

Parham v. J.R.,

S642 U.S. SSG, GH Cire 6 eG eee 15

Pickett v. Brown,

4620.3. 1 CGR 2.2.0.2 4345 eee 17

Santosky v. Kramer,

S353 US.. FOS CPE? « 6. Cea ee 18, 19, 26

William D.A., Sr. v. Shawna Renee A.,

1999 N.L. 1188850 (W.Va.) .......... 22, 24

Zablocki v. Redhail,

AS4 U.S. SPS (IGT 6 6 io a eee 21

New Jersey Statutes

Re, Pee 6 se ee eee ee 8

SR ee | rr res re ee eras ae rn

New Jersey Regulations

MZAG.. TR TREA CR 5 ka hee eae ees 9

SAS. BREED AROD oe ee ees ens 8, 10

STATEMENT OF THE CASE

Petitioner’s inaccuracies and misstatements of fact are

unsupported by the credible evidence, the opinion of the Trial

Court and the opinion of the Appellate Division.

Accordingly, Respondent offers the following as an accurate

account of the facts in this case.

A. CREDIBILITY OF WITNESSES

The Trial Court was in a position to assess the

credibility of the witnesses who testified. Of the four major

fact witnesses, Petitioner, Petitioner’s mother, Ms. Christine

Letizia, and Ms. Diane Propert, the Court found all to be

“personally and heavily invested in the outcome of the case”.

Petitioner’s Appendix, hereinafter referred to as “PA” 39a.

In light of this, the Trial Court did not adhere to any one

witness’ recollection of the facts. Rather, the Trial Court

“considered the parties’ testimony, their biases and the

consistency of their testimony, as well as how their testimony

squared with known objective facts”. PA 40a. After

carefully weighing and considering the testimony of each, the

Trial Court found Petitioner’s claim that she signed the

surrender and consent to adoption documents without reading

any of them to be “incredible”. PA 75a-76a. The Appellate

Division, while acknowledging general deference to a lower

court’s findings of fact, determined that the Trial Court's

“findings on this point appear to be eminently supported by

the record”. PA 10a. Accordingly, Petitioner lacked

credibility with the Trial Court.

B. FINDINGS OF FACT

Petitioner was not suffering from a mental illness or

psychological malady that would inhibit her from being able

1

to make an informed and voluntary decision to place her baby

for adoption. Petitioner’s family physician never diagnosed

her as being depressed or in need of psychological counseling.

PA 46a. The professionals at the hospital where Petitioner

gave birth did not diagnose any psychological disorder in

Petitioner, pre-existing or precipitated by the pregnancy, nor

did they see a need to order psychological counseling for her.

PA 7a; PA SS5a.

Petitioner relies heavily upon portions of the testimony

of a nurse, Gerry McKnight-Luddy, in supporting her

depression allegation. Nurse McKnight-Luddy is a fact

witness with very limited exposure to the entire matter.

Petitioner conveniently overlooks other portions of Nurse

McKnight-Luddy’s testimony that bear upon these issues.

Nurse McKnight-Luddy testified that after the delivery,

Petitioner's demeanor changed from crying jags into a much

calmer state. 1T4:190-11 to 16'. Another nurse, Larissa

Minchin, Petitioner’s attending nurse on the day after

delivery, testified that Petitioner was calm during her shift.

Nurse Minchin also testified that, during a conversation,

Petitioner informed Nurse Minchin that she would be unable

to give the baby what she needs and that she would proceed

with the adoption for the sake of the baby. T4:208-1 to 5;

T4:208-11 to 13.

Petitioner, though feeling the effects of the momentous

decision she made, exercised her own will, free from any

psychological malady, from the time she learned of her

pregnancy to the time that she knowingly and voluntarily

signed the surrender and consent to adoption. This was a

' 74:190-11 to 16 refers to the Trial Court transcript

lodged with the Appellate Division of the Superior Court of New

Jersey.

Pen QW arene are

choice that she made after carefully and thoughtfully

considering her options. After the birth of the baby,

Petitioner exercised strong decisiveness when she dismissed

the first couple she had approved to adopt her baby. PA 56a.

Additionally, Petitioner returned to work and_ school

immediately after giving birth. PA 89a.

Regarding Petitioner’s inclinations toward parenting or

lack thereof, the Trial Court, as fact finder, concluded that

“while [Petitioner] complains that the agency was primarily

focused on adoption, [Petitioner’s] doctor referred her to the

agency for that purpose, and for the first five weeks of the

relationship, [Petitioner] expressed no interest whatsoever in

parenting”. PA 83a.

Petitioner’s so-called attempt to develop a parenting

plan was pursued with little vigor by Petitioner. As the Trial

Court found, Petitioner understood that she could call upon a

baby-sitter or try foster care or simply bring the baby home

if parenting was a serious consideration. PA 83a. Petitioner

testified that she was aware she could take the baby home

with her at any time. T2:191-22 to 192-1. The Trial Court

also noted that “[Petitioner] made it very clear that she was

not willing, even for a short period of time, to put off her

personal school goals and parent the child herself”. PA 92a-

93a. Further, the Appellate Division found that “[Petitioner]

was considering parenting [the baby], but no real preparations

were undertaken and no family members were available to

assist with parenting...and [Petitioner] continued to consider

prospective adopting parents”. PA 4a. Parenting was an

option that was explored. It was simply not the option the

Petitioner chose.

Petitioner claims that Respondent Family Options

subjected her to immense pressure to move forward with

3

adoption. As both the Trial Court and Appellate Court found,

“the pressure by [Family Options] was not to force an

adoption, but rather, to pressure [Petitioner] into making a

decision about her child’s future”. PA 8a; PA 9la-92a.

Further, even though Petitioner was at times “confused... and

conflicted”, she was not under “overwhelming pressure...

sufficient to force her to make a decision that she would not

otherwise have made”. PA 8a-9a.

Petitioner made a choice to voluntarily relinquish her

parental rights to her baby. It was an informed decision, as

Petitioner had the benefit of knowing and understanding that

she had other options to adoption. Petitioner testified at trial

that it was after placing the baby with the adoptive parents

that she felt the placement was a “mistake”. T2:211-13 to

20. Simply stated, Petitioner is now unhappy with her

choice.

Petitioner is wholly inaccurate in stating that Ms.

Letizia informed Petitioner that daycare for newborns did not

exist. The Trial Court found that, while Ms. Letizia was

unfamiliar with the availability of daycare for newborn infants

in the county where Petitioner resides and stated such, she

verbally referred Petitioner to that county’s Office of the

Department of Youth and Family Services and the Board of

Social Services. PA 80a-82a; T7:92-15 to 17:93-8.

Petitioner’s mother, on her own initiative, checked the local

- telephone directory and was unable to locate daycare for

newborns in their area. 12:188-6 to 20. Additionally,

Petitioner was aware that babysitting was another option. PA

82a; T4:53-16 to 21.

Petitioner is inaccurate in her depiction of Family

Options’ actions in continuing to care for the baby as a

“defiant refusal” to abide by Petitioner’s wishes. Petitioner’s

4

Brief, hereinafter referred to as “PB”, 9. Petitioner had been

informed that Family Options could only provide short term

foster care when a birth mother was in the process of

selecting adoptive parents. T7:132-13 to 19; T7:132-23 to

25; T7:133-1 to 3. Ms. Propert cared for the baby from the

time the child was released from the hospital. Ms. Letizia

offered to inquire about longer term foster care for the baby.

T7: 125-2 to 5.- Ms. Letizia found a foster care provider and

provided the information to Petitioner. 17:133-23 to 25;

T7:134-11 to 13; T7:135-13 to 17; T7:136-3 to 7. Ms.

Letizia was in the process of arranging to transfer the baby

from Family Options’ care and into longer term foster care

when she was informed by Ms. Propert that Ms. Propert

would continue to care for the baby because of the baby’s

minor medical problems and because the selection process

appeared to be moving forward. 1T7:144-6 to 25. Neither

Petitioner nor her mother objected to allowing Ms. Propert to

continue to care for the baby. 17:145-17 to T7:146-2.

Petitioner even felt relieved and that it was nice of Ms.

Propert to continue to provide care for the baby. T2:151-6 to

19; T2:152-1 to 4.

Petitioner provides no support or citation for her

contention that Ms. Letizia’s “loyalty” was to the adoptive

parents. A fair reading of the record shows that Ms. Letizia

normally receives a flat fee if an adoption occurs. T8:232-16

to 25; T8:233-1 to 11; T8:234-5 to 7. In the event that

adoptive parents have been selected, and an adoption does not

occur, Ms. Letizia receives remuneration based upon an

hourly rate, and, in this particular case, earned less by

proceeding with the adoption. T10:152-1 to 25; T10:153-1

to 2. Petitioner’s insinuation that Ms. Letizia compromised

her professional ethics in order to “force” an adoption is

unsupported by the facts, inflammatory, and misleading.

iii

Additionally, Petitioner has failed to support her

contention that Family Options failed to comply with the

Adoption Act by not exercising its discretion to invalidate

Petitioner’s surrender. Moreover, as the Appellate Division

found, “[t]here was no evidence that the child had bonded

with [Petitioner] or would suffer harm by the adoption”. PA

14a.

Petitioner is inaccurate in her allegation that Family

Options contacted her on a relentless and uninvited basis.

While Ms. Letizia may have placed telephone calls to

Petitioner, Petitioner certainly called Ms. Letizia’s beeper

number with even greater regularity. Petitioner testified that

she paged Ms. Letizia on no less than eleven different days

from her home and twice on one of those dates: December

12, 13, 21, 27, 1999, and January 6, 10, 16, 18, 19, 20,

2000. T:124-15 to 25; T12:12-6 to 11. While Petitioner and

Ms. Letizia spoke often, it was never an event solely initiated

by Ms. Letizia.

Petitioner refers to Ms. Letizia’s casenotes in a

misleading fashion in an attempt to create a conflict between

the credible record and the Trial Court’s findings. As Ms.

Letizia testified, the casenotes generally contained the date,

nature, and a few notations regarding the contact with

Petitioner. T7:16-7 to 11. Ms. Letizia testified that not every

aspect of the contact was contained therein, so they were not

inclusive of every part of the discussion. 1T7:16-12 to 14.

While the casenotes are credible evidence, Petitioner’s

reliance upon them is inappropriate. The appropriate fashion

in which to review the casenotes is that same reinforce the

credibility of Ms. Letizia’s testimony, since she, at the time

of the occurrence, had made over fifty-one pages of notes that

greatly enhanced her ability to recall. No other witness

enjoyed this benefit. Thus, the casenotes actually support Ms.

6

Letizia’s testimony and the Trial Court’s findings of fact.

Petitioner is inaccurate in her allegation that, prior to

Petitioner signing the surrender and consent to adoption

documents, Family Options informed the adoptive parents that

they were going to receive the baby. As the Trial Court

found, Ms. Letizia “indicated to the [adoptive parents] that

they were the finalists and she thought [Petitioner] would sign

the surrender [on January 19, 2000]”. PA 66a. However,

the adoptive parents were fully aware that Petitioner might

change her mind and not sign the documents. PA 66a.

c. PETITIONER’S VOLUNTARY

SURRENDER OF HER PARENTAL

RIGHTS COMPLIED WITH THE

REQUIREMENTS OF THE NEW

JERSEY ADOPTION ACT.

New Jersey’s Adoption Act requires an approved

adoption agency to provide certain information to a

birthparent prior to acceptance of executed surrender

documents. Pursuant to N.J.S.A. 9:3-41(a), the adoption

agency must:

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 the child... and consent by the

person to adoption of the child.

Both the Trial Court and Appellate Division found

ample credible evidence regarding Petitioner’s understanding

that signing the surrender documents would mean an

irrevocable surrender of her parental rights and an end to her

7

relationship and contact with her baby, except as permitted by

the adoptive parents. PA 74a; PA 10a-1 1a.

Pursuant to N.J.S.A. 9:3-39.1(b), “[t]he birth parent...

shall be offered counseling as to his or her options other than

placement of the child for adoption”. The statutory

requirement of options counseling is expanded upon by the

regulations contained in N.J.A.C. 10:121A-5.4(c)(1), which

direct the adoption agency to document that the birthparent

was:

1. Provided at least three face-to-face counseling

sessions... and that the birth parents were:

a Offered counseling that fully

explores alternative plans for

the child, including...

temporary foster care, day dare

and care by relatives;...

iil. Prepared along with [the] child,

for surrender and separation;

iV. Referred to other community

resources when the agency

cannot provide needed

Services...

The New Jersey Supreme Court has reviewed the issue

of compliance with the counseling requirements of New

Jersey’s Adoption Act. In the case of In Re Baby M., 109

N.J. 396, 432, (1988), the New Jersey Supreme Court

determined that “the Legislature so carefully circumscribed all

aspects of a consent to surrender custody --its form and

substance, its manner of execution, and the agency or

8

Si afin Buia as tae po

agencies to which it may be made -- in order to provide the

basis for irrevocability”.

Further, the New Jersey Supreme Court found that the

legislative purpose of the Act is furthered by the regulations

in the Adoption Manual, N.J.A.C. 10:121A, et seq., by

increasing the likelihood that a birthparent “fully

understand[s] and appreciate[s] the consequences” of

voluntarily surrendering parental rights to the child. Baby M.

at 423-33. Both the Trial Court and Appellate Division in this

case adhered to that rationale. PA 79a-80a; PA 12a.

In an exhaustive Opinion, the Trial Court determined

that Petitioner was provided with sufficient counseling to

appreciate the options available to her other than adoption and

to understand the consequences of choosing adoption. PA

77a-85a. Petitioner and her mother both testified that they

understood the permanency of choosing adoption. T6:69-1 to

6; T3:193-12 to 16. The credible evidence supported the

Trial Court’s findings, and the Appellate Division affirmed.

PA 13a-14a.

The Adoption Act does not require licensed agencies

to counsel birthmothers on adoption as a “last resort”. It does

require agencies to counsel birthmothers on the options

available other than adoption, counseling which Petitioner

received in full from Family Options.

Both Petitioner and her mother were aware that until

the surrender and consent to adoption documents were signed,

the baby was still legally Petitioner’s daughter. Nurse

McKnight-Luddy testified that, while in the hospital,

Petitioner’s mother informed Petitioner and Nurse McKnight-

Luddy that nothing was signed and Petitioner did not have to

“do anything” she did not want to do. 1T4:173-13 to 21;

9

_T4:177-19 to 25; T4:178-1 to 19. Petitioner admitted that she

was aware at the time of signing that the documents were for

surrender and her consent to adoption of the baby. T3:66-8

~ to 25; T3:132-20 to 22.

Pursuant to the requirements of N.J.A.C. 10:121A-

5.4(c)(1), Petitioner received at least three face-to-face

counseling sessions in which alternatives to adoption were

discussed. On each of the days that Ms. Letizia provided

counseling to Petitioner, they discussed options, including

foster care, day care, and care by relatives. Ms. Letizia

provided Petitioner with two counseling sessions in her home,

on December 11, 1999, and January 14. PA 48a-50a; T7:37-

1 to T7:50-25; T7:111-8 to 25; T7:112-1 to 18. She provided

four counseling sessions for Petitioner at the office of Family

Options, on December 27, 1999, and January 15, 16, 19,

2000. PA 52a-53a; PA 57a-60a; PA 63a-66a; T7:69-9 to 14;

T7:73-6 to 25; T7:74-1 to 10; T7:124-9 to 23; T7:125-2 to 5;

T7:143-12 to 25; T7:162-8 to 23; T7:165-20 to 25.

Additionally, Ms. Letizia provided counseling to Petitioner on

January 12, 2000, in the hospital, and on January 18, 2000,

at a diner, a location chosen by Petitioner. PA 54a-55a; PA

62a; T7:92-2 through T7:95-1 to 4; T7:154-5 to i7. This is

in addition to the counseling provided by Ms. Preopert, the

Director of Family Options.

Additionally, Petitioner was provided with referrals to

outside resources when Family Options was unable to provide

the resource. Pursuant to N.J.A.C. 10:121A-5.4 et seq.,

Family Options was not required to contact resources directly

on behalf of the Petitioner. The regulation only requires the

adoption agency to refer the birthparent to an outside

resource, which was the precise course of action taken by

Family Options. PA 81a.

10

—

Family Options complied with the statutes and

regulations governing adoptions in New Jersey by informing

and counseling Petitioner so that she had knowledge and

understanding of the consequences of signing the surrender

documents. She was aware of the alternatives to adoption.

She was aware of the finality of adoption. Family Options

was in full compliance with the legislative purpose and goals

of the Adoption Act. PA 14a; PA 82a-83a.

ARGUMENT

A. THE STANDARDS OF DUE

PROCESS ARE NOT APPLICABLE

TO THIS CASE BECAUSE THE

VOLUNTARINESS' OF

PETITIONER’S WAIVER OF A

FUNDAMENTAL RIGHT WAS

NOT THE ISSUE BEFORE THE

TRIAL COURT

Petitioner’s brief focuses upon the claim that the right

to bear and raise one’s child is a fundamental right. However,

Petitioner incorrectly focuses on cases where a state agency

attempts to take away one’s fundamental rights, thus giving

rise to the due process clause of the Fourteenth Amendment.

Petitioner states “The Fourteenth Amendment concept of

substantive due process protects the mother’s relationship with

her child from unwarranted governmental intrusion”.

(emphasis added) PB 19. In this case, there was no

unwarranted governmental intrusion since there was no state

action or attempt by any state agency to take away Petitioner's

right to raise her child. To the contrary, Petitioner

voluntarily surrendered her right to raise her child.

Accordingly, this case does not involve a question of

substantive due process. The Trial Court’s focus was not

11

upon the involuntary termination of Petitioner’s rights, but

upon whether or not the voluntary surrender of her child was

made under duress.

Petitioner cites the case of In the Matter of The

Adoption of Children by D., 61 N.J. 89 (1972), in support of

the proposition that adoption proceedings involve the

termination of the fundamental, constitutionally protected

rights of the natural mother of the child, and without which

there can be no adoption. While this is a true statement of the

law, it must be noted that Petitioner voluntarily terminated her

own rights as the natural mother of the child. The case of D.

involved an adoption by a stepfather and a non-consenting

birth father. That case and its standards are solely applicable

to a situation with divorced parents, as the Court stated in its

opinion. Accordingly, that holding is inapplicable to the case

at bar.

Petitioner cites the case of New Jersey DYFS v. A.W.

and R.W., 103 N.J. 591 (1986), for the proposition that the

termination of a mother’s fundamental interest in her

relationship with her child is protected by the due process

clause of the Fourteenth Amendment. That case, however,

involved an involuntary termination of parental rights that was

initiated by DYFS. In that instance, the Court held that the

appropriate standard of proof was clear and convincing

evidence, citing the Fourteenth Amendment and the need for

due process. The Court did not state that this standard

applied in an agency adoption or in the case where a birth

mother seeks to set aside a surrender based upon a claim of

duress. Accordingly, the case of DYFS v. A.W., is not

controlling in this matter.

To advance her argument, the Petitioner continues to

insist that state action was involved because the adoption

12

a Ne enn aetna, Smee

i hea DO Oa Sidhe ets eas tana rin ates

agency is deputized by the state, which would make the

adoption agency’s conduct state action. The creation of

adoption though a licensed agency serves the interests of

people unable to conceive children and parents who conceive

children, but do not have the ability to raise them. The

Legislature authorizes adoption through licensed agencies, but

that does not make an adoption agency a state actor. The

adoption agency’s actions are subject to a review by the Court

to examine if the agency complied with the relevant statutes

and regulations. In this case, Family Options’ actions were

examined by the Trial Court and found to be in compliance

with the relevant statutes.

A state is not responsible for the actions of a private

party unless the law of the state has compelled the action. The

Supreme Court “has never held that a State’s mere

acquiescence in a private action converts that action into that

of the State.” Flagg Bros., Inc. vs. Brooks, 426 U.S. 149,

164 (1978).

The difference between the cases cited and the instant

case is clear. The case at bar did not involve any state

process or state official. The state did not force Petitioner to

sign the surrender and then deny the Petitioner her

Constitutional rights. Petitioner availed herself of the adoption

statute and initiated the action to voluntarily surrender her

rights. There can be no state action since there was no

government agency. Even if the Courts were to imply that

the actions of the agency were state action, the process was

initiated by Petitioner, not the adoption agency. There was

also no deprivation of any right by the adoption agency as it

was a voluntary choice of Petitioner to deprive herself of her

right to raise her child.

13

The Petitioner argues that even if the litigation is

between private parties, only the judiciary has the power to

terminate parental rights. In support of this proposition, the

Petitioner cites several cases, (none of which are New Jersey

cases), which are easily distinguishable from this case. First,

Q.A.H. v. R.L.A., 712 S. 2d 4 (Fla. 1998) (improperly cited

by Petitioner as G.A.H.) involved a contested adoption

proceeding between the stepparent and the natural father, who

would not consent. In that particular case, the father was

indigent and had a right to appointed counsel, given the state

involvement in an involuntary termination of parental rights.

In this case, the Trial Court did not make a judicial

determination of termination of parental rights and therefore

no state action was implicated.

Petitioner also relies upon the case of In re Jay R., 150

Cal.App.3d 251 (1983), which also involved a stepparent

adoption where it was alleged that the birth father had

neglected his child. The birth father was indigent. The Court

ruled that he had a right to counsel. Due process concerns

were implicated because the birth father was accused of

neglect, and issues of adequate notice and an opportunity to

be heard were presented. That case also turned on very

specific language contained in the California statutes. The

Court held that “due process requires appointment of counsel

for indigent noncustodial parents accused of neglect in

stepparent adoption proceedings.” Id. at 260. That case is

more akin to the procedures necessary in an involuntary

termination case initiated by the Division of Youth and

Family Services since the basis of the action concerns the

neglect or abuse of the child. Those facts are strikingly

absent in this case. See also In the Matter of K.A.S., 499

N.W. 558 (N.D. 1993).

14

Petitioner has created a true distortion of the issues

before the Trial Court by arguing that the Trial Court had to

decide if a constitutional waiver was validly made in order to

terminate the mother’s rights. The Trial Court did not

consider constitutional waivers and termination of the

mother’s rights. The issue was whether or not the Petitioner's

consent to the adoption was the result of duress.

“[E]xtravagant characterizations are no substitute for careful

analysis.” Parham v. J.R., 442 U.S. 584, 614 (1979). This

case cannot be compared to an involuntary termination case.

Petitioner has confused the issue which was decided at the

Trial Court and attempts to use standards that are limited to

involuntary termination cases. The two types of proceedings

_ are inherently dissimilar.

The Petitioner further argues that her waiver of her

fundamental right to parent her child was not voluntary,

informed and knowing. The Trial Court specifically found

that the Petitioner knew what she was doing when she signed

the surrender document. Additionally, the waiver arguments

advanced by the Petitioner apply to different types of actions,

particularly when the state is involved, a fact which is absent

in the present case.

Petitioner attacks New Jersey’s statutory scheme as

violative of due process and incorrectly states that the “state's

statutory scheme makes a waiver of the mother’s right totally

irrevocable”. The adoption statute does not mention waivers

of rights, but states that a “surrender” is deemed irrevocable

and yet provides that it may be set aside under certain

circumstances. The Legislature certainly contemplated the

importance of finality in an adoption.

In support of this ill-conceived position regarding

involuntary waivers of rights, Petitioner cites Johnson v.

15

Zerbst, 304 U.S. 458 (1938), for the proposition that an

uninformed or involuntary waiver of a fundamental right and

interest is constitutionally deficient. However, Johnson is

totally irrelevant and inapplicable to the case at bar. That

case dealt with the Sixth Amendment right to counsel. The

flaw in Petitioner’s argument is that the case at bar does not

involve a waiver of a fundamental right, but involves the

signing of a voluntary surrender. While the Courts do not

presume acquiescence in the loss of fundamental rights, the

Court cannot overlook the fact that Petitioner signed a

voluntary surrender of her rights to her child. This was done

so after counseling and numerous discussions with the

adoption agency and family members.

Petitioner argues that “it is incumbent upon the court

to insure that no abuses were employed to induce the waiver

of rights.” PB 22. Although waiver of rights was not the

issue, it is clear that the Trial Court made specific findings of

fact and was assured that no abuses were employed in the

taking of the surrender.

Petitioner incorrectly states that the Trial Court did not

consider her attempted revocation as evidence of the

involuntary nature of the surrender. PB 22. To the contrary,

the Court considered all of the evidence over thirteen days of

trial and wrote a fifty-seven (57) page opinion. In the

Opinion, the Trial Court also thoroughly analyzed the method

in which the surrender was obtained and determined that it

was proper. PB 73a-94a. Petitioner argues that the

irrevocability of the surrender violates her substantive due

process rights. However, as discussed infra, the Petitioner is

not entitled to substantive due process in the absence of state

action.

16

Further, the Petitioner argues that rigid time frames

imposed upon an unwed mother are unconstitutional. The

cases cited in support thereof are taken completely out of

context. Clark v. Jeter, 486 U.S. 456 (1988), is a case about

the statute of limitations for paternity actions of illegitimate

children. The statute was held unconstitutional on equal

protection grounds. The concerns inherent in that case do not

abide in this case. The time frame referred to was “the

period for obtaining support” Id., at 462, not the period

within which to invalidate a voluntary surrender of a child.

Pickett v. Brown, 462 U.S. 1 (1983) concerned the very same

issue.

While it is acknowledged that the Petitioner was faced

with a difficult, emotional decision, the Trial Court included

this issue in its findings of fact and found that the Petitioner

had adequate time and resources to consider her decision. PA

92a-93a.

B. THE TRIAL COURT IMPOSED

THE PROPER BURDEN OF ROOF

UPON THE PROPER PARTY

At trial, the Court imposed the burden of persuasion

upon the birth mother and ruled that she had to prove her case

by a preponderance of the evidence. It is this standard that

the Petitioner alleges as a violation of due process.

Petitioner disputes the Trial Court’s first stated reason

for its refusal to utilize a higher burden of proof, i.e., that in

voluntary agency adoptions, the existence of documents,

regulations, and strict standards make it more difficult to

fabricate facts. However, the Trial Court did not solely rely

upon the above items. The Trial Court took testimony for

thirteen days, thus fulfilling its role as “the diligent and

17

ne ee

jealous arbiter of facts” PB 21. Based upon all of the

testimony and the documentary evidence submitted, the Court

determined that the Petitioner understood what she was doing,

was informed of the finality of the surrender, and voluntarily

signed it. Evidence that the Petitioner’s surrender was

uninformed or involuntary is absent from the record.

Despite the review by the Appellate Division of New

Jersey, Petitioner continues to argue that Family Options, the

adoption agency, was the proponent of the termination and

therefore should have been required to prove the basis for the

termination. In fact, the proponent of the termination was the

Petitioner herself. She signed a surrender to her child and

agreed to terminate her parental rights. As the proponent of

the original termination, it was her burden to prove that her

consent was induced by duress. She was unable to meet this

burden.

Nevertheless, the Petitioner argues that “simple

justice” requires the agency to bear the burden of proof. PB

22. It is interesting that the Petitioner does not cite to any

case or statute to support this proposition. There appears to be

no case law at all that requires the agency to sustain the

burden of proof when a consent is sought to be set aside by

the birth parent. The agency did not take advantage of the

Petitioner. The Petitioner sought the aid of the agency in her

time of crisis. It was her allegation that she was under

duress, thus it was appropriate for her to bear the burden of

proof, not as to why her rights shouid not be terminated, but

as to why her surrender should be set aside. Again, the

Petitioner misrepresents the issue.

The Petitioner relies upon the case of Santosky v.

Kramer, 455 U.S. 745 (1982) for her argument that the Trial

Court should have applied a clear and convincing standard.

18

Santosky was a case involving an involuntary termination of

parental rights initiated by the state. The Court held that the

proponent of the termination had to prove its case by clear

and convincing evidence. Because the state initiated the

action, due process standards applied. In this case, the only

question was whether or not the voluntary surrender of

Petitioner was the result of duress. There was no state agency

involved and there was no state action. The facts of the

present case are completely dissimilar than Santosky, which

is why the Santosky standards were not applied either by the

Trial Court or the Appellate Division. In fact, the Trial Court

noted the Santosky standard and specifically held that it was

inapplicable to this case. PA 37a. Further, the Appellate

Division agreed. PA 20a.

Another factor that the Santosky Court relied upon

was that state resources often greatly exceed those of the

parents whose rights are sought to be terminated in

involuntary termination proceedings. This factor is not

applicable to the instant case as state resources are not

involved. Both Petitioner and Respondents have private

counsel and are utilizing adequate resources to pursue the

case, obviating the need for a higher standard of proof.

The case at bar was not initiated by the state, but

rather by Petitioner herself. She surrendered her parental

rights in a voluntary fashion and was not forced to do so by

the state or anyone. Since Petitioner brought the action, it is

only reasonable that she bear the burden of persuasion.

Despite the obvious inapplicability of Santosky to a

case where there is a voluntary surrender to an agency,

Petitioner insists that this creates an issue of constitutional

significance for this Court to decide. Petitioner also urges

that the burden must shift to the agency to prove the voluntary

19

nature of a surrender. Both of these claims are unsupported

by law or fact.

i. NEW JERSEY’S ADOPTION

STATUTE IS NOT

UNCONSTITUTIONAL

In the state of New Jersey, there is a statutory scheme

for adoption which includes adoptions through state-licensed

agencies, and the consents of birth parents to the surrender

and adoption of their children. The statute specifically

provides that the surrender is irrevocable, absent a showing

of fraud, duress or misrepresentation. While the statutes

provide procedures for termination of parental rights when

initiated by the state in neglect or abuse cases, such

procedures are inherently different than those employed for

agency adoptions.

Petitioner compares the various methods employed by

statute to terminate a parent’s rights and focuses on notice.

In an agency adoption, the New Jersey adoption statute does

not require notice of the complaint for adoption to be served

upon the birth mother because when she signs the surrender

and consent for adoption documents, she waives the right to

be served notice of the adoption complaint.

Petitioner also attempts to compare private placement

adoptions and licensed agency adoptions. A birthmother in a

private placement adoption may not sign a written waiver of

her parental rights because none of the safeguards inherent in

an agency adoption are present. With an agency adoption, the

agency must fulfill all of the aforementioned statutory and

regulatory requirements in order to accept a written waiver of

parental rights, which is why the surrender is deemed

20

irrevocable.

New Jersey has achieved a statutory and regulatory

scheme for adoption that seeks to ensure and appropriately

balance the rights of the child, the birthparents and the

adoptive parents. The Petitioner argues that the New Jersey

adoption statute which makes the revocation of a waiver

irrevocable regardless of the best interests of the child is

unconstitutional and violates due process as applied to this

case.

Petitioner has argued that since the adoption statute

impairs or adversely affects a fundamental li »erty interest, the

law is subject to strict scrutiny. The Petitioner cites the case

of Zablocki v. Redhail, 434 U.S. 374 (1978), for this

proposition. That case concerned the fundamental right to

marry, and a statute was invalidated based upon an equal

protection argument. Since Petitioner has not alleged any

violation of equal protection or that she is a member of a

protected class, the statute in question is not subject to strict

scrutiny.

In Baby M.., the Court examined the statutory scheme

of New Jersey’s Adoption Act. The Court in Baby M. found

that the “Legislature ...carefully, ...consistently, and

...Substantially restricted termination of parental rights”, for

the reasons previously discussed. Baby M. at 429.

The Petitioner further argues that the state can achieve

its objective by less intrusive means, such as imposing a

period of revocation or judicial review before a surrender is

signed. Deference to the Legislature in this regard is

certainly appropriate, especially because the statute in

question already protects birth mothers by providing a means

to set aside a surrender. The Petitioner availed herself of her

21

statutory right and had the opportunity to prove her case. She

was unable to sustain her burden. See William D.A., Sr. v.

Shawna Renee A., 1999 N.L. 1188850 (W.Va.) (concurring

opinion).

Since the Court in Baby M. has already closely

examined the requirements of an agency surrender and found

that the requirements for same are stringent and

circumscribed, the Petitioner therefore has no basis to attack

the statutory scheme. The Trial Court fully examined the

validity of the surrender in the context of the statutory

requirements and found that same was not the product of

duress. The Trial Court’s findings were adequately supported

by the weight of the evidence. Petitioner’s constitutional

claims upon the statutory scheme are therefore without merit.

As a further attack on the statutory scheme, Petitioner

notes the absence of a best interests analysis. The Petitioner

misreads the Trial Court opinion by stating that the best

interest of the child is the interest sought to be protected by

the irrevocability of the surrender. The Trial Court’s

statement was that the “adoptive parent’s right to finality of

the adoption flows from the best interests of the child.” PA

36a. Therefore, it is the child’s best interests that favor

finality of adoption.

Petitioner further misleads this Court with its statement

that the lower court stated that “the child’s best interest is a

competing interest with that of the mother.” PB 23. At the

Trial Court level, the only mention of the child’s best interests

was when the Court outlined the exceptions to the general

allocation of burden rules, one being public policy. The

Court concluded that along with a right to parent, there is also

a consideration of the best interests of the child, ‘‘embodied

in a policy favoring the finality of adoption.” The Court then

22

concluded that policy considerations did not determine the

issue. The Court never embarked upon a best interests

analysis because it was not required to do so.

The Petitioner argues that the Court had to consider

the best interests of the child when making its determination.

New Jersey case law dictates a contrary result as that

determination is only made once there is a finding that the

parental rights are terminated.

Petitioner’s reliance upon several cases that involve

stepparent adoptions is completely misguided. Specifically,

In re Children by D., 61 N.J. 89 (1972), concerned the

adoption of a child by a step father, which was objected to by

the birth father. The Court specifically distinguished that case

from a typical adoption, stating that “[I]t is to be stressed that

what we have to say relates principally to a divorced parents

situation.” Id. at 92. The Court determined that the birth

father’s rights could only be terminated upon a finding that he

willfully and continuously neglected the child or failed to

perform the duties of care and support for the child. Id. at

94. The Court specifically emphasized “that the best interests

of the child cannot validly ground a judgment of adoption

without it first having been determined that the parental rights

of the non-consenting parent can and should be terminated.”

Id. at 95. See also In Re J.J.P., 175 N.J. Super. 420 (1980);

In_re Children by N.M., 96 N.J. Super. 415 (1967)

(stepparent adoption cases).

23

D. THERE IS NOT A CONFLICT

BETWEEN NEW JERSEY AND

OTHER STATES CONCERNING

THE STANDARD OF PROOF IN

NON STATE AGENCY WAIVER

CASES

The Petitioner alleges a conflict between New Jersey

Courts and three other states concerning the burden of proof

when a birth mother voluntarily waives her rights.

Interestingly enough, the Petitioner relies upon case law in

three other states which imposed a clear and convincing

standard when the basis for the termination was a voluntary

waiver. The Petitioner fails to state that in all three cases, the

birth parent had the burden of persuasion to prove that the

surrender was not voluntary. If this Court determined that the

clear and convincing standard applied according to those three

cases, the Petitioner would still be unable to meet her burden

since she was unable to meet a lower burden of proof, i.e., a

preponderance of the evidence.

Nevertheless, these cases are instructive to the finding

of duress in other jurisdictions and actually further support the

opinion of the Trial Court. In the case of William D.A., Sr.,

v. Shawna Renee A., 1999 N.L. 1188850 (W. Va.), the birth

mother alleged that she was subject to the duress of her

father-in-law when she signed a consent to adoption. The

court had a trial and determined that the birth mother

understood all of the words in the consent and that her

credibility was low. The Court found that more than “duress

of circumstance’’ was required to overturn a consent to

adoption. The Court also noted that “if we allowed difficulty

inherent in a natural parent’s circumstances to constitute

duress, it would be difficult to see how any adoption based on

consent could ever stand.” Id. at *4.

24

The Court also found that the birth mother had the

consent form for a period of time before signing it and had an

opportunity to obtain independent advice about it. These facts

are strikingly similar to those considered by the Trial Court

in this case. In a footnote, the Court stated that West

Virginia’s adoption law requires proof of duress to be

established by clear and convincing evidence by “the person

who executed the consent.” (emphasis added). The

concurring opinion noted the importance of the finality of

adoption. Thus, even if this Court found that case persuasive,

the higher burden of proof would be placed upon the

Petitioner.

In the case of Meza v. Rodriguez, 305 Ill. App.3d 777

(1999), a birth father attempted to set aside his surrender.

The Illinois statute in question is very similar to the New

Jersey statute. The Court held that it was the birth father’s

burden to prove by clear and convincing evidence that the

surrender was the result of duress. The birth father argued

that the Adoption Act was “unconstitutional because it

invaded the judiciary’s power to protect and preserve parental

rights.” The Act was held constitutional “because the

judiciary retained the authority to determine the validity of the

surrender.” Id. at 783. Most notably, the court stated that:

the Act does not deprive the natural parent of

an opportunity to have a court review the

voluntariness of the surrender. Indeed, this is

precisely what occurred in the instant case.

After Meza filed his complaint, he received a

full evidentiary hearing and a _ court

determination as to the voluntariness and

validity of his surrender.” Id. at 791.

25

Petitioner’s argument is similar to Mr. Meza’s and fails for

the same reasons.

The state of Hawaii also has an adoption statute very

similar to New Jersey. In the Matter of a Female Child, 938

P.2d 1184 (HI 1997), the Court specifically distinguished

termination cases from agency adoptions.

Moreover, withdrawal of a consent to adoption

differs from situations such as when the state

seeks to terminate the parent-child relationship

or when a non-parent seeks custody of a child.

In those situations, the appropriate inquiry is

directed at the natural parent’s fitness to

parent...In contrast, a natural parent attempting

to withdraw a consent to adoption had already

given up that right by voluntarily consenting to

the adoption in the first instance. Id. at 1186.

That Court also imposed the burden of proof upon the birth

mother and found that it was the mother’s valid consent which

severed her relationship with her child.

The above cases do not mention the Santosky case and

Petitioner’s attempt to surmise that the Courts were compelled

to employ the clear and convincing standard because of

Santosky is ridiculous. Accordingly, the cases from other

jurisdictions support the Trial Court’s decision to place the

burden of proof upon the birth mother.

26

CONCLUSION

Based upon the foregoing, the Court should deny the

Petition for Writ of Certiorari.

Samuel L. Peluso

Counsel of Record

Peluso, Staufenberg, Castelluci & Hanula

740 Broad Street

Shrewsbury, New Jersey 07702

(732) 345-8445

Attorney for Respondent, Family Options