In the absence of a biological parent’s consent to surrender parental rights, a court must terminate the parental rights of the biological parent before it can authorize the adoption of a child. In re the Adoption of Children by G.P.B., Jr., 161 N.J> 396, 404 (1999).- There are three statutory pathways through which parental rights may be terminated by court order: (1) Specifically N.J.S.A. 30:4C-15, by which an action for guardianship is decided in favor of the Division of Child Protection and Permanency; (2) Specifically N.J.S.A. 9:2-18, by which a state-approved adoption agency successfully pursues an action for termination; and (3) Specifically N.J.S.A. 9:3-46, by which a possible adoptive parent brings an adoption complaint.
Overview of N.J. adoption law and termination of parental rights
N.J.’s courts strongly recognize that the termination of a parent’s right to raise his or her child is a matter of constitutional magnitude.
Once an applicant proceeds to seek adoption over the objection of a parent, that parent has the right to counsel. In fact, one court stated that after the elimination of the death penalty, the court could think of no legal consequence of greater magnitude than the termination of parental rights”.
As one Court explained under N.J.S.A. 9:3-46, the rights of a parent cannot be terminated unless the court finds that the parent has “failed to perform the regular and expected parental functions of care and support of the child, [including] maintenance of an emotional relationship”. G.P.B., Jr., 161 N.J. at 405.
Since 1994, the Legislature has modified its approach from “favor[ing] the interests of the biological parent . . . to empasiz[ing] the needs of the child.” Under that modified approach, the concept of “affirmatively assum[ing] the duties encompassed by the role of being a parent” has taken on a broader and more elaborate meaning. Today’s approach is “to underscore the significance of the affirmative assumption of parental duties. . . and a decreasing legislative tolerance for biological parents who . . . do not assume the responsibilities of parenthood.”
In a contest between [a parent] objecting to the adoption and the prospective adoptive parent, the standard shall be the best interest of the child. The best interest of a child requires that a parent affirmatively assume the duties encompassed by the role of being a parent. In determining whether a parent has affirmatively assumed the duties of a parent, the court shall consider, but is not limited to consideration of, [1] the fulfillment of financial obligations for the birth and care of the child, [2] demonstration of continued interest in the child, [3] demonstration of a genuine effort to maintain communication with the child, and [4] demonstration of the establishment and maintenance of a place of importance in the child’s life.
Private Adoptions
A “private” adoption describes any scenario in which the child is placed into an adoptive home from a source other than a state-approved adoption agency. N.J.S.A. 9:3-39.1(a)(3) authorizes such private placements with a child’s relatives, including siblings, an aunt, uncle, grandparent, birth father, or stepparent.
With a private adoption, a child has been “placed for adoption” when the parent has transferred custody of the child to a third party for the purpose of adoption. N.J.S.A. 9:3-38(g)
When a biological parent has “placed” a child for adoption and later objects to an adoption complaint, the trial court is bound to enter a judgement over the parent’s objection if it finds a “fail[ure] to perform the regular and expected parental functions of care and support of the child: on the objecting parents part.
Navigating the maze of laws and termination of parental rights
The ‘best interests’ test continues to concentrate on whether the parent has harmed or is likely to continue to harm the child . . . harm to the child’s safety, health, or development, can lead to the termination of parental rights. The Legislature’s focus has shifted “from harm to the child to the discharge of parental functions.” The “question is not whether the child would be better off with the adoptive parent, but whether the biological parent has failed to fulfill his or her duties.”
As expressed in the text of N.J.S.A. 9:3-46(a), the “best interest of the child” requires that the biological parent “affirmatively assume the duties encompassed by the role of being a parent.
No time limit applies to assessing a parent’s behavior under the “best interest” standard.
N.J.S.A. 9:3-46(a) specifies four non-exhaustive criteria to aid the trial court’s determination of whether a parent has “affirmatively assume[d]” parental duties. These criteria are:
- the fulfillment of financial obligations for the birth and care of the child;
- demonstration of continued interest in the child;
- demonstration of a genuine effort to maintain communication with the child; and
- demonstration of the establishment and maintenance of a place of importance in the child’s life.
Though the trial court is free to “consider other factors in determining the child’s best interest”.
Take-Away
N.J. has three (3) distinct statutes that govern child adoption and termination of parental rights. Each section of statute apply to the different means and factual history by which a prospective adoptive parent can become a legally recognized parent. N.J. does not have just one and encompassing adoption law.
To discuss your NJ parental rights/adoption, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Parental Rights/ Adoption Attorney