NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-2907-17T3
IN THE MATTER OF THE ADOPTION
OF A CHILD BY R.C.W. and S.M.W.
Argued May 16, 2018 – Decided August 7, 2018
Before Judges Alvarez, Nugent and Currier.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FA-24-18.
Matheu D. Nunn argued the cause for appellants
R.C.W. and S.M.W. (Einhorn, Harris, Ascher,
Barbarito & Frost, PC, attorneys; Matheu D.
Nunn, of counsel and on the brief).
Michael B. Farhi argued the cause for
respondent G.R. (Kates, Nussman, Ellis Farhi
& Earle, LLP, attorneys; Michael B. Farhi and
Sandra M. Barsoum, on the brief).
This appeal involves the Adoption Act,
N.J.S.A. 9:3-37 to –
56. A birth mother brought this action seeking to set aside her
surrender of her newborn to an approved adoption agency and compel
the adopting parents to return her child. Few cases have so much
potential for calamity. The adopting parents could lose their
only child, the child they have nurtured since birth, and in
consequence suffer a lifetime of emotional pain and heartbreak.
The birth mother could see her decision to surrender her child
upheld, have her parental rights terminated, and in consequence
suffer a lifetime of regret and sorrow. The child could be
abruptly removed from the only parents and only home it has ever
known, placed in the hands of a virtual stranger, and in
consequence suffer permanent emotional damage.
In this case, following a hearing, and without considering
the child's best interests, the trial court nullified the birth
mother's surrender and ordered the adopting parents to return the
child. The court found the approved adoption agency's non-
compliance with administrative regulations concerning counseling
of birth mothers amounted to misrepresentation, a statutory
exception to the irrevocability of the birth mother's surrender.
We conclude as a matter of law the judge erred in so finding.
Hence we reverse.
The parties' legal proceedings began in August 2017, when the
out-of-state adopting parents, Stephen and Stephanie, filed a
complaint for adoption of Baby J, whose mother had surrendered the
child for adoption after its birth the previous month.
1 In October
2017, two months after Stephen and Stephanie filed the adoption
complaint, the birth mother, Mya, a New Jersey resident, filed a
verified complaint in the Chancery Division, Family Part, seeking
a declaration that her surrender of Baby J to A Loving Choice
Adoption Associates ("Loving Choice"), an adoption agency licensed
in New Jersey, was invalid. She also sought an order returning
custody of Baby J to her.
The trial court afforded the parties expedited discovery and
then conducted a plenary hearing in January 2018. Following the
hearing, the court delivered an oral opinion in which it concluded
Mya's surrender of Baby J was invalid. The court ordered that
Baby J — then seven months old — be transferred within fourteen
days from Stephen and Stephanie to Mya. Stephen and Stephanie
filed an application for a stay pending appeal. The trial court
denied the stay. We granted it and accelerated the adopting
During the hearing on Mya's action, the parties presented the
following evidence. Nineteen-year-old Mya was shocked, confused,
and scared when she learned in December 2016 she was pregnant.
We use pseudonyms for the family members, relatives, and friends
for purposes of confidentiality and ease of reference.
She was shocked and confused because after terminating two previous
pregnancies she "had an IUD put in." According to Mya, her
gynecologist told her "there was no chance of . . . getting
pregnant with it in." She was scared because even though she had
a full-time job, a part-time job, and attended college, she feared
she would lose her mother's support. Mya had lived with her mother
her entire life.
During the next several months, Mya went back and forth on
whether to keep the baby. She decided to surrender it for
adoption. Two events cemented her decision. The first occurred
when Mya and her mother were packing to return home from their
annual trip to South America. Mya had intended to disclose the
pregnancy to her mother during the flight back to the States. The
morning they packed to return home, Mya's mother said she dreamed
she kicked Mya out of the house after learning Mya was pregnant.
The dream scared Mya. She did not disclose her pregnancy.
The second event occurred two months later. In April 2017,
Mya, her mother, and her grandmother were evicted from the
apartment they rented in Union, during a foreclosure action against
the owner. No relative had room for the three of them, so Mya's
mother and grandmother moved in with Mya's aunt and Mya moved in
with her oldest sister, Mariah. Mariah was married with two
children. There, from April through October, before she and two
others bought their own home, Mya lived in her nephew's playroom.
She had little privacy. She wondered how she could bring a crib
into the playroom, and though Mya was managing her finances, her
mother was not there to help. Besides, her mother was having
financial problems. Mya also could not count on Baby J's father
for financial support. He "made it seem" like he had no interest
in helping her.
After moving in with her sister, Mya began to research
adoption agencies on the Internet. She submitted an online
questionnaire to Lifetime Adoption ("Lifetime"), an out-of-state
agency. Approximately two weeks after submitting the application,
she received a packet from Lifetime with more questions. Mya
testified at the hearing that when she completed the packet of
questions she was not committed to the adoption "a hundred
percent," but "was probably, like [eighty] percent, not even."
She then said it was more like fifty percent. Nonetheless, she
completed and returned the packet.
In response to questions in the packet, Mya said her family
did not know about her pregnancy, she did not plan to tell them,
and they would not support her in an adoption plan. Mya also said
her friends did not know about her pregnancy, she did not plan to
tell them, and they would not support her in an adoption plan.
One section of the packet included questions about her
adoption plan. In response to these questions, Mya wrote that the
adopting parents and her best friend were allowed in the delivery
room. She wrote she would like the adopting parents to spend time
with her while she was in the hospital. She did not want to see
or hold the baby, but wrote as a special request concerning seeing
and holding the baby, "if day I give birth & change my mind they
will allow me to." Mya also wanted the adopting parents to send
her letters and photos after the adoption, on special occasions,
but did not want them to email her often. She requested visits
"whenever parents tell child about me."
A question inquired about Mya's reason for placing the baby
for adoption. The question was, "What thinking went into your
decision to place this child for adoption?" Mya responded, "I
wouldn't be able to give the child a good life, I'm too young and
I need to finish school."
The questionnaire also inquired about counseling. One
inquiry read: "Lifetime offers free peer counseling and
confidential licensed counseling from independent providers.
Would you like us to schedule counseling at a time that is
convenient for you?" Mya checked the circle next to "No."
Mya signed the questionnaire on May 30, 2017. Shortly after
she returned it, she received a telephone call from a Lifetime
representative and they spoke for approximately fifteen minutes.
A couple days later, Mya received from Lifetime a package
containing a "portfolio of parents." A note attached to Stephen
and Stephanie's profile said they had been waiting longest. Mya
selected them. After speaking to the Lifetime representative
again, Mya got a phone number for Stephen and Stephanie and
Wishing to adopt a child, Stephen and Stephanie had contracted
with Lifetime in 2014. On June 12, 2017, a Lifetime representative
notified Stephanie that a birth mother would telephone them later
that evening to discuss a possible adoption. That evening, Mya
called and spoke with Stephen and Stephanie.
The three exchanged information about themselves, discussed
the birth father, and discussed Mya's support system. Mya
mentioned Stephen and Stephanie appeared to have good health
insurance and had adorable dogs. She told them nobody in her
family knew about her pregnancy, but she had told her new boyfriend
and a gym teacher, whom she considered a mentor. Mya told Stephen
and Stephanie the date of her next medical appointment and gave
Stephanie her cellular phone number.
According to Stephanie, she and Stephen asked Mya "if she
wanted to move forward with the match, because that was the point
of the phone call, . . . to decide if we would match with each
other. And she said that she had told Lifetime, and she would
tell us that she was 100 percent not changing her mind."
Consistent with the questionnaire she had completed, Mya also told
Stephen and Stephanie she did not want to hold or see the baby
when it was born.
During the five weeks between that first telephone
conversation and Baby J's birth, Mya and Stephanie exchanged
numerous emails. Mya expressed no reservation about the adoption.
To the contrary, her emails confirmed she wanted the adoption to
proceed without her family knowing about the baby. During the
week before Baby J was born, Mya and Stephanie discussed the amount
of contact Mya would like to have with Baby J after the adoption.
Far as contact I wouldn't want a lot of contact
with the baby idk if you guys are [going to]
tell him/her it was adopted when he/she is
older so I wouldn't want to get involved as
much I mean I would like to see it before you
guys head back . . . when it's born but other
th[a]n that I won't want regular contact with
it maybe just a picture on holidays and its
birthdays. I want to respect your feeling as
well as if you guys choose not [to] have it
know it was adopted until much older but can
always contact me if anything.
Less than a week before Baby J's birth, Mya also texted
Stephanie that she, Mya, didn't want to be a ghost to the baby,
so if the child ever asked to meet her and it was okay with them,
she would have no problem with such a meeting. Mya said Stephen
and Stephanie could put their names on the birth certificate.
Meanwhile, sometime after Mya, Stephanie, and Stephen spoke
on June 12, 2017, the Lifetime representative telephoned the
Administrative Director of Loving Choice (the "Director"). From
that point, Loving Choice provided adoption services to Stephen,
Stephanie, and Mya. The Director provided services to Stephen and
Stephanie. Loving Choice's Birth Parent Counselor (the
"Counselor") provided services to Mya. Keeping their roles
separate avoided any possible conflict of interest.
The Director, a co-founder of Loving Choice, completed all
required documents for the adoption of Baby J, including documents
required under the Interstate Compact on the Placement of Children
("ICPC"). During that process, the Director wrote to the agency
involved in Stephen and Stephanie's home state on the day after
Baby J was born. The Director informed her counterpart of the
birth and said, "[w]e are currently working toward birthmom
relinquishing her parental rights." She requested her counterpart
have the ICPC agreement signed. The next day, the Director wrote
a "To Whom it May Concern" letter stating Stephen and Stephanie
were "in legal custody" of Baby J, so they were entitled to have
the baby covered under their insurance. Each state approved Baby
J's placement with Stephen and Stephanie.
The Loving Choice Counselor, also a co-founder, had been with
the organization for fifteen years and provided counseling
services to birth mothers for thirteen of those years. In 2011,
the Congressional Coalition on Adoption Initiatives honored her
with its Angel of Adoption award. Her responsibilities as a Birth
Parent Counselor included meeting with pregnant clients
considering adoption and counseling them.
Birthparent counseling included "options" counseling.
Counseling also included anything troubling a client. The
Counselor would inquire about the birth father and what role, if
any, he would play in the adoption. She would discuss what would
take place in the hospital and file the birth mother's hospital
plan. She would oversee the birth mother's transfer of custody
of the newborn and offer post-placement counseling.
Loving Choice's Counselor intended to have at least three
counseling sessions with Mya. Three sessions was the standard,
and she customarily conducted more than three, but the timing and
number of sessions varied with each case. Obviously, if a client
came to the agency soon after learning she was pregnant, there
would be time for more pre-birth counseling sessions than if the
client first appeared toward the end of the pregnancy. Post-
placement counseling could be one session or fifty sessions over
The Counselor was unable to contact Mya when Loving Choice
first became involved, so she left several messages in Mya's
voicemail. Mya had taken a vacation to Aruba with her other
sister, Miriam. She returned on June 25, 2017, less than a month
before Baby J was born. She telephoned the Counselor the next day
and they agreed to meet the following Saturday, July 1. They met
then and on two other occasions. They gave conflicting testimony
about their first telephone conversation as well as what occurred
at their meetings.
During their initial telephone call, Mya and the Counselor
decided to meet at a Starbuck's near where Mya worked. Mya
testified: "And then she asked me if I would be able to meet with
her because of the fact that I had to get counseling for the
adoption. So I told her okay. And she asked me if we could meet
somewhere close to me, at like the Starbucks would be fine." They
arranged to meet at Starbucks on July 1, 2017.
The Counselor testified she asked if Mya wanted to come into
Loving Choice's office, or if there was somewhere closer to her
where Mya would be more comfortable. Mya commented about traffic
being heavy and asked if they could meet at a Starbucks near Mya.
The Counselor did not know where the Starbucks was. She googled
the location. She did not discuss the issue further with Mya,
because she was always willing to accommodate any birth mother as
to the location for meetings. She agreed to meet Mya at the
They met at Starbucks on July 1 in the morning. Mya said the
meeting lasted approximately thirty minutes. The Counselor said
it lasted one hour and fifteen minutes. According to Mya, there
was a radio on and blenders and espresso machines were operating.
People were coming and going, some were talking, others were video
chatting while they waited in line for their coffee, and a little
girl was "running around a little bit." Mya said the Counselor
wrote notes on a little black pad as they spoke.
They discussed Mya's personal interests. The Counselor asked
why Mya was considering adoption. Mya explained that she, her
mother, and grandmother had been evicted from their home. She
felt she was unable to raise a little baby on her own.
Mya said the Counselor related her own experience about
adopting. After the Counselor adopted a child, she sent the birth
mother photographs on a monthly basis, but the birth mother told
her to stop "because it was hurting her, affecting her life."
During the meeting, the Counselor gave Mya papers to sign for
the release of medical records. According to Mya, after exchanging
personal information, the Counselor relating her adoption
experience, and Mya signing papers, the meeting ended.
During Mya's trial testimony, in a series of single-word "no"
responses to her attorney's questions about this first meeting,
Mya said the Counselor did not mention any of the following: foster
care, WIC, the Division of Child Placement and Permanency, SNAP,
Workfirst New Jersey, Cares for Kids, New Jersey Family Leave
Insurance Program, Temporary Assistance for Needy Families, TANF,
housing assistance, Section 8, Universal Service Fund, the Housing
Choice Voucher Program, or the New Jersey Department of Labor and
Workforce Development Housing Assistance program.
Mya also testified the only discussion about adoption
alternatives concerned her friend and mentor. She said the
Counselor "mentioned something about if I did decide to keep [the
baby] to leave [the baby] with my friend, . . . but I told her
that [my friend] already had a kid, and I don't think she would
be able to do it, so then she just changed the subject." Mya said
that was the only alternative the Counselor discussed.
The Counselor recalled things differently. She testified she
had Mya confirm the information on the Lifetime questionnaire.
After Mya did so, the Counselor inquired about Mya's income and
that of her mother, since Mya said she lived with her mother. Mya
refused to identify the birth father.
The two then talked about "everything." Mya was proud she
was the first person in her family to go to college. They discussed
Mya's interests, which included fashion, makeup, and hair. They
discussed the two previous pregnancies that Mya had terminated "at
her mother's behest."
Mya said she could tell no one she was pregnant. Mya's
"mother had been adamant with all three of her daughters, that
they were not to be single parents as she had been." Mya was
afraid of her mother. In fact, when they discussed Mya's hospital
plan, Mya asked if she could deliver the baby anonymously. She
wanted to make sure no one could find out she was in the hospital.
To accomplish that, she wanted to be moved off the maternity ward
and into another part of the hospital.
During the meeting, they discussed different types of
adoptions, including traditional, semi-open, and open. They also
discussed post-placement contact.
The Loving Choice Counselor testified she talked to Mya about
alternatives to adoption. She said:
[W]e talked about her options[,] which . . .
were placing the baby in foster care,
parenting the baby, placing the baby with a
friend or relative. And she . . . dismissed
all of them out of hand. She said that she
could not place the baby - - well, I explained
to her what a - - I explained to her that
placing - - that as far as I knew, the only
type of foster care would be through DCP&P,
and they're our child protective services
The Counselor believed some level of abuse or neglect had to
be present in order for the Division of Child Protection and
Permanency ("DCPP") to become involved. She also told Mya most
parents did not consider placing a child with DCPP as an option,
"because once the baby went into the system, there you had no
choice as to who the baby went with. And you did not know if
. . . you would have to do whatever they told you in order to get
the baby back."
The two discussed an ongoing concern about Mya seeing a
specialist about a problem that could affect the baby's health.
The Counselor said she could have an escrow account set up to pay
any deductible. According to the Counselor, when the meeting
ended, Mya remained absolutely committed to adoption.
The day after the meeting at Starbucks, Stephanie texted Mya:
"Hey! Hope your meeting went well yesterday. I wanted you to know
we set up an account with Christine to help cover the cost of the
specialist! Hope it helps!" Mya responded in a text:
"Yes everything went well[.] [W]e discussed
if I wanted to be in the picture or not and I
believe we [are] meeting again next week to
discuss my hospital plans. But yes she called
me again yesterday to tell me about it and it
does[.] [T]hank you I'm really grateful."
At trial, Mya testified that following her first meeting with
the Counselor, she remained unsure about the adoption. She "kind
of wanted to go through with it, but at the same time . . . was
thinking maybe not." Mya had begun to feel the baby kick and
move, and she felt a connection with the child, but "wasn't really
certain." She thought based on what the Counselor had told her,
adoption would be the right thing to do.
Mya and the Counselor met a second time at 5:30 on the
afternoon of July 11, 2017. Mya said they met at Starbuck's at
the Counselor's suggestion and the meeting lasted approximately
thirty minutes. She testified the Starbucks was a bit more crowded
than before. When Mya and the Counselor spoke, a woman sitting
at a nearby table leaned over and tried to listen to them.
Mya recalled the Counselor handed her the birth plan, asked
her to fill it out, and said if she had any questions she should
ask. As she completed the form, Mya had questions about whether
the adopting parents would be observers and about the room where
she would deliver. The Counselor explained Mya would be admitted
to a non-maternity room because no one knew about the pregnancy,
so if someone came to the hospital, none of the information would
be available as to why she was there.
Mya took approximately ten minutes to complete the form. When
she finished, she and the Counselor discussed some issues
concerning her pregnancy and the fact she still was not "showing."
The Counselor told her some personal stories and Mya speculated
"she was just trying to make conversation with me." According to
Mya, they discussed nothing else at the July 11 meeting.
Asked by her attorney where she was in terms of the 50/50
balance or her thought process, Mya responded that she really
wasn't thinking about it in those terms. She was just going with
the flow. She was scared because she knew she would be going into
The Counselor testified they met at Starbucks on July 11 at
Mya's request. The meeting lasted approximately one hour. During
the meeting, the Counselor explained she had thoroughly reviewed
the information Mya had completed for Lifetime, including Mya's
identification of the birth father. The Counselor explained that
the birth father would either have to participate in the adoption
or be notified about the adoption. Mya said he was a loser, he
had not told his family, and she had not spoken with him in months.
The Counselor asked if she had reconsidered parenting and whether
the birth father would be able to provide child support. Mya
dismissed the suggestion out of hand.
According to the Counselor, they again discussed options to
adoption. The Counselor asked if Mya had given any more thought
to foster care. Mya's answer was no. The Counselor asked if Mya
had given any more thought to telling her mother or her sisters.
Mya again said no. The Counselor asked if, considering the baby
was Mya's mother's grandchild, her mother might soften up. Mya
again said no. Mya gave the Counselor details about her
relationship with her sister Miriam and her mother's feelings
about Miriam and about her. Mya got emotional when talking about
the relationships among her, her mother, and Miriam.
The Counselor again inquired if Mya had given any thought to
the birth father, a friend, or a family member parenting the baby.
Mya "was again, completely dismissive of every other option."
Rather, Mya appeared to be very excited about the identified
adoption plan and about meeting Stephen and Stephanie. The
Counselor and Mya reviewed the hospital plan. Mya wanted to make
sure the baby had the adoptive parents' last name, because she did
not want any documentation with her last name on the birth
Between the second meeting and the day Mya gave birth, the
Counselor texted Mya to see how she was doing and to set up another
session. Although the two scheduled another session, it did not
take place as scheduled, because Mya went into labor.
The day Baby J was born, Mya left work at noon. She gave
birth mid-afternoon. The only non-staff person present was Mya's
co-worker. When the baby was born, a nurse took the baby to
another location. Mya presumed it was the neo-natal intensive
care unit. Later, the nurse returned and asked if Mya wanted to
hold the baby. She did. Mya held the baby for approximately
fifteen minutes, but then the baby started to cry and the nurse
realized Mya did not know what to do. The nurse calmed the baby
and placed the baby in its bed, which was in Mya's room.
Between the delivery of the baby and 8:00 that evening, the
child's father, his sister, and a friend of Mya visited her.
Earlier that day, a friend of Mya texted Stephanie that Mya was
in labor. Stephanie arranged to fly to New Jersey and drive to
the hospital. When she arrived, the baby's father, his sister,
the sister's girlfriend, and Mya's co-worker were in the room.
They appeared to be enjoying themselves. Mya was holding the
baby. According to Stephanie, Mya "asked if I wanted to meet my
[child], and she handed [the baby] to me." Stephanie held the
baby from that moment until Mya was discharged that evening.
Immediately before her discharge, Mya held the baby one more time
then returned it to Stephanie.
Approximately one-half hour before Mya was discharged, Mya
handed Stephanie her wrist band. Stephanie thought Mya should
stay overnight. When she asked why Mya was leaving, Mya said she
had missed dinner with her mother, who was "blowing up" her cell
phone trying to locate her. Mya also wanted to sleep in her own
bed that night.
Between nine and ten o'clock that night, Stephanie and Mya
exchanged text messages. Mya wished Stephanie a good night with
the baby. Mya said: "I'm so happy for you guys!" Mya also thanked
Stephanie for some small gifts she and Stephen gave to her.
The next evening, Mya met the Loving Choice Counselor in the
hospital lobby to sign papers authorizing the baby's discharge to
Loving Choice. Mya signed a document entitled "TRANSFER OF
CUSTODY, CONSENT TO ADOPTION, AUTHORIZATION FOR MEDICAL CARE."
According to Mya, during the meeting, the Counselor did not discuss
options to adoption, government programs, or foster care. She did
not encourage Mya to speak with her mother. The meeting took only
approximately ten minutes. After accompanying Mya to the
hospital's information desk to find out where Mya had to go to
sign papers concerning the birth certificate, the Counselor left.
Like the first two meetings, the Loving Choice Counselor
recalled things differently. She had spoken with Mya the previous
day after the baby's birth. She told Mya she did not think it was
a good idea for Mya to be discharged from the hospital four to six
hours after the delivery. Mya said she didn't want to raise any
suspicions at home, she wanted to sleep in her own bed, and she
had to go to work first thing in the morning.
The next day, when the two met in the hospital lobby, the
Counselor reviewed the custody forms with Mya. According to the
Counselor, she once again talked to Mya about options. The
Counselor said to Mya, "now that [the baby's] here, and . . .
exists, and you've held [the baby], and spent time with [the baby],
and [the birth father] has held [baby] and spent time with [the
baby], have you given any more thought of telling your mother?"
Mya said "no."
The Counselor explained that upon the baby's discharge, legal
custody of the baby would be transferred to Loving Choice, which
would in turn transfer physical custody to Stephen and Stephanie.
The Counselor specifically informed Mya the transfers would not
be a termination of her parental rights. Mya had no questions
about the documents she signed or the transfer process. She was
in a hurry to "get upstairs to do what she needed to do, and she
had dinner plans with her mother that she said she could not
cancel." The Counselor asked if Mya intended to go up and see the
baby and Stephen and Stephanie. Mya said she did not. The
meeting, which had lasted approximately forty minutes, then ended.
The Loving Choice Counselor took handwritten notes of each
meeting with Mya and placed them in Mya's file, a practice she had
followed, without exception, with every birth mother she had
counseled. In this case, however, she shredded the notes before
testifying at the hearing. She claimed her notes were illegible,
so she typed them and maintained the typewritten version in Mya's
file. She acknowledged during her testimony this was the only
time she had ever shredded her handwritten notes.
Mya next spoke to the Counselor on July 25. The Counselor
texted her in the morning, approximately 8:30 or 9:00, and said
she would find an attorney near Mya's home so that Mya and the
attorney could discuss the surrender papers. Later that afternoon,
at approximately two o'clock, the Counselor texted Mya and asked
if Mya would drive to the Loving Choice office because the only
attorney available that day was not from Mya's area.
Mya agreed and arrived at Loving Choice at approximately six
o'clock that evening. She met the Counselor, who gave her an
"Affidavit of Birthmother Regarding Birthfather," which Mya read
to herself. The Counselor also presented her with a copy of an
"Affidavit in Support of Surrender of Custody and Consent for
Adoption." The Counselor discussed some of this document with
Mya, but they were interrupted when the attorney arrived. Mya met
privately with the attorney, who Loving Choice had contacted many
times in the past to counsel birth mothers. Loving Choice paid
the attorney's fee.
According to Mya, her meeting with the attorney lasted
approximately twenty to twenty-five minutes. The attorney
explained she was there to make sure Mya understood what a
"surrender" meant and to make sure she was given the correct
information about the documents she would sign. No one explained
to Mya the relationship between the attorney and the agency. No
one informed Mya that she could hire her own attorney.
Mya said the attorney told her that if she had any expenses
throughout her pregnancy, such as maternity clothes, the attorney
could have the agency billed. The attorney handed Mya a paper to
sign, and Mya signed it. Next, the attorney reviewed the surrender
document Mya had started to review with the Counselor when they
Mya's attorney testified she became involved with Mya after
Loving Choice's Director requested she come to the agency and
counsel Mya. The attorney met with Mya once, on July 25, 2017,
at Loving Choice. Mya did not sign a retainer agreement. The
attorney said Loving Choice had retained her to represent Mya.
The agency paid the fee, and the attorney understood it came from
the fee the agency charged the adopting parents.
When the attorney met with Mya at Loving Choice, she confirmed
Mya had reviewed some documents with the Loving Choice Counselor.
Mya did not want to review the documents again. The attorney
explained that a birth parent could not sign any documents until
at least seventy-two hours had passed since the baby's birth. In
Mya's case, this requirement had now been met. Next, the attorney
explained that once Mya signed the surrender, her signature would
be irrevocable, that is, the surrender of the baby is permanent
"so that if they call the next day to say they changed their mind,
it would be too late."
The attorney also explained the procedure by which the
adopting parents' names would be placed on the birth certificate;
that any agreements with the adopting parents for ongoing contact
with the child are unenforceable in New Jersey after the adoption;
how agencies investigate adopting parents; and the concepts of
physical and legal custody. The attorney explained the concepts
of coercion and duress. She explained to Mya no one could force
her to sign the documents. She asked Mya if anyone was forcing
her to do so.
Last, the attorney asked Mya, "[a]re you ready, then, to go
downstairs at this time and sign the papers?" Mya was ready.
Mya and the attorney went to a room and sat with the Loving
Choice Counselor and Director. They sat at a table and circulated
documents that Mya signed.
Mya testified that as she was signing the documents, she felt
she "was kind of being rushed, and like hovered on." The other
three adults were telling her where to sign, and to pass each
signed document along. No one read anything to her. The other
three denied anyone rushed Mya.
Mya saw the baby twice after it was discharged from the
hospital, both times in Stephen and Stephanie's hotel room. After
the second visit, Stephen, Stephanie and the baby returned to
their home state.
Between the end of July when Stephen and Stephanie returned
to their home state with the baby, and September 1, Stephanie and
Mya exchanged text messages about the baby. Mya expressed no
regrets about the adoption. Rather, she commented that Stephen
and Stephanie and the baby made a beautiful family. That changed.
Mya testified that during the third week in August she went
to Mariah's home after taking Mariah's daughter to Starbucks. Her
mother was at Mariah's house with Mariah's son. Mya began to cry.
Her mother and sister asked what was wrong, and Mya told them
about the baby and the adoption. A couple days later, Miriam was
visiting with Mariah when she saw a medical bill for services to
Mya. She asked Mariah about the bill and Mariah told her about
On September 1, at nine o'clock in the morning, Mya texted
Stephanie and asked how the baby was doing. Stephanie responded.
That afternoon, Mya's sister, Miriam, texted Stephanie. In her
text to Stephanie, Miriam informed Stephanie that Mya wanted the
baby back. Stephanie replied to Miriam. Later that day, Stephanie
received the following email from Mya:
I am so sorry [Stephanie] I really am but it's
really killing me not having [the baby] in my
life. I really thought it would be fine and
I would be able to go through with it but I
can't[.] I miss [the baby] so much everyday
and cry for [the baby] every night. I hate
to do this to you and [Stephen] but I want
[the baby] back and I am willing to repay you
guys everything you spent . . . and more[.] I
just really want [the baby] back.
The same day, September 1, Mya also wrote a letter to Loving
Choice. She said she wished to revoke the adoption. She explained
I was under the impression that I would have
no family support and I did not think I would
be able to do it alone. Since the day [the
baby] was born, I felt a complete emptiness
inside. I know that I did the biggest mistake
in my life giving [the baby] up for adoption
& and I regret it so much. The guilt was
eating me alive that I ended up telling my
family what I did. It was not the easiest
discussion but I realized then that I did have
the support of my family.
Mya also explained her regret about her decision: "I realize
that once I signed those papers there was no turning back and it
was irrevocable, but I wish to get [the baby] back. I was not a
hundred percent sure about adoption. I just felt like it was the
right thing to do at the time."
After repeating her regret about the "choice I made," Mya
said she did not need the counseling that had been offered to her,
but rather needed the baby back in her life. She apologized for
putting everyone through the "whole adoption process" but insisted
that the baby be returned.
Mya testified at trial she would not have surrendered the
child for adoption and would have discussed the pregnancy with her
mother, had the Loving Choice Counselor informed her about the
availability of services, counseled her about foster care, and
encouraged her to tell her mother about the pregnancy.
Stephen and Mya's sister, Mariah, also testified at the
hearing. Their testimony added nothing to the testimony of the
The trial court determined Mya had demonstrated the voluntary
surrender should be set aside. In its February 21, 2018 oral
opinion, the court concluded Loving Choice had failed to satisfy
its regulatory obligations concerning counseling of Mya, and the
failure constituted misrepresentation, a statutory ground for
setting aside a surrender. The court also found Loving Choice did
not substantially comply with the statutory requirement that it
offer counseling prior to execution of the surrender.
The court based its decision mostly on its resolution of
Mya's and the Loving Choice Counselor's conflicting testimony
about what they discussed during their two pre-birth meetings and
one post-birth meeting. The court found Mya credible and the
Counselor not worthy of belief, primarily because the Counselor
shredded the handwritten notes she made during each of her meetings
with Mya. Although the Counselor testified the typewritten notes
were verbatim reproductions of her handwritten notes, the court
rejected that testimony. In view of the non-existence of the
Counselor's handwritten notes, the trial court found "[e]ither
there are no notes or those notes are fake." The court emphasized,
"that really had a substantial impact on credibility."
The court also cited the Loving Choice Administrator's
letters to her out-of-state counterpart and "To Whom it May
Concern." The court considered the letters as evidence "it [was]
already a foregone conclusion there's been a third counseling
session and surrenders are being prepared."
The court reviewed regulations adopted by the Department of
Children and Families. The regulations are included in a handbook
approved agencies are required to follow. The court found Loving
Choice complied with its statutory requirement to inform Mya her
surrender was "a surrender of parental rights . . . and means the
permanent end of the relationship and all contact between the
parent and child."
N.J.S.A. 9:3-41. The court also found Loving
Choice informed Mya the surrender would constitute a
relinquishment of her parental rights in Baby J.
In contrast, the court found Loving Choice did not comply
with certain regulations. Most important, the court found these
instances of non-compliance. First, Loving Choice did not provide
Mya with three face-to-face counseling sessions conducted in a
private and professional setting; Starbucks is not a private and
Next, the court found Loving Choice did not explore with Mya
alternatives to adoption, including temporary foster care,
daycare, and care by relatives. The court determined the limited
discussion about Mya's friend possibly providing daycare was
In addition, the court found the only information the
Counselor discussed with Mya about foster care was that Mya "was
not a candidate for two reasons": DCPP usually acted only in
instances of abuse or neglect; and, parents give up control over
the child and the person with whom the child will be placed. The
court found this information to be inaccurate and misleading.
Last, the court found Loving Choice did not inform Mya about
possible assistance. The court noted Mya was left "uninformed
about the opportunities that she might have to receive certain
public assistance programs for which she may have qualified." The
court found that without exploration of her options, Mya "was
presented with false facts related to her options."
Concluding the regulatory violations constituted
misrepresentation, a statutory ground for voiding a surrender, the
court nullified Mya's surrender and ordered Baby J be returned to
On appeal, the adopting parents contend the trial court's
decision is internally inconsistent and its credibility findings
are contrary to the overwhelming weight of the evidence, much of
which the court overlooked when it rendered its decision. They
also contend the court relied heavily on the Loving Choice
Counselor's failure to inform Mya about various public assistance
programs, even though there is no "public assistance" requirement
in regulations concerning adoption agencies. The adopting parents
assert the regulatory violations cited by the trial court do not
constitute a statutory misrepresentation sufficient to nullify
Mya's otherwise knowing and voluntary surrender. Last, the
adopting parents argue Mya did not prove she qualified for any
assistance programs or foster care.
Mya responds the trial court's factual determinations are
amply supported by sufficient credible evidence on the record as
a whole. She asserts the court correctly determined the Loving
Choice Counselor's erroneous advice and omissions concerning
topics addressed in administrative regulations constitute a
misrepresentation, which is a statutory ground to nullify a
surrender. Responding to the argument she did not prove she
qualified for any social programs or foster care, Mya contends the
adopting parents in the first instance were required to produce
evidence she did not qualify for such programs.
It is important for the parties to understand the limitations
on appellate review of a trial court's decision. An appellate
court reviews a Family Part judge's findings of fact and legal
conclusions under different criteria. Generally, the judge's
findings of fact are binding on appeal if "supported by adequate,
substantial, credible evidence." Thieme v. Aucoin-Thieme,
227 N.J. 269, 283 (2016) (quoting Cesare v. Cesare,
154 N.J. 394, 411-
12 (1998)). "Deference is especially appropriate 'when the
evidence is largely testimonial and involves questions of
154 N.J. at 412 (quoting In re Return of
Weapons to J.W.D.,
149 N.J. 108, 117 (1997)). That is so because
the trial judge who "hears the case, sees and observes the
witnesses, [and] hears them testify, . . . has a better perspective
than a reviewing court in evaluating the veracity of witnesses."
Ibid. (first alteration in original) (quoting Pascale v. Pascale,
113 N.J. 20, 33 (1988)). For these reasons, appellate courts
will not reverse a Family Part judge's findings of fact unless
they are "so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend
the interests of justice." Ibid. (quoting Rova Farms Resort, Inc.
v. Investors Ins. Co. of Am.,
65 N.J. 474, 484 (1974)).
In contrast, a trial judge "is in no better position than we
are when interpreting a statute or divining the meaning of the
law." D.W. V. R.W.,
212 N.J. 232, 245 (2012). Hence we review
questions of law anew. Gere v. Louis,
209 N.J. 486, 499 (2012).
A Family Part judge's legal conclusions are entitled to no special
deference. In re Forfeiture of Pers. Weapons and Firearms
Identification Card belonging to F.M.,
225 N.J. 487, 506 (2016)
209 N.J. at 499).
The Adoption Act establishes the process for adopting
children in New Jersey. In its first section,
the Legislature has declared "[t]he act shall be liberally
construed to the end that the best interests of children . . . be
of paramount concern." This section also requires that "[d]ue
regard . . . be given to the rights of all persons affected by an
Importantly, "[a] completed adoption establishes 'the same
relationship[ ] . . . between the child and the adopting parent
as if the child were born to the adopting parent.'" In re Adoption
226 N.J. 90, 100 (2016) (second alteration in original)
N.J.S.A. 9:3-50(b)). As part of this process, the birth
parents' rights must be terminated. Ibid. (citing
50(c)(1)). That can occur voluntarily: "A parent may . . .
surrender a child to a state-approved agency for adoption." Ibid.
The Adoption Act defines the term "surrender" as "a voluntary
relinquishment of all parental rights by a birth parent . . . for
purposes of allowing a child to be adopted."
A surrender must be in writing and properly acknowledged.
9:3-41(a). Before a birth parent signs a surrender, the approved
agency must "inform the [parent] the instrument is a surrender of
parental rights . . . and means the permanent end of the
relationship and all contact between the parent and child"; "advise
the parent that the surrender shall constitute relinquishment of
the person’s parental rights in or guardianship or custody of the
child named therein and consent by the person to adoption of the
child"; and "offer counseling to the parent." Ibid.
With two exceptions, parental surrenders are irrevocable:
The surrender shall be valid and binding
without regard to the age of the person
executing the surrender and shall be
irrevocable except at the discretion of the
approved agency taking such surrender or upon
order or judgment of a court of competent
jurisdiction setting aside such surrender upon
proof of fraud, duress or misrepresentation
by the approved agency.
Although the terms "fraud, duress, and misrepresentation" are
not defined in the Adoption Act, they are well-defined in the law.
"Legal fraud or misrepresentation consists of a material
representation of a presently existing or past fact, made with
knowledge of its falsity, with the intention that the other party
rely thereon, and he does so rely to his damage." Foont-
Freedenfeld Corp. v. Electro Protective Corp.,
126 N.J. Super.
254, 257 (1973) (citing Louis Schlesinger Co. v. Wilson,
576, 585-86 (1956)). "In equitable fraud, the second element
(knowledge) is not necessary, but the other four are essential."
Ibid. (citing Dover Shopping Ctr. Inc. v. Cushman's Sons, Inc.,
63 N.J. Super. 384, 391 (App. Div. 1960)). A plaintiff seeking
equitable relief such as rescission may rely upon equitable fraud.
Ibid. (citing Gherardi v. Trenton Bd. of Educ.,
53 N.J. Super.
349, 366 (App. Div. 1958)). A misrepresentation must be material
and reliance on a misrepresentation must be reasonable. Gennari
v. Weichert Co. Realtors,
148 N.J. 582, 610 (1997).
Duress consists of moral compulsion, psychological pressure,
or unlawful threats that "overcome the will of the person
threatened, and induce him to do an act which he would not
otherwise have done, and which he was not bound to do." Rubenstein
20 N.J. 359, 366-67 (1956). "The age, sex,
capacity, relation of the parties and all the attendant
circumstances must be considered." Ibid.
A parent attempting to rescind the surrender of a child to
an approved agency for purposes of adoption must prove one of the
statutory grounds by a preponderance of the credible evidence.
Sorentino v. Family & Children's Soc. of Elizabeth,
72 N.J. 127,
133 (1976). Consistent with the Legislative directive that the
Adoption Act be liberally construed to promote the best interests
of children, when "confronted with the potentiality of serious
psychological injury to the child," a court must consider such
potentiality at the hearing concerning rescission of a voluntary
surrender. Id. at 131-32. Parents
who seek to change the status quo and to
dislodge the child from the only real home
[the child] has known, will have the burden
of proving by a preponderance of the credible
evidence that the potentiality for serious
psychological harm accompanying or resulting
from such a move will not become a reality.
[Id. at 133.]
The trial court may, in its discretion, "call an impartial expert
witness to testify at the hearing." Ibid.
The current Adoption Act, when enacted in 1977, directed the
Commissioner of Children and Families to "promulgate rules and
regulations relating to the qualification of agencies for approval
to make placements for adoption in New Jersey."
The statute provides:
The rules and regulations shall include, but
shall not be limited to, standard of
professional training and experience of staff,
requirements relating to responsibilities and
the character of trustees, officers or other
persons supervising or conducting the
placement for adoption program, adequacy of
facilities, maintenance and confidentiality
of casework records and furnishing of reports.
The implementing regulations are found in the New Jersey
Administrative Code, Title 3A, Chapter 50. Chapter 50 is entitled
"Manual of Requirements for Adoption Agencies" ("Chapter 50").
The purpose of Chapter 50
is to prevent the exploitation and to protect
the health and well-being of children being
served by adoption agencies, as well as to
protect the legal rights of children and birth
and adoptive parents by establishing standards
of agency organization and administration,
professional training, experience, practices
and requirements relating to the
responsibility of agencies providing adoption
services in New Jersey.
constitutes minimum baseline requirements to
ensure that the basic programmatic and
administrative needs of adoption agencies and
the social service needs of the families and
children they serve are met. Compliance with
this chapter is necessary if an adoption
agency is to open or operate, and no adoption
agency is permitted to operate below the level
of requirements specified in this chapter.
This chapter is in no way intended to prohibit
or prevent adoption agencies from going the
minimum requirements contained in these rules.
The decision whether to exceed these
requirements rest with the agencies.
Chapter 50 "constitutes comprehensive rules governing the
certification of adoption agencies pursuant to
N.J.S.A. 9:3-7 et
seq." N.J.A.C. 3A:50-1.2
Chapter 50 requires an approved agency to "provide the birth
parents and adoptive applicants with a written statement or
pamphlet indicating certain parental and agency rights and
responsibilities." N.J.A.C. 3A:50-3.4(a). The rights and
responsibilities are set forth in N.J.A.C. 3A:50-3.4(b). An
approved adoption agency is required to "maintain on file and make
available to its clients information on known resources in the
community which may be of use to adoptive parents, birth parents,
children and adult adoptees." N.J.A.C. 3A:50-5.2(a).
Concerning birth parents, "[t]he agency shall document in the
case record all contacts with the birth parents, birth family
members, or their legal representative that directly pertain to
the adoption. All entries shall be signed by the individual and
include the date of entry." N.J.A.C. 3A:50-5.4(a). Before taking
a surrender, the agency is required to document that birth parents
1. Provided at least three face-to-face
counseling sessions conducted in a private and
professional setting as specified in N.J.A.C.
3A:50-3.7(a), or at the birth parents' home,
by qualified social work staff on separate
days and that the birth parents were:
i. Offered counseling that fully:
(1) Explores alternatives to
(2) Addresses any presented
(3) Includes referrals to
mental health agencies when
such emotional problems
interfere with the birth
regarding adoption; and
(4) Explores alternative
plans for the child,
including, but not limited to,
temporary foster care, day
care and care by relatives;
ii. Informed that only legal parents or
legal guardians have the right to custody
and control of their child and to
surrender their child for adoption;
iii. Prepared, along with the child, for
surrender and separation;
iv. Referred to other community
resources when the agency cannot provide
v. Informed that the agency may contact
them in the future if the adult adoptee
or adoptive family or emancipated minor
requests information or wishes to meet
the birth parents;
vi. Advised that they may sign a written
agreement at any time indicating their
willingness to be contacted and/or to
provide information if requested by the
adoptee or adoptive family;
vii. Asked to update and submit to the
agency their address(es) and/or any
significant medical information required
on the Medical Information Form, so that
the medical information could be shared
with the adoptive family and/or the adult
viii. Requested to provide an itemized
statement for all adoption-related
costs, if any, paid by the prospective
adoptive parents prior to agency
involvement in the adoption or an
affidavit that no money was expended;
2. Requested to sign a statement that
i. The agency explained the
information in (c)1 above to them;
ii. They refuse to participate in
the counseling sessions; and
3. Asked to sign a statement that
indicates the agency explained the
N.J.S.A. 26:8-40.33 and
i. Allow each adoptee and other
approved individuals access to
original birth certificates;
ii. Allow each birth parent to
submit a document of contact
preference to the State Registrar;
iii. Require each birth parent who
submits a document of contact
preference to submit a family
history form; and
4. Advised how to obtain additional
information from the Department of
The case before us turns on whether the trial court's
rejection of the Counselor's testimony, and the court's consequent
finding that Loving Choice did not comply with N.J.A.C. 3A:50-
5.4(c)(i) and (iv), constituted a misrepresentation sufficient to
nullify the surrender.
The Adoption Act begins with the mandate it "be liberally
construed to the end that the best interests of children be
promoted and that the safety of children be of paramount concern."
3 N.J.S.A. 9:3-37. We thus begin with the best interests of Baby
J. The trial court did not consider them.
In Sorrentino v. Family & Children's Soc. of Elizabeth,
72 N.J. 127, 132-33, (1976), a case involving a parental surrender
and the birth mother's action to nullify it, the Court directed
the trial court to conduct a hearing as to the child's best
interests. The Court emphasized, "[t]he possibility of serious
psychological harm to the child in the case transcends all other
considerations." Id. at 132. In the case before us, the court
and counsel apparently concluded the potential for serious
psychological harm to Baby J did not exist. They did so without
relying on expert testimony. Rather, they relied on the Supreme
Court's pronouncement in Sees v. Baber,
74 N.J. 201 (1977).
In Sees, following a hearing, the trial court issued an
opinion and order for judgment when the child whom the mother had
given up for adoption was still less than two months old. Id. at
204-05. The child was a year old when the Supreme Court reversed
the trial court's decision in favor of the adoptive parents. Id.
at 201, 204, 226. The Court in Sees noted the child in Sorrentino
was almost three years old. Sees,
74 N.J. at 221. Referring to
the three-year-old in Sorrentino, the Court in Sees said:
It comports with common, human experience that
a child of that age over such a long period
of time would have developed a strong and fast
relationship with the adoptive parents and
that there could be serious, perhaps
irreparable, harm to the youngster's psyche
if that relationship were abruptly and
74 N.J. at 222.]
Continuing, the Court found:
The insuperable difficulty, however, is that
the nature and duration of such psychological
damage are imponderable, at least where an
infant is involved. There is simply no firm
basis to conclude that an inquiry focusing
upon the existence of "psychological
parenthood," in a case such as this, with an
infant just one year old, would be at all
helpful or productive in deciding whether that
child could not now be raised adequately and
decently by his own mother without ruinous
To support this conclusion, the Court cited legal literature,
the most recent a 1976 publication. In a dissenting opinion,
Justice Clifford cited "literature on this subject" that expressed
"serious doubts about the advisability of effecting a transfer of
custody after a child has achieved an age of [four] to [six]
months." Id. at 229 (Clifford, J., dissenting).
Since Sees was decided in 1977, social science on the issue
has progressed and suggests attachment to caretakers forms as
early as seven months. See Charles H. Zeanah, Lisa J. Berlin, and
Neal W. Boris, Practitioner Review: Clinical Applications of
Attachment Theory and Research for Infants and Young Children, 52
J. Child Psychol. & Psychiatry 819, TB 1 (2011) (showing attachment
begins between seven and nine months, with emergence of selective
attachment and separation protest behaviors); Frank J. Dyer,
Individual Case Studies with Outcomes: Termination of Parental
Rights in Light of Attachment Theory: The Case of Kaylee, 10
Psycho. Pub. Pol'y & L. 5, 7-8 (2004). And:
In terms of the questions posed to experts in
termination cases, it should be noted that
there are studies linking disturbed or
disrupted attachment to personality disorders
(West & Keller, 1994); poor functioning in the
parental role as an adult (Quintin & Rutter,
1985); alcoholism (Jones & Moses, 1984);
criminality (Bowlby, 1944; Fonagy et al.,
1997); and sexual offending (Awad, Saunders,
& Levene, 1984).
[Dyer, Individual Case Studies with Outcomes
We also note the Supreme Court's recent landmark decision,
Bisbing v. Bisbing,
230 N.J. 309 (2017), concerning applications
by parents of primary residence to relocate with their children
to another state. There, based in part on developments in social
science literature, the Court departed from the previous
requirement that a parent of primary residence prove such
relocation would not be inimical to the child's interests and
announced that henceforth the test would be whether relocation
would be in a child's best interests. Id. at 312-13.
In the case before us, Baby J was seven months old before the
court announced its decision. Based upon literature linking severe
and permanent psychological damage to disrupted attachment
occurring when an infant is as young as seven months old, we
question whether the court was obligated to address the issue in
order to discharge "its responsibility, as parens patriae of all
minor children, to preserve them from harm." Sorentino,
The better course would have been to either clarify at the
action's outset the party seeking "to change the status quo and
to dislodge the child from the only real home [it had] known
. . . had the burden of proving by a preponderance of the credible
evidence that the potentiality for serious psychological harm
. . . resulting from such a move will not become reality"; or in
its discretion have an impartial expert witness testify on the
issue. Id. at 133. We need not decide whether a remand is
necessary, however, because we conclude as a matter of law Mya did
not carry her burden of proving fraud, duress or misrepresentation
by Loving Choice.
Preliminarily, we reject the adopting parents' argument the
judgment should be reversed because the trial court's factual
findings and credibility determinations were against the weight
of the evidence. The argument is certainly not frivolous. Mya's
testimony at the hearing was inconsistent with virtually all
documentary evidence generated between the date she discovered her
pregnancy and the date she signed the surrender. Mya's testimony
was also inconsistent with the testimony of virtually every other
witness who testified, perhaps with the exception of her sister,
Mariah, who knew nothing about the critical events because Mya did
not tell Mariah she was pregnant.
As we previously explained, however, an appellate court's
function is not to second-guess a trial court's decision or
substitute its judgment for that of the trial court. Here, the
documentary evidence notwithstanding, the Loving Choice Counselor
destroyed her contemporaneous notes of the sessions with Mya. The
Counselor offered no rational explanation for her action. The
Counselor's conduct provided one of several reasonable bases for
rejecting her testimony, testimony that would have established
compliance with Chapter 50.
We nevertheless disagree with the trial court's
determinations that Loving Choice's non-compliance with their
regulatory obligations constituted a misrepresentation sufficient
to permit Mya to rescind her surrender. The trial court was
careful to point out it did not consider technical regulatory
violations misrepresentations. However, under the facts of this
case, the court considered Loving Choice's failure to discuss the
possibility of help from social agencies and accurate information
concerning the availability of foster care as material
We agree that not all violations of the regulatory scheme for
the licensing of adoption agencies constitute a misrepresentation
sufficient to void an otherwise valid surrender. For example, in
this case the Loving Choice counselor met with Mya twice at
Starbucks and once in a hospital lobby. Indisputably, those
locations are not the type of quiet place contemplated by Chapter
50. Nonetheless, non-compliance with that regulatory requirement
could hardly be considered a misrepresentation. Besides, there
could be circumstances – for example a client's lack of
transportation or demands on her time – that would not permit a
commute to Loving Choice's office. If an expectant mother is
unable to travel or unable to attend a location contemplated by
the regulations, it would hardly be in the best interest of the
mother, the adopting parents, or the child to not offer counseling
for that reason.
On the other hand, other regulations may directly implicate
a birth mother's knowing choice to surrender her child to an
approved agency. For example, if a hypothetical expectant mother's
decision to surrender a child is initially based on her inability
to provide shelter and insurance for the expected newborn, and
social programs are available to provide those necessities, non-
compliance with the applicable regulations would be tantamount to
equitable misrepresentation. The difficulty in this case is Mya's
failure to prove key elements of misrepresentation: that a
statement was false, material, and reasonably relied upon.
Mya's direct examination illustrates the point. Through a
series of questions posed to elicit negative responses and Mya's
monosyllabic answers, she established the counselor failed to
inform her of the existence of more than ten social agencies. The
judge found that to be material. But we fail to discern how such
misrepresentations could be material if Mya did not qualify for
assistance from any of those agencies. A knowledgeable counselor
cannot be expected to provide a birth mother considering adoption
with misinformation about the availability of programs.
Mya insists that she would not know if she were eligible for
social programs until she applied. In terms of a
misrepresentation, however, the focus is narrower. The question
is whether the counselor misinformed her. In order to prove that
element of misrepresentation, Mya was obligated to show she
qualified for the programs.
Mya's burden of proving that she qualified for any program
or that foster care was available for her, under her circumstances,
would not be particularly difficult to carry. Generally, proofs
may be developed through testimony, tangible evidence, or judicial
notice. Mya does not contend that a social agency or regulated
foster care agency does not have eligibility criteria. A birth
mother seeking to rescind an otherwise valid surrender of her
parental rights to an approved agency could present the eligibility
criteria through the testimony of a knowledgeable person, through
introduction of the statutory or regulatory source material, or
by asking the court to take judicial notice of such criteria.
Mya's qualification for many of the programs her attorney
questioned her about was dubious. She had a job, she had
insurance, and it came out during the trial that not long after
her surrender she purchased a home with two other adults. Mya did
not establish her eligibility for any of the programs about which
her attorney questioned her.
Our analysis is the same for her claim that the counselor
misinformed her about the availability of foster care. We are
unable to discern from the hearing record either that Mya requested
the court judicially notice the statutory or regulatory criteria
an expectant mother must meet to qualify for such assistance or
that the court analyzed such criteria and concluded Mya satisfied
That is not to say that the wholesale disregard of the
regulatory requirements for a valid surrender of a child to an
approved agency for adoption will not constitute fraud or
misrepresentation sufficient to nullify a surrender. Importantly,
however, in the case before us, the trial court found that Mya was
informed and understood that her surrender was a permanent,
irrevocable, relinquishing of her parental rights. That finding
is fully supported by the record.
Moreover, the record indisputably establishes that Loving
Choice offered Mya counselling. Mya admitted the counselor
discussed the possibility of daycare with Mya's friend and mentor.
And we find no authority to suggest a counselor must repeatedly
suggest a birth mother disclose her pregnancy to family members
when the birth mother has insisted from the outset on not doing
so. For the foregoing reasons, we conclude as a matter of law Mya
failed to establish by a preponderance of the evidence that Loving
Choice committed equitable fraud or misrepresentation that
materially affected her knowing and voluntary surrender of Baby J
to Loving Choice. Accordingly, we reverse the trial court's order.