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Adoption – How Much Must An Agency Do Wrong For Mom to Get Her Baby Back?


Court cases that deal with adoption can be some of the most emotionally difficult to try and hear. Emotions run high. Rulings can change the entire trajectory of a child’s family life. At stake are the child’s wellbeing and who the child will call his family for the foreseeable future. State legislators recognize the sensitive and critical nature of adoption, and often create specific procedures for legal adoptions. New Jersey’s Adoption Act (the “Act”), N.J.S.A. 9:3-37 to -56, is a law that does just that. Judges look to the Act to determine if it’s its regulations have been followed precisely. 

In a recent case of mine, In the Matter of the Adoption of a Child by R.C.W. and S.M.W. the Appellate Court had to decide if an adoption agency sufficiently complied with the Act when my client, the biological mother, put her child up for adoption. Mya (not her real name) was 19 and pregnant with Baby J when she decided that she had to put her child up for adoption. She was swayed to do so when she and her mother were evicted from their home and no relative was able to provide a home for both of them. She was also concerned with her mother’s inevitable disapproval of her pregnancy. 

Mya chose Loving Choice Adoption Associates (“Loving Choice”) to process the adoption  and provide her with a counselor to navigate the process. Loving Choice was supposed to give her at least three counseling sessions, in a private setting. There were two, at a busy Starbucks.   The counselor was supposed to inform Mya of different assistance programs that would be alternatives to adoption – but that did not happen.   

When Mya gave birth to Baby J, the adoptive parents were called. Mya met with the counselor from Loving Choice to authorize the baby’s discharge to Loving Choice and also met with a lawyer hired by the agency, who did not provide independent legal advice – and did not consider Mya her client. At the trial, which Mya won with the help of my colleague Sandra Barsoum and me, Mya testified that as she signed legal documents surrendering the baby, she felt rushed and did not have information explained to her.  She later wrote to the adoptive parents to ask for her baby back. They said “no,” we sued and then Loving Choice shredded Mya’s records. 

Under New Jersey law, surrender of a parent’s rights are irrevocable unless there is evidence of “fraud, duress, or misrepresentation” by the approved agency. N.J.S.A. 9:3-41. This case turned on whether Loving Choice’s noncompliance with the Act constituted a misrepresentation that nullified the surrender signed by Mya. The lower court judge cited four instances of noncompliance:

  1. The Counselor did not keep notes of her sessions with Mya as required by the Act. Instead, the counselor destroyed the handwritten notes she kept and retyped them on the computer; 
  2. Loving Choice’s failure to properly discuss the possibility of assistance from public assistance programs, as required; 
  3. Loving Choice did not explore alternatives to adoption with Mya, as required. They only discussed that Mya was not a proper candidate for foster care; and 
  4. All of Mya’s sessions with the Counselor were conducted at Starbucks, which is not a private and professional setting as required.

The lower court judge said that these deviations from the Act constituted material misrepresentations. Moreover, she found that the destruction of the notes from Mya’s sessions with the counselor called into question the counselor’s credibility where in contrast, the judge  found Mya’s testimony to be credible. On the day that Mya was to get on a plane to pick up the baby, the adoptive parents appealed. 

The Appellate Court disagreed with the trial court judge, finding that although there were in fact misrepresentations made by Loving Choice, they were not of the kind that would warrant voiding the surrender.   

Procedures and guidelines exist in all areas of the law, but abiding by and upholding them are of the utmost importance in sensitive situations like adoption. The Appellate Court conceded that the counselor and Loving Choice did violate the Act, but found that the violations were not those that warranted misrepresentation. I’m biased, but in fact the Appellate Court “cherry picked” those parts of the trial judge’s decision that it liked and ignored those it did not. 

Its decision did not answer the question of which requirements of the Act are those that are sufficient enough misrepresentations, how can birth parents – and adoption agencies – differentiate which requirements are and aren’t important, and finally, what is to stop adoption agencies in the future from making these arguments any time they don’t follow the rules? “Sorry Judge, we may have shredded the birth mother’s records and counselled her at a busy Starbucks with music playing and customers talking loudly, but it wasn’t that bad.” The client is asking the State Supreme Court to answer those questions – we hope that it will. 

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