Opinion
DOCKET NO. A-5447-14T1
03-30-2016
IN THE MATTER OF THE ADOPTION OF AN ADULT BY A.S.C.
Ziegler & Zemsky, LLC, attorneys for appellant A.L. (Steven M. Resnick, on the briefs). Hellring Lindeman Goldstein & Siegal, LLP, attorneys for respondents A.S.C. and A.R.L. (Lisa P. Parker, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FA-087-15. Ziegler & Zemsky, LLC, attorneys for appellant A.L. (Steven M. Resnick, on the briefs). Hellring Lindeman Goldstein & Siegal, LLP, attorneys for respondents A.S.C. and A.R.L. (Lisa P. Parker, on the brief). PER CURIAM
This matter involves the private adoption of an adult, respondent A.R.L., by her step-father, respondent A.S.C. A.R.L.'s biological father, appellant A.L., appeals from the June 25, 2015 Family Part order, which denied his order to show cause (OTSC) for recusal of the trial judge, and from that part of the June 30, 2015 order, which denied his motion to intervene. For the following reasons, we affirm both orders.
A.L. also appealed from the February 13, 2015 final judgment of adoption. However, in a September 21, 2015 order, we found the appeal from the final judgment was untimely and limited the appeal to the June 25 and 30, 2015 orders. Accordingly, we will not consider the arguments A.L. improperly raised in Points I, II, IV, V, VI and VII of his merits brief relating to the adoption.
We derive the following facts from the record. On January 8, 2015, A.S.C. filed a verified complaint for adoption of A.R.L., then nineteen years old. The complaint identified A.L. as A.R.L.'s biological father, gave A.L.'s address, and apprised the court of the matrimonial action between A.L. and A.R.L.'s biological mother, K.C. A.R.L. and K.C. both filed a consent to the adoption. Following testimony on February 13, 2015, the trial judge entered a final judgment of adoption. The judge found that: A.R.L. was an adult; both A.R.L. and K.C. consented to the adoption; A.S.C. was of good moral character and of reputable standing in the community; and the adoption would be to A.R.L.'s advantage and benefit and would promote her best interest.
On March 5, 2015, A.L. filed an OTSC to intervene, arguing, in part, that he had the right to notice and an opportunity to be heard in the adoption of his unemancipated adult daughter to whom he had parenting rights. A.L.'s certifications in support thereof reflected his acrimonious divorce from K.C. and his contempt for her and A.S.C. A.R.L's certification in opposition reflected years of emotional abuse by A.L., which led to the complete deterioration of their relationship, and the reasons she decided to sever her ties with him. A.R.L. made clear why she wanted A.S.C. to adopt her and that her decision was made after careful thought and deliberation and without any outside influence, coercion or duress.
Finding the relief sought was not emergent, the judge converted the OTSC to a motion.
Following the filing of the OTSC, A.L. made several adjournment requests. When oral argument finally occurred on May 8, 2015, A.L. repeatedly attempted to interject facts relating to post-judgment proceedings in the matrimonial matter. The judge explained that he could not consider those facts because A.L. had filed an OTSC seeking the judge's recusal in that matter.
The judge subsequently denied A.L.'s motion for recusal in the matrimonial matter.
After oral argument on the motion to intervene, but before the judge rendered a decision, on June 11, 2015, A.L. filed an OTSC, seeking the judge's recusal in the adoption matter. A.L. argued he sought recusal based, in part, on an objection he made before the Senate Judiciary Committee to the judge's reappointment with tenure, as well as the judge's bias and improprieties in granting the adoption.
In a comprehensive June 25, 2015 oral opinion, the judge denied the OTSC for recusal. The judge found that A.L. provided no proof of his alleged objection before the Senate Judiciary Committee or that A.L. posed a threat to the judge's tenure. The judge noted that A.L. was not present at the tenure hearing and the Senate Judiciary Committee never asked him about A.L. or the adoption matter. The judge viewed A.L.'s application as a delay tactic and attempt to manipulate the court. The judge concluded there was no reason for his recusal, and memorialized his decision in a June 25, 2015 order.
In a comprehensive June 30, 2015 written opinion, the judge denied A.L.'s motion to intervene. The judge found that A.R.L. was a legal adult under N.J.S.A. 9:17B-3; the adult adoption statute did not distinguish between an emancipated and unemancipated adult; A.R.L. possessed the legal, mental, and emotional capacity to consent to the adoption; and the adoption fully complied with the procedural requirements of N.J.S.A. 2A:22-1 and -2. Citing In re the Adoption of an Adult by C.K., 314 N.J. Super. 605 (Ch. Div. 1998), the judge concluded that because a parent has no interest in an adult child and the child's choice to be adopted by another, A.L. was not entitled to notice or an opportunity to be heard.
The judge also declined to implement the policy of parens patriae to permit intervention, finding A.R.L., "on her own recognizance, has chosen to enter to the adoption and sever her relationship with [A.L.]." The judge relied on a psychologist's report of A.R.L.'s view of A.L., as well as the "strong statements" in A.R.L.'s certification about the deterioration of her relationship with A.L. The judge memorialized his decision in a June 30, 2015 order. This appeal followed.
A psychologist conducted an evaluation in the matrimonial matter of A.L., K.C., A.R.L., and two of the parties' other children. --------
There are two types of intervention: intervention as of right and permissive intervention. Rule 4:33-1 governs interventions as of right and provides as follows:
Upon timely application anyone shall be permitted to intervene in an action if the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.Intervention as of right must be permitted if a party not named in the litigation: (1) claims an interest relating to the subject of the action; (2) shows that disposition of the action may impair or impede his ability to protect that interest; (3) demonstrates that the interest is not adequately represented by the parties to the action; and (4) files a timely application to intervene. N.J. Div. of Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 590 (App. Div. 2011) (citing R. 4:33-1; Meehan v. K.D. Partners, L.P., 317 N.J. Super. 563, 568 (App. Div. 1998)). "We have construed this rule liberally and stated that '[t]he test is whether the granting of the motion will unduly delay or prejudice the rights of the original parties.'" Meehan, supra, 317 N.J. Super. at 568 (alteration in original) (quoting Atl. Emp'rs Ins. Co. v. Tots & Toddlers Pre-School Day Care Ctr., 239 N.J. Super. 276, 280 (App. Div.), certif. denied, 122 N.J. 147 (1990)). "As the rule is not discretionary, a court must approve an application for intervention as of right if the four criteria are satisfied." Ibid. (citation omitted).
Rule 4:33-2 governs permissive interventions and provides as follows:
Upon timely application anyone may be permitted to intervene in an action if the claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a state or federal governmental agency or officer, or upon any regulation, order, requirement or agreement issued or made pursuant to the
statute or executive order, the agency or officer upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.The factors to be considered in deciding an application for permissive intervention include promptness of the application, whether or not the granting thereof will result in further undue delay, whether or not the granting thereof will eliminate the probability of subsequent litigation, and the extent to which the grant thereof may further complicate already complex litigation. See Grober v. Kahn, 88 N.J. Super. 343, 361 (App. Div. 1965), modified by, 47 N.J. 135 (1966). We review the denial of permissive intervention for abuse of discretion. Asbury Park v. Asbury Park Towers, 388 N.J. Super. 1, 12 (App. Div. 2006). Applying these standards, we conclude that A.L. had no right to intervene under either Rule 4:33-1 or Rule 4:33-2.
"'[T]he right to adopt, either an infant of an adult, is available only by statute and is not a creation of common law.'" In re Estate of Fenton, 386 N.J. Super. 404, 414 (App. Div.), (quoting In re the Adoption of an Adult by G.V.C., 243 N.J. Super. 651, 653 (Ch. Div. 1990)), certif. denied, 188 N.J. 577 (2006). "'[T]he [New Jersey] adult adoption statute is remarkably brief and succinct.'" Ibid. (alteration in original) (quoting C.K., supra, 314 N.J. Super. at 609). The statute provides as follows:
The Superior Court shall allow an unmarried person of full age, a husband with his wife's consent, a wife with her husband's consent or a husband and wife jointly to adopt an adult person and may change the name of the adult, if the court is satisfied that the adopting parent or parents are of good moral character and of reputable standing in their community, and that the adoption will be to the advantage and benefit of the person to be adopted.N.J.S.A. 2A:22-2 contains these additional requirements:
[N. J.S.A. 2A:22-1.]
Such adoption shall not be granted, unless the adopting parent or parents are at least 10 years older than the person to be adopted and the latter has, in writing acknowledged by him as deeds are required to be acknowledged, requested the adoption and, if desired, the change of name. The court, upon being satisfied that the best interests of the person to be adopted would be promoted by granting the adoption, may waive any and all of the above requirements. Every such waiver shall be recited in any judgment of adoption thereafter entered.
"The adult adoption statute reflects the State's public policy of allowing 'adoption[s] between consenting persons, with the ability to enter a contract, when there is a strong benefit to be gained.'" Fenton, supra, 386 N.J. Super. at 414 (alteration in original) (quoting G.V.C., supra, 243 N.J. Super. at 653-54). "By limiting the requirements, the '[a]doption of adults is ordinarily quite simple and almost in the nature of a civil contract.'" Id. at 415 (alteration in original) (quoting In re the Account of the Tr. of the Estate of Nicol, 152 N.J. Super. 308, 319 (App. Div. 1977)).
The adult adoption statute is markedly different from the statute governing infant adoptions. In C.K., the court analyzed those differences and rejected the holding in In re the Adoption of an Adult by V.A., 294 N.J. Super. 400 (Ch. Div. 1996) that the natural parent of the adult to be adopted had a due process right to notice and an opportunity to be heard in connection with the adoption. C.K., supra, 314 N.J. Super. at 612. The court disagreed with V.A. that the interest or rights of a parent of an adult are identical to those of a parent of a minor child. Id. at 608. The court found that unlike the adult adoption statute, the statute governing an infant adoption specifically provides for and requires notice to be given to the natural parent and includes standards for evaluating whether the adoption may proceed in the face of an objection of a natural parent. Id. at 608-09 (comparing N.J.S.A. 9:3-45 and -46 to N.J.S.A. 2A:22-1 to -3). The court explained the reasons for the distinction and why a parent is afforded a right to notice in an infant adoption. Id. at 610-11. The court found that "those rights and those interests do not exist as between a parent and an adult offspring," reasoning as follows:
To begin with, an individual who reaches eighteen years of age is not a child, but an adult, who is automatically imbued with a wide variety of rights and choices with which their parents generally have no right to interfere. They may marry, they may vote, they may change their religion, they may adopt lifestyles and pursue activities which may be both offensive and abhorrent to their parents. And as long as they cannot be said to be mentally incapacitated and thus in need of a guardian, they are free to pursue all of those life choices regardless of their parent's wishes or their parent's views as to the wisdom of those choices. The adult adoption statute implicitly recognizes these fundamental rights of the adult seeking to be adopted. Its different requirements and its different focus as compared with the focus and requirements embodied in the statutes governing the adoption of children recognizes the fact that with adulthood come rights and responsibilities of the adult not enjoyed by any child. And with those rights comes the extinction, in reality, of the parent's right to object.The court also found there was no authority supporting the notion that the fundamental rights between a parent and child survive as fundamental rights of a parent in relation to a child who reaches adulthood. Id. at 611. The court disagreed with the analysis in V.A. that a parent has an interest in an adult child and the adult's choice to be adopted "which rises to the level of an interest in life, liberty or property and which creates in them a due process right to notice of the impending adoption of their adult [child] or a right to appear or be heard in connection with that proceeding." Id. at 612. Accordingly, the court denied the petition of the parents of an adult child to be adopted for notice and the opportunity to appear and be heard in the adoption proceeding. Ibid.
[Ibid.]
The court's analysis and reasoning in C.K. is persuasive. The age-of-majority statute provides that, subject to limited exceptions inapplicable in this case, "every person 18 or more years of age shall in all other matters and for all other purposes be deemed to be an adult," N.J.S.A. 9:17B-3, in order to exercise "the basic civil and contractual rights and obligations" of adults, N.J.S.A. 9:17B-1(a). Other authority corroborates the State's recognition that an eighteen-year-old is an adult. See N.J.S.A. 2C:58-3 (prohibiting issuance of a handgun purchase permit or firearms purchaser identification card to any person under the age of eighteen); N.J.S.A. 19:31-5 (establishing voting rights for persons eighteen years of age); N.J.S.A. 37:1-6 (establishing right to marry without parental consent); N.J.S.A. 5:8-59 (prohibiting persons under eighteen from participating in games of chance); N.J.S.A. 43:10-6 (considering a child over eighteen years of age an adult for purposes of receiving employee/pensioner's benefits under New Jersey Pensions and Retirement and Unemployment Compensation Laws); 10 U.S.C.A. § 505(a) (permitting a person eighteen years of age to enlist in the regular Army, Navy, Air Force, Marine Corps, or Coast Guard without the written consent of his or her parent or guardian). In addition, an unemancipated child who turns eighteen may seek emancipation over the objection of a parent who has joint custodial rights. Ort v. Ort, 428 N.J. Super. 290, 295-98 (Ch. Div. 2012). It follows, therefore, that an eighteen-year-old adult may be adopted by another, whether emancipated or not, so long as the statutory factors are met.
The statutory factors were met in this case, and there was no evidence that A.R.L. was mentally incapacitated and in need of a guardian. Once she reached adulthood, A.L. no longer had an interest in her or her choice to be adopted by her step-father. A.R.L. had a fundamental right under the adult adoption statute to seek to be adopted without A.L.'s interference, and was free to make her own decisions without regard to A.L.'s wishes, views, or pre-adulthood parental rights. Accordingly, A.L. was not entitled to notice or to intervene in this case.
We have considered A.L.'s arguments regarding the judge's denial of his OTSC for recusal in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the judge in his well-reasoned oral opinion rendered on June 25, 2015. However, we make the following brief comments.
Rule 1:12-2 authorizes a party to file a motion seeking to disqualify the judge presiding over the case. The decision to grant or deny the motion rests entirely within the sound discretion of the trial judge. Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009). However, "[w]e review de novo whether the proper legal standard was applied." State v. McCabe, 201 N.J. 34, 45 (2010).
While the policy underlying the standards for recusal is one of protecting fairness for litigants, there is an opposing concern that defendants not be allowed to manipulate the judicial system and engage in forum shopping. State v. Dalal, 221 N.J. 601, 607 (2015). "[W]hen there is any evidence that a defendant has conveyed a threat to prompt the recusal of a judge or somehow manipulate the proceedings, recusal is not required. To assess a defendant's objective, a judge may consider direct evidence and also draw reasonable inferences from the record." Id. at 608.
We discern no bias or appearance of impropriety on the part of the judge. A.L.'s subjective complaints, threats and timing of his application for the judge's recusal reek of gamesmanship and a desire to manipulate proceedings in which he had no right to notice or to intervene. We are satisfied there was no reason for the judge's recusal in this case.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION