RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

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).

PER CURIAM

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 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-2907-17T3

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 noncompliance 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.

I.

A.

 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 
3 A-2907-17T3

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

parents' appeal. 

B.

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. 

 

1 We use pseudonyms for the family members, relatives, and friends 

for purposes of confidentiality and ease of reference. 
4 A-2907-17T3

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 
5 A-2907-17T3

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. 
6 A-2907-17T3

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
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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 

telephoned them. 

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 
8 A-2907-17T3

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. 

Mya texted:

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, 
9 A-2907-17T3

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. 
10 A-2907-17T3

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. Postplacement counseling could be one session or fifty sessions over 

many years. 
11 A-2907-17T3

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 
12 A-2907-17T3

to the location for meetings. She agreed to meet Mya at the 

Starbucks. 

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. 
13 A-2907-17T3

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 
14 A-2907-17T3

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 

agency.
15 A-2907-17T3

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 
16 A-2907-17T3

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 
17 A-2907-17T3

"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 

labor soon. 

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
18 A-2907-17T3

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 

certificate. 

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 
19 A-2907-17T3

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. 
20 A-2907-17T3

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 
21 A-2907-17T3

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 
22 A-2907-17T3

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 
23 A-2907-17T3

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 

were interrupted.

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 
24 A-2907-17T3

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.
25 A-2907-17T3

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 

the baby. 

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:
26 A-2907-17T3

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 

why: 

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 
27 A-2907-17T3

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 

other witnesses.

C.

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 
28 A-2907-17T3

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. 
29 A-2907-17T3

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 

professional setting. 

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 

insufficient.

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." 
30 A-2907-17T3

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 

her. 

II. 

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 
31 A-2907-17T3

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.

III.

A.

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 

credibility.'" Cesare, 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 
32 A-2907-17T3

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)

(citing Gere, 209 N.J. at 499).

B.

The Adoption Act establishes the process for adopting 

children in New Jersey. In its first section, N.J.S.A. 9:3-37, 

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 

adoption." Ibid. 

Importantly, "[a] completed adoption establishes 'the same 

relationship[ ] . . . between the child and the adopting parent 
33 A-2907-17T3

as if the child were born to the adopting parent.'" In re Adoption 

of J.E.V., 226 N.J. 90, 100 (2016) (second alteration in original) 

(quoting N.J.S.A. 9:3-50(b)). As part of this process, the birth 

parents' rights must be terminated. Ibid. (citing N.J.S.A. 9:3-

50(c)(1)). That can occur voluntarily: "A parent may . . . 

surrender a child to a state-approved agency for adoption." Ibid.

(citing N.J.S.A. 9:3-41(a)). 

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." N.J.S.A. 9:3-38(j). 

A surrender must be in writing and properly acknowledged. N.J.S.A. 

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 
34 A-2907-17T3

order or judgment of a court of competent 

jurisdiction setting aside such surrender upon 

proof of fraud, duress or misrepresentation 

by the approved agency. 

[Ibid.]

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." FoontFreedenfeld Corp. v. Electro Protective Corp., 126 N.J. Super. 

254, 257 (1973) (citing Louis Schlesinger Co. v. Wilson, 22 N.J. 

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 
35 A-2907-17T3

threatened, and induce him to do an act which he would not 

otherwise have done, and which he was not bound to do." Rubenstein 

v. 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.
36 A-2907-17T3

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." N.J.S.A. 9:3-40. 

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.

[Ibid.]

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. 

[N.J.A.C. 3A:50-1.1(a)].

The Chapter
37 A-2907-17T3

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. 

[N.J.A.C. 3A:50-1.1(b)].

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 
38 A-2907-17T3

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 

were:

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 

adoption;

(2) Addresses any presented 

emotional problems;

(3) Includes referrals to 

mental health agencies when 

such emotional problems 

interfere with the birth 

parents' decision-making 

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;
39 A-2907-17T3

iv. Referred to other community 

resources when the agency cannot provide 

needed services;

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 

adoptee; and

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 

indicates either:

i. The agency explained the 

information in (c)1 above to them; 

or

ii. They refuse to participate in 

the counseling sessions; and

3. Asked to sign a statement that 

indicates the agency explained the 
40 A-2907-17T3

provisions of N.J.S.A. 26:8-40.33 and 

40.34, which:

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; 

and

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 

Health.

[N.J.A.C. 3A:50-5.4(c).]

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. 

IV.

A.

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." 
41 A-2907-17T3

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 
42 A-2907-17T3

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 

permanently ruptured. 

[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 

psychological trauma. 

[Ibid.]

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 
43 A-2907-17T3

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

at 11.]

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. 
44 A-2907-17T3

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, 72 N.J. 

at 132. 

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.

B.

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 
45 A-2907-17T3

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 
46 A-2907-17T3

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 

misrepresentations.

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 
47 A-2907-17T3

to provide shelter and insurance for the expected newborn, and 

social programs are available to provide those necessities, noncompliance 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, 
48 A-2907-17T3

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 

it. 
49 A-2907-17T3

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.

Reversed.