In Re the Adoption of Baby T. , 160 N.J. 332 ( 1999 )

The opinion of the Court was delivered by

COLEMAN, J.

The issue in this wrongful death-medical malpractice case is whether a doctor being sued for causing the death of an adopted infant has standing to challenge the posthumous finalization of the infant’s adoption. The Chancery Division, Family Part, concluded that there is no standing. A divided panel of the Appellate Division held that under the factual matrix of this case there is standing. 311 N.J.Super. 408, 411, 709 A.2d 1381 (1998). This appeal is before us as of right based upon a dissent in the Appellate Division. R. 2:2-1(a)(2). We now reverse, holding that a defendant in a wrongful death-medical malpractice action lacks standing to collaterally attack the posthumous adoption of the victim of the alleged malpractice.

I

Baby T was born on December 1, 1993. Prior to the infant’s birth, his natural mother selected P.H. and J.H., husband and wife, to be the adoptive parents of her unborn child. The natural mother executed a valid surrender of her parental rights to Adoptions From the Heart, a State-approved and licensed adoption agency. On December 4, 1993, P.H. and J.H., through the adoption agency, took physical custody of Baby T with the intent to adopt the child. The agency visited their home on three occasions after the child had been placed with the prospective adoptive parents and found they were providing a loving and caring home.

On March 31, 1994, the infant was admitted to Robert Wood Johnson University Hospital for same-day surgery to repair an inguinal hernia. During the administration of anesthesia by defendant Dr. Nishat Zedie, the baby became “rigid” and suffered cardiac arrest. Although initially stabilized and transferred to the pediatric intensive care unit, the infant deteriorated and died later that day. A medical consultant retained by the prospective adoptive parents informed them that Baby T died because Dr. Zedie administered succinylchlorine, an anesthetic expressly classified by the Food and Drug Administration as contraindicated for use in children.

P.H. and J.H., with the consent of the adoption agency, accepted responsibility for all funeral arrangements and expenses for Baby T. They made those arrangements as the parents of the child and buried him in their family plot under the name they had given the child. In other words, they treated the child as if he were their natural-born son.

At the time of Baby T’s death on March 31, 1994, the prospective adoptive parents had not filed a complaint for adoption because the child had resided in their home for only four months rather than the six months required by N.J.S.A 9:3-47a. Consequently, the adoption agency requested permission from the Bureau of Adoption Agency Licensing of the New Jersey Division of Youth and Family Services (“Bureau”) to consent to the finalization of Baby T’s adoption. On November 4, 1994, the Bureau waived the six-month requirement of N.J.S.A. 9:3-47a. By that time, the statute had been amended to remove the six-month requirement for filing a complaint. L. 1993, c. 345, § 10, effective April 27, 1994. In granting permission to proceed with the adoption, the Bureau stated that “in consideration of the circumstances involved with this ease and the family’s desire to [finalize] the adoption, the Bureau of Licensing will not cite as a violation the agency’s consent to the adoption of the child with four months of supervision.” The adoption agency granted its consent to the adoption of Baby T by P.H. and J.H. on February 1, 1995.

The prospective adoptive parents apparently filed their complaint for adoption in early 1995. On July 7, 1995, the Family Part, with full knowledge of the death of Baby T, entered a final judgment of adoption of Baby T by P.H. and J.H. They adopted a second child at the same time.

The wrongful death, survivorship, and medical malpractice complaint was filed on March 8,1995, by P.H., individually and as the administrator of Baby T’s estate, against Dr. Zedie and several other defendants.

On July 17, 1997, more than two years after the adoption had been finalized, Dr. Zedie filed a motion in the Family Part to vacate the final judgment of adoption of Baby T pursuant to Rule 4:50-l(d). Dr. Zedie argued, based on that rule, that the judgment of adoption was void because it was not permitted by statute and that she had standing to vacate the adoption. The trial court in a published opinion denied the motion based upon the Adoption Act, N.J.S.A. 9:3-37 to -56, and the court’s equitable and parens patriae powers. 308 N.J.Super. 344, 354, 705 A.2d 1279 (Ch.Div.1997). The trial court also found the judgment of adoption was not void, a requirement for relief under Rule 4:50-1(d). Id. at 363, 705 A.2d 1279.

The trial court concluded that Dr. Zedie had no standing under Rule 4:50-1 because she was neither a party to the adoption, nor a legal representative of a party to the adoption. Id. at 349, 705 A.2d 1279. It concluded that Dr. Zedie had not suffered any direct harm as a result of the adoption and sought to vacate the adoption only in an attempt to find sanctuary from the potential liability attendant to the wrongful death and survivorship actions commenced against her. Ibid.

Notwithstanding the trial court’s finding that Dr. Zedie lacked standing, it nonetheless addressed the substantive issue concerning the validity of the posthumous adoption. Ibid. Relying on In re Adoption of Children by O., 141 N.J.Super. 586, 589, 359 A.2d 513 (Ch.Div.1976), the trial court concluded that “[a]n adoption judgment should not be set aside unless it is in the best interests of the child, and the adoptive parents.” In re Adoption of Baby T., supra, 308 N.J.Super. at 355, 705 A.2d 1279. The trial court further noted that a motion to vacate a final judgment of adoption should be granted only under the most unusual facts and circumstances. Ibid. The court analogized the facts in the present case with those in Stellmah v. Hunterdon Cooperative G.L.F. Serv., Inc., 47 N.J. 163, 219 A.2d 616 (1966), in which this Court upheld the adoption of a child where the final judgment of adoption was entered subsequent to the death of the adopting parent in order to render the child eligible to receive worker’s compensation benefits. In re Adoption of Baby T., supra, 308 N.J.Super. at 356, 705 A.2d 1279. The trial court reasoned that it “would be contrary to the spirit and intent of the Adoption Act” to vacate the adoption where “the completion of the six-month placement period was thwarted by the alleged malpractice of the very person who seeks to vacate the adoption.” Id. at 357, 705 A.2d 1279. The court rejected Dr. Zedie’s assertion that the doctrine of equitable adoption was not recognized in New Jersey. Id. at 358-59, 705 A.2d 1279 (citing D’Accardi v. Chater, 96 A.3d 97 (4th Cir.1996)). In addition, Dr. Zedie’s reliance on In re Adoption of Bradfield, 97 N.M. 611, 642 P.2d 214 (1982), was found unpersuasive. The trial court viewed the New Mexico Court of Appeals’ decision to uphold the vacation of a posthumous adoption as a rigid, unequitable and unenlightened adherence “to an immutable rule” requiring that all parties to an adoption be alive at the time the final judgment is entered. In re Adoption of Baby T., supra, 308 N.J.Super. at 361-62, 705 A.2d 1279.

A divided panel of the Appellate Division reversed. In re Adoption of Baby T., supra, 311 N.J.Super. at 416, 709 A.2d 1381. The majority concluded that Dr. Zedie had standing to question the validity of the adoption judgment. Id. at 411, 709 A.2d 1381. Relying on New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Commission, 82 N.J. 57, 68, 411 A.2d 168 (1980), the majority concluded that Dr. Zedie “[a]s a defendant in the malpractice action ... has a stake in the validity of the adoption judgment and her interest establishes a ‘genuine adverseness’ between her and the adoptive parents.” In re Adoption of Baby T., supra, 311 N.J.Super at 412, 709 A.2d 1381 (internal citations omitted).

The majority concluded that neither case law nor the doctrine of equitable adoption authorizes posthumous adoption in New Jersey. Id. at 413-14, 709 A.2d 1381. The panel stated that the trial court had “overread” the Stellmah decision, noting that the adoption approved in that ease was valid only because the child had acquired the status of an adopted child under the laws of Quebec and not under the laws of New Jersey. Id. at 413, 709 A.2d 1381.

Alternatively, the Appellate Division held that the doctrine of equitable adoption was applicable only “to support a claim for benefits which would be available if a legally recognized parent-child relationship existed.” Id. at 416, 709 A.2d 1381. The majority was of the view that “[wjhether the equitable adoption concept is applicable must be decided in the context of a specific claim,” and as such “Baby T’s administrator’s contention that principles of equitable adoption apply to sustain the action for medical malpractice must be made to the Law Division in the context of that claim and the wrongful death statute.” Ibid.

Judge Shebell dissented, disagreeing with both the majority’s determination of standing as well as with its conclusion on the substantive issue of the adoption’s validity. Id. at 416-20, 709 A.2d 1381 (Shebell, J., dissenting). Judge Shebell agreed with the trial court that Dr. Zedie did not have standing under Rule 4:50-1 because she had suffered no injury resulting from the adoption of Baby T. Id. at 417, 709 A.2d 1381 (Shebell, J., dissenting). Judge Shebell concluded that the adoption in this case was valid based on a proper application of the equitable powers of the trial court and based upon a thoughtful consideration of the best interests of the child and the prospective adoptive parents. Id. at 418-20, 709 A.2d 1381 (Shebell, J., dissenting).

II

The prospective adoptive parents argue that Dr. Zedie lacks standing to move to vacate the judgment of adoption because she was neither a party nor a party’s legal representative to the original adoption proceeding as required by Rule 4:50-1. They further contend that the judgment of adoption created no substantial likelihood that Dr. Zedie would be harmed by it. On the merits, the prospective adoptive parents maintain that the judgment of adoption was a proper exercise of the Family Part’s equitable powers.

Dr. Zedie maintains that the prospective adoptive parents’ counsel conceded below that she had standing to challenge the adoption. Alternatively, Dr. Zedie contends that her status as a target of the medical malpractice action creates the requisite adverseness sufficient to confer standing to challenge the adoption. On the merits, she argues that neither the Adoption Act nor the doctrine of equitable adoption permits prospective parents to finalize an adoption after a prospective adoptee’s death.

III

The threshold issue is whether Dr. Zedie has standing to collaterally attack the final judgment of adoption by seeking to vacate it. The rule relied on by Dr. Zedie provides that the trial court “may relieve a party or the party’s legal representative from a final judgment [if] the judgment ... is void.” R. 4:50-l(d). Standing “refers to the plaintiff’s ability or entitlement to maintain an action before the court.” New Jersey Citizen Action v. Riviera Motel Corp., 296 N.J.Super. 402, 409, 686 A.2d 1265 (App.Div.), certif. granted, 152 N.J. 13, 702 A.2d 352 (1997), and appeal dismissed as moot, 152 N.J. 361, 704 A.2d 1297 (1998). Entitlement to sue requires a sufficient stake and real adverseness with respect to the subject matter of the litigation. Crescent Park Tenants Ass’n v. Realty Equities Corp., 58 N.J. 98, 107, 275 A.2d 433 (1971). A substantial likelihood of some harm visited upon the plaintiff in the event of an unfavorable decision is needed for the purposes of standing. Home Builders League of South Jersey, Inc. v. Berlin Tp., 81 N.J. 127, 134-135, 405 A.2d 381 (1979); So. Burlington Cty. NAACP v. Mt. Laurel Tp., 67 N.J. 151, 159, n. 3, 336 A.2d 713 (1975), App. dism., 423 U.S. 808, 96 S.Ct. 18, 46 L.Ed.2d 28 (1975). New Jersey State Chamber of Commerce, supra, 82 N.J. at 67, 411 A.2d 168. A lack of standing by a plaintiff precludes a court from entertaining any of the substantive issues presented for determination. Watkins v. Resorts Int’l Hotel and Casino, 124 N.J. 398, 424, 591 A.2d 592 (1991); Crescent Park, supra, 58 N.J. at 107, 275 A.2d 433.

In terms of adoptions, the Adoption Act, the Rules of Court, and case law provide an aid in determining which individuals have standing to challenge an adoption action. N.J.S.A. 9:3-45 requires that notice of the adoption complaint and hearings must be given to the natural parents of the prospective adoptive child, absent surrender or termination of parental rights. In addition, under N.J.S.A. 9:3-46a and b, any parent or guardian who has not executed a surrender of rights as well as any individual who has provided primary care and supervision for the child for at least six months or one half of the life of the child, whichever is less, has standing to object to the adoption and must be given notice. See also R.K. v. A.J.B., 284 N.J.Super. 687, 692, 666 A.2d 215 (Ch.Div.1995) (holding that “[i]t would seem to follow [from N.J.S.A. 9:3-46b] that one who is not entitled to notice of the proceedings is one who is not provided, by the Legislature, with the right to object”).

In addition to Rule 4:50-1 (d), one of our Rules of Court that is designed to effectuate the Adoption Act provides that “the court ... may direct that notice of the [adoption] proceeding shall be given to any persons whose interests may be prejudiced or affected by the entry of a judgment of adoption.” R. 5:10-5(b). Finally, judicial decisions concerning standing to vacate or reopen a judgment of adoption have accorded standing only to those individuals who were a party to the original adoption judgment. In re T., 95 N.J.Super. 228, 235, 230 A.2d 526 (App.Div.1967). That decision was based on then Rule 4:62-2, the source rule for Rule 4:50-1. Both rules limit the movant to parties and legal representatives of the parties.

Our review of the record in light of the foregoing principles fails to reveal any persuasive basis upon which standing may be conferred upon Dr. Zedie to collaterally attack the judgment of adoption. The fact that counsel for the adoptive parents may have conceded that Dr. Zedie has standing to challenge whether plaintiffs are next-of-kin is legally insufficient to permit a successful collateral attack upon the judgment of adoption. First, standing is an element of justiciability that cannot be waived or conferred by consent. New Jersey Citizen Action, supra, 296 N.J.Super. at 411, 686 A.2d 1265. Second, Dr. Zedie seeks to vacate the judgment of adoption so that her challenge regarding the next-of-kin issue will have a better chance of success. Rule 4:50-l(f), under which she sought that result, does not permit a collateral attack on the judgment because Dr. Zedie was neither a party nor a legal representative of a party to the final judgment of adoption. Furthermore, Dr. Zedie is not in the class of individuals entitled to notice under the Adoption Act, or Rule 5:10-5(b), or the class of people who have been granted standing to object under either the Adoption Act or the Rules of Court.

Dr. Zedie relies heavily on her assertion that she is entitled to standing due to the adverseness created between herself and the prospective adoptive parents resulting from the medical malpractice, wrongful death, and survivorship claim. We reject that contention. Dr. Zedie is a total stranger to, and indeed an intermeddler in, the adoption proceedings. Simply because the legal relationship formed by the judgment of adoption now provides the foundation for the personal injury causes of action against her cannot alter that determination. We agree with Judge Shebell that, “Dr. Zedie suffers no direct harm as a result of the adoption judgment; she still has the opportunity to present a complete defense to all of the wrongful death claims brought in the malpractice action.” In re Baby T., supra, 311 N.J.Super. at 417-18, 709 A.2d 1381 (Shebell, J., dissenting). It is the malpractice action that creates adverseness for Dr. Zedie, not the adoption judgment. The judgment of adoption affects only those who may be entitled to the proceeds of successful wrongful death and survivorship causes of action and not the merits of the alleged medical malpractice. See N.J.S.A 2A:31-4; N.J.S.A 2A:15-3.

We agree with Justice Handler that this opinion should not be interpreted generally to deny standing to the defendants in wrongful death and survivorship cases to challenge the plaintiffs’ status as next-of-kin. Infra, at 343-44, 734 A.2d at 310-11 (Handler, J., concurring). We hold only that Dr. Zedie lacks standing in this collateral proceeding to seek to vacate the judgment of adoption that was entered by a court of competent jurisdiction. The impact of that holding is that although Dr. Zedie can challenge the next-of-kin issue in the pending litigation, the trial court may take judicial notice of the judgment of adoption. N.J.R.E. 201. The judgment will have the same probative effect as a marriage or birth certificate.

IV

Because we find that Dr. Zedie lacks standing to collaterally attack the judgment of adoption, we decline to address the issues related to posthumous adoptions and the applicability of equitable adoptions by prospective adoptive parents.

Although Justice Handler makes a persuasive argument that Dr. Zedie should be equitably estopped from collaterally challenging the legal effect of the judgment of adoption, infra, at 347-49 734 A.2d at 312-13 (Handler, J., concurring), that issue is so interwoven with the issue of equitable adoptions that we decline to use it as an additional basis for refusing to vacate the judgment of adoption.

We invite the Legislature to consider whether equitable and posthumous adoptions should be permitted and under what conditions. The Adoption Act is a creation of the Legislature that provides rights and obligations that were not available at common law. For example, the Legislature may wish to adopt an amendment to the Adoption Act that is similar to the Utah Adoption Code that provides for the entry of a final judgment of adoption if a child dies prior to the expiration of the statutory residency periods. Utah Code Ann. § 78-30-14(7). Such a provision in our Adoption Act would provide flexibility in cases such as the present one.

The judgment of the Appellate Division is reversed, and the judgment of adoption is reinstated.