Assignment #2

Professor Blaise Apoldite

Legal Research and Writing

Montclair State University

Fall 2019

To: Supervising Attorney

From: Diana Dort

Re: Matter of Mickey Foster– Foster Child and Inheritance

Date: 3 November 2019

Legal Memorandum

QUESTION PRESENTED

Whether, under New Jersey Law, Mickey Foster can recover under the intestacy his inheritance from his foster parents Frank and Fran Foster whom he lived with for years and was considered as their son even though he was not formally adopted.

SHORT ANSWER

Probably yes. Mickey Foster can recover his inheritance from his foster parents Frank and Fran Foster. Mickey Foster has been with the foster since he was nine. They treated Mickey as their son and made it known to several people, including their attorney, that Mickey was their son. Due to the fact that Mickey was perceived and treated as the Foster’s son, he should receive his intestate succession and qualify as an heir of the Foster’s estate entitling him to the same amount as the other Foster children receive.

STATEMENT OF FACTS

Mickey Foster is an eighteen-year-old boy who has been living with his foster parents since he was nine years old. His foster parents Frank and Fran Foster, promised to adopt Mickey at some future time. They started to work on his adoption in September of 2016 when they filed a verified complaint for adoption to begin proceedings. However, in February of 2017, Frank died after battling pneumonia, and his wife died soon after developing dementia. Frank and Fran did not execute a will while they were alive. On top of that, there were not any court proceedings to formally adopt Mickey and declared Mickey as the child of Frank and Fran Foster.

The Foster’s oldest daughter, Darlene, sent Mickey a letter stating that he will only receive $1,000 for his share of intestacy. Under the doctrine of equitable adoption, where there has been at least agreement by prospective parents to adopt, and faithful performance to that end by adoptive parties, but adoptive parent dies before final adoption hearings, adoption will be enforced and child occupies in equity status of adopted child, with full right of inheritance as though natural born child.

DISCUSSION

Mickey Foster wants to challenge the amount he is claiming that he is a child of the Foster family. Mickey went everywhere with the Fosters such as Disney World, Six Flags Great Adventure, museums, and even church. Mickey spent time with Frank and Fran during the holidays and could be seen in several photographs with the Foster family. The Fosters made it known to several people, including their attorney, that Mickey was their son. The issue, in this case, is whether Mickey qualifies to receive the same amount as the other Foster children.

In New Jersey, the rule is well settled that before granting an adoption after the death of an adoptive parent, sufficient evidence must be presented to support a finding that: (1) there was an agreement to adopt, (2) the nature of the relationship was that of a parent-child, (3) the intent of the deceased parent was to adopt, and (4) granting the adoption is in the best interests of the child. In re W.R. ex rel. S.W., 412 N.J.Super. 275, 989 A.2d 873 (2009), the court concluded that good cause existed supporting grant of adoption nunc pro tunc as of the date of filing the complaint. (412 N.J.Super. 275, 989 A.2d 873). Id. The court reasoned that because there was a parent-child relationship that existed between prospective adoptive parents and child, as required to support a finding of good cause warranting a grant of adoption nunc pro tunc as of the date of filing of a complaint for adoption. The child called the parents' "Mom" and "Dad," and the father had taught the child how to play football and basketball and attended all football games and practices. Additionally, the parents helped the child with his homework and everyday problems or concerns, the child attended church with the father and went shopping for food and other necessities, and the child was taught valuable life skills like carpentry and saving money. (N.J.S.A. 9:3–50(b).)

This case is quite similar to the present case of Mickey Foster. His adoptive parents had agreed to adopt him, and this can be supported by their attorney and the people they told that Mickey was their son. Secondly, both parents intended to adopt as they had filed a verified complaint for adoption to begin proceedings. The nature relationship was that of a parent-child because they included Mickey in everything they did, including family photos and trips.

In the Matter of Adoption of A Child by N.E.Y., 267 N.J. Super. 88, 630 A.2d 835 (1993), the potential parent brought an action for the adoption of the child. Following entry of an order terminating parental rights of natural parents and declaring the child fit for adoption and potential parent's subsequent death, the motion was filed on behalf of potential parents to finalize the adoption. The Superior Court, Chancery Division, Union County, Whitken, J.S.C., held that adoption could not be finalized. The adoption could not be finalized on equitable adoption grounds when the potential adoptive parent had died after the preliminary court hearing. Before the final hearing, it required a private placement of adoption; primary benefit to the infant child would have been savings of inheritance taxes respecting bequest to the child in potential parent's will and certainty of receiving Social Security benefits.

This case is stating that because of the potential parents death, he cannot be adopted since his adoption was not finalized before they died. In the present case, however, Mickey’s adoption could be finalized on equitable adoption grounds considering the elements of equitable adoption.

To continue, In re Tr. Under Agreement of Vander Poel, 396 N.J. Super. 218, 933 A.2d 628 (App. Div. 2007), trustee filed action seeking instructions as to whether adult adoptee of settlor's son could share in remainder class gift to son's “issue.” The Superior Court, Chancery Division, Somerset County, Rosemarie Ruggiero Williams, J., granted summary judgment in favor of the biological child of the son. The adult adoptee appealed. Id.The adult adoptee of settlor's son was subject to the “stranger to the adoption” presumption in the construction of trust agreement, thereby excluding her from the remainder class gift to “issue”. Assuming that the doctrine of equitable adoption was applicable, it would not give the adult adoptee the status of a legal adoptee; and probable intent of the settlor was not to include adult adoptee within trust gift to son's “issue.” Id.

The facts and ruling in Vander Poel is different because the doctrine of equitable adoption is not applicable to the case, thus making it different to Mickey’s case where the doctrine of equitable adoption is applicable.

CONCLUSION

On these facts, the court will probably find that under the doctrine of equitable adoption, if no formal adoption takes place, Mickey Foster can recover the intestacy of his inheritance. The doctrine of equitable states that if there was an agreement by the prospective parents to adopt, and a faithful performance to that end by adoptive parties, the adoption will be enforced and the child has the right to inheritance as though the natural born child even if the adoptive parents dies before the final adoption hearings. Therefore, based on the ruling of re W.R. ex rel. S.W., 412 N.J.Super, it appears that Mickey will likely prevail because he has the right to receive an intestate share of the Foster’s estate.