Adoption of Jessica XX, Matter of

• Decision Date: 24 November 1981
• Parties: , 430 N.E.2d 896 In the Matter of the Adoption of JESSICA XX. JONATHAN YY, Appellant, v. LORRAINE WW et al., Respondents; Robert Abrams, as Attorney-General, Intervenor-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 20

446 N.Y.S.2d 20

54 N.Y.2d 417, 430 N.E.2d 896

In the Matter of the Adoption of JESSICA XX JONATHAN YY, Appellant, v. LORRAINE WW et al., Respondents Robert Abrams, as Attorney-General, Intervenor-Respondent.

Court of Appeals of New York.

Nov. 24, 1981.

David J. Freeman, White Plains, for appellant

Jay L. Samoff, Kingston, for Lorraine Robertson and another, respondents.

Robert Abrams, Atty. Gen. (Robert J. Schack, Asst. Atty. Gen., and Shirley Adelson Siegel, Sol. Gen., of counsel), for intervenor-respondent.

OPINION OF THE COURT

JONES, Judge.

Neither the decision of the Supreme Court of the United States in Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297, nor its rationale is applicable to an adoption proceeding which had been finally determined and concluded prior to the announcement of that decision. Nor was it an abuse of discretion in the circumstances of this case for the Family Court Judge either to grant the final order of adoption without giving notice to the putative father of whose identity and interest the Judge previously had knowledge or thereafter to deny the application of the putative father to vacate the final order of adoption and to reopen the adoption proceedings.

The factual context out of which the legal issues presented in this case arise is not significantly disputed. The mother respondent in this proceeding and petitioner had lived together for two years prior to the birth of Jessica on November 9, 1976. In August, 1977 the mother married her present husband, the other respondent.

On December 21, 1978 the stepfather, joined by the mother, instituted a proceeding in Family Court, Ulster County, for his adoption of Jessica. A hearing in that proceeding was held on January 15, 1979 at the conclusion of which the Family Court Judge ordered the Ulster County Social Services Department to make the customary investigation pursuant to the provisions of section 116 of the Domestic Relations Law. When the favorable report of that investigation (which addressed only the mother, the adoptive father and Jessica) was received on February 26, the mother's attorney informed the Family Court Judge that petitioner had instituted a paternity proceeding in Family Court, Westchester County, claiming to be Jessica's father. ¹ At the instance of the attorney the Family Court Judge in Ulster County signed an order to show cause returnable March 12, 1979 (the return date in the paternity proceeding) bringing on the mother's application to change the venue of the paternity proceeding from Westchester to Ulster County. Petitioner was served with a copy of the order to show cause on Saturday, March 3, 1979, and then learned for the first time of the pendency of the adoption proceeding. On the following Wednesday, March 7, 1979, at the request of the attorney for respondents, the Family Court Judge signed the final order of adoption. Thereafter, but on the same day, the attorney for petitioner telephoned the Family Court Judge to request an adjournment of the adoption proceedings and was informed that his request came too late inasmuch as the final order of adoption had already been signed.

Subsequently, by petition verified on June 13, 1979, petitioner instituted the present proceeding to vacate the final order of adoption and to reopen the adoption proceedings. ² That application was denied by the Ulster County Family Court on November 30, 1979. The Appellate Division affirmed, 77 A.D.2d 381, 434 N.Y.S.2d 772, one Justice dissenting, on December 11, 1980. Petitioner has appealed to our court as of right pursuant to CPLR 5601 (subd. par. ).

At the outset we take note of the nature of the case before us. It involves an attempt, in an independent proceeding, by one who was not a party to a judicial proceeding which has been concluded to mount a direct attack on the final determination made therein. It is to be distinguished from the more frequently encountered attempt of one who was a party to a judicial proceeding which concluded in a disposition adverse to him, to enlist the aid of the courts to vacate or modify that disposition by means other than direct appellate review.

In this perspective we first address the constitutional contentions advanced by petitioner. He asserts that as Jessica's father he had a constitutional right to receive formal notice of the adoption proceeding (and thus to participate therein) and that granting the order of adoption without his consent deprived him of his constitutional rights. He would rely heavily on the decision of the Supreme Court of the United States in Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297, supra) in which that court, reversing a decision of our court (Matter of David A. C., 43 N.Y.2d 708, 401 N.Y.S.2d 208, 372 N.E.2d 42), held that section 111 of the Domestic Relations Law was unconstitutional in that it arbitrarily discriminated between mothers and fathers of children born out of wedlock by requiring the consent to adoption of the former but not of the latter. It is petitioner's submission that that decision mandates a reversal of the orders of the lower courts in this case denying his application to vacate the order of adoption and to reopen the adoption proceeding. He argues that to the extent that section 111-a did not require that he be given formal notice of the adoption proceeding and that section 111 did not provide that his consent was required before Jessica could be adopted, each section is unconstitutional as denying him the equal protection and due process rights enunciated in Caban.

We have no occasion to reach or resolve the substantive aspects of petitioner's contentions. The decision in Caban was announced on April 24, 1979, nearly seven weeks after the final order of adoption in this case. The adoption proceeding was completed with the entry of that order. The present application, as previously noted, is a posttermination attack on the final determination in the adoption proceeding by one who was not a party to that proceeding. ³ We conclude that, unless the Supreme Court itself accords full retroactive effect to its holding, the decision and the rationale of Caban should be applied only to actions and proceedings that were still in the judicial process at the time the decision was announced or that have since been commenced, and not to actions and proceedings which had been finally determined and whose judicial life had then expired (cf. People v. Torres, 53 N.Y.2d 213, 440 N.Y.S.2d 889, 423 N.E.2d 366; see Gager v. White, 53 N.Y.2d 475, 482, 442 N.Y.S.2d 463, 425 N.E.2d 851). To accord full retroactive effect to Caban and to the extension of its rationale to the notice requirements of our adoption statute (and thus to allow its doctrine to be invoked on applications attacking adoption proceedings long since finally concluded) would be, as the dissenters in Caban implied (441 U.S. 380, 401, 415-416, 99 S.Ct. 1760, 1772, 1780, 60 L.Ed.2d 297, supra), to work cruel havoc. Accordingly, we hold that sections 111 and 111-a of the Domestic Relations Law as invoked in the adoption proceeding here are immune from constitutional assault predicated on Caban and its rationale in the present postfinal determination proceeding (cf. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296.) ⁴

Still bearing in mind that petitioner was not a party to the adoption proceeding and having concluded that Caban gives him no constitutional right to disturb its final disposition, we turn to his contentions that it was an abuse of discretion in the circumstances for the Ulster County Judge first to have signed the final order of adoption on March 7, 1979 and then later to have denied petitioner's application, in the proceeding now before us, to vacate that final order and to reopen the adoption proceedings. Our evaluation of petitioner's assertions of abuse of discretion must be judged, not with the benefit of informed hindsight, but on the basis of what was known to the Family Court Judge at the time he signed the final order of adoption and at the time he denied the application to vacate and to reopen the adoption proceedings.

On March 7, 1979 all the statutory prerequisites to the signing of a final order of adoption had been met. All persons made necessary parties under our statutes and decisional law at that time were before the court, and the only consent then so required, that of the mother, had been obtained. Petitioner does not claim that he came within any of the seven categories then defined in paragraphs (a) through (g) of subdivision 2 of section 111-a of the Domestic Relations Law ⁵ as statutorily entitled to notice of the proceeding or that the necessity of his consent to the adoption was specified in the provisions of section 111. The court had received the report of investigation made by the Ulster County Department of Social Services as required by section 116 of the Domestic Relations Law which was in all respects favorable to the adoption. Accordingly, being "satisfied that the best interests of the adoptive child be promoted thereby" the Family Court Judge made the order approving the adoption. There was then no reason to consider any possible rights that petitioner might have inasmuch as our court, and apparently the Supreme Court, had recently declared that he had none (cf. Matter of Malpica-Orsini, 36 N.Y.2d 568, 370 N.Y.S.2d 511, 331 N.E.2d 486, app. dsmd. sub nom., Orsini v. Blasi, 423 U.S. 1042, 96 S.Ct. 765, 46 L.Ed.2d 631).

At the threshold we reject petitioner's assertions that the order of adoption should be set aside because respondents fraudulently concealed information from the Family Court and because the Family Court improperly waived a statutory prerequisite for adoption. The claim of fraudulent con is constructed on two propositions, first, that the mother submitted documentary evidence which she knew to be false, to wit, Jessica's birth...