Adoption of Baby Boy C., Matter of

• Citation: 583 N.Y.S.2d 768,153 Misc.2d 916
• Parties: In the Matter of the ADOPTION OF BABY BOY C. and Baby Girl O. Surrogate's Court, New York County
• Decision Date: 24 March 1992
• Court: New York Surrogate Court

Page 768

583 N.Y.S.2d 768

153 Misc.2d 916

In the Matter of the ADOPTION OF BABY BOY C. and Baby Girl O.

Surrogate's Court, New York County.

March 24, 1992.

Mara T. Thorpe, Morrison, Cohen, Singer & Weinstein, New York City, for adoptive mother.

Lawrence W. Pollack, Migdal, Pollack, Rosenkrantz & Sherman, New York City, for adoptive father.

Kevin C. Fogarty, guardian ad litem, Neponsit, for infants adoptees.

[153 Misc.2d 917] RENEE R. ROTH, Surrogate.

At issue in these contested proceedings is whether the adoption of two infant children can be granted notwithstanding the prospective adoptive father's refusal to confirm in court his signed agreement to adopt. This controversy is a byproduct of the divorce action brought by the husband after the couple had commenced the adoption proceedings in this court.

THE PETITIONING ADOPTIVE PARENTS

Elaine is 47 years old; Donald is 79. This is their second marriage to one another. They were married for the first time in 1969. Although they divorced shortly thereafter, they continued to live together and had a daughter in 1972. The couple separated in 1976, but continued to see each other. In February 1983, Donald suffered a severe incapacitating stroke. After he was released from the hospital, he stayed with and was cared for by Elaine. In the spring, Donald asked Elaine to marry him. She said: "We weren't so good at it the first time, why should we do it again?" In the summer, they went to France where Donald again proposed that they remarry. According to Elaine, when she expressed her reluctance because of her desire to have children, Donald agreed that they would pursue adoption. The parties remarried on August 30, 1983 in Greenwich, Connecticut. They had separate residences but in 1984 moved into a townhouse on East 71st Street with their daughter. The stairs were a problem for Donald and in 1985 he rented an apartment for himself. During the next three years, the couple searched for a suitable residence and purchased two apartments in a Park Avenue building in 1988. The apartments were being renovated when they became estranged.

THE ADOPTIVE CHILDREN

Elaine testified to her persistent efforts, with Donald's approval, to find a child to adopt. Donald participated in this process by attending some meetings with lawyers and visiting various adoption agencies, including an orphanage in Hong Kong. In 1987, Elaine was referred to a child care agency in the Philippines where she found Baby Boy C (born July 24, 1987), the first of the adoptive children. Elaine called her husband, who was in Australia on business, and obtained his approval. Upon their return to New York, they made arrangements to bring the boy to the United States. On January 28, 1988, the couple went to the Department of Justice with their lawyer to process Baby Boy C's immigration papers. Donald signed a Petition to Classify an Orphan as an Immediate Relative in which he certified under penalty of perjury that: "I will care for the beneficiary of this petition properly if the beneficiary is admitted to the United States". At such time, he also was fingerprinted, which he admits, but denies having read the document which he concedes bears his signature. Following approval of such application, Elaine again travelled to the Philippines and brought Baby Boy C back with her in February 1988. In June 1988, the child was christened at the Swedish Seaman's Church. A picture taken at the event establishes the presence of Donald along with Elaine, their biological daughter, the pastor and the infant. They were also joined by some friends. Afterward the group went to the St. Regis Hotel for a celebration.

Prior to her trip to the Philippines, Elaine had learned that a pregnant woman in Pennsylvania was interested in surrendering her child, when born, for adoption. She testified that she consulted with Donald about this possibility and he observed that if both potential adoptions came to fruition the children, who would be close in age, would have each other for company.

After her birth on May 11, 1988, Baby Girl O, the second adoptive child, was brought to New York (Social Services Law § 374-a). According to the Financial Disclosure Statement filed in this court (DRL § 115[8]; Uniform Rules for Trial Cts, 22 NYCRR 207.55[b][8], the expenses of her birth were paid by Donald.

Elaine's testimony establishes that although both children resided with her (Baby Boy C since February 1988; Baby Girl O since June 1988), they regularly visited with Donald. He disputes the frequency of such visits or that he played with either child. Elaine's version, however, is corroborated by a credible witness, Irving Austin, a certified nurse's aide who resided with and cared for Donald from January 1987 to May 1989.

Mr. Austin recalled that from the time he was hired in 1987 to October or November of 1988, Elaine visited her husband daily. Arriving in the late afternoon, she cooked their dinner and stayed until 9 or 10 o'clock in the evening. After Baby Boy C came to New York, she brought him to her husband's apartment at least four times a week. At times she also brought Baby Girl O. The witness further testified that while Elaine worked in the kitchen, Baby Boy C was in the living room with Donald. He said that Donald "never spoke much but he would wave a hand at him and say 'Hey little boy' and smile at him". It should be noted that Donald was then acutely aphasic. Mr. Austin observed that Donald had very little interaction with Baby Girl O, who was a younger infant and was kept in her carriage. The witness also corroborated Elaine's testimony with respect to the purchase of the Park Avenue apartments. In fact, when the witness and Donald visited the apartment, Mr. Austin inquired whether the entire family would move there. Donald replied: "Yes". However, in the late fall of 1988, Donald instructed the witness not to admit Elaine to the apartment anymore.

THE ADOPTION PROCEEDINGS

The testimony of the couple with respect to the circumstances of the actual execution of the adoption papers is contradictory. The papers were signed separately by Donald and Elaine on the same day, November 21, 1988. They were filed in this court two days later. Each party testified that the other's signature was not present when he or she signed. Elaine stated that their attorney brought the papers to her apartment where she signed them. Donald testified that when he signed the papers in the lawyer's office Elaine's signature was not on them. However, he also claims that he never read the documents. Furthermore, Donald, who is a lawyer and an experienced entrepreneur, claims that when he signed the adoption papers he was unaware of their contents or significance. He does not, however, deny the authenticity of his signature.

Donald's assertion that he was unaware of the purpose of the documents is contradicted by prior sworn statements. For example, at his deposition before trial, he was asked: "At the time you signed the petition for adoption, sir, did you intend to go forward with the adoption?" Donald replied: "Yes, sir". He was then asked: "At the time, sir, that you signed the petition, did you know it was a petition for adoption?" "Yes, sir", was Donald's answer. His assertion that when he signed the papers he had no intention to complete the adoption is self-serving and incredible.

Donald's signature appears immediately above the printed words "adoptive father". During his testimony at trial, he repeatedly stated that the only words he read were "adoptive father". This court does not therefore credit his contention that he was unaware of the nature and purpose of the papers he was signing. Donald also claims not to have read a typed letter bearing his signature, which he personally handed to the court during a conference. Finally, it is noted for the record that after a question was raised during these proceedings with respect to Donald's mental capacity, he was examined by a neurologist and found to be competent.

This court finds as a matter of a fact that Donald knowingly and intentionally joined in the adoption proceedings and consented to the adoption of both Baby Boy C and Baby Girl O. Even in the absence of such clear intent, he would be presumed to have understood the contents of the documents he signed and to have agreed to them (see, Matter of Sarah K, 66 N.Y.2d 223, 241, 496 N.Y.S.2d 384, 487 N.E.2d 241; Metzger v. Aetna Ins. Co., 227 N.Y. 411, 416, 125 N.E. 814). The record is devoid of any showing of fraud or misrepresentation on the part of Elaine or the couple's common attorney.

Approximately a month after signing the petitions, the couple became estranged and discharged the lawyer who had been representing them both in this adoption proceeding. Each has since obtained and appeared by separate counsel. The former attorney was not called by either party to testify.

To date, only the first part of the two-stage proceeding for private-placement adoptions has been completed (DRL § 115). Pursuant to section 115 of the Domestic Relations Law, both Elaine and Donald have executed petitions consenting to the adoptions. A disinterested person has investigated the adoptive parents' history, physical and mental health and financial circumstances (DRL § 116[3] and more than six months have elapsed since the petitions for adoption have been filed (DRL § 116[1]. The consent to the adoption by the natural mother of Baby Girl O was finalized before this court on March 1, 1989 after she and Elaine had met and discussed the unusual circumstances of the adoptive couple. Baby Boy C's natural parents had abandoned him in the Philippines.

To complete the adoptions, both Elaine and Donald were required to appear before the court (DRL § 115[3]. The purpose of such appearance, as well as the six-month waiting period, is unclear. Since an adoption may be granted only if it is in the child's best interest (DRL §§ 114; 116), it would...