Adoption of Baby Boy C, Matter of

• Decision Date: 15 April 1993
• Citation: 596 N.Y.S.2d 56,189 A.D.2d 382
• Parties: In the Matter of the ADOPTION OF BABY BOY C and Baby Girl O.
• Court: New York Supreme Court — Appellate Division

Page 56

596 N.Y.S.2d 56

189 A.D.2d 382

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

Supreme Court, Appellate Division,

First Department.

April 15, 1993.

Mara T. Thorpe, New York City, of counsel (Morrison Cohen Singer & Weinstein, attorneys), for petitioner-appellant.

Lawrence W. Pollack, New York City, of counsel (Phyllis B. Levitas, with him on the brief, Migdal, Pollack, Rosenkrantz & Sherman, attorneys), for petitioner-respondent.

Kevin C. Fogarty, guardian ad litem, Jamaica, on behalf of the children.

Before SULLIVAN, J.P., and ROSENBERGER, WALLACH, ROSS and RUBIN, JJ.

WALLACH, Justice.

In many private-placement adoption cases the issue is commonly whether the birth parent has given proper consent, and whether, in the best interests of the child, that consent can legally be revoked (Domestic Relations Law § 115-b[6]. Here we are presented with the apparently novel question whether the prior consent of a prospective adoptive parent can be revoked, thus nullifying the pending petition for adoption.

The legislative scheme creates a two-stage proceeding for private-placement adoptions in this state. In the first stage the court orders a thorough, independent investigation into the bona fides of the adoptive parents, as well as the history and health of the adoptive child (DRL § 116[3]. The investigation of the adoptive parents includes their marital and family status and history; their physical and mental health; their property and income; the compensatory arrangement with respect to the private placement; any complaints or proceedings against the adoptive parents involving child abuse, neglect, abandonment or delinquency; and any other relevant facts relating to their familial, social, religious, emotional and financial circumstances. After compliance has been certified, the second stage involves the actual issuance of an order of adoption to the adoptive parties before the court. At this point the key parties are to appear before the court for "examination" ( § 115[3]. However, where all the necessary documentation has been certified in the record, the court may dispense with the requirement of a personal appearance by any of the key parties, including an adoptive parent, for good cause shown ( § 115[9]. Such was the situation presented before the Surrogate herein.

Petitioners Elaine and Donald ¹ were married in 1969, she being 32 years his junior. Although they were divorced shortly thereafter, they continued to live together, and had a daughter of this union in 1972. They separated amicably in 1976, but were reunited seven years later, when Donald suffered a stroke. As Elaine nursed him back to health, Donald raised the prospect of remarriage, to which she consented only after he agreed to fulfill her desire to have more children by pursuing adoption. After the couple re-exchanged marriage vows in 1983, they acquired a townhouse in Manhattan, but Donald later had to rent a separate apartment because he still could not manage the stairs. Together, they searched the world for a suitable adoption, meeting with lawyers and visiting adoption agencies as far away as Hong Kong. Finally, in 1987 Elaine was referred to a child care agency in the Philippines, for a contact with Baby Boy C. Donald, who was in Australia at the time, gave his consent. The child was brought to the United States by Elaine in early 1988, upon Donald's petition to the Department of Justice, under the Immigration and Nationality Act (see, 8 U.S.C. § 1151[b], to classify the infant orphan as an immediate relative for whom he promised to provide care. Adoption proceedings were commenced in Surrogate's Court under the special provisions of DRL § 115-a. Baby Boy C was brought to the townhouse, and was later christened in the presence of the petitioning adoptive parents and their biological daughter and friends.

At about the same time, petitioners made contact with a pregnant woman in Philadelphia who agreed that she would place her nascent child with them for adoption. Donald agreed to pay the birth expenses, and newborn Baby Girl O was brought to New York by Elaine in June 1988.

Petitioners had purchased two contiguous apartments on Park Avenue, and were in the process of renovating. In the meantime, there was visitation between Donald and the children, although petitioners disagree over the degree of regularity of the visits. A nurse's aide residing with Donald through the fall of 1988 confirmed that Elaine would visit her husband at least once almost every day, prepare his dinner and stay with him until late in the evening. After Baby Boy C arrived, Elaine would bring the child along about three or four times a week, and after Baby Girl O arrived, she was also brought along on occasion. Donald was able to smile and wave at, and communicate briefly with, the boy, who by this time was a crawler, but his oral communications were limited due to his residual aphasia.

Petitioners' attorney spent several months preparing the formal adoption papers, and on November 21, 1988 petitioners jointly (but not in each other's presence) signed six separate documents--a five-page Petition for Adoption, a Verification, and a one-page notarized Agreement of Adoption, for each of the infants. Although Donald would later contend that he did not understand what he was signing, each of his signatures was entered, in the presence of petitioners' counsel, on a line under which was typed the words "Adoptive father". The documents were filed in Surrogate's Court two days later. Shortly thereafter, Donald refused to admit Elaine to his apartment, and the parties became estranged.

Sensing that Donald would now balk at completing the adoptions, Elaine retained her own attorney and moved to dispense with Donald's appearance at stage two. Donald then cross-moved to revoke his consent and discontinue the proceedings. When Donald then commenced a divorce action in Supreme Court, Elaine obtained an order for child support which, by appellate ruling, extended to both the adoptive children. Elaine has since been appointed temporary guardian for the children.

Before rendering her decision, the Surrogate made two important findings. First, she found that Donald had knowingly, intentionally and consensually joined...