Adoption of Baby Girl S, Matter of

• Decision Date: 04 November 1988
• Citation: 141 Misc.2d 905,535 N.Y.S.2d 676
• Parties: In the Matter of the ADOPTION OF BABY GIRL S, a Child under the Age of Fourteen Years. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 676

535 N.Y.S.2d 676

141 Misc.2d 905

In the Matter of the ADOPTION OF BABY GIRL S, a Child under the Age of Fourteen Years.

Surrogate's Court, New York County.

Nov. 4, 1988.

Miriam N. Robinson, Liddle, O'Connor, Finkelstein & Robinson, New York City, for petitioners, prospective adoptive parents, Jane and Ed S.

Burke Probitsky, Brentwood, (Joseph T. Gatti, New York City, of counsel), for respondent, natural father, Gustavo R.

Mary A. Clarke, (George A. Terzian, of counsel), New York City, for respondent, natural mother, Regina S.

Kevin C. Fogarty, St. John's University School of Law, Jamaica, Guardian ad Litem for Baby Girl S.

RENEE R. ROTH, Surrogate.

(The facts in this case have been abbreviated for purposes of publication.)

At issue in this contested proceeding is whether the private placement adoption of "Baby Girl S" can be granted without the consent of her unwed father.

The prospective adoptive parents (Jane and Ed) contend that the consent of the father (Gustavo) is not necessary because he does not meet the criteria of DRL § 111(1)(e). Gustavo, on the other hand, claims that the adoption proceeding must be dismissed because (1) this court lacked jurisdiction to entertain the proceeding since there were pending in the Family Court, Suffolk County, consolidated proceedings to determine his paternity and his right to custody of the infant and (2) Jane and Ed, both practicing attorneys, committed a fraud upon this court by failing to disclose Gustavo's identity as the father of the infant in their petition to adopt her. In the alternative, Gustavo asks the court to find that DRL § 111(1)(e) is unconstitutional to the extent that it purports to deprive him of his rights as a parent.

The background relevant to this decision follows.

On May 4, 1988, Jane and Ed commenced a proceeding in this court to adopt Baby Girl S, born April 24, 1988. Included among the papers filed with the court were the extrajudicial consents of the natural mother (Regina) and her estranged husband (Mr. S).

On May 18, 1988, Regina appeared before this court to place on the record her irrevocable consent to the adoption of her daughter. When asked to identify the father of her child, Regina replied: "My husband at the time". She further stated in her testimony and in her extrajudicial consent that she placed her daughter with Jane and Ed after she answered a "personal newspaper ad placed by petitioners [Jane and Ed] in the Long Island Sound".

Less than a month later, on June 15, 1988, this court was informed that a proceeding to establish Gustavo's paternity of Regina's unborn child had been pending in the Family Court, Suffolk County since March 1988.

The proceedings in the Family Court follow.

On March 2, 1988 (53 days before the birth of Baby Girl S), Gustavo filed a petition to establish his paternity and obtain custody of his and Regina's unborn child. Process issued by the court (Family Ct. Act § 524), returnable on April 13th, was adjourned to May 13th because its service on Regina was claimed by her counsel to be improper. On May 6th, Regina was served again with an order to show cause that restrained her "from removing or causing the removal of said child from Suffolk County".

Counsel for Regina and Gustavo next appeared in the Family Court on May 13th. Regina's lawyer omitted to advise Judge Simon that she had given birth on April 24th or that the infant had been placed for adoption in New York County. Judge Simon continued his prior restraining order and adjourned the matter to June 9th (during this period, Regina appeared in this court to place her consent to the adoption on the record). On June 9th, counsel appeared again in the Family Court. Judge Simon and Gustavo were then finally told that Regina had given birth. The judge directed Regina to appear with the baby on June 14th, on which date she disclosed that she had surrendered the baby for adoption. On the same day, Gustavo filed with the Putative Father Registry and the following day Gustavo's attorney informed this court about the paternity and custody proceedings.

This court thereupon appointed a guardian ad litem, Kevin C. Fogarty, to represent Baby Girl S and a trial on the issue of paternity was scheduled for July 18, 1988. On the morning of trial, Regina by new counsel submitted an affidavit in which she stated her "wish to correct the testimony that I gave before Surrogate Roth on May 18, 1988" with respect to the identification of her husband as the father of Baby Girl S. She also stated that the attorney for Jane and Ed, David H. Verplank, advised her to give the "mistaken" responses she gave in her testimony.

Based upon the overwhelming proof, Gustavo was determined to be the father of Baby Girl S (Matter of "Baby Girl S", 140 Misc.2d 299, 532 N.Y.S.2d 634) and a hearing was scheduled to determine his rights in the adoption proceeding. When court convened for this trial, Regina's counsel announced that her client wished to revoke her consent to the adoption and to either take custody of Baby Girl S or give custody to Gustavo. Regina's counsel stated that she could no longer represent Regina because her fee was being paid by Jane and Ed. Counsel from the 18-B panel (County Law art. 18-B) were appointed for Regina and the trial finally commenced on September 29, 1988. All the parties testified.

Regina corroborated the testimony Gustavo had given at the paternity hearing. When Regina told Gustavo in late August 1987 that she had missed her menstrual period, he said: "I love you and want to marry you". Regina answered: "You are going too fast; we need more time and more money and have to get to know each other". Regina was also concerned that her pregnancy would create problems in her divorce proceeding and might cause her to lose custody of her 9 year old son.

Regina confirmed that she thereafter told Gustavo that she was not pregnant and terminated their relationship. In early October, Regina consulted David H. Verplank, an attorney. Verplank told her that he knew of a professional couple who had already adopted a boy who was part Hispanic. He subsequently gave her Jane and Ed's unlisted telephone number.

Regina and Jane spoke for the first time on December 2, 1987. The manner in which the parties learned about each other is significant. Although Regina testified at her consent hearing on May 18, 1988 that she learned about Jane and Ed from an advertisement in the "Long Island Sound", she stated at this trial that on her way to court on May 18th Verplank advised her: "If the Judge asks you how you learned about Jane and Ed, just say you saw an ad in the Long Island Sound because I'm not supposed to be the go between" (see, Social Services Law § 374[2], [6]; § 389[2] ).

During his testimony, Ed said that in early November he and Jane had installed an unlisted telephone number and included it in an advertisement stating their desire to adopt an infant which appeared in the Suffolk Life Newspapers on November 18th and 25th. Ed testified that he discussed with Verplank the installation of a private number and the advertisement but invoked the attorney-client privilege when asked for details of the discussion.

Gustavo was informed of Regina's pregnancy in early January 1988 in a telephone call from a friend. He thereupon called Regina who confirmed her pregnancy but insisted he was not the father. During their conversation, she said that she was going to give the baby up for adoption but Gustavo begged her not to and said he wanted the child. Gustavo thereafter went to see Regina in person. He told her that he loved her and that he had $8,000 to help pay for her expenses. Regina said she screamed at him that the baby wasn't his.

On January 29th, Gustavo retained an attorney who filed the Family Court applications on March 2, 1988. Regina was served by mail with a summons and verified petition (the paternity papers) about April 10th. She immediately called Verplank who instructed her to bring the papers to his office. Shortly thereafter, Regina spoke to Jane about the paternity papers. Regina testified: "I read the papers to her" and "discussed each allegation". Jane, on the other hand, alleges that Regina said: "I received papers--they're all lies" and became hysterical. Jane said she advised Regina: "Get them to your lawyer right away". On cross-examination, Jane admitted that Regina had said she had received "legal papers from Gus" and had read to her some of the allegations. She further stated that Regina said: "I have to go into court in two days (April 13th), I can't go into court--my doctor won't let me". Regina also testified that during a subsequent conversation with Jane, she also spoke to Ed and asked what he thought about "the latest Gus issue". According to her, Ed replied: "I'm not too concerned; with three lawyers working on it I'm sure we can mastermind something". Ed denies this conversation.

On April 27th, three days after she had given birth to Baby Girl S, Regina received from Verplank the form to consent to the adoption of her daughter. Verplank told her to use her maiden name when she signed her consent so that Gustavo would be prevented from finding out about the adoption if he filed with the Putative Father Registry. Subsequently, Verplank told Regina that she was required to appear in this court on May 18, 1988 to consent to the adoption, that he had arranged to have an attorney represent her at that hearing and that she should not tell the attorney anything about Gustavo or the paternity proceeding.

We turn now to the testimony of Jane and Ed, the prospective adoptive parents.

Ed testified that Jane told him in early April that Regina had received legal papers from Gus. Ed said that he had discussed these papers with Verplank a few days later but invoked the attorney-client privilege when asked for the details of their conversation.

Jane testified that "Regina told me Gus was the father". She...