Adoption of Martz, Matter of

• Citation: 102 Misc.2d 102,423 N.Y.S.2d 378
• Parties: In the Matter of the Adoption by Lorraine and Richard Robertson of Jessica MARTZ.
• Decision Date: 26 November 1979
• Court: New York Family Court

Page 378

423 N.Y.S.2d 378

102 Misc.2d 102

In the Matter of the Adoption by Lorraine and Richard Robertson of Jessica MARTZ.

Family Court, Ulster County.

Nov. 26, 1979.

David J. Freeman, White Plains, for Jonathan Lehr.

Jay L. Samoff, Ellenville, for Lorraine Robertson and Richard N. Robertson.

Robert Abrams, Atty. Gen., New York City (Robert J. Schack, Asst. Atty. Gen., New York City, of counsel).

HUGH R. ELWYN, Judge:

Jonathan Lehr, the putative father of a child named Jessica, who is the subject of this adoption proceeding, has by an order to show cause signed by a Family Court Judge of Westchester County moved for an order pursuant to section 114 of the Domestic Relations Law opening, vacating and/or setting aside an order of adoption entered in the Ulster County Family Court on March 7, 1979 on the ground of fraud and other sufficient cause and upon the grounds that section 111 and section 111-a of the Domestic Relations Law are unconstitutional in that they deny due process of law and equal protection of the law; and for a further order pursuant to section 114 of the Domestic Relations Law permitting the movant to inspect the sealed records of this court.

Chronology of the prior legal proceedings.

On or about December 21, 1978 Richard N. Robertson and Lorraine Robertson, his wife, filed a petition with this court for the adoption by Richard Robertson of Jessica Martz, his wife's natural child who was born out of wedlock on November 9, 1976.

Without notice to Jonathan Lehr, the child's putative father, who did not fall within any of the seven categories of fathers of children born out of wedlock enumerated in subdivisions (a) through (g) of subsection 2 of section 111-a of the Domestic Relations Law as persons entitled to notice of an adoption proceeding involving a child born out of wedlock, an adoption hearing was routinely scheduled to be held in this court on January 15, 1979. On that day such a hearing was held at which the only two witnesses were Richard N. Robertson, the adoptive father and Lorraine Robertson, the child's natural mother who in accordance with the requirements of Domestic Relations Law 111, subd. 1(c) readily gave her consent to her husband's application for the adoption of her out of wedlock child. The inquiry at the hearing was conducted entirely by the court and the sworn testimony of Mr. and Mrs. Robertson merely confirmed the contents of their petition which contained all of the information required to be included by Domestic Relations Law § 112, subd. 2. In addition thereto, the natural mother submitted an affidavit in which she confirmed that there was no person who was entitled to notice of the proceedings pursuant to Domestic Relations Law § 111-a.

At the conclusion of the hearing the court routinely made an order designating the Ulster County Department of Social Services as the authorized agency to make the investigation required by Domestic Relations Law § 116. Such an investigation was conducted by the Ulster County Department of Social Services and a written report of their investigation was received by the court on February 26, 1979. The report of investigation concerned itself with the natural mother and the adoptive father and the child; no contact was made with the putative father who is not identified in the report.

Although unknown to this court at the time, it now appears that on January 30, 1979, Jonathan Lehr, the putative father, filed in the Westchester County Family Court a paternity petition seeking to have himself declared to be the father of Jessica and to be awarded reasonable rights of visitation. A summons directed to Lorraine Robertson was issued by the Westchester County Family Court three weeks later on February 21, 1979 and was personally served upon her on February 22, 1979. The following Monday, February 26, counsel for Mrs. Robertson informed the court of the pendency of the Westchester County Family Court filiation proceeding and on the same day at the behest of counsel for Mrs. Robertson the court signed an order to show cause for a change of venue of the filiation proceeding returnable on March 12, 1979 before the Family Court of Westchester County. It was in this manner and at this time, February 26, 1979, that this court first learned of the putative father's asserted interest in the child, Jessica.

The motion for a change of venue was opposed by the putative father and was denied by the Family Court of Westchester County. Although the court concedes that through having signed an order to show cause for a change of venue it was aware of the pendency of the Westchester County filiation proceeding, the court nevertheless on March 7, 1979 at the behest of counsel for the adoptive parent signed a final order of adoption. On the same day, but after the order of adoption had been signed, counsel for the putative father telephoned the court to request a delay in the adoption proceeding and was informed by the court that his request came too late; the order of adoption had already been signed.

It is important to note that at the date of signing the order of adoption, the adoptive parent had complied with every requirement of Article 7 of the Domestic Relations Law; there was no person who qualified as a person entitled to notice of the proceeding under the provisions of Dom.Rel.Law § 111-a; the court had received the Department of Social Services report of its investigation as required by Dom.Rel.Law § 116 and their report of the adoptive parent was in all respects favorable. From the information I had before me I was completely satisfied that the best interests of the child would be promoted by approving the adoption. That being the case, the court was of the opinion that it had no alternative but to approve the adoption, for it is provided in section 114 of the Domestic Relations Law that "(i)f satisfied that the best interests of the adoptive child will be promoted thereby the judge or Surrogate shall make an order approving the adoption * * * ". The language of the statute is mandatory. Aside from knowledge of the putative father's belated assertion of his fatherhood in an independent proceeding in another court ¹ months after this proceeding had been commenced there certainly was no reason known to the court for disapproving the adoption.

Now by order to show cause initiated nearly four months after the adoption order was signed the putative father seeks to vacate the order of adoption because he was not given notice of the proceeding and upon the further ground that both sections 111 and 111-a of the Domestic Relations Law are unconstitutional.

The putative father's argument with respect to lack of notice.

The putative father concedes that he does not fall within any of the seven categories of putative fathers entitled to notice of an adoption proceeding involving a child born out of wedlock enumerated in subdivisions (a) through (g) of section 111-a subd. 2 of the Domestic Relations Law. He is not named as the father on the child's birth certificate (DRL § 111-a, subd. 2 (d)), nor has he ever filed a notice of intent to claim paternity of the child with the putative father registry (DRL § 111-a, subd. 2 (c)). Hence there was no statutory duty on the part of either the petitioner or the court at the time the proceeding was commenced to have given him notice of the proceeding.

The putative father argues, however, that since the mother of the child knew of his identity and that during the pendency of this proceeding and before its consummation with the signing of an order of adoption on March 7, 1979 she acquired actual notice of his asserted claim to the paternity of her child through his institution of a paternity proceeding in the Family Court of Westchester County in which she was named as the respondent, the constructive notice of the putative father's interest in his out of wedlock child provided by section 111-a of the Domestic Relations Law became irrelevant.

The court's research has revealed no reported case construing section 111-a of the Domestic Relations Law dealing with the court's responsibility to require a petitioner in an adoption proceeding involving an out of wedlock child where the mother has actual notice, as opposed to the constructive notice of a putative father's potential interest in the proceeding provided by Domestic Relations Law § 111-a. The question arises whether there may possibly be some valid analogy with the well settled construction of the real property recording act (R.P.L. § 291) that one cannot claim to be a purchaser in good faith and for value if one has actual notice of an asserted legal ownership, interest in or lien upon real property, even though the legal instrument which is the basis for the title or right is unrecorded. " * * * (T)he Recording Acts serve only as constructive notice, and where actual notice exists lose all pertinence. Real Property Law § 291." (Reed v. Barkley, 123 Misc. 635, 637, 205 N.Y.S. 803, 804).

The validity of this analogy is challenged by counsel for the adoptive father and natural mother who points out that the court's duty to require notice of an adoption proceeding involving an out of wedlock child is one imposed by statute (Dom.Rel.Law § 111-a); the putative father here did not qualify as a father entitled to notice under Section 111-a and that the court was under no duty to require the petitioner to give a notice not required by the statute. Furthermore, it is pointed out that although known to the Greek and Roman Law adoption was unknown to the common law and exists in this country only by virtue of statute. In this State an adoption can be consummated only under the conditions prescribed by statutory authority and like all statutory proceedings there must be strict observance of the statute (Matter of Fitzsimmons v. Luini, 51 Misc.2d 96, 112-113, 272 N.Y.S.2d 817, 835-836 and cases there cited; reversed on other grounds 26 A.D.2d 980).

...