Anonymous v. Anonymous

• Decision Date: 04 May 1981
• Citation: 108 Misc.2d 1098,439 N.Y.S.2d 255
• Parties: ANONYMOUS v. ANONYMOUS.
• Court: New York Supreme Court

Page 255

439 N.Y.S.2d 255

108 Misc.2d 1098

ANONYMOUS v. ANONYMOUS.

Supreme Court, Special Term Queens County, Part 2.

May 4, 1981.

William J. Fitzgerald, Bronx, for petitioners.

Joseph O. Giaimo, Forest Hills, for respondent.

MARTIN RODELL, Justice.

This is a habeas corpus proceeding instituted by a natural mother, wherein she seeks the return of her five month old son. After a plenary hearing, the following facts are manifest:

In midsummer 1980, the petitioner, a sixteen year old unwed high school student discovered that she was pregnant. She immediately informed her parents, with whom she resides, of her condition. On August 8, 1980, the petitioner, accompanied by her mother, went to the East Bronx Medical Group, where she was examined by a physician and her pregnancy of approximately thirty weeks was confirmed. It appears that during that visit the possibility of an adoption was discussed, and the physician said that he would inquire whether any of his patients would be interested in adopting a baby. On September 2nd of that year, the petitioner made a third visit to the Medical Group, wherein the examining physician advised that his wife's cousin was seeking a child for adoption. It appears that the physician initiated the subject of adoption and advised the petitioner that a lawyer would contact the family. Shortly thereafter, an attorney representing the respondent (adoptive father) contacted the parents of the petitioner-mother, and offered to arrange for the adoption of the petitioner's baby. Although no formal understanding was arrived at during that conversation, the attorney forwarded to the parents a letter which purportedly confirmed the petitioner's intention to place her child for adoption with the clients whom the attorney represented. In that letter was enclosed a paper bearing the legend "irrevocable consent" which was to be signed by the petitioner in the presence of the attorney.

At the hearing the attorney testified that on September 28, 1980 she called the parents to ascertain "if they were still interested," since she had her clients to think of. It came to pass that on or about October 14, 1980 the infant petitioner and her parents called at the attorney's office. The attorney testified "I told them that I was going to have this form of irrevocable consent. If petitioner signed that, this would be the basis for me to receive that baby at the hospital. I am not an adoption agency. I wanted a basis for me to be at that hospital and receive the child. I said this is the form that we use in the Surrogate Court * * * This is a form of irrevocable consent * * * you are signing this today * * * you have a right to change your mind at any time up to the point you walk into chambers * * * you can even tell the Surrogate that today you are changing your mind and you want this child back * * * when you are signing this * * * this is the basis for me to receive this child at the hospital." It appears that the petitioner did in fact sign the consent form which left blank such items as the date of birth, the sex of the child, and the child's first name. At this meeting it was agreed that the child would receive its first name from the petitioner's family, and that the child would be raised in the Catholic faith. The petitioner refused to reveal the name of the natural father to facilitate the adoption, to a point that she burst into tears and ran from the office. The parents remained to discuss the payment of the petitioner's medical bills.

On November 6, 1980 the petitioner gave birth to a son. When on November 7th, the attorney telephoned the petitioner's father to discuss the discharge of the baby, he became indignant and said he wouldn't go through with the adoption. However, on November 9th, he telephoned the attorney and told her to come to the hospital to receive the baby. During a tearful episode, the petitioner's mother delivered her grandson to the attorney, who thereupon brought the child to her clients. Subsequently the parents received a check in the sum of Twenty-Five Hundred Dollars ($2500.00) to cover medical and hospital bills. On December 17th the petitioner's father telephoned the attorney and informed her that the petitioner wished to have her son returned. The attorney insisted on a personal request and the petitioner thereupon advised the attorney of her demand. This demand was not adhered to, and the instant proceeding was instituted.

By virtue of its general equitable jurisdiction, this Court has authority to make an order or direction as to the custody and control of infants within the State. It may exercise its jurisdiction to do so either upon writ of habeas corpus or upon petition. (Finlay v. Finlay, 240 N.Y. 429, 432, 148 N.E. 624; People ex rel. Harris v. Commissioner of Welfare, 188 Misc. 919, 70 N.Y.S.2d 389.) The respondent argues that the writ must be dismissed because the question of revocation can only be decided by the Surrogate's Court, Queens County. A similar argument was raised in the case of the People ex rel. Anonymous Relator v. Anonymous Respondents, 19 Misc.2d 441, 445-446, 195 N.Y.S.2d 1009. It was determined therein that since only the Supreme Court may award custody (People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 113 N.E.2d 801), relator may invoke the broad equity powers of the Supreme Court to determine in one proceeding the question as to whether she is entitled to custody of the child, and the effectiveness of her attempted revocation of consent. The writ may not be defeated by the technical arguments which respondents advance, namely that the filing with the Surrogate's Court of relator's consent gives that consent the status of a mandate of the Surrogate's Court; that pursuant thereto, the respondents legally hold the infant, notwithstanding relator's later revocation of the consent. (See People ex rel. Anonymous v. Anonymous, 195 Misc. 1054, 91 N.Y.S.2d 591.) Furthermore, this Court is of the opinion that this proceeding was properly commenced and that the petitioners' sole remedy does not lie with section 115-b of the Domestic Relations Law. Section 115-b of the Domestic Relations Law permits a parent to revoke his consent to adoption only if it has not become irrevocable under the provisions of this section and only on giving notice in writing of such action to the Court in which the adoption proceeding has been or is to be commenced. Under paragraph (b) of subdivision 3 "if at the time of filing of the petition for adoption, or within thirty days thereafter, the court has received or shall receive such notice of revocation, the court shall promptly notify the adoptive parents * * *."

In the instant matter, the petitioners have moved for the immediate custody of the child without waiting for the "time of filing of the petition for adoption, or within thirty days thereafter" to seek immediate relief.

As to the specific merits of the petition, this Court is not convinced that we are dealing with a revocation of a valid consent. In fact, subdivision 4 of section 115-b of the Domestic Relations Law is more appropriate: " * * * nor shall this section bar actions or proceedings brought on the ground of fraud, duress or coercion in the execution or inducement of an adoption consent."

From the hearing, it is evident that on or about October 14, 1980, before there was a child to be adopted, the natural mother purportedly signed an irrevocable consent. Since there is no abandonment alleged, the consent of the child's parent is necessary for the adoption. (Matter of Livingston , 151 App.Div. 1, 135 N.Y.S. 328; Matter of Bistany, 239 N.Y. 19, 145 N.E. 70; Matter of Willing, Sur., 43 N.Y.S.2d 834; Matter of Anonymous, 60 Misc.2d 854, 858, 304 N.Y.S.2d 46.) Paragraph (c), subdivision 1, of section 111 of the Domestic Relations Law, applicable to the instant case provides: "Subject to the limitations hereinafter set forth consent to adoption shall be required as follows: (c) Of the mother, whether adult or infant, of a child born out of wedlock". Without addressing the question of a natural father's consent, as recently ruled upon in Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297, it is clear that in order for the consent to be valid ab initio, it must run from a mother of a child already born out of wedlock.

In the opinion of this Court, any consent to adoption of an unborn child is not in conformance with statute. Furthermore, subdivision 1 of section 109 of the Domestic Relations Law clearly defines " 'adoptee' shall mean a person adopted." The Court holds that for the purposes of this statute and for reasons of public policy, an unborn child was never intended to be included in the definition of a person, as enunciated in the Domestic Relations Law. It has long been held that adoption is a status created by the state; since it is entirely statutory and is in derogation of common law, the adoption statutes must be strictly construed. (Matter of Linda F. M., 95 Misc.2d 581, 409 N.Y.S.2d 638; In re Adoption of Pyung B., 83 Misc.2d 794, 371 N.Y.S.2d 993; Anonymous v. Anonymous, 15 Misc.2d 1048, 182 N.Y.S.2d 992.) Accordingly, this Court finds that the so-called consent signed by the natural mother on October 14, 1980, before the birth of the adoptee, is void ab initio.

Another basis for invalidation of the consent ab initio is that admittedly the consent form left blank such items as the date of birth, the sex of the child, and the child's first name. Such information was eventually filled in, after the birth. Case law dictates that a consent given under such circumstances must be deemed invalid on the basis of misrepresentation.

In the Matter of Adoption of Anonymous, 60 Misc.2d 854, 304 N.Y.S.2d 46, supra, the acknowledgment of the signatures was made after they were signed by a notary who did not see them, and they were not present before the notary, notwithstanding the recital to that effect in the...