Baby Boy C., Matter of

Decision Date14 June 1994
Parties, 638 N.E.2d 963, 63 USLW 2031 In the Matter of BABY BOY C. and Baby Girl O.
CourtNew York Court of Appeals Court of Appeals

Alan M. Dershowitz, Nathan Z. Dershowitz, Victoria B. Eiger, Amy Adelson, Michael R. Schneider, of the Massachusetts Bar, admitted pro hac vice, and Migdal, Pollack, Rosenkrantz & Sherman (Lawrence W. Pollack of counsel), for appellant.

Morrison Cohen Singer & Weinstein (Mara T. Thorpe of counsel), for respondent.

Kevin C. Fogarty, guardian ad litem, Jamaica, for Baby Boy C. and another, infants.

OPINION OF THE COURT

LEVINE, Judge:

On this appeal, we review an order of the Appellate Division granting joint adoption of two children by a married couple despite the refusal of one of the spouses to appear for examination before the Surrogate's Court in accordance with statutory requirements and his attempt to withdraw from the proceeding and revoke his agreement and consent to the adoption.

Appellant and respondent are husband and wife. They initially married in 1969, divorced shortly thereafter but continued for a time to live together. A child was born of this union in 1972. A period of physical separation followed. After appellant suffered a debilitating stroke in 1983, the couple reconciled and then entered into a second marriage in August of that year. At the time of their remarriage, appellant was 72 years old and respondent was 40. Concededly, appellant is a highly successful entrepreneur and has amassed a considerable fortune.

Over the ensuing years appellant and respondent made various joint and individual efforts to find a child for them to adopt. In early 1988, respondent was able to obtain Baby Boy C, an abandoned child, from a child care agency in the Philippines. In order to facilitate Baby Boy C's immigration to the United States, appellant executed a petition to the United States Department of Justice to classify the child as an immediate relative, in which appellant certified that he would "care for the beneficiary of this petition properly if the beneficiary is admitted to the United States".

During the same time frame that the parties were obtaining custody of Baby Boy C, respondent was put in contact with a pregnant woman in Philadelphia, Pennsylvania who wished to place her baby for adoption at birth. The woman gave birth to Baby Girl O in May 1988, appellant having paid the woman's birth expenses, and respondent brought Baby Girl O to New York City the following month.

In November, 1988, appellant and respondent filed in Surrogate's Court, New York County, joint petitions for the adoptions of Baby Boy C and Baby Girl O containing the parties' consents to adopt the children. They also submitted duly executed and acknowledged agreements of adoption. About a month later, however, appellant and respondent again became estranged. During the months that followed, the remaining statutory requirements of stage one of the private-placement adoptions of the two children were essentially fulfilled (see, Domestic Relations Law § 116[2], including the appearance and consent of Baby Girl O's biological mother (Domestic Relations Law § 115[3], the investigation and report of a disinterested person regarding the adoptive parents' history, physical and mental health and financial circumstances (Domestic Relations Law § 116[3] and the completion of the six-month waiting period from the filing of the petitions for adoption (Domestic Relations Law § 116[1].

Appellant, however, failed to appear before the Surrogate for examination in order to finalize the adoptions (see, Domestic Relations Law § 115[3] and he commenced an action against respondent for a divorce. Respondent moved pursuant to Domestic Relations Law section 115(9) to dispense with appellant's appearance for examination by the Surrogate's Court in the adoption proceeding. Appellant appeared in response to the motion and signified his unwillingness to adopt the children. In November 1990, appellant formally moved to revoke his consents and agreements of adoption and to discontinue the proceedings.

After a trial on all outstanding factual issues, Surrogate's Court rendered a decision dismissing the joint adoption petitions without prejudice to the right of respondent to commence an adoption proceeding in the future (153 Misc.2d 916, 583 N.Y.S.2d 768). The court found that, despite appellant's protestations to the contrary, he had knowingly and willingly participated in the procurement of Baby Boy C and Baby Girl O for purposes of their adoption (in accordance with representations he made to respondent to induce her to remarry him) and that he competently and intentionally executed the consents and agreements of adoption of the two children. The Surrogate also found that the children were emotionally bonded to respondent as their mother and that she was completely fit to fulfill the parental role and should retain custody in the children's best interests.

The Surrogate also found that the children would likely be prejudiced if appellant were permitted to revoke his consents and agreements of adoption in that, under Domestic Relations Law section 110 as then in effect, respondent, as an adult married person, could only adopt the children independently of her spouse if she were living apart pursuant to a judgment of separation or a formally executed separation agreement (Domestic Relations Law former § 110). Thus, the permanent status of Baby Boy C and Baby Girl O as legal children of respondent would have remained contingent upon appellant's obtaining a divorce in the contested matrimonial action pending between the parties or the parties' entering into a separation agreement. The Surrogate expressed her regret that, thus, "these children are apparently being used as bargaining chips in the pending matrimonial action" (153 Misc.2d, at 922, 583 N.Y.S.2d 768).

Nonetheless, the Surrogate felt compelled to dismiss the joint petitions. The court reasoned that, because adoption is solely a creature of statute, express statutory authorization would be required before a court could decree specific performance of an agreement of adoption against the will of a prospective adoptive parent who had a change of heart before the finalization of the adoption. The court was unable to discern any such statutory authorization for a forced adoption in Domestic Relations Law section 115(9), authorizing the court to dispense with the statutory requirement of the appearance of an adoptive parent for examination based upon a showing of good cause. The court concluded that this rather innocuous provision could not have been intended by the Legislature to cover such a momentous result as permitting a court to confer the full range of parental rights upon someone unwilling to accept, and, in this case, clearly unfit to exercise, them.

The Appellate Division reversed (189 A.D.2d 382, 596 N.Y.S.2d 56). It held, first, that appellant could not effectively exercise an absolute veto over the finalization of the adoptions of Baby Boy C and Baby Girl O by the simple expedient of refusing to make the requisite appearance before the adoption court pursuant to Domestic Relations Law section 115(3). The Appellate Division pointed to the authority granted the court under Domestic Relations Law section 115(9) to dispense with an adoptive parent's appearance "for good cause shown". The Court reasoned that whether good cause had been shown here was a factual determination in which appellant's unwillingness to proceed with the adoption was only one factor to be considered. Accordingly, the Court identified the dispositive issue here as whether an adoption court under the New York statutory scheme has the power to prevent an adoptive parent from revoking consent under the circumstances presented.

The Appellate Division found that authority to proceed with the adoptions under the foregoing circumstances exists, and should be exercised in the instant case, for two reasons. The Court found that the finalization of the adoptions would be in the children's best interests, irrespective of appellant's unwillingness to assume a parental role, because appellant's age and physical disabilities would have limited his role in any event largely to that of providing financial support. Finally, the Appellate Division concluded that appellant should be equitably estopped from revoking his consent because his words and actions resulted in irreversible changes in the positions of respondent and the children, so that "[w]ithdrawal of his commitments at this stage would redound to the detriment of both [respondent] and the children" (189 A.D.2d, at 387, 596 N.Y.S.2d 56). Accordingly, the Appellate Division reversed and granted the joint petitions for the adoption of both children.

We granted leave to appellant to consider this case of first impression. We now reverse the order of the Appellate Division and reinstate the order of the Surrogate's Court, although on different reasoning.

Initially, we note our agreement with the Appellate Division that the refusal of appellant to appear for examination pursuant to Domestic Relations Law section 115(3) was not fatal to the granting of the adoptions. Contrary to the arguments of appellant, there is nothing in the language of the statute or its legislative history to suggest that one of the purposes of the statutory requirement for the appearance of an adoptive parent for "examination" by the adoption court was to protect the rights of that person by insuring his or her continued willingness to finalize the adoption at the second stage of the private placement adoption proceeding. The statute clearly permits the requisite appearance by an adoptive parent, or for that matter, a biological parent or other person whose consent to the adoption is necessary, to occur before the second stage and during, even at an early point of, the first stage of the proceeding (see, Domestic...

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