Daniel C., Matter of
| Citation | 472 N.Y.S.2d 666,99 A.D.2d 35 |
| Parties | In the Matter of DANIEL C. (Anonymous). JAMES N.S. (Anonymous), et al., Petitioners-Respondents; v. C. (Anonymous), Respondent-Appellant, Robert Abrams, as Attorney-General of the State of New York, Intervenor-Respondent. |
| Decision Date | 30 January 1984 |
| Court | New York Supreme Court Appellate Division |
Silk & Bunks, P.C., New York City (Robert H. Silk, New York City, of counsel), for respondent-appellant.
D'Andrea & Goldstein, Mount Vernon (Robert Goldstein, Mount Vernon, of counsel), for petitioners-respondents.
Robert Abrams, Atty. Gen., New York City , intervenor-respondent pro se.
Before LAZER, J.P., and GIBBONS, THOMPSON and WEINSTEIN, JJ.
LAZER, Justice Presiding.
Following strong manifestations of public discontent with the judicial result in the notorious Baby Lenore case where a mother who revoked her consent to adoption was successful in obtaining an order for the child's return (see People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., 28 N.Y.2d 185, 321 N.Y.S.2d 65, 269 N.E.2d 787), the Legislature enacted section 115-b of the Domestic Relations Law in an effort to avoid the occurrence of similar tragic experiences in the future. Properly invoked, the new section limits the right to revoke a consent to adoption to a 30-day period and limits the revoking natural parent's remedy to a hearing to determine whether the best interests of the child would be served by return of the child or by adoption. Dissatisfied with the results of her effort to revoke her consent and to obtain the child's return, the natural mother challenges the constitutionality of section 115-b, its interpretation by the Surrogate's Court, and that court's finding that the best interests of the child will be served if he remains with the adoptive parents. We conclude that the challenge must fail.
During her sixth month of pregnancy, C, the natural mother, who was then 20 years old and unmarried, sought her obstetrician's assistance in placing the forthcoming child for adoption. The doctor contacted an interested young childless couple and preliminary arrangements for the adoption commenced. C, who was then residing with her parents and attending college in New York City, planned to leave the city, give birth, turn the child over to the adoptive parents and then return home to her parents, who were unaware of the pregnancy.
In furtherance of her plan, C retained a lawyer and on December 11, 1981, two days after the birth of her son, signed a consent to his adoption in order to permit the adoptive parents to take possession of the child. At her lawyer's office on January 20, 1982, C signed the extra-judicial consent form that she now attacks. Supplied to all Family and Surrogate's Court judges and clerks by the Administrative Board of the Judicial Conference, the consent form states on its face that it shall become irrevocable 30 days after commencement of the adoption proceeding unless revoked within that time. The form closely tracks the language of that portion of section 115-b of the Domestic Relations Law, which provides:
"Such consent shall, if it shall so state, become irrevocable thirty days after the commencement of the adoption proceeding unless written notice of revocation thereof shall have been received by the court within said thirty days" (subd. 1, par. [d], cl. [i] [L.1972, ch. 639).
The relevant portion of the consent form reads as follows:
(see 10 West's McKinney's Forms, MFL, § 14:86E [1981-1982 Supp.] ).
The adoption proceeding was instituted in the Westchester County Surrogate's Court on March 24, 1982, but six days later C filed a notice of revocation of consent which the adoptive parents immediately resisted. Acting pursuant to the statute, the Acting Surrogate conducted a hearing to determine whether the revocation was in the child's best interest (see Domestic Relations Law, § 115-b, subd. 3, par. [d] ). In her memorandum to the trial court, C urged that section 115-b be declared unconstitutional because the language it requires to be inserted in the consent form, if the right to revoke is to be limited, proffers the impression that timely revocation will nullify the consent absolutely, while all it actually directs is a hearing concerning the best interests of the child, at which the natural parent derives no advantage from parenthood (see Domestic Relations Law, § 115-b, subd. 1, par. [d] ).
During the hearing, the parties focused on best interests, an issue which consumes nearly all of the almost 500 pages of transcript. Although the constitutional question was raised, the transcript contains no claim by C that she was misled by the consent form. In the course of direct examination of C's obstetrician, counsel for the adoptive parents sought to explore C's knowledge of the meaning of the consent by inquiring concerning her conversations with the doctor. C's attorney objected to this inquiry, asserting the physician-patient privilege. Arguing for disclosure, the adoptive parents responded that the conversations sought to be disclosed did not relate to treatment but to the adoption itself. The following colloquy then occurred between the court and C's attorney:
Although counsel for the adoptive parents continued to press for exploration of the mother's understanding, arguing that C's conversations with the obstetrician included one that occurred on the day the extra-judicial consent was signed, the court continued to sustain objections on the ground that C had conceded that she had not been misled.
Testifying on her own behalf, C declared that she had read the consent form before signing it at her attorney's office; that she knew it would be filed in the Surrogate's Court and become irrevocable after 30 days; "that the adoption would not be completed until [she] signed a consent [before] the Surrogate"; that "I knew that I had a certain amount of time, even after I signed that paper"; and that "as far as I knew that an order [sic ], after the consent was filed, I had 30 days in which to revoke the consent". On cross-examination C told the court that her lawyer was present when she signed the consent form and that "he explained it to me". It is quite apparent that C's subsequent decision to revoke the consent was based in part on her parents' supportive reaction to her revelation of the child's birth.
The court denied C's application to withdraw her consent, finding that revocation would not serve the best interests of the child (see Matter of Daniel C., 115 Misc.2d 130, 453 N.Y.S.2d 572). While the Acting Surrogate recognized that a lay person "could easily infer from the language of the form that * * * the consent * * * could be revoked and upon revocation the parties would be restored to a status quo position" (Matter of Daniel C., supra, p. 133, 453 N.Y.S.2d 572), it found that C had not been misled by the form, that she had understood the consequences of her act and that she had been represented by competent counsel. Therefore, she had not been deprived of due process.
On appeal, C's new counsel makes an entirely new contention--that as a matter of judicial construction section 115-b must be found to require the consent form to inform the signer concerning the actual legal consequences of a notice of revocation. If 115-b is not interpreted to require a full explanation in the consent form, argues C, it is unconstitutional and her due process rights have been violated by use of the deceptive form. Also challenged is the Acting Surrogate's finding that revocation is not in the best interests of the child.
Before reaching our dispositive analysis, we pause briefly to describe the legislation dealing with private placement adoptions, a statutory scheme which must be strictly construed (see Domestic Relations Law, § 110; Dennis T. v. Joseph C., 82 A.D.2d 125, 441 N.Y.S.2d 476). In the Baby Lenore case, which preceded the enactment of section 115-b, the Court of Appeals construed the adoption statutes as providing the judiciary with discretion to permit revocation of adoption consents at any time until the final order of adoption (see People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., 28 N.Y.2d 185, 321 N.Y.S.2d 65, 269 N.E.2d 787, supra ). Responding to the public outcry created by Baby Lenore, the Legislature created a private placement procedure intended to limit the right to revoke consents. Section 115-b (subd. 1, par. [c] ) provides that where a consent has been executed before a Judge of the adoption court "no action or proceeding may be maintained by the consenting parent for the custody of the child to be...
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