Daniel C., Matter of
| Decision Date | 05 August 1982 |
| Citation | 453 N.Y.S.2d 572,115 Misc.2d 130 |
| Parties | In the Matter of the Adoption of DANIEL C., Adoptive Child. Surrogate's Court, Westchester County |
| Court | New York Surrogate Court |
Robert Abrams, Atty. Gen., New York City, for State.
D'Andrea & Goldstein, Mount Vernon, for Adopting Parents.
Edward Papantonio, Bronxville, for Natural Mother.
Linda S. Jamieson, Mount Vernon, Law Guardian.
LAWRENCE N. MARTIN, Jr., Surrogate.
This is a contested adoption proceeding involving a baby boy born to an unwed mother on December 9, 1981. Several months prior to the birth the mother informed her doctor that she would like to place the child for adoption in a caring Roman Catholic home. During that office visit she spoke with the attorney who continues to represent her. The doctor contacted a young childless Roman Catholic couple interested in adopting a child, and preliminary arrangements were made for the adoption. The natural mother who was a senior in college and living at home had not disclosed to her parents that she was pregnant. She had decided that before anyone in her immediate family discovered her condition, she would leave town, then have the baby, turn the baby over for adoption and return home and resume her education as though nothing had ever happened. Pursuant to this plan the prospective adoptive parents arranged for her to board with a woman who would care for her during the latter stages of her pregnancy. The prospective adoptive parents agreed to and did pay for her living expenses during this period in addition to her medical and hospital expenses. They also agreed to pay for her adoption-related legal expenses.
On December 11, 1981, the natural mother executed the first of two consents to the adoption and on December 12, 1981, the prospective adoptive parents took custody of the child and he has been living with them ever since. On January 20, 1982, the natural mother executed a second consent to the adoption, on the official Surrogate's Court form. On February 3, 1982, in response to her attorney's request she arranged for transfer of the child's birth certificate to the petitioners. On March 24, 1982, the adoption proceeding was instituted by the filing of the petition and supporting documents in the Surrogate's Court. On or about March 30, 1982, the Court received a Notice of Revocation of Adoption from the natural mother and on or about April 5, 1982, the petitioners filed a Notice of Intention to contest the revocation of consent. Issue having been joined the court communicated with the parties and they agreed to cooperate in an investigation which was then conducted by the Probation Department. The proceeding then came on for trial before the undersigned as Acting Surrogate.
The evidence adduced at trial established that the petitioners are a loving couple who are dedicated and devoted to each other and to the child. The arrival of a child in their lives was the answer to their prayers and to their dreams and there is no doubt that they have the capacity and the determination to make a fine home for the baby boy. The three of them have already established a close and loving family bond. The natural mother is a mature, intelligent, well-educated young adult who independently reached a decision to place the child for adoption. After having surrendered the child and having signed the consent forms she then disclosed all of the facts to her father and other members of her family. It was only then that she changed her mind and decided to revoke her consent. She presently resides with her parents in the family home. If the child is returned to the respondent, her mother, and her married sister who lives close by, will help to care for and raise the child in the family setting during those periods when she is away from home pursuing her education. She is a good student and upon completion of her undergraduate work she would like to continue her education and perhaps go on to law school.
Revocation of a Consent is governed by § 115-b of the Domestic Relations Law which in pertinent part provides that the court shall:
"take proof as to whether the best interests of the child will be promoted by the return of the child to the parents, or by the adoption of the child by the adoptive parents, or by placement of the child with an authorized agency for foster care with or without authority to consent to the adoption of the child, or by other disposition of the custody of the child."
The statute further provides, as if to further emphasize and resolve any possible ambiguity concerning the "best interest test" that:
The foregoing provision is virtually identical to § 383 subdivision 5 of the Social Services Law which governs agency adoptions. As pointed out by petitioners' counsel, the best interests test was recognized many years ago by the Court of Appeals in Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624 in a decision by Cardozo, J. wherein he stated at page 433, 148 N.E. 624 that in a custody proceeding the court acts as
The natural mother asserts that § 115-b of the Domestic Relations Law is not applicable in this case for the following reasons:
1. The "Irrevocable Consent" signed on January 20, 1982, is defective.
2. The statute is in violation of both the New York and the United States Constitutions in that it deprives her of her fundamental right to custody of her child without due process of law.
3. The court may not determine the best interests of the child until it first finds the natural mother to be "unfit."
In a private placement adoption such as in this case, the natural parent(s) may sign either a judicial or an extrajudicial consent. The judicial consent becomes irrevocable immediately, whereas an extrajudicial consent, if it shall so state, becomes irrevocable thirty days after commencement of the adoption proceeding. (DRL § 115-b-1). The consent executed by the natural mother is on the official form and it provides as follows:
A lay person, or for that matter even a lawyer who was not familiar with the provision of § 115-b of the Domestic Relations Law, could easily infer from the language of the form that where the Consent was not executed before a Judge it could be revoked and upon revocation the parties would be restored to a status quo position. However, the form obviously must be read in conjunction with the governing statute, and when this is done it is clear that upon revocation the child is not automatically returned to his natural parents. The natural mother asserts that when she executed the Consent she was under the impression that if she changed her mind she could still revoke it and have the child returned to her. The evidence adduced at the trial does not support her position. At the time she executed the Consent and at all stages of this proceeding she was represented by competent counsel. In fact her own personal attorney, who incidently still represents her in this proceeding, acted as notary public and took her acknowledgment on the Consent executed by her on January 20, 1982. She did not testify as to the advice which she received from her attorney or as to any questions which she asked him or any answers which he gave her prior to signing the Consent. The total absence of any testimony either by her or by her attorney with respect to this vital subject coupled with the absence of any evidence as to representations made to her by the petitioners or their attorney leads the court to conclude that there is no substance to the argument that she was misled by the language contained in the Consent. Under different circumstances, and particularly where the Consent is signed by an infant or a person not represented by an attorney, the argument would have far greater force. Since as the court stated in Dennis T. v. Joseph C., 82 A.D.2d 125, 129, 441 N.Y.S.2d 476 "The integrity of this process is an absolute necessity." The surrender of such important rights to be valid must be voluntarily, knowingly, and intelligently made. (Cf. In the Matter of Jason ZZ, Elizabeth ZZ, 79 A.D.2d 737, 434 N.Y.S.2d 759; In re Adoption of Anonymous (G), 89 Misc.2d 514, 393 N.Y.S.2d 900; Anon v. Anon, 108 Misc.2d 1098, 439 N.Y.S.2d 255.) The Official Form should be revised so as to eliminate any possibility of a natural parent being deceived on the one hand, or on the other hand being in a position to attack the Consent by claiming that he was deceived. In this case, the court is satisfied that no deception was practiced on the natural mother and that she understood the consequences of her act when she executed the Consent.
Respondent contends that DRL § 115-b deprives her of the fundamental liberty to raise her child. She relies on ...
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Daniel C., Matter of
...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 * * *......
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...App.2d 157, 163, 318 N.E.2d 544 . " 'The integrity of this [statutory] process is an absolute necessity.' " In re Adoption of Daniel C. (1982), 115 Misc.2d 130, 453 N.Y.S.2d 572, 575. Otherwise, children could be sold to the highest bidder and shuffled around like objects on an auction Appe......
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...to the natural parents before a child is irrevocably taken away from them." (Id., at p. 387, 390 N.Y.S.2d 433.) In Matter of Daniel C., 115 Misc.2d 130, 453 N.Y.S.2d 572, affd. 99 A.D.2d 35, 472 N.Y.S.2d 666, affd. 63 N.Y.2d 927, 483 N.Y.S.2d 679, 473 N.E.2d 31), while the courts concluded ......