Dennis T. v. Joseph C.
| Decision Date | 20 July 1981 |
| Citation | 82 A.D.2d 125,441 N.Y.S.2d 476 |
| Parties | DENNIS T. (Anonymous), et al., Respondents, v. JOSEPH C. (Anonymous), Appellant. |
| Court | New York Supreme Court — Appellate Division |
Joseph O. Giaimo, Forest Hills, for appellant.
William J. Fitzgerald, New York City (Edward P. Dean, New York City, of counsel), for respondents.
Before MANGANO, J. P., and GIBBONS, RABIN and MARGETT, JJ.
MANGANO, Justice Presiding.
On this appeal, the specific issue before us is whether a natural mother's consent to the adoption of her child was given pursuant to, and in accordance with, the procedures established by section 115-b of the Domestic Relations Law. We hold that it was not, and that it was therefore subject to the natural mother's right of unilateral revocation, and her continuing and superior right to the custody of her child.
In the summer of 1980, Lisa, a 16-year-old unwed high school student, discovered she was pregnant. After informing her parents of her condition, she consulted a physician at a local medical group, who confirmed the pregnancy. During this consultation, Lisa, who was accompanied by her mother, had a discussion with the examining physician concerning the possibility of placing her baby for adoption. The physician indicated that inquiries could be made to determine whether any of the medical group's patients were interested in adoption. At a subsequent prenatal visit, another physician at the medical group examined Lisa and discussed the issue of adoption with her mother. This physician informed Lisa's mother that he had a relative who was interested in adopting a baby and that, if agreeable, the relative's lawyer would contact her to pursue the matter. Lisa's mother agreed to this and, soon after, a lawyer contacted Lisa's parents concerning the adoption of their daughter's baby by her clients. A meeting between the lawyer, Lisa and her parents was held at the lawyer's office on October 14, 1980. At that meeting, Lisa signed a printed form entitled "Irrevocable Consent" and captioned as for an adoption proceeding in Surrogate's Court, Queens County. At its signing, the form read as follows:
It is important to note that, when signed by Lisa, the form had not been completely filled in. The first name, date of birth and sex of Lisa's then unborn child had not been entered, nor had a date for Lisa's acknowledgment before a Surrogate of her execution of this instrument. Finally, no Surrogate had signed the instrument as verifying Lisa's acknowledgment of its execution.
On signing the "Irrevocable Consent" at the October 14, 1980 meeting, Lisa was informed by the lawyer for the adoptive parents that "this would be the basis for to receive that baby at the hospital." The lawyer further stated that this was the form used in Surrogate's Court and said: "have a right to change your mind at any time up to the point you * * * can even tell the Surrogate that today you are changing your mind and you want this child back."
On November 6, 1980 Lisa gave birth to a male child. On November 9, 1980 the child, with Lisa's consent, was turned over to the lawyer for the prospective adoptive parents by Lisa's mother. The lawyer then delivered the child to her clients, one of whom was the appellant.
On December 19, 1980 the lawyer for the adoptive parents received a telephone call from Lisa, who informed her that she had changed her mind about the adoption and wanted the baby back. The lawyer asked Lisa to put her request in writing, which, apparently, was never done.
On January 8, 1981, Lisa filed an amended petition for a writ of habeas corpus in the Supreme Court, Queens County, seeking the return of her child from the custody of appellant. A writ was issued on January 9, 1981, but was dismissed without prejudice on February 11, 1981. In ordering the dismissal, Special Term concluded that the purpose of the habeas corpus proceeding was to revoke Lisa's consent to the adoption of her son. The court read the Domestic Relations Law (§ 115-b, subd. 3, par. as requiring that written notice be given to the court in which the adoption proceeding had been or was to be commenced as a condition precedent to instituting such a habeas corpus proceeding. Since the "Irrevocable Consent" form signed by Lisa clearly indicated that the adoption proceeding would be commenced in the Queens County Surrogate's Court, Special Term, before proceeding on the writ application, required that that court be given the proper notice under the statute, which had not as yet been done. Apparently, that notice was given, and, on February 17, 1981, the instant proceeding for a writ of habeas corpus was commenced. The writ was issued the following day, and, after a hearing, was sustained.
We affirm.
"Adoption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person." (Domestic Relations Law, § 110.) It is well settled that adoption was "unknown to the common law of England and exists in the States of the Union solely by force of statutes." (United States Trust Co. of N. Y. v. Hoyt, 150 App.Div. 621, 624, 135 N.Y.S. 849; see Betz v. Horr, 276 N.Y. 83, 86-87, 11 N.E.2d 548; Carpenter v. Buffalo Gen. Electric Co., 213 N.Y. 101, 104, 106 N.E. 1026; Matter of MacRae, 189 N.Y. 142, 143, 81 N.E. 956; Matter of Thorne, 155 N.Y. 140, 143, 49 N.E. 661; Matter of Landon v. Motorola, Inc., 38 A.D.2d 18, 20, 326 N.Y.S.2d 960.)
In New York, article VII of the Domestic Relations Law establishes the right of adoption, defines the persons who may adopt and prescribes the procedures to be followed. No person shall be adopted except in pursuance of this article (Domestic Relations Law, § 110), and its provisions are to be strictly construed. (Matter of Santacose, 271 App.Div. 11, 16, 61 N.Y.S.2d 1; see Matter of Landon v. Motorola, Inc., supra, 38 A.D.2d p. 20, 326 N.Y.S.2d 960.) Strict construction is required by the rules governing the interpretation of statutes in derogation of the common law. (McKinney's Cons.Laws of NY, Book 1, Statutes, § 311; Matter of Ryan, 291 N.Y. 376, 400, 52 N.E.2d 909.) Also, and more importantly, it is required by the delicate and definitive nature of the adoption proceeding, which fundamentally touches and radically alters the lives of all concerned. Precise and exacting compliance with the procedures mandated by article VII of the Domestic Relations Law is imperative. This is especially true for article VII's adoption consent procedures, which permit, and carefully safeguard, the process of informed decision-making. The integrity of this process is an absolute necessity because of the finality of adoption, the psychological and emotional needs of the parties, and the best interests of the child.
In the case at bar, the prospective adoption of the subject child was a private-placement adoption (see Domestic Relations Law, § 109, subd. 5). Special provisions relating to consents in such adoptions can be found in section 115-b of the Domestic Relations Law. Subdivision 1 of that section reads:
The statute speaks in terms of two types of consent. The first is a "judicial consent", which becomes irrevocable when executed or acknowledged before a judge or surrogate of the court in which the adoption proceeding has been, or is to be, commenced (Domestic...
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