Eric D., Matter of, 2

• Decision Date: 22 June 1990
• Docket Number: No. 2,2
• Citation: 162 A.D.2d 1051,559 N.Y.S.2d 57
• Parties: Matter of ERIC D. Appeal
• Court: New York Supreme Court — Appellate Division

Page 57

559 N.Y.S.2d 57

162 A.D.2d 1051

Matter of ERIC D.

Appeal No. 2.

Supreme Court, Appellate Division Fourth Department.

June 22, 1990.

David Michael Heim, Tonawanda, for appellant, Niagara County DSS.

Louis H. DiVincenzo, Buffalo, for appellants, Gerard F. and Mary Ellen Becker.

David A. Shapiro, Niagara Falls, for respondent.

Kathleen E. Gaines, Niagara Falls, for law guardian.

Before DENMAN, J.P., and BOOMER, PINE, BALIO and DAVIS, JJ.

MEMORANDUM:

Family Court erred in revoking the instrument by which respondent surrendered her son for adoption. The surrender had been approved by the court after respondent had received notice and been afforded an opportunity to be heard on the validity of the surrender. Accordingly, the surrender became final and respondent could not challenge the validity of the surrender in any other proceeding (see, People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., 28 N.Y.2d 185, 190-191, 321 N.Y.S.2d 65, 269 N.E.2d 787, cert. denied, appeal dismissed 404 U.S. 805, 92 S.Ct. 54, 30 L.Ed.2d 38; Social Services Law § 384[4]. Relief from that final order could be granted only upon a showing of newly discovered evidence or that the surrender was obtained by fraud, misrepresentation, or other misconduct (see, CPLR 5015[a][2], [3].

Even if the surrender had not become final, because the child had been placed in the adoptive home, the parent who surrendered the child had no right to the custody of the child superior to that of the adoptive parents, notwithstanding that the natural parent was fit and able to maintain, support, and educate the child. The custody of the child must be awarded solely on the basis of the best interests of the child with no presumption that his interests will be promoted by any particular disposition (Social Services Law § 383[6].

We reject defendant's argument that the child was not deemed to have been placed in the home of adoptive parents because the fact of such placement was not recorded in a bound volume maintained by the agency (see, Social Services Law § 384[5]. The requirement that certain information be recorded in a bound volume before a child shall be deemed to be placed in the home of adoptive parents applies only to subdivision 5 of Social Services Law § 384. The second paragraph of that subdivision clearly states: "For the purposes of this subdivision, no child * * * " (emphasis added). Thus, the requirement does not apply to subdivision 6 of section 383.

Subdivision 6 (formerly subdivision 5) of section 383 and subdivision 5 of section 384 of the Social Services Law were added by the Legislature (see, L.1972, ch. 639) in response to the controversy created by the decision in 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, which reaffirmed the right of the natural parent to the care and custody of a child superior to that of all others unless he or she had abandoned the child or was proved to be unfit (see, Ellison and Occhialino, Family Law, 24 Syracuse L Rev 513, 549-550 [1973]; Foster and Freed, Family Law, 25 Syracuse L Rev 401, 416, 417 [1973]. Subdivision 6 of section 383 removes that superior right of the mother in an action to revoke or annul a surrender agreement where the child had been placed in an adoptive home and requires that the determination be made solely in the best interests of the child.

Subdivision 5 of section 384 goes further and provides that where certain prerequisites...