Hector M. v. Commissioner of Social Services

• Court: New York Family Court
• Writing for the Court: AILEEN HAAS SCHWARTZ
• Citation: Hector M. v. Commissioner of Social Services, 102 Misc.2d 676, 425 N.Y.S.2d 199 (N.Y. Fam. Ct. 1980)
• Decision Date: 22 January 1980
• Parties: HECTOR M., Petitioner, v. The COMMISSIONER OF SOCIAL SERVICES of the City of New York and Catholic Home Bureau, Respondents. STATE of New York ex rel. MARIA M. on behalf of Maria M. and Ivan John M., Petitioner, v. The COMMISSIONER OF SOCIAL SERVICES OF the CITY OF NEW YORK and Catholic Home Bureau, Respondents. * Family Court, New York County

Page 199

425 N.Y.S.2d 199

102 Misc.2d 676

HECTOR M., Petitioner, v. The COMMISSIONER OF SOCIAL SERVICES of the City of New York and Catholic Home Bureau, Respondents.

STATE of New York ex rel. MARIA M. on behalf of Maria M. and Ivan John M., Petitioner, v. The COMMISSIONER OF SOCIAL SERVICES OF the CITY OF NEW YORK and Catholic Home Bureau, Respondents.

^*

Family Court, New York County.

Jan. 22, 1980.

Joseph Weinstein, New York City, for petitioner.

David J. Lansner, New York City, of counsel to Lloyd B. Silverman, Bronx Legal Services Corp. C., New York City, for petitioner.

Frederick J. MaGovern, New York City, for Catholic Home Bureau.

James Chubinsky, Legal Aid Society, New York City, law guardian.

OPINION

AILEEN HAAS SCHWARTZ, Judge:

The far-reaching issue in this case is the legal effect of the social worker-client relationship in the client-parent's challenge to a Social Services Law, sec. 384, surrender agreement: Does the social worker-client relationship per se mandate application of the doctrine of constructive fraud? Does the social worker-client relationship per se constitute a major factor in a cause of action sounding in actual fraud?

The facts sub judice present a troublesome and not uncommon pattern: an agency plan for adoption by particular individuals, which plan is known to the parent at the time of execution of the surrender instrument, and a subsequent change of that plan. Petitioner Hector M. and petitioner Maria M. contend that they were fraudulently induced to execute the subject instruments regarding their two children by the misrepresentation that the surrenders were for the sole purpose of adoption by the children's then foster parents, the Torreses, and would be utilized for that purpose only.

None of the four instruments reflects such limitation. In pertinent part, each instrument provides:

"I do hereby, pursuant to the provisions of Section 384 of the Social Services Law, transfer legal custody and commit the guardianship of my child to the said Commissioner of Social Services of the City of New York; . . .

" . . . I do hereby further voluntarily and unconditionally surrender my child to the Commissioner of Social Services of the City of New York, a duly authorized agency as defined in Article VI of the Social Services Law, for the purpose of placing her (or him) in a foster home for adoption, and hereby expressly empower and authorize said Commissioner or his designee to consent to the adoption of my said child above named with the same force and effect as though I consented myself, without further notice to me . . . . I understand that, by surrendering said child to an authorized agency, I relinquish all of my personal rights to my child."

The Commissioner of Social Services (hereinafter CSS) and the authorized agency directly involved, the Catholic Home Bureau (hereinafter CHB), defend on the basis of the unconditional terms of the surrender instruments and their consequent contractual rights to the children. The Law Guardian supports the position of the father but not that of the mother.

The surrender instruments constituted the culmination of efforts of CHB to formulate and to implement an alternative to indefinite foster care with the attendant deleterious effects of such status upon the two children under the circumstances. Ivan M. and Maria M. had been in the custody of CSS and the care of CHB since December 1974. Their mother had requested such aid on an emergency basis. The two children, Maria, born January 30, 1968, and Ivan, born January 12, 1969, and a younger sibling, Adam, had been in the care of their mother since the parents' separation in the latter part of 1972. At the time of their voluntary placement and consistently thereafter, the mother avowed she was unable to fulfill the obligation of caring for Ivan and Maria. She did not visit the children (only the then-foster mother testified to a few visits by the mother during the entire period involved), and she expressly abdicated her parental role to the father. The father visited the children and assumed the responsibility to plan for their future care. Several plans to that end were presented by the father including care by members of his family and a discharge to him upon the parents' divorce and his marriage to his then fianceee. Each of the plans proved unrealistic: the paternal grandparents were clearly inadequate to the task and the father's "engagement" was short-lived.

After approximately one year of assignment to the case, Mr. W.J.B. intensified CHB's endeavors to aid in effecting a resolution of the problem of the children's continuing foster care status. Mr. W.J.B. was the social worker for the parents, the foster parents and the children. Commencing in January 1976, the mother informed Mr. W.J.B. of the plan she had formulated for her future. That plan expressly excluded Ivan and Maria. At best, she explained, she could care only for Adam. Her past attempts to care for all three children had resulted in failure harmful to herself and the children. No longer would she subordinate her interests to those of the children. She planned to divorce their father and to continue her schooling to achieve a high school equivalency diploma in preparation for employment as a secretary. Mrs. M. relied totally on Mr. M. to plan for Ivan and Maria.

Contemporaneously with his discussions with the mother, the social worker also met with the father to stress the need for a viable alternative to continuing foster care. As indicated above, investigation of the father's then plans involving the paternal grandparents established their inappropriateness. Then, in April 1976, the father's plan to marry again disintegrated.

The social worker had already informed the parents of the agency's legal obligation, under the circumstances, to consider legal proceedings pursuant to Social Services Law, sec. 384-b, toward the goal of a "permanent home" for the children through adoption. Voluntary surrender was discussed with the mother. In May 1976, the mother again raised the subject of surrender and indicated a decision to so act.

The Torreses had cared for the children as foster parents since December 1974. The foster parents' relations with the father were cordial. Indeed, visitation included the Torreses home, and the father was made to feel welcome there. In March 1976, Mrs. Torres expressed a wish to adopt Maria to the social worker. During surrender discussions in June 1976, the social worker advised the mother that he would explore whether the Torreses were interested in adopting the children. On June 18, 1976, the Torreses decided to adopt both children. Once again on June 28, 1976, and then on July 16, 1976, the mother indicated her intention to surrender the children and expressed the view that adoption by the Torreses would be best for the children. Sharply contrasted with the mother's intentions, the father vehemently opposed surrender of the children and vowed to "fight" in court. Then, on August 2, 1976, the father telephoned the social worker and stated that he had met with the Torreses who had assured him of their intention to adopt the children and who had promised to permit the parents to continue to visit the children after the adoption. Mrs. Torres testified to the same effect and to a like discussion with the social worker. The father told the social worker that his decision to execute the surrender instruments was based upon those two factors. The social worker discussed surrender within the context of adoption by the Torreses and solely within that context immediately prior to execution of the instruments. Mr. W.J.B. testified that it was his function to advise the parents of the import of surrender and that he did so by explaining that the Torreses would be the new parents and that the Torreses would be able to give the children new names and everything. The clear representation was that surrender was for the sole purpose of adoption by the Torreses and the instrument would be utilized for that purpose alone.

On August 5, 1976, each parent executed a separate surrender instrument for each child, a total of four instruments.

On August 10, 1976, the Torreses executed papers evidencing their intention to adopt the two children.

The father continued to visit the children with the knowledge of CHB.

Sometime in late May or early July 1977, the Torreses decided not to adopt the children. CHB arranged a conference with the parents. Mr. M. asserted the same position as now alleged and emphasized the need to revoke the surrender instruments. Throughout periods of discussion with the CHB, he has maintained that position.

The mother did not visit the children during the period subsequent to August 5, 1976, nor did she participate in the conferences immediately following the Torreses's decision not to adopt.

The mother did not testify at the trial.

Two major questions must be addressed:

1. Is the doctrine of constructive fraud properly invoked either based upon the social worker-client relationship per se or upon all the circumstances, including the social worker-client relationship, on an ad hoc basis?

2. Has each petitioner sustained the burden of proving actual fraud in this proceeding for rescission?

Petitioner's reliance upon the doctrine of constructive fraud is misplaced. The doctrine is deeply rooted in Anglo-American decisional precedents that have delineated its protective aegis with painstaking precision. See 3 Pomeroy's Equity Jurisprudence (5th ed., 1941) secs. 922 et seq. An understanding of the doctrine, according to Professor Pomeroy, must begin with the recognition that "the term 'constructive fraud' is not a very appropriate one, but has been used so long that any attempt to substitute another in its place would be useless . . . . The distinguishing element of actual fraud . . . is always untruth . . . . Untruth is not the distinguishing element of constructive fraud . ....