In re Samuel S.

• Docket Number: 533497
• Decision Date: 06 July 2023
• Citation: 2023 NY Slip Op 03728
• Parties: In the Matter of Samuel S. and Another, Infants. Amber V., Appellant; Lindsay U. et al., Respondents.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03728

In the Matter of Samuel S. and Another, Infants. Amber V., Appellant; Lindsay U. et al., Respondents.

No. 533497

Supreme Court of New York, Third Department

July 6, 2023

Calendar Date: June 7, 2023

Thomas H. Kheel, Lansing, for appellant.

Donna C. Chin, Niverville, attorney for the child.

Andrea J. Mooney, Ithaca, attorney for the child.

Before: Lynch, J.P., Clark, Pritzker, Reynolds Fitzgerald and Fisher, JJ.

Pritzker, J.

Appeal from an order of the Family Court of Tompkins County (John C Rowley, J.), entered May 28, 2021, which, in a proceeding pursuant to Domestic Relations Law article 7, granted a motion by the attorney for the children to dismiss the petition.

In 2019, petitioner surrendered her rights to her two sons (born in 2014 and 2016) and executed a judicial consent to their adoption. In conjunction with the surrender, Family Court approved a postadoption contact agreement allowing petitioner to have monthly visits with the children, access to the adoptive parents' telephone number and address, the ability to send cards and gifts to the children and to be provided with short reports on the health, education and activities of the children, among other things. In June 2020 petitioner, pro se, filed a petition for enforcement of the contact agreement as to the older child, later amended to include both children, alleging that the pre-adoptive parents were in violation of the contact agreement by, among other things, failing to provide petitioner with their current phone number and address, obstructing all visitation and contact and failing to provide reports on the health, education and activities of the children. Based on petitioner's failure to appear for some of the hearing dates, Family Court dismissed the petition, with prejudice.

Petitioner then filed a second petition in March 2021, asking Family Court to revoke both the contact agreement and the judicial consent as to both of the children based on the pre-adoptive parents' violation of the agreement. The allegations set forth in the second petition were identical to those that gave rise to the first petition, but the relief sought was different inasmuch as petitioner sought to revoke the contact agreement and the judicial surrender, rather than just enforcement of the contact agreement. Family Court granted a motion by the attorney for the children to dismiss the second petition, finding that it was barred by res judicata and that it failed to state a cause of action inasmuch as Family Ct Act § 1055-a does not authorize the court to terminate or revoke a postadoption contact agreement, only to enforce it. Petitioner appeals from this order.

Initially, this appeal has been rendered moot as to the older child given that, in January 2023, Family Court vacated petitioner's judicial consent for adoption of this child. As such, the associated contact agreement no longer applies and the instant proceeding is moot as to the older child (see Matter of Audra Z. v Lina Y., 135 A.D.3d 1197, 1198 [3d Dept 2016]), and the exception to the mootness doctrine does not apply (see Matter of Giuseppa T. v Anthony U., 214 A.D.3d 1239, 1240 [3d Dept 2023]). Given that the judicial consent to the adoption of the younger child remains in effect, as well as the contact agreement, we address the appeal on the merits as to the younger child.

We turn first to the issue of whether the second petition is barred by res judicata. "The doctrine of res judicata gives binding effect to the...