Nicky, In re

• Decision Date: 25 February 1975
• Citation: 81 Misc.2d 132,364 N.Y.S.2d 970
• Parties: In the Matter of NICKY. Surrogate's Court, Kings County
• Court: New York Surrogate Court

Page 970

364 N.Y.S.2d 970

81 Misc.2d 132

In the Matter of NICKY.

Surrogate's Court, Kings County.

Feb. 25, 1975.

Louis N. Forman, New York City, for petitioners

Harold Warren, Brooklyn, for respondent The Angel Guardian Home.

Adrian P. Burke, Corp. Counsel, New York City, by Hyman Frankel, New York City, Miriam Gelband, New Rochelle, of counsel, for respondent Commissioner of Social Services of the City of New York.

NATHANIEL R. SOBEL, Surrogate.

May an order of adoption (Domestic Relations Law, § 114) be abrogated upon the petition of the natural parents? This proceeding was instituted after the child had been formally adopted. While many decisions consider the rights of natural parents Before adoption, there is no authoritative appellate decision which determines their rights After adoption.

The detailed history of this adoption is discussed in a separate unpublished opinion. Brief facts only are here noted.

'Nicky', the adopted child, was born on March 30, 1971. A few days later, on April 16, 1971, through the Police Department, the child was delivered by the parents to the Bureau of Child Welfare, Department of Social Services. There, the natural parents signed an Authorization for Foster Care (Ex. A). Social Services immediately transferred the child to the custody of the respondent, Angel Guardian Home, an authorized agency. Shortly thereafter the child was placed in a foster home. After preliminary visit from the respondent agency's case worker (9/9/71) the natural parents on January 7, 1972 at the Angel Guardian Home each executed a surrender instrument (Ex. B & C). At that stage, the child had been in a foster home for a period of eight months. The surrender instruments authorized the respondent agency to place the child for adoption and authorized the agency to consent to the adoption without further notice to the natural parents. (Social Services Law, § 384(2).) Adoption proceedings were thereafter commenced by the foster parents with whom the child had been boarded out. After the expiration of the six month period, an order of adoption was signed in December 1972 by this This proceeding by the natural parents was commenced in February 1974 (petition later amended) approximately 14 months after the order of adoption had been entered. At that stage the child had been with his adoptive parents for 34 months.

Court. At this stage the natural parents had had the child for a period of 18 days and the foster parents, who upon the entry of the order became the adoptive parents, had had the child for 20 months.

The respondents in the proceeding are the Commissioner of Social Services (Commissioner) and the Angel Guardian Home, the authorized agency ('agency') to which the child had been surrendered. The respondents have answered the petition and on the basis of the answer and accompanying affidavits have moved for summary judgment. Summary judgment is sought by the respondents in order to avoid the involvement in the proceeding of the guiltless adoptive parents and the resulting emotional trauma from fear that the child may be wrested from them.

The respondents contend principally that there is no statutory authority for the abrogation of an adoption once an order of adoption has been made. Alternatively they contend that no triable issue of fact exists upon the basis of the pleadings and the documentary and other evidentiary matter underlying the pleadings: in short that the contentions of the natural parents are not genuine but instead frivolous, based solely on a belated attack of conscience.

Each contention is treated in a separate decision.

I BEFORE ADOPTION

We discuss briefly the decisions and statutes governing 'revocation' of surrenders or consents by natural parents Before the order of adoption for whatever light these may shed on the issue of 'abrogation' of adoptions After an order has been made by a court.

Adoptions are accomplished either through an 'authorized agency' (Social Services Law, § 371(10)) referred to as agency adoptions or by 'private placement' (Domestic Relations Law, § 109(5)) referred to as private adoptions. In agency adoptions, all preliminary procedures up to the petition for adoption are governed by the Social Services Law (§§ 371--392). In private adoptions, all procedures from inception through the order of adoption are governed by the Domestic Relations Law (Art. 7).

When the adoption is accomplished through an agency it is accomplished by a 'surrender instrument,' a term applicable exclusively to agency adoptions. A surrender instrument executed by the natural parents confers care, custody and guardianship for either the purpose of 'placing out', i.e. without compensation (Social Services Law, § 371(12)) or for 'boarding out', i.e. with compensation (Social Services A private placement adoption is effected by means of a written 'consent' of the natural parents, a term used exclusively in private adoptions. Except where 'consent' is not required because the natural parents have 'abandoned' the child (Social Services Law, § 371(2); Domestic Relations Law, § 111) the 'consent' agreement will usually be executed before the court and the parents will be advised of its consequences. (Domestic Relations Law, § 115(3).) Unless waived for cause, a waiting period of six months after the filing of the petition is required (Domestic Relations Law, § 116(1)) before the order of adoption is signed.

Law, § 371(14)) or for the purpose of adoption, as the surrender instrument may provide. (Social Services Law, § 384(2).) When it is executed for the purposes of adoption, it confers, as do the surrender instruments in issue, upon the authorized agency the authority to consent to the adoption without notice to the surrendering parents. When the surrender instrument is for the purpose of adoption and the instrument so provides, the natural parents in an agency adoption do not appear before the court. As authorized by the surrender, only the agency appears and consents to the adoption. Unless the waiting period is waived for good cause, the order of adoption is not signed unless the child has been with the adoptive parents for at least six months.

No statute specifically authorizes Revocation of 'surrender instruments' or 'consents' Before adoption. Social Services Law, § 383 does provide however that a natural parent shall not be entitled to custody of a child surrendered for adoption except by an order of the court or with the consent of the Commissioner or agency to whom the child was surrendered. (People ex rel. Anonymous v. Saratoga County Department of Public Welfare, 30 A.D.2d 756, 291 N.Y.S.2d 526). No statute specifically governs revocation of 'consents' to private adoptions. However, during a private placement adoption proceeding, the court, if not satisfied with the proof, may dismiss the petition and return the child to the natural parents or place it with an authorized agency. (Domestic Relations Law, § 116(2); Matter of Hipps, 39 A.D.2d 898, 333 N.Y.S.2d 846.) Obviously, if the court has such power on its own initiative, it may do so on petition or appearance of the natural parents before or during the adoption proceedings. Courts have frequently entertained proceedings to revoke 'surrenders' and 'consents' before the order of adoption is signed without differentiation in applicable principles between agency and private adoptions.

In People ex rel. Scarpetta v. Spence-Chapin Adoption Service, 28 N.Y.2d 185, 190--191, 321 N.Y.S.2d 65, 69, 269 N.E.2d 787, 790, the Court stated:

'In New York, a surrender executed by a mother, in which she voluntarily consents to a change of guardianship and custody to an authorized agency for the purpose of adoption, is expressly sanctioned What was said by the Scarpetta Court of 'surrenders' in agency adoptions is equally applicable to 'consents' in private adoptions. (See however Foster 'Revocation of Consent to Adoption: A Covenant Running with the Child,' N.Y.L.J. August 6, 1971, p. 1, col. 4.)

by law. (Social Services Law, § 384.) The statute nowhere endows a surrender with irrevocability foreclosing a mother from applying to the court to restore custody of the child to her. In fact, the legislation is clear that until there has been an actual adoption . . ., the surrender remains under, and subject to, judicial supervision.'

A. Decisions Governing Revocation of Surrenders and Consents

Many decisions consider the revocation of 'surrender instruments' and 'consents.' Although these decisions articulate other general principles--'the primacy of the status of the natural parent'; 'the fitness, competency and ability of the natural parents to maintain, support and educate the child'; 'the best interests of the child';--a key factor in all of the decisions in which revocation has been allowed is the fact that the natural parent had 'an early change of mind' soon after the surrender or consent: Contra however where there has been long delay or equivocation and indecision on the part of the natural parents. Delay is evidence of a settled purpose to surrender the child: it is as well harmful to the well-being of the child.

Listed are those recent cases in which the courts have permitted revocation of a 'surrender instrument'; (also time within which the parent had a change of mind). (Spence-Chapin Adoption Service v. Polk, 29 N.Y.2d 196, 324 N.Y.S.2d 937, 274 N.E.2d 431 ('shortly after' surrender, Agency requested return); Scarpetta v. Spence-Chapin Adoption Service, Supra, 28 N.Y.2d 185, 321 N.Y.S.2d 65, 269 N.E.2d 787 (22 days after surrender); Matter of Overton, 44 A.D.2d 900, 356 N.Y.S.2d 387 (two weeks); People ex rel. Louisa v. Faella, 37 A.D.2d 598, 322 N.Y.S.2d 831 (30 days); People ex rel. Anonymous v. Wise Services, 21 A.D.2d 327, 250 N.Y.S.2d 507 ('less than one month'); Matter of Geiger (Handler), 6 A.D.2d 977, 176 N.Y.S.2d 689 (3 weeks).)

Revocation of 'surrender instruments' were denied in the...