People ex rel. Scarpetta v. Spence-Chapin Adoption Service

• Decision Date: 07 April 1971
• Docket Number: SPENCE-CHAPIN
• Citation: 321 N.Y.S.2d 65,269 N.E.2d 787,28 N.Y.2d 185
• Parties: , 269 N.E.2d 787 The PEOPLE of the State of New York ex rel. Olga SCARPETTA, on Behalf of Baby Scarpetta, Respondent, v.ADOPTION SERVICE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 65

321 N.Y.S.2d 65

28 N.Y.2d 185, 269 N.E.2d 787

The PEOPLE of the State of New York ex rel. Olga SCARPETTA on Behalf of Baby Scarpetta, Respondent, v. SPENCE-CHAPIN ADOPTION SERVICE, Appellant.

Court of Appeals of New York.

April 7, 1971.

Roy L. Reardon and James Wawro, New York City, for appellant.

Joseph Zalk, New York City, for respondent.

Jacob D. Fuchsberg, Joseph Spencer and Irving Lemov, New York City, for Nick F. De Martino and Jean De Martino, amici curiae.

Aaron Britvan, Arthur Friedman and Robert Monsour, New York City, for Adoptive Parents Committee, Inc., amicus curiae.

Helen L. Buttenwieser and Shad Polier, New York City, for Child Welfare League of America, Inc. and Community Council of Greater New York, amici curiae.

JASEN, Judge.

This appeal involves the return of an out-of-wedlock infant to its natural mother after she had executed a purported surrender of the child to an authorized adoption agency. The case does not involve the undoing of an adoption or the return of an adopted child to its natural parent. Nor does the case involve the undoing of a surrender by the natural mother on her mere say-so, but rather the undoing is based on a finding of fact that for various reasons, some obvious, the surrender was not made by her with such stability of mind and emotion that the surrender should not be undone for improvidence. On the other hand, there is not the slightest suggestion that the adoption agency was unfair or guilty of any overreaching in obtaining the surrender.

It is or should be obvious that the surrender of a child by its parent, whatever the circumstances or reason, has elements of tragedy in it and that pain, feelings of guilt, and suffering will not be avoided whatever course is taken. And, of course, the foster parents who hope to adopt the child are necessarily touched by the tragedy, guiltless and otherwise uninvolved though they be, if perchance the child is wrested from them on the annulling of a surrender.

A further consideration turns on this court's limited power of review. Where, as here, findings of fact are affirmed by the Appellate Division in a civil matter, the court is bound, by constitutional mandates, to accept those facts. Only questions of law are left for its review. As a consequence, any findings of fact involved in the rendering of the surrender, turning on the mother's then state of mind, or on her fitness to rear her child, are before this court as immutable premises, from which it may only start its review of the applicable questions of law.

The infant child was born on May 18, 1970, to Olga Scarpetta, who was unmarried and 32 years old. She had become pregnant in her native Colombia by a married Colombian in the summer of 1969. Seeking to minimize the shame of an out-of-wedlock child to herself and her family, Miss Scarpetta came to New York for the purpose of having her child. She was well acquainted with this country and its language. She had had her early schooling in New Jersey and her college education in California. Indeed, she had been trained in the social sciences.

Four days after the birth of the child, she placed the infant for boarding care with Spence-Chapin Adoption Service, an agency authorized by statute to receive children for adoption. Ten days later, a surrender document was executed by Miss Scarpetta to the agency, and on June 18, 1970, the baby was placed with a family for adoption. Five days later, on June 23, 1970, the mother repented her actions and requested that the child be returned to her.

After several unsuccessful attempts to regain her child from the agency, the mother commenced this habeas corpus proceeding. Before the surrender, the mother had had a number of interviews with representatives of the adoption agency. On the other hand, shortly before or after the birth of the child, her family in Colombia, well-to-do, and devout in their religion, were shocked that she should put out her child for adoption by strangers. They assured her of their support and backing and urged her to raise her own child.

Special Term, '(a)fter considering all the facts,' concluded 'that the child should be forthwith returned to petitioner, its natural mother.' Following unanimous affirmance by the Appellate Division, 36 A.D.2d 524, 317 N.Y.S.2d 928, we granted leave to appeal, 28 N.Y.2d 658, 320 N.Y.S.2d 527, 269 N.E.2d 196.

The resolution of the issue of whether or not a mother, who has surrendered her child to an authorized adoption agency, may regain the child's custody, has received various treatment by the legislatures and courts in the United States. ¹ At one extreme, several jurisdictions adhere to the rule that the parent has an absolute right to regain custody of her child prior to the final adoption decree. ² On the other hand some jurisdictions adhere to the rule that the parent's surrender is final, absent fraud or duress. ³ The majority of the jurisdictions, however, place the parent's right to regain custody within the discretion of the court ⁴--the position which, of course, our Legislature has taken. The discretionary rule allows the court leeway to approve a revocation of the surrender when the facts of the individual case warrant it and avoids the obvious dangers posed by the rigidity of the extreme positions. ⁵

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 by law. (Social Services Law, Consol.Laws, c. 55, § 384.) ⁶ 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, ⁷ or the agency has met the requirements of the Social Services Law (§ 384, subd. 4), ⁸ the surrender remains under, the subject to, judicial supervision.

Inherent to judicial supervision of surrenders is the recognition that documents of surrender are unilateral, not contracts or deeds, and are almost always executed under circumstances which may cast doubt upon their voluntariness or on understanding of the consequences of their execution. Indeed, no one could reasonably urge that the Legislature enact a statute or that a court decide that the natural mother be prevented from establishing that her surrender was not the voluntary act of a competent person. Of necessity, therefore, there is always an issue about the fact of surrender, document or no document. On the other hand, the courts have the strongest obligation not to permit surrenders to be undone except for the weightiest reasons. And, to reflect such a view, 'the legislature has gone to great pains to circumscribe, in connection with adoption, the rights of parents who have surrendered their child to an authorized agency, and * * * has gone to equal pains to define their rights to custody prior to adoption. The related statutes, which are at least presumptively an embodiment of the social judgment and conscience of the community, form a well-integrated, compact and uncomplicated procedure, which bears the impress of careful thought and intelligent planning.' (People ex rel. Grament v. Free Synagogue Child Adoption Committee, 194 Misc. 332, 336, 85 N.Y.S.2d 541, 544.)

Having the power to direct a change of custody from the agency back to the natural parent, notwithstanding the document of surrender, the court should exercise it only when it determines 'that the interest of such child will be promoted thereby and that such parent is fit, competent and able to duly maintain, support and educate such child.' (Social Services Law, § 383, subd. 1.) ⁹ Accordingly, the sole issue before us on this appeal is whether there is any evidence in the record to establish that the interest of the child will be promoted by returning the child to the natural mother.

It has repeatedly been determined, insofar as the best interests of the child are concerned, that '(t)he mother or father has a right to the care and custody of a child, superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood.' (People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 468, 113 N.E.2d 801, 803; see People ex rel. Anonymous v. Anonymous, 10 N.Y.2d 332, 335, 222 N.Y.S.2d 945, 946, 179 N.E.2d 200, 201; People ex rel. Portnoy v. Strasser, 303 N.Y. 539, 542, 104 N.E.2d 895, 896; People ex rel. Beaudoin v. Beaudoin, 193 N.Y. 611, 86 N.E. 1129, affg. 126 App.Div. 505, 110 N.Y.S. 592; Matter of Livingston, 151 App.Div. 1, 7, 135 N.Y.S. 328, 332; cf. Matter of Gustow, 220 N.Y. 373, 115 N.E. 995.) It has been well said that 'the status of a natural parent' is so important 'that in determining the best interests of the child, it may counterbalance, even outweigh, superior material and cultural advantages which may be afforded by adoptive parents * * * For experience teaches that a mother's love is one factor which will endure: possibly endure after other claimed material advantages and emotional attachments may have proven transient.' (People ex rel. Grament v. Free Synagogue Child Adoption Committee, Supra, 194 Misc. at pp. 337--338,85 N.Y.S.2d p. 546.) And, indeed, as recently as 1963, the Legislature expressed its approval of this 'decisional rule that between parent and non-parent the parent is preferred'. (Report of Joint Legislative Committee on Matrimonial and Family Laws, N.Y.Legis.Doc., 1963, No. 34, p. 91.)

The primacy of status thus accorded the natural parent is not materially altered or diminished by the mere fact of surrender under the statute, although it is a factor to be considered by the court. To hold, as the agency suggests--that a surrender to an authorized adoption agency constitutes, as a matter of law, an abandonment--would frustrate the policy underlying our legislation (Social...