Sarah K., Matter of
| Decision Date | 19 August 1985 |
| Citation | 492 N.Y.S.2d 957,110 A.D.2d 18 |
| Parties | In the Matter of SARAH K. (Anonymous). Timmy S. (Anonymous), et al., Appellants-Respondents; Warren K. (Anonymous), et al., Respondents-Appellants; Robert Abrams, Attorney-General, Intervenor-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Frederick J. Magovern, New York City (Peter B. Skelos, Rockville Centre, and Diane C. Pfirrman, New York City, on the brief), for appellants-respondents.
Sherman Thompson & Halpin, New York City (John E. Halpin, Katherine G. Thompson and Elizabeth M. Barnett, New York City, of counsel), for respondents-appellants.
Robert Abrams, Atty. Gen., New York City (Maryellen Weinberg, Robert J. Schack and Florence E. Abrams, New York City, of counsel), intervenor-respondent pro se in support of the constitutionality of Domestic Relations Law § 115-b.
Before MANGANO, J.P., and BROWN, O'CONNOR, WEINSTEIN and LAWRENCE, JJ.
MANGANO, Justice Presiding.
The primary question to be resolved on the instant appeals is whether the extrajudicial consent to an adoption, made by the natural parents of the child, was a valid and effective one. The question must be answered in the negative. In my view, Domestic Relations Law § 115-b, pursuant to which the form upon which the natural parents gave their extrajudicial consent was promulgated, is unconstitutional on its face, insofar as it fails to require that such an extrajudicial consent form to an adoption advise the natural parents that even if they timely revoke their extrajudicial consent to the adoption, as allowed by statute, the child will not necessarily be returned to them, but may be subject under certain circumstances, to a judicial determination of custody based on a "best interests" test. Since the extrajudicial consent form executed by the natural parents in the case at bar did not so advise them, their consent given on that form cannot stand and must be declared null and void. Accordingly, the infant must be returned to her natural parents.
At the outset we must dispose of a procedural problem. The adoptive parents have appealed, as limited by their brief, from so much of an order of the Family Court, Suffolk County, dated September 24, 1984, as deemed a notice of revocation of an extrajudicial consent to an adoption, signed by the natural parents of the infant in question, to have been timely given. The natural parents have cross-appealed, as limited by their brief, from so much of the same order as, upon considering their notice of revocation of their consent to the adoption to have been timely given, failed to direct that the child be returned to them forthwith and instead directed that a hearing be held to determine whether her best interests required that she be returned to her natural parents or that the adoption petition be approved.
The appeal and cross appeal from the order dated September 24, 1984, must be dismissed because no appeal lies as of right from a nondispositional order of the Family Court (Family Ct.Act § 1112). The issues raised on that appeal and cross appeal are brought up for review and have been considered on the appeal by the natural parents from the dispositional order of the Family Court, dated November 7, 1984, which refused to give effect to the notice of revocation of consent filed by the natural parents and, in effect, granted the adoption petition (see, Family Ct.Act § 1112; CPLR 5501).
Warren and Christine K. are the natural parents of a girl, Sarah, who was born on November 6, 1983, with the condition known as Down's Syndrome. They decided to give the child up for adoption and her physical transfer was made on November 11, 1983. Toward the end of November 1983, the natural parents executed two separate consent forms to the adoption. The first was a judicial consent form, which pursuant to statute (Domestic Relations Law § 115-b), and its terms, becomes operative and "irrevocable" only when "executed or acknowledged before a judge or surrogate of the court in which the adoption proceeding is to be commenced " (emphasis supplied). The second was an extrajudicial consent form which pursuant to statute (Domestic Relations Law § 115-b), and its terms, is operative immediately and becomes irrevocable "thirty days after the commencement of the adoption proceeding unless written notice of revocation thereof shall have been received * * * within said thirty days " (emphasis supplied).
Both consent forms contained the following language which was added at the request of the natural father who is an attorney:
"We came to our decision to place our baby for adoption because of her Down's Syndrome condition and our belief that the petitioners are far more capable of dealing with this condition and raising the child than we are."
On December 19, 1983, an adoption proceeding was commenced on behalf of the adoptive parents in the Family Court, Suffolk County. However, the natural parents first received notice of the adoption proceeding between January 23 and January 25, 1984, more than 30 days after its commencement, when their attorney received notice from the Suffolk County Family Court that the petition for adoption had been filed and that a hearing on the petition for adoption would be held on March 1, 1984.
Toward the end of February 1984, the natural mother made certain inquiries and did research into the subject of Down's Syndrome. Both she and her husband decided to revoke their consents to the adoption. On February 29, 1984, they forwarded a revocation of consent form which was received by the court on March 2, 1984. The court hearing, scheduled for March 1, 1984, was canceled.
The natural parents argued in Family Court that Domestic Relations Law § 115-b is unconstitutional on its face in that it (1) fails to require that they be given notice as to when the 30-day revocation period begins and (2) fails to require that they be informed of all the consequences of timely revocation of an extrajudicial consent to an adoption, to wit, that if the adoptive parents oppose the timely revocation of an extrajudicial consent, the child is not immediately returned to the natural parents but rather a "best interests" hearing is held at which the natural parents do not have any superior right to the custody of the child (Domestic Relations Law § 115-b).
In addition, the natural parents argued before the Family Court that by virtue of their simultaneous execution of both an extrajudicial and judicial consent form to the adoption they became confused and assumed that (1) the judicial consent form was the controlling form and (2) their consent to the adoption was therefore "tentative" or inoperative, until they appeared at a hearing before the appropriate Surrogate or Family Court Judge.
The Family Court rejected the natural parents' constitutional attacks on the statute on the ground that they were not aggrieved by either of the two alleged defects in the statute. In this regard, the Family Court held that (1) the natural parents had failed to comply with the 30-day provision of the statute even after they actually received notice of the adoption hearing ( relying upon, Matter of Anonymous, 55 A.D.2d 383, 390 N.Y.S.2d 433) and (2) the record indicated that the natural parents would have executed the extrajudicial consent form even if they had been advised of all the consequences of a timely revocation of their consent given on that form.
With respect to the natural parents' argument that they were confused by the simultaneous execution of both an extrajudicial and a judicial consent form to the adoption, the Family Court did not accept this argument in toto. However, it did hold that the simultaneous execution of both consent forms had the effect of confusing them with respect to the time period within which their extrajudicial consent to the adoption could be revoked. Specifically, the Family Court was of the view that the natural parents could reasonably have believed that they had until March 1, 1984, the day of the hearing on the adoption, to revoke their extrajudicial consent. Accordingly, to remedy what it perceived as a denial of due process to the natural parents, the Family Court treated their revocation of their extrajudicial consent as timely and afforded the natural parents a "best interests" hearing as mandated by the statute (Domestic Relations Law § 115-b).
At the conclusion of the hearing, the Family Court held that the "best interests" of the child would be served if she were adopted by the proposed adoptive parents.
In reaching its conclusion, the Family Court implicitly recognized the distinction between an extrajudicial and a judicial consent to an adoption when it held that the confusion of the natural parents was limited solely to the question of the time that they had to revoke the extrajudicial consent form. Indeed, I have no quarrel with the holding of the Family Court on this particular aspect of the case.
Nevertheless, I am of the view that the Family Court erred in rejecting, on the basis of standing, the natural parents' constitutional attack on the statute's failure to require that the extrajudicial consent form advise them of all the consequences of a timely revocation of their consent given on that form. In rejecting this attack on the statute, the Family Court relied on the decision of this court in Matter of Daniel C., 99 A.D.2d 35, 412 N.Y.S.2d 666 affd 63 N.Y.2d 927, 483 N.Y.S.2d 679, 473 N.E.2d 31. In Matter of Daniel C. the natural mother argued that (1) "as a matter of judicial construction section 115-b must be found to require the consent form to inform the signer concerning the actual legal consequences of a notice of revocation" and (2) if the statute was not so construed, it was unconstitutional and deprived the natural parents of due process by sanctioning the use of the "deceptive form" (Matter of Daniel C., 99 A.D.2d 35, 39, 472 N.Y.S.2d 666 supra ).
The majority...
To continue reading
Request your trial
-
Sarah K., Matter of
...that the Appellate Division order returning Sarah to them should therefore be reversed and the petition for adoption granted. 110 A.D.2d 18, 492 N.Y.S.2d 957. I The pertinent facts found by Family Court are as follows. Sarah was born November 6, 1983 to respondents, Warren and Christine K. ......
- Adoption of Sarah K., Matter of