99 Misc. 2d 129 | N.Y. Fam. Ct. | 1979
OPINION OF THE COURT
The issues before this court arose originally in a proceeding pursuant to section 1012 of the Family Court Act, on the ground that the child is neglected because of the mother’s mental retardation and emotional disturbance, that prevent
The court conducted an inquiry to determine whether or not the mother had the lucidity to know the nature and consequences of her act. The court is satisfied that she understands the purport of the instrument of surrender. The hearing took place at 3:30 p.m. on March 30, 1979. The committee did not appear at the inquiry because of another engagement. A transcript was made of the proceedings wherein the instrument of surrender was executed before this court. The committee has been afforded an opportunity to read that transcript. The committee takes no position in respect of the surrender of the child. The court informed all parties that any approval by the court of the instrument would be subject to and conditioned upon the consent of the committee. The committee has appeared before the court today.
This court is convinced that the mother, having been adjudicated an incompetent, cannot execute a binding surrender in her own behalf despite the fact that she is represented by counsel of her own choosing. CPLR 321 (subd [a]) provides that a party other than one specified in CPLR 1201 may prosecute or defend a civil action in person or by attorney. CPLR 1201 expressly specifies that "a person judicially declared to be incompetent shall appear by the committee of his
The Family Court is a court of limited jurisdiction. It has no power to approve the consent of an ajudicated incompetent in this instance. As this court stated at the outset, the testimony taken with respect to the instrument of surrender was conditioned upon the consent of the committee. This proceeding will be held in abeyance to await the decision of the Supreme Court.