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The detailed history of this adoption is discussed in a separate unpublished opinion.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. 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 (Sept. 9, 1971) the natural parents on January 7, 1972 at the Angel Guardian Home each executed a surrender instrument. 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, subd 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 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.
This proceeding by the natural parents was commenced in
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, subd 10) referred to as agency adoptions or by "private placement” (Domestic Relations Law, § 109, subd 5) referred to as private adoptions. In agency adoptions, all preliminary procedures up to the petition for adoption are governed by sections 371-392 of the Social Services Law. In private adoptions, all procedures from inception through the order of adoption are governed by article 7 of the Domestic Relations Law.
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 exe
A private placement adoption is effected by means of a written "consent” of the natúral 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, subd 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, subd 3.) Unless waived for cause, a waiting period of six months after the filing of the petition is required (Domestic Relations Law, § 116, subd 1) before the order of adoption is signed.
No statute specifically authorizes revocation of "surrender instruments” or "consents” before adoption. Section 383 of the Social Services Law 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 Dept. of Public Welfare,
In People ex rel. Scarpetta v Spence-Chapin Adoption Serv. (
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?, NYU, Aug. 6, 1971, p 1, col 4.)
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). Matter of Spence Chapin Adoption Serv. v Polk,
Revocations of "surrender instruments” were denied in the following cases. (People ex rel. Wessel v New York Foundling Hosp.,
Listed are recent decisions which permitted revocation of "consents” to private adoptions. (Matter of Anonymous,
Revocations of "consents” to private adoptions were denied in the following decisions. (Matter of Infant D,
B. RECENT STATUTORY CHANGES GOVERNING REVOCATION OF SURRENDERS AND CONSENTS
In recent years, the Legislature has begun to examine the statutes and as well the decisions of the courts governing the rights of children in the custodial care of authorized agencies. In 1969 (L 1969, ch 640) the definition of an "abandoned child” was amended to permit proceedings to free the child for adoption after six months instead of one year. In 1970 (see Social Services Law, § 392, added L 1970, ch 742; readopted in present form L 1972, ch 940) a procedure for compulsory periodic review by the Family Court of all children in foster care was adopted. That court after hearing could direct that proceedings be instituted to free the child for adoption. In the
Following the 1971 decision of the Court of Appeals in Scarpetta (
Scarpetta had repeated the social policy frequently and eloquently expressed in earlier cases (People ex rel. Kropp v Shepsky,
The same chapter (L 1972, ch 639, § 2) amended section 384 of the Social Services Law to add new subdivision 5, a short "bar” (limitation) statute: "If a duly executed and acknowledged adoption surrender shall so recite, no action or proceeding may be maintained by the surrendering parent or guardian for the custody of the surrendered child or to revoke or annul such surrender where the child has been placed in the home of the adoptive parents and more than thirty days have elapsed since the execution of the surrender * * *. This subdivision shall not bar actions or proceedings brought on the ground of fraud, duress or coercion in the execution of a surrender.”
These new provisions do not apply where the child has been "placed out” or "boarded out” solely for the purpose of temporary care. When however the child has been "placed for
The foregoing quoted statutes apply exclusively to "agency” adoptions. The same session law (L 1972, ch 693, § 3) added to the Domestic Relations Law a new section 115-b applicable to "consents” in private adoptions. Since 1966 (L 1966, ch 792, adding subdivision 4 to section 384 of the Social Services Law) an agency, in an agency adoption, could bar a surrendering parent from attacking a surrender instrument by petitioning for court approval of the surrender instrument. If the surrendering parent appeared and executed the surrender instrument before the Judge or Surrogate or failed to appear after notice, he was barred from challenging the validity of the surrender instrument "in any other proceeding.”
The Legislature by adding new section 115-b to the Domestic Relations Law made similar provision limiting the right of a natural parent to revoke a "consent” in a private adoption. If the "consent” is acknowledged before the court and the court advises the natural parent of the consequences of the consent, the consent becomes irrevocable then and there. (See, however, Matter of Anonymous,
The 1972 statutes reversed the Scarpetta holding in a further respect. That court had held that the prospective adoptive parents could not intervene in a proceeding to revoke
In summary of these recent statutes, it is obvious that the Legislature has moved in the direction of limiting or barring the rights of natural parents to revoke "surrenders” and "consents.” The Legislature has tended also to disagree with the decisional law on the "primacy of status” of the natural parents. The courts charged with responsibility in the matter on the basis of hard experience tend also to disagree. (Matter of Barbara “P”
II. AFTER ADOPTION
As previously observed, there is no authoritative decision of an appellate court or indeed of a lower court which discusses the right of natural parents to abrogate an order of adoption once made by revocation of a "surrender” or "consent” or otherwise.
Many decisions which determine such rights before adoption infer obliquely that no such right exists after adoption or if it exists it is extremely limited. Typical is the comment of Mr. Justice [later Presiding Justice] Botein in People ex rel. Grament v Free Synagogue Child Adoption Committee (
As Judge [later Chief Judge] Desmond observed in Matter of Eaton (
Domestic Relations Law (§§ 118, 118a, 118b and 118c [repealed L 1974, ch 1035, § 1]) did provide for abrogation of adoptions but only inter se, i.e., by either the adoptive parents or the adopted child or by the consent of both. As these statutes and the decisions thereunder establish cause for abrogation must relate to events subsequent to and not prior to the order of adoption (Matter of Eaton, supra; Matter of MacRae,
In 1938 (L 1938, ch 606) there was added to section 114 of the Domestic Relations Law the provision: "In like manner as a court of general jurisdiction exercises such powers, a judge or surrogate of the court in which the order of adoption was made may open, vacate or set aside such order of adoption for fraud, newly discovered evidence or other sufficient cause.”
While no expressed history of the provision is available, it is probable that it was added because of a continuing controversy whether abrogation proceedings must be brought in the Supreme Court which possessed equitable jurisdiction rather than the Surrogate’s Courts whose equitable jurisdiction over adoptions as distinguished from affairs of decedents was then doubtful. (Matter of Ziegler,
The decisions under this quoted provision of section 114 are not particularly helpful. (Matter of Bruce [Atkins],
Of greater interest in the present proceeding is People ex rel. McGaffin v Family & Children’s Servs. of Albany (2 Misc
"Despite the adoption, the petitioner argues that there is no finality to a surrender to an authorized agency, such as respondent and hence the question before this court is what is for the best interest of the child.
"With this contention this court cannot agree. That contention has merit only prior to adoption but not after adoption.* * *
"It follows that prior to an adoption, the doors of an agency, such as respondent, are not shut forever against the natural parents; that a consummated adoption is unassailable (except in those situations in which the Domestic Relations Law provides for abrogation, Domestic Relations Law, §§ 116, 117, 118) and hence the doors of respondent agency are closed forever to petitioner.” (Emphasis in original.)
The Third Department affirmed (
The natural mother then brought an action against the authorized agency to revoke the surrender agreement. The defendant agency moved for summary judgment.
The court (Mr. Justice Bookstein) noted that the gravamen of the complaint was "fraud or duress or both” directed at plaintiffs former husband. The only allegation against the defendant agency was that "in effecting the execution of the surrender agreemént, it did so hastily and without careful and thorough investigation and failed to determine whether the plaintiffs surrender agreement was a voluntary act.” (
Granting the motion for summary judgment by the defendant agency, the court found this allegation insufficient and citing People ex rel Grament v Free Synagogue Child Adop
The Third Department unanimously affirmed (
This is as close as any appellate decision approaches the determination of the issue before this court.
This court concludes that under section 114 of the Domestic Relations Law, an order of adoption may be abrogated upon petition of the natural parents only when—
1. Jurisdiction is defective in an essential predicate such as failure to obtain a "surrender” from the natural parents in an agency adoption or the "consent” in a private adoption or failure to give notice to the natural parents when their consent is sought to be dispensed with because of "abandonment.” (Domestic Relations Law, § 111.) When the court has not obtained jurisdiction, the order of adoption may be attacked collaterally as well as directly. Jurisdiction is not defective, however, for mere failure to comply with any procedures which the court would have statutory authority to waive. (Domestic Relations Law, §§ 112, 115.)
2. Fraud or deception has been practiced on the court by the petitioning adoptive parents in a private adoption or by the authorized agency in an agency adoption, to the extent that if the true facts were known to the court, it would have resulted in a dismissal of the petition and a denial of the order of adoption. Natural parents who practiced fraud or deception upon the court would be equitably estopped from seeking abrogation.
In the instant proceeding the natural parents allege that in signing the surrender agreements, they did not understand that they were consenting to the adoption of "Nicky.” There is no allegation of misrepresentation, fraud or coercion by the
In the absence of overreaching, wrongdoing or knowledge of such by the respondent Commissioner or agency, no legal basis for the abrogation of the order of adoption is stated. Summary judgment is granted.