Giselle BB. v. Leon AA.

146 A.D.2d 433, 541 N.Y.S.2d 264, 1989 N.Y. App. Div. LEXIS 6565

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1989
• Status: Published

Opinions

OPINION OF THE COURT

Mahoney, P. J.

On February 27, 1984, Ricky AA. was born to Giselle BB., then 15 years old; the mother and father of the child did not marry. Eleven months later, petitioners,¹ the child’s paternal grandparents, were appointed the baby’s guardians and took physical custody. Thereafter, they commenced proceeding No. 1 by petitioning for adoption of the child. On November 20, 1985, all parties appeared in Family Court, where an agreement of adoption and consent, irrevocable consents and hearing minutes were signed by the appropriate parties and Family Court. "Immediately thereafter”, according to Family Court’s decision, "the Court became concerned as to the voluntariness of [the mother’s] consent absent the advice of counsel”. Family Court appointed a Law Guardian and adjourned the matter to give the mother an opportunity to reconsider after conferring with the Law Guardian. Apparently due to the illness and subsequent death of the Law Guardian and appointment of a replacement, the case languished for some 2Vz years, during which time the mother commenced proceeding No. 2 for custody of the child. On March 22, 1988, Family Court finally held a trial to determine the validity of the mother’s consent.

At the hearing, the parties involved testified about the circumstances surrounding the mother’s consent. Family Court determined that the consent was invalid because the mother did not understand the full import of her action, which was prompted by family pressure. Family Court concluded that the best interest of the child would be served if the child were returned to the mother. Accordingly, Family Court vacated the judicial consent, dismissed the adoption proceeding and granted custody to the mother. From the orders entered thereon, petitioners appeal.

We reverse. Domestic Relations Law § 115-b² was enacted to bring finality and certainty to adoption proceedings (Matter of Sarah K., 66 NY2d 223, 233-234, cert denied sub nom. Kosher v Stamatis, 475 US 1108). It specified that a judicial consent, which is one given in open court, became irrevocable if it recited that it was irrevocable, that no action or proceeding could be maintained for custody and that it became irrevocable upon execution or acknowledgment before a Judge or Surrogate (Domestic Relations Law § 115-b [former (1)]). It further required the court to inform the consenting party of the consequences of the consent (Domestic Relations Law § 115-b [former (2)]). Pursuant to this provision, "Where the consent is actually executed before the Family Court Judge * * * there is no revocation period at all” (Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C115-b:3, at 507; see, Matter of Sarah K., supra, at 234). But the statute does permit actions or proceedings for fraud, duress or coercion in the execution or inducement of an adoption consent (Domestic Relations Law § 115-b [7] [formerly (4)]).

In this case, there is no dispute that on November 20, 1985, the mother and Family Court signed the adoption and consent agreement, irrevocable consent and hearing minutes after Family Court advised the mother of her rights in language she undoubtedly understood. This indicates that Family Court was satisfied that the mother, at that point in time, acted voluntarily and intelligently. In accordance with the statutory scheme and interpretive case law, designed to bring certainty and finality to adoption proceedings (Matter of Sarah K., supra), this judicial consent then became irrevocable subject only to claims of fraud, duress or coercion which the dissent agrees are not satisfactorily established herein. Under such circumstances, it is our view that the consent should have remained in effect and Family Court erred in vacating it, dismissing the adoption proceeding and awarding custody to the mother.

We recognize that much of the difficulty with this case results from there being no transcript of the November 20, 1985 proceedings so that we do not know exactly what transpired to alert Family Court to the mother’s apparent misgivings or even when any such events occurred.³ Family Court’s explanation that it was alerted "immediately” after the mother’s consent, at which point a Law Guardian was appointed, adds to the ambiguity since the record reveals that the Law Guardian was not appointed until November 22, 1985, two days after the mother’s consent was given. We are adverse to disregard the clear dictate of the statute promoting finality and the undisputed evidence that the mother gave a judicially accepted irrevocable consent on the basis of facts that are not clearly established. Accordingly, we give effect to the mother’s irrevocable consent and reverse the orders.

1 . Although these parties are petitioners in proceeding No. 1 and respondents in proceeding No. 2, we shall denominate them petitioners in this decision for convenience.

2 . This statute has been amended (L 1986, ch 817, § 1) but the amendment is not applicable to consents, like the one at issue here, executed or acknowledged prior to its September 1, 1986 effective date (L 1986, ch 817, § 7). We reject petitioners’ contention that Family Court’s determination was erroneously based on the statute as amended for the passing reference to the statute as amended in Family Court’s decision cannot be read as forming the basis of its decision.

3 . Considering the consequences attendant a judicial consent, the hearing should be on the record (see, Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C115-b:3, at 507), a procedure that would have avoided much of the uncertainty confronting us.