In re Daniel C.

99 A.D.2d 35, 472 N.Y.S.2d 666, 1984 N.Y. App. Div. LEXIS 16520
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 30, 1984
StatusPublished
Cited by45 cases

This text of 99 A.D.2d 35 (In re Daniel C.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Daniel C., 99 A.D.2d 35, 472 N.Y.S.2d 666, 1984 N.Y. App. Div. LEXIS 16520 (N.Y. Ct. App. 1984).

Opinions

[36]*36OPINION OF THE COURT

Lazer, J. P.

Following strong manifestations of public discontent with the judicial result in the notorious Baby Lendre case where a mother who revoked her consent to adoption was successful in obtaining an order for the child’s return (see People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185), the Legislature enacted section 115-b of the Domestic Relations Law in an effort to avoid the occurrence of similar tragic experiences in the future. Properly invoked, the new section limits the right to revoke a consent to adoption to a 30-day period and limits the revoking natural parent’s remedy to a hearing to determine whether the best interests of the child would be served by return of the child or by adoption. Dissatisfied with the results of her effort to revoke her consent and to obtain the child’s return, the natural mother challenges the constitutionality of section 115-b, its interpretation by the Surrogate’s Court, and that court’s finding that the best interests of the child will be served if he remains with the adoptive parents. We conclude that the challenge must fail.

I

During her sixth month of pregnancy, C., the natural mother, who was then 20 years old and unmarried, sought her obstetrician’s assistance in placing the forthcoming child for adoption. The doctor contacted an interested young childless couple and preliminary arrangements for the adoption commenced. C., who was then residing with her parents and attending college in New York City, planned to leave the city, give birth, turn the child over to the adoptive parents and then return home to her parents, who were unaware of the pregnancy.

In furtherance of her plan, C. retained a lawyer and on December 11, 1981, two days after the birth of her son, signed a consent to his adoption in order to permit the adoptive parents to take possession of the child. At her lawyer’s office on January 20, 1982, C. signed the extrajudicial consent form that she now attacks. Supplied to all Family and Surrogate’s Court Judges and clerks by the Administrative Board of the Judicial Conferences, the [37]*37consent form states on its face that it shall become irrevocable 30 days after commencement of the adoption proceeding unless revoked within that time. The form closely tracks the language of that portion of section 115-b of the Domestic Relations Law, which provides: “Such consent shall, if it shall so state, become irrevocable thirty days after the commencement of the adoption proceeding unless written notice of revocation thereof shall have been received by the court within said thirty days” (Domestic Relations Law, § 115-b, subd 1, par [d], cl [i] as added by L 1972, ch 639).

The relevant portion of the consent form reads as follows: “I, _, residing at _, natural [Mother] [Father] of_do hereby irrevocably Consent to the Private Placement Adoption of my [daughter] [son] _, born__I understand that in the event that this Consent is not executed before a Judge of the_Court, of the County of _, then and in that event this Consent shall become irrevocable thirty days after the commencement of the adoption proceedings unless written notice of revocation thereof shall be received by this Court within said thirty days” (see 10 West’s McKinney’s Forms, Matrimonial and Family Law, § 14:86E [1983 Pocket Part]).

The adoption proceeding was instituted in the Westchester County Surrogate’s Court on March 24, 1982, but six days later C. filed a notice of revocation of consent which the adoptive parents immediately resisted. Acting pursuant to the statute, the Acting Surrogate conducted a hearing to determine whether the revocation was in the child’s best interest (see Domestic Relations Law, § 115-b, subd 3, par [d]). In her memorandum to the trial court, C. urged that section 115-b be declared unconstitutional because the language it requires to be inserted in the consent form, if the right to revoke is to be limited, proffers the impression that timely revocation will nullify the consent absolutely, while all it actually directs is a hearing concerning the best interests of the child, at which the natural parent derives no advantage from parenthood (see Domestic Relations Law, § 115-b, subd 1, par [d]).

During the hearing, the parties focused on best interests, an issue which consumes nearly all of the almost 500 pages [38]*38of transcript. Although the constitutional question was raised, the transcript contains no claim by C. that she was misled by the consent form. In the course of direct examination of C.’s obstetrician, counsel for the adoptive parents sought to explore C.’s knowledge of the meaning of the consent by inquiring concerning her conversations with the doctor. C.’s attorney objected to this inquiry, asserting the physician-patient privilege. Arguing for disclosure, the adoptive parents responded that the conversations sought to be disclosed did not relate to treatment but to the adoption itself. The following colloquy then occurred between the court and C.’s attorney:

“the court: Mr. Papantonio, you seem, in your brief, your trial memorandum, to also allude to some type or the possibility of fraud or at least a misunderstanding on the part of your client of what she was signing.
“mr. papantonio: I don’t believe that we did. We did not intend to create that impression in our memorandum, sir.
“the court: You see, you talk about the form being improper and misleading and —
“mr. papantonio: We are attaching [sic] the constitutionality of that act and the forms prepared under that act.
“the court: But you are not claiming that there is any — that she was mislead by the form?
“mr. papantonio: No, sir.
“the court: Oh, if you are not, then the objection is sustained”.

Although counsel for the adoptive parents continued to press for exploration of the mother’s understanding, arguing that C.’s conversations with the obstetrician included one that occurred on the day the extrajudicial consent was signed, the court continued to sustain objections on the ground that C. had conceded that she had not been misled.

Testifying on her own behalf, C. declared that she had read the consent form before signing it at her attorney’s office; that she knew it would be filed in the Surrogate’s Court and become irrevocable after 30 days; “that the adoption would not be completed until [she] signed a consent [before] the Surrogate”; that “I knew that I had a certain amount of time, even after I signed that paper”; [39]*39and that “as far as I knew that an order [sic], after the consent was filed, I had 30 days in which to revoke the consent”. On cross-examination C. told the court that her lawyer was present when she signed the consent form and that “he explained it to me”. It is quite apparent that C.’s subsequent decision to revoke the consent was based in part on her parents’ supportive reaction to her revelation of the child’s birth.

The court denied C.’s application to withdraw her consent, finding that revocation would not serve the best interests of the child (see Matter of Daniel C., 115 Misc 2d 130). While the Acting Surrogate recognized that a lay person “could easily infer from the language of the form that * * * the consent * * * could be revoked and upon revocation the parties would be restored to a

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Bluebook (online)
99 A.D.2d 35, 472 N.Y.S.2d 666, 1984 N.Y. App. Div. LEXIS 16520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-daniel-c-nyappdiv-1984.