In Re Naquan L.G. Graham Windham Family & Children's Services

140 A.D.3d 757, 31 N.Y.S.3d 214

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 2016
• Docket: 2013-01763
• Status: Published

Opinions

Appeal from an order of the Family Court, Queens County (Margaret P. McGowan, J.), dated January 30, 2013. The order denied the mother’s motion to vacate the judicial surrenders of her parental rights executed on January 20, 2011. By decision and order dated July 2, 2014, this Court remitted the matter to the Family Court, Queens County, for a reconstruction hearing with respect to certain proceedings, and a reconstruction hearing has been completed.

Ordered that the order is affirmed, without costs or disbursements.

The subject children have been in kinship foster care since 2008 based upon allegations of neglect by the mother. In 2010, a proceeding was commenced to terminate the mother’s parental rights. On January 20, 2011, in connection with the termination proceeding, the mother appeared with counsel in Family Court and voluntarily surrendered her parental rights as to each child. On December 7, 2012, she moved by order to show case to vacate the judicial surrenders on the ground that the Family Court failed to substantially comply with Social Services Law § 383-c (3) (b). The Family Court denied the motion and the mother appeals.

Social Services Law § 383-c (3) (b) defines the procedures to be followed for the execution of judicial surrenders. Specifically, it requires the court to inform the parent of the right to legal counsel and to obtain supportive counseling, and to inform the parent of the consequences of the surrender, including the permanent loss of custodial rights and the immediate and irrevocable effect of the surrender. After informing the parent that the surrender becomes final and irrevocable upon its execution and acknowledgment, the court must provide the parent with a copy of the written instrument.

Pursuant to Social Services Law § 383-c (5) (c), the surrender instrument must contain a provision appearing in bold print at the beginning of the instrument that “the surrender becomes final and irrevocable immediately upon execution and acknowledgment, and that the parent cannot bring a case in court to revoke the surrender or to regain custody of the child” (Social Services Law § 383-c [5] [c]). Notably, the statute does not provide for any penalty or remedy in the event the court fails to strictly adhere to its provisions regarding the information to be provided to a surrendering parent in open court. It does specify, however, that an action or proceeding may be brought in the event of fraud, duress, or coercion in the execution or inducement of the surrender (see Social Services Law § 383-c [6]). The statute further provides that “[n]o 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 except as [specifically] provided herein” (Social Services Law § 383-c [6] [d]; see Matter of Robert Jordan G. [Robert D.], 97 AD3d 576 [2012]; Matter of Gino Z., 4 AD3d 631, 632 [2004]).

Here, the mother executed written surrenders, which, in compliance with Social Services Law § 383-c (5) (c), stated in bold capital letters that the surrenders were “immediate” and “final,” and that she “cannot bring a case in court to cancel or change the surrender or to regain custody.” The written instruments acknowledged the mother’s rights to legal counsel and to supportive counseling. They also conditioned the surrenders upon the foster placement of the children with a specified relative, and included a provision that the mother be permitted contact with the children “as mutually agreeable by the parties.” Thereafter, the mother, who was represented by legal counsel, was questioned by the Family Court in an in-court voir dire as to her understanding of the surrenders, her voluntariness in executing them, her mental clarity, her consultation and satisfaction with counsel, her understanding of the finality of the surrenders, the foster care and anticipated adoption by her relative, her visitation issues, and her signature on the written surrenders.

When the mother moved nearly two years later to vacate the surrenders, such action was prompted by difficulties encountered by the parties in working out the mother’s visitation with the children in a “mutually agreeable” manner. The order to show cause filed by the mother focused primarily upon the failure of the Family Court, during its voir dire of the mother, to specifically inform her of the right to supportive counseling.

A clear reading of the statute indicates that the failure by a court to orally advise a surrendering parent in open court of his/her right to supportive counseling is not a ground upon which a parent may rely when seeking to vacate or revoke a surrender. Pursuant to Social Services Law § 383-c (6) (d), the only available grounds for such relief are fraud, duress, or coercion. No such allegations are present in this case. In addition, the mother signed a written instrument which informed her of, inter alia, the finality of the surrender procedure and the right to supportive counseling, and she acknowledged in her voir dire that her surrender was knowing and voluntary. The written surrender instruments fully complied with Social Services Law § 383-c, and the Family Court’s voir dire substantially addressed the rights, procedures, and effect of the surrenders. Therefore, while it would have been better practice for the Family Court, during the voir dire of the mother, to discuss all the aspects of her judicial surrender, including, as applicable here, her right to supportive counseling and every right that was being surrendered, the Family Court nevertheless properly denied the mother’s motion to vacate the judicial surrenders of her parental rights executed on January 20, 2011.

Dillon, J.P., Sgroi and Barros, JJ., concur.