IN RE: the ADOPTION OF BABY BOY.

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Surrogate's Court, Monroe County, New York.

IN RE: the ADOPTION OF BABY BOY.

Decided: November 21, 1997

Edward J. Leichtner, Rochester, for Natural Mother. Goldman, Newman, Shinder & Franklin, Rochester (Brendan C. O'Shea, of counsel), for Adoptive Parents. Katherine Gladstone, Rochester, Guardian ad Litem.

In this adoption proceeding, the natural mother has signed and filed a revocation of her previously given extrajudicial consent.   She now asks the Court to vacate and/or nullify that consent asserting that she had been under duress at the time of the signing of the consent, and that her attorney failed to comply with the statutory requirements for the consent and its delivery to the natural mother as required in Domestic Relation Law (DRL) § 115-b(4)(c).   The adoptive parents filed a timely opposition to the revocation asserting that there was no duress in the execution of the consent;  that the failure to comply strictly with the delivery of a consent form to the natural mother is insufficient to set it aside.   They ask that the Court give full effect to the consent and hold a hearing to determine the best interests of the child.

QUESTIONS PRESENTED AND THE DECISION

1. Was the extrajudicial consent taken at the hospital several hours after the child's birth compromised by duress or coercion?   The decision herein answers that it was not.

2. Should natural mother's extrajudicial consent be vacated where she is not given a copy of the consent at the time of execution as required by DRL § 115-b(4)(c)?   The decision vacates the consent and orders the child be returned to natural mother.

BACKGROUND

At the hearing, the Court heard the testimony of the biological mother, the maternal grandmother with whom the biological mother resides, the attorney who prepared and witnessed the signing of the extrajudicial consent, the prospective adoptive parents, the attending resident physician and other hospital personnel, as well as various business people who testified in regard to the mother's allegation of coercion and duress and who apparently were intended to raise issues of biological mother's credibility.

While there were discrepancies in the testimony a good deal of what was heard was uncontroverted.

The biological mother was 22 years of age at the time of the birth on July 31, 1997.   She was unmarried and living at home with her parents.   She had become involved with a young man at work and upon learning of her pregnancy in February of 1997, confided in a close personal friend about the pregnancy and possible adoption.   It is mother's testimony that she was “scared but happy about the idea of having a child”.   She testified that her own mother was supportive and happy about the prospect of having a grandchild but that the biological father was not supportive and in fact told biological mother he wanted nothing to do with the baby.

With the aid of a friend who made the actual phone calls for her, biological mother made a contact with adoptive parents to be, individuals who had advertised in local newspapers as people seeking to adopt.   There is little controversy but what natural mother and adoptive parents met in early March of 1997 at a dinner meeting and were told by natural mother that she had selected them, “that they were nice people”, lived in the area and would make good parents.   Thereafter and through to the birth there is little dispute but what there were numerous telephone conversations in both directions between biological mother and the adoptive parents to be.   In May, 1997, following a call at biological mother's place of business, she became uneasy and asked the adoptive parents to not call directly and that they could glean information as they desired through the friend, who had made the initial contact.

Gregory A. Franklin, Esq., an attorney with offices in Rochester, New York, had been engaged by the adoptive parents for representation in the adoption proceeding.   Attorney Franklin contacted the natural mother with a letter describing adoption procedures and advising that it was not necessary for her to have an attorney until later on in the process.   Mr. Franklin wrote to natural mother to recommend attorney Michael Kelly, as an attorney who could represent her.   His letter recommended no other attorneys, but did state that she could select an attorney of her own choosing if she so desired.   Mr. Kelly was contacted by natural mother at the end of May, made an appointment, cancelled the same and then finally spoke with him sometime in early June.   At that time she mailed back a questionnaire to attorney Franklin and signed various medical authorizations in Kelly's office.   It is noted that no retainer agreement was ever entered into and that Kelly displayed the consent form to natural mother at the June meeting.   All of Kelly's fees were paid for by the adoptive parents to be.

In addition to those expenses, after June, the adoptive parents paid weekly wage payments to natural mother over and above her disability allowance.   They also paid all medical bills.

At the June meeting, Kelly advised his client that she did not necessarily have to read the document at this time.   She would have ample time to do so and it would need to be signed after the birth.   Biological mother testified that she did not read the document all the way through and when Mr. Kelly asked her if she had questions, she stated she had none.   She testifies that Kelly did not ask her if she had read the document.   It is clear that he did not read the document to her either.

On July 31, 1997, late in the evening, natural mother experienced initial labor pains and at approximately 10:30 in the evening went to the Strong Memorial Hospital with her own mother and another friend from work.   She entered the Spindler Birthing Center on arrival at the hospital.   At various times present in the room were nurses, the resident physician, the biological mother's own mother and the friend, Jackie.   At 1:00 a.m., now August 1, 1997, the adoptive parents to be came up to the area of the birthing center having been notified by the friend, Jackie of the impending delivery.   It appears from the testimony that adoptive parents remained in the vicinity of the delivery room for the next two hours observing the process, holding the baby and generally being part of the event.   Natural mother testified to her distress during the labor, delivery and the aftermath, her lack of sleep, discomfort, and pain medication she was given.   She testified to a good deal of confusion over her decision to allow the adoption of the baby.   Despite all of the discomfort and related stress, natural mother testified to a strong desire and “pressure” to leave the hospital as soon as possible.   She herself made personal contact with attorney Kelly at approximately 8:30 in the morning and an apparent arrangement was made for Kelly to meet in the hospital at 12:30 in the afternoon.   Biological mother testifies to fighting to get released despite her exhaustion and pain and the lack of sleep.   She was told that she would have to sign a release to leave early inasmuch as the physicians thought it best that she stay an additional period of time.

Attorney Kelly arrived at the hospital at approximately 12:30 p.m. on August 1, 1997, approximately eleven hours after the birth of the baby.   The meeting was held in the lobby of the hospital among the attorney, biological mother and her own mother.   As attorney Kelly arrived, the adoptive parents to be also appeared on the scene with video camera and were asked by Kelly to wait in the cafeteria while he talked with biological mother.   At this juncture, attorney Kelly presented biological mother with the three consent forms-customary and approved 45 day extrajudicial consent forms.   The biological mother testified that she was crying and shaking at this point and that Kelly handed her the three documents, telling her that they were the same that she was shown in the attorney's office in June.   It appears that Kelly instructed her that she did not have to sign at that moment but to take them home with her if she liked.   Again, biological mother's testimony is that she was so anxious to leave that she signed anyway, did not read the documents and gave them back to Kelly.   She claims to have assumed that she had forty-five days to change her mind.   It needs to be noted that barely ten and one-half hours had elapsed from the time of birth to the signing of the documents.   There is little controversy but what the birth mother had been given various pain medications as well as having spent a sleepless night.   At that point, natural mother left the hospital with her own mother.

It is uncontroverted that although she signed triplicate copies of the extrajudicial consent, she, the birth mother, was not given a copy of the signed document although as attorney Kelly testified, he had adequate time to do so.   The very next day, attorney Kelly went to natural mother's home to obtain signatures on release forms so as to permit adoptive parents to be to take the baby home from the hospital.   Again, at this time Kelly did not provide natural mother with a copy of a consent form she had signed the day previously.

There is testimony that a copy of the document was subsequently mailed to her, but birth mother and her own mother deny having received the copy.

It appears to be uncontroverted that natural mother never read the consent form she signed nor was it read to her and clearly uncontroverted that no copy of the signed consent was given to her “upon [its] execution”.

Upon returning home, natural mother told her own mother she had made a mistake and that she did not want to go through with the adoption.   She was urged to seek counseling to which she availed herself and within three weeks contacted Kelly for purposes of preparing a revocation of the consent.   She met with Kelly thereafter, signed the revocation of the consent and was told “you understand that you do not get the child back, immediately, that there would be a best interest hearing to make that determination”.   There is no controversy over the appropriateness or timeliness of the written revocation supplied to the Court nor the adoptive parents opposition to that revocation.

DURESS

 To void a consent based upon duress, it is necessary to find that the natural mother was not able to exercise her free will because of the actions of people around her.  (Kazaras v. Manufacturers Trust Co., 4 A.D.2d 227, 164 N.Y.S.2d 211, aff'd. 4 N.Y.2d 930, 175 N.Y.S.2d 172, 151 N.E.2d 356) Coercion would involve actual physical force being used or threatened.   Duress and coercion are difficult to prove and emotional stress is not considered duress.  (In re Adoption of E.W.C., 89 Misc.2d 64, 389 N.Y.S.2d 743).   The courts have very narrowly construed this issue and have not found emotional distress even where there was rape and placement for adoption;  (In re Commissioner of Social Services, 141 A.D.2d 821, 529 N.Y.S.2d 883) nor parental pressure;  (In re Baby Boy L., 144 A.D.2d 674, 534 N.Y.S.2d 706, aff'd. 74 N.Y.2d 660, 543 N.Y.S.2d 402, 541 N.E.2d 431)  The facts relied upon here involve constant attention from the adoptive parents to be, a signing of a consent within hours after the birth of the child and legal representation of the birth mother by an attorney recommended and paid for by the adoptive parents to be.   While these are of concern to the Court they do not rise to the level of duress and coercion established in the case law.  [This Court has sua sponte made it a point to discourage strongly, the execution of extrajudicial consents (or judicial consents for that matter) within hours or days after the birth of the child as well as any appearance of collusion between adoptive parents' attorney and the attorney for the birth mother, not freely selected or engaged.]   The facts here do not rise to the level of the legal requirements to establish duress and/or coercion of the level to set aside such consents.  (Matter of Jenelle P., 220 A.D.2d 853, 632 N.Y.S.2d 245 Third Dept.1995)  Whatever duress the biological mother felt in this instance was, to this Court, self imposed and not inflicted by the adoptive parents to be.

EXTRA-JUDICIAL CONSENT

 The parent-child relationship involves a fundamental constitutional right which cannot be waived or separated without due process.   U.S.C.A. Const. Amend. 14;  (Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977);  Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982);  In Re Sylvia M., 82 A.D.2d 217, 443 N.Y.S.2d 214, aff'd. 57 N.Y.2d 636, 454 N.Y.S.2d 61, 439 N.E.2d 870 (1982);  U.S. Const. amend. XIV, s 1.)   Termination of parental rights in an adoption setting is accomplished by a consent to private placement (DRL § 115-b) or by a surrender to an authorized agency (DRL § 112(3)) or by a court's determination that consent is not legally required for the adoption.  DRL 111(2) (In Re Patricia Ann W., 89 Misc.2d 368, 392 N.Y.S.2d 180)

 The adoption law must be strictly construed in accord with the statutory language and legislative purpose, since adoption is entirely statutory and in derogation of common law.  Matter of Jacob, 86 N.Y.2d 651, 657-658, 636 N.Y.S.2d 716, 660 N.E.2d 397;  McKinney's DRL § 115-b.   There are two forms of consent to adoption:  (1) judicial consent which is a consent executed before a Family Court Judge or a Surrogate which becomes irrevocable at the time of the execution.  DRL § 115-b(2) and (2) extra-judicial consent which is a consent given outside of court and becomes irrevocable after 45 days unless written notice of revocation is given within the 45 days.  DRL § 115-b(3).   It is with the validity of an extra-judicial consent that this court deals with herein.

) Third, the state has an interest in the integrity of its adoption process;  having created a system for adoption, it is obligated to provide fair, constitutional procedures to implement that system.”  (Note, The Constitutional Rights of Natural Parents Under New York's Adoption Statutes, 12 NYU Rev.L. & Soc. Change, 617 (1983/84);  Dennis T. v. Joseph C., 82 A.D.2d 125, 441 N.Y.S.2d 476) Notwithstanding the date of the foregoing pronouncement, much of what is set forth is generally still applicable and supported over the years by several legislative changes.

New York adoption statute 115-b originally enacted in 1972 (see L.1972, ch. 639 § 3) provides the legal framework within which adoptions can take place balancing the rights of the child, the biological parents and the adoptive parent.  (Matter of Sarah K., 66 N.Y.2d 223, 234, 496 N.Y.S.2d 384, 487 N.E.2d 241)  Before statutory amendments were made in 1992, hearings were held to listen to complaints from adoptive parents that their rights were not fully considered when the natural parent, after consenting to the adoption could change their minds and at the hearing still have a primary right to have the child returned to their custody.   The statute was amended placing the parties on an even plane with respect to the issue of the return of the child.   Now, if the natural parents withdrew their consent to adoption, they do not have a primary right to the child.   Instead, at a hearing, a best interests standard is the sole criteria for a custody determination.  Sarah K. Supra, at p. 233-235, 496 N.Y.S.2d 384, 487 N.E.2d 241.

By what appeared to be an intrusion in the fundamental right to parent your child, the statute had to have sufficient procedural safeguards for the natural parent.   In keeping with this goal to balance all the parties rights, the statute was amended once again in 1994 (L.1994, ch. 371, § 1) to include, “․ a copy of such consent shall be given to such parent upon the execution thereof.”  DRL § 115-b(4)(c) (Emphasis added).   This is consistent with a judicial consent procedure which requires the judge to give a copy of the consent to the parent at the time of the execution.

DISCUSSION

In cases involving compliance with the statute, the courts have held that strict compliance is required and where that is not accomplished, the court will look at substantial compliance.  (Matter of Benson v. Jordan, 184 A.D.2d 1080, 584 N.Y.S.2d 376;  Adoption of Baby Boy B., 163 A.D.2d 673, 558 N.Y.S.2d 281;  Matter of Chaya S. v. Frederick Herbert L., 90 N.Y.2d 389, 660 N.Y.S.2d 840, 683 N.E.2d 746)  In the case of DeFilippis v. Kirchner, 217 A.D.2d 145, 636 N.Y.S.2d 134, the courts found that the consent form did not meet the statutory requirement that it be in 18 bold type.   However, it held that the statute was substantially complied with because the consent was drafted by the natural mother's attorney, it was read to her, and she testified as to her understanding its contents.   Similarly, in Chaya and Baby Boy L, the court held for substantial compliance.   In Chaya, the natural mother raised an issue of representation of counsel when she attempted to vacate her judicial consent over a year after the adoption was granted.   There, an attorney was present and all the provisions of the consent were fully covered by the Judge.   In Baby Boy, the revocation was made 56 days after its execution and even though the natural mother did not read the consent nor receive a copy, her attorney had reviewed each provision with her and explained their meaning.

The case here is distinguished from others on its facts in that here the revocation was timely filed, there is no question that the consent was never read by the natural mother nor by her attorney to her.   She did not have a clear understanding of the substance of the document nor was it explained to her and finally, no copy was given as mandated by the statute.   Neither the strict compliance nor the more relaxed “substantial” compliance to the statute occurred in this case.   It is uncontroverted that natural mother plainly and simply was not given a copy of the consent upon execution.   The consent is therefore not valid and upon such vacatur the petition for adoption is dismissed.

 The Court is aware that in Benson v. Jordan 184 A.D.2d 1080, 584 N.Y.S.2d 376, the 4th Dept. required a best interest hearing even after the consent was vitiated, based upon allegations of neglect and possible abuse which might constitute a risk to the child.   That is not the case here.   The Court has before it a report from the guardian ad litem appointed by the Court who has been active in participation and observation of the Court ordered visitation during the pendency of these proceedings.   It has been an ongoing concern of this Court that continuous and fairly equal visitation be accorded with both parties so that whatever the outcome, the absence of one of them would not cause undue trauma from the separation.   The attorney for the child reports that both home “environments were appropriate ․”  She found “no evidence to suggest that the child would not be well cared for in either home,” and “neither (party) raised any question of the other's fitness as parent”.   In fact, each firmly acknowledged that “the other was a good and appropriate person, who would make a good parent.”   While the Court, because of its decision herein, does not reach the issue of best interest, it nonetheless must be reassured that the child, if returned to the natural parent, would not be at risk.  (See also, Matter of Male M., 76 A.D.2d 839, 428 N.Y.S.2d 489).

On the state of this record including the report of the guardian ad litem, the Court directs the child be returned to the natural mother.   The arrangements for such return shall be made within 48 hours of the decision being received by counsel.

ARNOLD F. CIACCIO, Surrogate.