In re the Adoption by Anonymous of Anonymous

Martuscello, J. The appellants, the parents of the child whose future home is at stake here, seek to revoke their nonjudicial consent to a private placement adoption. The infant was born on September 2, 1975. At her own request, the mother, who has two other children, aged 10 and 13, was not put in the maternity ward of the hospital and was never informed of the child’s sex. On September 5, 1975, without ever having been seen by his parents, the infant was delivered directly from the hospital into the care of his adoptive parents. On September 16, 1975 the parents went to the office of [384] Louis George Rudd, the attorney who was handling the proceeding for the adoptive parents, and signed an irrevocable consent form. That consent form, and the other documents relative to the adoption proceeding, were received by the Adoption Bureau of the Family Court on October 7, 1975 and they were approved and filed on November 14, 1975. A date in January, 1976 was set for a final hearing. On December 12, 1975 the parents received a letter notifying them of the date of the adoption hearing. Thereupon, acting upon the advice of a psychiatrist, they decided to try to secure the baby’s return and contacted their present attorney. He called Mr. Rudd some time in December, 1975 and notified him of the parents’ change of mind. In February, 1976 the parents filed a notice of revocation. Section 115-b of the Domestic Relations Law contains special provisions relating to the finality of consents in private placement adoptions. In enacting those provisions, the Legislature moved in the direction of limiting or barring the right of the natural parents to revoke "surrenders” or "consents” (see Matter of Natural Parents of "'Nicky” v Dumpson, 81 Misc 2d 132, 139, affd 2d Dept. Nov. 24, 1975). It did so by providing two separate and distinct ways of consenting to private placement adoptions, as follows: (1) Section 115-b (subd 1, par [c]) of the Domestic Relations Law provides that if a consent to an adoption is executed or acknowledged before a Judge or Surrogate of the court in which the adoption proceeding is to be commenced, and such consent states that it shall become irrevocable upon such execution or acknowledgment, it becomes irrevocable in accordance with its terms. At the time of execution, the consenting parent is to be informed, in detail, of the consequences of such act by the Judge or Surrogate (Domestic Relations Law, § 115-b, subd 2). (2) Section 115-b (subd 1, par [d], cl [i]) provides for a nonjudicial consent to an adoption. Such a consent becomes irrevocable 30 days after the commencement of the adoption proceeding, if the consent so states, "unless written notice of revocation thereof shall have been received by the court within said thirty days.” The 30-day period of revocability starts running at the time of the filing of the petition for adoption (see Domestic Relations Law, § 115-b, subd 3, par [b]). Even if written notice of revocation is received during that 30-day period, it may be given effect only if it is unopposed by [385] the adoptive parents or, if it is opposed, if it is in the best interests of the child to give effect to the notice (Domestic Relations Law, § 115-b, subd 1, par [d], cl [ii]). Thus, the statute contains separate safeguards in the form of (1) a judicial explanation of the gravity of the step, and (2) a 30-day period of revocability after the commencement of the adoption proceeding. The consent signed by the parents herein conformed to all of the statutory requirements for a nonjudicial consent. It was given after much soul searching and after discussions with a psychiatrist during the pregnancy. Nevertheless, the parents assert that they are entitled to revoke their consent to the adoption because they were deprived of notice that the adoption proceeding had been commenced. Except for the requirement that the consent spell out the fact that it becomes irrevocable 30 days after the commencement of the adoption proceeding (Domestic Relations Law, § 115-b, subd 1, par [d]), there is no further provision for notice to the parents of the date that the petition is filed. While I agree with the proposition that the "right of the natural parents to the care and custody of their child” is "basic” (Skinner v Oklahoma, 316 US 535, 541), I cannot agree with Mr. Justice Suozzi’s view that appellants have been deprived of such right without adequate notice. I find his position, that he "would have joined with the majority opinion herein had the statute provided that the natural parents’ revocation had to be received by the court within 30 days from the date of execution and acknowledgment of the consent”, somewhat anomalous. The appellants knew that they had at least that initial 30-day period within which to revoke their consent. Under the facts of this case we need not reach the question of the constitutionality of this statute since, even after the appellants received notice of the hearing on December 12, 1975, they did not formally move to revoke their consent until February 3, 1976, more than 50 days after the receipt of such notice. Under these circumstances, I cannot but find that the attempted revocation was ineffective. The order should be affirmed in its entirety.