In re Timmy S.

OPINION OF THE COURT Mangano, J. P. The primary question to be resolved on the instant appeals is whether the extrajudicial consent to an adoption, made by the — 19 — natural parents of the child, was a valid and effective one. The question must be answered in the negative. In my view, Domestic Relations Law § 115-b, pursuant to which the form upon which the natural parents gave their extrajudicial consent was promulgated, is unconstitutional on its face, insofar as it fails to require that such an extrajudicial consent form to an adoption advise the natural parents that even if they timely revoke their extrajudicial consent to the adoption, as allowed by statute, the child will not necessarily be returned to them, but may be subject under certain circumstances, to a judicial determination of custody based on a “best interests” test. Since the extrajudicial consent form executed by the natural parents in the case at bar did not so advise them, their consent given on that form cannot stand and must be declared null and void. Accordingly, the infant must be returned to her natural parents. I At the outset we must dispose of a procedural problem. The adoptive parents have appealed, as limited by their brief, from so much of an order of the Family Court, Suffolk County, dated September 24, 1984, as deemed a notice of revocation of an extrajudicial consent to an adoption, signed by the natural parents of the infant in question, to have been timely given. The natural parents have cross-appealed, as limited by their brief, from so much of the same order as, upon considering their notice of revocation of their consent to the adoption to have been timely given, failed to direct that the child be returned to them forthwith and instead directed that a hearing be held to determine whether her best interests required that she be returned to her natural parents or that the adoption petition be approved. The appeal and cross appeal from the order dated September 24, 1984, must be dismissed because no appeal lies as of right from a nondispositional order of the Family Court (Family Ct Act § 1112 [a]). The issues raised on that appeal and cross appeal are brought up for review and have been considered on the appeal by the natural parents from the dispositional order of the Family Court, dated November 7, 1984, which refused to give effect to the notice of revocation of consent filed by the natural parents and, in effect, granted the adoption petition (see, Family Ct Act § 1112; CPLR 5501 [a] [1]). II Warren and Christine K. are the natural parents of a girl, Sarah, who was born on November 6, 1983, with the condition known as Down’s Syndrome. They decided to give the child up — 20 — for adoption and her physical transfer was made on November 11,1983. Toward the end of November 1983, the natural parents executed two separate consent forms to the adoption. The first was a judicial consent form, which pursuant to statute (Domestic Relations Law § 115-b [1] [c]), and its terms, becomes operative and “irrevocable” only when “executed or acknowledged before a judge or surrogate of the court in which the adoption proceeding is to be commenced” (emphasis supplied). The second was an extrajudicial consent form which pursuant to statute (Domestic Relations Law § 115-b [1] [d] [i]), and its terms, is operative immediately and becomes irrevocable “thirty days after the commencement of the adoption proceeding unless written notice of revocation thereof shall have been received * * * within said thirty days” (emphasis supplied). Both consent forms contained the following language which was added at the request of the natural father who is an attorney: “We came to our decision to place our baby for adoption because of her Down’s Syndrome condition and our belief that the petitioners are far more capable of dealing with this condition and raising the child than we are.” On December 19, 1983, an adoption proceeding was commenced on behalf of the adoptive parents in the Family Court, Suffolk County. However, the natural parents first received notice of the adoption proceeding between January .23 and January 25, 1984, more than 30 days after its commencement, when their attorney received notice from the Suffolk County Family Court that the petition for adoption had been filed and that a hearing on the petition for adoption would be held on March 1, 1984. Toward the end of February 1984, the natural mother made certain inquiries and did research into the subject of Down’s Syndrome. Both she and her husband decided to revoke their consents to the adoption. On February 29,1984, they forwarded a revocation of consent form which was received by the court on March 2,1984. The court hearing, scheduled for March 1,1984, was canceled. Ill The natural parents argued in Family Court that Domestic Relations Law § 115-b is unconstitutional on its face in that it (1) fails to require that they be given notice as to when the 30-day revocation period begins and (2) fails to require that they be informed of all the consequences of timely revocation of an extrajudicial consent to an adoption, to wit, that if the adoptive parents oppose the timely revocation of an extrajudicial consent, — 21 — the child is not immediately returned to the natural parents but rather a “best interests” hearing is held at which the natural parents do not have any superior right to the custody of the child (Domestic Relations Law § 115-b [3] [d] [i], [ii], [v]). In addition, the natural parents argued before the Family Court that by virtue of their simultaneous execution of both an extrajudicial and judicial consent form to the adoption they became confused and assumed that (1) the judicial consent form was the controlling form and (2) their consent to the adoption was therefore “tentative” or inoperative, until they appeared at a hearing before the appropriate Surrogate or Family Court Judge. The Family Court rejected the natural parents’ constitutional attacks on the statute on the ground that they were not aggrieved by either of the two alleged defects in the statute. In this regard, the Family Court held that (1) the natural parents had failed to comply with the 30-day provision of the statute even after they actually received notice of the adoption hearing (relying upon Matter of Anonymous, 55 AD2d 383) and (2) the record indicated that the natural parents would have executed the extrajudicial consent form even if they had been advised of all the consequences of a timely revocation of their consent given on that form. With respect to the natural parents’ argument that they were confused by the simultaneous execution of both an extrajudicial and a judicial consent form to the adoption, the Family Court did not accept this argument in toto. However, it did hold that the simultaneous execution of both consent forms had the effect of confusing them with respect to the time period within which their extrajudicial consent to the adoption could be revoked. Specifically, the Family Court was of the view that the natural parents could reasonably have believed that they had until March 1,1984, the day of the hearing on the adoption, to revoke their extrajudicial consent. Accordingly, to remedy what it perceived as a denial of due process to the natural parents, the Family Court treated their revocation of their extrajudicial consent as timely and afforded the natural parents a “best interests” hearing as mandated by the statute (Domestic Relations Law § 115-b [3] [d] [ii]). At the conclusion of the hearing, the Family Court held that the “best interests” of the child would be served if she were adopted by the proposed adoptive parents. — 22 — IV In reaching its conclusion, the Family Court implicitly recognized the distinction between an extrajudicial and a judicial consent to an adoption when it held that the confusion of the natural parents was limited solely to the question of the time that they had to revoke the extrajudicial consent form. Indeed, I have no quarrel with the holding of the Family Court on this particular aspect of the case. Nevertheless, I am of the view that the Family Court erred in rejecting, on the basis of standing, the natural parents’ constitutional attack on the statute’s failure to require that the extrajudicial consent form advise them of all the consequences of a timely revocation of their consent given on that form. In rejecting this attack on the statute, the Family Court relied on the decision of this court in Matter of Daniel C. (99 AD2d 35, affd 63 NY2d 927). In Matter of Daniel C., the natural mother argued that (1) “as a matter of judicial construction section 115-b must be found to require the consent form to inform the signer concerning the actual legal consequences of a notice of revocation” and (2) if the statute was not so construed, it was unconstitutional and deprived the natural parents of due process by sanctioning the use of the “deceptive form” (Matter of Daniel C., 99 AD2d 35, 39, supra). The majority of this court in Matter of Daniel C. (supra), held that the statute was clear in its intent that the consequences of a timely revocation of an extrajudicial consent form to an adoption, need not be included in that form. With respect to the constitutional argument raised by the natural mother, the majority of this court and the Court of Appeals held that the natural mother was not aggrieved by this alleged defect in Domestic Relations Law § 115-b, in view of her lawyer’s explicit concession, on the record, that she had not been misled by the consent form. No such concession exists on this record, and it is unclear, from the decision of the Family Court, what other facts led it to the conclusion that the natural parents would have signed the extrajudicial consent form, even if they had understood the full consequences of a timely revocation of the consent given on that form. Presumably, it was the language inserted by the natural parents in the consent forms that influenced the Family Court to hold as it did on the issue of standing. In my view, the inserted language simply indicates that the natural parents initially had no doubts about their decision to place their child up for adoption. However, the inserted language does not in any way constitute a concession by the natural — 23 — parents that they would have signed the extrajudicial consent form to the adoption even if they had known of all the consequences that would occur if they decided to timely revoke their consent, which they had a right to do pursuant to the statute. Without a concession similar to the one in Matter of Daniel C. (supra), the attack of the natural parents on the statute must be considered on the merits, and on the merits, the statute does not pass constitutional scrutiny. In this regard, the dissent of Justice Gibbons in Matter of Daniel C. (99 AD2d 35,66-69, supra), is particularly relevant:1 “A due process analysis proceeds through a two-part inquiry: whether there has been a deprivation of a protected liberty or property interest, and if so, what process is due (see Logan v Zimmerman Brush Co., 455 US 422,428). There can be no doubt that parental rights are a constitutionally protected interest since the Supreme Court has consistently recognized that freedom of choice in matters of family life is a fundamental liberty interest (see Santosky v Kramer, 455 US 745, 753, and cases cited therein). Our State courts have also recognized that the interest of the natural parent in remaining the legal parent of his or her child is of constitutional magnitude (see Matter of Leon RR., 48 NY2d 117). Thus, it has been held that ‘a court may not terminate all parental rights by offering a child for adoption where there has been no parental consent, abandonment, neglect or proven unfitness, even though some might find adoption to be in the child’s best interests (Matter of Corey L v Martin L, 45 NY2d 383)’ (Matter of Sanjivini K., 47 NY2d 374, 382; see, also, Matter of Ricky Ralph M., 56 NY2d 77). A natural parent’s ‘desire for and right to “the companionship, care, custody, and management of his or her children” ’ is an interest far more precious than any property right (Lassiter v Department of Social Servs., 452 US 18,27, quoting from Stanley v Illinois, 405 US 645, 651). It follows that when the State establishes a mechanism to terminate familial bonds, it must provide the parents with fundamentally fair procedures (Santosky v Kramer, 455 US 745, supra). — 24 — “Due process requires, at a minimum, ‘that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case’ (Mullane v Central Hanover Trust Co., 339 US 306, 313). However, the due process rights to notice and a hearing prior to a civil judgment are subject to waiver (Fuentes v Shevin, 407 US 67, 94-95; Overmeyer Co. v Frick Co., 405 US 174, 185). Where there is a waiver of adjudication, the functional equivalent of notice is the presentation of information to the waiving party (Rubin, Toward a General Theory of Waiver, 28 UCLA L Rev 478, 539; Note, Fairness, Flexibility, and the Waiver of Remedial Rights by Contract, 87 Yale L J 1057, 1074-1077). In the extrajudicial adoption context, the consent form, which operates as a waiver of parental rights, undertakes the notice function since it is the only statutorily guaranteed source of information for the natural parent. Generally, notice given prior to a hearing must clarify the basis for the government’s proposed action in order to give the party a chance to defend himself (see Wolff v McDonnell, 418 US 539; Goldberg v Kelly, 397 US 254). But, in a waiver setting, where there is no opportunity for a hearing or defense on the merits, the purported waiver document must inform the party of the legal consequences of the waiver so that an intelligent decision can be reached (see Fuentes v Shevin, 407 US 67, 95, supra; Stone v Maher, 527 F Supp 10, 17; County of Ventura v Castro, 93 Cal App 3d 462, cert den 444 US 1098). If a consensual adoption proceeding is to afford a natural parent due process of law, the consent must be sufficient in form to warrant the relinquishment of parental rights (see Matter of Andersen, 99 Idaho 805). “‘A waiver is “the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it” ’ (Werking v Amity Estates, 2 NY2d 43, 52, quoting from Whitney, Contracts [4th ed], p 273). Where personal liberty is involved, as in the criminal context, it is generally held that a waiver of due process rights must be voluntarily, knowingly, and intelligently made (see, e.g., Brady v United States, 397 US 742, 748; Miranda v Arizona, 384 US 436, 444; see, also, Johnson v Zerbst, 304 US 458,464). The standard for relinquishment of parental rights, also a fundamental liberty interest, has been held to be governed by the same standard (see Matter of T.W.C., 38 NY2d 128; Matter of Infant S. [Tretin], 48 AD2d 425, 426). Since the consent to adoption constitutes the relinquishment of parental rights, it must be executed with full awareness of the legal consequences (Matter of Andersen, 99 Idaho 805, 815, supra) * * * — 25 — “Given the above circumstances, I conclude that the extrajudicial consent form used in this case is deceptive since it conveys to the lay person the impression that it can be wholly extinguished within 30 days of the initiation of the adoption proceeding and that no untoward consequences will flow from it if revocation is timely. The impression thus conveyed is a strong and unfair inducement to the procurement of consents to adoption. The form actually undermines the knowing and voluntary nature of the consent (see Matter of Andersen, 99 Idaho 805, supra). Of particular significance is the fact that, as already noted, constitutional principles and our basic societal mores generally allow a natural parent to remain the legal parent even if he/she is not the best parent possible, or even available, and that he or she will continue to fill this role even if it might be said that the child’s best interests would otherwise be served (see Matter of Ricky Ralph M., 56 NY2d 77, supra)”. Since Domestic Relations Law § 115-b is unconstitutional on its face in failing to require that an extrajudicial consent form to an adoption advise the natural parents of all the consequences of a timely revocation of their consent if given on that form, the extrajudicial consent herein, which was executed pursuant to the statute, was invalid, and the infant child must be returned to her natural parents.2 V We have reviewed the remaining points raised by the natural parents in support of their argument that the child must be returned to them, including (1) duress, (2) lack of counsel and (3) alleged violations of Social Services Law §§ 371 and 374, and find them to be without merit (Matter of Podmore v Our Lady of Victory Infant Home, 82 AD2d 48, 51; Matter of E.W.C., 89 Misc 2d 64, 72; Domestic Relations Law § 115-b [4]). In view of our determination, we need not reach the merits of the natural parents’ argument that the clear and convincing evidence standard should have been utilized at the “best inter — 26 — ests” hearing, rather than the preponderance of the evidence standard. VI Accordingly, the appeal and cross appeal from the nondispositional order dated September 24, 1984, should be dismissed, without costs or disbursements. The dispositional order dated November 7,1984, should be reversed, without costs or disbursements, the nondispositional order of the same court dated September 24,1984, should be vacated, the judicial and nonjudicial consents to adoption signed by the natural parents should be declared void ab initio, the petition for adoption should be denied, and the matter should be remitted to the Family Court, Suffolk County, for the transfer of custody of the infant from the adoptive to the natural parents as expeditiously as possible. Footnotes [1] In Matter of Daniel C. (99 AD2d 35, affd 63 NY2d 927), Justice Gibbons was of the view that in order to withstand a constitutional attack, Domestic Relations Law § 115-b had to be construed to read that the natural parents be informed, in the body of an extrajudicial consent form, that a timely revocation thereof would not necessarily result in the immediate return of the child to them. Accordingly, his dissent was addressed to the failure of the extrajudicial consent form to conform to the statute. However, his language is equally applicable to the statute, which the majority of the court ruled, in Matter of Daniel C., could not be so construed. [2] The natural parents’ attack on the statute’s failure to provide that they be given notice of when the 30-day revocation period commences, also has merit (see, Matter of Anonymous, 55 AD2d 383, 385, 390 [Suozzi, J., dissenting]). Indeed, the Family Court’s rejection of this argument based on the natural parents’ failure to revoke their consent within 30 days after receiving notice of the adoption hearing is inconsistent with (1) its specific finding that they were confused as to time period within which they could revoke and (2) its holding that their revocation would be treated as timely. However, a “best interests” hearing is the proper remedy for this particular constitutional defect (see, Matter of Anonymous, supra) and a “best interests” hearing was in fact granted in this case.