From PLI’s Course Handbook
Adoption Law Institute
#14577
9
CONTESTED ADOPTIONS
Gregory A. Franklin
Ashcraft, Franklin & Young LLP
Brendan C. O’Shea
Gleason, Dunn, Walsh & O’Shea
CONTESTED ADOPTIONS
PRACTICING LAW INSTITUTE
NEW YORK, NEW YORK
DECEMBER 19, 2008
Gregory A. Franklin, Esq.
Brendan C. O'Shea, Esq.
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There are several types of contested adoption scenarios.
The
type of contest depends on the nature of the objection and often
on the amount of time that has passed since the parent has
signed the relinquishment.
1.
ALLEGATION THAT THE CONSENT/SURRENDER IS VOID
A parent whose consent to the adoption is required and who has
signed a voluntary consent/surrender (referred to collectively
as “relinquishment”) may later argue that it was obtained under
improper circumstances. Certain of these arguments address the
form of the relinquishment while others pertain to the method by
which the relinquishment was obtained.
A.
Relinquishment in improper form or obtained in
violation of statute.
Several cases hold that the
birth mother may void her relinquishment by showing
that it was improperly obtained.
For example, DRL
§115-b(4)(c) requires that a copy of the consent be
given to the signing parent. In Matter of Adoption of
Baby Boy A. (175 Misc.2d 7, affd 252 AD2d 971), the
Court held that the failure to comply with this
statutory
requirement
invalidated
the
mother’s
consent, even where her attorney mailed the consent to
her several days later. However, although the statute
also requires the consent form to be printed in 18point type (DRL §115-b[4]), it was held in Matter of
De Filippis v. Kirchner (217 AD2d 145) that this
irregularity could be disregarded if the consenting
parent was fully advised of his/her rights.
The relinquishment must be obtained after the child’s
birth.
A pre-birth consent is invalid (People ex.
rel. Anonymous v. Anonymous, 139 AD2d 189).
B.
Relinquishment proper, but not explained to parent or
understood by parent. In the landmark case of Matter
of Sarah K. (66 NY2d 223, cert den 475 US 1108), the
Court of Appeals held in part that a parent may not be
relieved from the circumstances of a relinquishment by
arguing that he/she mistakenly understood the meaning
of the form.
The Court emphasized that the parent
must
prove
that
the
consent
was
signed
under
compulsion or threat, or against one’s free will, or
based upon fraudulent statements.
Note:
It is good
practice to review the birth parent’s relinquishment
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with the client well before the birth and to read it
aloud to the consenting parent before allowing it to
be signed. In fact, where a parent surrenders a child
in foster care, the agency must read the surrender "in
full" to the parent in his or her principal language
(§383-c[4][b][iii]).
C.
Fraud or duress.
Duress or coercion is not proven
where a birth mother experiences the profound, yet
normal, emotions of the birth and surrender process
(Matter of Jenelle P., 220 AD2d 853; Matter of Baby
Boy O., 289 AD2d 631). Similarly, it was found that a
mother was not acting under duress even though her
mother had told her that she could no longer stay in
the family home if she decided to keep the baby
(Matter of Baby Boy, 144 AD2d 674, cert den 493 US
918).
D.
Misrepresentation as to religion.
In Matter of Baby
Girl Z. (154 AD2d 471),the birth mother asked the
adoptive parents if the child would be raised as a
Christian.
The adoptive parents stated that this
would be so–-and it was.
The birth mother later
discovered that the adoptive father was non-Christian,
and moved to set aside the adoption.
The Court,
noting that the religion of the adoptive father was
never an issue before the placement, held that no
fraud was committed because the adoptive parents had
honestly answered the mother’s question, had baptized
the child, and had not gone back on their commitment
to raise the child as a Christian.
E.
Parent’s failure to deliver relinquishment after
signing.
A relinquishment is not valid until there
has been an overt manifestation by the consenting
parent that the relinquishment is to be operative. In
Matter of Samuel (78 NY2d 1047), the mother signed an
extrajudicial consent. However, on the following day,
before the prospective adoptive parents had obtained
physical custody, the birth mother changed her mind.
She instructed her attorney to take no action to move
the adoption forward.
On these facts, the Court of
Appeals concluded that the mother’s consent was
invalidated because of her prompt cancellation. By
contrast, in Matter of Jarrett, (224 AD2d 1029, lv to
app den 88 NY2d 960), after signing her consent the
mother allowed a copy of it to be transmitted for
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purposes
of
interstate
placement.
She
also
communicated with the adoptive parents, indicating to
them that she supported the adoption.
She later
changed her mind, and her lawyer retained her original
consent before delivery of the original.
On these
facts, the court ruled that the mother had shown a
clear manifestation of her desire to have the adoption
move forward.
It ruled that her failure to deliver
the original extrajudicial consent did not invalidate
it.
As such, the mother was granted only a best
interests hearing, at which she did not prevail (230
AD2d 513, lv to app den 91 NY2d 804).
2.
ALLEGATION THAT PARENT HAS TIMELY REVOKED AN EXTRAJUDICIAL
CONSENT/SURRENDER
Under the controlling statutes (DRL §115-b & SSL §384), a parent
who
has
signed
either
an
extrajudicial
consent
or
an
extrajudicial surrender of a child in foster care has a defined
time period in which to revoke the relinquishment.
As noted
elsewhere, a timely revocation does not normally result in the
return of the child to the birth parent, unless it is the
agency's policy to do so. Instead, a best interests hearing is
held by the Court.
The court must decide two questions. First, was the revocation
timely?
Second, assuming that the timeliness requirement is
satisfied, will the child's best interests be met by allowing
the child to remain with the adoptive family, by returning the
child to the revoking parent, or by some other placement of the
child?
The question of timeliness is usually analyzed in a manner
favoring the revoking parent. For example, although the statute
contains language requiring a written revocation to be filed, a
recent case held that the mother’s oral statement to the agency
that she wished to revoke her surrender was sufficient (Matter
of Baby Boy O., 289 AD2d 631).
The best interests analysis must be done in a purely objective
manner. First, the law provides that the biological parent will
have no superior right to the child over the adoptive family
because of the biological connection to the child (DRL §115 [6];
SSL §384[6]).
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Second, the court must examine the various factors integral to a
custody dispute (stability of family, ability to nurture a
child, education, income, etc.) as part of the best interests
analysis. Since the vast majority of adoptions arise due to the
inability of one or both of the birth parents to provide for the
child, it should not be surprising that there are very few
reported cases in New York where a birth parent has prevailed
over the adoptive family in a best interests hearing (Matter of
Adoption of Gabriela, 283 AD2d 983, mot for lv to app den 96
NY2d 721).
Far more common are cases where, for example, the
nomadic life, criminal activity and/or substance abuse of the
birth parent is contrasted with the more stable, family-oriented
adoptive parents (Matter of Baby Boy M., 269 AD2d 450; Matter of
Baby Boy L., 206 AD2d 470, mot for lv to app den 85 NY2d 804).
Therefore, it is important for the practitioner representing a
birth parent who is considering whether to sign an extrajudicial
relinquishment to give advice that even a timely revocation will
lead only to a best interests hearing at which he/she will in
all likelihood be unsuccessful.
Procedure. If a court receives a revocation from a parent, it
must notify the adoptive family by certified mail (DRL S 115-b
[6][d][v]). The adoptive parents must in turn notify the court
of their opposition to the revocation within fifteen days, after
which the best interests hearing is scheduled.
3.
ALLEGATION THAT FATHER'S CONSENT NOT OBTAINED
Introduction
In a series of decisions, the United States Supreme Court
addressed the right of an unwed parent to withhold consent to
the adoption of his/her child.
In Stanley v. Illinois (405 US
645), the Court held that a father has a due process right to a
hearing on fitness before his parental rights are terminated.
Similarly, in Caban v. Mohammed (441 US 380), the Court
invalidated a New York statute which allowed an out-of-wedlock
child to be adopted on consent of the mother alone. In Lehr v.
Robertson (463 US 248), the Court ruled that the failure to give
notice
of
the
child's
adoption
to
a
father
is
not
unconstitutional where the father had no relationship with the
child.
In the wake of these cases, the New York law governing the
consent rights of fathers of out-of-wedlock children was revised
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to add elements of interest, support and communications (DRL
§§111, 111-a).
While it is relatively easy to assess the
performance over time of a non-custodial father who is not only
well aware of the birth of his child but who has had the
opportunity to establish a relationship with the child over a
period of perhaps several years, it is difficult to measure the
parental interest of a father of a child who is placed for
adoption immediately after birth.
Such fathers have only a
limited amount of time within which to demonstrate their
interest, assuming that they know about the pregnancy/adoption
plan to begin with.
DRL §111 attempts to address this
distinction by providing dual standards. One standard addresses
the consent rights of fathers who are placed within six months
after birth.
The second standard addresses the consent rights
of unwed fathers whose children are placed more than six months
after birth.
A.
Child Placed For Adoption Within Six Months After Birth
In the landmark case of Matter of Raquel Marie X. (76 NY2d 387)
the Court of Appeals invalidated the provisions of the Domestic
Relations Law which required, among other things, that the unwed
father of a child placed for adoption at birth or within 6
months after birth must have resided with the mother and the
child in order to be able to withhold his consent to the child's
adoption.
In its place, the court established a two-part test
by which a father may demonstrate his parental interest, thereby
enabling him to withhold his consent to his child’s adoption.
First, a father must act promptly after learning of the mother's
pregnancy/adoption plan to assert his parental rights by
publicly declaring his paternity, offering to pay the mother's
expenses
and
taking
legal
steps
(paternity
or
custody
proceedings) to formalize his interest. Second, the father must
show that he is willing, ready and able to actually take custody
of the child and that he does not merely wish to place the child
with friends or relatives.
Appellate decisions interpreting Raquel Marie X. have generally
favored adoptive parents. For example, in Matter of Raymond AA.
(217 AD2d 757), the Court ruled against a father who remained
underemployed and who abused alcohol and drugs during the
mother's pregnancy, even though he was not told about the
mother's adoption plan until after the child's birth. In Matter
of Stephen C. (170 AD2d 1035), the father did not believe he
could raise the child himself and wanted to place the child with
his family members.
The father also tried to persuade the
mother to keep the child herself. Under these circumstances, it
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was held that the father had not met the threshold that he was
willing to assume full custody.
In Matter of Kailee CC, (179
AD2d 891, lv to app den 79 NY2d 759), the father suggested that
the mother have an abortion.
He later left his employment,
abandoned his home, and became essentially homeless. The court
rejected his claim that his consent was required.
However, the contesting unwed father prevailed in Matter of Baby
S. (76 NY2d 287), the companion case to Raquel Marie.
The
father sought full custodial status from the moment he found
that the mother was pregnant and offered to establish paternity
and pay support. Likewise, a fourteen-year-old father prevailed
in the case of Matter of S.D. (NYLJ 7/31/06, p. 24, col. 1;
Queens Co. Fam. Ct.), in which he also sought to participate
fully in the child's life once he found that an adoption was
pending.
Whether an “unknowing" father is subject to the requirements of
Raquel Marie is an issue which has troubled the adoption
community.
This is especially so because in New York, a birth
mother may decline to disclose the identity of the birth father
(Matter of Jessica XX., 54 NY2d 417).
On the one hand, the
father may argue that he should not be held to the Raquel Marie
standards because he never knew that the mother was pregnant.
On the other hand, adoptive parents may argue that the father is
on constructive notice of the pregnancy because he has had
relations with the mother.
These questions were addressed by the Court of Appeals in Matter
of Robert O. v. Russell K. (80 NY2d 254).
In Robert O., the
mother had arranged for her child to be adopted without
notifying the father. When she signed her consent, she was not
asked questions about the father.
After the adoption, she reestablished a relationship with him and disclosed the adoption
to him.
Together, they petitioned for the adoption to be
overturned because the father was completely unaware of both the
mother’s pregnancy and the adoption.
The Court of Appeals unanimously ruled against the father. The
decision repeated the rule of Raquel Marie, and noted that the
mother had not misrepresented his status in any way. The Court
ruled that the father’s inaction was entirely attributable to
him, since he had never come forward to inquire about the child.
As such, Robert O. applies Raquel Marie X. against unknowing
fathers, at least where the adoption is finalized and where the
mother has not concealed her pregnancy/adoption plan from the
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father.
However, the Courts have ruled in favor of fathers
whose attempts to establish a relationship with their children
have been thwarted by the mother or adoptive parents. This line
of reasoning has been applied to infant adoptions (Matter of
Baby S.) as well as to adoptions of children placed more than
six months after birth (Matter of Edward Franz F., 166 AD2d
256). Therefore, it is extremely important to determine whether
the birth mother has actively concealed the fact of her
pregnancy and/or her adoption plan from the father.
All other
things being equal, it is far safer to notify the father of the
planned adoption than to move forward with the adoption without
his knowledge.
As such, any active misrepresentation will
jeopardize the adoptive placement.
A case which illustrates many of the above points is Matter of
Matthew D. (31 AD 3d 1103 [4th Dept. 2006]).
In Matthew D., a
sharply divided Fourth Department held that a father who
publicly acknowledged paternity and who commenced a paternity
proceeding prior to the child's birth was entitled to withhold
his consent to the adoption.
The majority also found that the
father sincerely believed the mother would not surrender the
child for adoption and that the mother gave birth at a distant
hospital to frustrate the father's efforts to learn about the
birth. The dissenting judges observed that the father made only
token financial contributions, did not seek legal custody of the
child until one month after the child's placement, did not file
with the Putative Father Registry, did not arrange to have
himself named on the child's birth certificate, did not
accompany the child's mother to doctor's visits and did not
maintain a proper home for an infant.
Note: When representing adoptive parents in a newborn adoption
where
the
birth
father's
relinquishment
is
missing
or
unavailable, it is very important to file the adoption petition
promptly, usually in the adoptive family's home county. If the
father later files for paternity/custody in his home county, the
adoptive
parents
will
be
able
to
argue
that
the
paternity/custody proceedings be dismissed, or transferred and
joined with the adoption (CPLR 3211). This will force the birth
father to litigate the case at some distance from his county of
residence.
On the other hand, if the father wins the race to
the courthouse, the adoptive parents will be at a disadvantage.
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B.
Child Placed For Adoption More Than Six Months After Birth
The Domestic Relations Law provides that an unwed father may
withhold his consent to the adoption of his child placed more
than six months after birth if he has supported the child to the
best of his ability and has regularly communicated with the
child, or the child's custodian(DRL §111[1][d]).
This law is
applicable to the situation where the child's custodial parent
later marries and the step-parent seeks to adopt the child.
Cases interpreting the above law generally place more emphasis
on the "communications" element.
This is perhaps because the
father's support obligation is sometimes difficult to measure
because of the difficulty in assessing his ability to earn
income, the presence/absence of a support order, and other
factors.
In addition, courts recognize that from the child's
standpoint, regular communications from the non-custodial parent
are the cornerstone of a parent-child relationship, and they are
reluctant to dispense with the consent of a parent who has
regularly communicated with his/her child, even where the level
of financial support has been less than adequate.
Practitioners should keep in mind that Domestic Relations Law
§111(2)(a) sets forth that even a father who satisfies
§111(1)(d) of the statute may forfeit parental rights if there
has been no visitation/communication for six months (Matter of
Andrew Peter H.T., 64 NY2d 1090).
Practitioners should also keep in mind that a parent must be
found to have failed to communicate for a period of at least six
months prior to the filing of the adoption petition.
It is
often better to wait for the passage of over six months.
If
this is the case, the Courts will often apply the “flicker of
interest” test, under which a parent’s sporadic visitation will
be discounted entirely (Matter of Michelle GG. (261 AD2d 681).
The burden of proof is on the adoptive parent to show that the
non custodial parent has not maintained a substantial and
continuous relationship with the child.
4.
PROCEDURE:
A.
The Parties
CONTESTED ADOPTIONS
The parties to a contested adoption proceeding are the birth
parents, the adoptive family and the child. The agency may also
9
play a role where it has taken custody of the child. A question
arises whether a birth mother who has signed a consent may
participate in a birth father’s challenge to an adoption, and at
least one lower court has said that she may neither participate
nor assist the adoptive family’s counsel.
The court is required to assign a law guardian for the child who
is the subject of the proceeding (Family Court Act §249).
In
addition, if the revoking parent is indigent, the Court is
required to appoint counsel at no charge for the parent.
B.
Forum
The trial of a contested adoption will ordinarily occur in the
Court where the adoption proceeding has been filed.
As noted
above, the only possible exception to this rule would be where
the father files a paternity or custody petition in his home
county before the adoptive parents have had a chance to file
their adoption petition in their home county.
This is a very
real possibility, because a paternity petition may be filed
before birth (Family Court Act §517). An adoption petition, on
the other hand, cannot be filed until after the child’s birth.
The adoptive family’s attorney may wish to avoid disputes as to
forum by drafting the necessary documents to include a venue
provision.
The parties to the adoption would consent that any
dispute or revocation must be filed in the county where the
adoption is filed.
C.
Pre-Trial Procedure
The attorney for the birth parent should consider an application
for temporary visitation and change of custody. In many cases,
the trial court will deny visitation, although some lower courts
have allowed temporary visitation.
Each
family
should
consider
an
application
psychologist examine the other family.
to
have
a
The attorneys for both adoptive and birth families will
undoubtedly wish to depose the opposing witnesses before trial.
While discovery has traditionally been limited in Family Court
proceedings, most courts will not deny pre-trial discovery
requests in adoption matters. It is good practice to seek court
leave to obtain discovery.
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Further, discovery of hospital birth records may be critical,
especially where pre-birth counseling and/or the birth mother’s
psychological condition is in issue.
These records may also
show whether the birth mother may have had diminished capacity
due to medication.
Public assistance or social services records
birth family’s history may also be helpful.
bearing
on
the
At the trial of a contested adoption involving a birth father
who is challenging the adoption on the basis that his consent is
required, the adoptive family bears the burden of proof.
In a
contested adoption involving a best interest hearing, the
adoptive parents and the birth parents share equally the burden
of proving that the child’s best interests will be served by
their custody.
It has been observed that the revoking birth
parent will ordinarily be required to go forward, the rationale
being that he or she should proceed first since he or she is
seeking to undo what has previously been done.
Experts may be called at trial to testify about the extent of
“bonding” and attachment that has developed between the infant
and the adoptive parents. Depending on the age of the child and
how long he or she has been with the adoptive family, removal
from the only home the child has ever known can be emotionally
devastating to the child and disruptive to the child’s potential
for a normal life.
The birth family will attempt to show
through their expert the child’s psychological resiliency and
ability to successfully adapt to change.
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