In re Daniel C. (99 A.D.2d 35, 1984)

OPINION OF THE COURT

Lazer, J. P.

Following strong manifestations of public discontent with the judicial result in the notorious Baby Lendre case where a mother who revoked her consent to adoption was successful in obtaining an order for the child’s return (see People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185), the Legislature enacted section 115-b of the Domestic Relations Law in an effort to avoid the occurrence of similar tragic experiences in the future. Properly invoked, the new section limits the right to revoke a consent to adoption to a 30-day period and limits the revoking natural parent’s remedy to a hearing to determine whether the best interests of the child would be served by return of the child or by adoption. Dissatisfied with the results of her effort to revoke her consent and to obtain the child’s return, the natural mother challenges the constitutionality of section 115-b, its interpretation by the Surrogate’s Court, and that court’s finding that the best interests of the child will be served if he remains with the adoptive parents. We conclude that the challenge must fail.

I

During her sixth month of pregnancy, C., the natural mother, who was then 20 years old and unmarried, sought her obstetrician’s assistance in placing the forthcoming child for adoption. The doctor contacted an interested young childless couple and preliminary arrangements for the adoption commenced. C., who was then residing with her parents and attending college in New York City, planned to leave the city, give birth, turn the child over to the adoptive parents and then return home to her parents, who were unaware of the pregnancy.

In furtherance of her plan, C. retained a lawyer and on December 11, 1981, two days after the birth of her son, signed a consent to his adoption in order to permit the adoptive parents to take possession of the child. At her lawyer’s office on January 20, 1982, C. signed the extrajudicial consent form that she now attacks. Supplied to all Family and Surrogate’s Court Judges and clerks by the Administrative Board of the Judicial Conferences, the consent form states on its face that it shall become irrevocable 30 days after commencement of the adoption proceeding unless revoked within that time. The form closely tracks the language of that portion of section 115-b of the Domestic Relations Law, which provides: “Such consent shall, if it shall so state, become irrevocable thirty days after the commencement of the adoption proceeding unless written notice of revocation thereof shall have been received by the court within said thirty days” (Domestic Relations Law, § 115-b, subd 1, par [d], cl [i] as added by L 1972, ch 639).

The relevant portion of the consent form reads as follows: “I, _, residing at _, natural [Mother] [Father] of_do hereby irrevocably Consent to the Private Placement Adoption of my [daughter] [son] _, born__I understand that in the event that this Consent is not executed before a Judge of the_Court, of the County of _, then and in that event this Consent shall become irrevocable thirty days after the commencement of the adoption proceedings unless written notice of revocation thereof shall be received by this Court within said thirty days” (see 10 West’s McKinney’s Forms, Matrimonial and Family Law, § 14:86E [1983 Pocket Part]).

The adoption proceeding was instituted in the Westchester County Surrogate’s Court on March 24, 1982, but six days later C. filed a notice of revocation of consent which the adoptive parents immediately resisted. Acting pursuant to the statute, the Acting Surrogate conducted a hearing to determine whether the revocation was in the child’s best interest (see Domestic Relations Law, § 115-b, subd 3, par [d]). In her memorandum to the trial court, C. urged that section 115-b be declared unconstitutional because the language it requires to be inserted in the consent form, if the right to revoke is to be limited, proffers the impression that timely revocation will nullify the consent absolutely, while all it actually directs is a hearing concerning the best interests of the child, at which the natural parent derives no advantage from parenthood (see Domestic Relations Law, § 115-b, subd 1, par [d]).

During the hearing, the parties focused on best interests, an issue which consumes nearly all of the almost 500 pages of transcript. Although the constitutional question was raised, the transcript contains no claim by C. that she was misled by the consent form. In the course of direct examination of C.’s obstetrician, counsel for the adoptive parents sought to explore C.’s knowledge of the meaning of the consent by inquiring concerning her conversations with the doctor. C.’s attorney objected to this inquiry, asserting the physician-patient privilege. Arguing for disclosure, the adoptive parents responded that the conversations sought to be disclosed did not relate to treatment but to the adoption itself. The following colloquy then occurred between the court and C.’s attorney:

“the court: Mr. Papantonio, you seem, in your brief, your trial memorandum, to also allude to some type or the possibility of fraud or at least a misunderstanding on the part of your client of what she was signing.

“mr. papantonio: I don’t believe that we did. We did not intend to create that impression in our memorandum, sir.

“the court: You see, you talk about the form being improper and misleading and —

“mr. papantonio: We are attaching [sic] the constitutionality of that act and the forms prepared under that act.

“the court: But you are not claiming that there is any — that she was mislead by the form?

“mr. papantonio: No, sir.

“the court: Oh, if you are not, then the objection is sustained”.

Although counsel for the adoptive parents continued to press for exploration of the mother’s understanding, arguing that C.’s conversations with the obstetrician included one that occurred on the day the extrajudicial consent was signed, the court continued to sustain objections on the ground that C. had conceded that she had not been misled.

Testifying on her own behalf, C. declared that she had read the consent form before signing it at her attorney’s office; that she knew it would be filed in the Surrogate’s Court and become irrevocable after 30 days; “that the adoption would not be completed until [she] signed a consent [before] the Surrogate”; that “I knew that I had a certain amount of time, even after I signed that paper”; and that “as far as I knew that an order [sic], after the consent was filed, I had 30 days in which to revoke the consent”. On cross-examination C. told the court that her lawyer was present when she signed the consent form and that “he explained it to me”. It is quite apparent that C.’s subsequent decision to revoke the consent was based in part on her parents’ supportive reaction to her revelation of the child’s birth.

The court denied C.’s application to withdraw her consent, finding that revocation would not serve the best interests of the child (see Matter of Daniel C., 115 Misc 2d 130). While the Acting Surrogate recognized that a lay person “could easily infer from the language of the form that * * * the consent * * * could be revoked and upon revocation the parties would be restored to a status quo position” (Matter of Daniel C., supra, p 133), it found that C. had not been misled by the form, that she had understood the consequences of her act and that she had been represented by competent counsel. Therefore, she had not been deprived of due process.

On appeal, C.’s new counsel makes an entirely new contention — that 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. If section 115-b is not interpreted to require a full explanation in the consent form, argues C., it is unconstitutional and her due process rights have been violated by use of the deceptive form. Also challenged is the Acting Surrogate’s finding that revocation is not in the best interests of the child.

II

Before reaching our dispositive analysis, we pause briefly to describe the legislation dealing with private placement adoptions, a statutory scheme which must be strictly construed (see Domestic Relations Law, § 110; Dennis T. v Joseph C., 82 AD2d 125). In the Baby Lenore case, which preceded the enactment of section 115-b, the Court of Appeals construed the adoption statutes as providing the judiciary with discretion to permit revocation of adoption consents at any time until the final order of adoption (see People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185, supra). Responding to the public outcry created by Baby Lenore, the Legislature created a private placement procedure intended to limit the right to revoke consents. Section 115-b (subd 1, par [c]) provides that where a consent has been executed before a Judge of the adoption court “no action or proceeding may be maintained by the consenting parent for the custody of the child to be adopted, and no such consent shall be revoked by such parent if * * * [the] consent states that it shall become irrevocable upon * * * execution”. Where, as here, the consent form has not been executed before a Judge, it becomes irrevocable 30 days after the commencement of the adoption proceeding “if it shall so state” unless written notice of revocation is received by the court within 30 days after the adoption proceeding has commenced (Domestic Relations Law, § 115-b, subd 1, par [d], cl [i]). Thus, whether or not executed before a Judge, if the right to revoke is to be limited, the consent form must state when it becomes irrevocable. There are no words in the statute that require an extrajudicial consent form to contain an explanation of the legal consequences of a timely revocation that is resisted by adoptive parents. In a clause that follows the provisions requiring the time of irrevocability to be stated in the consent form, the statute provides that a resisted revocation that is timely will result in a best interests hearing at which the natural parent has no right superior to that of the adoptive parents (Domestic Relations Law, § 115-b, subd 1, par [d], cl [ii]).

Although the instant consent form constitutes an almost verbatim transcription of the relevant portion of section 115-b, C. argues that the statute really requires “that all consents recite on their face the substance of the statute itself”. The best refutation of that claim is the actual language of the statutory paragraph dealing with the effect of a notice of revocation. That language imposes no requirement that the contents of the paragraph or its substance be inserted in the form; indeed, it makes no reference to the consent form at all (Qomestic Relations Law, § 115-b, subd 1, par [d], cl [ii]). What other paragraphs of section 115-b do require to be inserted in the consent form is a statement of the name and address of the adoption court and, if revocation is to be limited, that there be a further statement that the consent becomes irrevocable after 30 days (Domestic Relations Law, § 115-b, subd 1, pars [a], [d], cl [i]).

We do not agree that as a matter of statutory construction section 115-b must be deemed to require all of its relevant provisions to be inserted in the consent form. A statute must be construed according to the ordinary meaning of its words (Riegert Apts. Corp. v Planning Bd., 57 NY2d 206) and resort to extrinsic matter, such as the legislative history, is inappropriate when the statutory language is unambiguous and the meaning unequivocal (Giblin v Nassau County Med. Center, 61 NY2d 67; Sega v State of New York, 60 NY2d 183; New Amsterdam Cas. Co. v Stecker, 3 NY2d 1). Where, as here, a statute is clear, a court should not attempt to cure an omission in the statute by supplying what it believes should have been put there by the Legislature (Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516, app dsmd 52 NY2d 895; McKinney’s Cons Laws of NY, Book 1, Statutes, § 363) for the judiciary should not substitute its wisdom for that of the Legislature (Nettleton Co. v Diamond, 27 NY2d 182, 194; Meltzer v Koenigsberg, 302 NY 523). Regardless of the contents of any memorandum written by a drafter of legislation, the legislation stands for what its words manifest and not the inner thoughts of a draftsman (see People v Graham, 55 NY2d 144, 151; McKinney’s Cons Laws of NY, Book 1, Statutes, § 76). This is especially true because “‘there is no necessary correlation between what the draftsman of the text of a bill understands it to mean and what members of the enacting legislature understand’” (People v Graham, supra, p 151, citing 2A Sutherland, Statutory Construction [4th ed], §§ 48.09, 48.12). Since the Legislature made its intent clear when it mandated the insertion of particular information in the consent form, the absence of any provision that the entire statute be explained in the form demonstrates an intent not to require more detailed information in the form.

Ill

Faced with the clear language of the statute, C. posits the further contention, that absent the judicial construetion she suggests, the statute is unconstitutional. We see no need to reach her rather complex due process arguments, because C. lacks the standing to raise them.

Under settled standing principles, those who challenge a statute as unconstitutional must demonstrate actual or threatened injury to a protected right (see Duke Power Co. v Carolina Environmental Study Group, 438 US 59; People v Parker, 41 NY2d 21; Matter of Donohue v Cornelius, 17 NY2d 390, 397; People v Merolla, 9 NY2d 62) and that they have been aggrieved by the unconstitutional feature of the statute (see Ulster County Ct. v Allen, 442 US 140; Oriental Blvd. Co. v Heller, 27 NY2d 212; People v Beakes Dairy Co., 222 NY 416). Constitutional litigants are not ordinarily entitled to raise the unconstitutionality of a statute as it is applied to others (see United States v Raines, 362 US 17; American Power Co. v Securities & Exch. Comm., 329 US 90; People v Parker, supra; People v Drayton, 39 NY2d 580; People v Merolla, supra; O’Kane v State of New York, 283 NY 439; Matter of Anonymous, 55 AD2d 383).

On this record, it is quite apparent that C. was not directly aggrieved by the alleged defect in section 115-b. Her testimony that she believed she had 30 days in which to revoke her consent does not imply that she was unaware of the consequences of revocation since she later admitted that the statute had been explained to her by her lawyer. She is bound by her position at the trial as expressed by her lawyer who explicitly conceded that C. had not been misled by the consent form. This concession — a formal judicial admission that she was not misled — was deliberately made for the express purpose of limiting and defining the facts in issue (see Fisch, NY Evidence [2d ed], § 803; McCormick, Evidence [2d ed], § 266) and was successful in preventing the adoptive parents from exploring C.’s knowledge of the effects of revocation. Since the admission is conclusive on C. (see Coffin v President & Directors of Grand Rapids Hydraulic Co., 136 NY 655; Burdick v Horowitz, 56 AD2d 882; Richardson, Evidence [Prince, 10th ed], § 216), she has suffered no injury in fact from the allegedly misleading language in the consent form nor has she been otherwise prejudiced by the assertedly unconstitutional feature of section 115-b.

In holding as we do, we have considered whether there is an exception to the injury-in-fact requirement for standing (see United States v Raines, 362 US 17, supra) which would permit C. to pursue her constitutional thrust. Exceptions relating to the First Amendment area (see, e.g., Gooding v Wilson, 405 US 518) or where there is a close nexus between the present party and the person(s) whose constitutional rights are alleged to be violated (see, e.g., Griswold v Connecticut, 381 US 479; Barrows v Jackson, 346 US 249) are not relevant to this case. Neither is the void-statute exception under which a statute may be attacked by someone otherwise affected by it but not aggrieved by its unconstitutional feature. The exception is available if the statute can be found unconstitutional as to others not before the court and the constitutional and unconstitutional features cannot be meaningfully severed, thus rendering the entire statute invalid (see Aptheker v Secretary of State, 378 US 500; United States v Raines, supra, p 23; Thompson v Wallin, 276 App Div 463, affd 301 NY 476, app dsmd 342 US 801; cf. People v Lathrop, 3 NY2d 551; Bronx Gas & Elec. Co. v Maltbie, 268 NY 278; see, also, Sedler, The Assertion of Constitutional Jus Tertii: A Substantive Approach, 70 Cal L Rev 1308, 1323-1326; Tribe, American Constitutional Law, pp 106-107; 16 CJS, Constitutional Law, § 76, p 241). Under the void-statute exception, a facial challenge to a statute may be made by a person not aggrieved by the unconstitutional feature of the law if the constitutional sections cannot be given legal effect without the unconstitutional ones or when the valid operation of the statute is so restricted by nullification of the unconstitutional feature that the Legislature would not have intended the valid provisions to stand with the invalid provisions stricken (see United States v Raines, supra; Dorchy v Kansas, 264 US 286; cf. F.T.B. Realty Corp. v Goodman, 300 NY 140; Fougera & Co. v City of New York, 224 NY 269; see, also, 2 Antieau, Modern Constitutional Law, § 15:35; Stern, Separability and Separability Clauses in the Supreme Court, 51 Harv L Rev 76). The test, applied with liberality in this State, is whether, if partial invalidity had been foreseen, the Legislature would have desired that the statute be enforced with the invalid part eliminated or whether it would then have rejected the statute altogether (see People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48, 60; see, also, People v Mancuso, 255 NY 463; Schieffelin v Goldsmith, 253 NY 243).

Here the void-statute exception is not available to provide standing to C. because the statute can survive without the allegedly offending provisions of section 115-b. If the provisions of the statute applicable to extrajudicial consents are void, they can be severed, leaving other valid provisions which would still permit private placements where the consent has been executed before the adoption court or where the extrajudicial consent contains no language concerning irrevocability. Thus, if paragraph (d) of subdivision 1 of section 115-b were deleted, a viable scheme for private placement adoption would still remain, while to strike all of section 115-b because of the existence of the challenged paragraph would extinguish all statutory authority for private placements based on consent and jeopardize the validity of all such adoptions currently in process. We conclude that the void-statute exception is not available to C. (see People v Lathrop, supra; Bronx Gas & Elec. Co. v Maltbie, supra; Grossman v Baumgartner, 22 AD2d 100, affd 17 NY2d 345).

We are aware, of course, that State courts can follow their own jurisprudence in determining whether a party has standing to raise a Federal constitutional question (see Bateman v Arizona, 429 US 1302; Doremus v Board of Educ., 342 US 429; Venditti v Incorporated Vil. of Old Westbury, 89 AD2d 960) and New York generally has shown a more permissive attitude toward standing than the Federal judiciary (see, e.g., Matter of District Attorney of Suffolk County, 58 NY2d 436; Matter of Morgenthau v Cooke, 56 NY2d 24; Boryszewski v Brydges, 37 NY2d 361; Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1; National Organization for Women v State Div. of Human Rights, 34 NY2d 416). One major rationale for this liberal policy — the desire to prevent a barrier to judicial scrutiny of legislative action (see, e.g., Matter of Feight v Lesser, 58 NY2d 101, 106; Boryszewski v Brydges, supra) — would not be furthered by granting standing to C. because there is no reason why others who may actually be aggrieved by section 115-b will be unable to assert their own claims. While the liberal zone of interest test for review of administrative action (see, e.g., Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158; Matter of Morgenthau v Cooke, supra; Matter of Douglaston Civic Assn. v Galvin, supra) does not apply to challenges to legislative enactments, even in the administrative cases some cognizable injury has been demonstrated by the party challenging the administrative action.

Where the merits of appeals actually have been reached because of the recurring nature of publicly significant questions constantly rendered moot by the time they reach the appellate level (see, e.g., People ex rel. Donohoe v Montanye, 35 NY2d 221; Matter of Gold v Lomenzo, 29 NY2d 468; East Meadow Community Concerts Assn. v Board of Educ., 18 NY2d 129) or because a significant public question has recurred and the Appellate Divisions are divided (see, e.g., People v Parker, 41 NY2d 21, 25, supra), there have been no significant countervailing interests to reaching the substantive issue. To ignore standing principles here because of C.’s personal misfortune not only would create a new exception to standing requirements but it could result in grave and perhaps tragic consequences to others currently involved in the adoptive process. Although we have not reached the merits of the constitutional issue, we note that a declaration that the extrajudicial consent portions of section 115-b are unconstitutional would be applicable to all such adoptions not yet finalized (see Matter of Jessica XX, 54 NY2d 417, 424). Any attempt to limit the effect of such a declaration by restricting it to consents executed in the future would place us in the untenable position of declaring that the statute (or some portion of it) is unconstitutional because it authorizes misleading consent forms while at the same time precluding all persons who have executed consents under the void statute from challenging it — with the exception of C., who was not aggrieved by the statute or the form.

IV

Finally, we turn to our colleague’s dissenting opinion and direct our attention solely to those of his contentions which have not been the subject of previous discussion in this opinion.

We cannot agree with Justice Gibbons that the adoptive parents waived the issue of standing or that it was even waivable. In contending that “the Court should not reach the issue as to the correctness of the form” because of the concession made by the mother’s attorney, the adoptive parents clearly attacked C.’s standing. In any event, lack of standing in the context of the constitutionality of a statute is not a matter for waiver by parties, for it is the courts which must decide whether the parties have a sufficient stake in the litigation to necessitate constitutional adjudication, and one party does not have the ability to confer standing upon another. Matter of Prudco Realty Corp. v Palermo (60 NY2d 656), cited in the dissent, is inapposite because it merely held that an administrative agency’s failure to raise the standing question with respect to review of an administrative determination waived any objection to standing.

Further, we see no basis to upset the formal judicial admission made by the lawyer who represented C. at the hearing. Although a party may be relieved from the terms of a stipulation made in open court by her attorney when it is evident that the attorney’s understanding of the stipulated terms differs obviously and radically from the perception of the adversarial party (see Matter of O’Brien v Assessor of Town of Mamaroneck, 20 NY2d 587; Matter of Way v Town of Poughkeepsie, 75 AD2d 602), none of the instant litigants claim that the attorney did not understand the import of his concession. When the obstetrician was asked to reveal the contents of C.’s conversations with him concerning the adoption, her lawyer objected and made the categorical declaration that his client was not misled by the consent form. He thus succeeded in excluding presumably damaging evidence and we cannot perceive how he could have misconceived the import of his straightforward declaration.

We also disagree with our colleague’s assertion that the admission was not binding because C.’s lawyer should have been disqualified on the ground that his testimony was necessary on the issue of C.’s awareness of her rights and because his conduct at trial advanced his own interests in escaping the consequences of his “failure to apprise” C. of her rights. While it is highly questionable whether a civil judgment can be overthrown by a posttrial claim of conflict of interest, here C. herself has made no such claim, and it would be highly unfair for this court, sua sponte on this record, to find her attorney guilty of such conduct. We are obligated to respect a party’s choice of trial counsel (People v Gomberg, 38 NY2d 307, 312) and we should not readily interfere with an attorney-client relationship (see, also, Matter of Schumer v Holtzman, 60 NY2d 46). To presume that C.’s trial counsel did not testify that C. was misled by the form because he had a conflict of interest is to make a factual determination that she was misled in the face of (1) her admission that the statute had been explained to her; (2) her lawyer’s declaration in her presence that she was not misled; (3) the Acting Surrogate’s finding that she was not misled; and (4) the absence of any claim by her present counsel or his client that his predecessor should have testified. On this record, there is no basis for a finding that the lawyer performed otherwise than in accordance with ethical requirements and we find no basis either to criticize or condemn him.

In sum, C.’s unhappiness should not be transformed into a multiple tragedy for others currently engaged in the adoptive process; nor should this case become the springboard for returning the State to the deplorable situation that prevailed before the enactment of section 115-b. The Acting Surrogate found the best interests of the child were served by adoption. We are in accord with that conclusion. If the statute has defects, the cure is with the Legislature.

Accordingly, there should be an affirmance.

Gibbons, J. (dissenting).

This is an adoption proceeding which is contested by the natural mother, appellant Claire C. Claire was 20 years old when she became pregnant with the child Daniel C. At the time, she lived with her parents in The Bronx and was a senior in college. She was not married. Claire is a Roman Catholic and is apparently quite devout. Feeling ashamed, she did not tell her family about her pregnancy. However, because of her religion and because of a growing love for the unborn child, she did not consider the possibility of abortion. The best alternative left to her, as she saw it then, was to have the baby and then to put it up for adoption, with her parents never knowing of its existence.

Apparently in a quandary because of the dilemma she was facing, Claire did not see an obstetrician until her sixth month of pregnancy. Not wishing to see a doctor in circumstances where word might get out to friends or family, Claire looked for a doctor in the Westchester County phone book. She chose Dr. John Mastrantonio and his associates, “because they did not advertise abortions”. She saw Dr. Mastrantonio for the first time on September 23, 1981, at which time he estimated that the baby would be born in the first week of December. Claire spoke to the doctor about her wish to give the child up for adoption. The doctor contacted Mr. and Mrs. S., petitioners-respondents herein, as prospective adoptive parents. Dr. Mastrantonio also referred Claire to an attorney, Edward Papantonio.

Wishing to continue to keep her pregnancy a secret, Claire devised a plan whereby she would temporarily drop out of school, leave The Bronx, give birth, turn the child over to the adoptive parents, and then return home. She was able to do this, with Mr. and Mrs. S. referring her to a woman in Newburgh, New York, with whom she lived until the baby was born.

The baby, Daniel C., was born on December 9,1981, the delivery being performed by one of Dr. Mastrantonio’s associates. Claire turned the baby over to a representative of the adoptive parents on December 12, as she was leaving the hospital where the delivery had taken place.

On January 20, 1982, Claire signed an “irrevocable consent” form in her attorney’s office. The form, which is an official form used by the Surrogate’s Court (see Matter of Daniel C., 115 Misc 2d 130, 131), reads as follows:

“Form 702A- Irr. Consent before Notary

“STATE OF NEW YORK

“SURROGATE’S COURT, COUNTY OF WESTCHESTER

“In the Matter of the Adoption of DANIEL C.

Adoptive Child irrevocable consent

“I, claire c., residing at Newburgh, New York, natural (mother) of daniel c. do hereby irrevocably consent to the Private Placement Adoption of my (son) daniel c. born on December 9,1981.1 understand that in the event that this Consent is not executed before a Judge of the Surrogate’s Court of the County of Westchester, then and in that event this Consent shall become irrevocable thirty days after the commencement of the adoption proceeding unless written notice of revocation thereof shall be received by this Court within said thirty days.

“The name and address of the Court in which the adoption proceeding is to be commenced is: Surrogate’s Court, County of Westchester, “Address: County Courthouse, 111 Grove St., White Plains, New York 10601.

CLAIRE C.

Natural (mother)

i

“state of New York )

“COUNTY OF WESTCHESTER ) SS:

“On this 20th day of January, 1982, before me personally came claire c. to me known and known to me to be the person described in and who executed the foregoing instrument and she duly acknowledged to me that she executed the same.

Edward Papantonio

Notary Public

“I also hereby acknowledge receipt of a conformed copy of this irrevocable consent which was delivered to me by edward papantonio this 20th day of January, 1982.

claire c.

Natural (mother)”.

At the time she signed the form, Claire wanted to tell her family about the whole matter, but, again, because of her sense of shame and to avoid causing her family worry, she kept quiet. Finally, after much soul-searching, Claire decided that she wanted her child back. She had always felt uncertain and guilty about giving him up. As time went by she began to feel more and more definitely that she wanted her baby. Finally, she made the decision to revoke her consent to the adoption, and, on March 22, 1982, told her family about the child and that she was going to keep him. The family was very supportive. The same day Claire called her attorney and told him that she was revoking her consent.

Two days later, on March 24, 1982, Mr. and Mrs. S., the adoptive parents, initiated adoption proceedings with the filing of a petition. A notice of revocation of consent was filed by Claire, and on April 7, 1982, the adoptive parents filed a notice indicating that they were contesting the revocation of consent. The matter of Daniel C.’s adoption came on for a hearing pursuant to subdivision 3 of section 115-b of the Domestic Relations Law before Acting Surrogate Martin, in the Westchester County Surrogate’s Court. Claire was represented at the hearing by Edward Papantonio.

In a memorandum of law submitted before the hearing, Claire’s attorney argued that section 115-b of the Domestic Relations Law was unconstitutional insofar as it allowed the issue of whether or not a child should be adopted to turn on a best interests of the child test, without finding that the natural parent or parents were “unfit and/or neglectful” (see Domestic Relations Law, § 115-b, subd 3, par [d], cl [v]). Mr. Papantonio also contended that the official irrevocable consent form signed by Claire is constitutionally defective in that it does not indicate that a timely revocation can be contested by the prospective adoptive parents. In that regard Mr. Papantonio categorically asserted that “[t]he evidence at trial will show that the natural mother, upon executing the form, was absolutely certain that she could revoke the document at any time up to thirty (30) days after the petition for adoption was filed; and that upon filing such revocation, the proceeding would end and the child would be returned to her”. Similarly, with respect to the sufficiency of the form, Mr. Papantonio, citing our decision in Matter of Male M. (76 AD2d 839, mot for lv to app den 50 NY2d 1056), also maintained that the form signed by appellant did not comply with the requirements of section 115-b. Finally, Claire’s attorney contended that she was a fit mother and that it was in the child’s best interests to be returned to her.

The trial court held that the adoption should be permitted (Matter of Daniel C., 115 Misc 2d 130, supra). Acting Surrogate Martin found that while the official form was misleading and should be revised, the natural mother in this case was not misled (Matter of Daniel C., supra, pp 133-134). In regard to the latter issue, he noted that Claire had an attorney when she signed the consent and that no testimony had been presented as to what her attorney had told her concerning her rights under section 115-b. The court went on to hold that section 115-b was constitutional, and that, while Claire was a loving and intelligent young woman, it would be in Daniel’s best interests to be adopted by the prospective adoptive parents (Matter of Daniel C., supra, pp 134-140).

To prosecute her appeal the natural mother has retained new counsel. Contrary to what is said in the majority opinion, on appeal, Claire does not contend that section 115-b of the Domestic Relations Law is unconstitutional. Rather, the central thrust of her appeal is that her consent was not an informed one and that the official form does not comport with the requirements of section 115-b and is in violation of the constitutional rights of a parent. She further maintains that, since the consent was invalid, the child cannot be taken away from her without a finding of gross misconduct on her part. These contentions, also contrary to the view of the majority, were raised, as aforestated, in Claire’s trial memorandum.

The trial court avoided having to rule on the legal sufficiency of the consent form by finding, as already noted, that Claire was not misled by the form. My colleagues in the majority achieve a similar result by holding that Claire’s lawyer made a “formal judicial admission” that she was not misled, precluding any further inquiry into that subject. My colleagues then conclude that Claire lacks standing to question the legal sufficiency of the form.

I would reverse and order the immediate return of the child to his natural mother, on the ground that the consent form signed by appellant was defective.

Section 115-b of the Domestic Relations Law, entitled “Special provisions relating to consents in private-placement adoptions”, reads as follows:

“1. If a duly executed and acknowledged consent to a private-placement adoption shall so recite, no action or proceeding may be maintained by the consenting parent for the custody of the child to be adopted, and no such consent shall be revoked by such parent if:

“(a) The consent sets forth the name and address of the court in which the adoption proceeding is to be commenced; and

“(b) A copy of such consent was given to such parent upon the execution thereof; and

“(c) The consent was 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; or

“(d) The consent was not executed or acknowledged before a judge or surrogate of the court in which the adoption proceeding is to be commenced, in which case,

“(i) Such consent shall, if it shall so state, become irrevocable thirty days after the commencement of the adoption proceeding unless written notice of revocation thereof shall have been received by the court within said thirty days.

“(ii) Notwithstanding that such written notice shall have been received within said thirty days, the notice of revocation shall be given effect only if the adoptive parents fail to oppose such revocation, as provided in subdivision three of this section, or, if they oppose such revocation and the court as provided in subdivision three of this section shall have determined that the best interests of the child will be promoted by giving force and effect to such revocation.

“2. At the time that a person appears before a judge or surrogate to execute or acknowledge a consent to adoption, the judge or surrogate shall inform such person of the consequences of such act pursuant to the provisions of this section.

“3. (a) A parent may revoke his consent to adoption only if it has not become irrevocable under the provisions of this section and only by giving notice, in writing, of such action to the court in which the adoption proceeding has been or is to be commenced. Such notice shall set forth the address of the parent and may, in addition, set forth the name and address of the attorney for the parent.

“(b) If, at the time of filing of the petition for adoption, or within thirty days thereafter, the court has received or shall receive such notice of revocation, the court shall promptly notify the adoptive parents, by notice in writing to them and to their attorney, of the receipt by the court of such notice of revocation.

“(i) Such notice to the adoptive parents shall set forth that unless, within ten days from the date of such notice the court shall receive from the adoptive parents notice, in writing, of their intention to oppose such revocation by the parents, the adoption proceeding will be dismissed and that, in case of such dismissal, the court will send to the parents and to the adoptive parents the notice of dismissal, as provided in paragraph (c) of this subdivision.

“(ii) Such notice to the adoptive parents shall further set forth that if, within ten days from the date of such notice, the court shall receive from the adoptive parents notice, in writing, of their intention to oppose such revocation by the parents, the court will, upon notice to the parents and to the adoptive parents, proceed, as provided in paragraph (d) of this subdivision, to a determination of whether such notice of revocation by the parents shall be given force and effect and to a determination of what disposition shall be made of the custody of the child.

“(c) If the adoption proceeding is dismissed pursuant to the provisions of paragraph (b) of this subdivision,

“(i) Written notice of such dismissal shall forthwith be sent to the parent or, if represented by attorney, to the attorney for the parent, and to the attorney for the adoptive parents.

“(ii) Such notice of dismissal shall set forth the name and address of the parent, the name and address of the attorney for the parent, if any, the name and address of the attorney for the adoptive parents.

“(iii) Such notice of dismissal shall further set forth that if the child is not returned to the custody of the parent within ten days from the date of such notice of dismissal, the court will forthwith upon request, in writing, by the parent or by the attorney for the parent, furnish to said parent or attorney so requesting, the names and addresses of the adoptive parents.

“(iv) Such notice of dismissal shall further state that, in the event the custody of the child is not returned to the parent by the adoptive parents upon request therefor, a proceeding to obtain custody may be instituted by the parent in the Supreme Court or the Family Court,

“(d) If, pursuant to the provisions of paragraph (b) of this subdivision, the adoptive parents shall give notice of their intention to oppose the revocation of the parent’s consent,

“(i) The court shall promptly notify, in writing, the parent or the attorney for the parent, if any shall have been named in the notice of revocation, and the attorney for the adoptive parents, that the court will, upon the date specified in such notice by the court, or as soon thereafter as the parties may be heard pursuant to this paragraph, hear and determine whether revocation of the consent of the parent shall be permitted and, in any event, hear and determine what disposition should be made with respect to the custody of the child.

“(ii) The court shall, upon the date specified, take proof as to whether the best interests of the child will be promoted by the return of the child to the parents, or by the adoption of the child by the adoptive parents, or by placement of the child with an authorized agency for foster care with or without authority to consent to the adoption of the child, or by other disposition of the custody of the child.

“(iii) If the court shall determine that the best interests of the child will be served by returning custody of the child to the parent or by placement of the child with an authorized agency or by disposition other than adoption by the adoptive parents, the revocation of consent shall be given force and effect and the court shall make such disposition of the custody of the child as will best serve the interests of the child.

“(iv) If the court shall determine that the best interests of the child will be served by adoption of the child by the adoptive parents, the court shall enter an order denying any force or effect to the notice of revocation of consent and shall dispose of the custody of the child as if no such notice of revocation had been given by the parent.

“(v) In such proceeding the parent or parents who consented to such adoption shall have no right to the custody of the child superior to that of the adoptive parents, notwithstanding that the parent or parents who consented to the adoption are fit, competent and able to duly maintain, support and educate the child. The custody of such child shall be awarded solely on the basis of the best interests of the child, and there shall be no presumption that such interests will be promoted by any particular custodial disposition.

“4. Nothing contained in this section shall limit or affect the power and authority of the court in an adoption proceeding, pursuant to the provisions of section one hundred sixteen of this title, to remove the child from the home of the adoptive parents, upon the ground that the welfare of the child requires such action, and thereupon to return the child to a natural parent or place the child with an authorized agency, or, in the case of a surrogate, transfer the child to the family court; nor shall this section bar actions or proceedings brought on the ground of fraud, duress or coercion in the execution or inducement of an adoption consent”.

The statute allows for two types of consent. The first is a judicial consent, which becomes absolutely irrevocable when “executed or acknowledged before a judge or surrogate of the court in which the adoption proceeding is to be commenced” - (Domestic Relations Law, § 115-b, subd 1, par [c]). To insure that the natural parent knows that the judicial consent is irrevocable, the Judge or Surrogate who takes the consent must first “inform such person of the consequences of such act” (Domestic Relations Law, § 115-b, subd 2), and the consent form itself must recite that the parent’s consent “shall become irrevocable upon such execution or acknowledgement” (Domestic Relations Law, § 115-b, subd 1, par [c]).

The second type of consent is extrajudicial. It is not absolutely irrevocable upon its execution, but becomes irrevocable 30 days after the commencement of the adoption proceeding, if, within that period, the natural parent does not withdraw his or her consent (Domestic Relations Law, § 115-b, subd 1, par [d], cl [i]). If there is a timely and proper revocation of consent, the adoptive parents are so informed (Domestic Relations Law, § 115-b, subd 3, par [b]). If the adoptive parents do not oppose the revocation, the adoption petition will be dismissed and the child returned to the natural parent (Domestic Relations Law, § 115-b, subd 3, par [b], cl [i]; par [c]). If the adoptive parents oppose the revocation, the court shall conduct a hearing to “determine whether revocation of the consent of the parent shall be permitted and, in any event, hear and determine what disposition should be made with respect to the custody of the child”, based on an evaluation of what would be in “the best interests of the child” (Domestic Relations Law, § 115-b, subd 3, par [d], els [i], [ii]). At the hearing, the natural parent will not benefit from any presumption in his or her favor, nor will it be necessary to show that the natural parent is unfit before the child can be adopted (Domestic Relations Law, § 115-b, subd 3, par [d], cl [v]). In short, both the natural and adoptive parents will stand on the same footing.

The primary question before us, as made clear in appellant’s brief, is: what does the statute mandate with regard to an extrajudicial consent so as to insure that the natural parent is apprised of her or his rights? The majority argues that section 115-b does not mandate a warning about the best interests determination. The natural mother contends that this, along with other information pertinent to the schema applicable to an extrajudicial consent, is required by the statute to be part of the consent. I agree with her to the extent that I conclude that a consent form, to be valid under the statute, must have language in it informing the signatory that if she or he timely revokes the consent, and if the adoptive parents still want the child, the child will not be returned to the natural parent unless the court first determines that such would be in the child’s best interests.

I am led to the above conclusion by several considerations. First, the very organization of section 115-b is significant. Subdivision 1 sets forth the requirements of a valid private placement consent. Subdivision 2 provides that a Surrogate or Judge who takes a consent must explain to the natural parent what will happen when the consent is signed. The third subdivision is concerned with extrajudicial consents. It presupposes that the initial consent is valid and considers how a consent is revoked, and what happens thereafter. Subdivision 4 pertains to circumstances which are not relevant to this case. The last clause of subdivision 1 (par [d], cl [ii]) states: “Notwithstanding that such written notice shall have been received within said thirty days, the notice of revocation shall be given effect only if the adoptive parents fail to oppose such revocation, as provided in subdivision three of this section, or, if they oppose such revocation and the court as provided in subdivision three of this section shall have determined that the best interests of the child will be promoted by giving force and effect to such revocation”. I submit that this clause would not have been inserted in the statute unless the Legislature intended it to be incorporated into the language of a valid consent. The information contained in this clause is redundant to that found in subdivision 3.1 can perceive of no reason for this clause to be in the statute except in reference to what should be contained in a consent to make it valid. The fact that the clause is inserted in subdivision 1, the subdivision pertaining to the making of a consent, confirms this conclusion.

Secondly, the initial phrase of subdivision 1 states: “If a duly executed and acknowledged consent to a private-placement adoption shall so recite”. I take this to mean everything that follows in subdivision 1 is to be reflected in the consent in order to make it valid under the statute, including the above-quoted clause of subdivision 1 (par [d], cl [ii]).

The majority, in interpreting the statute, argues that the presence of the phrase “if it [the consent] shall so state” in subdivision 1 (par [d], cl [i]), and its absence in clause (ii) of the same paragraph, demonstrates conclusively that clause (ii) need not be contained in the consent. My colleagues maintain that their conclusion is manifested by the unambiguous language of the statute, and that, since the meaning and intent of the statute is clear, it is inappropriate to resort to rules of construction in order to apply the statute. Citation is made to cases such as New Amsterdam, Cas. Co. v Stecker (3 NY2d 1).

There is an inconsistency in my colleagues’ argument, in that, to arrive at their conclusion, they themselves resort to a rule of construction. That rule is expressio unius est exclusio alterius, i.e., the expression of a thing or act in one place implies that its omission elsewhere was intentional (McKinney’s Cons Laws of NY, Book 1, Statutes, § 240). One is reminded here of the following comment made by Judge Jasen, writing for the majority of the Court of Appeals in the case of Williams v Williams (23 NY2d 592, 598): “It has sometimes been said that if the words of a statute are clear on their face the statute must be administered on the basis of those words, and that only statutes of doubtful meaning are subject to judicial interpretation. However, this rule of construction suffers from the basic fallacy that words have meaning in and of themselves. A statute is ‘clear and unambiguous’ because the court has considered the meaning of the statute and reached a conclusion on the question of legislative intention”. Sutherland’s classical treatise on statutory interpretation in even stronger language exposes the irony implicit in the proposition that a “clear and unambiguous” statute should not be subject to judicial interpretation. “The assertion in a judicial opinion that a statute needs no interpretation because it is ‘clear and unambiguous’ is in reality evidence that the court has already considered and construed the act. It may also signify that the court is unwilling to consider matter or evidence bearing on the question as to how the statute should be construed, and is instead declaring its effect on the basis of the judge’s own uninstructed and unrationalized impression of its meaning. Because issues as to what a statute means or what a legislature intended are essentially issues of fact, even though they are decided by the judge and not by a jury, a court should never exclude relevant and probative evidence from consideration”. (2A Sutherland, Statutes and Statutory Construction [4th ed], § 45.02, p 4.)

The inconsistency in the majority’s argument aside, my colleagues can hardly quarrel with the proposition that, in interpreting a statute, legislative intent is the great and controlling principle and that, in determining such intent, provisions of an act will not be analyzed in isolation but rather with reference to the whole statutory scheme and in context (Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38-39; Matter of Meyer, 209 NY 386; People ex rel. Onondaga County Sav. Bank v Butler, 147 NY 164, 167-168). I have already discussed two aspects of the statute which support my contention that the consent form should inform the natural parent that a revocation of consent may be subject to judicial review under a best interests standard, viz., the organization of the statute and the explicit command contained in the initial phrase of subdivision 1. A third consideration is equal treatment for those involved in the adoption process, and a comparison of various parts of section 115-b.

A natural parent who executes a consent in front of a Judge or Surrogate must be informed by the latter as to the consequences of what she or he is doing. Thus, the statute insures that the judicial consent is a knowledgeable one. In the case of an extrajudicial consent, there is no way to insure that the natural parent will be fully aware of the legal consequences of the consent. After all, a Judge or Surrogate, by definition, is not present to make sure that the parent is truly aware of what is happening. In such a situation, the consent form itself must provide the necessary information. I do not believe that the Legislature would be so sensitive to the need to inform a parent who signs a judicial consent, but would ignore the equally vital need to make certain that a signer of an extrajudicial consent has, at least, the basic legal facts before him or her. In the words of Chief Judge (then Judge) Fuld, speaking for a unanimous Court of Appeals faced with a similar apparent discrepancy in a statute: “Manifestly, to differentiate between the two situations would not only be completely illogical and unrealistic but would, indeed, serve to thwart the very policy considerations underlying the statute. Absent clear language to that effect * * * we will not ascribe such ambivalent intentions to the Legislature” (Matter of Hogan v Culkin, 18 NY2d 330, 335).

It is also noteworthy that, under subdivision 3 of section 115-b, when a natural parent files a revocation, the court must inform the adoptive parents of the situation. The notice to the adoptive parents must state that if the latter choose to oppose the revocation, “the court will * * * proceed, as provided in paragraph (d) of this subdivision [concerning a best interests hearing], to a determination of whether such notice of revocation by the parents shall be given force and effect and to a determination of what disposition shall be made of the custody of the child” (Domestic Relations Law, § 115-b, subd 3, par [b], cl [ii]). It would be remarkable for the Legislature to require such a detailing of information for the benefit of the adoptive parents, to aid them in their decision as to whether or not to oppose the revocation, without requiring that similar information be given to the natural parent, to aid in the initial decision of whether to place the child for adoption. I submit that the Legislature has not so neglected the natural parent and that subdivision 1 (par [d], cl [ii]) is intended for this very purpose. It is only with this view of the statute that we do not violate the rule that “[a]ny statute or regulation, but particularly social legislation, however broad, must be interpreted and enforced in a reasonable and humane manner in accordance with its manifest intent and purpose” (Matter of Sabot v Lavine, 42 NY2d 1068, 1069). The statute, as a whole, manifests the Legislature’s purpose of insuring that the decision of both the adoptive and natural parents should be made with clarity, understanding and certainty. A too restrictive construction of the statute defeats this purpose and results in inconsistency and works an injustice to the natural parent (see Williams v Williams, 23 NY2d 592, supra; Matter of Meyer, 209 NY 386, supra; People ex rel. Onondaga County Sav. Bank v Butler, 147 NY 164, supra).

My colleagues strenuously oppose the use of the legislative history of section 115-b as an aid in this exercise in statutory interpretation, again on the alleged grounds that the statutory language is unambiguous. In point of fact, section 115-b is not free from ambiguity. At the very least, the statute does not expressly state that the consent need not inform the natural parent of the prospect of a best interests determination. Furthermore, the discussion so far amply supports the conclusion that when the statute is read in context, as must be done, it may reasonably be inferred that the consent form should contain such a warning (New York State Bankers Assn. v Albright, 38 NY2d 430, 437). Under such circumstances, it certainly is appropriate to examine the statute’s legislative history (Matter of Harbolic v Berger, 43 NY2d 102, 107).

Nonetheless, I do not agree that the absence of facial ambiguity precludes a search of a statute’s history. Chief Judge Breitel, speaking for a unanimous court, had this to say when faced with a similar argument: “It has been said often, but with less than meticulous analysis, that an ‘unambiguous’ statute permits of no inquiry into legislative intention (see, e.g., McCluskey v Cromwell, 11 NY 593, 601; accord, e.g., Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293, 304, app dsmd 368 US 12; see, generally, McKinney’s Cons Laws of NY, Book 1, Statutes, § 120). Absence of facial ambiguity is, however, rarely, if ever, conclusive. The words men use are never absolutely certain in meaning; the limitations of finite men and the even greater limitations of his language see to that. Inquiry into the meaning of statutes is never foreclosed at the threshold; what happens is that often the inquiry into intention results in the conclusion that either there is no ambiguity in the statute, or that for policy or other reasons the prior history will be rejected in favor of the purportedly explicit statement of the statute (see, e.g., Matter of Barton v Lavine, 38 NY2d 785). Then it is often said with more pious solemnity than accuracy, that the clarity of the statute precludes inquiry into the antecedent legislative history. As the Supreme Court stated in United States v American Trucking Assns. (310 US 534, 543-544): ‘There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one “plainly at variance with the policy of the legislation as a whole” this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no “rule of law” which forbids its use, however clear the words may appear on “superficial examination”. The interpretation of the meaning of statutes, as applied to justiciable controversies, is exclusively a judicial function. This duty requires one body of public servants, the judges, to construe the meaning of what another body, the legislators, has said. Obviously there is danger that the courts’ conclusion as to legislative purpose will be unconsciously influenced by the judges’ own views or by factors not considered by the enacting body. A lively appreciation of the danger is the best assurance of escape from its threat but hardly justifies an acceptance of a literal interpretation dogma which withholds from the courts available information for reaching a correct conclusion.’ (See, e.g., Le Drugstore Etats Unis v New York State Bd. of Pharmacy, 33 NY2d 298, 302; Matter of Astman v Kelly, 2 NY2d 567, 572; McKinney’s Cons Laws of NY, Book 1, Statutes, § 111; 82 CJS, Statutes, § 322, at pp 588-590.)” (New York State Bankers Assn. v Albright, 38 NY2d 430, 436-437, supra.) As the Supreme Court has stated, “words are inexact tools at best, and for that reason there is wisely no rule of law forbidding resort to explanatory legislative history no matter how ‘clear the words may appear on “superficial examination” ’ ” (Harrison v Northern Trust Co., 317 US 476, 479, quoting from United States v American Trucking Assns., 310 US 534, 544; accord Uniformed Firefighters Assn. v Beekman, 52 NY2d 463, 471).

As already indicated, the majority reaches its interpretation of the statute by employing the rule of construction expressio unius est exclusio alterius. While this rule is certainly useful, it may, nonetheless, be misapplied. In this case, the statute’s history demonstrates that relying e