ADOPTIONS - CAN MOTHER REVOKE THE SURRENDER OF THE CHILD

MATTER OF J./E., 2022 NY Slip Op 51325 - NY: Family Court 2022:

"A surrender document may be voided if it was obtained through duress, coercion, or fraud. Social Services Law § 384(5). "To void a consent based upon duress, it is necessary to find that the natural mother was not able to exercise her free will because of the actions of people around her. (Kazaras v Manufacturers Trust Co., 4 AD2d 227, affd 4 NY2d 930). Coercion would involve actual physical force being used or threatened. Duress and coercion are difficult to prove and emotional stress is not considered duress. (Matter of E.W.C., 89 Misc 2d 64)." Matter of Baby Boy, 175 Misc 2d 7 (Surrogate's Court, Monroe County 1997). "Contemplation of the surrender of one's own child is in many, if not all, cases a cause of emotional and mental stress No statute has said that surrenders are valid only if executed free from emotion, tensions, and pressures caused by the situation. No principle of law requires the rule. A balance of the interests of the persons concerned and of society weighs strongly against it." Matter of Baby Boy L., 144 AD2d 674, 676 (2nd Dept. 1988) quoting from Matter of Surrender of Minor Children, 344 Mass. 230, 181 N.E.2d 836, 839.

In this case, the Court finds that the extrajudicial surrender was properly executed. The agreement was an exercise of the Petitioner's free will. There was no duress, coercion, or fraud. Her consent was knowing, voluntary, and intelligent. She sought out Family Connections, Inc., to make an adoption plan one week prior to giving birth. She was represented and advised by legal counsel throughout the process, and her attorney was at her side when she executed the surrender. The Petitioner acknowledged that she had not been given any narcotic drugs during her delivery. Even assuming she was tired, overwhelmed, and experiencing pain, these conditions do not rise to the requisite level to invalidate the surrender based upon duress, coercion, or fraud. Indeed, the mother in Matter of Baby Boy, supra, had also executed an extrajudicial surrender several hours after her child's birth, and she, too, testified about her distress, fatigue, discomfort, receipt of pain medication, and the pressure she felt to leave the hospital the same day. The Court in that case, while it ultimately invalidated the surrender based upon the technical failure to provide the natural mother with a copy of the consent upon execution, held that those circumstances did not rise to the level of duress or coercion.

Furthermore, Courts have cited to a natural mother's conduct after executing an extrajudicial surrender as manifesting her consent. See Matter of Collin, 92 AD3d 1283, 1284 (4th Dept. 2012); see also Matter of Jarrett, 224 AD2d 1029, 1031 (4th Dept. 1996). Here, as in those cases, the Petitioner's post-surrender conduct manifested her consent to the agreement. She left E. in the care and custody of B.P. and M.P. after she was discharged from the hospital. The same day, she texted them, "I'm so happy he has you both in his life." (January Hearing Respondents' Exhibit A). Two days later, on August 27, 2021, when B.P. and M.P. notified the Petitioner that she did not have to return to the hospital to sign additional paperwork, she responded, "Yes omg I'm so happy!!! Thank you for everything." (January Hearing Respondents' Exhibit A). On the same date, the Petitioner notified Family Connections, Inc., "Omg thank you to much I'm happy they can take him home now." (Respondent's Exhibit M). The Petitioner's multiple written statements to multiple people that she was "happy" with her decision as much as two days later evince her consent to the surrender. For all of the reasons set forth above, the surrender agreement is lawful and valid, and it should not be voided.

If a parent timely revokes a surrender, and the adoptive parents oppose the revocation, a best interests hearing must be held. Social Services Law § 384(5) and (6). Social Services Law § 384(6) provides:

In an action or proceeding to determine the custody of a child not in foster care surrendered for adoption and placed in an adoptive home or to revoke or annul a surrender instrument in the case of such child placed in an adoptive home, the parent or parents who surrendered such child shall have no right to the custody of such child superior to that of the adoptive parents, notwithstanding that the parent or parents who surrendered the child 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.^[11]

Among the factors to be considered at a best interests hearing are the parties' relative "financial status, character, mental and physical health, ability to provide for the child's needs, available support from extended family members, continuity and stability, and capacity to accept the child" Matter of Sarah K., 66 NY2d 223, 233 (NY 1985). The Court in Matter of Sarah K. reiterated that the biological parents are not entitled to "primacy of status over the adoptive parents" as that would be "precisely contrary to the very purposes for which the statute was enacted." Id. at 235. Rather, courts must analyze the relative abilities of the birth parent(s) and adoptive parents to provide for the child and nurture his or her emotional and intellectual development. Matter of Baby Girl XX., 172 AD3d 1476, 1477 (3rd Dept. 2019); Matter of Baby Boy O., 162 AD3d 1586, 1587 (4th Dept. 2018); Matter of Anya W., 156 AD3d 709 (2nd Dept. 2017); Matter of Collin, 92 AD3d 1283, 1284 (4th Dept. 2012).

Further, the Third Department found that the risk of separating a child who was already bonded to her adoptive parents outweighed the potential bond with a biological sibling. George L. v. Commissioner of Fulton County Dept. of Social Services, 194 AD2d 955, 956 (3rd Dept. 1993). The Court held that, "[t]he psychological trauma of removal can be grave enough to threaten the destruction of a child (Matter of Bennett v Jeffreys, 40 NY2d 543, 550)." Id. at 957. It is important for courts to distinguish whether and to what extent a pre-existing relationship exists between biological siblings. See Matter of Willa, Albany County Family Court File No. 42090, 1/17/17 (Maney, J.). (Exhibit 1 of Memorandum of Law in Opposition to Petitioner's Order to Show Cause filed January 24, 2022).

Applying the factors above, there is no question that it is in E.'s best interests to remain with and be adopted by Respondents B.P. and M.P. B.P. and M.P. are a highly intelligent, mature, stable, and loving couple. They have been married for five years and together for ten years. They are both in good physical health. They have a strong network of extended family members who love, help care for, and regularly visit E. Both of their fathers testified at the July hearing to show their support. B.P. and M.P. both have successful careers and will soon be earning a combined household income of $285,000. In addition, they have approximately $60,000 in checking/savings, approximately $90,000 in retirement accounts, reciprocal life insurance policies for $1 million each, and medical and dental insurance which covers E. They own two vehicles and a five-bedroom home which includes a beautifully decorated nursery for E. With this financial security, B.P. and M.P. are more than capable of providing for E. and meeting his every need.

They are both taking steps to ensure that E., who is of African American and Hispanic descent, learns about his cultures and regularly sees others who look like him. The volunteer work that both B.P. and M.P. have done for many years for minority communities underscores their good character. They will surely pass on important values to their children. They have proven to be responsible and attentive parents and have already exposed E. to a wealth of healthy and diverse activities that enrich his life.

By contrast, the Petitioner and B.L. have not yet matured. They have not demonstrated longevity as a couple, and they are not married to one another. Worse, this Court finds that B.L. abused the Petitioner during their initial five-month relationship, and the abuse was so severe that she kept her pregnancy hidden from him for its entire duration. They lack extended family supports. No family members appeared to give testimony at the July hearing. The Petitioner had no one to care for her daughters while she gave birth to E., and she had no one other than B.L. to care for her daughters during the July hearing. Her lack of extended family support forced her to live in a homeless shelter with her daughters while pregnant with E.

The Petitioner and B.L. are not financially secure. The Petitioner has a history of unemployment. B.L. has a felony conviction for which he was incarcerated. At the July hearing, the Petitioner gave incredible testimony about a sudden combined income exceeding $200,000 which was unsupported by any proof. They lack stable housing. The Petitioner has moved numerous times in the past two years. In short, an application of the factors listed above makes it clear that the Petitioner, with or without B.L., simply cannot provide E. with a life comparable to that which B.P. and M.P. are already providing him.

Furthermore, E. has already bonded strongly with B.P. and M.P. and their daughter R. who is only 11 months his senior. This is the only family E. knows, and he has lived with them — and thrived with them — for his entire 11 months of life. B.P. and M.P. gave testimony about E.'s close sibling relationship with R. They spend every day together and are the "best of friends." By contrast, E. does not have a strong relationship with the Petitioner's daughters. He only met them for the first time in February of 2022, his only contact with them has been during the monthly supervised visits, and he has spent far less than a total of 40 hours with them due to the Petitioner's routine tardiness resulting in the loss of many hours of visitation. To pull E. away from B.P., M.P., and R., the only family he knows, would be psychologically traumatic and would be against his best interests."