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Birth Mother Attempts to Reverse Adoption

A pregnant woman, who was then 20 years of age, unmarried and at her sixth month of pregnancy, sought her obstetrician’s assistance in placing her forthcoming child for adoption. The doctor, the woman’s obstetrician then contacted an interested young childless couple. A New York Family Lawyer said as a result, preliminary arrangements for the adoption commenced. The woman, 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 her pregnancy.
On 9 December 1981, the woman gave birth to a son. On 11 December 1981, the woman retained a lawyer. On 20 January 1982, she then signed an extra-judicial consent form for her son’s adoption in order to permit the adoptive parents to take possession of the child. The consent form states on its face that it shall become irrevocable 30 days after commencement of the child adoption proceeding unless revoked within that time, pursuant to the Domestic Relations Law.

A New York Custody Lawyer said on 24 March 1982, the child adoption proceeding was instituted in the Surrogate’s Court of Westchester County. However, six days later, the woman or the natural mother filed a notice of revocation of consent which the adoptive parents immediately resisted. The Acting Surrogate conducted a hearing to determine whether the revocation was in the child’s best interest. In her memorandum to the trial court, the natural mother urged that section 115-b of the Domestic Relations Law 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. During the hearing, the parties focused on best interests, an issue which consumed nearly all of the almost 500 pages of transcript. Although the constitutional question was raised, the transcript contained no claim by the natural mother that she was misled by the consent form. Thus, the court denied the natural mother’s application to withdraw her consent, finding that revocation would not serve the best interests of the child. 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 adoption revocation the parties would be restored to a status quo position, it found that the natural mother 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, and therefore had not been deprived of due process.

Consequently, a Bronx Family Lawyer said the natural mother appealed the aforesaid decision of the court. She then made 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 115-b is not interpreted to require a full explanation in the consent form, it is unconstitutional and her due process rights have been violated by use of the deceptive form; and the Acting Surrogate’s finding that revocation is not in the best interests of the child.

First, a Bronx Custody Lawyer said the court did not agree that as 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 and resort to extrinsic matter, such as the legislative history, is inappropriate when the statutory language is unambiguous and the meaning unequivocal. Where 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 for the judiciary should not substitute its wisdom for that of the Legislature. 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. There is no necessary correlation between what the draftsman of the text of the bill understands it to mean and what members of the enacting legislature understood. 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 the intent not to require for more detailed information.

Second, on the issue that absent the judicial construction the statute is unconstitutional, the court did not find it proper to reach the natural mother’s complex due process argument since she clearly lacked 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 and that they have been aggrieved by the unconstitutional feature of the statute. Constitutional litigants are not ordinarily entitled to raise the unconstitutionality of a statute as it is applied to others. Here, the natural mother was not directly aggrieved by the alleged defect in section 115-b. The natural mother’s testimony that she believed she had 30 days in which to revoke her consent does not actually 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 pursuant to her testimony. She was bound by her position at the trial as expressed by her lawyer who explicitly conceded that she 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 and was successful in preventing the adoptive parents from exploring her knowledge of the effects of revocation. Since the admission was clearly conclusive on her, she has suffered no injury-in-fact from the allegedly misleading language in the consent form nor has she been otherwise prejudiced by the asserted unconstitutional feature of section 115-b.

Notably, the court has considered whether or not there is indeed an exception to the injury-in-fact requirement for standing which would permit the natural mother to pursue her constitutional thrust. Exceptions relating to the First Amendment area or where there is a close nexus between the present party and the person(s) whose constitutional rights are alleged to be violated are not relevant to the 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. 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. The test, applied with liberality in the 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. Here, the void-statute exception is not available to provide standing to the natural mother because the statute can survive without the allegedly offending provisions of section 115-b. If the provisions of the statute applicable to extra-judicial 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 extra-judicial 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. Thus, the void-statute exception was not available to the natural mother.

Indubitably, state courts can follow their own jurisprudence in determining whether a party has standing to raise a Federal constitutional question and New York generally has shown a more permissive attitude toward standing than the Federal judiciary. 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 or because a significant public question has recurred and the appellate divisions are divided, there have been no significant countervailing interests to reaching the substantive issue. Here, to ignore standing principles because of the natural mother’s personal misfortune would not only create a new exception to standing requirements but could result in grave and perhaps tragic consequences to others currently involved in the adoptive process. While the court has not reached the merits of the constitutional issue, a declaration that the extra-judicial consent portions of section 115-b are unconstitutional would be applicable to all such adoptions not yet finalized. Any attempt to limit the effect of such a declaration by restricting it to consents executed in the future would place the court 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 the natural mother herein, who was not aggrieved by the statute or the form.

Lastly, the adoptive parents did not waive 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 the natural mother’s standing. Besides, 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. Moreover, there was no basis to upset the formal judicial admission made by the lawyer who represented the natural mother at the hearing. While it is true that 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 differ obviously and radically from the perception of the adversarial party, 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 the natural mother’s conversations with him concerning the child adoption, her lawyer objected and made the categorical declaration that his client was not misled by the consent form. For this reason, he succeeded in excluding presumably damaging evidence. It is simply irrational to conclude that he could have misconceived the import of his straightforward declaration. Furthermore, the court could not find any reason to agree that the admission was not binding because the natural mother’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 her of her rights. Despite the fact that it is highly questionable whether a civil judgment can be overthrown by a posttrial claim of conflict of interest, the natural mother here made no such claim, and it would be highly unfair for the court to find her attorney guilty of such conduct. The court is under the obligation to respect a party’s choice of trial counsel and should not readily interfere with an attorney-client relationship. To presume that the natural mother’s trial counsel did not testify that she 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 her admission that the statute had been explained to her; her lawyer’s declaration in her presence that she was not misled; the Acting Surrogate’s finding that she was not misled; and the absence of any claim by her present counsel or his client that his predecessor should have testified. Clearly, there was no basis for a finding that the lawyer performed otherwise than in accordance with ethical requirements and no basis either to criticize or condemn him.

To sum it up, the natural mother’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. Indeed, the Acting Surrogate found that the best interests of the child were actually best served by adoption. The court found that this was proper. If the statute really has defects, the cure is with the Legislature. Thus, the court affirmed the judgment appealed from, without costs or disbursements.
New York Family Attorneys at Stephen Bilkis & Associates would like to assist you on matters similar to the above. We have free consultation services to aid you with your legal dilemmas by discussing with you the remedies provided by law to protect your interests. Call us now and our New York Child Adoption Attorneys, among others, will help you with your legal needs.

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