This private placement adoption action presents a number of intertwined legal issues that highlight the shortcomings of the private placement adoption statutes in New York State. The infant who is the subject of the case has now been in the home of the petitioners since February 21, 1998 without the benefit of a valid adoption consent from the parents or a currently valid pre-adoption certification order. The adoption agency that originally accepted custody of the child is no longer supervising this placement because it was not licensed in the state where the child was born. Additionally, the fees charges by the principals involved may not be entirely allowable under New York State law.
There is little statutory or caselaw guidance available to assist the court in unraveling these dilemmas, and few satisfactory remedies available for the obvious failures of those charged with caring for this child to follow the statutory requirements contained in the Domestic Relations Law. What seems apparent, however, is that along the way many purportedly well-intended people ignored the law, creating a situation that puts this adoption in jeopardy.
After an initial review of the adoption petition and the supplementary documents supplied by petitioner’s counsel with his letter dated August 3, 1999 the court issued a decision identifying legal issues of concern.
There has been no request by any of the principals involved for a testimonial hearing to further amplify the materials submitted. The court finds that the essential facts are not in dispute and that a hearing would not be likely to present additional information.
Review of documents filed supplementing the adoption petition indicates that while petitioners were found to be qualified adoptive parents pursuant to Domestic Relations Law § 115-d by order of Monroe County Surrogate’s Court dated 1/13/94, at the time this petition was filed in the Family Court on June 10, 1999 the petitioners were no longer certified as qualified adoptive parents. The original certification order was extended by Surrogate’s Court until 2/1/96 when it lapsed.
In an effort to determine why this petition was filed some 16 months after placement and after the expiration of order “re-certifying” the petitioners as qualified adoptive parents, the court requested additional information from counsel for the petitioner. A law guardian was also assigned for the child.
In response to the court’s request for more information, a letter dated August 3, 1999 with attachments was received from petitioners’ attorney. In that letter, counsel argued that pre-certification was not required at the time of filing the petition for adoption, but only at the time possession of the child occurred.
It appears that the birth mother then agreed to execute a consent for a private placement adoption by the petitioners and that Friends in Adoption, Inc. agreed to give up custody of the child so that this could occur. A consent was signed by the mother on March 6, 1998 a certified copy of which was provided with the petition. Additionally, a document entitled “waiver of notice by putative father or by legal father” was signed by the other on February 24, 1998. A non-certified copy of this document was also provided with the petition.
Ultimately, both Maine and New York interstate compact administrators approved the transfer of the child to New York State effective March 16, 1998 3. This was close to a month after the child was placed with the petitioners.
Petitioners’ counsel has also submitted his fee documentation. While the fee is higher than need be because the petition was re-filed in Family Court, there do not appear to be any questionable entries. Finally, the financial disclosure affidavit of the petitioners [dated 6/1/99] lists $175.00 for “car maintenance for birth mother.”
Domestic Relations Law § 115(1)(b) requires that persons seeking to commence a private placement adoption “shall, prior to the submission of a petition for such adoption and prior to any transfer of physical custody of an adoptive child, be certified as a qualified adoptive parent.”
Additionally, proposed adoptive parents are required to either file their adoption petition or an application for temporary guardian within ten days of accepting physical custody of a child for private placement adoption. DRL § 115-d. While there is no specific penalty for failure to comply, clearly the intention is to have prompt court supervision of such placements so that children will not be placed in de facto custody arrangements in homes where they may be unsafe.
The clear intention of these two provisions is that there be a valid certification in place when the adoption petition is filed and that the petition, or request for guardianship, be filed within ten days of placement of the child. The requirements for certification include information that experience shows is likely to change over time, including family circumstances, health, and income, as well as criminal and child abuse registry record checks. DRL § 115-d.
The dilemma is what if any penalty is appropriate when adoptive parents fail to comply with the certification requirements. The range of responses by courts for violation of adoption laws goes from the extreme measure of dismissal to financial sanctions to threats of disciplinary action against attorneys who fail to comply with the certification laws.
In this case, the court has assigned a law guardian for the child, who has not presented any safety concerns regarding petitioners’ home or circumstances. By all preliminary reports it is in the child’s best interest for this adoption to proceed. With this in mind, the court finds that dismissal would not be appropriate.
Domestic Relations Law § 115-b establishes procedures for judicial and extrajudicial consents from parents in private placement adoptions. Judicial consents taken by a judge in New York State become irrevocable when executed. DRL § 115-b(2). A consent executed before a judge in another state is permitted if a transcript showing compliance with the statute is also submitted. DRL § 115-b(2).
In this case the birth mother appeared before a judge in Maine and executed a document entitled “Consent of Petitioning or Non-Petitioning Parent.” The child’s father signed a “Waiver of Notice” before a notary public.
No transcript has been submitted showing that the Maine Judge of Probate complied with the requirements of DRL § 115-b; thus, it may not be considered a judicial consent. The mother’s consent, however, fails to comply with the requirements of DRL § 115-b(4) for extrajudicial consents in several important respects.
Similarly, the document executed by the father fails to comply with the Domestic Relations law and is not sufficient to qualify as an extrajudicial consent under DRL § 115-b(4). Nor is it sufficient to waive his right to notice as the father of an out-of-wedlock child under DRL § 111-a(5), which requires the waiver to be acknowledged in the same manner as a surrender executed under Social Services Law § 384.
As a result, this child is presently in the petitioners’ care without any valid consents or waivers from the parents. Since counsel for petitioners has recently written the court by letter dated 11/19/99 that efforts are being made through Friends in Adoption to locate the birth parents this case will be scheduled for court appearance thirty days from the date of this decision to address this issue and to schedule an expedited hearing if needed.
New York State law narrowly defines the circumstances when a fee may be charged for the placing out of a child for adoption. A violation of these requirements is a criminal offense. SSL § 389(2).
Only authorized adoption agencies may charge a fee “for the reasonable and necessary expenses” of an adoptive placement. All other agencies or persons are prohibited from requesting or accepting a fee for assisting a birth parent to place a child for adoption. SSL § 374(6). Adoptive parents are permitted to pay for reasonable medical expenses connected with the birth or “other necessary expenses incurred by the mother in connection with or as a result of her pregnancy or the birth of the child….” SSL § 374(6).
The fees charged by Friends in Adoption totaling $5,000 include inquiries made by birth parents about adoption.
Friends in Adoption does not bill adoptive parents on an hourly rate. In this adoption, the court will not allow fees relating to the original plan of agency adoption, because that plan required modification because of the error of the agency. Indeed, had this been an agency adoption the $5,000 fee would have been reasonable, since the agency would be charged with supervisory responsibilities. The only fees allowable are those charged for services provided to the adopting parent or to the birth parent directly relating to the adoption or birth of the child. SSL § 374(6). Under the circumstances here the court reduces the fee to $3,000 plus 500 for the agency registration. The remaining amount of $1,500 is to be refunded to the petitioners.
Finally, the petitioners list $175 paid to the birth mother for “car maintenance for birth mother.” Social Services Law § 374(6) permits the payments to the birth mother of necessary expenses incurred “in connection with or as a result of her pregnancy or the birth of the child.” No other expenses are allowable in New York State. In a case, the court disallowed reimbursement for an automobile down payment noting that the statute does not permit reimbursement for “each and every conceivable expense” incurred during the pregnancy.
Since it has not been demonstrated that the car maintenance expense related to the pregnancy, this expense is disallowed and must be refunded to petitioners.
In summary, the court finds that the petitioners should have been certified as qualified adoptive parents when this petition was filed in Family Court, but imposes no penalty. Counsel is advised that future failures to comply with adoption procedure law may result in financial sanctions and/or a referral for disciplinary action.
The court rules that the consent signed by the birth mother and the waiver signed by the father fail to comply with New York State law and schedules this case for thirty days from this decision to determine whether an expedited hearing is required.
The car maintenance expense of $175 paid by petitioners to the mother is disallowed and must be refunded by the mother to the petitioners.
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