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Petitioners Contend with Complicated Adoption

 

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 preadoption 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 charged by the principals involved may not be entirely allowable under New York State law.

Unfortunately, there is little statutory or case law 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.

After an initial review of the adoption petition and the supplementary documents supplied by petitioners’ counsel with his letter dated August 3, 1999 the court issued a decision identifying legal issues of concern. A copy of the decision was sent to Friends in Adoption, Inc., counsel for the birth mother, counsel for petitioners, both birth parents at the addresses listed in the petition and the Probate Court in Alfred, Maine. 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.

This petition was filed in Monroe County Family Court by spouses seeking adoption of a male child born February 19, 1998 in Biddeford, Maine. The petition alleges that the child has been in the care of the petitioners since February 21, 1998.

A 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 January 13, 1994, 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.

In an effort to determine why this petition was filed some 16 months after placement and after the expiration of order recertifying” the petitioners as qualified adoptive parents, the court requested additional information from counsel for the petitioners.

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 precertification was not required at the time of filing the petition for adoption, but only at the time possession of the child occurred. He also explained that a prior adoption proceeding had been filed in Monroe County Surrogate’s Court and that “[b]ecause of a number of factors, Surrogate’s Court offered to allow the adoptive parents to withdraw their Petition, to be refiled in Family Court.

Petitioner’s counsel further outlined a convoluted history involving Friends in Adoption, Inc. adoption agency. An affidavit from Mary Walsh Snyder, caseworker for Friends in Adoption, sworn to on November 19, 1998[2] was attached and stated that originally the birth mother signed documents for an agency adoption, apparently signing custody of the child to the adoption agency for the purpose of an adoptive placement.

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 parent 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 on February 24, 1998. A noncertified 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.

The affidavit of the adopting parent states that the spouses were clients of Friends in Adoption, Inc., an agency licensed in New York State, for four years and that the agency received 66 inquiries on behalf of the parent. She requests that the court approve agency fees of $4,500 plus the $500 application fee. In her earlier affidavit dated November 19, 1998, she explained how the adoption was originally an agency adoption, but was redone as a private placement adoption when it was discovered that the agency was not licensed in Maine where the child was born.

Petitioners’ counsel has also submitted his fee documentation. While the fee is higher than need be because the petition was refiled in Family Court, there do not appear to be any questionable entries.

Finally, the financial disclosure affidavit of the petitioners (dated June 1, 1999) lists $175 for “car maintenance for birth mother.”

Lack of certification as qualified adoptive parents 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.” The statute does not provide a penalty for failure to comply with the certification requirements.

Additionally, proposed adoptive parents are required to either file their adoption petition or an application for temporary guardianship within 10 days of accepting physical custody of a child for private placement adoption. 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 10 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. To permit the filing of an adoption petition after the certification has expired, as is suggested by petitioners’ counsel, would encourage late filings of adoption petitions and placements to continue in homes without the benefit of current investigations showing that they are safe and appropriate.

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.

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. Counsel for petitioners, however, is warned in the strongest possible terms to comply with all aspects of the adoption and certification laws in the future, or risk a referral to the appropriate attorney disciplinary committee, as well as a financial sanction.
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. A consent executed before a Judge in another State is permitted if a transcript showing compliance with the statute is also submitted. All other consents are considered extrajudicial and must comply with the requirements of Domestic Relations Law § 115-b (4).

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 Domestic Relations Law § 115-b, thus, it may not be considered a judicial consent. The mother’s consent, however, fails to comply with the requirements of Domestic Relations Law § 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 Domestic Relations Law § 115-b (4). Nor is it sufficient to waive his right to notice as the father of an out-of-wedlock child under Domestic Relations Law § 111-a (5), which requires the waiver to be acknowledged in the same manner as a surrender executed under Social Services Law § 384. Social Services Law § 384 (3) requires that any instrument signed pursuant to the section be executed before a Judge, or before one or more witnesses before a notary public or “other officer authorized to take proof of deeds.”

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 November 19, 1999 that efforts are being made through Friends in Adoption to locate the birth parents, this case will be scheduled for a court appearance 30 days from the date of this decision to address this issue and to schedule an expedited hearing if needed.

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. 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”. They may also pay for the reasonable legal expenses of the birth parent relating to the adoption, as well as the reasonable and actual legal fees charged by their own attorney for legal services rendered in connection with the 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.

However, here Friends in Adoption signed over its legal rights to custody of the baby to the petitioners for the purpose of a private placement adoption. Thus, the only allowable services provided were matching services, support for the birth mother and consultation to the adoptive parents. Additionally, the court notes that to the extent that Friends in Adoption uses fees received from one adoptive couple to pay for services to other individuals, the fees are not allowable in New York State.

Family Court is obligated to review the reasonableness of legal fees charged as part of an adoption. Under the facts presented here, the court finds that the lawyer charged petitioners for services provided not to the birth mother who he represented but to the birth father who was not his client. It was not his responsibility to prepare the waiver for the father or meet with him. Thus, the $351 relating to these services is disallowed. Additionally, the waiver signed is not in compliance with New York law.

Additionally, he charged for a total of $1,012.50 for services relating to court appearances and the mother’s consents. As explained earlier in this decision, the consent of the mother fails to satisfy New York law. It is unreasonable and inappropriate for petitioners to pay for the cost of consents that are ineffective. Consequently, the court directs that the lawyer reimburse the petitioners $1,363.50.

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