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.
Background This petition was filed in Kings County Family Court by Mrs. M and Mr. M. on June 10, 1999 seeking adoption of a male child born 2/19/98 in Biddeford, Maine to Mrs. P. Mr. P is listed as the child’s father. The petition alleges that the child has been in the care of the petitioners since 2/21/98.
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 Kings 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. Surrogate’s Court extended the original certification order until 2/1/96 when it lapsed. Apparently, the Surrogate permitted Mr. and Mrs. M. to apply for “recertification” and issued a one-year order on January 5, 1998 that continued until January 5, 1999.
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 guardian within ten 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 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. 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 and 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. 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.
Parents’ Consents 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 DRL § 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 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. Most important, it fails to advise the mother that she may seek to revoke the consent within forty-five days or notify her of the court where the adoption will be filed.
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. Social Services Law § 384(3) requires that any instrument signed pursuant to the section be executed or before a judge or before one or more witnesses before a notary public or “other officer authorized to take proof of deeds.” Mr. P.’s waiver was not taken before a witness, although his signature was notarized.
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 ABC Inc. 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.
Fees 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.
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.
The fees charged by ABC Inc. totaling $5,000 include inquiries made by birth parents about adoption. According to the 8/9/99 affidavit of Mrs. WS 66 inquiries were received in response to yellow pages, Internet, milk carton ad, newspaper and other sources. The fees apparently cover services to birth parents with no connection to this adoption. Ms. WS stated “FIA continued to work with all the birth mothers until such time as they chose to disengage from the agency and/or to pursue other alternatives.”
ABC Inc. 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 those 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 ABC in Family signed over its legal rights to the child custody to the petitioners for the purpose of the 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 ABC Inc. uses fees received from one adoptive couple to pay for services to other individuals, the fees are not allowable in New York State. 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. 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.
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 XYZ, Esq. charged petitioners for services provided not to the birth mother, whom 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 $351.00 relating to these services is disallowed. Additionally, the waiver signed is not in compliance with New York law.
Additionally, Mr. XYZ 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 XYZ, Esq. reimburse the petitioners $1,363.50. The remainder of Mr. XYZ’ fee is approved.
Conclusion 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 court disallows $1,500 of the fee charged to petitioners by ABC Inc. and $1,363.50 charged by XYZ, Esq.
Ignorance of the law will not excuse a person from complying with it. It is always recommended to consult an expert before making actions that involve legal consequences.
In adoption cases as in the case at bar, consult with Stephen Bilkis & Associates. They have offices to serve you throughout the New York area including offices in Manhattan, the Bronx, Brooklyn, Queens, Long Island, Staten Island, Nassau County, Suffolk County and Westchester County. Call them today for a free consultation at 1-800-NYNYLAW.