In this private placement adoption the natural mother of the subject child, born on October 21, 1976, and her husband, the alleged father, by order to show cause dated November 17, 1977 request an order: (1) vacating and setting aside the natural mother’s consent to the subject child’s adoption; (2) dismissing the adoption proceeding filed by the respondents; (3) requesting the court to determine the custody of the child; and (4) directing the respondents to deliver the subject child to the petitioners.
Following extensive and protracted pre-trial discovery by all parties, testimony was heard by Surrogate for 16 days commencing November 17, 1978 and concluding on July 1, 1980. The transcript is in excess of 2,100 pages with 23 exhibits in evidence. During the course of the discovery and hearing, the court rendered 8 decisions, and the guardian ad litem appointed by the court to represent the interests of the child filed 3 interim and 1 final report. On July 31, 1980, before he could render a decision, Surrogate retired, which requires this court to render a decision on a bitterly contested matter which it did not hear.
The powers incidental to the jurisdiction of the court under Subdivision 8 of SCPA 209 empowers the court, “To determine any unfinished business pending before its predecessor in office and to sign and certify papers or records left uncompleted or unsigned by its predecessor.” The genesis of this subdivision is Section 20(9) of SCA, which in turn was derived from the Code of Civil Procedure.
In the case subjudice on July 1, 1980 at the conclusion of the testimony of petitioners’ last witness, Surrogate asked counsel whether anyone desired to submit any additional testimony. Upon being informed that none did, he stated that the hearing was closed. The court then asked whether any counsel wished to submit any additional papers. Counsel for the respondents replied in the negative; counsel for the petitioners requested 3 weeks; and the guardian ad litem requested time to file his report. Judge then stated that the matter would be submitted for decision on July 23, 1980 subject to the guardian ad litem’s report, reminding counsel to serve upon opposing counsel any papers filed with the court.
On October 21, 1976 the mother, who was then 15 years of age, unmarried, and a 9th-grade high school student living with her parents, gave birth to the subject child. On October 26, 1976, while she was still in the hospital, the mother signed consent to the adoption of the subject child to the respondents in the presence of her mother, aunt, and respondents’ attorney and his wife, who arranged for the delivery of the subject child to her by the natural mother. On October 27, 1976 her mother, with her present, took the child from the hospital and delivered her to the wife of the attorney retained by the respondents for the child’s adoption, who in turn delivered the child to the adoptive parents later that same night. The natural mother never saw the child.
Following the issuance of the order to show cause, petitioners obtained a writ of habeas corpus from the Supreme Court of Nassau County alleging that the child was being illegally detained and physically and emotionally neglected by the respondents. Following a hearing, that court, by decision dated April 7, 1978, refused to intervene in the adoption proceeding here since the issues in both the habeas corpus and adoption proceedings were identical, and dismissed the writ on April 24, 1979.
While testimony was being taken, the Supreme Court of the United States rendered its decision declaring subd. 1, par. (c) of Section 111 of the Domestic Relations Law unconstitutional insofar as it permitted the adoption of an out-of-wedlock child on the consent of the natural mother but did not require a like consent from the putative father. The father thereupon moved to dismiss the respondents’ adoption proceeding since he, the natural father, had not consented to the adoption. The respondents thereupon challenged his status as the father of the child.
By decision dated August 27, 1979, the court directed that a hearing be held limited to determine the status of Joseph as Susan’s father. Following the paternity hearing the court rendered a decision finding that by a preponderance of the evidence, Joseph was the father of the child. At that time there was no statutory authority for the Surrogate’s Court to hold a paternity hearing. Since then the legislature has amended Section 111-b of the Domestic Relations Law authorizing the Surrogate’s Court to determine paternity in the course of an adoption.
As a result of the holding in the Caban case and in an effort to supply court-requested guidelines, the legislature amended Section 111 and 111-a of the Domestic Relations Law relating to private placement adoptions and the comparable provisions of the Social Services Law relating to agency adoptions to provide for consents by and notices to the natural fathers of out-of-wedlock children in certain enumerated instances. Under the 1980 amendments to Section 111 of the Domestic Relations Law two new categories of individuals whose consent to an adoption are required have been added. One being a father of an out-of-wedlock child placed with adoptive parents more than six months after birth, and the other, a father of a child born out-of-wedlock who is under six months of age at the time of placement. The latter category, which this case would fall under, requires a consent only if three conditions are met: that the father has openly lived with the child or the child’s mother for a continuous period of six months preceding placement; that he has openly held himself out to be the father during such period; and has paid a fair and reasonable sum, in accordance with his means, for expenses in connection with pregnancy or birth of the child. While the father here could qualify under the second condition mentioned, the first and third condition disqualifies him from the category. The result being that the father would not be one of those unwed fathers whose consent would be required even though the uncontradicted evidence adduced clearly reveals him to be a concerned, caring father entitled to the equal protection and due process rights granted him under the Caban case of which he would be deprived by the 1980 amendments. Since the amendments became effective prior to this court’s decision, they are applicable to this case.
While legislative guidelines should be afforded to the courts, this case demonstrates that the legislative guidelines enacted are too restrictive and do not deal with the many different Caban -type fact patterns that can be involved. Accordingly, the court finds that insofar as this unwed father is concerned, Section 111 subd. 1, par. (c) of the Domestic Relations Law is unconstitutional and his consent to the adoption would therefore be required under the Caban case unless for some reason, such as abandonment, that consent may be dispensed with.
The Appellate Division affirmed the order of the family court which directed the return of the infant to the natural parents’ custody, holding that the consent of the natural father, which was not sought or obtained, was required under Caban v. Mohammed where the claim of abandonment was unsupported and found the natural mother’s consent tainted by family pressure.
There is abundant uncontradicted testimony that the father, upon learning of the natural mother’s pregnancy, following a discussion with her concerning obtaining an abortion, accompanied her to a municipal hospital for pre-natal care; stated that he wanted his name on the baby’s birth certificate; and offered to pay for her delivery, which was rejected by her mother. The natural mother’s parents and siblings were hostile to him, denying him contact with her as soon as they learned of her pregnancy, as well as subsequent to the birth of the child.
The social worker for the hospital in which she was confined during her childbirth testified that prior to her admittance, she received a telephone call from a woman who said she was the father’s sister, informing the social worker that she was scheduled to deliver a baby at the hospital and that she was “going to be forced by her parents to give the baby up for adoption and that the father and his family did not want the child adopted but wanted to raise the baby themselves.” The sister asked the social worker for information on the rights of the father as the natural father to be designated as the father on the birth certificate. The social service worker then made inquiry of the Nassau County Department of Social Services Adoption Unit. She testified she was told that unless the couple were married, the natural father had no rights to the baby except by special court order which would give him the right (sic) to support the child, but not to care for it; that he could only be designated the father on the birth certificate if the natural mother signed an affidavit stating that the father was the father and mailed the affidavit to the Bureau of Records in Albany (Exhibit 12). This information was related first to the father’s mother and then repeated to his sister.
The father testified about his attempts to visit the natural mother in the hospital and see his child which were frustrated by hospital personnel as well as her mother. He further testified that he made inquiry at the Family Court of Queen’s County, in which county she and he resided, and of the Family Court of Nassau County, where the child was born, as to the necessary procedure to enable him to obtain custody of his daughter but apparently received no assistance.
The issue of the validity of the natural mother’s consent to the adoption is more difficult. The testimony adduced indicates that she was an immature teenager under great emotional and mental stress because of her pregnancy and the problems caused by the birth of the child. She was under great pressure from her family, particularly her mother, who made all of the arrangements for the surrender and adoption of Susan. Except for the discussions had with the hospital social worker, she was not afforded an opportunity to discuss her problems, free from emotion and tension, so that she could choose from various alternatives available to her the one she desired.
The natural mother was not permitted by her family to see the father of her daughter, nor any member of his family, who desired to raise the child rather than give her up for adoption. Based upon the entire record, it is the court’s considered opinion that her consent to the adoption was induced by the duress of her mother. The mother’s consent to the adoption must be set aside because of the duress exercised upon her by her mother. Notwithstanding a finding of duress which would invalidate the consent, there has been no showing of any unfitness or other circumstance on the part of the natural mother which would prevent her from withdrawing her consent.
Accordingly, (1) the consent of Cathy to child’s adoption by respondents is set aside; (2) the adoption proceeding instituted by respondents for the child’s adoption is dismissed; and (3) although this court has the power to determine her custody and to order her returned to the petitioners or such other disposition, including transfer of the child to the Family Court, the abrupt termination of the child’s relationship with the respondents might prove disastrous for Susan’s well-being. Accordingly, this matter is referred to the Nassau County Family Court, which has the requisite support personnel in its probation department which this court lacks to make a proper determination in accordance with the best interests of the child.
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