In re Daniel C. , 99 A.D.2d 35 ( 1984 )

OPINION OF THE COURT

Lazer, J. P.

Following strong manifestations of public discontent with the judicial result in the notorious Baby Lendre case where a mother who revoked her consent to adoption was successful in obtaining an order for the child’s return (see People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185), the Legislature enacted section 115-b of the Domestic Relations Law in an effort to avoid the occurrence of similar tragic experiences in the future. Properly invoked, the new section limits the right to revoke a consent to adoption to a 30-day period and limits the revoking natural parent’s remedy to a hearing to determine whether the best interests of the child would be served by return of the child or by adoption. Dissatisfied with the results of her effort to revoke her consent and to obtain the child’s return, the natural mother challenges the constitutionality of section 115-b, its interpretation by the Surrogate’s Court, and that court’s finding that the best interests of the child will be served if he remains with the adoptive parents. We conclude that the challenge must fail.

I

During her sixth month of pregnancy, C., the natural mother, who was then 20 years old and unmarried, sought her obstetrician’s assistance in placing the forthcoming child for adoption. The doctor contacted an interested young childless couple and preliminary arrangements for the adoption commenced. C., 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 the pregnancy.

In furtherance of her plan, C. retained a lawyer and on December 11, 1981, two days after the birth of her son, signed a consent to his adoption in order to permit the adoptive parents to take possession of the child. At her lawyer’s office on January 20, 1982, C. signed the extrajudicial consent form that she now attacks. Supplied to all Family and Surrogate’s Court Judges and clerks by the Administrative Board of the Judicial Conferences, the consent form states on its face that it shall become irrevocable 30 days after commencement of the adoption proceeding unless revoked within that time. The form closely tracks the language of that portion of section 115-b of the Domestic Relations Law, which provides: “Such consent shall, if it shall so state, become irrevocable thirty days after the commencement of the adoption proceeding unless written notice of revocation thereof shall have been received by the court within said thirty days” (Domestic Relations Law, § 115-b, subd 1, par [d], cl [i] as added by L 1972, ch 639).

The relevant portion of the consent form reads as follows: “I, _, residing at _, natural [Mother] [Father] of_do hereby irrevocably Consent to the Private Placement Adoption of my [daughter] [son] _, born__I understand that in the event that this Consent is not executed before a Judge of the_Court, of the County of _, then and in that event this Consent shall become irrevocable thirty days after the commencement of the adoption proceedings unless written notice of revocation thereof shall be received by this Court within said thirty days” (see 10 West’s McKinney’s Forms, Matrimonial and Family Law, § 14:86E [1983 Pocket Part]).

The adoption proceeding was instituted in the Westchester County Surrogate’s Court on March 24, 1982, but six days later C. filed a notice of revocation of consent which the adoptive parents immediately resisted. Acting pursuant to the statute, the Acting Surrogate conducted a hearing to determine whether the revocation was in the child’s best interest (see Domestic Relations Law, § 115-b, subd 3, par [d]). In her memorandum to the trial court, C. urged that section 115-b 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 (see Domestic Relations Law, § 115-b, subd 1, par [d]).

During the hearing, the parties focused on best interests, an issue which consumes nearly all of the almost 500 pages of transcript. Although the constitutional question was raised, the transcript contains no claim by C. that she was misled by the consent form. In the course of direct examination of C.’s obstetrician, counsel for the adoptive parents sought to explore C.’s knowledge of the meaning of the consent by inquiring concerning her conversations with the doctor. C.’s attorney objected to this inquiry, asserting the physician-patient privilege. Arguing for disclosure, the adoptive parents responded that the conversations sought to be disclosed did not relate to treatment but to the adoption itself. The following colloquy then occurred between the court and C.’s attorney:

“the court: Mr. Papantonio, you seem, in your brief, your trial memorandum, to also allude to some type or the possibility of fraud or at least a misunderstanding on the part of your client of what she was signing.

“mr. papantonio: I don’t believe that we did. We did not intend to create that impression in our memorandum, sir.

“the court: You see, you talk about the form being improper and misleading and —

“mr. papantonio: We are attaching [sic] the constitutionality of that act and the forms prepared under that act.

“the court: But you are not claiming that there is any — that she was mislead by the form?

“mr. papantonio: No, sir.

“the court: Oh, if you are not, then the objection is sustained”.

Although counsel for the adoptive parents continued to press for exploration of the mother’s understanding, arguing that C.’s conversations with the obstetrician included one that occurred on the day the extrajudicial consent was signed, the court continued to sustain objections on the ground that C. had conceded that she had not been misled.

Testifying on her own behalf, C. declared that she had read the consent form before signing it at her attorney’s office; that she knew it would be filed in the Surrogate’s Court and become irrevocable after 30 days; “that the adoption would not be completed until [she] signed a consent [before] the Surrogate”; that “I knew that I had a certain amount of time, even after I signed that paper”; and that “as far as I knew that an order [sic], after the consent was filed, I had 30 days in which to revoke the consent”. On cross-examination C. told the court that her lawyer was present when she signed the consent form and that “he explained it to me”. It is quite apparent that C.’s subsequent decision to revoke the consent was based in part on her parents’ supportive reaction to her revelation of the child’s birth.

The court denied C.’s application to withdraw her consent, finding that revocation would not serve the best interests of the child (see Matter of Daniel C., 115 Misc 2d 130). 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 revocation the parties would be restored to a status quo position” (Matter of Daniel C., supra, p 133), it found that C. 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. Therefore, she had not been deprived of due process.

On appeal, C.’s new counsel makes 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 section 115-b is not interpreted to require a full explanation in the consent form, argues C., it is unconstitutional and her due process rights have been violated by use of the deceptive form. Also challenged is the Acting Surrogate’s finding that revocation is not in the best interests of the child.

II

Before reaching our dispositive analysis, we pause briefly to describe the legislation dealing with private placement adoptions, a statutory scheme which must be strictly construed (see Domestic Relations Law, § 110; Dennis T. v Joseph C., 82 AD2d 125). In the Baby Lenore case, which preceded the enactment of section 115-b, the Court of Appeals construed the adoption statutes as providing the judiciary with discretion to permit revocation of adoption consents at any time until the final order of adoption (see People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185, supra). Responding to the public outcry created by Baby Lenore, the Legislature created a private placement procedure intended to limit the right to revoke consents. Section 115-b (subd 1, par [c]) provides that where a consent has been executed before a Judge of the adoption court “no action or proceeding may be maintained by the consenting parent for the custody of the child to be adopted, and no such consent shall be revoked by such parent if * * * [the] consent states that it shall become irrevocable upon * * * execution”. Where, as here, the consent form has not been executed before a Judge, it becomes irrevocable 30 days after the commencement of the adoption proceeding “if it shall so state” unless written notice of revocation is received by the court within 30 days after the adoption proceeding has commenced (Domestic Relations Law, § 115-b, subd 1, par [d], cl [i]). Thus, whether or not executed before a Judge, if the right to revoke is to be limited, the consent form must state when it becomes irrevocable. There are no words in the statute that require an extrajudicial consent form to contain an explanation of the legal consequences of a timely revocation that is resisted by adoptive parents. In a clause that follows the provisions requiring the time of irrevocability to be stated in the consent form, the statute provides that a resisted revocation that is timely will result in a best interests hearing at which the natural parent has no right superior to that of the adoptive parents (Domestic Relations Law, § 115-b, subd 1, par [d], cl [ii]).

Although the instant consent form constitutes an almost verbatim transcription of the relevant portion of section 115-b, C. argues that the statute really requires “that all consents recite on their face the substance of the statute itself”. The best refutation of that claim is the actual language of the statutory paragraph dealing with the effect of a notice of revocation. That language imposes no requirement that the contents of the paragraph or its substance be inserted in the form; indeed, it makes no reference to the consent form at all (Qomestic Relations Law, § 115-b, subd 1, par [d], cl [ii]). What other paragraphs of section 115-b do require to be inserted in the consent form is a statement of the name and address of the adoption court and, if revocation is to be limited, that there be a further statement that the consent becomes irrevocable after 30 days (Domestic Relations Law, § 115-b, subd 1, pars [a], [d], cl [i]).

We do not agree that as a 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 (Riegert Apts. Corp. v Planning Bd., 57 NY2d 206) and resort to extrinsic matter, such as the legislative history, is inappropriate when the statutory language is unambiguous and the meaning unequivocal (Giblin v Nassau County Med. Center, 61 NY2d 67; Sega v State of New York, 60 NY2d 183; New Amsterdam Cas. Co. v Stecker, 3 NY2d 1). Where, as here, 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 (Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516, app dsmd 52 NY2d 895; McKinney’s Cons Laws of NY, Book 1, Statutes, § 363) for the judiciary should not substitute its wisdom for that of the Legislature (Nettleton Co. v Diamond, 27 NY2d 182, 194; Meltzer v Koenigsberg, 302 NY 523). 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 (see People v Graham, 55 NY2d 144, 151; McKinney’s Cons Laws of NY, Book 1, Statutes, § 76). This is especially true because “‘there is no necessary correlation between what the draftsman of the text of a bill understands it to mean and what members of the enacting legislature understand’” (People v Graham, supra, p 151, citing 2A Sutherland, Statutory Construction [4th ed], §§ 48.09, 48.12). 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 an intent not to require more detailed information in the form.

Ill

Faced with the clear language of the statute, C. posits the further contention, that absent the judicial construetion she suggests, the statute is unconstitutional. We see no need to reach her rather complex due process arguments, because C. lacks 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 (see Duke Power Co. v Carolina Environmental Study Group, 438 US 59; People v Parker, 41 NY2d 21; Matter of Donohue v Cornelius, 17 NY2d 390, 397; People v Merolla, 9 NY2d 62) and that they have been aggrieved by the unconstitutional feature of the statute (see Ulster County Ct. v Allen, 442 US 140; Oriental Blvd. Co. v Heller, 27 NY2d 212; People v Beakes Dairy Co., 222 NY 416). Constitutional litigants are not ordinarily entitled to raise the unconstitutionality of a statute as it is applied to others (see United States v Raines, 362 US 17; American Power Co. v Securities & Exch. Comm., 329 US 90; People v Parker, supra; People v Drayton, 39 NY2d 580; People v Merolla, supra; O’Kane v State of New York, 283 NY 439; Matter of Anonymous, 55 AD2d 383).

On this record, it is quite apparent that C. was not directly aggrieved by the alleged defect in section 115-b. Her testimony that she believed she had 30 days in which to revoke her consent does not 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. She is bound by her position at the trial as expressed by her lawyer who explicitly conceded that C. 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 (see Fisch, NY Evidence [2d ed], § 803; McCormick, Evidence [2d ed], § 266) and was successful in preventing the adoptive parents from exploring C.’s knowledge of the effects of revocation. Since the admission is conclusive on C. (see Coffin v President & Directors of Grand Rapids Hydraulic Co., 136 NY 655; Burdick v Horowitz, 56 AD2d 882; Richardson, Evidence [Prince, 10th ed], § 216), she has suffered no injury in fact from the allegedly misleading language in the consent form nor has she been otherwise prejudiced by the assertedly unconstitutional feature of section 115-b.

In holding as we do, we have considered whether there is an exception to the injury-in-fact requirement for standing (see United States v Raines, 362 US 17, supra) which would permit C. to pursue her constitutional thrust. Exceptions relating to the First Amendment area (see, e.g., Gooding v Wilson, 405 US 518) or where there is a close nexus between the present party and the person(s) whose constitutional rights are alleged to be violated (see, e.g., Griswold v Connecticut, 381 US 479; Barrows v Jackson, 346 US 249) are not relevant to this 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 (see Aptheker v Secretary of State, 378 US 500; United States v Raines, supra, p 23; Thompson v Wallin, 276 App Div 463, affd 301 NY 476, app dsmd 342 US 801; cf. People v Lathrop, 3 NY2d 551; Bronx Gas & Elec. Co. v Maltbie, 268 NY 278; see, also, Sedler, The Assertion of Constitutional Jus Tertii: A Substantive Approach, 70 Cal L Rev 1308, 1323-1326; Tribe, American Constitutional Law, pp 106-107; 16 CJS, Constitutional Law, § 76, p 241). 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 (see United States v Raines, supra; Dorchy v Kansas, 264 US 286; cf. F.T.B. Realty Corp. v Goodman, 300 NY 140; Fougera & Co. v City of New York, 224 NY 269; see, also, 2 Antieau, Modern Constitutional Law, § 15:35; Stern, Separability and Separability Clauses in the Supreme Court, 51 Harv L Rev 76). The test, applied with liberality in this 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 (see People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48, 60; see, also, People v Mancuso, 255 NY 463; Schieffelin v Goldsmith, 253 NY 243).

Here the void-statute exception is not available to provide standing to C. because the statute can survive without the allegedly offending provisions of section 115-b. If the provisions of the statute applicable to extrajudicial 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 extrajudicial 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. We conclude that the void-statute exception is not available to C. (see People v Lathrop, supra; Bronx Gas & Elec. Co. v Maltbie, supra; Grossman v Baumgartner, 22 AD2d 100, affd 17 NY2d 345).

We are aware, of course, that State courts can follow their own jurisprudence in determining whether a party has standing to raise a Federal constitutional question (see Bateman v Arizona, 429 US 1302; Doremus v Board of Educ., 342 US 429; Venditti v Incorporated Vil. of Old Westbury, 89 AD2d 960) and New York generally has shown a more permissive attitude toward standing than the Federal judiciary (see, e.g., Matter of District Attorney of Suffolk County, 58 NY2d 436; Matter of Morgenthau v Cooke, 56 NY2d 24; Boryszewski v Brydges, 37 NY2d 361; Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1; National Organization for Women v State Div. of Human Rights, 34 NY2d 416). One major rationale for this liberal policy — the desire to prevent a barrier to judicial scrutiny of legislative action (see, e.g., Matter of Feight v Lesser, 58 NY2d 101, 106; Boryszewski v Brydges, supra) — would not be furthered by granting standing to C. because there is no reason why others who may actually be aggrieved by section 115-b will be unable to assert their own claims. While the liberal zone of interest test for review of administrative action (see, e.g., Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158; Matter of Morgenthau v Cooke, supra; Matter of Douglaston Civic Assn. v Galvin, supra) does not apply to challenges to legislative enactments, even in the administrative cases some cognizable injury has been demonstrated by the party challenging the administrative action.

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 (see, e.g., People ex rel. Donohoe v Montanye, 35 NY2d 221; Matter of Gold v Lomenzo, 29 NY2d 468; East Meadow Community Concerts Assn. v Board of Educ., 18 NY2d 129) or because a significant public question has recurred and the Appellate Divisions are divided (see, e.g., People v Parker, 41 NY2d 21, 25, supra), there have been no significant countervailing interests to reaching the substantive issue. To ignore standing principles here because of C.’s personal misfortune not only would create a new exception to standing requirements but it could result in grave and perhaps tragic consequences to others currently involved in the adoptive process. Although we have not reached the merits of the constitutional issue, we note that a declaration that the extrajudicial consent portions of section 115-b are unconstitutional would be applicable to all such adoptions not yet finalized (see Matter of Jessica XX, 54 NY2d 417, 424). Any attempt to limit the effect of such a declaration by restricting it to consents executed in the future would place us 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 C., who was not aggrieved by the statute or the form.

IV

Finally, we turn to our colleague’s dissenting opinion and direct our attention solely to those of his contentions which have not been the subject of previous discussion in this opinion.

We cannot agree with Justice Gibbons that the adoptive parents waived 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 C.’s standing. In any event, 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. Matter of Prudco Realty Corp. v Palermo (60 NY2d 656), cited in the dissent, is inapposite because it merely held that an administrative agency’s failure to raise the standing question with respect to review of an administrative determination waived any objection to standing.

Further, we see no basis to upset the formal judicial admission made by the lawyer who represented C. at the hearing. Although 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 differs obviously and radically from the perception of the adversarial party (see Matter of O’Brien v Assessor of Town of Mamaroneck, 20 NY2d 587; Matter of Way v Town of Poughkeepsie, 75 AD2d 602), 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 C.’s conversations with him concerning the adoption, her lawyer objected and made the categorical declaration that his client was not misled by the consent form. He thus succeeded in excluding presumably damaging evidence and we cannot perceive how he could have misconceived the import of his straightforward declaration.

We also disagree with our colleague’s assertion that the admission was not binding because C.’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” C. of her rights. While it is highly questionable whether a civil judgment can be overthrown by a posttrial claim of conflict of interest, here C. herself has made no such claim, and it would be highly unfair for this court, sua sponte on this record, to find her attorney guilty of such conduct. We are obligated to respect a party’s choice of trial counsel (People v Gomberg, 38 NY2d 307, 312) and we should not readily interfere with an attorney-client relationship (see, also, Matter of Schumer v Holtzman, 60 NY2d 46). To presume that C.’s trial counsel did not testify that C. 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 (1) her admission that the statute had been explained to her; (2) her lawyer’s declaration in her presence that she was not misled; (3) the Acting Surrogate’s finding that she was not misled; and (4) the absence of any claim by her present counsel or his client that his predecessor should have testified. On this record, there is no basis for a finding that the lawyer performed otherwise than in accordance with ethical requirements and we find no basis either to criticize or condemn him.

In sum, C.’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. The Acting Surrogate found the best interests of the child were served by adoption. We are in accord with that conclusion. If the statute has defects, the cure is with the Legislature.

Accordingly, there should be an affirmance.