Legal Aid Society of Wayne County, Inc. (Jonathan Lorge of counsel), for Katherine W. Gary Lee Bennett for Wayne County Department of Social Services, respondent.
John P. Porter, Law Guardian.
John B. Nesbitt, J.
This case continues the recent judicial exegesis of section 383-c of the Social Services Law
regarding revocation of judicial surrenders for adoption. The relevant facts are uncomplicated and undisputed. In September of 2000, Katherine W. appeared before a Judge of the Wayne County Family Court and, consistent with the requirements of section 383-c (1), surrendered her son, William, to the Department of Social Services for the purpose of adoption. Pursuant to subdivision (5) (c), the surrender instrument signed by Ms. W. stated that the surrender became final and irrevocable immediately upon signing.
Relevant for present purposes is the fact that the surrender instrument contained language reciting the provisions of subdivision (5) (b) (ii) and (iii) in pertinent part as follows:
" [T]hat the parent is giving up all rights to have custody, visit with, speak with, write to or learn about the child, forever, unless the parties have agreed to different terms ... [as] written in this surrender.
" [T]hat the child will be adopted without the parent's consent and without further notice to the parent, and will be adopted by any person who the agency chooses, unless the surrender paper contains the name of the person or persons who will be adopting the child." (Emphasis added.)
The underscored language inspired a section in the surrender instrument for insertion of " terms and conditions agreed upon by all the parties." That section stated by typed addition that " William will be adopted by his foster parents, Shannane and Mariano Zanghi; Zanghis will provide me with a yearly photograph at Christmastime."
Approximately three months after the surrender proceeding in Family Court, the Department of Social Services issued Ms. W. a notice pursuant to subdivision (6) (c), which provides:
" In any case in which the authorized agency determines that the persons specified in the surrender will not adopt the child, the agency promptly shall notify the parent thereof, unless such notice is expressly waived by a statement written by the parent and appended to or included in such instrument."
The notice sent by the Department notified Ms. W. of the fact that the individuals named in the surrender document would not be adopting the child, that the surrender nevertheless remained in effect allowing the child to be adopted without Ms. ...