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In re Petition to Vacate an Adoption Decree

February 16, 2010


The opinion of the court was delivered by: Smith, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The parties to this proceeding are former lovers who never married but who, while they were romantically involved, brought a Cambodian child to the United States, and planned to adopt him together. The adoption proceedings became complicated; the couple broke up; and now each claims to be the child's only parent.

Before us on this appeal is an order of the Surrogate, affirmed by the Appellate Division, which granted the petition of LMB, who asserts he is the child's father, to vacate an adoption decree previously granted to ERJ, who claims the status of mother. We agree with the courts below that the adoption decree must be vacated.


Many facts in this case are disputed, but few if any of the factual disputes are material to the legal issues. In the following account, we try to confine ourselves to facts that are agreed on or, at least, asserted by one party and not contradicted by the other.

In January 2003, John Doe, apparently about two months old, was found abandoned in a village market in Cambodia and taken to an orphanage. ERJ, a wealthy New York resident who had taken a philanthropic interest in the plight of Cambodian orphans, saw him for the first time on a tour of the orphanage in June 2003.

LMB, ERJ's then boyfriend, also met John Doe in Cambodia, in July 2003. The child suffered from a heart ailment that could not be properly treated in Cambodia, and in late August or early September 2003 he was brought to New York on a six month visa (later extended for another six months) for the purpose of receiving medical care. John Doe has lived at ERJ's home in New York City since that time. LMB was, until late 2005, at least a frequent visitor to the home, if not an inhabitant of it. Both parties love the child, and have participated in caring for him.

At some point either before or after the child was brought to the United States, ERJ decided she wanted to adopt him. The parties agreed -- either at the outset, or at some later time -- that LMB would adopt him also. United States law presented an obstacle to the adoption, or so the parties believed; they understood that the United States had put a moratorium on adoption of Cambodian children, in response to reports of trafficking in Cambodian babies. The parties devised a fairly complicated solution to this problem. LMB, though a United States citizen, was born in Trinidad and Tobago. The plan was that he would re-establish Trinidadian citizenship (which he could do without relinquishing United States citizenship); that he would adopt John Doe in Trinidad and Tobago; and that the child -- no longer a Cambodian -- could then also be adopted by ERJ in New York.

LMB did reclaim his Trinidadian citizenship, and applied to the Cambodian government for permission to adopt John Doe. On June 23, 2004, the Cambodian Ministry of Social Affairs, Labor, Vocational Training and Youth Rehabilitation (which later dropped "Labor" from its name, and is referred to as MOSAVY), issued a document to LMB approving his request. In the translation submitted by LMB, the document is titled "ADOPTION CERTIFICATE" and says that LMB "is allowed to adopt the orphan child [John Doe]."

The parties' plan to arrange a Trinidadian adoption as a prelude to a New York adoption did not work out. LMB was advised (belatedly, it seems) that single men could not adopt children under Trinidadian law. Meanwhile, in August 2004, the romantic relationship between LMB and ERJ ended, though the two remained, for the time being, on more or less friendly terms.

In the fall of 2004, ERJ was told that it might be possible for her to adopt John Doe in New York after all, even if there was no previous Trinidadian adoption. In an effort to help her accomplish this, on March 14, 2005 LMB signed, at ERJ's request, a letter to MOSAVY saying: "I wish to relinquish the permission that was granted to me by the Kingdom of Cambodia to adopt the orphan child." ERJ made her own application to Cambodian authorities, and on October 11, 2005 MOSAVY issued her a certificate identical in form to the one it had issued to LMB in June 2004. In December 2005, the parties quarreled, apparently because each disapproved of the other's approach to bringing up children, and their relations have been hostile since that time.

On January 12, 2006, ERJ filed a petition with the New York County Surrogate to adopt John Doe. She did not give LMB notice of the adoption proceeding. In her petition, she characterized the relief she sought as "a re-adoption," a characterization she later said was mistaken. ERJ's adoption petition also contained another flaw, one she later called "a very stupid error"; she acknowledged that she "was not candid" with the Surrogate, in that she failed to disclose a recent stay at an alcohol treatment facility.

The New York adoption ERJ sought was not opposed, and was granted on April 12, 2006. On August 1, 2006, LMB, having learned of the adoption, began the present proceeding to vacate it. While this proceeding was pending, the Cambodian government issued two documents that ERJ now relies on. The first, a letter dated October 24, 2006 from MOSAVY to ERJ, states in substance that the Cambodian government validly granted ERJ permission to adopt John Doe. It adds that LMB "also submitted an application" but "failed to attend a handing over ceremony . . . and he also submitted a letter of refusal to adopt." It authorizes ERJ to "use this letter as you see fit for the best interest of" John Doe.

The second document, dated December 1, 2006, was issued by the Cambodian Council of Ministers and is referred to by the parties as a "Sor Chor Nor" -- a phrase translated by ERJ as "governmental edict or clarification of rights." The Sor Chor Nor refers to and repeats the substance of MOSAVY's October 24, 2006 letter, ...

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