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Where There Has Been a Failure of a Material Condition of a Judicial Instrument of Surrender (of Guardianship and Custody of a Child), the Parent May Bring an Action to Revoke the Surrender Instrument

The Third Department, in a full-fledged opinion by Justice Devine, determined, where a parent agrees to surrender guardianship and custody of a child pursuant to a judicial instrument of surrender, a substantial failure of a material condition of the instrument allows the parent to bring an action to revoke the instrument.  In this case the persons specified in the surrender would not adopt the child:

In Matter of Christopher F. (supra), we were presented with a biological parent’s application to revoke a judicial instrument of surrender. We concluded that, although no procedures beyond notification of the parent were set forth in the statute at that time (see Social Services Law § 383-c [6] [former (c)], as added by L 1990, ch 479, § 2), “based upon our common-sense interpretation of the applicable statutory framework,” the failure of the provision of the surrender instrument conditioning the biological parent’s surrender on adoption of the child by the person specified in the surrender “permitted [the biological parent] to revoke her consent to the adoption” … . Accordingly, we granted the parent’s application for revocation of the judicial surrender. “‘The Legislature is . . . presumed to be aware of the decisional and statute law in existence at the time of an enactment'” … . Since the subsequent statutory amendments did nothing to abrogate or replace the relevant portions of our holding in Matter of Christopher F. (260 AD2d at 99-101), we conclude that, when there has been a substantial failure of a material condition of a judicial instrument of surrender, the procedure we endorsed in Matter of Christopher F. (supra) remains the appropriate procedure. In such a circumstance, the surrendering parent may bring an application before the court — either by petition or by motion — for revocation of the instrument (see id. at 101). Matter of Bentley XX, 2014 NY Slip Op 05222, 3rd Dept 7-10-14

 

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