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A CONDITIONAL JUDICIAL SURRENDER OF A CHILD FOR ADOPTION MUST BE REVOKED WHERE THE DESIGNATED ADOPTIVE PARENT DECLINES TO ADOPT AND THE BIRTH PARENT PROMPTLY APPLIES FOR REVOCATION OF THE JUDICIAL SURRENDER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, reversing Family Court, determined the conditional judicial surrender of a child for adoption must be revoked where the designated adopting parent declines to adopt the child and the birth parent promptly applies for revocation. The child, now 16 years old, had been in foster care for nine years. Although the First Department revoked the judicial surrender, the court remanded the matter for a quick hearing on the petition to terminate mother’s parental rights:

This appeal requires us to resolve an issue not previously addressed by this Court. When the person designated in a conditional judicial surrender as the adopting parent declines to adopt the child must the surrender be revoked upon the birth parent’s application? The Family Court was unwilling to vacate the surrender given the undisputed toll on the child’s well-being as a result of spending virtually her entire life in foster care. Instead, the court held a best interests hearing and determined that the mother’s parental rights remain terminated, and converted her conditional judicial surrender to an unconditional one, which permitted the child to remain free for adoption. This issue pits the basic principle that a parent has a “fundamental liberty interest . . . in the care, custody and management” of his or her child … against this state’s statutory framework governing conditional judicial surrenders … . … We conclude that the order of the Family Court should be reversed because the designated person to adopt is a fundamental condition precedent to a surrender such that the person’s declination mandates its revocation upon the birth parent’s prompt application. * * *

Order, Family Court, … reversed, on the law, … the petition denied and dismissed, and the mother’s application granted and the matter remanded for an expeditious continued hearing on the agency’s petition to terminate the mother’s parental rights.” Matter of L.S. (Diana A.), 2021 NY Slip Op 02085, First Dept 4-1-21

 

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