115-B - Special provisions relating to consents in private-placement adoptions.

§  115-b. Special provisions relating to consents in private-placement  adoptions.  1.  A  duly  executed  and   acknowledged   consent   to   a  private-placement  adoption shall state that no action or proceeding may  be maintained by the consenting parent for the custody of the  child  to  be adopted except as provided in this section. Notwithstanding any other  section  of  law,  a  consent to adoption executed by a person who is in  foster care shall only be executed before a judge of the family court.    2. Judicial consents. (a) A consent to a  private  placement  adoption  may  be  executed  or acknowledged before any judge or surrogate in this  state having jurisdiction over adoption proceedings. Such consent  shall  state  that  it  is irrevocable upon such execution or acknowledgment. A  consent executed or acknowledged before a court in another  state  shall  satisfy the requirements of this section if it is executed by a resident  of  the other state before a court of record which has jurisdiction over  adoption proceedings  in  that  state,  and  a  certified  copy  of  the  transcript  of that proceeding, showing compliance with paragraph (b) of  this subdivision, is filed as part of the adoption  proceeding  in  this  state.    (b)  At  the time that a parent appears before a judge or surrogate to  execute or acknowledge a consent to adoption,  the  judge  or  surrogate  shall inform such parent of the consequences of such act pursuant to the  provisions of this section, including informing such parent of the right  to  be represented by legal counsel of the parent's own choosing; of the  right to obtain supportive counseling and of any rights the  parent  may  have  pursuant to section two hundred sixty-two of the family court act,  section four hundred seven of the surrogate's court  procedure  act,  or  section  thirty-five  of the judiciary law. The judge or surrogate shall  give such parent a copy of such consent upon the execution thereof.    3. Extrajudicial consents. (a) Whenever a consent is not  executed  or  acknowledged  before a judge or surrogate pursuant to subdivision two of  this section such consent shall become irrevocable forty-five days after  the execution of the consent unless written notice of revocation thereof  is received by the court in which  the  adoption  proceeding  is  to  be  commenced within said forty-five days.    (b)  Notwithstanding  that such written notice is received within said  forty-five days, the notice of revocation shall be given effect only  if  the  adoptive  parents  fail  to  oppose such revocation, as provided in  subdivision six of this section, or, if they oppose such revocation  and  the  court as provided in subdivision six of this section has determined  that the best interests of the child will be served by giving force  and  effect to such revocation.    4.  (a)  In  any  case where a consent is not executed or acknowledged  before a judge or surrogate pursuant to subdivision two of this section,  the consent shall state, in conspicuous print of at least eighteen point  type:    (i) the name and address of the court in which the adoption proceeding  has been or is to be commenced; and    (ii) that the consent may be revoked within  forty-five  days  of  the  execution  of  the  document and where the consent is not revoked within  said forty-five days no proceeding may be maintained by the  parent  for  the return of the custody of the child; and    (iii)  that  such  revocation  must  be in writing and received by the  court where the adoption proceeding is to be commenced within forty-five  days of the execution of said consent; and    (iv) that, if the adoptive  parents  contest  the  revocation,  timely  notice  of  the  revocation will not necessarily result in the return of  the child to the parent's custody, and that the rights of the parent  to  custody  of  the  child  shall  not be superior to those of the adoptiveparents but that a hearing will be required before a judge  pursuant  to  the  provisions  of this section to determine: (1) whether the notice of  revocation was timely and properly given; and if necessary, (2)  whether  the best interests of the child will be served by: (A) returning custody  of the child to the parent; or (B) by continuing the adoption proceeding  commenced  by  the  adoptive  parents;  or (C) by disposition other than  adoption by the adoptive parents; or (D) by placement of the child  with  an  authorized  agency, and if any such determination is made, the court  shall make such disposition of the custody of the  child  as  will  best  serve the interests of the child; and    (v)  that  the  parent  has  the  right to legal representation of the  parent's own choosing; the right to obtain supportive counseling and may  have the right to have the court appoint an attorney pursuant to section  two hundred sixty-two of the family  court  act,  section  four  hundred  seven  of the surrogate's court procedure act, or section thirty-five of  the judiciary law.    (b) Such consent shall be executed or  acknowledged  before  a  notary  public or other officer authorized to take proof of deeds.    (c)  A  copy  of  such  consent shall be given to such parent upon the  execution thereof. The consent shall include  the  following  statement:  "I,  (name  of  consenting  parent), this ____ day of __________, _____,  have received a copy of this consent. (Signature of consenting parent)".  Such consenting parent shall so acknowledge the delivery and the date of  the delivery in writing on the consent.    (d) The adoptive parent may commence  the  adoption  proceeding  in  a  court  of  competent  jurisdiction  other  than  the  court named in the  consent  provided  that  such  commencement  is  initiated   more   than  forty-five  days  after the consent is executed. Such commencement shall  not revive, extend or toll  the  period  for  revocation  of  a  consent  pursuant to this section.    5. For the purposes of commencing an adoption proceeding, the clerk of  a  court of competent jurisdiction shall accept an adoption petition for  filing which  is  complete  on  its  face  and  shall  not  require  any  supplementary  documentation  as  a condition of filing. Nothing in this  section shall compel a court to hear  an  adoption  petition  until  all  documents  necessary  to  the adoption proceeding have been filed to the  satisfaction of the court.    6. (a) A parent may revoke his consent  to  adoption  only  by  giving  notice,  in  writing,  of such revocation, no later than forty-five days  after the execution of the consent, or twenty days after the receipt  of  a  notice  of denial, withdrawal or removal pursuant to paragraph (a) of  subdivision  four  of  section  seventeen  hundred  twenty-five  of  the  surrogate's  court  procedure  act,  whichever is later, to the court in  which the adoption proceeding has been  or  is  to  be  commenced.  Such  notice  shall  set  forth the name and address of the court in which the  adoption proceeding is to be commenced, the address of  the  parent  and  may, in addition, set forth the name and address of the attorney for the  parent.    (b)  If,  within  forty-five days of the execution of the consent, the  court has received such notice of revocation, the court  shall  promptly  notify  the  adoptive  parents and their attorney, by certified mail, of  the receipt by the court of such notice of revocation.    (i) Such notice to the adoptive parents shall set forth that if within  fifteen days from the date of such notice the  court  has  not  received  from  the  adoptive  parents  or  their attorneys notice, in writing, of  their intention to oppose such revocation by the parents,  the  adoption  proceeding  will  be  dismissed and that, in case of such dismissal, the  court  will  send  to  the  parents,  the  adoptive  parents  and  theirrespective  attorneys  the notice of dismissal, as provided in paragraph  (c) of this subdivision.    (ii)  Such notice to the adoptive parents shall further set forth that  if, within fifteen days from the date of such notice,  the  court  shall  receive from the adoptive parents notice, in writing, of their intention  to oppose such revocation by the parents, the court will, upon notice to  the  parents,  the  adoptive  parents  and  their  respective attorneys,  proceed, as  provided  in  paragraph  (d)  of  this  subdivision,  to  a  determination  of whether such notice of revocation by the parents shall  be given force and effect and to a  determination  of  what  disposition  shall be made of the custody of the child.    (c) If the adoption proceeding is dismissed pursuant to the provisions  of paragraph (b) of this subdivision,    (i)  Written  notice  of such dismissal shall forthwith be sent to the  parent, the adoptive parents and their respective attorneys.    (ii) Such notice of dismissal shall set forth the name and address  of  the parent, the name and address of the attorney for the parent, if any,  the name and address of the attorney for the adoptive parents.    (iii)  Such  notice  of  dismissal shall further set forth that if the  child is not returned to the custody of the parent within ten days  from  the  date  of  such  notice  of dismissal, the court will forthwith upon  request, in writing, by the parent or by the attorney  for  the  parent,  furnish  to said parent or attorney so requesting, the names and address  of the adoptive parents.    (iv) Such notice of dismissal shall further state that, in  the  event  the  custody  of the child is not returned to the parent by the adoptive  parents upon request therefor, a proceeding to  obtain  custody  may  be  instituted by the parent in the Supreme Court or the Family Court.    (d)   If,  pursuant  to  the  provisions  of  paragraph  (b)  of  this  subdivision, the adoptive parents give timely and proper notice of their  intention to oppose the revocation of the parent's consent:    (i) The court shall promptly  notify,  in  writing,  the  parent,  the  adoptive  parents,  their respective attorneys, and the attorney for the  child appointed pursuant to section two hundred forty-nine of the family  court act or a guardian ad litem  appointed  pursuant  to  section  four  hundred  three-a  of the surrogate's court procedure act, that the court  will, upon the date specified in such notice by the court,  or  as  soon  thereafter  as the parties may be heard pursuant to this paragraph, hear  and determine whether revocation of the consent of the parent was timely  and properly given and whether the adoptive parent's notice of intent to  oppose such revocation was timely and properly given and  if  necessary,  hear  and  determine what disposition should be made with respect to the  custody of the child.    (ii) The court shall, upon  the  date  specified,  take  proof  as  to  whether  the  best  interests  of  the child will be served by returning  custody of the child to the parents, or by the adoption of the child  by  the  adoptive  parents,  or by placement of the child with an authorized  agency for foster care with or  without  authority  to  consent  to  the  adoption  of  the  child,  or by other disposition of the custody of the  child.    (iii) If the court determines that the best  interests  of  the  child  will  be  served  by  returning custody of the child to the parent or by  placement of the child with an authorized agency or by disposition other  than adoption by the adoptive parents, the revocation of  consent  shall  be  given  force and effect and the court shall make such disposition of  the custody of the child as will best serve the interests of the child.    (iv) If the court determines that the best interests of the child will  be served by adoption of the child by the adoptive  parents,  the  courtshall  enter  an  order  denying  any  force  or effect to the notice of  revocation of consent and shall dispose of the custody of the  child  as  if no such notice of revocation had been given by the parent.    (v)  In  such  proceeding  the parent or parents who consented to such  adoption shall have no right to the custody of  the  child  superior  to  that of the adoptive parents, notwithstanding that the parent or parents  who  consented  to  the  adoption  are  fit,  competent and able to duly  maintain, support and educate the child. The custody of such child shall  be awarded solely on the basis of the best interests of the  child,  and  there  shall  be  no presumption that such interests will be promoted by  any particular custodial disposition.    7. Nothing contained in this section shall limit or affect  the  power  and  authority  of  the court in an adoption proceeding, pursuant to the  provisions of section one hundred sixteen of this title, to  remove  the  child  from  the  home of the adoptive parents, upon the ground that the  welfare of the child requires such action, and thereupon to  return  the  child  to  a  birth parent or place the child with an authorized agency,  or, in the case of a surrogate, transfer the child to the family  court;  nor  shall this section bar actions or proceedings brought on the ground  of fraud, duress or coercion  in  the  execution  or  inducement  of  an  adoption consent.    8.  Notwithstanding  any  other  provision  of  this section, a parent  having custody of a child whose adoption is sought by his or her  spouse  need only consent that his or her child be adopted by a named stepfather  or stepmother.    9.  Any  consent to adoption subject to the provisions of this section  shall include an adoption information registry birth parent registration  consent form, stating whether or not such biological parent  or  parents  whose  consent is subject to the provisions of this section, consents to  the receipt of identifying information by the child to be  adopted  upon  registration  with  the  adoption  information  registry  established by  section forty-one hundred thirty-eight-c of the public  health  law  and  upon  the adoptee reaching the age of eighteen. If such consent is made,  it shall be revocable by either of the biological parents at  any  time.  The  revocation  of  the  consent by one of the parents shall revoke the  consent of both parents. The failure of a biological parent to  complete  the  consent form shall have no effect on the finality of the consent to  adoption. A copy of the form required  by  this  subdivision,  shall  be  forwarded  to  the  state adoption information registry for inclusion in  the records maintained by such  registry.  Any  fees  authorized  to  be  charged  by  the  state  adoption registry for filing documentation with  such registry shall be waived for the form required by this subdivision.