Papers Numbered Summons, Petitions, Affidavit & Exhibits Annexed 1 Notice of Motion, Affirmation & Affidavit Annexed 2 Affidavit & Affirmation in Opposition & Exhibits Annexed 3 Reply Affirmation 4 Upon the foregoing papers, the Motion by Respondents Randall B. and Ann B. (hereinafter “Adoptive Parents”), for the dismissal of the Visitation Petition by Petitioner Jeffrey M. (hereinafter “Biological Father”), is granted in accordance with the following decision. The following facts are essentially undisputed. On January 4, 2008, Respondent Betty A. (hereinafter “Biological Mother”) gave birth to the subject Child out of wedlock as fathered by the Biological Father. Both the Biological Mother and Father allegedly suffer from developmental challenges, but arranged to be on the birth certificate. Shortly after the birth, the Biological Mother presented the Child at the hospital to the Adoptive Parents, who took over the Child’s care and physical custody with the intention of eventually formally adopting her. Subsequently, on January 9, 2008, both the Biological Mother and Father executed separate Post Placement Contact Agreements (hereinafter “the Agreement”) with the Adoptive Parents, wherein they, inter alia, consented to the adoption, agreed to the exchange of photos of the Child throughout the years, and were afforded visitation rights with the Child three times a year until her “tenth birthday; thereafter it would be the Child’s decision regarding visitation.” While the Bio-Mother was represented by counsel and executed an Extra-Judicial Consent on January 8, 2020, the Bio-Father was not so represented. In relevant part, the Agreement provides that “all parties recognize that the Agreement is not legally binding in New York State and will have no impact on the adoption proceedings” and that the visitation with the Child may be terminated at any time by the Adoptive Parents when “continued contact would not be in the Child’s best interests.” The Agreement also provides that: The birth father understand that the Child will be the legal child of the Adoptive Parents and will be a part of the Adoptive Parents’ extended family. The birth father agrees to respect the need of the Adoptive Parents and the Child for privacy, and will not intrude or interfere with the Adoptive Parents’ and the Child’s family life with unreasonable requests for contact or communication. * * * Should any dispute arise between the Adoptive Parents and the birth father, whether with regards with the implementation of this Agreement or any other matter, both parties agree that they will initially seek the services of a qualified social worker, ideally one affiliated with Ohel and make a good faith attempt to mediate any disputes. Should the dispute not be resolved to the satisfaction of both parties, the parties agree to submit the dispute to the rabbinical authority of Ohel * * * and agree to be bound by its decision” This Agreement was executed by the Bio-Father and the Adoptive Parents and was notarized and acknowledged before public notaries (see Domestic Relations Law §115-b[4]). By Petition for Adoption dated January 14, 2008, the Adoptive Parents then commenced an adoption proceeding to adopt the Child in Kings County Family Court. Pursuant to the Domestic Relations Law, the Court gave notice of the pending adoption to the Biological Parents though not required, ordered and received a report of an investigation of the appropriateness of the Adoptive Parents, and dispensed with the three-month period of residency with the Adoptive Parents because the Child had been residing continuously with them since shortly after birth. By Order of Adoption dated July 16, 2008, the Family Court (Lynch, J.H.O.) then granted the Petition and formalized the adoption by the Adoptive Parents of the Child, who “shall henceforth be regarded and treated in all respects as the lawful child of the Adoptive Parents.” After the adoption, the Bio-Father and Mother visited with the Child between 2008 and 2011 in accordance with the Contact Agreement and sporadically received pictures of their growing Child. All visits apparently ceased late in 2011. As a result, by Visitation Petition dated March 16, 2012, the Biological Father commenced the underlying visitation proceeding against the Parents in Kings County Family Court, seeking to enforce the visitation provision of the Agreement. By Order of Dismissal dated June 14, 2012, the Family Court (Ramírez, J.) dismissed the Bio-Father’s Petition “due to lack of standing. Any further proceeding shall be based upon the adoption Post-Placement Contact Agreement.” No appeal from that Order was ever taken nor further proceedings had after that dismissal. Nevertheless, by Petition dated July 31, 2019, the Bio-Father commenced the instant proceeding against the Parents and Bio-Mother in Family Court again seeking to enforce his visitation rights with the Child under the Agreement. At the first court appearance, on September 11, 2019, Judicial Hearing Officer Richard Ross issued an Order dismissing the proceeding with prejudice finding that the Child was adopted by the Parents in 2008, in essence determining that Bio-Father has not visitation rights. There is an appeal currently pending of the September 11, 2019 Order before the Appellate Division, Second Department. However, by Order dated October 16, 2019, J.H.O. Ross reversed himself and vacated his prior Order stating that “a review of the court record for that date indicates that the parties did not sign a stipulation permitting the court to hear and determine the proceeding.” Judge Ross then referred the matter to the Undersigned for further proceedings on December 6, 2019. Given the Bio-Father’s alleged intellectual disabilities and upon his request, this Court appointed County Law §18-B counsel for him and adjourned the case to permit counsel’s review of the case and acquaintance with her client. On January 14, 2020, the Undersigned heard oral argument on the Parents’ counsel’s oral application to dismiss the proceeding based on the lack of standing of the Bio-Father coupled with the prior 2012 dismissal by Judge Ramirez. The Bio-Mother, who signed the extrajudicial Consent Agreement, has never attempted to revoke the same and has not expressed interest in this proceeding. Although the Court preliminarily denied the application, the Court afforded counsel time to file a formal Motion in order to properly elucidate his complex legal arguments in writing with supporting precedent. By Notice of Motion returnable July 2, 2020, the Parents move for the dismissal of the proceedings, presumably pursuant to CPLR 3211, arguing that the Bio-Father does not have standing to seek visitation since he relinquished all his parental rights, and the current petition is made in bad faith and without any legal support. Parents maintain that Bio-Father lacks any legal standing to seek custody or visitation because his parental rights were legally terminated, either voluntarily or involuntarily, when the Child was freed for adoption and adopted by the Parents more than 12 years ago. Moreover, the Parents argue that visitation with the Bio-Father would not be in the Child’s best interests because not only has the Bio-Father not expressed any interest in or requested to visit with her for several years, but the Child — who is autistic — only knows the Adoptive Parents as her “mother and father,” has thrived in their home environment right after her birth and would be detrimentally affected by the introduction of what amounts to be a stranger to her life. In opposition to the Motion, the Bio-Father argues that he is a “functionally illiterate man” who did not consent to giving his Child away in adoption to the Adoptive Parents and wants to reverse that adoption because it constituted coercion and a “fraudulent representation of the agreement” of adoption. According to the Bio-Father, he wants to reestablish a relationship with his Child which was unilaterally stopped by the Adoptive Parents, who have displayed a questionable character by “unconscionably snatching away a child from her natural parents.” He claims that the Adoptive Parents, their attorneys and his Rabbi Mordechai Biser engaged in a fraudulent scheme which caused him to “lose his Child in plain sight” by taking advantage of his intellectual disability and coercing him into signing the adoption papers without legal representation. He further argues that the Bio-Mother also had a disability, did not understand that she was giving away the Child and was not represented by her own independent attorney upon signing the Agreement. This Court disagrees with the Bio-Father’s arguments. It is well established that “Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute” (Matter of Lisa T. v. King E.T., 30 NY3d 548, 551 [2017]; see NY Const, art VI, §13), including jurisdiction over adoption proceedings (see Family Court Act §109 et seq.). “As a general rule, the courts do not have the authority to compel continuing post-adoption contacts with members of the biological family” (Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law §112-b at 223). “Although adoptive parents are free, at their election, to permit contacts between the adopted child and the child’s biological parent, to judicially require such contacts arguably may be seen as threatening the integrity of the adoptive family unit” (Matter of Hailey ZZ. [Tompkins County Dept. of Soc. Servs.], 19 NY3d 422, 438 [2012], quoting Matter of Gregory B., 74 NY2d 3d 77, 91 [1989]). However, Domestic Relations Law §112-b (2) explicitly authorizes written and consensual agreements for post-adoption contacts between an adopted child and his/her biological parents, which “shall not be legally enforceable unless the terms of the agreement are incorporated into the written order entered in accordance with the provisions” of the adoption statute (see Matter of Andie B. [Lee J.], 102 AD3d 128, 129 [3rd Dept. 2012]). Pursuant to the statute, such agreements may be incorporated into an adoption order if they are set forth in writing, consented to by the parties and the attorney for the child, and the court determines that the agreement would be in the adoptive child’s best interests (see Domestic Relations Law §112-b[2]; Matter of Kaylee O., 111 AD3d 1273 [4th Dept. 2013]). In any event, an adoptive parent’s “[f]ailure to comply with the terms and conditions of an approved order regarding communication or contact that has been entered by the court * * * shall not be grounds for setting aside an adoption decree or revocation of written consent to an adoption after that consent has been approved by the court” (Domestic Relations Law §112-b[3]). Applying the foregoing legal principles to the matter at hand, the Bio-Father has not sufficiently established a right to visitation with the Child. Initially, the Agreement expressly provides that the parties are required to initially attempt to resolve any dispute arising under the Agreement through mediation by a “qualified social worker” and, if unsuccessful, then to commence a proceeding at the Ohel Rabbinical Court. Although there is evidence of such attempts in 2012, the Bio-Father provides no evidence that he complied with those threshold prerequisites under the Agreement, has contacted any social worker or has commenced any proceedings in the Rabbinical courts this time. As such, judicial intervention would appear to be premature. Nonetheless, Domestic Relations Law §112-b expressly requires inclusion of the Agreement in the Order of Adoption to obtain judicial enforcement of the post-adoption contact. The Bio-Father has failed to establish that the terms of the Agreement were incorporated into the Court’s findings and Order of Adoption of July 16, 2008, thereby precluding enforcement by Family Court (see Matter of Kaylee O., 111 AD3d at 1273). Nor do Father’s arguments pursuant to Domestic Relations Law §115-b(7)1 call for a different conclusion in this Proceeding. Entitled Special Provisions Relating to Consents in Private-Placement Adoptions, Domestic Relations Law §115-b “provides a framework within which adoptions can be undertaken with reasonable assurance of permanence” and deals with the limited circumstances available for the revocation of a consent to adoption (Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law §115-b at 313). Under the statute, Biological parents are free to revoke their consent to adoption in writing to be received by the Court within 45 days after its execution, but are precluded from doing so afterwards (see Domestic Relations Law §115-b[6][a]). Even if the Bio-Father may commence “actions or proceedings” under the underlying Adoption Proceeding to revoke his consent to the adoption “on the ground of fraud, duress or coercion in the execution or inducement of an adoption consent,” there would appear to be unsurmountable estoppel or statute of limitations issues given his delay of over 12 years in challenging the Child’s adoption (see e.g. Matter of Female Infant B., 51 AD3d 419 [1st Dept. 2008] [inactivity for 30 months estopped mother from setting aside adoption and was not in child's best interests]). In any event, this Visitation Proceeding is not the proper procedural vehicle to challenge the voluntariness of his consent to adoption and/or seek revocation of the adoption at this late date. In accordance with the foregoing, the Parents’ Motion to dismiss the Bio-Father’s Petition is granted and the proceeding is hereby dismissed. The foregoing constitutes the Decision and Order of the Court. NOTICE: Pursuant to Section 1113 of the Family Court Act, an appeal from this Order must be taken within 30 days of receipt of the Order by Appellant in Court, 35 days from the date of mailing of the Order to the Appellant by the Clerk of Court, or 30 days after service by a party or the Attorney for the Child upon the Appellant, whichever is earliest. Dated: August 24, 2020
