Opinion
June 16, 2000.
Appeal from Order of Niagara County Family Court, Batt, J. — Adoption.
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, SCUDDER AND KEHOE, JJ.
Order unanimously affirmed without costs. Memorandum: This proceeding for the adoption of the infant Gabriela was commenced by petitioners, the prospective adoptive parents, based on extrajudicial consents executed by respondents, the birth parents, one week after the child's birth. Respondents appeal from an order determining that, although the consents are valid and comply with Domestic Relations Law § 115-b, they were timely and validly revoked by respondents, thus necessitating a hearing to determine the best interests of the child. Respondents contend that petitioners' failure to provide them with copies of the extrajudicial consents, as required by Domestic Relations Law § 115-b (4) (c), renders the consents invalid, thus terminating the adoption proceeding and mandating the return of the child to respondents without further proceedings.
Not every violation of Domestic Relations Law § 115-b will necessarily invalidate a consent ( see, Matter of De Filippis v. Kirchner, 217 A.D.2d 145, 147). The cases require only "substantial compliance", rather than strict or technical compliance, with the statute, although they do not always use those precise terms ( see, Matter of Baby Boy, 175 Misc.2d 7, 14, aff'd 252 A.D.2d 971 for reasons stated; Matter of De Filippis v. Kirchner, supra, at 147; Matter of Baby Boy B., 163 A.D.2d 673, 674, lv denied 76 N.Y.2d 710; see also, Matter of Chaya S. v. Frederick Herbert L., 90 N.Y.2d 389, 397-398, rearg denied 90 N.Y.2d 936 [excusing technical noncompliance with requirements governing judicial consent]; see generally, Matter of Sarah K., 66 N.Y.2d 223, 239-240, cert denied sub nom. Kosher v. Stamatis, 475 U.S. 1108). The accomplishment of the purposes of the statute, despite technical noncompliance with it, is the critical factor; those purposes are "protecting the natural parent from improvidence or overreaching and insuring that a consent is a product of a fully deliberate act" ( Matter of De Filippis v. Kirchner, supra, at 147, citing People ex rel. Anonymous v. Anonymous, 139 A.D.2d 189, 193).
A court must determine whether the birth parents were injured or prejudiced as a result of the noncompliance ( see, Matter of Chaya S. v. Frederick Herbert L., supra, at 397-398; Matter of Sarah K., supra, at 239-240; Matter of De Filippis v. Kirchner, supra, at 147), or whether they were "otherwise fully informed of the consequences" of the consent ( Matter of De Filippis v. Kirchner, supra, at 147; see, Matter of Sarah K., supra, at 240; cf., Matter of Chaya S. v. Frederick Herbert L., supra, at 397-398). Those few cases invalidating a consent on the ground of noncompliance with the statute invariably do so because the form omitted some basic information required by the statute, thereby frustrating its notice purposes ( see, Matter of Spooner v. Spooner, 244 A.D.2d 667; Matter of Benson v. Jordan, 184 A.D.2d 1080, lv dismissed 80 N.Y.2d 924; People ex rel. Anonymous v. Anonymous, supra, at 194). With regard to the statutory requirement that the parent be given a copy of the consent at the time of execution, it has been observed that the "failure to provide the biological parent with a copy of the executed consent need not always be viewed as a fatal defect, where there was substantial compliance with the statutory provisions and where the biological parent was fully aware of his or her rights and the consequences of consent" (Scheinkman, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 14, Domestic Relations Law C115-b: 3, at 225; compare, Matter of Baby Boy B., supra, at 674, with Matter of Male M., 76 A.D.2d 839, lv denied 50 N.Y.2d 805, 1056, and Matter of Baby Boy, supra, at 14).
On the record before us, there is no basis for invalidating the consents based on petitioners' failure to provide respondents with copies of the consents at the time of execution. Respondents were not prejudiced or injured as a result of the technical violation of the statute, and the statutory purposes were fully accomplished. Respondents admit that, at the urging of petitioners and the notary, they read the consents before signing them, a fact that distinguishes this case from Matter of Baby Boy (supra), relied upon by respondents. Moreover, the record makes clear that respondents understood that they had 45 days to revoke their consent, and that they in fact did so in a timely and proper fashion, thus necessitating the best interests hearing ordered by the court. We therefore conclude that the statutory violation did not prevent respondents from being "otherwise fully informed of [the] consequences" of their consents ( Matter of Sarah K., supra, at 240, citing Matter of Daniel C., 63 N.Y.2d 927; see, Matter of De Filippis v. Kirchner, supra, at 147).