Opinion
April 27, 1971
Appeal from the Supreme Court, Chautauqua County.
Present — Marsh, J.P., Witmer, Moule, Cardamone and Henry, JJ.
Judgment unanimously affirmed, without costs. Memorandum: This appeal is from a determination, following a habeas corpus hearing, awarding custody to the 23-year-old natural mother of an 11-month-old infant from its adopting parents after she had given it up for adoption. The infant was born May 29, 1970 and surrendered by the written consent of the natural mother on June 1, 1970. The petition of the adopting parents was filed June 22, 1970 in the Family Court of Cattaraugus County. In November, 1970, approximately four and one-half months later, the natural mother revoked her consent to the adoption. The Domestic Relations Law provides for a six-month waiting period from the filing of the adoption petition before entry of an order of adoption (Domestic Relations Law, § 112, subd. 6). This period is intended for the benefit of all the parties to the adoption proceeding, including the natural mother ( Matter of Anonymous, 286 App. Div. 161, 164). The unfortunate delay here is attributable, at least in part, to the inherent time lapse required by the statute (Domestic Relations Law, § 112, subd. 6). Further delay, however, from November, 1970 to the hearing in late February, 1971 is, although justifiably so, of the respective parties' own making. Respondents-appellants contend that the custody awarded here will not promote the best interest of the child. It has been repeatedly held that in determining what is in the best interest of the child, the natural mother or father has a presumptive right to the care and custody of the child superior to everyone else unless the natural parent has abandoned that right or has proved unfit to be a parent ( People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., 28 N.Y.2d 185); People ex rel. Ferro v. Bacile, 28 N.Y.2d 537, affg. 35 A.D.2d 550; People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 468-469). The record amply supports the trial court's determination that there was no abandonment by the natural mother. The facts reveal that this was a hospital surrender made two days after the baby's birth and while the mother was a "very frightened girl". It was not made willingly but only as a result of circumstances which the mother believed left her no other choice. Shortly after leaving the hospital, the natural mother began to express concern for her baby's welfare and made a search to locate her child. Since this was a private placement there was no agency she could immediately contact. Through her own efforts she succeeded in ascertaining the names of the adopting parents. Thereafter, she promptly called the attorney who handled the surrender and asked him how she could revoke her previously given consent. He told her that he was not in a position to help her. Such conduct on her part did not evidence that "settled purpose to be rid of all parental obligations" necessary to constitute abandonment ( Matter of Maxwell, 4 N.Y.2d 429, 433). The record contains no evidence that the natural mother was unfit to assume the responsibilities of parenthood. Indeed, it shows that she had demonstrated a sense of responsibility by obtaining a college education financed solely by her own efforts and presently holds a responsible teaching position. A review of the entire record reveals that the trial court should have been more mindful, during interruptions of counsel, of the guides set forth in canon 15 of the Canons of Judicial Ethics. Nevertheless, the trial itself accorded respondents-appellants a full and adequate hearing on all the issues involved in this custody proceeding.