
    The People of the State of New York ex rel. Anonymous, Respondent, against Rebecca Talbot Perkins Adoption Society, Inc., et al., Appellants.
    Second Department,
    February 17, 1947.
    
      Benjamin C. Bibman (Myron M. Fineman and Biorace M. Cohen with him on the brief), for appellants.
    
      Murray J. Perelstein (Irving Perelstein with him on the brief), for respondent.
   Hagabty, J.

On the 7th day of August, 1946, respondent, who shall remain anonymous, executed an agreement whereby she unconditionally surrendered the care and custody of her child, which was born out of wedlock on the 13th day of June, 1946, to Rebecca Talbot Perkins Adoption Society, Inc., hereinafter referred to as the Society, an “ authorized agency ” under the jurisdiction of the State Department of Welfare (see Social Welfare Law, § 371, subd. 10). In seeking to regain custody of the child by means of this habeas corpus proceeding, instituted on the 2d day of October, 1946, respondent has alleged that “ the said infant was obtained by fraud and while your petitioner was in an extremely disabled physical state.”

No proof of fraud was adduced. While pregnant and on the 17th day of April, 1946, respondent requested the Society to take the child when born. The child was turned over to the Society nine days after its birth. The proof shows that the nature of the surrender agreement, executed one and one-half months thereafter, was fully known to respondent at the time of its execution by her.

Surrender of custody of a child by a parent to an individual as an incident of adoption by the latter, whether or not by written instrument, is without statutory cognizance. Even though there be such a written surrender, no person can be legally adopted save in pursuance of article 7 of the Domestic Relations Law which provides, inter alia, that such adoption must be on consent of the mother of a child born out of wedlock, unless she has abandoned the child; and where the child is less than eighteen years of age, no order of adoption shall be made until the child has resided with the foster parents for at least six months unless, within discretion of the court, such period of residence is dispensed with. (See Domestic Relations Law, § 111, subd. 3; § 112, subd. 7.) Accordingly, the surrender of a child to an individual pursuant to a writing does not spell out, necessarily, such irrevocable abandonment of the child as obviates the necessity of the consent of the mother to adoption. All factors must be taken into consideration, inclusive of the trial period of six months, in determining whether there has been an irrevocable abandonment. (People ex rel. Lentino v. Feser, 195 App. Div 90; Matter of Anonymous, 178 Misc. 142; Matter of Cohen, 155 Misc. 202.)

A different situation is presented where a child is surrendered to an authorized agency. The Social Welfare Law (§ 384) provides the method whereby the guardianship of the person and the custody of a destitute or dependent child may be committed to an authorized agency by an instrument in writing. It contemplates execution of such an instrument by the mother of a child born out of wedlock and provides that the guardianship shall be in accordance with the provisions of the instrument which “ may also provide for the absolute' surrender of such child to such authorized agency. * * * ” (§ 384, subd. 2.)

Upon surrender in accordance with such agreement, the guardianship of the child and its custody is committed to the authorized agency, irrespective of whether or not it succeeds in effectuating an adoption. The adoption statutes expressly eliminate the necessity of consent to the adoption by a mother who has surrendered a child to an authorized agency, viz.: “ The consent shall not be required of a parent * * * who has surrendered the child to an authorized agency for the purpose of adoption under the provisions of the social welfare law * * Instead, it is the consent of the authorized agency which is required. (Domestic Relations Law, § 111, subd. 4.) In other words, save for the provisions of the Social Welfare Law (§ 383), the surrender agreement irrevocably transfers guardianship and custody. The authorized agency, for example, having accepted the child pursuant to the agreement, may not thereafter insist upon returning the child to the natural mother. It is charged thereafter with the care and supervision of the child, unless the child be adopted. (Social Welfare Law, § 383, subd. 2.)

Upon commitment of the child to an authorized agency a parent shall not be entitled to custody except upon consent of the court or public authority responsible for the commitment “ or in pursuance of an order of a court or judicial officer of competent jurisdiction, detérmining that the interest of such child will be promoted thereby and that such parent is fit, competent and able to duly maintain, support and educate such child. * * * ”. (Social Welfare Law, § 383, subd. 1.)

The only issue here is whether the best interests of the child would be promoted, in accordance with the statutory language, or even under the parens patries doctrine, by returning the child to respondent. We think not. Respondent is a thirty-six year-old woman who has had two children by a first marriage. After a divorce, she married her second husband in 1942. She receives the sum of $5 a week for the care and support of the one child of the first marriage of whom she has custody. Her second husband entered the armed service and went overseas in 1944, respondent receiving an allotment from him. Respondent became pregnant as the result of intercourse with another man in September of 1945. She was divorced from her second husband in February of 1946. If successful in this proceeding, of necessity, respondent would have to give up her occupation of practical nursing and care for two small children or engage someone else to take care of them. There is no adequate assurance that her unmarried brother, freshly returned from the armed service, will continue indefinitely to live with her and contribute to her support.

The child will be adequately maintained by the Society with the distinct possibility that a favorable adoption will be arranged. There is proof that the child is now in the care of .good people with whom he is to be left during the course of the trial period prior to legal adoption, and that, if this adoption be consummated, the child will have a happy home and receive a thorough education. Such an adoption by fostering parents will tend to overcome the disadvantages of his origin and serve to better his prospects in life.

The order should be reversed on the law and the facts, without costs, and the writ dismissed, without costs.

Adel, J.

(concurring). I concur that the order should be reversed and the writ dismissed. I also concur with the reversal of the finding with reference to respondent’s lack of knowledge of the legal significance of the surrender agreement, and the substitution by this court of a finding that the nature of the surrender agreement was fully known by respondent at the time she executed it. This court having reached the conclusion that the best interests of the child, which, it has been determined, is the fundamental consideration here, would not be promoted by returning the infant to the, respondent, the other points raised need not be passed upon. .

Nolan, J.

(concurring in part). I concur for reversal, but

dissent from the determination that the writ should be dismissed and vote to remit the matter to the Special Term for further determination.

The surrender of respondent’s child to the Society constituted an act of abandonment, as a result of which the Society had the child in its custody and under its control and could have produced him, in obedience tó the writ, upon the hearing before the Special Term. (Social Welfare Law, § 383, subd. 2.) No fraud ivas practiced by the Society, and respondent fully understood the nature and effect of the instrument of surrender. The abandonment, however, was not irrevocable and respondent was not thereby barred from applying to the court to restore her child and to permit her to resume the performance of her parental duties. (Cf. Matter of Cohen, 155 Misc. 202; Matter of Anonymous, 178 Misc. 142.) I see no distinction, in principle, betAveen the effect of a surrender to an individual, and that of a surrender to an authorized agency. The custody of a destitute or dependent child, committed to an authorized agency, is not thereby placed beyond the pale of the equitable jurisdiction of the Supreme Court, nor may such jurisdiction be nullified by any instrument in writing, however authenicated, or limited by legislation, however explicit. (People ex rel. Our Lady of Victory I. Home v. Venniro, 126 Misc. 135, and cases cited.) The question to be determined in this proceeding is avIiether the , best interests of the child will be promoted by granting the relief applied for, and the decision of that question, must rest, to a great extent, on the ability of the parent, both moral and finan- ' cial, to discharge her duty in the premises. (Matter of Knowack, 158 N. Y. 482.) The Special Term correctly decided that, it had power, regardless of the instrument of surrender, to make the order appealed from. No express determination was made, however, that the welfare of the child would be better served by such disposition. The evidence adduced does not necessarily lead to a contrary conclusion. If respondent’s testimony is credited, she surrendered her child at a time when she believed that she was about to undergo a serious surgical operation, and would be prevented by her consequent disability from giving him adequate care. When she learned that the operation would not be necessary, and that she could continue to earn a livelihood, she sought to revoke the surrender and to regain the custody which she had surrendered to the Society. She has an earning capacity of upwards of $50 per week, and her brother, who lives with her and who has always contributed to her support, has testified that he will continue to do so as long as his assistance will be required. The record does not disclose that respondent is not adequately caring for her daughter, the child of a former marriage, nor is there adequate proof therein that the child whose custody is the subject of this proceeding, if left in the custody of the Society will have a happy home, or receive a thorough education, particularly if not adopted by the proposed foster parents. Since the Special Term, which saw and heard the witnesses, has not expressly decided the question presented, the matter should be remitted for such determination; and, under the circumstances disclosed by the record, an opportunity should be given the parties to adduce such additional proof as may be available so that all the pertinent facts, including respondent’s fitness, competence and ability to maintain, support and educate the child, and the environment in which he will find himself, may be determined.

Carswell, J., concurs with Hagabty, J.; Adel, J., concurs for reversal and dismissal, and concurs for reversal of finding and substitution of new finding, with memorandum; Nolan, J., concurs for reversal of the order but dissents as to dismissal of the writ and votes to remit the matter to Special Term for further determination, with opinion in which Lewis, P. J., concurs.

, Order sustaining a writ of habeas corpus reversed on the law and the facts, without costs, and the writ dismissed, without costs. The finding that respondent was not fully aware of the legal significance of the surrender agreement is reversed. This court finds that the nature of the surrender agreement was fully tknown by her at the time she executed it. [See post, p. 985.]  