In the Matter
of the Adoption of Child A. and CHILD C., Infants.
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X2014-46725
Thomas O. Rice, Esq. (attorney for petitioner)
Albanese & Albanese, LLP
100 Franklin Avenue
Garden City, New York 11530
Frederick J. Magovern, Esq. (for respondent, Cradle of Hope)
Magovern & Sclafani
1539 Franklin Avenue
Mineola, NY 11501
Yekaterina Trambitskaya, Esq. (for respondent)
Spence Chapin
410 E. 92nd St.
New York, NY 10128
Peter K. Kelly, Esq. (guardian ad litem)
Ruskin Moscou Faltischek, P.C.
East Tower, 15th Fl.
1425 RXR Plaza
Uniondale, NY 11556-1425
Nassau County Dept. of Social Services (for respondent)
60 Charles Lindbergh Blvd.
Uniondale, NY 11553-3656
By: Daniel McLane, Esq., County Attorney
Harris Beach, PLLC (for respondent, Cayuga County Dept. Of Social
Services)
333 Earle Ovington Blvd., Ste. 901
Uniondale, NY 11553
By: William Garry, Esq.
New York State Office of Children & Family Services, (for
respondent)
State of New York
Office of the Attorney General
Eric T. Schneiderman
200 Old Country Rd., Ste. 240
Mineola, NY 11501-4241
By: Dorothy Oehler Nese, Deputy Assistant Attorney General
Edward W. McCarty III, J.
The following constitutes the court's decision and order regarding whether the
United States Department of State and the Russian Federation are indispensable parties
in the current action, and whether a forum-selection clause in a contract between the
adoptive parents and the Cradle of Hope is applicable. The court answers both question
in the negative. Parent Father (hereinafter "PF") and Parent Mother (hereinafter "PM")
reside in Nassau County, New York. Their children, whom they adopted from the
Russian Federation are A, born 2000, and C, born 2002.
Before exploring the complex issues in regard to permitting the admission of
the Russian Federation and the United States Department of State to the current judicial
proceeding certain observations must be made. Judicial Notice is the rule of law of
evidence that allows the fact to be introduced into evidence if the truth of that fact is so
notorious or well known, or so authoritatively attested, that it cannot be reasonably be
doubted. Judicial notice of the following aspects of the Russian/American adoption trade
must be made in light of the Petition in this case.
1.In the past 30 years, 60,000 Russian children have been adopted by
Americans;
2.The estimated payments to private and public Russian sources have been
estimated to be 1/3 of a billion dollars;
3.Russia is not a party to the Hague Convention on Protection of Children
and Co- Operation in Respect of Inter-Country Adoption. This convention guarantees
certain rights to adoptive children and the process of adoption;
4.An estimated 20 percent of Russian children adopted in the United States
suffer from developmental disabilities from severe to mild;
5.Since 2001, over 18 adopted Russian children have died through violence
of their adoptive parents or supervisors. Seventy-five percent of these children were in
the United States for less than 6 months and under the age of two years;
6.In 2013, Russian President Putin publicly stopped the Russian-American
adoption trade yet Russian children can still be obtained in the worldwide adoption
market through other Eastern European adoption agencies;
7.Adopted Russian children have been returned to Russia without American
due process; and
8.Adopted Russian children throughout the United States are currently being
exchanged on the Internet through a process called Re-Homing without the benefit of
any court or governmental supervision.
II. ALLEGATIONS OF FRAUD
The allegations of fraud in the petition of the parents against Spence-Chapin
and the Cradle of Hope in this case are profoundly disturbing. These include:
1.Allegations of fraud in the inducement during the course of the adoption
petition process by American adoption agencies.
2.Allegations of "bait and switch" of children during the adoption process by
American adoption agencies.
3.Allegations of Russian organized criminal component in the
Russian/American adoption process both in Russia and the United States.
The Ps seek to vacate the adoption under the theory of fraud in the
inducement, alleging a "bait and switch" and misrepresentation from various entities
involved during the adoption process including Spence-Chapin and the Cradle of Hope.
The Ps seek to vacate the adoption due to newly discovered evidence, alleging that A and
C have been criminally programmed, they have severe psychiatric illnesses and are
unable to form familial bonds. The Ps also seek to vacate the adoption for cause, alleging
the Ps are in [*2]danger of being harmed by A and C, and
that both A and C are in danger of harming themselves. Additionally, the petition alleges
that the original birth father of both A and C never consented to the adoption and,
therefore, it is invalid.
From May 2008 until May and September 2012, the Ps explored every
avenue that they could to meet the health demands of their children. The Ps sought the
help of leading child psychologists and continued to support A and C emotionally,
medically and physically. Both A and C suffer from serious mental health diseases and
have acted out and threatened to kill the Ps since moving to the United States. Since
mid-2012, A and C have resided in a New York State mental health facility for children
in need of psychiatric care. The children are living there because medical professionals
determined that it was absolutely necessary for the children to be under constant medical
supervision.
II. WHETHER THE RUSSIAN FEDERATION AND THE UNITED
STATES DEPARTMENT OF STATE ARE NECESSARY PARTIES TO THE
CURRENT LITIGATION.
The Respondents have moved to join the Russian Federation and the United
States Department of State as necessary parties to the action. The court has authority to
determine, on its own initiative, or by motion of any party in an action, whether there is a
need to join a necessary party to the action. See Lezette u. Bd. of Ed., Hudson City
Sch. Dist., 35 NY2d 272 (1974); Town of Amhers v. Hilger, 106 AD3d 120 (4th Dept
2013). According to CPLR §1001(a), a necessary party is a party "who ought to be
[a] part[y] if complete relief is to be accorded between the persons who are parties to the
action." Alternatively, a party is necessary to an action if they "might be inequitably
affected by a judgment in the action." If the court determines that the party is not
necessary, the inquiry ends. Vincent C. Alexander, McKinney's Practice
Commentaries to CPLR 1001(a). The policy behind New York's joinder law is "to
protect against multiple lawsuits and inconsistent judgments." Swezey v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 19 NY3d 543, 551 (2012), quoting Matter of Red Hook/Gowanus
Chamber of Commerce v. New York City Board of Standards and Appeals, 5 NY3d
452, 459 (2005).
For a party in a suit to remain proper, they "must be a party against whom
there exists a right to relief on behalf of the petitioners." Joanne S. v. Carey, 115
AD2d 4, 8 (1st Dept 1986).
IV. THE RUSSIAN FEDERATION AND THE U.S. DEPARTMENT OF
STATE ARE NOT NECESSARY PARTIES.
The petitioners seek to vacate the adoption on various grounds, including
fraud in the inducement and ("bait and switch") adoption process misrepresentation.
These allegations are against the respondents, Spence-Chapin and the Cradle of Hope.
Complete relief can be afforded to the parties without the joinder of United States
Department of State and the Russian Federation. Additionally, neither of them will be
inequitably affected by the judgment, because the issue at bar is purely a matter between
PM and PF, the adoptive parents, and the Cradle of Hope and Spence-Chapin.
The court is guided by the Court of Appeals in, Swezey v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 19 NY3d 543 (2012), where the Court held that the
Republic of the Philippines was a necessary party to an action. The subject matter of the
action regarded assets of the estate of the former president of the Philippines. The
Philippine government alleged that assets of the estate were stolen and belonged to the
Philippine government. In determining the necessity of the Philippine government as a
party to the action, the court reasoned that if the estate were liquidated without making
the Philippine government a party to the action, they would be inequitably affected.
Id. at 551-552.
Conversely, the action before this court is a matter that is solely between the
parties already named. If the adoption is determined to be null and void, it will be based
on the actions of Spence-Chapin and the Cradle of Hope alone.
There exists no right to relief on behalf of the parents or any other parties to
this litigation against either the Department of State or the Russian Federation. This is a
consideration that is important to the determination before the court. Joanne S. v.
Carey, 115 AD2d 4, 8 (1st Dept 1986).
Finality can be reached without the risk of multiple lawsuits or inconsistent
judgments, which is the goal of the law behind New York's joinder law.
However, the court is prepared to allow the United States Department of
State and the Russian Federation to be witnesses as to factual development of this
case.
V. FORUM SELECTION CLAUSE
Basic contract principles guide the court in concluding that the
forum-selection clause within the contract between the adoptive parents and Cradle of
Hope is inapplicable. Parties to a contract are free to agree to a forum-selection clause.
M/S Bremen v. Zapata Off-Shore Co., 407 US 1, 12-13 (1972); Columbia
Cas. Co. v. Bristol-Myers Squibb Co., 215 AD2d 91, 99 (1995). However, the
children involved herein were not parties to the contract, and therefore its provisions are
not binding on this proceeding to vacate the adoption.
Assuming arguendo that the forum-selection clause is applicable, the
standard for reviewing the validity of a forum-selection clause hinges on whether the
clause is unreasonable, unjust, or the clause is unenforceable due to a showing of fraud
or overreaching. M/S Bremen v. Zapata Off-Shore Co., 407 US 1, 12-13 (1972);
Columbia Cas. Co. v. Bristol-Myers Squibb Co., 215 AD2d 91 (1st Dept 1995).
All of the petitioner's allegations are rested in fraud, rendering the
forum-selection clause unenforceable. The petitioners' complaint is permeated with
allegations of fraud. The petitioners allege that the entire procedure leading up to the
adoption and the adoption itself, was based on fraudulent conduct by both
Spence-Chapin and the Cradle of Hope. Specifically, the petitioners allege fraud in the
inducement and bait-and-switch. These allegations are the foundation of the petitioners'
stance, and encompass the entire case before the court. Accordingly, the court holds that
even if the forum-selection clause is applicable, it is unenforceable. See also Desola
Group Inc. v. Coors Brewing Co., 199 AD2d 141 (1st Dept 1993) (holding that
forum-selection clause is unenforceable because the record was replete with allegations
of fraud.)
V. CONCLUSION
For the foregoing reasons, the United States Department of State and the
Russian Federation are not necessary parties to the action pursuant to NYCPLR §
1001. However, they are permitted to be witnesses. Additionally, the forum-selection
clause within an agreement between the adoptive parents and the Cradle of Hope is
inapplicable.
The motions are denied in their entirety. Respondents Spence-Chapin and
Cradle of Hope are directed to file and serve answers to this proceeding by April 6, 2015.
This constitutes the decision and order of the court.
Dated: March 16, 2015
EDWARD W. McCARTY III
Judge of the
Surrogate's Court