Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 22, 2026

2024-11521, (Docket No. A-4-23)

Hector D. Lasalle, P.J.

Cheryl E. Chambers

Paul Wooten

Helen Voutsinas, JJ.

APPEAL by the petitioner Leigh A., in an adoption proceeding pursuant to Domestic Relations Law article 7, from an order of the Family Court (Frank A. Tantone, J.), dated November 1, 2024, and entered in Suffolk County. The order granted the motion of Alliance for Children, Inc., to dismiss the adoption petition on the ground of lack of jurisdiction.

Wooten, J.

[*1]

OPINION & ORDER

The primary issue presented by this appeal is whether a court reviewing an adoption proceeding has jurisdiction to entertain a hearing to determine the best interests of a child where an authorized agency with custody of the child has withdrawn or withheld its consent to the adoption petition. We are constrained by the statutory scheme for adoptions from an authorized agency to answer that question in the negative. However, the circumstances underlying this proceeding highlight the potential conflict between the governing statutory law and the paramount concerns of the best interests of the child and achieving permanency. We therefore take this occasion to ask the New York State Legislature to consider whether changes are needed to ensure the best interests of children placed in the custody of authorized agencies for the purpose of adoption.

I. Relevant Factual Background

Prior to the birth of the subject child, the petitioner Leigh A. (hereinafter the appellant), joined an adoption support group on Facebook, through which the appellant connected with the child's biological mother while the biological mother was pregnant with the child. The appellant and her husband, Giuseppe A. (hereinafter the proposed adoptive father and together with [*2]the appellant, the proposed adoptive parents), who wished to adopt a child, subsequently traveled to Massachusetts, where the child's biological parents resided, to meet them.

The biological parents selected the proposed adoptive parents to adopt their unborn child, but could not proceed with a private adoption under Massachusetts law without the involvement of an authorized adoption agency. Therefore, the biological parents selected Alliance for Children, Inc. (hereinafter the agency), an adoption agency licensed to operate in New York and Massachusetts, to conduct the adoption. The agency then screened and approved the proposed adoptive parents.

On November 26, 2022, the child was born. On November 29, 2022, the biological parents each executed an extrajudicial surrender of guardianship and custody of the child to the agency pursuant to Social Services Law § 384 for the purpose of adoption by the proposed adoptive parents (hereinafter the surrenders). The surrenders stated, among other things, that the biological parents gave the agency "full power in its discretion to place [the] child for adoption and to consent to such adoption without further notice to [the biological parents], in all respects and in the same manner as if [they] personally gave such consent at the time of adoption." The surrenders also provided that the biological parents had chosen the proposed adoptive parents via a selection process, and that "if for some reason this family becomes unable to adopt [the] child, this surrender will be of no force and effect."

On December 1, 2022, the child, who was less than one week old, was placed in the care of the proposed adoptive parents. In January 2023, the proposed adoptive parents jointly filed the subject petition to adopt the child (hereinafter the adoption petition).

In May 2023, before the adoption petition was determined, the proposed adoptive father filed an action for a divorce against the appellant based on her alleged infidelity, which resulted in a decree of separation. In September 2023, the biological parents notified the agency that they no longer wished to have the proposed adoptive parents adopt the child in light of the separation of the proposed adoptive parents.

In October 2023, the proposed adoptive father filed a petition to review a failure of a material condition of the biological parents' surrenders of the child, alleging that under the terms of the surrenders, the joint adoption of the child by the proposed adoptive parents was a material condition which could no longer occur. In that petition, the proposed adoptive father also requested a hearing to determine the best interests of the child. The appellant joined in that petition to the extent of requesting a hearing to determine the best interests of the child.

In an order dated November 13, 2023, the Family Court directed a hearing to determine the best interests of the child. The court determined, in essence, that the biological parents' lack of consent to the adoption did not preclude a best interests hearing in light of the biological parents' surrender of custody of the child to the agency.

On February 5, 2024, before a best interests hearing was conducted, the proposed adoptive father withdrew the adoption petition insofar as asserted by him on the ground that he was no longer seeking to jointly adopt the child with the appellant. The proposed adoptive father's withdrawal of the joint adoption petition insofar as asserted by him was precipitated by the biological parents' decision to support adoption of the child by the proposed adoptive father alone.

On February 6, 2024, the agency withdrew its consent to the joint adoption of the child by the proposed adoptive parents on the ground that the proposed adoptive father "is no longer petitioning the Court to adopt jointly with [the appellant]." The agency then moved to dismiss the adoption petition on the ground that the Family Court lacked jurisdiction to entertain the adoption petition due to the agency's withdrawal of its consent to the joint adoption. In support of the motion, the agency argued that dismissal of the adoption petition was mandated, without a best interests hearing, since the agency had lawful custody of the child and, therefore, its consent to the adoption was required pursuant to Domestic Relations Law § 111.

In an order dated November 1, 2024 (hereinafter the order appealed from), the Family Court granted the agency's motion. The court determined that it was required to dismiss the adoption petition because "the entity with legal custody of the child—[the agency]—no longer consents to the joint adoption." This appeal ensued.

By order dated January 8, 2025, this Court, inter alia, granted that branch of the appellant's motion which was to stay enforcement of the order appealed from and directed that the proposed adoptive parents "continue the 50/50 parenting schedule" set forth by the agency, pending determination of this appeal.

II. Private-Placement Adoptions Versus Agency Adoptions

In New York, an adoption may be accomplished by "private-placement adoption," which involves an adoption other than through an authorized agency (Matter of Doe, 14 NY3d 100, 109; see Matter of Yary [Carol W.], 100 AD3d 200, 206; Matter of Caroline, 218 AD2d 388, 390).

"The concept of private placement adoption focuses on situations where biological parents, or other individuals who are in lawful custody of the child, agree to turn over custody of the child to intended adoptive parents; in contrast, the framework for authorized agency adoptions applies where it is an agency, rather than a parent, that has been granted custody of the child and the right and obligation to decide whether to consent to a proposed adoption"

(Matter of Yary [Carol W.], 100 AD3d at 206).

Domestic Relations Law § 115-b, which governs extrajudicial consent to private-placement adoptions, provides, among other things, that "a birth parent may revoke an extrajudicial consent to adoption within 45 days of its execution," and after that time, the surrender becomes irrevocable (Matter of Summer A., 49 AD3d 722, 725; see Domestic Relations Law § 115-b[3]). The statute "'was enacted in 1972 to reform statutory and decisional law, perceived as unfair to adoptive parents and unsettling to adoptions generally, which permitted biological parents to revoke consent at any time before the final order of adoption and recognized their primacy of status'" (Matter of Summer A., 49 AD3d at 725, quoting Matter of Sarah K., 66 NY2d 223, 233). The statute also provides that "[i]f the prospective adoptive parents oppose revocation, the court must conduct a hearing to determine whether the best interests of the child will be served by returning custody of the child to the birth parents, by adoption of the child by the prospective adoptive parents, or by an alternative disposition" (id.; see Domestic Relations Law § 115-b[3][b]; [6][d][ii]).

"The statute governing revocations of extra-judicial surrenders in agency adoptions, by contrast, does not provide for a best interests hearing" (Matter of Tony S.H. [Katrina F.], 199 AD3d 1347, 1350; see Social Services Law § 383-c[6]). Rather, "the plain language of Social Services Law § 383-c(6)(a) mandates that a timely revocation shall render the extra-judicial surrender a nullity," without a best interests hearing (Matter of Tony S.H. [Katrina F.], 199 AD3d at 1349 [emphasis omitted]).

Thus, at least in the context of a timely revocation of an extrajudicial surrender of custody of the child, the Legislature has recognized a distinction between private-placement adoptions and agency adoptions as to whether a best interests hearing is available.

III. The Statutory Requirement of Agency Consent

It is well-established that "'[a]doption in this State is solely the creature of . . . statute, [and] the adoption statute must be strictly construed'" (Matter of Jordan T. [Claudia B.T.], 97 AD3d 755, 755 [internal quotation marks omitted], quoting Matter of Jacob, 86 NY2d 651, 657).

Pursuant to Domestic Relations Law § 112(2), where the adoption is from an authorized agency, the adoptive parent or parents of a child must present to the court in an adoption proceeding, inter alia, the consents required by Domestic Relations Law § 111 (see id. § 112[2][c]). Domestic Relations Law § 111 provides that "consent to adoption shall be required," among other things, "[o]f any . . . authorized agency having lawful custody or guardianship of the adoptive child" (id. § 111[1][d]). Thus, as mandated by statute, where custody of the child has been transferred to an agency for the purpose of adoption, the consent of the agency to adoption by the proposed adoptive parents is an essential condition precedent to the adoption proceeding.

Moreover, since the consents required by Domestic Relations Law § 111 must be presented to the court in an adoption proceeding (see id. § 112[2][c]), and "'[t]he court lacks jurisdiction to act upon incomplete adoption applications'" (Matter of Savon, 26 AD3d 821, 822, quoting Matter of Ralph, 274 AD2d 965, 967), courts have consistently held that "where an agency has been awarded care and custody of a child, . . . the agency's refusal to consent to an adoption petition leaves the court without the authority to entertain the petition" (Matter of Yary [Carol W.], 100 AD3d at 206; see Matter of Jordan T. [Claudia B.T.], 97 AD3d at 756; Matter of Savon, 26 AD3d at 822). In such instance, the court lacks the authority even to conduct a hearing to determine the best interests of the child, as doing so would mean entertaining an incomplete adoption application over which the court lacks jurisdiction (see Matter of Ralph, 274 AD2d at 967).

Further, courts have determined that the only potential remedy available to a proposed [*3]adoptive parent to challenge an agency's refusal to consent to the adoption is to request a fair hearing pursuant to Social Services Law § 372-e(4), and to thereafter challenge an adverse ruling resulting therefrom by commencing a proceeding pursuant to CPLR article 78 (see Matter of Yary [Carol W.], 100 AD3d at 208; Matter of Savon, 26 AD3d at 822). In so holding, courts have recognized that a proposed adoptive parent "may not preclude [the agency] 'from exercising its professional judgment whether to permit [the proposed adoptive parent] to apply for the adoption of a child surrendered to its care and custody' by commencing an adoption proceeding without [the agency's] consent" (Matter of Savon, 26 AD3d at 822, quoting Matter of Alexandria Mary, 227 AD2d 44, 47).

IV. Application of the Statutory Scheme to this Case

Contrary to the appellant's contention, the proposed adoption was conducted as an authorized agency adoption, rather than as a private-placement adoption. As discussed heretofore, whereas the biological parents in a private-placement adoption transfer custody of the child directly to the adoptive parents, the biological parents surrender custody of the child to an agency in an authorized agency adoption (see Matter of Yary [Carol W.], 100 AD3d at 206). Here, the biological parents executed extrajudicial surrenders of custody of the child to the agency and, therefore, the agency's consent to the adoption was required by statute (see Domestic Relations Law § 111[1][d]). The appellant's assertion that the agency's involvement in the process was mandated under Massachusetts law rather than a result of a voluntary choice made by the biological parents, did not, as she contends, enable the Family Court to disregard the biological parents' surrenders of custody to the agency that necessitated the agency's consent to the adoption.

To the extent the appellant contends that there was no failure of a material condition of the surrenders that entitled the biological parents to revoke the surrenders, the appellant's contention is of no moment, as it was the agency's withdrawal of consent to the adoption that served as the basis for dismissal of the adoption petition.

The appellant also contends that the agency failed to timely file a petition pursuant to Social Services Law § 383-c(6)(c) and Family Court Act § 1055-a(a) to review the failure of a material condition of the surrenders. However, there is no statutory provision conditioning the discretion of an authorized agency to withhold its consent to the adoption of a child in its custody on the agency's filing of a petition to review the failure of a material condition of the child's surrender, and we have no power to read into the governing statutes such a provision that the Legislature did not see fit to enact (see Matter of Raymond E. [South Beach Psychiatric Ctr.], 242 AD3d 68, 73; American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 7). Rather, the clear language of Domestic Relations Law § 113(1), which provides that "[a]n authorized agency may consent to the adoption of a minor whose custody and guardianship has been transferred to such agency," reflects that it is within the discretion of the authorized agency whether to consent, or to withdraw its consent, to a proposed adoption, without any conditions precedent to the exercise of such discretion (emphasis added).

Furthermore, the appellant contends that the Family Court "abused its discretion" by granting the agency's motion to dismiss the adoption petition "without holding a best interest[s] hearing." However, in the absence of consent of the agency—which had custody of the child—to the adoption, the court was without discretion to entertain the petition or to conduct a best interests hearing (see Matter of Ralph, 274 AD2d at 967).

Accordingly, we are constrained by statute to determine that the Family Court properly granted the agency's motion to dismiss the adoption petition on the ground of lack of jurisdiction.

V. The Problematic Nature of the Statutory Scheme

We note that the statutory scheme, in essence, places an authorized agency with custody of a child in the role typically performed by the Family Court in proceedings involving the custody of a child as the ultimate arbiter as to the best interests of the child. Although courts have noted that "implicit in such power must be a recognition that such consent cannot be unreasonably withheld" (People ex rel. Williams v Windham Child Care, 55 AD2d 146, 148; see Matter of Yary [Carol W.], 100 AD3d at 208), the court presiding over an adoption proceeding has no authority—in the absence of consent of an agency with custody of a child—to serve as a check on the power of the agency in the event the agency's consent to adoption has been unreasonably withheld. Rather, as discussed heretofore, the sole potential means of judicial review would be in the context of a proceeding pursuant to CPLR article 78 to review an adverse ruling rendered after an administrative fair hearing (see Matter of Yary [Carol W.], 100 AD3d at 208).

We take this opportunity to caution that the virtually unfettered power afforded to an authorized agency with custody of a child has the potential for problematic consequences, as evidenced by the circumstances of this proceeding.

First, the effect of the agency's withdrawal of its consent to the adoption in this proceeding would be the removal of the child from the care of the only parents she has ever known, after more than three years, since she was first placed in the care of the proposed adoptive parents at less than one week old. Notably, the agency has not articulated any concerns regarding the quality of the care provided by the proposed adoptive parents and the limited record in this case does not reveal the existence of any such concerns. Rather, the agency has withdrawn its consent to the adoption on the sole basis that the proposed adoptive father "is no longer petitioning the Court to adopt jointly with [the appellant]," apparently operating under the view that it would be unfeasible for the proposed adoptive parents to devise a long-term joint custody arrangement similar to that which is already in effect. Since the agency's withdrawal of its consent to the adoption precludes the Family Court from conducting a hearing as to the best interests of the child (see Matter of Ralph, 274 AD2d at 967), the child will be subjected to significant instability and removed from the care of the only individuals she has ever known as parents, without the aid of a hearing to evaluate whether the 50/50 parenting schedule currently in effect is in the best interests of the child or whether the child's removal from the proposed adoptive parents' care will be harmful to the child.

Further, while the appellant has the option of requesting a fair hearing pursuant to Social Services Law § 372-e(4), and to thereafter challenge an adverse ruling resulting therefrom by commencing a proceeding pursuant to CPLR article 78 (see Matter of Yary [Carol W.], 100 AD3d at 208), the child would be left in a state of limbo for a lengthy period of time while that process is conducted. Moreover, in such a proceeding pursuant to CPLR article 78, the court would not be permitted to conduct a de novo judicial review of the best interests of the child, but rather would employ "the usual article 78 standards of review" (Matter of O'Rourke v Kirby, 54 NY2d 8, 13), requiring the court to afford great deference to the agency's ruling and to decline to "weigh the desirability of any action or choose among alternatives" (Matter of Save America's Clocks, Inc. v City of New York, 33 NY3d 198, 207 [internal quotation marks omitted]). The court presiding over the CPLR article 78 proceeding would have no power to interfere with the agency's ruling "'unless there is no rational basis for the exercise of discretion' or the 'action is without sound basis in reason and . . . taken without regard to the facts'" (id., quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231).

In contrast, were the Family Court presiding over the adoption proceeding empowered with jurisdiction to conduct a best interests hearing, a determination could be made in an expeditious manner as to whether it would be in the best interests of the child to finalize the adoption or remove the child from the proposed adoptive parents' care, affording the child much-needed permanency at a young age when stability is most vital.

Thus, we propose that the Legislature consider making changes to the governing statutes to afford jurisdiction to courts to conduct a best interests hearing where, as here, an agency has withdrawn its consent to the adoption.

Courts have noted that permitting the Family Court to conduct a best interests hearing despite an agency's lack of consent to the adoption would improperly "preclude[ ] [the agency] from exercising its professional judgment whether to permit [proposed adoptive parents] to apply for the adoption of a child surrendered to its care and custody" (Matter of Alexandria Mary, 227 AD2d at 47). However, we recognize a distinction between an agency's refusal to consent to a proposed adoption in the first instance and circumstances such as those in this proceeding in which an agency initially consents to an adoption, but subsequently withdraws that consent due to changed circumstances or the discovery of new information. To permit an agency to withdraw its consent to an adoption at any time before the adoption is finalized, without the possibility of a best interests hearing, creates the potential for proposed adoptive parents who have been evaluated and deemed suitable by the agency to be thereafter rejected on arbitrary grounds, such as the discovery of personal circumstances of the proposed adoptive parent which have no bearing on the proposed adoptive parent's fitness as a parent. Moreover, an agency's withdrawal of its consent to an adoption, without a best interests hearing, is particularly troubling where, as here, the child has already been in the care of proposed adoptive parents for a lengthy period of time and now faces removal from those parents—in this case, more than three years after the child was placed in the care [*4]of the proposed adoptive parents.

To ensure that the agency's professional judgment is given effect, the governing statutes could be amended to create a rebuttable presumption against an adoption in circumstances in which the agency has initially given, but subsequently withdrawn its consent, which a proposed adoptive parent would have the burden of disproving at a hearing. The Family Court could then be permitted to determine whether the proposed adoptive parent has satisfied their burden of demonstrating that despite the circumstances which led to the agency's withdrawal of consent, the adoption would nevertheless be in the best interests of the child.

In summary, we emphasize that the best interests of the child are of paramount importance and that the Family Court should not be placed in the role of having to completely disregard the child's best interests due to uncritical deference to a potentially arbitrary assessment made by an authorized agency.

VI. Conclusion

Under constraint of statutory law, we determine that the Family Court properly granted the agency's motion to dismiss the adoption petition for lack of jurisdiction.

Accordingly, the order appealed from is affirmed.

LASALLE, P.J., CHAMBERS and VOUTSINAS, JJ., concur.

ORDERED that the order is affirmed, without costs or disbursements

ENTER:

Darrell M. Joseph

Clerk of the Court