                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 10, 2014                     516265
__________________________________

In the Matter of BENTLEY XX.,
   an Infant.

ST. LAWRENCE COUNTY DEPARTMENT
   OF SOCIAL SERVICES,
                    Respondent;             OPINION AND ORDER

ERIC XX.,
                    Appellant.

(And Another Related Proceeding.)
__________________________________


Calendar Date:   June 2, 2014

Before:   Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.

                             __________


     Alexander Lesyk, Norwood, for appellant.

      David Willer, St. Lawrence County Department of Social
Services, Canton, for respondent.

     Cheryl Maxwell, Plattsburgh, attorney for the child.

                             __________


Devine, J.

      Appeal from an order of the Family Court of St. Lawrence
County (Morris, J.), entered December 14, 2012, which granted
petitioner's application, in a proceeding pursuant to Social
Services Law § 383-c, to modify the terms of a written judicial
instrument of surrender of parental rights.

      Respondent is the biological father of a son, Bentley XX.
(born in 2010), who has been in the care and custody of
                              -2-                516265

petitioner since birth. In February 2012, respondent executed a
conditional judicial surrender of the guardianship and custody of
Bentley (see Social Services Law § 383-c). The condition
relevant to the present dispute states that "the surrender of
guardianship and custody of Bentley [XX.] is subject to the . . .
condition [that he] will be adopted by Tanya [YY.] and Datus
[YY.]." Following the execution of the judicial surrender, and
before the adoption was finalized, Datus and Tanya separated and
Tanya thereafter ceased pursuing Bentley's adoption while Datus,
Bentley's maternal grandfather, remained willing to adopt.

      In June 2012, petitioner notified respondent, Family Court
and the attorney for the child, among others, of this development
(see Social Services Law § 383-c [6] [c]) and filed a petition
seeking a modification of the judicial instrument of surrender to
permit the adoption of Bentley by Datus alone. At the initial
appearance on the petition, respondent declined to consent to the
modification and Family Court scheduled a hearing. Following the
hearing, at which respondent requested that the judicial
instrument of surrender be revoked, Family Court, applying a best
interests of the child standard, denied respondent's request,
granted the petition and modified respondent's judicial
instrument of surrender by deleting the condition requiring Tanya
to adopt Bentley. Respondent appeals.

      On this appeal, we are once again tasked with construing
the statutory provisions governing the conditional judicial
surrender of guardianship and custody of a child (see Matter of
Christopher F., 260 AD2d 97, 99-101 [1999]). The statutory
scheme concerning a conditional judicial surrender has a long
history of being opaque and incomplete (see e.g. id. at 99-101)
and, since we last had occasion to interpret them, the provisions
at issue here have undergone substantial amendment (see Social
Services Law § 383-c, as amended by L 2002, ch 76, § 7, and L
2005, ch 3, part A, § 46; Family Ct Act § 1055-a, as added by L
2005, ch 3, part A, § 19).

      Social Services Law § 383-c provides for, among other
things, a parent's conditional judicial surrender of the
guardianship and custody of his or her child, including a
surrender conditioned upon the adoption by a particular person or
                              -3-                516265

persons (see Social Services Law § 383-c [1], [2], [3]). Prior
to 2002, Social Services Law § 383-c (6) (c) provided that, with
regard to a conditional judicial surrender, "[i]n any case in
which the authorized agency determines that the persons specified
in the surrender will not adopt the child, the agency promptly
shall notify the parent thereof, unless such notice is expressly
waived by a statement written by the parent and appended to or
included in such instrument" (Social Services Law § 383-c [6]
[former (c)], as added by L 1990, ch 479, § 2). As we previously
observed when we had occasion to interpret and apply the
provisions of the statute, the scheme set forth in the statute
was incomplete (see Matter of Christopher F., 260 AD2d at 99-
101). Subsequently, the Legislature, mindful that there were
"critical gaps" in the statutory scheme because "the statute
[was] silent with respect to the procedure to be followed should
a substantial failure of a material condition occur prior to the
adoption," amended Social Services Law § 383-c (6) (c) in an
attempt "to fill this procedural void" (Sponsor's Mem, Bill
Jacket, L 2002, ch 76 at 3). The amended statute broadened the
circumstances in which notice was required to be given by the
authorized agency to include not only when "the persons specified
in the surrender will not adopt the child" but also "any other
case of a substantial failure of a material condition prior to
the finalization of the adoption of the child" (Social Services
Law § 383-c [6] [c], as amended by L 2002, ch 76, § 7). The
amendments also added new requirements that the court and the
attorney for the child be notified by the agency and that the
agency "shall file a petition on notice to the parent and
[attorney for the child] . . . within [30] days, except for good
cause shown, in order for the court to review such failure and,
where necessary, to hold a hearing" (Social Services Law § 383-c
[6] [c], as amended by L 2002, ch 76, § 7). The amendment
further provided that, "in the absence of such a filing, the
parent and/or [attorney] for the child may file such a petition"
(Social Services Law § 383-c [6] [c], as amended by L 2002, ch
76, § 7).1


    1
        The 2002 amendment permitted the filing of the petition
"at any time prior to the adoption" (Social Services Law § 383-c
[6] [former (c)], as amended by L 2002, ch 76, § 7), but the
                              -4-                516265

      In the case now before us, we find that Family Court
misconstrued the amended provisions and erred in granting the
petition. Pursuant to the language of the statute, the petition
contemplated by Social Services Law § 383-c (6) (c) and Family Ct
Act § 1055-a (a) is solely for the purpose of bringing the matter
before the court "to review such failure" – namely, to permit the
court to determine whether there has, in fact, been a substantial
failure of a material condition; petitioner was not entitled to
seek a modification of the surrender instrument over respondent's
objections, and Family Court erred in granting petitioner such
relief (see Matter of T. R. v Chemung County Dept. of Soc.
Servs., 11 Misc 3d 564, 568-570 [Fam Ct, Chemung County 2005];
cf. Matter of Mia T., 88 AD3d 730, 731-732 [2011]). To permit
such a result to flow from a statutory requirement that, upon the
failure of a condition of a surrender instrument, the authorized
agency file a petition in order to return the matter to Family
Court would contravene the statutory scheme whereby the initial
surrender was permitted only "upon such terms and subject to such
conditions as may be agreed upon by the parties thereto" (Social
Services Law § 383-c [2] [a]; see Social Services Law § 383-c [5]
[b] [iii], [iv]; [c]; Matter of Christopher F., 260 AD2d at 99-
100).2 Furthermore, such an outcome would offend the deep-seated
principle that a parent has a "fundamental liberty interest in
the care, custody and management" of his or her child which
cannot be lightly overcome (Santosky v Kramer, 455 US 745, 753
[1982]).




statute was further amended in 2005 to, among other things, limit
the time to file a petition to "up to [60] days after the
notification of the failure" (Social Services Law § 383-c [6]
[c], as amended by L 2005, ch 3, part A, § 46).
    2
        In fact, while the statute is clear that "the parent
cannot be forced to sign the surrender paper" (Social Services
Law § 383-c [5] [iv]), petitioner and Family Court here have
forced a modification of that paper on respondent (see generally
Social Services Law § 383-c [6] [d]). In our view, there is no
relevant distinction between these two situations.
                              -5-                516265

      Next, we must consider respondent's request – made before
Family Court and raised again before us on appeal – that the
judicial instrument of surrender be revoked. As discussed above,
the amendments subsequent to our decision in Matter of
Christopher F. (supra) created a new procedure whereby Family
Court could determine whether there has been a substantial
failure of a material condition of a conditional judicial
instrument of surrender. However, as was apparent at the time of
their passage, the 2002 amendments did not serve to fill all the
gaps in the statutory scheme (see Letter from Office of Children
and Family Servs, May 20, 2002 at 2, Bill Jacket, L 2002, ch 76,
at 11 ["This legislation represents a partial solution to the
difficulties that currently arise where parents surrender a child
subject to a condition that subsequently fails."]; Budget Report
on Bills, Bill Jacket, L 2002, ch 76, at 7 ["(T)his bill provides
only a partial solution to the problems that occur when parents
surrender children under stipulations that are not fulfilled."]).
Notably, although, as discussed above, the 2002 amendments to
Social Services Law § 383-c (6) (c) created a procedure by which
to determine whether there has been a substantial failure of a
material condition contained within a judicial instrument of
surrender, the statutes that govern the circumstances here do not
indicate what, if anything, a biological parent may do when faced
with such a failure (see Social Services Law § 383-c [6] [c];
Family Ct Act § 1055-a [a]).

      In Matter of Christopher F. (supra), we were presented with
a biological parent's application to revoke a judicial instrument
of surrender. We concluded that, although no procedures beyond
notification of the parent were set forth in the statute at that
time (see Social Services Law § 383-c [6] [former (c)], as added
by L 1990, ch 479, § 2), "based upon our common-sense
interpretation of the applicable statutory framework," the
failure of the provision of the surrender instrument conditioning
the biological parent's surrender on adoption of the child by the
person specified in the surrender "permitted [the biological
parent] to revoke her consent to the adoption" (Matter of
Christopher F., 260 AD2d at 98-99). Accordingly, we granted the
parent's application for revocation of the judicial surrender.
"'The Legislature is . . . presumed to be aware of the decisional
and statute law in existence at the time of an enactment'"
                                -6-                516265

(Jensen v General Elec. Co., 82 NY2d 77, 86 [1993], quoting
Arbegast v Board of Educ., 65 NY2d 161, 169 [1985]). Since the
subsequent statutory amendments did nothing to abrogate or
replace the relevant portions of our holding in Matter of
Christopher F. (260 AD2d at 99-101), we conclude that, when there
has been a substantial failure of a material condition of a
judicial instrument of surrender, the procedure we endorsed in
Matter of Christopher F. (supra) remains the appropriate
procedure. In such a circumstance, the surrendering parent may
bring an application before the court – either by petition or by
motion – for revocation of the instrument (see id. at 101).

      Turning to the case at hand, we first conclude that, as the
statute makes clear, where, as here, "the persons specified in
the surrender will not adopt the child," there has been a
substantial failure of a material condition (Social Services Law
§ 383-c [6] [c]).3 Consequently, once "the biological parent's
right to revoke a surrender upon the failure of a condition
precedent" was invoked, respondent's oral motion before Family
Court should have been granted (Matter of Christopher F., 260
AD2d at 101). Finally, we note that the revocation of the
judicial surrender instrument "merely place[s] the involved
parties in their original positions, with no apparent prejudice
to any of them" (id. at 100), and "[petitioner's] right to pursue
a proceeding based upon [respondent's] abandonment, permanent
neglect, mental illness or mental retardation, should it be so
advised, is unimpaired by the revocation of the surrender" (id.
at 100-101).

        Stein, J.P., McCarthy, Garry and Lynch, JJ., concur.



    3
        The statute states that "[i]n any case in which the
authorized agency determines that the persons specified in the
surrender will not adopt the child or in any other case of a
substantial failure of a material condition" its notification and
petition provisions are invoked (Social Services Law § 383-c [6]
[c] [emphasis added]). Thus, if the person(s) specified in the
instrument will not adopt the child, there is a per se
substantial failure of a material condition.
                              -7-                  516265

      ORDERED that the order is reversed, on the law, without
costs, petition dismissed and respondent's application for
revocation of the judicial instrument of surrender granted.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
