               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

84
CAF 11-00032
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.


IN THE MATTER OF THE ADOPTION OF COLLIN.
------------------------------------------------
ALICIA P., PETITIONER-APPELLANT;                          MEMORANDUM AND ORDER

ROBIN C. AND JOSEPH C., RESPONDENTS-RESPONDENTS.


ROBERT J. GALLAMORE, OSWEGO, FOR PETITIONER-APPELLANT.

PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENTS-RESPONDENTS.

KRYSTAL M. HARRINGTON, ATTORNEY FOR THE CHILD, WATERTOWN, FOR COLLIN.


     Appeal from an order of the Family Court, Jefferson County (Peter
A. Schwerzmann, A.J.), entered December 16, 2010 in a proceeding
pursuant to Domestic Relations Law article 7. The order determined
that it was in the subject child’s best interests to reside with
respondents and that petitioner’s revocation of extrajudicial consent
to adoption would not be given effect.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this adoption proceeding pursuant to Domestic
Relations Law article 7, petitioner appeals from an order determining
that the adoption by respondents is in the best interests of the
subject child. On the day following the child’s birth, petitioner
signed an extrajudicial consent to allow respondents to adopt the
child. Less than 24 hours after signing the consent, but after
respondents had taken the child home, petitioner executed a revocation
of extrajudicial consent. Respondents filed a timely notice of
opposition to the revocation. After a best interests hearing, Family
Court determined that respondents were “better able to provide
parental guidance” and provide for the child’s emotional and
intellectual development and that, although petitioner had the
potential to become a good parent, respondents had “proven themselves
to be exceptional parents.” Petitioner contends that the court should
not have conducted a best interests hearing inasmuch as she had
revoked consent and that the court did not properly apply the best
interests standard in making its determination after the hearing. We
reject those contentions.

     Pursuant to Domestic Relations Law § 115-b (6) (d) (i), in the
event that the adoptive parents oppose the biological parent’s
revocation of consent, the court must, “if necessary, hear and
determine what disposition should be made with respect to the custody
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                                                         CAF 11-00032

of the child.” The biological parent “shall have no right to the
custody of the child superior to that of the adoptive parents,
notwithstanding that the [biological] parent . . . [is] fit, competent
and able to duly maintain, support and educate the child” (§ 115-b [6]
[d] [v]). Custody “shall be awarded solely on the basis of the best
interests of the child, and there shall be no presumption that such
interest will be promoted by any particular custodial disposition”
(id.).

     “[T]here [must] be some overt manifestation [by the biological
parent] to a third person for an extrajudicial consent to be
operative” (Matter of Samuel, 78 NY2d 1047, 1048). Here, petitioner
signed the consent one day after the child was born, and respondents
took physical custody of the child the next day. Although petitioner
revoked her consent within 24 hours of its execution, we conclude that
she “overtly manifested her intent that the consent become operative
by[, inter alia,] permitting [respondents] to take physical custody of
the child the day after he was born” (Matter of Jarrett, 224 AD2d
1029, 1031, lv dismissed 88 NY2d 960; cf. Samuel, 78 NY2d at 1048-
1049). Inasmuch as respondents thereafter opposed the revocation of
consent, the court properly conducted a best interests hearing
pursuant to Domestic Relations Law § 115-b (6) (d).

     We reject petitioner’s further contention that the court erred in
determining that it was in the child’s best interests to be adopted by
respondents. That determination “is entitled to great deference and
will not be disturbed where, as here, it is based on careful weighing
of the appropriate factors . . ., including the court’s firsthand
assessment of the character and credibility of the parties and their
witnesses” (Matter of Pinkerton v Pensyl, 305 AD2d 1113, 1114; see
also Matter of Michael G. v Letitia M.B., 45 AD3d 1405, lv denied 10
NY3d 715).




Entered:   February 17, 2012                    Frances E. Cafarell
                                                Clerk of the Court
