Matter of Sade

[*1] Matter of Sade 2009 NY Slip Op 52437(U) [25 Misc 3d 1236(A)] Decided on December 1, 2009 Family Court, Kings County Weinstein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 1, 2009
Family Court, Kings County

In the Matter of the Adoption of Sade



A-18245/08



The petitioner was represented by Clinton Townsend, Esq. and the child was represented by Fredericka Bashir, Esq.

Stewart H. Weinstein, J.

The issue before the Court is whether an order of adoption may be issued nunc pro tunc.

In this private placement adoption request by a child's paternal aunt, Petitioner retained counsel on April 12, 2005. The petition was signed and verified on February 4, 2006, but not filed until September 19, 2008. By this time the child was fifteen. At the time of filing, the Adoption clerk requested that an updated petition be submitted. A new petition was sworn and verified on March 9, 2009 and filed with the Court on April 14, 2009. Counsel's Affidavit provides an explanation for the more than two year delay between the signing of the petition and the filing date in so far as it states, " Client came into my office and said she wanted to adopt her sister's child who was staying with her. Client paid a deposit to start, then stopped. Client recently resumed activity on the case and the case is presently before the Court, Kings County."

Upon an initial review by the Adoption Unit, counsel was notified by letter, dated September 30, 2008, of approximately 15 additional items that were required to be submitted. Additionally counsel was advised that the Department of Probation would be conducting the home study, as the social worker enlisted by Petitioner to submit a report to the Court is not registered on the Appellate Division's Resource directory, as required pursuant to Family Court Rule §205.54, DRL §116 and the Administrative Rule of the Kings County Supervising Judge. About five months later, the Adoption unit received a letter dated February 23, 2009 from [*2]counsel, with enclosed documents for submission and review. In response to those submissions the Adoption unit mailed counsel another courtesy letter, dated March 4, 2009 indicating that there were still approximately nine items that either were not yet submitted or needed updating and/or corrections. Upon receipt of the fingerprint inquiry the Adoption unit sent counsel a March 11, 2009 letter indicating that the response came back marked "poor quality" for one household member and enclosed another fingerprint card. The Adoption unit then received a March 23, 2009 correspondence from counsel with eight submissions attached. Of those submissions two were incomplete, as they were not notarized as required by the OCA promulgated forms and local Court rule.

The next activity on this matter was the Adoption Unit's receipt of a request from counsel, dated April 14, 2009, stating "it is essential for immigration purposes that Sade's adoption take place prior to her 16th birthday." Counsel then requested an adoption hearing date prior to May 4, 2009. As May 4th was a Monday this request in fact required the adoption be completed by Friday May 1, some 13 court days later. Immediately thereafter, on April 15th, the Adoption Unit mailed notice to counsel advising him of the remaining documents required to be submitted for review prior to finalization. Of the documents not yet submitted to the Court, most significant was the lack of proof of notice to, and/or the consent of, the biological father.

Petitioner had consented to this matter being heard by a Judicial Hearing Officer (JHO). Since a JHO was not available prior to counsel's abbreviated timetable request, the Adoption Unit asked the undersigned's Court Attorney to do a courtesy review of the matter for a determination of readiness. On or about April 27, 2009 this matter was reviewed and the Court Attorney confirmed with the Adoption Unit that this matter was not ready for finalization. Since there was no §111 or §111-a affidavit, or any comparable document filed , it is unclear as to what status, if any, the biological father held. This information was critical to determine what action would be required pursuant to the statute. At a minimum, assuming that the biological parents were not married, the father would be entitled to notice as his name appears on the child's birth certificate. On April 29, 2009 the Adoption Unit faxed a letter to counsel with a request for the remaining items required, as well as a note that either notice to, or the consent of, the father was required.

On April 30, 2009 the Adoption Unit received a faxed copy of an extrajudicial consent and waiver of notice signed by the biological father, whose whereabouts are alleged in the petition to be "unknown". He had executed those documents earlier the same day at the United States Embassy in the Republic of Trinidad and Tobago. In light of counsel's request to have this matter finalized by the next day this matter was referred to the Supervising Judge. After review, the Supervising Court Attorney , faxed counsel a letter explaining the impossibility of the matter proceeding to finalization the following day. The next day, May 1st, counsel submitted an order to show cause asking that the petition approving the adoption of Sade be dated nunc pro tunc to May 1, 2009. On May 18, 2009 counsel was granted argument on his order to show cause and this Court reserved decision. This Court also assigned an Attorney for the child, who submitted an affirmation in support of the order to show cause on July 31, 2009.

Nunc pro tunc orders are utilized to either correct irregularities and procedural errors contained within existing orders, or to enter an order that otherwise should have been entered based upon a ruling that in fact had already been made. A nunc pro tunc order may not be used [*3]to require something to be done that has not already been done, or record a fact as if it were true on a prior date. (See Mohrmann v. Kob, 291 NY 181, 51 NE2d 921, (1943), and 28 NY Jur. 2d Courts and Judges §197). The latter is what petitioner asks this Court to enter; an order based upon facts which did not exist on May 1, 2009.

In the Matter of Freud, 69 Misc 2d 906, 331 NYS2d 224, (Supreme Ct., Westchester Cty, 1972), the Court stated that the fundamental purpose of an adoption is to establish the legal status of parent and child. That status does not become final until the order of adoption is signed pursuant to Domestic Relations Law §114. The Court then discussed the statutory language of DRL § 114 which states, in part, "the child shall thenceforth be regarded and treated in all respects as the child of the parent." The Court found that the word "thenceforth" was prohibitive in that it means "from this time forward, that is, from the time of the making of the order." Thus, an order which relates back in time would be contrary to the express statutory provisions and therefore, void. The Court further relied on the Matter of MacEwan, ( 280 App.Div. 193, 112 NYS2d 644, 4th Dept., 1952) to reinforce the holding that a nunc pro tunc order cannot record a fact, as of a prior date, when that fact did not yet exist. The Court held that the signing of an adoption is not a "mere ministerial act", and that "an order approving an adoption does not simply formalize evidence or record a prior judicial determinationestablishing the substantive rights of the parties, but is itself the substantive judicial determination by which those rights are granted." Matter of Freud, supra , page 909.

In the instant matter Petitioner argues that all of the requested documentation had been submitted by May 1, 2009, and had the adoption hearing taken place, and had the adoption been approved, then the Court could have entered an order pursuant to Domestic Relations Law §114. Not only is this argument factually inaccurate, for reasons that will follow, it is speculative and could be applied to any case brought before any Court ; had the hearing taken place and had the evidence/proof been accepted then the Court could have entered an order. This is exactly the opposite of what a nunc pro tunc order is designed to remedy, an error in, or omission of, a ministerial act. Petitioner's reliance on the matter of Cornell v. Cornell, (7 NY2d 164, 196 NYS2d 98) and Johnson v. Johnson, (198 Misc 691, 98 NYS2d 336) is misplaced. In those matters hearings were held, and facts were entered on the record whereby orders could or should have been entered thereon. That is not the case before this Court.

This Petition, if approved, would have granted Sade, now 16 years old, with a mechanism to expeditiously change her immigration status to a naturalized citizen. Although she may still obtain such status in the future, she has lost an opportunity to do so expediently. However, as this Court can do no more than the law allows, Petitioner's application must be denied.

This case, from the outset, was one that required expeditious handling, something it did not receive. After filing, there was a five month delay in which the case languished in the Adoption Unit before counsel submitted further documentation, in February 2009, in furtherance of finalization. Although there was some progress achieved after the February 2009 submissions, by then only 66 days remained until Petitioner's requested deadline, one the Court was yet to learn about.[FN1] What was consistent throughout was the Adoption Unit's notification, each and [*4]every time activity took place on the file, that Counsel had yet to satisfy the notice and/or consent requirements concerning the biological father. This issue was not resolved until the deadline date of May 1st, when the last of the Adoption units requested documents were submitted. However, it did not follow that finalization was automatic upon this submission.

The issue of whether the biological father is a notice or consent father has been resolved, because ultimately Counsel obtained both his waiver of notice and an extrajudicial consent. It remains that the Court cannot accept Petitioner's statements and documentation without question or inquiry. Required documents and a completed file must be received in a manner which allows the Court an opportunity to review, reflect and question if necessary. Otherwise an adoption may be routinely approved by the Adoption Unit upon submission of required documents.

Furthermore, the Court was not satisfied that the matter was ready to proceed to finalization on May 1st. In this instance, based upon the information in the file and the age of the subject child, an Attorney for the Child was assigned, to assist the Court in determining the child's wishes and best interests. Furthermore, since a §111-a affidavit was not requested by the Adoption unit, (in light of two named biological parents), none was provided by Petitioner. The absence of the information that this document, or a similar affidavit would have provided, created a gap in the information provided to the Court. The Court therefore did not know the marital history or status of the biological mother. This question was raised by the Court because there were various surnames on the child's birth registry. This information was necessary to alert the Court to any other potential notice or consent persons who, without proper notice, could move to vacate a final adoption order granted in this matter. In fact the 111-a affidavit finally submitted at this Court's request, on October 7, 2009 revealed that the biological mother had, as suspected, been previously married. Although this child was conceived and born after the dissolution of this marriage, this underscores the importance of the Court receiving a full history of the biological mother either through a 111-a or equivalent affidavit. Notably, paragraphs 12, 13 and 16 of the petition, which require Petitioner to list any parties for which consent or notice is either required, and if not, why consent or notice is not necessary, had been left blank.

The exigency in this matter was not created by the Court and cannot alter the law or the manner in which this Court operates. For reasons, legitimate or otherwise, it took 2 ½ years for Petitioner's retained counsel to file the petition and another 5 months before he began to supplyfurther documentation that was required to bring this matter to Judicial review. Contrary to counsels claim, this Court finds that this matter was not ready for finalization on May 1st. Although Counsel may have submitted the statutorily required documents, it was yet unknown if upon judicial review any further information would be required, which in fact in turned out to be the case. The Supervising Judge took steps to try to accommodate Petitioner by attempting to find a Judge or JHO who might be able and willing to review the matter and finalize it immediately. It was impossible.[FN2] [*5]

Since the signing of an adoption order is not a mere ministerial act and cannot be subject to a nunc pro tunc order, the order to show cause must be denied.

Finally, the Court notes that the purpose of the requested nunc pro tunc order was to have an order dated before Sade's 16th birthday to help expedite her immigration status. Unfortunately, even had this Court had the lawful authority to enter such an order it would be of little help to the child as the USCIS Immigration authorities strictly construe the age requirements, and do not accept retroactive adoption decrees. (Matter of Cariaga, 15 I. & N. Dec. 716, 1976 WL 32364 B.I.A. 1976, and Immigration Law and the Family, Release No.7, 6/2009).

This constitutes the decision of this Court.

Notify Counsel and the parties.

So Ordered:____________________________

Stewart H. Weinstein, J.F.C.

Dated: Footnotes

Footnote 1:Counsel advised the Adoption Unit at filing that Petitioner wished to complete this matter prior to the child's 16th birthday for immigration reasons. As files are not forwarded to a judge for review prior to substantial submission of documents this Court learned of the requested completion date on April 14, 2009, 13 days prior to the deadline.

Footnote 2: The matters previously scheduled in the Kings Family Court include, but are not limited to, Child Abuse/Neglect cases wherein children may have been removed from their homes, Juvenile Delinquency matters where the juvenile may be in a locked facility awaiting trial, and Family Offense petitions where one party may have been excluded from their home.