In re MacRae

The order of the surrogate denying the appellant’s motion to set aside the second adoption of Madeleine Hope MacBae was, in my judgment, rightly affirmed. In this state the authority for the adoption of children is wholly" dependent upon the statutes. (Matter of Thorne, 155 N. Y. 140 .)

A state may authorize its courts in the exercise of the power and duty of parens patriae to conduct proceedings for the adoption of minor children without notice by publication or otherwise to the child, its parents, relatives or next of kin.

I admit that if the consent of the natural parent of Madeleine is required by statute before a second adoption can be lawfully consummated that such consent goes to the very foundation of the jurisdiction of the court in allowing and confirming the adoption. Such consent, however, in my judgment, is not required by the statute.

Section 60 of the Domestic Delations Law provides:

“ Adoption is the legal act whereby an adult takes a minor into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor. * * * ”

Section 61 provides:

“ Consent to adoption is necessary as follows:

“ 1. Of the minor if over twelve years of age;

66 2. Of the foster parent’s husband or wife, unless lawfully separated, or unless they jointly adopt such minor;

“ 3. Of the parents or surviving parent of a legitimate child * * * but the consent of a parent who has aban-

doned the child, or is deprived of civil rights, or divorced because of his or her adultery or cruelty, or adjudged to be insane, or" to be an habitual drunkard, or judicially deprived of the custody of the child on account of cruelty or neglect, is unnecessary.

“ 4. Of a person of full age having lawful custody of the child, if any such person can be found, where the child has no father or mother living, or no father or mother whose consent is necessary under the last subdivision. * * *”

Section 62 provides:

“1. The foster parents or parent, the minor and all the persons whose consent is necessary under the last section, must appear before the county judge or the surrogate of the county where the foster parent or parents reside, and be examined by such judge or surrogate, except as provided by the next subdivision.

“ 2. They must present to such judge or surrogate an instru

Section 63 provides:

“ If satisfied that the moral and temporal interests of the child will be promoted thereby, the judge or surrogate must make an order allowing and confirming such adoption, reciting the reasons therefor, and directing that the minor shall thenceforth be regarded and treated in all respects as the child of the foster parent or parents. * * * ”

Section 64 provides:

“ Thereafter the parents of the minor are relieved from all parental duties toward, and of all responsibility for, and have no rights over such child, or to his property by descent or succession. * * * The child takes the name of the foster parent. His rights of inheritance and succession from his natural parents remain unaffected by such adoption. The foster parent or parents and the minor sustain toward each other the legal relation of parent and child and have all the rights, and are subject to all the duties of that relation, including the right of inheritance from each other, * * * and such right of inheritance extends to the heirs and next of kin of the minor, and such heirs and next of kin shall be the same as if he were the legitimate child of the person, adopting. * * * ”

Section 66 provides:

“ A minor may be deprived of the rights of a voluntary adoption by the following proceedings only :

“ The foster parent, the minor and the persons whose consent would be necessary to an original adoption, must appear before the county judge or surrogate of the county where the

The general rights of adopted children have frequently been considered by this court. In Matter of Cook ( 187 N. Y. 253 ) the court say: “The legislature has ordained that there shall be no difference in the right to inherit between a child by adoption and his heirs at law and next of kin and a child by nature and 1ns heirs and next .of kin and the courts as in duty bound have obeyed the command * * *. The natural relation and the statutory relation are made one and the same as to the devolution of property * * *. In the eye of the law, therefore, adopted children are lineal descendants of their foster parent.” (See Gilliam v. Guaranty Trust Co., 186 N. Y. 127 .)

The adoption divests the natural parents of the relation which they had theretofore sustained toward the infant and such change of relation is in no way affected by the death of the foster parent or parents.

Madeleine continued after the death of her foster parents as much their child in law as if she had been born to them. (Dodin v. Dodin, 16 App. Div. 42 .) By the first adoption the petitioner was by the express terms of tire statute relieved

The possibility of a reassumed paren tal relation by the natu- • ral parents is wholly dependent upon a new proceeding before the judge or surrogate..

In determining the meaning of section 61 of the Domestic Delations Law the general purpose, intent and scheme of the statute must be taken into account and the last clause of section 66 of the Domestic Delations Law, which I repeat, as follows, “ Such child, however, may be adopted directly from such foster parents by another person in the same manner as from parents, and as if such foster parents were the parents of such child,” is very significant as showing by the express language of the statute that it is not necessary.that the natural parents consent to a second adoption. A second adoption of Madeleine could have been had and the same could have been allowed and confirmed by the judge or surrogate in the lifetime of her foster parents or the survivor of them without the consent of the petitioner. In such case the foster parents or the survivor of them would have been treated as the parent or surviving parent of whom consent is necessary as provided in said section 61 of the Domestic Delations Law.

If, as we have seen, the consent of the appellant to a second adoption was not necessary from the time of the consummation of the first adoption until the death of the survivor of the foster parents, I am unable to see by what reasoning it can be assumed or held that the petitioner became vested with any rights, authority or duty in law regarding the minor or that required his consent to her second adoption. Clearly his responsibility for the infant and the infant’s maintenance was not reassumed in law or in fact by anything that occurred after the first adoption.

The consent of the parents or surviving parent of a legitimate child is necessary to a legal adoption, but after the adoption is allowed and confirmed the natural parents or surviving parent cease in law to sustain such relation to the minor and the consent to the second adoption must he given by the foster parents or the survivor of them.

The order should be affirmed, with costs.

(dissenting). Madeleine H. MacRae was the daughter of the appellant, Charles H. MacRae. She was born March 23d, 1895. After her mother’s death and on October 12th, 1897, with the consent of her father, the appellant, said Madeleine was regularly adopted by her paternal grandparents, Charles H. MacRae and Mary J. MacRae. She lived with her foster parents until the death of the survivor, Mary J. MacRae, who deceased in June, 1905. Said Mary left a will by which she appointed Elizabeth P. Rogers, one of the respondents herein and the maternal grandmother of Madeleine, as her guardian. On January 12th, 1906, on the petition of Mrs. Rogers, the guardian with whom Madeleine then resided, an order was made granting the adoption of said infant to her said guardian, Mrs. Rogers, and the husband of the latter by a second marriage -and not the grandfather of the infant. Madeleine, at the time of this adaption, was less than ten years of age, and hence there was no consent from her and no notice of the proceeding was given to the appellant, her natural father.

Madeleine died on April 12th, 1906, possessed of an estate of about $9,000. Thereafter the respondent James H. Rogers, as the foster father of said infant, took out letters of administration upon her estate. Subsequently the appellant, her natural father, applied to the surrogate to vacate the second order of adoption on the ground that it was made

The controversy presents questions of great importance, not on account of the amount here involved, but as suggesting the possibility of affecting the right of succession to estates of very great value by the method of adopting children. Undoubtedly our statute on the subject deserves careful scrutiny and revision by the legislature, as its provisions afford not only an ample field for litigation, but for the commission of much wrong. The only question, however, presented for determination in the present case is the necessity for consent by and notice to the natural father of the child to authorize the second order of adoption. The subject is regulated by article 6 of the Domestic Delations Law (L. 1895, ch. 3'72). By section 61 of that statute consent to adoption must be obtained of the following persons: “ 1. Of the minor, if over twelve years of age (not applicable to this case); 2. Of the foster parents husband or wife, unless lawfully separated, or unless they jointly adopt such minor; 3. Of the parents or surviving parent of a legitimate child, * * * but the consent of a parent who has abandoned the child, or is deprived of civil rights, or divorced because of his or her adultery or cruelty, or adjudged to be insane, or to be an habitual drunkard, or judicially deprived of the custody of the child on account of cruelty or neglect, is unnecessary.” Under this provision standing alone it is quite plain that the parents’ consent is requisite to the validity of the second order of adoption. But it is contended that under the subsequent provisions of the statute the parent on the first adoption ceased to be her parent, and also that he thereupon abandoned his child. Section 64 defines the effect of adoption : “ Thereafter the parents of the minor are relieved from all parental duties toward, and all responsibility for, and have no rights over such child, or to his property by descent or succession. * * * The child takes the name of the foster parent. ILis rights of inheritance and

It seems to us that every argument of policy is in favor of so construing the statute as to require notice of the proposed adoption to be given to every person whose interest may be affected by the adoption, so far as the statute will reasonably permit of that construction. Where no one living is entitled to assert parental rights over the child, the person who has the lawful custody may, as guardian (and it may also be that such form of authority is unnecessary to constitute legal custody), as in this case, without the consent of the child itself, by an <?» parte application to the surrogate or county judge, obtain an order of adoption and secure the right to inherit as against those who would otherwise be entitled to succeed to the -child’s estate. This, in the case of a sickly child possessed of a large fortune, might prove extremely profitable. In this case the infant, then in ill-health, was adopted in January and died in April of the same year. The statute has apparently opened a new field of industry. The act, even as we construe it in this case, protects only the rights of living parents, and we venture to suggest that it should be so amended that in the case of an infant having an estate, notice should be given to all -of the next of kin who, if the child should die at the time intestate, would be entitled to its estate.

The order appealed from should be reversed and the motion granted, with costs in all courts.

Edward T. Bartlett, Werner and IIiscock, JJ., concur with Chase, J.; O’Brien and Haight, JJ., concur with Cullen, Ch. J.

Order affirmed.