The threshold question here presented — indeed the overriding issue — is whether the natural parents, if otherwise fit, have either abandoned, surrendered, or forfeited their parental rights.
Part of that inquiry is quickly resolved because, in its discussion of the character and fitness of both the natural and the proposed adoptive parents, nisi prius found: “Christine K., Warren K., Lisa S. and Timmy S. are fine people, each possessing the positive character traits that a Court looks for in custody disputes and too often fails to find.”
So much for the fitness issue.
But what of the forfeiture or surrender of their parental rights. Did the natural parents knowingly and intelligently surrender those rights?
The proposed adoptive parents maintain that the natural parents, having signed the extrajudicial consent form and having then failed to timely file a revocation pursuant to Domestic Relations Law § 115-b, may not now revoke their consent and the adoption is in order.
The natural parents reply with a multifaceted constitutional attack on the extrajudicial consent form which they signed in November 1983, the statute upon which that form is based (Domestic Relations Law § 115-b), and the manner in which the form was executed.
In addressing these issues and in the course of an extended hearing, Family Court concluded that: “Under the circumstances, and considering the evidence presented, the K.s’ claim that they thought their consent to be tentative, or preliminary, is entirely plausible. They believed that they were able to *27revoke their consent at any time prior to their appearance before the Court. That belief was induced by the forms and procedures used by the adoption bureau of the Family Court of Suffolk County plus the other circumstances in the case.”
It then concluded: “That Mrs. K. fully believed that to be so is evidenced by the fact that she forced herself to visit a school for Down’s Syndrome children, and otherwise learn about the disability, immediately prior to the scheduled Court appearance. That visit, and the information obtained are what crystalized the K.s’ decision to revoke their consent. They thought, although their decision was made at the eleventh hour, that it was timely. The application of Section 115-b so as to make their revocation effort untimely deprives the K.s of due process of law.”
As we analyze the circumstances existing at the time the consent forms were signed, let us first find out how this all came about. Where did the forms originate? Who prepared and drafted them? Were the natural parents represented by counsel? Did counsel or anyone explain the full significance of the forms? Who filed the forms? Who drew the adoption petition? Who filed it? Did anyone notify the natural parents of the date of the filing? Very interesting questions. Let’s look at the answers.
Directly after Sarah’s birth, the obstetrician walked into the recovery room and flatly announced to Warren and Christine K., “I have bad news for you, I am almost certain that the baby is a Mongoloid”. Devastating news indeed and enough to tumble the K.s into a state of shock and trauma. They began discussing whether or not they could take care of their unfortunate baby and in this state of mental upheaval, they concluded that they could not. A social worker at the hospital referred them to a woman named Janet Márchese, a person whom the Family Court described as “a full time humanitarian”, who had been successfully involved in the placing of some 600 to 700 Down’s Syndrome children. Mrs. Márchese recommended David Verplank, a lawyer with whom she worked, and suggested that Mr. K. pay Verplank’s fee because the adoptive parents would, in all probability, incur significant medical bills following the adoption. Mr. K. agreed.
Five days after Sarah’s birth, on November 11, 1983, Mr. K. went to the hospital and handed Sarah to a nurse who had accompanied Mr. Verplank for the purpose of the transfer. With Mr. K. at the time was one of his law partners, who was there, not in his capacity as an attorney, but as a close friend. Indeed, the court found that “[n]either Warren K., nor either of his two *28partners had any experience or prior knowledge concerning adoptions”. It is hardly necessary to note that at this point in time, there was complete harmony between the parties and that that condition continued until the K.s, after deciding that they were making a mistake, attempted to regain custody of Sarah. On November 11, Verplank gave to Mr. K.’s law partner an envelope containing papers which he (Verplank) had prepared for Warren and Christine K. to sign. The partner handed the envelope to Mr. K. and when the latter opened it the following weekend, he found the following:
(1) a judicial consent form which becomes irrevocable when “executed or acknowledged before a judge” (Domestic Relations Law § 115-b [1] [c]). At the bottom of that form was a place for a Family Coúrt Judge to acknowledge the signature of the natural parents. The meaning and significance of this form is clear and creates problems for no one;
(2) an extrajudicial consent form which read in pertinent part as follows: “I understand that in the event Consent is not executed before a Judge of the Family Court, the County of Suffolk, then and in that event this Consent shall become irrevocable thirty days after the commencement of the adoption proceeding unless written notice of revocation thereof shall be received by this Court within said thirty days” (emphasis supplied).
This is the source and the cause of all the heartbreak and confusion that followed and attention is directed to the words “in the event Consent”. In the extrajudicial consent form in the case of Matter of Daniel C. (99 AD2d 35, 49, affd 63 NY2d 927), that particular phrase read: “in the event that this consent” (emphasis supplied). Moreover, relevant words of the statute upon which the extrajudicial consents in both Daniel C. and the case at bar are predicated read “the consent”, etc. The fatal absence in the instant case of the modifying word “this” or “the” is not only significant and material but clearly creates the inference, especially if both consent forms are read together as, in fact, they were, that, as Family Court found, “if the natural parents anticipated appearing before a judge to give their consent, the thirty day period in the extrajudicial consent form would not expire prior to the Court date. As shall be detailed subsequently, Mr. K. read the forms together and, knowing that he and his wife had to appear before a judge to give their consent for Sarah’s adoption, reasonably concluded that he could revoke their extrajudicial consent at any time prior to that Court appearance”;
(3) a bill of $750 plus disbursements; and
*29(4) a “Natural Parents” affidavit. At the bottom of this form is a place for a Family Court Judge to take the oaths of the natural parents.
Mr. K. presented the forms to his wife for her signature explaining that the adoption would not be “final” until they “appear[ed] before the Court”.
On November 28, 1983, the executed forms were returned to Mr. Verplank.
Let us here briefly review the role played by Mr. Verplank. He was recommended to the Ks., in all good faith, by Mrs. Márchese. His fee, $750, was his standard fee for handling complete adoptions and was paid by the Ks. The forms of consent to be signed by the Ks. were drafted and drawn by Verplank. From the time Verplank delivered the consent forms to Mr. K’s. law partner until they were returned to him, Verplank gave no advice nor did he explain the legal significance attached to the signing of either or both forms. This was indeed a friendly but, as it turned out, a confusing arrangement. Mr. K. thought Verplank represented him or that he represented both sides. Verplank maintained that he represented only the proposed adoptive parents, Mr. and Mrs. S., yet he accepted a full fee from the natural parents, Mr. and Mrs. K. Did he owe any duty to those who paid his fee?
In any event, now clearly acting on behalf of the proposed adoptive parents, on December 19, 1983, Verplank filed a petition signed by them for the adoption of little Sarah. Verplank never told the Ks. that the adoption papers had been filed.
As has oft been stated, due process of law embraces fundamental rights and immutable principles of justice; the use of the term is merely another way of saying that every person’s right to life, liberty and property is to be accorded the fundamental principles of justice (see, Bailey v Alabama, 219 US 219; Ives v South Buffalo Ry. Co., 201 NY 271). From the days of Magna Carta, the concept of due process has mandated that, at the very least, a person not be deprived of a legitimate property or personal right without adequate notice of the possibility of such deprivation (see, Papachristou v City of Jacksonville, 405 US 156; United States v Wood, Wire & Metal Lathers Intl. Union, 471 F2d 408, cert denied 412 US 939). I fear that that is exactly what is happening here. Unlike Matter of Daniel C. (99 AD2d 35, supra), where the natural mother admitted she was not misled by the consent form, at bar, as Family Court found, the natural parents from the very beginning were in fact deceived by the forms used and the procedures followed, and this deception *30deprived them of their own child without notice. To hang such a result like an albatross around the necks of these beleaguered parents would, in my opinion, be unconscionable. Accordingly, I would restore little Sarah to her natural parents.
It is a proper conclusion that the natural parents were lulled into a false sense of security that they had until the court date to finalize their consent and that because of the lack of any notice provided by the forms, they were denied due process of law. It is firmly established that a waiver of constitutional rights must be voluntarily, knowingly and intelligently made, and this should be no less true for relinquishment of parental rights than for any other liberty right (see, Johnson v Zerbst, 304 US 458; Matter of Male Infant L., 61 NY2d 420, 427; Matter of Daniel C., 99 AD2d 35, 67 [Gibbons, J., dissenting], affd 63 NY2d 927, supra; Matter of Infant S., 48 AD2d 425, 426). Hence, in the absence of a true understanding of the terms of the adoption and its consequences, the consent of the natural parents was not free, voluntary and final (see, Matter of Unnamed Baby Boy, 110 AD2d 1019). By granting the natural parents a “best interests” hearing, the Family Court treated them not as parents who had never given a final consent, but as if they had fully understood the terms of the adoption, fully consented and then elected to exercise their 30-day revocation right. The only appropriate remedy was to declare the natural parents’ tentative “consent” a nullity ab initio and to return them to the status quo ante. To do anything less is to subject them to an on-going deprivation of due process of law (see, Matter of Unnamed Baby Boy, supra).
The Court of Appeals has noted that “ ‘[a] change of mind is to be accorded great sympathy, and, in a proper case, encouragement and favorable action’ * * * especially * * * where the natural parent has sought return within a very short time” (Matter of Male Infant L., 61 NY2d 420, 429, supra). Here, where the natural parents did not even finally and unconditionally consent to the adoption, not just sympathy, but due process requires that their decision not to go through with the adoption be given full effect and that the child be returned forthwith to their arms.
The facts at bar highlight the inherent defects in the statute (Domestic Relations Law § 115-b) in its failure to afford the natural parents notice as to when the adoption proceeding had been commenced. This is the event that sets in motion the time clock of the 30-day period within which a revocation of consent may be filed. In that respect the statute is badly flawed and may indeed, as concluded by Justices Mangano and Lawrence, render the section unconstitutional as written (cf. Matter of Anonymous, 55 AD2d 383; Matter of Daniel C., 99 AD2d 35, supra).
*31Similarly troubling, as pointed out by Justice Mangano in his plurality opinion, is the failure of the statute to require that the extrajudicial consent form apprise the natural parents that the timely revocation of their consent entitles them only to a best interests hearing and not to the return of their child (see also, Matter of Daniel C., 99 AD2d 35, 47-82 [dissenting opn of Gibbons, J.], and 63 NY2d 927, 929-940 [dissenting opn of Jasen, J.], supra). However, in light of our factual finding that the natural parents never gave their final and unequivocal consent to the adoption of their child Sarah, we do not reach the bigger issue. We do, however, urgently recommend the subject matter to the attention of the Legislature.