In re Samuel

Order affirmed with costs. Memorandum: Family Court properly dismissed the adoption petition and restored custody of the child to the natural mother. Family Court found, and we agree, that the natural mother changed her mind about placing her child for adoption, and that she communicated her change of mind to her attorney who, in turn, communicated it to the adoptive parents before the extrajudicial consent took effect and before physical custody of the child was transferred to the adoptive parents. The court found that the natural mother timely rescinded her attorney’s authority to file the extrajudicial consent and to place the child.

Placement of the child was unauthorized because the birth mother’s attorney violated Social Services Law § 374 (6) by providing legal services to both the birth mother and the adoptive parents, thus depriving the birth mother of her right to independent legal counsel. Additionally, a valid "placing out” of a child in a private adoption is governed by strict statutory provisions. One of those is a statutory limitation on persons who may place out a child (see, Social Services Law §371 [12]). The only persons that can place a child are an authorized agency as defined in Social Services Law § 371 (10), a natural parent, a legal guardian, or a relative within the second degree of consanguinity (Social Services Law § 374 [1], [2]). Attorneys are not included among the persons that can place a child. There is an exception, of course, for the attorney for the birth mother when acting "upon her express request and authorization, and * * * thus acting as her agent for this purpose” (Matter of Baby Girl B., 144 Misc 2d 583, 587, affd for reasons stated 161 AD2d 1201). The unavoidable corollary to that rule is that the birth mother’s attorney is not among those empowered to place the child for adoption where the attorney lacks the mother’s authority to place the child.

Here, the attorney not only lacked such authority, her transfer of the child was in flagrant disregard of the mother’s instructions. It is uncontroverted that, before the child was placed, the mother instructed the attorney that she did not want to go through with the adoption and wanted to keep the baby. Nevertheless, the attorney obtained the discharge of the child from the hospital and turned him over to the adoptive parents in order to carry out their wishes. The placement of the child was thus illegal and custody of the child was properly restored to the natural mother.

All concur, except Pine, J., who dissents and votes to reverse, in the following memorandum.