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Court Decides Private Placement Adoption


In these private placement adoption proceedings, infants were placed with prospective adoptive parents in violation of the Interstate Compact on the Placement of Children and New York’s laws requiring certification of prospective adoptive parents as “qualified adoptive parents”.

Inexplicably, the administrator of the Interstate Compact gave approval for the placements.

A New York Family Lawyer said that, in the first case, petitioners hired a California attorney and two New York attorneys to assist them in attempting to adopt a child. On the advice of their first New York attorney, they caused a pre-placement investigation to be undertaken in August, 1990, and a certified social worker completed the investigation of them that same month. Petitioners retained present counsel in November, 1990. Although present counsel advised them to initiate New York’s certification process immediately, they waited until May 21, 1991 to file a petition for certification. They submitted with the petition a copy of the 1990 pre-placement investigation, a financial statement showing them to own more than 5 million dollars in property, and a copy of their 1989 tax return showing them to have an income of $1,500,000. The tax return lists as residents of the State of Connecticut. The date the certification petition was filed, the court ordered a report on them from the Statewide Central Register of Child Abuse and Maltreatment.

A New York Custody Lawyer said that, shortly after the certification petition was filed, in June, 1991, the natural mother of the infant, who is the subject of the proceedings, responded to a newspaper advertisement and decided to place the infant with Mr. and Mrs. S. On July 2, 1991, counsel wrote a letter to the adoption clerk stating that the birth of the infant was imminent, and submitted an application for pre-approval of certain adoption expenses. Counsel did not submit an application to waive the certification process.

A Nassau County Family Lawyer said that, the infant was born on July 7, 1991, in Madison, Wisconsin. On August 6, 1991, the administrator of the Interstate Compact in this State granted approval for placement of the infant with petitioners and the infant was transferred to their physical custody that day. On August 14, 1991, petitioners filed petitions for temporary guardianship and adoption, listing their residence as New York County. They also made application for a waiver of the certification process. The affirmation of counsel in support of the application for waiver of certification states that all documents were filed with the court in May, 1991. In fact, a response from the Statewide Central Register of Child Abuse and Maltreatment was received by the court on September 13, 1991. The waiver application contains this statement: “It is apparent that if the normal procedures of pre-certification are followed in this case, that the anticipated adoption would be jeopardized, since the child was born prior to certification. Accordingly, it is requested that the court waive pre-certification requirements.”

In the second case, petitioner filed a petition for certification on July 3, 1990. Petitioner then waited some nine months before taking action to submit documentation required for certification. The last required document, a letter explaining the circumstances of her criminal record, was submitted on May 20, 1991. Petitioner submitted a financial statement showing her to own property worth approximately $500,000, and a copy of her 1990 tax return showing her to have an income of approximately $40,000. The tax return lists of petitioner as a resident of Nassau County.

A Nassau County Child Custody Lawyer said that, the infant who is the subject of these proceedings was born on May 23, 1991 in Grand Island, Nebraska. On May 25, 1991, physical custody of the infant was transferred from the birth mother to the petitioner. On May 28, 1991, the Administrator of the Interstate Compact gave approval for the placement of the infant with the petitioner. On May 31, 1991, petitioner filed petitions for temporary guardianship and adoption, listing her residence as New York County. Petitioner has never made application for a waiver of the certification process. Counsel wrote a letter to the adoption clerk, dated May 31, 1991, stating: “The certification Order is before the Judge and we are awaiting the signed order.”

The same attorney represents the prospective adoptive parents in both of these proceedings. On consent, the court questioned him in chambers without the presence of his clients. He stated that it has been his practice in this and other courts to make applications for waiver of the certification process after physical custody of children has been transferred to prospective adoptive parents. Counsel explained: “And the problem that exists in the state is that there is no common practice. Now, yes, the law is one thing in black and white, but judges have very different rules and procedures.”

The issue in this case is whether the administrator of the Interstate Compact erred in giving approval for the placements in violation of Interstate Compact on the Placement of Children and New York’s laws (absence of certification of prospective adoptive parents as “qualified adoptive parents”).

The court in deciding he case said that, in 1988, legislation was enacted to require that prospective adoptive parents in private placement adoptions file for temporary guardianship of the person of the child or a petition for adoption within 10 court days after receiving physical custody of the child. Under this legislation, until a home study was conducted, the court still had only the information about the infants’ de facto custodians that was provided by the prospective adoptive parents. In 1989, new legislation was enacted to remedy deficiencies of the 1988 legislation. This legislation, which was recommended by an eight month Grand Jury investigation conducted in the wake of the infamous Steinberg case, now requires that prospective adoptive parents be certified as “qualified adoptive parents” by a court before they receive physical custody of a child.

The certification process may be waived prospectively, upon application, for good cause shown. Where the certification process has been waived and prospective adoptive parents then take physical custody of a child, the “parents” must file a petition for temporary guardianship or petition for adoption within 5, and not 10, court days. A waiver is not to be routinely granted. It would appear to be appropriate where “due to exigent circumstances, the adoptive parents could not timely pursue a certification application, or where the certification process was not, through no fault of the adoptive parents, completed prior to the scheduled transfer of physical custody “. Before granting a waiver, the court should conduct an expedited hearing to assure itself of the fitness of the prospective adoptive parents.

The purpose of the Interstate Compact is to protect children transported interstate and to maximize their opportunity to be placed in a suitable environment with persons able to provide the necessary and desirable level of care for them. To this end, the Interstate Compact requires advance notification of the proposed placement to the appropriate authorities in the state which would be receiving a child so that they may have an opportunity to investigate. Article III of the Interstate Compact sets out the general requirements for a valid interstate placement.

Paragraph (a) of Article III prohibits a “sending agency” from sending, bringing or causing “to be sent or brought into any other party state any child as a preliminary to a possible adoption unless the sending agency shall comply with the applicable laws of the receiving state governing the placement 4 of children therein.”

Under the 1989 legislation, there is no penalty for failure to comply with the certification laws in an intrastate adoption other than denial of the adoption. There are, however, two kinds of penalties for a placement made in violation of the Interstate Compact. First, a violation of the Compact is deemed a violation of the child placement laws of both the sending and receiving states and may be punished as such in either state. Second, the violation constitutes grounds for the suspension or revocation of a license to place or care for children.

In New York, “any person, corporation, agency, society, institution or other organization, wilfully violating the Interstate Compact shall be guilty of a misdemeanor” (Social Services Law § 389[1]. The definition of who is a “sending agency” under the Compact is important because it is the “sending agency” that must comply with Compact requirements or be penalized for an illegal placement (Social Services Law § 374-a(1), Articles III, IV). The definition of sending agency is broad enough to include any individual or entity that causes a child to be moved interstate. In a given placement, a number of individuals or entities could be deemed the sending agency. In addition to the obvious sending agency, the parent or entity which places the child, the recipient of a child is also a sending agency if it causes a child to be sent or brought across state lines.

In both of these proceedings, children were placed in violation of New York’s certification law and the Interstate Compact. Inexplicably, the compact administrator in this State gave approval for both placements when he should have first demanded to see a court order granting certification or an order waiving the certification process.

In each proceeding, it is questionable whether a waiver would have been granted. Neither petitioners’ took prompt action to comply with New York’s certification laws. Petitioners waited many months to file a petition for certification after they were informed of the necessity of doing so. The other petitioner filed her petition promptly, but then waited many months before taking action to complete the necessary documentation. Neither can claim financial reasons for their inaction.

Courts are justifiably reluctant to deny adoptions because of violations of the adoption laws. In denying an adoption for violation of the adoption laws, a child may be deprived of the only home he or she has ever known and returned to a natural parent marginally capable of providing care for the child or placed into foster care. However, the finalization of adoptions, despite violations of the adoption laws, only encourages subsequent violations. Recently, New York courts have utilized financial sanctions against attorneys for failure to comply with adoption laws. Although this may be fair, I seriously doubt whether such a sanction is sufficient to deter future violations of law.

Here the children were placed interstate. Thus, if the law governing certification was “wilfully” violated, petitioners’ the Wisconsin agency, the natural mother of the infant now in the de facto custody of the other petitioner and, perhaps, others are guilty of a misdemeanor.

The court have now caused to be sent to every attorney and prospective adoptive parent who files a petition for certification before me a letter clearly delineating the requirements of New York’s certification laws and my expectation that the laws be fully respected. Should there be future violations, it will immediately refer the matter to appropriate attorney disciplinary committees and/or appropriate prosecutorial authorities. Referral of violations of adoption laws to disciplinary committees and/or prosecutorial authorities may be a fair and effective way to enforce adoption laws where an adoption is otherwise desirable. In this way, children would not suffer the consequences of adult violations of law.

The court said that it cannot rule out, however, denial of an adoption in cases where the laws have been violated. In some instances, this may be appropriate. It is certainly an alternative which should be available where prospective adoptive parents knowingly violate this State’s adoption law. The court leave the question of an appropriate remedy open in these proceedings because it is unclear at this time whether the courts of New York have jurisdiction over the adoption in the first case, and whether venue lies in New York or Nassau County.

The rule is that, persons seeking physical custody of children in private placement adoptions must now furnish the court with a pre-placement investigation undertaken by a disinterested person, or request the court to appoint a disinterested person to conduct such an investigation. If there has been a violation of this rule, seek the help of a Nassau Order of Protection Attorney and Nassau Custody Attorney at Stephen Bilkis and Associates. Call us.

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