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Maternal Aunt Seeks to Adopt Child

A New York Family Lawyer said that, in this adoption proceeding pursuant to Article 7 of the Domestic Relations Law, authorized child care agency (Agency), by motion filed June 30, 2011, moves the court to dismiss the private-placement adoption petition filed by pursuant to Domestic Relations Law § 115. Petitioner is the Maternal Aunt of the subject child, a foster child legally freed for adoption, who is in the lawful care and custody of the Agency and the Administration for Children’s Services (ACS).

A New York Custody Lawyer said that, the Agency asserts in its motion that the Maternal Aunt improperly filed the petition as a private-placement adoption. The Agency takes the position that the only path to the adoption of a foster child such as the subject child is an adoption from an authorized agency, and the Agency’s consent to such an adoption is required. The Agency states that it will not consent to the adoption of the subject child by the Maternal Aunt, and, therefore, the court is without jurisdiction to hear the Maternal Aunt’s petition. The Agency states that the power of the court is limited to finalizing or denying the adoption of the subject child pursuant to the agency adoption petition filed by the Foster Mother. The Agency further contends that should the court proceed to hold a hearing as to the adoption petition filed by the Maternal Aunt, any ruling made by the court would be without force and effect since the court does not have jurisdiction over the Maternal Aunt’s petition, and only the Agency can determine who may file a petition for adoption of this child.

A Nassau County Family Lawyer said that, in the alternative, the Agency moves to dismiss the adoption petition filed by the Maternal Aunt, as jurisdictionally defective in that it lacks the following statutory requirements: the marital status of the Maternal Aunt, certification of the Maternal Aunt as a qualified adoptive parent as required by Domestic Relations Law § 115(1)(b), and compliance with the provisions of Social Services Law § 374–a, the Interstate Compact on the Placement of Children, which sets forth procedures that must be followed should Y. be placed with the Maternal Aunt, who resides in the State of Florida.

A Nassau County Custody Lawyer said that, in the Affirmation in Opposition to the Motion filed July 10, 2011, the Attorney for the Maternal Aunt states that the issues before the court are questions of first impression, and that the case law cited by the Agency is not relevant as it applies to competing adoption petitions filed by foster parents, which is not the case here. Further, the Maternal Aunt has complied with the filing requirements for a private-placement adoption, including the certification requirements set forth in Domestic Relations Law § 115(1)(b) and § 115–d, and she has completed written submissions required by the Interstate Compact. Therefore, any procedural defects have been cured by subsequent submissions. The Attorney for the Maternal Aunt moves for an evidentiary hearing and the court’s determination as to whether the best interests of the child Y. will be served by adoption by the Foster Mother or adoption by the Maternal Aunt.

The issue in this case is whether the motion to dismiss the petition for the adoption of the subject child by the Maternal Aunt should be granted on the ground that it is jurisdictionally defective, for it lacks the certain statutory requirements for adoption.

The judicial precedents cited by the Agency are neither persuasive nor applicable to this proceeding, which involves an adoption petition filed by a relative who has never been a foster parent and who has never applied to the Agency to adopt the child. The Agency has a duty to exercise its statutory powers in the evaluation of foster parents, relatives or other persons who apply directly to the Agency to adopt a child. However, no judicial precedent supports the Agency’s claim that in the adoption of a foster child through a private-placement adoption proceeding, the consent of the agency is required. Nor is there authority to support the claim that in an adoption involving a foster child, the adoption court’s review is limited to petitions approved by the Agency. Thus, the Agency’s contention that this court lacks jurisdiction over the Maternal Aunt’s adoption petition is without basis in judicial precedent and contradicts clear statutory mandates.

The court held that the agency’s consent to the adoption of the subject child by the Maternal Aunt is not required.

The Domestic Relations Law provides two routes to adoption, Title II, Adoption from an Authorized Agency, sections 112 through 114; and Title III, Private–Placement Adoption, sections 115 and 116. The requirements contained in these sections are similar but are distinct procedurally. The private-placement adoption provisions of Domestic Relations Law § 115 do not require the consent or involvement of an authorized agency. In a private-placement adoption, the statute requires the agency with lawful custody of the child to “appear” before the court. In addition, the agency must present an affidavit stating how lawful custody of the child was. The Agency’s argument that its consent is required imposes a requirement in a private-placement adoption where no statutory requirement exists.

The Agency argues that the court may authorize or deny the adoption of a foster child by the person who is approved and presented by the authorized agency, and other adoptive resources are not eligible to adopt the child unless the agency consents. However, the adoption court may decide to approve or reject an adoption petition, regardless of whether the authorized agency has given or denied its consent. Thus, in this matter, the agency’s consent is not a condition precedent for the filing of the Maternal Aunt’s petition, and the agency’s denial of consent in this matter does not foreclose the Maternal Aunt from being heard by the adoption court at a full evidentiary hearing to determine the best interests of the child.

The Agency’s position is not supported by statutory mandates pursuant to Social Services Law § 384–b. Social Services Law § 384–b, the statute governing termination of parental rights proceedings and the commitment of guardianship and child custody of foster children by court order, requires, upon entry of an Order of Disposition, that “the court shall inquire whether any foster parent or parents with whom the child resides, or any relative of the child, or other person, seeks to adopt such child”. If such persons express an intent to adopt the child, “the court shall accept, all such petitions for the adoption of the child, together with an adoption home study, if any, completed by an authorized agency or disinterested person as such term is defined in subdivision three of section one hundred sixteen of the domestic relations law”. The statute mandates that relatives who wish to pursue adoption of a legally freed foster child have a right to be heard and the court is required to accept the relative’s petition. In this matter, the circumstances of the Respondent Mother’s death abated the termination proceeding and the court did not have an opportunity to hold a dispositional hearing as to persons who had expressed an intent to adopt the child or to accept petitions from persons ready to adopt the child. Therefore, these circumstances further support the need for the court to hold such a hearing and make determinations as to whether the child’s best interests are served by adoption by the Foster Mother or adoption by the Maternal Aunt.

Moreover, if the court follows the Agency’s reasoning and dismisses the Maternal Aunt’s adoption petition, as a matter of law, the subject child. may be left in the limbo of foster care, without an adoptive resource. The adoption of the child by the Foster Mother is in question. Neither the Agency nor the Foster Mother has complied fully with the filing of required information and documents set forth in Domestic Relations Law §§ 112(2), (2–a), (3) and (5), and the Uniform Rules for Family Court (22 NYCRR) § 205.53, in a timely and forthright manner.

Since a best interests hearing as to the adoption of the subject child has never been held, these appellate rulings make clear that this court must hold an evidentiary hearing, including independent expert psychological testimony as to the child’s best interests, regarding the impact on the child of potential separation from the Foster Mother and the placement with the Maternal Aunt for the purpose of adoption. In the case before this court, an independent psychological assessment can assist the court in a best interests determination by exploring the development and psychological functioning of the child, the child’s attachment to the foster family, the impact on the child of a separation from the foster family, the benefits attendant to the child’s placement with relatives, the dynamics of the child’s relationships, the functioning of the foster family and the Maternal Aunt’s family, the needs of the child and the ability of each prospective adoptive parent to meet her needs. Therefore, the court directs a best interests hearing and orders a forensic evaluation of the child and the parties.

The Maternal Aunt’s petition is not procedurally defective and should not be dismissed. As an alternative argument, the Agency states that the Maternal Aunt’s private-placement adoption petition is procedurally defective and as such must be dismissed. The court finds that the defects alleged by the Agency are procedural errors, which are subject to correction, and are not grounds to dismiss the Maternal Aunt’s adoption petition.

Domestic Relations Law § 115(13) requires the petitioner to attach proof of compliance with the provisions of the Interstate Compact on the Placement of Children, Social Services Law § 374–a, when a child is brought into New York State for the purposes of adoptive placement. In this case, the child has the potential of being placed out-of-state, in the State of Florida, to reside with the Maternal Aunt. The Maternal Aunt was not required to attach proof of compliance with the Interstate Compact with the filing of the petition pursuant to Domestic Relations Law § 115(13). However, the mandates of the Interstate Compact must be complied with in this matter, should the court determine that the child’s best interests require placement in the State of Florida with the Maternal Aunt. The court has not made such a determination and the issue of compliance with the Interstate Compact is in abeyance.

In regard to the issue of certification, the Maternal Aunt filed an application for certification as a qualified adoptive parent on May 24, 2011, after she filed the private-placement petition. The statute requires that the Maternal Aunt petition for certification as a qualified adoptive parent prior to filing the adoption petition. The purpose of the statute “is to prevent harm to a child by not allowing an unfit person to obtain temporary physical custody of a child pending adoption approval”. In the instant matter, the Maternal Aunt has complied with the statutory purpose and her request for certification as a qualified adoptive parent is now before the court. In sum, the Agency has not cited any procedural basis that warrants the dismissal of the Maternal Aunt’s adoption petition. Thus, there is no basis to dismiss the Maternal Aunt’s petition on the ground of failure to conform to the requirements of Domestic Relations Law § 115(1)(b).

Accordingly, the court denies the Agency’s motion and orders the petitioners to file amended papers and complete their submissions forthwith.

The adoption court may decide to approve or reject an adoption petition, regardless of whether the authorized agency has given or denied its consent. The determining factor is the best interest of the child. There is a need for the representation of a Bronx Child Custody Attorney and/or Bronx Family Attorney if you wish to adopt a child. Call us ta Stephen Bilkis and Associates.

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