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Court Rules on Adoption Proceeding


A New York Family Lawyer said that, the family of the now-15 year old child has been involved with the child welfare system since 1998, when child abuse proceedings were brought against her parents. As best can be told, her father was never involved in her life thereafter. Her mother died in 2001. After living with different relatives for a time until 2003, the child has been in numerous non-kinship foster homes. Since 2005, the child has been placed in homes with the Home foster care agency. In May 2007, the child found a measure of stability by living in the foster boarding home where she remains until this day. During these past four years, the “permanency goal” of the child has been adoption by, and numerous permanency hearings and other oversight has been conducted by the Courts, both before me, and various Referees, during which the St. Dominic’s Home participated.

A New York Custody Lawyer it was not until April 2011 that an adoption petition, including a “Statement of Readiness” by the attorney, was filed on behalf of Ms. C.-S, and eventually calendared before me, with a proposed finalization date of June 2, 2011. Because various paperwork was missing, and more important, because the record revealed that there were two outstanding Orders of Guardianship for different relatives, which needed to be addressed before the adoption could be finalized, the adoption could not go forward and was adjourned several times. Throughout this period, my court attorney was in constant contact with the adoptive mother’s attorney, offering guidance on the situation and assuring that I would promptly proceed with the adoption and also expeditiously hear and address any ancillary proceedings which might need to be filed. No steps were taken to address the guardianship issues.

A Bronx Family Lawyer said that, instead, on September 1, 2011, the foster care agency filed a motion, returnable October 12, 2011, claiming that the agency’s interest was expediting permanency for the child, and complaining that this Court was unnecessarily delaying such “permanency”. The agency seeks intervenor status, and an order granting the adoption petition notwithstanding the previous guardianship orders.

The issue in this case is whether the petition for adoption should be granted.

Adoption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect to such other person.” Adoption was unknown at common law and is solely a creation of statute; as such, it has long been held that the “statute governing adoption must be strictly complied with since adoption is a proceeding in derogation of common law”.

A Bronx Custody Lawyer said the right to adoption of children and strangers to the blood, while known to ancients such as those of Greece and Rome and recognized by different continental nations under the civil law, was unknown to the common law and exists only by statute, and article 7 of the Domestic Relations Law defines the persons who may adopt another, prescribes the procedure to be followed and provides that no person shall be adopted except in pursuance thereof.

The purposes of adoption include inter alia the creation of a firm legal connection in the new adoptive family; and severance of the enforceable obligations and other ties held by biological parents or others with the child; all in furtherance of achieving stability and finality in the placement of children, to preserve and protect “the best interests of the child”. New York’s adoption statutes and our procedures protect the integrity of the adoptive family unit and the finality of the adoption, thereby ensuring the child’s interest in continuity of relationships. To promote this “finality” and the important public policy factors of adoption, it is similarly imperative to strictly construe the adoption statutes. Even more so, when dealing with agency adoptions of children who have endured child abuse and neglect, as well as the vagaries of the foster care system, it is incumbent upon Family Court judges to thoroughly control and review adoptions, with strict standards and guidelines, all with a considered view towards the best interests of the child.

Domestic Relations Law § 111 sets forth the prerequisites of “Whose consent is required” for an adoption. Subdivision (1)(f) requires the consent to adoption “of any person or authorized agency having lawful custody of the adoptive child”. Notably, this section does not list “Custody” with a capital C, nor does it otherwise define the term.DRL §109 (6), giving general definitions for the overall adoption Article 7 statute, defines “lawful custody” as “custody (a) specifically authorized by statute or (b) pursuant to judgment, decree or order of a court or (c) otherwise authorized by law”.

Since the court orders of Guardianship of the foster parents, thereby constitute “custody”, I have held that either the consent of these guardians be obtained, or that steps be taken to obviate the need for their consent, before the adoption go forward. The intervenor foster care agency argues that “Guardianship” is not equated with “Custody” and that the consent of these parties need not be obtained. Indeed, the law in this area has never been clearly set forth or widely litigated, leaving little guidance from the case law. However, since these Guardianships clearly meet both the letter, and the purpose and intent of the statute, a statute which must be strictly construed, I must deny the agency’s arguments.

The concepts of child custody and guardianship of minor children, and whatever subtle differences might be engendered between the two, have never been clearly defined, both in the law, and in their colloquial lay meaning.

The concept of Child Custody has generally arisen from the common law and has no specific details. New York’s major laws only address the procedures for custody in the context of the complicated distinctions in the jurisdiction of Supreme Court and Family Court. Domestic Relations Law §240 governs custody and visitation as part of the dissolution of the marriage in a Supreme Court matrimonial action. Family Court Act §651 restates said jurisdiction, but is generally devoid of substantive or procedural guidelines. The criteria guiding judicial determination of specific issues of custody litigation have developed through extensive case law under the DRL, but this case law does not define the precise powers conferred by the generic term “custody” nor does it generally address the differences, if any, between custody and guardianship.

Guardianship, in distinction, has always been a creation of statute, laws of long standing duration with little contemporary guidance. “Guardianship” includes two very separate concepts and powers – guardianship “of the property” of an infant or for other similar specific, limited purposes, on the one hand, and, second, “guardianship of the person”. Surrogates Court, as well as Supreme Court and County Court always had such jurisdiction, and Surrogates Court Procedure Act §1701 now provides that “the court has power over the property of an infant and is authorized and empowered to appoint a guardian of the person or of the property or of both of an infant whether or not the parent or parents of the infant are living”. SCPA §103 (27) defines an infant as “any person under the age of eighteen years”. SCPA §103 (24) defines a guardian as “any person to whom letters of guardianship have been issued by a court of this state, pursuant to this act, the family court act or article 81 of the mental hygiene law”. Upon the reorganization of the New York Court system and creation of the Family Court in 1962, power over guardianships was granted to the Family Court.

Family Court Act § 661 establishes that: The Family Court has like jurisdiction and authority to determine as county and surrogates courts in procedures regarding the guardianship of the person of a minor or infant. Article 6 of the Family Court Act goes on to briefly describe the procedures for Family Court guardianship, but the statute provides no definitions as to the nature and scope of the powers of the guardian of the person or any guidance as to substantive issues. “Guardianship of the person” confers decision making powers over the basic needs of a child, and while it does not per se grant physical custody, it does authorize it. Case law in this regard is sparse, but it is long standing and clear that “the general rule is that guardianship of the person of an infant implies the custody and control of the person of an infant”.

Domestic Relations Law §111(f) requires the consent to an adoption of a person having “lawful custody” of a child, and §109 has a broad definition of said lawful custody. Again, these statutes do not refer to Custody with a capital “C” or reference with limitation custody pursuant to Family Court Act §651. The point of these statutes is to insure that any person with a lawful, custodial interest be required to consent. The language must be strictly construed, and the case law such as Farr, supra commands it. The decision-making and controlling powers that guardianship of the person confers are precisely within the meaning and intent of the statute and adoption policies.

If adoption is to cement the legal connection of the new, adoptive, family, a person with guardianship powers cannot be lingering in the wings. If adoption is to sever enforceable obligations of the biological parent and others with an interest, the interests of a guardian must be so severed. If the finality and stability of the child in the new adoptive home is to be ensured, the guardianship rights of others must be defeated. Accordingly, the court holds that a court order of guardianship of the person is included within the meaning of lawful order of custody in Domestic Relations Law §111(f).

Child welfare, considered in our fields of law, social work and psychology, embody certain bedrock principles in the best interests of the child. Children should grow up in a normal, permanent, family home. When children cannot be safely maintained in the homes of their natural parents, our child protective laws offer adoption as an alternative means of establishing a real home and achieving “permanency”. In order to achieve said permanency, there must be finality to the adoption procedure, to provide a continuity of relationships to the child and the adoptive family.

However, it cannot develop that in our shorthand practice “permanency” come to mean simply a rapid rush to adoption. We cannot make “permanency” devoid of meaning, a shibboleth code word known only to bureaucratic agency insiders. It is precisely because we are concerned with the fragile lives of children in the foster care system that precise care must be taken to ensure that procedures are properly complied with, and care taken to monitor the substantive merits of the adoption, so that the adoption can succeed. “Permanency” also includes that the child promptly and adequately receive appropriate social services and mental health care, to ameliorate the stay in foster care and prepare her for her growth in the new family. “Permanency” also includes the thoughtful and prompt exploration of the pre-adoptive foster care placement resources. And, “permanency” requires that all legal nuances that might have an impact on the proposed adoption be promptly identified and addressed.

For all of the foregoing reasons set forth in this opinion, and notwithstanding the movant’s concern for permanency, the court continues to hold that the guardianship issues must be addressed before the court considers the adoption. Consideration of the best interests of the child leads to no other conclusion. Therefore, the motion is denied. The Court remains available to expeditiously calendar and determine any proceeding that the agency and/or the adoptive mother may propose to resolve said issues.

In an adoption proceeding the court ascertain the best interest of the child, if you wish to adopt seek the assistance of a Bronx Family Attorney and Bronx Order of Protection Attorney at Stephen Bilkis and Associates in order to file the appropriate petition.

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