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IN RE: a Family Court Act Article 6 Adoption Surrender Proceeding Re J./E. J.R., Petitioner, v. Family Connections, Inc., B.P., AND M.P., Respondents.
Petitioner J.R. (hereinafter "Petitioner") is the biological mother of the subject child E.P., also known as J.W. (DOB: 8/XX/21) (hereinafter "the child" or "E."). This is a proceeding pursuant to Family Court Act Article 6 for revocation of an extrajudicial surrender. On August 25, 2021, the Petitioner signed an extrajudicial surrender of her parental rights to Respondent Family Connections, Inc., in contemplation of ultimate adoption of the child by Respondents B.P. and M.P. This action commenced with the Petitioner's written notice of revocation of the surrender to the Respondents through her attorney, Laurie Goldheim, on September 5, 2021. The Respondents opposed the revocation and requested a best interests hearing. On September 7, 2021, the Respondents B.P. and M.P. filed a Verified Petition for Adoption in the Tompkins County Surrogate's Court. On October 20, 2021, this Court ordered transfer of the Surrogate's Court matter to the Tompkins County Family Court and ordered that the adoption proceeding be held in abeyance pending the Court's determination of the surrender revocation issue.
On November 19, 2021, the Petitioner filed an Order to Show Cause seeking return of the child to her custody, or, in the alternative, weekly overnight unsupervised visitation. The Respondents opposed. On December 2, 2021, the Court ordered that the child shall remain in the custody of the Respondents B.P. and M.P. and Family Connections, Inc. The Court further ordered weekly supervised visitation for the Petitioner to take place in Tompkins County on two consecutive days per week for four hours each day. (Order to Show Cause entered December 2, 2021). On January 24, 2022, the Respondents B.P. and M.P. filed an Affidavit and Memorandum of Law in Opposition to the Petitioner's Order to Show Cause. On January 25, 2022, Respondent Family Connections, Inc., filed its own Affidavit and Memorandum of Law in Opposition to the Petitioner's Order to Show Cause.
On January 28, 2022, the Court held a summary proceeding via Microsoft Teams to determine an appropriate interim order pending a full best interests fact-finding hearing (hereinafter "January hearing"). Petitioner was represented by Attorney Suzanne Reine. Respondent Family Connections, Inc., was represented by Attorney Brendan O'Shea. Respondents B.P. and M.P. were represented by Attorney Natalie French. Citizens Concerned for Children, Inc., Thomas Shannan of counsel, appeared as the Attorney for the Child. Petitioner's Exhibits 1 through 5 were received into evidence. Respondents' Exhibits A through O were received into evidence. The Court heard testimony from the Petitioner, B.L.1 , Respondent B.P., Respondent M.P., and Daniel Stevens, Executive Director of Respondent Family Connections, Inc.
Based upon all of the testimony and evidence at the hearing, the Court determined that it was in E.'s best interests for the Respondents to maintain custody. The Court also determined that it was in E.'s best interests to reduce the frequency of the mother's eight hours of supervised visitation in Tompkins County from weekly to monthly. However, the Court also revised its order to allow the Petitioner's two young daughters to attend visits for the first time.2 (Interim Order entered February 2, 2022). The Court also permitted the parties to engage in Article 31 discovery, except for depositions, and ordered discovery to be completed by April 1, 2022. (Preliminary Conference Order entered January 31, 2022). The Court scheduled a full best interests fact-finding hearing for the week of July 18, 2022. (Preliminary Conference Order entered January 31, 2022).
On February 25, 2022, a Consent to Change Attorney was filed substituting Attorney Samuel Manrique for Attorney Reine as counsel for the Petitioner. On April 15, 2022, Respondents B.P. and M.P. filed a motion to compel and preclude based upon the Petitioner's failure to comply with discovery by the deadline of April 1, 2022. During an appearance with counsel, the Court extended the Petitioner's deadline to comply with the Respondents' outstanding discovery demands to May 31, 2022, and the Court ordered that the Petitioner's failure to comply with discovery by the new date would result in automatic preclusion. (Conditional Preclusion Order entered April 29, 2022). The Petitioner willfully failed to comply with outstanding discovery by the May 31st deadline, and as such she was precluded from introducing any documentary evidence or expert testimony not previously disclosed. (Conditional Preclusion Order entered April 29, 2022).
On July 18, 2022, and July 20, 2022, the Court held an in-person best interests fact-finding hearing (hereinafter "July hearing"). The Petitioner was represented by Attorney Samuel Manrique. Respondent Family Connections, Inc., was represented by Attorney Brendan O'Shea. Respondents B.P. and M.P. were represented by Attorney Natalie French. Citizens Concerned for Children, Inc., Thomas Shannan of counsel, appeared as the Attorney for the Child. The Court took judicial notice of all prior testimony given and exhibits received during the January hearing. The Court received Respondents' Exhibits A through K, M 3 , P, and Q into evidence. The Court heard testimony from the Petitioner, Respondent M.P., Respondent B.P., A.S. (father of M.P.), R.P. (father of B.P.), and Daniel Stevens.
On February 10, 2022, B.L. filed a Petition for Paternity in Tompkins County Family Court. On April 7, 2022, Support Magistrate Jacinta Testa Ciccone ordered a genetic marker test. The results, filed with the Court on May 26, 2022, revealed that B.L. is in fact the biological father of the child. On July 27, 2022, Support Magistrate Ciccone issued an Order of Filiation.
On July 18, 2022, the first day of the July hearing, Attorney Ayana McGuire filed a Notice of Appearance for B.L. in this matter. B.L. was present in the courthouse on that date, and he sat in the hallway outside of the courtroom with the Petitioner's two young daughters.4 On July 20, 2022, the second day of the July hearing, B.L. and Attorney McGuire appeared inside of the courtroom. Pursuant to prevailing authority 5 , the Court ruled that B.L. is a "notice" father rather than a "consent" father, that he is entitled to — and had in fact received - notice of these proceedings, and that, while the law does not permit him to be added as a party to the proceedings, he is entitled to present evidence and testify. Attorney McGuire concurred that the law allows B.L. to present evidence and testify but not to be added as a party. However, after conferring with B.L., Attorney McGuire stated that B.L. did not wish to testify. The Court informed B.L. and Attorney McGuire that they were welcome to remain in the courtroom and watch the rest of the proceedings. They did so, along with the Petitioner's two daughters, who were again present with no other caregivers. Neither B.L. nor his attorney requested additional time to prepare, nor did they seek an adjournment of the proceedings. B.L. was given every opportunity to testify at the July hearing, and, after consultation with his attorney, he declined.
The Court searched the statewide registry of orders of protection, the Sex Offender Registry, and the Family Court's child protective records, and notified the parties and the attorneys of the results of these searches.
FINDINGS OF FACT
The Court found Respondent B.P., Respondent M.P., A.S., R.P., and Daniel Stevens to be fully credible. B.P. and M.P. are fit, capable, committed, and loving parents who have provided and will continue to provide E. with an extraordinary life filled with love, familial stability and support, financial security, educational opportunity, and cultural enrichment. They not only meet but exceed every measure of parental fitness, and they are true pillars of their community.
The Court did not find the Petitioner or B.L. to be credible in key areas of their testimony including the stability of their relationship, the existence of domestic violence within their home, the strength of their external support network, the steadiness of their housing, and the security of their finances. The Court found both the Petitioner and B.L. to be lacking in maturity and judgment, each having an inappropriate outburst during the July hearing.6 In their present circumstances, they cannot provide E. with a life comparable to that which B.P. and M.P. are providing him.
The Petitioner and B.L., both residents of New York City, met in July of 2020. They were in a relationship for five months until they broke up in December of 2020. B.L. was abusive to the Petitioner during the relationship. In January of 2021, the Petitioner discovered she was pregnant by B.L. She was 24 years old and already had two young daughters by a different father. She did not tell B.L. about the pregnancy, and she kept it a secret from him for her entire pregnancy, underscoring the severity of the abuse she had endured at his hands. By all accounts, there was no contact or communication between the two of them from December of 2020 until September of 2021. The Petitioner did not obtain any prenatal care until the final weeks of her pregnancy. (Respondent's Exhibit M).7
On August 17, 2021, the Petitioner sought out and contacted Family Connections, Inc., a private adoption agency continuously authorized by the Office of Children and Family Services since 1994 to place children for adoption. In response to the Petitioner's inquiry, Anita Stevens, the founder and former executive director of Family Connections, Inc.8 , called the Petitioner and conducted an intake interview. (Respondent's Exhibit M). The Petitioner told Ms. Stevens that the child's father had been abusive to her. (Respondent's Exhibit M). Following the intake interview, Family Connections, Inc., sent the Petitioner four profile books of prospective adoptive parents via overnight delivery. These couples had already undergone their own evaluation and approval process with Family Connections, Inc. From among the four profile books, the Petitioner selected Respondents B.P. and M.P. to adopt her baby. B.P. and M.P. were overjoyed.
Soon thereafter, the Petitioner participated in a Zoom call with B.P. and M.P. B.P. and M.P. told the Petitioner all about their family (including daughter R., 11 months E.'s senior, and also adopted through Family Connections, Inc.), their home, and their marriage. The Petitioner shared with B.P. and M.P. her situation and stated multiple times that she was "not physically, emotionally, mentally, spiritually, or financially prepared to care for a third child." The Petitioner told B.P. and M.P. that B.L. had been abusive to her and was "not a good person." She told them that she found out about the pregnancy after she and B.L. broke up and that she didn't tell B.L. about the pregnancy because she didn't want to get drawn back into that situation. B.P. and M.P. offered calls and in-person visitation as part of a potential post-adoption contact agreement, however the Petitioner insisted she only wanted to meet the child once when he was 13 years old to explain her decision to him.
As part of the adoption process, Family Connections, Inc., introduced the Petitioner to Laurie Goldheim, an experienced adoption attorney and past president of the American Academy of Adoption Attorneys. Attorney Goldheim represented the Petitioner in the adoption, free of charge to the Petitioner.
Several days later, the Petitioner notified B.P., M.P., and Family Connections, Inc., that she was in labor. A.S. temporarily closed his chiropractic practice in Pennsylvania so that he could care for his granddaughter R. while his son and son-in-law travelled to New York City for E.'s birth. Anita Stevens, Daniel Stevens, and Attorney Goldheim also headed to the hospital in New York City. The Petitioner arrived at the hospital with her two young daughters, leaving them unattended in the waiting room as she had no one to care for them while she gave birth. E. was born on August XX, 2021.
The Petitioner allowed B.P. and M.P. to enter her hospital room and hold E. that same day. B.P. and M.P. immediately loved E. as their own. B.P. and M.P. gifted the Petitioner a digital photo frame to which they uploaded — and continue to upload — photographs of E. as he grows. On the same date she gave birth, the Petitioner notified the hospital staff that she wanted to leave the hospital that same day - against medical advice - because she had no one to care for her daughters. The Petitioner executed the extrajudicial surrender that same day with Attorney Goldheim and Anita Stevens present, and she left the hospital. (July Hearing Respondents' Exhibit P). E. was discharged from the hospital on August 27, 2021.
On August 25, 2021, the Petitioner texted B.P. and M.P., "I'm so happy he has you both in his life." (January Hearing Respondents' Exhibit A). On August 27, 2021, when B.P. and M.P. notified the Petitioner that she did not have to return to the hospital to sign additional paperwork, she responded, "Yes omg I'm so happy!!! Thank you for everything." (January Hearing Respondents' Exhibit A). On the same date, the Petitioner notified Family Connections, Inc., "Omg thank you to much I'm happy they can take him home now." (Respondent's Exhibit M). The Petitioner was confident in her decision to allow B.P. and M.P. to adopt E until she decided to reach out to B.L. in early September of 2021. After informing B.L. that she had given birth to his son and that she had put the baby up for adoption, the Petitioner suddenly notified Family Connections, Inc., that she had changed her mind about the adoption. This was formalized through the Petitioner's attorney with a letter dated September 5, 2021, stating that the Petitioner was revoking the surrender. (Respondents' Exhibit M).
The Petitioner testified at the January hearing that at the time she executed the surrender, she was impaired by hospital medications. She admitted, however, that she had not in fact been given narcotic drugs as she previously averred in an affidavit. (Order to Show Cause filed November 19, 2021). She also acknowledged that her medical records from the birth described her as "not sedated," "aware," and "comfortable," however she denied the truth of those descriptions by stating, "I was not." (January Hearing Respondents' Exhibits N & O). Finally, she testified that she left the hospital early not because she did not have childcare for her daughters but because she "felt way too overwhelmed to be around" E. after he was born. This was the extent of her testimony about her state of mind around the time she executed the surrender.
The Court found the Petitioner's testimony on this issue to be vague, rushed, and unconvincing. It is apparent to this Court that the Petitioner's judgment was not compromised when she made the decision to surrender E., that she was secure in her decision both well before and well after she made it, and that it is in fact B.L. who is the driving force behind the revocation.
B.P. and M.P. have a stable family unit. They met one another while both attending Penn State University. They have been in a relationship since August of 2013 and married since January of 2017 with no separations. Their tremendous amount of love and respect for one another was apparent to this Court. They have been living as a family of four since they brought E. home from the hospital on August 27, 2021. E. is strongly bonded not only to B.P. and M.P. but also to R. with whom he shares a close sibling relationship. They spend every day together as they are cared for together at home by a nanny (who is a former Montessori teacher) during work hours. E. and R. are the "best of friends." E. has been thriving in the care of B.P. and M.P. for the past 11 months. B.P. and M.P. are both in good physical health.
The Petitioner and B.L. are not married to one another. After a five-month relationship, they were separated and did not communicate for nine months. Although they reconciled when the Petitioner informed B.L. of the baby, it has not even been one full year since that time. They have not proven their longevity as a couple. Further, the Court finds that B.L. so severely abused the Petitioner during their relationship that she kept her pregnancy a secret from him the entire time.
B.P. and M.P. have a strong network of extended family members who love and help care for E., including all four of their parents, two step-parents, four siblings, and many aunts and uncles. While none of these relatives live in Ithaca, B.P. and M.P. regularly visit with them, both in-person and via telephone and video chat. On very short notice, A.S. closed his practice to care for R. so that B.P. and M.P. could attend E.'s birth and bring him home. Both A.S. and R.P. travelled to Ithaca to testify at the July hearing, and both testified that they love E. as their own grandson.
While the Petitioner and B.L. also testified about an extended family network, none of these family members appeared at the July hearing to give testimony and demonstrate their support. Both of the Petitioner's parents passed away when she was a child.9 The Petitioner was forced to bring her young daughters to the hospital and leave them unattended in the waiting room while she gave birth to E. because she had no one to care for them. She also brought her daughters to Ithaca for the July hearing with no caregivers present except for B.L. Finally, the Petitioner admitted that in her final stages of pregnancy with E., she lived with her daughters in a homeless shelter, again demonstrating a lack of extended family support.
B.P. and M.P. are financially secure and are more than capable of meeting E.'s needs. They are both highly educated and have successful and lucrative careers. M.P. has a Ph.D. in Physics and is employed as a senior data scientist at a healthcare data company, earning approximately $175,000 per year. (July Hearing Respondents' Exhibits G and H). B.P. has a Masters in Health Science and is currently employed as a physician assistant at a pediatric practice, earning $90,000 per year. (July Hearing Respondents' Exhibits G and H). In October, he will leave that position to become an Assistant Professor at the Ithaca College Physician Assistant Program, earning $105,000 per year, for a combined household income of $285,000. (July Hearing Respondents' Exhibit K). They have a combined balance of approximately $60,000 in their checking and savings accounts. (July Hearing Respondents' Exhibits B and C). They have a combined balance of approximately $90,000 in their retirement accounts. (July Hearing Respondents' Exhibits D, E, and F). They each carry a $1 million life insurance policy on the other. (January Hearing Respondents' Exhibit J). M.P. carries medical and dental insurance through his job which covers E. (January Hearing Respondents' Exhibit K). The only debt the couple carries is B.P.'s student loans from graduate school. B.P. and M.P. own a five-bedroom home in which E. has his own beautifully decorated nursery. (January Hearing Respondents' Exhibit D & July Hearing Respondents' Exhibit A). They own two vehicles.
By contrast, the Petitioner and B.L. are not financially secure. During her intake interview with Family Connections, Inc., the Petitioner stated that she was unemployed and that it was her goal to get a job. (Respondents' Exhibit M). At the January hearing, the Petitioner testified that she had recently taken up doll-making and that she worked while her daughters were napping or watching television.10 She also testified at the January hearing that she had $5,000 in savings. This testimony was unsupported by any documentary evidence. At the January hearing, B.L. testified that he worked at a bagel shop and that he also had a "seasonal" flea market business. No testimony or documentary evidence was provided regarding B.L.'s income.
Then, at the July hearing, the Petitioner testified that she was currently employed as a licensed artist, teaching youth classes and earning $5,000 per month. Shockingly, the Petitioner claimed that she did not have to file tax returns because she is self-employed. She also testified that B.L. used to work at a bagel shop but that he "now owns his own flea market," earning "$10,000 to $15,000 per month." Upon further questioning, she testified that B.L.'s flea market business was "very new" and that his mother passed it on to him "a month ago." The Petitioner's testimony about her income and B.L.'s income was unsupported by any documentary proof. Indeed, the Petitioner was precluded from offering any documentary evidence as a result of her own willful failure to comply with discovery. The Court found this unsupported testimony that the Petitioner and B.L. were suddenly earning a combined annual income exceeding $200,000 to be wholly devoid of credibility.
Furthermore, B.L. has a criminal record. He testified that he was convicted of burglary in 2019. His original sentence involved some sort of "program," of which he "accidentally missed some days." He was ultimately re-sentenced to "two city bullets," or two consecutive years of local incarceration. He served 18 months of his sentence and was released early due to the Covid-19 pandemic. This criminal record will impact B.L.'s job opportunities and earning potential.
The Petitioner and B.L. also lack stable housing. The Petitioner has moved around multiple times within the past two years, and she resided in a homeless shelter with her two young daughters while pregnant with E. At the July hearing, the Petitioner testified that she and her daughters were currently living with B.L. in his mother's three-bedroom home in Queens. The Petitioner testified that B.L.'s mother had "left the house" to them and moved back to Ecuador. Given that the current housing is only as stable as the Petitioner's and B.L.'s relationship, the Court has serious concerns about the permanency of this living arrangement. Further, without photographs of the home in evidence, the Court is unable to assess the appropriateness of the housing or compare it to B.P.'s and M.P.'s home.
The Petitioner is of African American and Hispanic descent. She testified that she is Messianic and that she regularly attends church. B.L. is of Ecuadorian and Italian descent. Both gave testimony at the January hearing about their cultural activities and traditions, and this was undoubtedly a strong point in each of their testimony. B.P. and M.P. faced questioning at both hearings about their ability to raise an African American and Hispanic child as two Caucasians living in a predominantly Caucasian community. First, it should be noted that the Petitioner herself selected B.P. and M.P. from among several choices, one of whom was a biracial couple (African American and Caucasian). Regardless, B.P. and M.P. are doing everything possible to address this issue and ensure that E. learns about his various backgrounds and regularly sees others who look like him. B.P. and M.P. have racially and culturally diverse family members from countries including Russia, Germany, Zambia, Mexico, China, Japan, and South Korea. They have several African American and Hispanic friends. They are involved with the Southside Community Center, the heart of the African American community in Ithaca. They switched to an African American pediatrician for E. They read books with diverse characters to E. The volunteer work that B.P. and M.P. have both been doing since long before seeking to adopt E. reveals the genuineness of their desire to help minority communities.
B.P. and M.P. have proven themselves to be responsible and attentive parents. They have obtained all recommended vaccinations for E. and R. including the Covid-19 vaccination. They feed the children a healthy and balanced diet. They enjoy spending quality time as a family with activities including kayaking, hiking, mini golfing, visiting the zoo, reading, art, piano, and playing either indoors or in their backyard. They do not allow young E. and R. to watch television or view other screens.
By contrast, the Petitioner unfortunately failed to demonstrate herself as a responsible and attentive parent during her supervised visitation with E. Her chronic lateness resulted in the loss of many hours of visitation she could have had with E. She failed to adequately supervise her daughters, correct their misbehavior, or tend to their soiled diapers during these visits. On one occasion, she raised her voice to her daughters and berated them. As the visits progressed, the Petitioner began doing less and less care for E., making it necessary for B.P. and M.P. to step in and do his feedings and diaper changes. She was on her phone participating in video chats or scrolling through social media for significant portions of her visits. Despite all of this, if the adoption is allowed to proceed, B.P. and M.P. are still open to allowing contact between the Petitioner and E. because they truly have his best interests at heart. The Attorney for the Child, in a compelling oral closing statement, argued in favor of B.P. and M.P. being permitted to move forward with E.'s adoption.
CONCLUSIONS OF LAW
A surrender document may be voided if it was obtained through duress, coercion, or fraud. Social Services Law § 384(5). "To void a consent based upon duress, it is necessary to find that the natural mother was not able to exercise her free will because of the actions of people around her. (Kazaras v Manufacturers Trust Co., 4 AD2d 227, affd 4 NY2d 930). Coercion would involve actual physical force being used or threatened. Duress and coercion are difficult to prove and emotional stress is not considered duress. (Matter of E.W.C., 89 Misc 2d 64)." Matter of Baby Boy, 175 Misc 2d 7 (Surrogate's Court, Monroe County 1997). "Contemplation of the surrender of one's own child is in many, if not all, cases a cause of emotional and mental stress No statute has said that surrenders are valid only if executed free from emotion, tensions, and pressures caused by the situation. No principle of law requires the rule. A balance of the interests of the persons concerned and of society weighs strongly against it." Matter of Baby Boy L., 144 AD2d 674, 676 (2nd Dept. 1988) quoting from Matter of Surrender of Minor Children, 344 Mass. 230, 181 N.E.2d 836, 839.
In this case, the Court finds that the extrajudicial surrender was properly executed. The agreement was an exercise of the Petitioner's free will. There was no duress, coercion, or fraud. Her consent was knowing, voluntary, and intelligent. She sought out Family Connections, Inc., to make an adoption plan one week prior to giving birth. She was represented and advised by legal counsel throughout the process, and her attorney was at her side when she executed the surrender. The Petitioner acknowledged that she had not been given any narcotic drugs during her delivery. Even assuming she was tired, overwhelmed, and experiencing pain, these conditions do not rise to the requisite level to invalidate the surrender based upon duress, coercion, or fraud. Indeed, the mother in Matter of Baby Boy, supra, had also executed an extrajudicial surrender several hours after her child's birth, and she, too, testified about her distress, fatigue, discomfort, receipt of pain medication, and the pressure she felt to leave the hospital the same day. The Court in that case, while it ultimately invalidated the surrender based upon the technical failure to provide the natural mother with a copy of the consent upon execution, held that those circumstances did not rise to the level of duress or coercion.
Furthermore, Courts have cited to a natural mother's conduct after executing an extrajudicial surrender as manifesting her consent. See Matter of Collin, 92 AD3d 1283, 1284 (4th Dept. 2012); see also Matter of Jarrett, 224 AD2d 1029, 1031 (4th Dept. 1996). Here, as in those cases, the Petitioner's post-surrender conduct manifested her consent to the agreement. She left E. in the care and custody of B.P. and M.P. after she was discharged from the hospital. The same day, she texted them, "I'm so happy he has you both in his life." (January Hearing Respondents' Exhibit A). Two days later, on August 27, 2021, when B.P. and M.P. notified the Petitioner that she did not have to return to the hospital to sign additional paperwork, she responded, "Yes omg I'm so happy!!! Thank you for everything." (January Hearing Respondents' Exhibit A). On the same date, the Petitioner notified Family Connections, Inc., "Omg thank you to much I'm happy they can take him home now." (Respondent's Exhibit M). The Petitioner's multiple written statements to multiple people that she was "happy" with her decision as much as two days later evince her consent to the surrender. For all of the reasons set forth above, the surrender agreement is lawful and valid, and it should not be voided.
If a parent timely revokes a surrender, and the adoptive parents oppose the revocation, a best interests hearing must be held. Social Services Law § 384(5) and (6). Social Services Law § 384(6) provides:
In an action or proceeding to determine the custody of a child not in foster care surrendered for adoption and placed in an adoptive home or to revoke or annul a surrender instrument in the case of such child placed in an adoptive home, the parent or parents who surrendered such child shall have no right to the custody of such child superior to that of the adoptive parents, notwithstanding that the parent or parents who surrendered the child are fit, competent and able to duly maintain, support and educate the child. The custody of such child shall be awarded solely on the basis of the best interests of the child, and there shall be no presumption that such interests will be promoted by any particular custodial disposition.11
Among the factors to be considered at a best interests hearing are the parties' relative "financial status, character, mental and physical health, ability to provide for the child's needs, available support from extended family members, continuity and stability, and capacity to accept the child " Matter of Sarah K., 66 NY2d 223, 233 (NY 1985). The Court in Matter of Sarah K. reiterated that the biological parents are not entitled to "primacy of status over the adoptive parents" as that would be "precisely contrary to the very purposes for which the statute was enacted." Id. at 235. Rather, courts must analyze the relative abilities of the birth parent(s) and adoptive parents to provide for the child and nurture his or her emotional and intellectual development. Matter of Baby Girl XX., 172 AD3d 1476, 1477 (3rd Dept. 2019); Matter of Baby Boy O., 162 AD3d 1586, 1587 (4th Dept. 2018); Matter of Anya W., 156 AD3d 709 (2nd Dept. 2017); Matter of Collin, 92 AD3d 1283, 1284 (4th Dept. 2012).
Further, the Third Department found that the risk of separating a child who was already bonded to her adoptive parents outweighed the potential bond with a biological sibling. George L. v. Commissioner of Fulton County Dept. of Social Services, 194 AD2d 955, 956 (3rd Dept. 1993). The Court held that, "[t]he psychological trauma of removal can be grave enough to threaten the destruction of a child (Matter of Bennett v Jeffreys, 40 NY2d 543, 550)." Id. at 957. It is important for courts to distinguish whether and to what extent a pre-existing relationship exists between biological siblings. See Matter of Willa, Albany County Family Court File No. 42090, 1/17/17 (Maney, J.). (Exhibit 1 of Memorandum of Law in Opposition to Petitioner's Order to Show Cause filed January 24, 2022).
Applying the factors above, there is no question that it is in E.'s best interests to remain with and be adopted by Respondents B.P. and M.P. B.P. and M.P. are a highly intelligent, mature, stable, and loving couple. They have been married for five years and together for ten years. They are both in good physical health. They have a strong network of extended family members who love, help care for, and regularly visit E. Both of their fathers testified at the July hearing to show their support. B.P. and M.P. both have successful careers and will soon be earning a combined household income of $285,000. In addition, they have approximately $60,000 in checking/savings, approximately $90,000 in retirement accounts, reciprocal life insurance policies for $1 million each, and medical and dental insurance which covers E. They own two vehicles and a five-bedroom home which includes a beautifully decorated nursery for E. With this financial security, B.P. and M.P. are more than capable of providing for E. and meeting his every need.
They are both taking steps to ensure that E., who is of African American and Hispanic descent, learns about his cultures and regularly sees others who look like him. The volunteer work that both B.P. and M.P. have done for many years for minority communities underscores their good character. They will surely pass on important values to their children. They have proven to be responsible and attentive parents and have already exposed E. to a wealth of healthy and diverse activities that enrich his life.
By contrast, the Petitioner and B.L. have not yet matured. They have not demonstrated longevity as a couple, and they are not married to one another. Worse, this Court finds that B.L. abused the Petitioner during their initial five-month relationship, and the abuse was so severe that she kept her pregnancy hidden from him for its entire duration. They lack extended family supports. No family members appeared to give testimony at the July hearing. The Petitioner had no one to care for her daughters while she gave birth to E., and she had no one other than B.L. to care for her daughters during the July hearing. Her lack of extended family support forced her to live in a homeless shelter with her daughters while pregnant with E.
The Petitioner and B.L. are not financially secure. The Petitioner has a history of unemployment. B.L. has a felony conviction for which he was incarcerated. At the July hearing, the Petitioner gave incredible testimony about a sudden combined income exceeding $200,000 which was unsupported by any proof. They lack stable housing. The Petitioner has moved numerous times in the past two years. In short, an application of the factors listed above makes it clear that the Petitioner, with or without B.L., simply cannot provide E. with a life comparable to that which B.P. and M.P. are already providing him.
Furthermore, E. has already bonded strongly with B.P. and M.P. and their daughter R. who is only 11 months his senior. This is the only family E. knows, and he has lived with them - and thrived with them - for his entire 11 months of life. B.P. and M.P. gave testimony about E.'s close sibling relationship with R. They spend every day together and are the "best of friends." By contrast, E. does not have a strong relationship with the Petitioner's daughters. He only met them for the first time in February of 2022, his only contact with them has been during the monthly supervised visits, and he has spent far less than a total of 40 hours with them due to the Petitioner's routine tardiness resulting in the loss of many hours of visitation. To pull E. away from B.P., M.P., and R.., the only family he knows, would be psychologically traumatic and would be against his best interests. As such it is hereby
ORDERED that the petition for revocation of consent is DENIED; and it is further
ORDERED that Respondents B.P., M.P., and Family Connections, Inc., are GRANTED legal custody and placement of the child; and it is further
ORDERED that the adoption of the child by Respondents B.P. and M.P. shall proceed expeditiously; and it is further
ORDERED that the Verified Petition for Adoption is hereby TRANSFERRED back to the Tompkins County Surrogate's Court for that purpose; and it is further
ORDERED that this Court's previous interim ordering granting the Petitioner in-person supervised visitation is hereby VACATED; and it is further
ORDERED that the Post-Adoption Contact Agreement originally executed by the parties on August 25, 2021, shall be incorporated into the final adoption per the consent of the Respondents.
Dated: August 3, 2022
Ithaca, New York
Hon. Scott A. Miller
Family Court Judge
1. Both Petitioner and B.L. testified that B.L. was the biological father of the child. However, at the time of the January hearing, paternity had not yet been legally established. In fact, B.L. had not yet filed a petition for paternity.
2. The girls, ages four and three, met E. for the first time during the February 2022 visit, and their only contact with E. has been during the visits in February, March, April, May, and June of 2022.
3. Respondents' Exhibit M was the same for both the January and July hearing.
4. No other caregivers for the children were present.
5. Domestic Relations Law §§ 111 and 111-a; Matter of Catholic Child Care Society of the Diocese of Brooklyn, 112 AD2d 1039 (2nd Dept. 1985); In re Adoption of Aaliah ex rel. E, 10 Misc 3d 640 (Family Court, Bronx County, 2005).
6. While Respondent M.P. was testifying about how poorly the supervised visits had been going, the Petitioner interrupted, "May I be excused? I can't listen to this." At another point in the proceedings while the Court was trying to determine whether anyone needed a break, B.L. announced his needs in crass detail to the entire courtroom.
7. In addition, the Petitioner was diagnosed with at least one untreated sexually transmitted disease while she was admitted to the hospital for the child's birth. (January Hearing Respondents' Exhibits N & O).
8. Anita Stevens is also the mother to Daniel Stevens, the current executive director of Family Connections, Inc.
9. The Petitioner informed Family Connections, Inc., that both of her parents died of AIDS. She stated that her father was a drug user, had contracted HIV, and had in turn infected her mother. (Respondents' Exhibit M)
10. At first, she first testified she worked "four to five" hours per week; later, she testified she worked "40 hours" per week.
11. The language of Social Services Law § 384(6) is substantially similar to the language of Domestic Relations Law § 115-b(6)(v), and Courts have analyzed the two statutes in the same manner.
Scott A. Miller, J.
Response sent, thank you
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Docket No: Docket No. XXXX
Decided: August 03, 2022
Court: Family Court, New York,
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