PEOPLE TURNER v. HEMBROOKE

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York ex rel. Tina TURNER, Appellant, v. Kathleen HEMBROOKE, Respondent.

Decided: November 24, 2004

Before:  MERCURE, J.P., SPAIN, CARPINELLO, LAHTINEN and KANE, JJ. Friedlander & Friedlander P.C., Ithaca (Betty D. Friedlander of counsel), for appellant. Wiggins & Masson, L.L.P., Ithaca (Robin Abrahamson Masson of counsel), for respondent. Paul A. Sartori, Law Guardian, Elmira.

Appeal from an order of the Family Court of Chemung County (Hayden, J.), entered April 3, 2003, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner and respondent resided together from 1990 to 2000.   In December 1994, petitioner gave birth to a child conceived through artificial insemination.   Thereafter, pursuant to Matter of Jacob [Roseanne M.A.], 86 N.Y.2d 651, 636 N.Y.S.2d 716, 660 N.E.2d 397 [1995], respondent adopted the child in September 1996, “becom[ing] the child's second parent” (id. at 656, 636 N.Y.S.2d 716, 660 N.E.2d 397).   The relationship of petitioner and respondent deteriorated and, following its final disintegration in September 2000, an acrimonious and ongoing custody dispute erupted with frequent resort to legal proceedings.

In March 2002, petitioner discovered a false Social Security card and a false driver's license from the mid-1980s with respondent's picture but the name and age of respondent's older sister.   Petitioner then commenced the current proceeding seeking to abrogate respondent's adoption of the child upon various grounds, including the assertion that respondent had fraudulently concealed her prior use of an alias.   Respondent acknowledged that, when she was 18 years old, she procured the false identification in order to gain admission to and service at establishments serving alcoholic beverages.   She further stated that, at the time of the adoption proceeding, she had forgotten about the false identification from 10 years earlier and, thus, did not indicate that she had ever used an alias.   Following submissions by the parties, review of court records (including the adoption), appointment of a Law Guardian for the child, and appearances by counsel, Family Court denied petitioner's application without a hearing.   Petitioner appeals.

 We affirm.  “To foster stability and permanency in the lives of the children affected by adoption, final orders should not be lightly set aside” (Matter of Kevin G., 227 A.D.2d 622, 622-623, 643 N.Y.S.2d 590 [1996] [citation omitted] ).   While respondent's use of false identification while a teenager and prior to her 21st birthday is not laudable, the failure to disclose such conduct in an adoption proceeding does not constitute the type of fraud that would support the drastic remedy of vacating at this time an adoption that occurred in 1996 (cf. Matter of Alison VV., 211 A.D.2d 988, 989, 621 N.Y.S.2d 739 [1995];  Matter of Michael JJ., 200 A.D.2d 80, 82-83, 613 N.Y.S.2d 715 [1994];  Matter of Baby Girl W. [Kohn-Preiss], 151 A.D.2d 968, 969, 542 N.Y.S.2d 415 [1989], lv. denied 74 N.Y.2d 613, 547 N.Y.S.2d 847, 547 N.E.2d 102 [1989] ).   Since petitioner's allegations failed to raise a factual issue regarding a viable ground to vacate the adoption, dismissal of her application without an evidentiary hearing was appropriate (see Matter of Ashlee II. [Cassandra HH.-Kevin II.], 245 A.D.2d 885, 886, 666 N.Y.S.2d 826 [1997] ).   Petitioner's remaining contentions, including her assertion that she was not fully apprised of her rights at the time of the adoption, have been considered and found meritless.   We note that petitioner did not surrender her parental rights when consenting to the adoption of her child by respondent (see id. at 886, 666 N.Y.S.2d 826).

ORDERED that the order is affirmed, without costs.

LAHTINEN, J.

MERCURE, J.P., SPAIN, CARPINELLO and KANE, JJ., concur.

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