In re the Adoption of Abel
931 N.Y.S.2d 829
N.Y.C. Fam. Ct.2011Background
- Abel, born Aug 9, 2004, has resided with Cheryl and Derrick Adamson since 2004 after a neglect petition against his biological mother.
- An adoption home study by New York Foundling reported Abel as healthy and well-adjusted, living with the Adamsons and their biological son Seth.
- The Adamsons, married 13+ years, both employed, provide stable financial and emotional support; Abel is bonded to them as parental figures.
- The State and agency considered Mr. Adamson’s 1992 robbery conviction a potential automatic disqualifier under Social Services Law § 378-a, given revisions in 2008.
- A 2009 safety assessment by NY Foundling concluded the Adamsons’ home is safe and that Abel should be adopted by them.
- The court obtained Mr. Adamson’s plea transcripts and an affidavit admitting the 1992 robbery conduct; he expressed remorse and rehabilitation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 378-a (2) (e) (1) (A) automatically disqualify Adamson due to the robbery conviction? | Adamson barred by automatic disqualification. | Robbery may fall within “crime involving violence” and thus automatic disqualification; but may be discretionary. | Robbery third degree falls within automatic disqualification as a crime involving violence. |
| Is the disqualification under 378-a (2) (e) (1) (A) or (h) constitutionally applied, given Abel’s best interests and due process? | Automatic disqualification warrants removal despite best interests. | Due process and individualized determination required; removal would harm Abel. | Due process requires individualized best-interest determination; automatic removal is not mandated in this context. |
| Can the court consider rehabilitative evidence and totality of circumstances to approve the adoption? | Totality of circumstances supports adoption by Adamsons. | Disqualifying conviction undermines eligibility regardless of rehabilitation. | Court may grant based on totality of circumstances; adoption approved. |
| Does the 2008 amendment and OCFS list control the outcome over the court’s discretionary assessment? | OCFS list governs automatic disqualification. | Court is not bound by OCFS’s interpretation; may exercise discretion. | Court rejects OCFS’s narrow interpretation; retains discretion to approve adoption. |
| Is assault (a misdemeanor and older than five years) within the discretionary category to approve adoption? | Assault would not automatically disqualify; may be discretionary. | Assault can be discretionary but robbery remains disqualifying. | Assault falls within discretionary category; does not bar adoption under discretion. |
Key Cases Cited
- Stanley v. Illinois, 405 U.S. 645 (U.S. 1972) (due process requires individualized determination of fitness to raise a child)
- Vlandis v. Kline, 412 U.S. 441 (U.S. 1973) (irrebuttable presumptions violate due process)
- Christensen v. Harris County, 529 U.S. 576 (U.S. 2000) (agency interpretations are not controlling statutes or regulations)