115 Misc. 2d 248 | N.Y.C. Fam. Ct. | 1982
OPINION OF THE COURT
In this consolidated habeas corpus and adoption proceeding, a biological mother petitions to secure the custody of her infant, whom she released at birth to preadoptive parents; they seek to retain his custody and also adopt him. The adoption petition must be denied for failure to meet the statutory requirements for an adoption. Further, this court must under the constraint of appellate precedents grant custody to the mother, because she appears to be “fit” in the respects that this term has been judicially defined.
However, for reasons summarized below (point II), the court finds that the welfare of the two-year-old infant herein will be seriously endangered by a court order for his transfer from the preadoptive couple to the mother. Under this extraordinary circumstance, the customary rule of priority for a parental claim to custody, presents an unprecedented question of a child’s constitutional right to the State’s concern for his welfare (point III below).
The lengthy evidence shows that petitioner mother,
Respondents’ California attorney planned to secure petitioner’s unequivocal written consent to the adoption in an appearance in a California court after the baby’s birth. However, by the time a Judge became available, petitioner changed her mind about appearing and about the adoption.
Interpretation of Statutory Consent Requirement
Respondents argue that the statutory requirement for the biological mother’s consent to her child’s adoption (see Domestic Relations Law, § 111, subd 1, par [c]), is satisfied by her agreements to his placement with respondents for adoption or for adoption planning. These documents should, respondents contend, be construed as the statutorily required consents pursuant to the parol evidence rule, because of petitioner’s intention to consent to the child’s adoption.
Respondents are correct in their factual contention as to petitioner’s underlying purpose. Among the witnesses from California to whom petitioner asserted her adoption decision, the most important was the social worker in the hospital of delivery, who discussed with petitioner her option to keep the baby during the two months before his birth. The worker’s undenied, credible and convincing testimony was that petitioner in all interviews adhered to her adoption decision, and was sad but “firm” about it on the day the baby left the hospital with respondents pursuant to the release she signed on that day. Nor is there any
Parol Evidence Rule
Although the documents on which respondent relies undoubtedly were executed for the purpose of advancing the intended adoption, respondent’s argument for the application of the parol evidence rule must be rejected. Under that rule, proof of intention is only “admissible to explain ambiguities” in an instrument. (67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d 245, 249; see, also, Laba v Carey, 29 NY2d 302, 308; Nichols v Nichols, 306 NY 490,496.) There is no ambiguity however, with respect to the omission from petitioner’s signed agreements of a consent to adoption.
Further, although there is no explicit statutory prohibition on use of an oral consent, sections 111, 112,115,115-b, and 116 of the Domestic Relations Law, read together, clearly manifest the Legislature’s intent to authorize adoptions only on written consent.
While an adoption can be effected without the consent of a parent who has abandoned a child, respondents have been unable to show an abandonment by petitioner within the meaning of section 111 (subd 2, par [a]; subd 6, par [b]) of the Domestic Relations Law as those provisions have been construed in Corey L v Martin L (45 NY2d 383). Since adoption is “purely a statutory matter”, the legislative requirements must be scrupulously enforced. (See Matter of Malpica-Orsini, 36 NY2d 568, 570, app dsmd 423 US 1042.) Because neither a consent nor an abandonment has been established in accordance with statutory criteria, respondents’ petition for adoption must be denied.
II. CUSTODY OF CHILD
Respondents argue that they should retain custody of the child — an issue controlled by common law and constitutional principles rather than statute, even if adoption is denied. There are obvious disadvantages to the child in the
The evidence clearly and convincingly establishes the following custodial facts. Respondents, a childless married couple in their 30’s with a stable, harmonious, child-centered household (he an architect, she a free-lance textbook editor; like petitioner Catholic and identified with their parish church), unquestionably are highly desirable custodians for the child. Under their beneficent love and commitment to his welfare, his development has been optimal. According to reliable and convincing expert testimony, disruption of the infant’s secure attachment (“bonding”) to respondents would undoubtedly cause him short-term distress and might result in serious and permanent emotional, psychological and intellectual damage; the gravity of his injury would largely depend on the circumstances of his new life with petitioner. The evidence shows that those circumstances are uncertain, unstable, and in all probability bleak and injurious.
Petitioner’s Lack of Any Stable Custodial Plan
Petitioner has for some years taken care of children as a domestic worker, and she is well regarded in that position. However, the evidence establishes that she has no stable plan for the child. She therefore lacks an essential qualification for a grant of custody. (See People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185, 195; People ex rel. Anonymous v New York Foundling Hosp., 17 AD2d 122, 126.)
After petitioner’s persistent testimony that she intended, if she secured the child’s custody, to take him forthwith to El Salvador, she suddenly switched to a plan to take him to California where the sister of the baby’s
Despite sympathy for the petitioner’s desire for the child’s custody and for her economic handicaps, the conclusion is inescapable: To grant custody to petitioner means that the child will go from a stable, devoted two-parent home, to unsettled, precarious care, and to a very real possibility of involuntary but actionable parental neglect as well as a childhood in the foster homes of strangers. These detrimental circumstances would, judging from the expert testimony discussed above, intensify and solidify the child’s injury from the severance of his bonding to respondents.
III. RIGHTS OF THE CHILD
In Dickson v Lascaris (53 NY2d 204, 208), the Court of Appeals recently held that a parent is only “ ‘disqualified by gross misconduct’” from gaining custody of a child. (See, also, Matter of Leon RR., 48 NY2d 117, 124.) Under the constraint of the Dickson ruling and the restraint expected of a lower court, this court must award custody to
A premise in Dickson was that “both interests [those of parent and child] * * * ordinarily converge” (53 NY2d, at p 208). However, as the Supreme Court said with reference to the presumption that “parents * * * act in the best interests of their children * * * As with so many other legal presumptions * * * reality may rebut what the law accepts as a starting point.” (Parham v J.R., 442 US 584, 602.) In the instant case the danger to the child’s welfare from a transfer of custody to his mother, is so unmistakable that their interests cannot be reconciled on the basis of a presumed convergence.
Because of the usual unity of interest between parent and child, there have only been a few occasions for judicial consideration of a constitutional conflict between the parental right to custody or control and the child’s welfare. In Matter of Bennett v Jeffreys (40 NY2d 543, 546) — an instance of such consideration — the court pointed out that the constitutional rights of children, established in a series of cases concerning government action,
Accordingly, it seems clear that a child’s liberty interests under the due process guarantee include his interests in State-ordered movement of his person and transfer of control over him from one custodian to another. And it would seem that those liberty interests must prevail over parental rights in a case like the instant one where 4he child’s welfare would be seriously endangered by a grant of custody to the mother.
It is true that in Smith v Organization of Foster Families (431 US 816, 840-841), the Supreme Court reversed the lower court’s conclusion that a child’s liberty interest was involved in the State’s termination of his relationship with his foster parents. However, that case is clearly distinguishable from the instant one in that the Supreme Court grounded its opinion largely on the fact that the relationship was established and limited by the State’s contract with the foster parent for temporary foster care. State action in the instant case would instead impact by severing, to the child’s damage, a relationship privately initiated by the child’s parent.
Judicial authority to subordinate the parent’s interest to the child’s interest must of course be narrowly channeled (see Dickson v Lascaris, 53 NY2d 204,209). However, there is nothing vague or subjective about petitioner’s unstable and precarious circumstances, and about the clear, convincing and definitive proof of her inability to assume
. Reference to the parties herein will be made in terms of their positions in the custody case.
. Petitioner’s change of mind cannot be attributed to the military situation in El Salvador since she testified in connection with her plan to take the child there that they would live in an area where there was warfare.
. As against the public schools, which have been viewed as quasi-parental as well as governmental agencies, the child’s liberty interests are also well established. (See Ingraham v Wright, 430 US 651, 662; Goss v Lopez, 419 US 565, 594 [Powell, J., dissenting]; Tinker v Des Moines School Dist, 393 US 503, 524 [Black, J., dissenting]; Ginsberg v New York, 390 US 629, 639.)
. Certainly the child’s constitutionally protected interests should be deemed to include a self-interest in his welfare. (Cf. Bellotti v Baird, 443 US 622, 647-648, 655; Quilloin v Walcott, 434 US 246, 253-255.)
. E.g., Lassiter v Department of Social Servs. (452 US 18, 27); Wisconsin v Yoder (406 US 205); Prince v Massachusetts (321 US 158, 165).
Further, petitioner’s right, weighed against the child’s and the State’s interest in his welfare, seems diminished by the fact that her voluntary and deliberate release of him to respondents for adoption initiated his predicament.
. In addition, this interpretation would establish greater coherence between the unfitness doctrine and the principle that a parent must in order to obtain a child’s custody advance a stable and beneficial plan for his care. (See People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 29 NY2d, at p 195; People ex rel. Anonymous v New York Foundling Hosp., 17 AD2d, at p 126.)