280 A.D. 147 | N.Y. App. Div. | 1952
The order appealed from was granted in a proceeding taken under section 118 of the Domestic Relations Law. Therein the petitioners-respondents sought and obtained an order abrogating their adoption of appellant as their foster child whom they duly adopted from a child placing agency of the State Charities Aid Association in 1936, when she was about seven years old. The petitioners instituted this proceeding in August, 1951, when she was a nonresident of the State, an adult and married.
The whole matter of establishment of parental relationship by adoption is unknown to our common law and wholly statutory (Carpenter v. Buffalo Gen. Elec. Co., 213 N. Y. 101, 104 et seg.; Matter of MacRae, 189 N. Y. 142; Matter of Thorne, 155 N. Y. 140; Carroll v. Collins, 6 App. Div. 106; Matter of Ziegler, 82 Misc. 346). Accordingly the alteration of the status by abrogating the adoption must have statutory sanction. It relates to a matter of status with which the State has concerned itself in comparatively recent times, and is independent of the law of contract. (Matter of Ziegler, supra.) The first general statute in that connection was chapter 830 of the Laws of 1873. The alteration of one’s status by an abrogation of his adoption by foster parents was first, by general enactment,
It is only as recently as by chapter 606 of the Laws of 1938 (now Domestic Relations Law, § 116) in the case of the abrogation of an adoption by the mutual consent of the parties, that express recognition was given to a situation where the foster child is an adult person, and in which instance the consent of those whose consent was required for the “ original adoption ”, was dispensed with. Moreover, the grounds as specified upon which foster parents may seek an abrogation under section 118, relate to violations of filial duties owing to parenthood which are especially owed during the minority of the child and they must be such as to require the abrogation in the interest of both parents and child. It is manifest that the instance of a competent adult foster child was not contemplated in that enactment. If, however, the literalness of the statute (§ 118) may be said to control then the order should be reversed for the failure of! compliance with its jurisdictional provisions as to notice. If, perchance, the dispensing of those provisions may be inferentially deduced from the statute in the case of a competent adult foster child, even then we do not consider that
The order should be reversed and petition dismissed, with costs.
Beegan and Coon, JJ., concur; Foster, P. J., dissents and votes to affirm; Heffernan, J., dissents and votes to reverse the order under review and to remit the matter to the court below for a rehearing, with instructions to appoint a proper guardian for the protection of the appellant’s interests.
Order reversed, on the law and facts, and petition dismissed, with costs.