| Matter of Summer A. |
| 2008 NY Slip Op 02581 [49 AD3d 722] |
| March 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of Summer A. Ronald C. et al., Appellants; Karen A.et al., Respondents. |
—[*1] Kathleen Phillips, Central Islip, N.Y., for respondent Karen A. Miriam Solon Weintraub, Greenlawn, N.Y., attorney for the child.
In a contested private placement adoption proceeding pursuant to Domestic Relations Law§ 115, in which the birth parents' revocation of their extrajudicial consent to adoption wasopposed by the prospective adoptive parents, the prospective adoptive parents appeal from anorder of the Family Court, Suffolk County (Sweeney, J.), dated November 13, 2007, which, aftera hearing, and upon determining that it was in the best interests of the child to return to the birthparents, confirmed the revocation of the extrajudicial consent to adoption. By decision and orderon motion of this Court dated December 3, 2007 [2007 NY Slip Op 85094(U)], enforcement ofthe order was stayed pending hearing and determination of the appeal.
Ordered that the order is reversed, on the law and the facts, without costs or disbursements,the birth parents' revocation of the extrajudicial consent to adoption is vacated, and the matter isremitted to the Family Court, Suffolk County, for further proceedings on the petition for privateplacement adoption.
The subject of this proceeding is nine-month-old Summer A., who was born on May 21,2007. On the day of her birth, Summer's birth parents, Karen A. and Charles A., executedextrajudicial consents allowing the baby to be adopted by June C. and Ronald C. However, lessthan [*2]one month later, on June 14, 2007, the birth parentsrevoked their consent to the adoption, and the prospective adoptive parents contested therevocation. Accordingly, the Family Court conducted a hearing pursuant to Domestic RelationsLaw § 115-b to determine whether it would be in Summer's best interests to remain withthe prospective adoptive parents, or return to her birth parents.
The testimony presented at the hearing reveals that the birth mother, Karen A. (hereinafterKaren), is the mother of nine children, including Summer. She has been married to Summer'sfather, Charles A. (hereinafter Charles), for one year. Charles is also the father of Karen's eighthchild, a two-year-old boy. In addition, Charles has three older children from prior relationshipswith three different women. At some point in the late 1990s, when Karen was pregnant with hersixth child, four of her older children were removed from her care, based upon charges that hertwin daughters had been sexually abused by her second husband Christopher S. and that she hadfailed to protect them from abuse. The twins also were alleged to have been sexually abused bytheir biological father Harry D. Karen subsequently surrendered custody of the twins. The twoother children who had been removed from her custody were returned to her in 2000 or 2001,after she complied with requirements that she attend therapy and parenting classes.
Karen was acquainted with the prospective adoptive mother June C. (hereinafter June)because June was a charge nurse at the nursing home where Karen has worked as a nurse's aidefor approximately seven years. It is undisputed that Karen approached June about the possibilityof adopting Summer because she was aware that June could not have children, and that after Junediscussed the matter with her husband Ronald C. (hereinafter Ronald), June told Karen that theywished to adopt her baby. Karen explained that she decided to place Summer for adoptionbecause she was feeling overwhelmed by the fact that she was working and studying to become amedical assistant, and was concerned about the financial strain on her family. June continues towork three to four days per week at the nursing home where she and Karen met, and whereRonald is employed as a union carpenter. June and Ronald own their own home, and Summerhas her own room. During the course of the hearing, the prospective adoptive parents admittedthat Ronald had used cocaine during the summer of 2006, but maintained that he had stopped hisdrug use after voluntarily entering an outpatient treatment program, which he attended forapproximately six weeks. The couple did not disclose Ronald's drug use on the application theysubmitted to become certified as adoptive parents.
The Family Court concluded that Summer's best interests would be served by returning her toher birth parents. In reaching its determination, the court emphasized that there was no evidencethat Karen was currently unfit, and that both she and June appeared to be loving, capablemothers. The court also expressed concern that Ronald had not been candid about the extent ofhis past drug use, and found that he did not disclose his drug use on the certification applicationbecause he knew he would face difficulties in becoming certified if he did so. In addition, thecourt noted that if Summer were returned to her birth parents, she would have the benefit ofbeing raised with her siblings.
The Family Court thus confirmed the revocation of the extrajudicial consent. The prospectiveadoptive parents appeal and we reverse.
Domestic Relations Law § 115-b, which governs extrajudicial consents to privateplacement adoptions,[*3]"was enacted in 1972 to reform statutoryand decisional law, perceived as unfair to adoptive parents and unsettling to adoptions generally,which permitted biological parents to revoke consent at any time before the final order ofadoption and recognized their primacy of status. An effort was made by this reform to introducecertainty and finality by limiting a parent's right to revoke consent, with the stated intention ofbalancing the rights of surrendering parents, adoptive parents and children" (Matter of SarahK, 66 NY2d 223, 233-234 [1985], cert denied sub nom. Kosher v Stamatis, 475 US1108 [1986] [citations omitted]). Pursuant to the statute, a birth parent may revoke anextrajudicial consent to adoption within 45 days of its execution (see Domestic RelationsLaw § 115-b [3]). If the prospective adoptive parents oppose revocation, the court mustconduct a hearing to determine whether the best interests of the child will be served by returningcustody of the child to the birth parents, by adoption of the child by the prospective adoptiveparents, or by an alternative disposition (see Domestic Relations Law § 115-b [3][b]; [6] [d] [ii]). Critically, at such a hearing, "the parent or parents who consented to suchadoption shall have no right to the custody of the child superior to that of the adoptive parents,notwithstanding that the parent or parents who consented to the adoption are fit, competent andable to duly maintain, support and educate the child. The custody of such child shall be awardedsolely on the basis of the best interests of the child, and there shall be no presumption that suchinterest will be promoted by any particular custodial disposition" (Domestic Relations Law§ 115-b [6] [d] [v]).
The primary factors to be considered in determining what custodial disposition will be in achild's best interests include the ability to provide for the child's emotional and intellectualdevelopment, the quality of the home environment, and the parental guidance provided (seeEschbach v Eschbach, 56 NY2d 167, 172 [1982]; Matter of Baby Boy M., 269 AD2d450 [2000]; Matter of Baby Boy P., 244 AD2d 491 [1997]; Matter of Baby BoyL., 206 AD2d 470, 471 [1994]). In addition, other relevant considerations include theoriginal placement of the child, the length of that placement, the financial status and ability of theparents to provide for the child, and the relative fitness of the prospective adoptive parents andthe birth parents (see Eschbach v Eschbach, 56 NY2d at 172; Miller v Pipia, 297AD2d 362 [2002]; Matter of Baby Boy M., 269 AD2d 450 [2000]; Matter of BabyBoy P., 244 AD2d 491 [1997]; Matter of Baby Boy L., 206 AD2d 470 [1994]). As ageneral rule, the determination of the Family Court in custody matters is entitled to great respecton appeal because it is in the best position to evaluate the credibility of witnesses, as well as thecharacter and sincerity of the parties (see Matter of Louise E. S. v W. Stephen S., 64NY2d 946 [1985]; Matter of Olson vOlson, 8 AD3d 285 [2004]). However, the authority of an appellate court is as broad asthat of the Family Court (see Matter of Louise E. S. v W. Stephen S., 64 NY2d at 947),and "[a]n appellate court would be seriously remiss if, simply in deference to the findings of aTrial Judge, it allowed a custody determination to stand where it lack[ed] a sound and substantialbasis in the record" (Matter of Gloria S. v Richard B., 80 AD2d 72, 76 [1981]; see Matter of Rodriguez v Guerra, 28AD3d 775 [2006]; Matter ofGrisanti v Grisanti, 4 AD3d 471 [2004]; Matter of Gabriela, 283 AD2d 983[2001]).
Upon balancing the relevant factors in this case, we find that the Family Court'sdetermination that it would be in Summer's best interests to return to her birth parents is notsupported by a sound and substantial basis. Significantly, in reaching its determination, theFamily Court failed to give appropriate weight to the past actions of the birth parents, which castdoubt on their ability to maintain stable long-term relationships, and to protect Summer andprovide her with proper parental guidance. Karen's testimony reveals that she was married twicebefore, and that her seven older children were fathered by three different men. Charles was alsopreviously married, and [*4]fathered his three older children withthree different women. Moreover, at the time of the hearing, Karen and Charles had been marriedfor only one year, making it difficult to predict whether their relationship will succeed in the longterm. In contrast, June and Ronald had been married for eight years at the time of the hearing,and it is the first marriage for both of them.
Even more troubling is Karen's past failure to protect her children from abuse, and theserious lapse of judgment which led her to remain in a relationship with one of the men who hadabused her children for at least two years after that abuse was revealed. As Karen acknowledgedat the hearing, a child protective proceeding was commenced against her based upon her failureto protect her twin daughters from being sexually abused by her second husband Christopher S.Despite the fact that the twins and two of her other children were removed from her care, Karenremained with her second husband through the birth of her sixth child, and had another childwith him two years later. When questioned about her past failure to protect the twins, Karen wasless than forthcoming. Most notably, after she admitted that the twins' birth father, Harry D., hadalso been accused of sexually abusing them, and was asked whether two of the fathers of herchildren had abused the children, she answered, "that's what it seems to be." Moreover, whenquestioned about whether Harry D. had broken one of the twin's arms when she was a toddler,Karen responded "[n]o, I don't know about that. [The twin's] arm was broken, but I don't recallthat her father broke her arm." While there is no evidence in this record that Harry D. did in factbreak the twin's arm, Karen's response indicating that she simply knew nothing about it andapparently did not recall how the child's arm was broken, is disturbing. Furthermore, Karenoffered no explanation for her decision to voluntarily relinquish her parental rights to the twins.
The fact that the children presently in Karen's care appear to be doing well does not renderher past lapses irrelevant in considering her relative fitness as a mother. We also note that Karenmore recently displayed poor judgment by failing to tell her older children that she was pregnantwith Summer, and taking no steps to emotionally prepare them for her decision to place the babyfor adoption. Karen also admittedly smoked throughout her pregnancy, despite the well-knownhealth risks which smoking poses to infants.
We further note that, in evaluating the quality of the parental guidance that Charles mightprovide, the Family Court did not take into account his admission that he does not have a closeparental relationship with his three older children. Charles acknowledged that his 15-year-old sonwas adopted when the boy's mother remarried, and that he had not seen his son since he was ababy. Moreover, Charles had not seen either of his older daughters for approximately two years,despite the fact that one of his daughters lives nearby. Charles also admitted that he had recentlyfallen behind in the child support payments he was required to make on behalf of his 18-year-olddaughter, and that his continuing support obligation to her places additional economic pressureon the birth parents. In contrast, while the prospective adoptive parents are not wealthy, they arein a far better financial position to provide for Summer than are the birth parents. In addition,while Charles admitted drinking heavily at one point in his life, there is no indication that he everreceived treatment for his alcohol use, which allegedly stopped completely at the time he metKaren.
Although we share the Family Court's concern over Ronald's recent history of cocaine use,and the poor judgment that the prospective adoptive parents exercised in concealing his drug useon their certification application, we are not convinced that these circumstances render them lessfit to care for Summer than the birth parents. There is no evidence that Ronald's drug problemwas long term or continuing, and he voluntarily sought out and obtained treatment to address it.Furthermore, [*5]Ronald testified convincingly regarding thebond he already shares with Summer, describing how he returns home from work each day toplay with her and assist in child care. In addition, June has unquestionably been a loving motherto Summer in the months that the baby has been in her care. We are also mindful of the fact thatthe adoption would separate Summer from her siblings, but note that while Summer has alreadybonded to the prospective adoptive parents, she does not have an existing relationship with hersiblings that adoption would terminate.
In sum, the record demonstrates that Karen and Charles made the difficult decision to placeSummer for adoption because they were concerned about their ability to provide for anotherchild, and Karen was feeling overwhelmed by the pressures of working and going to school whilecaring for her large family. However, having voluntarily made that difficult decision, they are notentitled to a preference in determining Summer's best interests merely because of their status asbirth parents. While the decision in this case is a difficult one to make, we conclude that evidencepresented at the hearing demonstrates that it would be in Summer's best interests to remain in theloving care of the prospective adoptive parents, who are better able to provide her with stabilityand parental guidance. Mastro, J.P., Covello, Eng and Belen, JJ., concur.