New York Family Law Blog
A New York Family Lawyer said a petition was filed by a couple to adopt a child born on August 9, 2004. Since September 22, 2004 when the adopted child was discharged from the hospital, on the basis of a petition that had been filed alleging that his biological mother had neglected him, has resided in the home of his maternal cousin, and her husband.
A New York Child Custody Lawyer said the adoption home study prepared by a social worker employed by the foster care agency that has care and custody of the adopted child describes him as a healthy seven-year-old boy with no special needs who is developing age-appropriately, and who is beginning regular second grade classes. The home study also reflects the fact that the adoptive couple has been married for over thirteen years and that they are both employed. Also residing in the home is the couple’s fifteen-year-old biological son. The social worker describes the biological son as healthy, doing well in school, and having a positive and loving relationship with the adopted child. The adoptive parents, their biological son and the adopted child reside in a three bedroom house in Suffolk County, New York.
A Queens Family Lawyer said the couple has been involved in the adopted child’s life since he was a baby. One can see that they love the child very much and that he means the world to them. They were observed by this worker to be very attentive and affectionate toward the adopted child, who lovingly refers to them as mommy and daddy. They share an inseparable bond with the adopted child, and have a good understanding of his needs. They are providing effectively for his physical, emotional, and spiritual needs. They understand and are willing to accept the moral and legal responsibilities of adoption. Their commitment to the child is deep rooted and they have made it clear that he knows that they are there for him. The adopted child feels the same strong sentiments toward this family and although too young to fully comprehend adoption, he is a happy, well-adjusted child for he knows that he is loved and wanted. Based on the overall progress this child has made in the home, it is therefore recommended that the application for adoption submitted by the couple be approved and that the adopted child be adopted by the caring family.
Pursuant to Social Services Law (SSL), which requires prospective foster and adoptive parents to submit their fingerprints to both the State Division of Criminal Justice Services and the Bureau of Investigation, the court is in receipt of a letter dated July 29, 2009 in which the State Office of Children and Family Services reported that the husband had a 1987 conviction for simple assault and a 1992 conviction for Robbery in the Third Degree. The July 29th letter further indicated that foster care agency may consider the convictions in determining whether to certify or approve the husband as a foster parent or to revoke his approval as an adoptive parent and directed the agency to perform a safety assessment of the adopted family’s home.
A Queens Child Custody Lawyer said that pursuant to Social Services Law, the foster care agency conducted a safety assessment of the conditions of the adoptive household. In that safety assessment, with respect to the robbery conviction, the husband stated that he had been hanging out with a group of friends when the group decided to rob a man whom they knew had been making nightly bank deposits of large sums of money. According to him, upon seeing the man get out of his car, he, together with the rest of the group, ran up to the man then pushed him against a wall and told him that it is a stick-up. The husband and his friends then took the man’s bag which contained money, and fled.
Based on the remoteness in time of his criminal convictions and the fact that in the years since the 1992 robbery conviction, the husband has reformed his behavior and has led a productive life, the safety assessment reported that he does not pose a safety concern to their adopted child. The assessment concluded that because he has been the sole father figure in the child’s life, the foster care agency strongly believes that it is in the best interest of the child to be adopted by the couple.
In order to gain further understanding of the facts underlying the father’s 1992 robbery conviction, the court obtained the criminal court complaint and a transcript of his guilty plea. The criminal complaint charged him with one count each of Robbery in the First Degree, Robbery in the Second Degree and Assault in the Second Degree, and alleged that he hit the victim with an unknown blunt object about his head and face and took a bag containing money that the victim had been carrying. The blows allegedly knocked out the victim’s front teeth, caused his nose to bleed, and resulted in his sustaining a separated shoulder. On February 3, 1992, having been promised a sentence of one and one-third to four years imprisonment, he pled guilty to one count of Robbery in the Third Degree and admitted that when the owner of a store came out of the store, he hit him, caused him to fall, took his bag containing money, and fled.
Finally, the court is in receipt of a sworn affidavit from the husband, in which he admits that in 1992 he robbed a storeowner of a bag containing money. In the course of the robbery, he admits to striking the storeowner once on the jaw with his bare fist, causing him to fall to the ground. He denied using a weapon during the robbery and also stated that the storeowner neither appeared to be injured nor lost consciousness during the robbery. He expressed remorse and stated that he accepted responsibility for the incident by pleading guilty and serving two years of imprisonment and two years on parole.
Prior to the 2008 amendment of SSL, the court would have found that the husband’s 1992 robbery conviction did not automatically disqualify him from adopting the child because, quite clearly, denial of the couple’s petition to adopt would have created an unreasonable risk of harm to the child’s mental health and granting said petition would have been in the child’s best interest and would not have placed his safety in jeopardy. However, in 2008, in order to comply with the federal Child Protection Act, the State eliminated the language in SSL which only presumptively disqualified from becoming foster or adoptive parents those who had been convicted of certain felonies, and by doing so made automatic the disqualification of those prospective foster or adoptive parents who had been convicted of certain felonies.
The court, therefore, initially must decide whether the husband’s conviction in 1992 for Robbery in the Third Degree falls within the category of convictions which would automatically disqualify him from adopting the child. SSL 378 reads, in pertinent part, an application for certification or approval of a prospective foster parent or prospective adoptive parent shall be denied where a criminal history record of the prospective foster parent or prospective adoptive parent reveals a conviction for a felony conviction at any time involving child abuse or neglect; spousal abuse; a crime against a child, including child pornography; or a crime involving violence, including rape, sexual assault, or homicide, other than a crime involving physical assault or battery.
Because robbery is not specifically mentioned in the provision, the court, therefore, must decide whether the 1992 robbery conviction constitutes a crime involving violence. When the court construes the text of the statutory provision, and gives effect to the plain meaning of the words crime involving violence, there is little doubt that the husband’s robbery conviction falls within the category of convictions that would ordinarily automatically disqualify him from adopting the child. The criminal complaint, the husband’s plea allocution and admissions establish un-contestedly that he, with a group of other men, forcibly stole property from the victim. Even if the court were to accept his most recent description of the incident, that he did not hit the victim with an object, but that he only hit him with a bare fist in the jaw, this would not alter the court’s conclusion that this crime involved violence. Although he claims that he did not see any injuries to the victim during the robbery, he does not contest the fact that the victim had his teeth knocked out, nose bloodied, and shoulder separated. Under these facts and circumstances, it would be disingenuous, and demeaning to the victim of this crime, for this court to conclude that this crime did not involve violence. Plainly, it did.
Ordinarily, when a prospective adoptive parent has a conviction for a crime that mandates disqualification from becoming an adoptive parent, the foster care agency must remove the foster child from the home of that foster parent. However, it is beyond cavil that the husband has rehabilitated himself and that removal of the child from their home would have a devastating impact upon the child. Under the circumstances of the case, it is clear that to follow the strict mandate of the statute and deny the couple’s petition to adopt the child and to remove the child from the home of his maternal cousin and her husband—the only home he has ever known—based solely upon the 1992 robbery conviction, would deprive both the child and the adoptive family of their due process right to an individualized determination of whether the adoption is in the child’s best interest. That right, to a case-specific determination, was firmly established almost forty years ago when the United States Supreme Court struck down as violative of the Fourteenth Amendment, the irrebuttable statutory presumption that all unmarried fathers are unqualified to raise their children. The Court held that a hearing was required by the due process clause, upon the death of the mother and prior to the removal of the children, to determine whether the father was fit to raise the children. In so ruling, the Court opined that procedure by irrebuttable presumption is always cheaper and easier than individualized determination. But when the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to fast formalities, it needlessly risks running roughshod over the important interests of both parent and child and therefore cannot stand.
The court cannot ignore the present reality of the adoptive family. Therefore, based upon the due process clauses of the Constitution, the court finds that SSL 378, as applied to the facts of the matter, violate the adoptive mother and father’s rights and the child’s right to a determination, based on the totality of the circumstances, as to whether the adoption of the child by the adoptive family is in the child’s best interest. When the court examines the totality of the circumstances presented, including the adoption home study, an addendum to that home study, and the affirmation of the attorney for the child, notwithstanding the husband’s criminal past, it has no doubt that it is in the child’s best interest to be adopted by the family. Accordingly, the court grants the petition to adopt the child.
Giving someone a family to grow up with should not be determined by how that family was but on what they have become. If you want to adopt a child, consult the Suffolk County Family Lawyer or the Suffolk County Child Custody Attorney from Stephen Bilkis and Associates. You can also consult the Suffolk County Guardianship Attorney.