Matter of Alana M.

[*1] Matter of Alana M. 2011 NY Slip Op 52321(U) Decided on December 22, 2011 Family Court, Bronx County Gribetz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 2011
Family Court, Bronx County

In the Matter of Alana M., a child freed for adoption.



A-8869/11



For the Intervenor-movant foster care agency St. Dominic's Home,

Warren and Warren, P.C., by Ira L. Eras, Esq. and Richard Warren, Esq.

For the Adoptive Parent, Norma C.-S., Rosin, Steinhagen Mendel, by Jill Kotner, Esq.

For the Subject Child, Alana M., Jessica M. Brown, Esq.

Sidney Gribetz, J.

The family of the now-15 year old Alana M. has been involved with the child welfare system since 1998, when child abuse proceedings were brought against her parents. As best can be told, her father was never involved in her life thereafter. Her mother died in 2001. After living with different relatives for a time until 2003, the child has been in numerous non-kinship foster homes. Since 2005, the child has been placed in homes with the St. Dominic's Home foster care agency. In May 2007, the child found a measure of stability by living in the foster boarding home of Norma C.-S., where she remains until this day. During these past four years, the "permanency goal" of the child has been adoption by Ms. C.-S, and numerous permanency hearings and other oversight has been conducted by the Courts, both before me, and various Referees, during which the St. Dominic's Home participated.

Nevertheless, it was not until April 2011 that an adoption petition, including a "Statement of Readiness" by the attorney, was filed on behalf of Ms. C.-S, and eventually calendared before me, with a proposed finalization date of June 2, 2011. Because various paperwork was missing, and more important, because the record revealed that there were two outstanding Orders of Guardianship for different relatives, which needed to be addressed before the adoption could be finalized, the adoption could not go forward and was adjourned several times. Throughout this period, my court attorney was in constant contact with the adoptive mother's attorney, offering guidance on the situation and assuring that I would promptly proceed with the adoption and also expeditiously hear and address any ancillary proceedings which might need to be filed. No steps [*2]were taken to address the guardianship issues.

Instead, on September 1, 2011, the foster care agency filed a motion, returnable October 12, 2011, claiming that the agency's interest was expediting permanency for the child, and complaining that this Court was unnecessarily delaying such "permanency". The agency seeks intervenor status, and an order granting the adoption petition notwithstanding the previous guardianship orders.

THE CHILD'S HISTORY AND BACKGROUND

Before addressing the instant motion, it is important to review Alana's history, and the background of the extensive legal proceedings in Bronx Family Court, and elsewhere, involving the child.

Alana M. was born on October 9, 1996 to Marjorie Elaine D [FN1]. It has been alleged anecdotally that Ms. D. abused narcotic drugs during her pregnancy with Alana. When Alana was less than two years old, an Article Ten child abuse petition was filed on behalf of Alana against her parents, before Judge Harold Lynch of this Court, on April 21, 1998 [FN2]. The petition alleged serious acts of physical abuse by the mother against Alana's teen-aged sister Marissa and, inferentially, a derivative claim for Alana; and as to the father, Daniel M., a charge that he was not in a position to care for the children. Alana remained in the care of her mother during the pendency of the case, which was transferred to another Judge of this Court, Robert Torres, who eventually resolved the matter by granting the mother an ACD on July 26, 1999 [FN3].

Alana's mother died in a car accident on June 20, 2001. It appears that Daniel M. was no longer involved in the child's life, and actually no longer even considered her legal father in various agency paperwork [FN4]. On June 28, 2001, Marissa M., Alana's then-19 year old sister, filed a petition for guardianship of Alana in Bronx Family Court. This case was assigned to a Court [*3]Attorney-Referee, Denise Valme-Lundy, and Melinda Oliver, Esq., was assigned as Alana's law guardian. On October 29, 2001, Referee Valme-Lundy granted Marissa M. a Final Order of Guardianship over Alana.

On March 26, 2003, Marissa filed a writ of habeas corpus, on behalf of Alana, against people named Reginal and Marie E. This case was assigned to Court Attorney-Referee Marilyn Zarello. Issue was not joined, and that petition was dismissed by Referee Zarrello on May 30, 2003. Thereafter, on August 11, 2003, Marissa filed a new writ of habeas corpus, against Reginal E., alleging that she "voluntarily sent her sister to live with Resp on a temporary basis for one year. Petr states that she asked for the child to be returned, but Resp refused." The writ was returnable before Judge Marian Shelton of this Court, and on September 2, 2003, Judge Shelton reissued the writ and amended the petition to include Reginal E.'s wife, Marie E. On the October 3, 2003 return date of the writ, Alana was produced in Court, and the Children's Law Center was assigned as Alana's law guardian. Judge Shelton learned that the E.'s had letters of guardianship from an Arkansas Court for Alana [FN5]. After further court proceedings, and apparently based on a finding that the E.'s had harmed the child, on October 24, 2003, Judge Shelton issued a Final Order of Protection on behalf of Alana against Reginal E., expiring on October 23, 2005. Judge Shelton's endorsement indicates that the Children's Law Center would seek to vacate the Arkansas Order of Guardianship. Eventually, on February 6, 2004, Judge Shelton's endorsement indicates that "given child will be moving out of NYS, LG has determined child is receiving services she needs", and no further proceedings were held on this docket.

On May 11, 2004, Alana was living in the Bronx, in her sister's care, when the Administration for Children's Services filed a neglect petition, on behalf of Alana, against her guardian, Marissa M., alleging excessive corporal punishment [FN6]. Jessica Brown, Esq. was assigned as Alana's law guardian. The child was immediately remanded and placed in foster care with ACS. ACS sent her to the contract agency Edwin Gould Services for Children, which put Alana in the non-kinship home of Eulalie J.. In September 2004, Alana began therapy at The Children's Hospital at Montefiore with Dr. Rebecca Edelson. In November 2004, it was reported to the Court that Alana was acting out in the foster home, and a December 2004 Edwin Gould Report from Ailyn Jimenez indicated that Alana was acting out in school as well. A February [*4]2005 Edwin Gould report from Ailyn Jimenez states that Dr. Edelson sees Alana only bi-weekly, and that Dr. Edelson opined that Alana would benefit from more frequent therapy. According to Ms. Jimenez' report, the Agency's mental health department was in the process of locating a mental health center where Alana could receive weekly therapy.

On May 3, 2005, Edwin Gould, by Akeela Ali, conducted a mental health assessment of Alana, which recommended play therapy to "express her feelings and emotions related to the severe physical abuse and to the loss of her mother". It also recommended a psychological and psychiatric evaluation to assess for depression.

At the end of May 2005, Eulalie J., Alana's foster mother, left Alana at the Agency, indicating she could no longer care for Alana, as a result of Marissa M.'s behavior toward Ms. J.. Thereafter, Ms. J. was remorseful for leaving Alana at the Agency and wished to be considered as an adoptive resource.[FN7] However, the Agency no longer found Ms. J. "a suitable parent".[FN8] Alana was placed in the foster home of Ms. K., but she also could not keep the child and returned Alana to the Agency, citing Marissa's influence upon Alana. In June 2005, Alana was placed into the foster home of Ophelia J.. Prior to that, on May 25, 2005, Alana's "godmother", Virginia G., presented herself as a resource for Alana, and filed a guardianship petition. Alana, who was made aware of Ms. G.'s desire to be a resource, wished to reside with her, as set forth by her attorney in Court on June 8, 2005. However, on that date it was also reported to the Court, that Ms. G., in light of Marissa's confrontational behavior, no longer wished to present herself as a resource for Alana. Her guardianship petition was dismissed.

Consequently, Alana remained in the foster home of Ophelia J.. Within a few weeks of the child's transfer to Ophelia J.'s home, Alana's treating psychiatrist, Dr. Edelson left The Children's Hospital at Montefiore. A letter from Dr. Edelson dated June 14, 2005 states that she last saw Alana for a regular appointment on May 10, 2005, and that she was informed that the following appointment was missed due to Alana's removal from her foster home. Dr. Edelson also stated that since no new psychiatrist was to replace her position at Montefiore, Alana would need a referral to a mental health center for continued care. A June 8, 2005 report from Judy McNeely at Edwin Gould indicated that Alana was referred for therapy at St. Christopher on June 21, 2005, and Alana was waiting for an intake appointment. Apparently the Agency had never located a weekly therapeutic provider for Alana, even though their February 2005 report urged the need for these services.

On June 27, 2005, at the fact-finding stage in the child neglect case against Marissa M., the respondent submitted to the jurisdiction of this Court, pursuant to FCA 1051(a), and I made a finding of neglect, based upon excessive corporal punishment. Pending disposition, I ordered that Alana was to be transferred to a new foster care agency, an agency that has therapeutic foster [*5]homes available,[FN9] and that Alana be given a thorough psychiatric evaluation and provided any services recommended by the evaluation. During court proceedings on July 26, 2005, I was informed that Alana was awaiting a transfer to a St. Dominic's therapeutic foster home.

On August 2, 2005, Dr. Oliver Crespo conducted a psychological evaluation, diagnosing Alana with adjustment disorder with depressed mood. On August 5, 2005, Dr. Veronica Rojas conducted a psychiatric evaluation, diagnosing Alana with adjustment disorder with mixed conduct and emotions, r/o oppositional defiant disorder and recommended placement in " a stable environment". Based on these reports and other evidence, I was able to render a final dispositional order on August 31, 2005. Alana was placed with the Commissioner of Social Services for twelve months under the neglect case, and I again formally directed that Alana be placed into a therapeutic foster boarding home. The matter was then sent to Referee Margaret Mulrooney for ongoing intensive monitoring of the child's welfare, and future permanency hearings and any other further proceedings under the Article 10 docket.

On September 8, 2005, Referee Mulrooney signed an Order directing that caseworkers from both Edwin Gould and St. Dominic's Home, as well as their respective counsel, appear in Court if Alana was not placed into a therapeutic home, since there was still no compliance with my Orders in this regard.

A November 11, 2005 report submitted by St. Dominic's supervisor Katrina Schermerhorn to Referee Mulrooney stated that Alana was placed into a therapeutic home on October 17, 2005 but does not specify whose home.[FN10] The next reference in the records was the Permanency Hearing Report [FN11] prepared for the May 23, 2006 court date (the date of preparation was blank), which reported that Alana is residing with one Tiana J., having previously been placed in the home of one Dejon B..[FN12]

At the September 15, 2006 court date before Referee Mulrooney, the Agency case planner, Arlene Conyers, testified that Alana was back on Ritalin and she was receiving in home [*6]play therapy by Heather Christensen as well as behavioral therapy. Ms. Conyers also testified that Alana had no biological parent or other relatives. ( 9/15/06 transcript, page 15). On October 30, 2006, Referee Mulrooney changed Alana's goal from discharge to a relative (i.e., Marissa) to adoption.

In April 2007, Tiana J. informed the agency she could no longer care for Alana, citing lack of "adequate support from St. Dominic's interdisciplinary team". [FN13] On April 26, 2007, Alana was moved to the respite foster home of Aida R.. St. Dominic's caseworker Patrice Casimir reported to Referee Mulrooney in a May 18, 2007 filing, that "Alana's behavior has deteriorated and as a result the agency is exploring the option of a higher level of care". This report also indicated that a maternal aunt, Ronia D.-W., from Tennessee, and an uncle, Reginald E., from Arkansas, have presented a desire to care for the child, and that they are both being explored.[FN14] The child was placed in a new foster home, that of Norma C.-S., in May 2007.[FN15]

The November 5, 2007 Permanency Hearing Report [FN16] indicates that the Agency is working with Ms. C.-S. to determine whether she is ready and willing to adopt Alana. The January 7, 2008 Saint Dominic's report [FN17] by Sajan Mathew, states that Ms. C. has signed the preliminary paperwork for adoption. The May 12, 2008 Permanency Report [FN18] informs us that Ms. C. and Alana "are both ready for the adoption", and the Report sets forth that the anticipated services in the next six months are "completion of all adoption documents...and the forwarding of the application packet to the adoption attorney that the FM chooses".

An updated report (attached as B) dated September 11, 2008, from Valan Caines, caseworker at St. Dominic's, sets forth the following:

This CW would like to inform the Courts that the Adoption Petition for Alana M. has not been filed because of some issues that need to be resolved before the petition goes forward. As stated by the Adoption Department at St. Dominic's Family Service Center the [*7]reasons are:

It was noticed on Alana's birth certificate [sic] that the birth mother was married at the time of her death to a Daniel Martinez....Mr. Martinez has to be notified.

Alana was previously in the custody of her sister Marisssa [sic] M. and her uncle Reginal E.. Both parties have to be notified of the pending adoption. These issues are being addressed at this time."

(Emphasis added)

On January 13, 2009, the Edwin Gould agency filed a petition to terminate the parental rights of Daniel M., the alleged father of Alana. The February 10, 2009 Permanency Hearing Report (held on the Article 10 case), which was ultimately the last report prepared for a permanency hearing on the N docket, again indicates the anticipated services in the next six months as "completion of all adoption documentation...forwarding...to the adoption attorney."

After a fact finding on inquest on September 18, 2009, this Court granted the petition to terminate the parental rights of Daniel M., on the grounds of abandonment, and I signed the formal settled order on that B docket on October 20, 2009, freeing the child for adoption. [FN19] Thereafter, all permanency hearings for Alana were held before the Referees under the B docket. St. Dominic's Home case worker Valan Caines, the author of the September 11, 2008 report referenced above, appeared for these permanency hearings.

In April 2011, Jill Kotner, Esq., Rosin Steinhagen Mendel, filed an Affidavit of Readiness, certifying that the adoption of Alana by her client, Norma C.-S., was ready for review by the Court. The adoption petition was filed on April 21, 2011. The petition, paragraph 13, alleges "no prior or pending proceedings affecting the custody or status of the adoptive child...except for the proceeding that removed the child from the care of her guardian/sister...and the proceedings that terminated the parental rights of the putative father". The adoption petition goes on to allege that no one is entitled to notice of the adoption, and St. Dominic's Verified Schedule alleges that notice of the adoption and consent to the adoption by Marissa M. and/or Reginald E. and Maria E., previous guardians of the adoptive child are unnecessary, pursuant to DRL 111-a and DRL 111. [*8]

Upon my review of the adoption file, I identified the significant legal issue of the outstanding guardianships and the misinformed and inaccurate statement in the verified petition in that regard. Additionally, I discovered that certain important ministerial documents were not included in the filing. I had my court attorney notify Ms. Kotner of these issues, and advise her that I considered that "consent of former guardians or vacatur of guardianship orders", pursuant to DRL 111(f), would be required prior to approval and finalization of the adoption.

In light of the failure of the attorney to adequately respond and address the guardianships nor supply a number of outstanding documents, the adoption was not ready to proceed on June 2, 2011, so this Court adjourned the matter to July 19, 2011. On June 20, 2011, this Court received an Affirmation from Ira Eras, Esq., Warren & Warren, P.C. , Attorneys for St. Dominic's, essentially stating that a guardian's consent is not required for an adoption, that an adoption is in the child's best interests, and "overwhelming evidence in favor of an expedited adoption is even made stronger when considering the fact that the persons who have a prior guardianship award have either abandoned the child by demonstrating no interest in the child for many years and/or have been found to have neglected the subject child."

My court attorney sent a follow up email to Ms. Kotner on June 28, 2011 regarding the need to deal with the outstanding orders of guardianship prior to this court finalizing the adoption. All of the outstanding documentation was not provided in time for the July 19, 2011 adjourn date. Therefore, this Court granted Ms. Kotner a lengthy adjournment, to October 12, 2011, to provide her with sufficient time to resolve the outstanding guardianship orders, as well as to provide the other outstanding documents.

Instead, on September 1, 2011, Warren & Warren, P.C., by Ira Eras, Esq., filed a Notice of Motion, returnable October 12, 2011, seeking the relief that this Court issue an order granting St. Dominic's intervenor status, and if so granted, then granting the adoption petition notwithstanding the existence of the previous guardianship orders. The Agency argues that the "precise reason that St. Dominic's Home seeks to intervene in this matter is to expedite permanency for Alana...." The Agency argues that the Domestic Relations Law requirement of the consent by those who have "lawful custody" does not refer to guardians, and that "mere physical custody without an Order conferring custody is insufficient to create consent' status." The papers go on to assert that "for this court to unnecessarily and incorrectly interpret the statute in any manner that would even run the risk of further delay would inure to the child's detriment". The adoptive mother's attorney, Jill Kotner, Esq., Rosin Steinhagen Mendel, filed an Affirmation in Support of St. Dominic's motion to intervene, stating that "an expedited adoption by the current foster parent would serve the best interests of the child". The child's law guardian, Jessica Brown, Esq., did not submit papers.

On October 12, 2011, Richard Warren, Esq., Warren and Warren, P.C. , on behalf of the Agency, appeared and presented oral argument in support of the motion. Jill Kotner, Esq., attorney for the adoptive mother appeared, in support of the motion. Jessica Brown, Esq., did not appear. Although not authorized in motion practice, subsequent to the return date, Warren & [*9]Warren, P.C., submitted a letter, dated October 18, 2011, directing the Court's attention to DRL §109, to further support their position.

THE LAW OF ADOPTION

"Adoption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect to such other person." (Domestic Relations Law §110). Adoption was unknown at common law and is solely a creation of statute; as such, it has long been held that the "statute governing adoption must be strictly complied with since adoption is a proceeding in derogation of common law". (E.g., People ex rel. Marabottini v. Farr, 186 Misc. 811) The right to adoption of children and strangers to the blood, while known to ancients such as those of Greece and Rome and recognized by different continental nations under the civil law, was unknown to the common law and exists only by statute (Betz v Horr, 276 NY 83, 86-87; Carpenter v Buffalo Gen. Elec. Co., 213 NY 101, 104; Matter of MacRae, 189 NY 142, 143; Matter of Thorne, 155 NY 140, 143). The Legislature has supreme control over the subject ( Carpenter v Buffalo Gen. Elec. Co., supra, p 107; Matter of Cook, 187 NY 253, 260), and article 7 of the Domestic Relations Law defines the persons who may adopt another, prescribes the procedure to be followed and provides that no person shall be adopted except in pursuance thereof (§ 110; see Matter of Cohen, 155 Misc 202, 205).

(In re Adoption of Malpica-Orsini, 36 NY2d 568).

The purposes of adoption include inter alia the creation of a firm legal connection in the new adoptive family; and severance of the enforceable obligations and other ties held by biological parents or others with the child; all in furtherance of achieving stability and finality in the placement of children, to preserve and protect "the best interests of the child". (See, e.g., 2 Am Jur 2d Adoption, § 8). New York's adoption statutes and our procedures protect the integrity of the adoptive family unit and the finality of the adoption, thereby ensuring the child's interest in continuity of relationships. (Matter of Kareem W., 24 Misc 3d 1243(A)). To promote this "finality" and the important public policy factors of adoption, it is similarly imperative to strictly construe the adoption statutes. Even more so, when dealing with agency adoptions of children who have endured child abuse and neglect, as well as the vagaries of the foster care system, it is incumbent upon Family Court judges to thoroughly control and review adoptions, with strict standards and guidelines, all with a considered view towards the best interests of the child.

Domestic Relations Law § 111 sets forth the prerequisites of "Whose consent [is] required" for an adoption. Subdivision (1)(f) requires the consent to adoption "of any person or [*10]authorized agency having lawful custody of the adoptive child". Notably, this section does not list "Custody" with a capital C, nor does it otherwise define the term.DRL §109 (6), giving general definitions for the overall adoption Article 7 statute, defines "lawful custody" as "custody (a) specifically authorized by statute or (b) pursuant to judgment, decree or order of a court or ( c) otherwise authorized by law".

Since the court orders of Guardianship of Mr. & Mrs. E, and of Marissa M., thereby constitute "custody", I have held that either the consent of these guardians be obtained, or that steps be taken to obviate the need for their consent, before the adoption go forward. The intervenor foster care agency argues that "Guardianship" is not equated with "Custody" and that the consent of these parties need not be obtained. Indeed, the law in this area has never been clearly set forth or widely litigated, leaving little guidance from the case law. However, since these Guardianships clearly meet both the letter, and the purpose and intent of the statute, a statute which must be strictly construed, I must deny the agency's arguments.

THE LAW OF CUSTODY AND GUARDIANSHIP

The concepts of custody and guardianship of minor children, and whatever subtle differences might be engendered between the two, have never been clearly defined, both in the law, and in their colloquial lay meaning.

The concept of Child Custody has generally arisen from the common law and has no specific details. New York's major laws only address the procedures for custody in the context of the complicated distinctions in the jurisdiction of Supreme Court and Family Court. Domestic Relations Law §240 governs custody and visitation as part of the dissolution of the marriage in a Supreme Court matrimonial action. New York State Constitution Article 6, §13 gives Family Court jurisdiction over the custody of minors, except where arising in a matrimonial action. Family Court Act §651 restates said jurisdiction, but is generally devoid of substantive or procedural guidelines. The criteria guiding judicial determination of specific issues of custody litigation have developed through extensive case law under the DRL, but this case law does not define the precise powers conferred by the generic term "custody" nor does it generally address the differences, if any, between custody and guardianship.

Guardianship, in distinction, has always been a creation of statute, laws of long standing duration with little contemporary guidance. "Guardianship" includes two very separate concepts and powers - guardianship "of the property" of an infant or for other similar specific, limited purposes, on the one hand, and, second, "guardianship of the person". (See, e.g., People ex rel Delaney v. Mt. St. Joseph's Academy of Buffalo, 198 AD 75). Surrogates Court, as well as Supreme Court and County Court always had such jurisdiction, and Surrogates Court Procedure Act §1701 now provides that "the court has power over the property of an infant and is authorized and empowered to appoint a guardian of the person or of the property or of both of an infant whether or not the parent or parents of the infant are living". SCPA §103 (27) defines an infant as "any person under the age of eighteen years". SCPA §103 (24) defines a guardian as [*11]"any person to whom letters of guardianship have been issued by a court of this state, pursuant to this act, the family court act or article 81 of the mental hygiene law". Upon the reorganization of the New York Court system and creation of the Family Court in 1962, power over guardianships was granted to the Family Court.

Family Court Act § 661 establishes that The Family Court has like jurisdiction and authority to determine as county and surrogates courts in procedures regarding the guardianship of the person of a minor or infant.

Article 6 of the Family Court Act goes on to briefly describe the procedures for Family Court guardianship, but the statute provides no definitions as to the nature and scope of the powers of the guardian of the person or any guidance as to substantive issues.

"Guardianship of the person" confers decision making powers over the basic needs of a child, and while it does not per se grant physical custody, it does authorize it. Case law in this regard is sparse, but it is long standing and clear that "the general rule is that guardianship of the person of an infant implies the custody and control of the person of an infant". (Matter of Yardum, 228 AD 54; see also Matter of Thoemmes's Guardianship, 238 AD 541). Appointment as a guardian by the court is akin to lawful custody. (See, Matter of Erhardt, 27 AD2d 836).

To the extent that one can identify a "leading case" in this area, People ex rel Marabottini v. Farr, 186 Misc 811, Sup. Ct., Chemung Co., Personius, J., is often cited. There, in a thoughtful decision, the Court made a distinction between guardianship of the person and guardianship of the property. In Farr, a relative of a child whose parents were deceased, obtained a lawful court order for guardianship of the property of the child, but not guardianship of the person. The Court ruled that the guardianship of the property conferred no custodial power upon the guardian, and that therefore the guardian's consent to a proposed adoption was not required. However, the court clearly distinguished guardianship of the person, and stated that the consent required by DRL §111, would be required of someone with guardianship of the person. (See also, Matter of Mendelsohn's Adoption, 180 Misc. 147).

Because custody is an imposition over the inherent and natural rights of parents, the law is strict and well-established that in cases of a non-parent versus a parent, the non-parent can seek, let alone obtain, custody, only in extraordinary circumstances. (Bennett v. Jeffreys, 40 NY2d 543). Since "guardianship of the person" includes a similar imposition over the parents' rights, courts have held that the a similar analysis be used in guardianship cases, since guardianship is akin to custody in this regard. (See, In Re Paschen 116 Misc 2d 421).

Further guidance as to the powers of the guardian of the person can be found in the recent legislative enactment establishing the status of "Permanent Guardian" in the panoply of permanency options of children in foster care. (L.2008, c. 404). The permanent guardian is [*12]granted the specific power to enroll a child in school and obtain medical coverage. (Family Court Act § 657). Subsequent amendments specifically grant the guardian "the right and responsibility to make decisions, including any necessary consents, regarding the child's protection, education and control, health and medical needs, and the physical custody and care of the child". (Family Court Act § 657 subdivision c; L. 2010, c. 58)

It is puzzling that at oral argument the agency relied heavily on the new Permanent Guardianship legislation to support their position. Their claim that its legislative history stated that a guardian need not consent to an adoption is inaccurate; my review of the bill jacket shows no such thing [FN20]. In fact, the bill jacket reflects on the problems discussed in this opinion, i.e., the ambiguities in the state of the law regarding the powers of Custody and Guardianship.

The Assembly Memorandum in Support, NY Bill Jacket, 2008 A.B. 8358, Ch. 204, sets forth that the clarifications created by the amendments were intended to assist those individuals with orders of custody and guardianship with regard to education, health and medical service providers.

This Statement in Support holds that "there is no substantive difference between the rights and responsibilities of a custodian or guardian of a child. Codifying consistent legal rights and responsibilities for custody and guardianship of a minor will eliminate the confusion."

The Agency's other position in this regard is that the that the legislature did not change the language of DRL §111(f) in enacting the 2008 legislation, and that by failing to do so, it inferred that only a custodian's consent is necessary for adoption. However, this legislation was focused on the Permanency Laws and foster care funding, Title IV-E, and the like, and the radical new status of "Permanent" guardian. It is mere speculation to infer that DRL § 111 was implicated by the lack of any affirmative attention, or its concept of custody to the exclusion of guardianship affirmed thereby. To the contrary, where implicated, the legislation expands on the significance of guardianship's interplay with adoption, granting a permanent guardian the ability to surrender the child, and expressly stating that the permanent guardian may consent to the adoption. (Family Court Act §661).

CONSENT REQUIRED PURSUANT TO THE DRL

Domestic Relations Law §111(f) requires the consent to an adoption of a person having "lawful custody" of a child, and §109 has a broad definition of said lawful custody. Again, these statutes do not refer to Custody with a capital "C" or reference with limitation custody pursuant to Family Court Act §651.

The point of these statutes is to insure that any person with a lawful, custodial interest be [*13]required to consent. The language must be strictly construed, and the case law such as Farr, supra commands it. The decision-making and controlling powers that guardianship of the person confers are precisely within the meaning and intent of the statute and adoption policies.

If adoption is to cement the legal connection of the new, adoptive, family, a person with guardianship powers can not be lingering in the wings. If adoption is to sever enforceable obligations of the biological parent and others with an interest, the interests of a guardian must be so severed. If the finality and stability of the child in the new adoptive home is to be ensured, the guardianship rights of others must be defeated.

These general principles are profoundly exemplified by the situation in the instant case.

Mr. and Mrs. E., the guardians from Arkansas [FN21], have interfered with Alana's life and caused her great distress. The open guardianship of her sister Marissa has left Marissa with an interest in this case, and her interference with the foster parents on several occasions throughout the years has caused some of the tumult that left Alana adrift in various temporary foster homes of caretakers who therefore could not provide permanence. If Ms. C.-S. is to adopt Alana and provide the stability and continuity in relationships that adoption should bring, whatever remaining interest that the people holding these guardianships maintain, must be severed.

Accordingly, I hold that a court order of guardianship of the person is included within the meaning of lawful order of custody in Domestic Relations Law §111(f).

SEVERING THE GUARDIANSHIP INTERESTS

I am aware and very much concerned that Alana has lingered in our foster care system and needs the stability and finality of adoption. In requiring the adoptive parent's attorney to address the guardianship issues, I am moved by this concern for the stability of the child, so that the adoption must succeed; and in no way have I intended to unnecessarily delay these proceedings. The matter could have been dealt with by the attorneys easily before it reached this point. I can envision several alternative solutions, all of which have been made available [*14]

DRL § 111(f) simply requires the consent of the person having custody. Therefore, the agency or the adoptive parent's attorney could have reached out to the guardians and sought out and obtained their consents.

Alternatively, DRL § 111(2)(a) provides that the consent of a parent or person having custody of the child need not be obtained, if said person has abandoned the child. Simple and expeditious proceedings to establish such abandonment by Marissa and the E.'s could have, and still can, be brought before me.

Another alternative could be to obtain court orders vacating the guardianships. Again, as to Marissa's guardianship, which was granted in Bronx Family Court, I have always made myself available for the filing and processing of a simple proceeding to vacate Marissa's guardianship. As to Mr. And Mrs. E., vacatur of their guardianship would necessarily need to be done in Arkansas courts and might not be logistically simple, but still could have been attempted.

Arkansas law offers other insights, as well. Arkansas adoption is similar to New York in that their statute requires the consent of "any person lawfully entitled to custody of the minor". (A.C.A. §9-9-206(a)(3)). The Arkansas Code goes on to provide that consent to adoption is NOT required of "any legal guardian or lawful custodian of the individual to be adopted, who has failed to respond in writing to a request for consent for a period of sixty days....or is found by the court to be withholding his or her consent unreasonably". (A.C.A. §9-9-207(a)(8)).[FN22]

There could be other creative ways to litigate or otherwise deal with the situation. The above are a few that readily come to mind. It is not for the judge to precisely direct the lawyer how to litigate their case or in which manner to file or proceed to achieve the desired goal. But where the judge has lawfully ordered that this adoption will not be finalized unless the attorney addresses the issue of the open guardianships; the attorney must take some step towards addressing the issue, besides asking for repeated adjournments and then having intervenors make ancillary motions.

PERMANENCY

Child welfare, considered in our fields of law, social work and psychology, embody certain bedrock principles in the best interests of the child. Children should grow up in a normal, permanent, family home. When children can not be safely maintained in the homes of their natural parents, our child protective laws offer adoption as an alternative means of establishing a real home and achieving "permanency". In order to achieve said permanency, there must be a finality to the adoption procedure, to provide a continuity of relationships to the child and the adoptive family. (See, e.g., Social Service Law §384-b(1); Matter of Robert O. 80 NY2d 254) [*15]

However, it can not develop that in our shorthand practice "permanency" come to mean simply a rapid rush to adoption. We can not make "permanency" devoid of meaning, a shibboleth code word known only to bureaucratic agency insiders. It is precisely because we are concerned with the fragile lives of children in the foster care system that precise care must be taken to ensure that procedures are properly complied with, and care taken to monitor the substantive merits of the adoption, so that the adoption can succeed. "Permanency" also includes that the child promptly and adequately receive appropriate social services and mental health care, to ameliorate the stay in foster care and prepare her for her growth in the new family. "Permanency" also includes the thoughtful and prompt exploration of the pre-adoptive foster care placement resources. And, "permanency" requires that all legal nuances that might have an impact on the proposed adoption be promptly identified and addressed.

In this motion, St. Dominic's Home, the foster care agency, seeks leave to intervene, alternatively as of right pursuant to CPLR § 1012(a)(2), or by discretion pursuant to CPLR § 1013.

To intervene as of right, representation of the person's interest by the parties is or may be inadequate and the person has a significant interest that may be bound by the judgment. Here, the foster care agency claims to have a significant interest in the permanency of the child; however, it is not clear that the party, the adoptive parent, is not adequately protecting that right.

Alternatively, discretionary intervention may be granted where the person's claim and the main action have a common question of law or fact. This may be true here, but note, one of the factors to consider by the court is whether the intervention will unduly delay the determination of the action.

While this intervening motion has indeed caused some additional undue delay, the Court recognizes the interest of the foster care agency in our adoption system, and I grant the motion to intervene.

So, both the foster care agency and the adoptive mother argue the need for permanency and the need to expedite the adoption. But the history of this child's involvement in all aspects of the foster care and legal systems belie such belated concerns.

Alana's permanency has been delayed by the failure to promptly provide the child necessary mental health services since 2004; the failure to more thoughtfully and expeditiously explore proper and therapeutic foster boarding homes, as the court frequently was required to Order, while the child lingered in transfer to multiple foster homes in 2005, 2006 and 2007; the failure to promptly identify and deal with the legal issues, such as the father's rights and the relatives's guardianships, which the agency records itself acknowledged; the inordinate wait until 2009 to bring the termination of parental rights proceeding against the father, or until this late date to address the guardianships; and the inordinate wait until 2011 to file the adoption where the child has been living in the pre-adoptive home since 2007 and numerous permanency [*16]hearings have supported the goal of adoption throughout that time.

For all of the foregoing reasons set forth in this opinion, and notwithstanding the movant's concern for permanency, I continue to hold that the guardianship issues must be addressed before the court considers the adoption. Consideration of the best interests of the child lead to no other conclusion. Therefore, the motion is denied.

The Court remains available to expeditiously calendar and determine any proceeding that the agency and/or the adoptive mother may propose to resolve said issues.

Dated: December 22, 2011 Footnotes

Footnote 1:There is no father listed on her birth certificate.

Footnote 2:This petition spelled Alana's name as Elana; identified the mother as Marjorie M.; and identified Daniel M. as Alana's father.

Footnote 3:There was never a fact-finding hearing in this case, and there was never a ruling on the charges against the father.

Footnote 4:It has been colloquially referred in various paperwork and reports that Daniel M. was not Alana's biological father. However, it is curious that she has the same surname as Daniel M., and was considered by ACS to be her father in the Article 10 case. When the mother died, her death certificate listed Daniel M. as her spouse. Based on that indication as to his marriage to the child's mother, for some time since then Daniel M. has been considered Alana's legal father in our proceedings.

Footnote 5: A copy of the E.'s December 2, 2002 Letters of Guardianship of the Person and Estate, as well as the November 15, 2002 Order of Guardianship, from the State of Arkansas, were in the V13060/03 court file. These Letters and Order refer to Reginald E., while the papers filed in this court refer to Reginal E.. Additionally, in the court file was a September 4, 2002 letter from Kimberly Harvin, caseworker at Cardinal McCloskey Services, to the Little Rock Arkansas School District, stating that Reginal E. "is the caretaker of the above child effectively [sic] 8-27-02". It is unclear to this Court how Cardinal McCloskey became involved with the family, nor is it clear why the letter predates the dates of their letters of and order of guardianship.

Footnote 6: The proceedings on this N docket, up until the completion of the disposition, with the exception of the filing date, were all heard before this Judge.

Footnote 7:This was reported in the two Edwin Gould Reports by Judy McNeely , both dated June 8, 2005.

Footnote 8:See June 8, 2005 transcript, NN9989/04, pg 6.

Footnote 9: On June 27, 2005, this Court signed two formal orders. One directing that ACS transfer the case to a foster care agency that could provide a therapeutic foster home for Alana , and another directing that Alana be moved to a therapeutic foster home.

Footnote 10:This letter also reports indicates that a Dr. Datta has prescribed Seroquel for Alana's anxiety, anger and inappropriate behavior.

Footnote 11:This official permanency report states on one page (page 11) that there is monthly medication monitoring, but then on the next (page 12) says Alana isn't on any medication.

Footnote 12: It appears that Alana was first placed in the home of Dejon B., through the Edwin Gould agency, and thereafter, in March or April 2006, Alana was placed with Ms. B.'s cousin, Tiana J., since Ms. B. did not feel she could provide Alana with the attention that she needed.

Footnote 13:See letter of April 27, 2007 by Tiana J..

Footnote 14:Referee Mulrooney's April 17, 2007 endorsement indicates that Marissa M. "consistently tells child that she is going to Uncle Reginald...child told cw [sic] that Uncle Reg beat her.." and that the maternal aunt has not had any contact with the agency.

Footnote 15: Reports on the permanency hearings refer to her as Norma C., however, the adoption petition was filed as Norma C.-S..

Footnote 16:These papers also inform us that Alana is now taking the medications Seroquel and Concerta.

Footnote 17: Said report indicates that in addition to Seroquel and Concerta, Alana is taking Benadryl to sleep.

Footnote 18:Said report lists Seroquel, Concerta and Benadryl.

Footnote 19: When the attorneys settled the order with this Court in the proceeding which terminated Daniel M.'s parental rights and freed the child for adoption, it neglected to vacate Marissa M.'s order of guardianship. This may be said to be an oversight by this Court, although it does not appear from a review of the record that the Marissa's order of guardianship was ever brought to this Court's attention during the termination proceedings (although I should have had judicial notice from the prior Bronx court proceedings). With regard to the E.'s 2002 Order of Guardianship, this Court was never made aware of this order, and only learned of it upon the filing of the adoption petition.

Footnote 20: The only matter found in the Bill Jacket in this regard is a letter from the Deputy Counsel of OCFS which includes the patently inaccurate statement, without any legal support, that under current law, neither custody granted to a non-parent under the FCA [nor guardianship] include the right to consent to the adoption of a child.

Footnote 21: Mr. And Mrs. E. have their guardianship by a lawful order of an Arkansas Court. The law of guardianship in Arkansas is governed by their statute (Arkansas Code §28-65-301). As relevant here, the Arkansas guardianship is similar to New York's. Subdivision a of the statute generally defines the powers of the guardian and makes the distinction of guardianship of the person, and specifically holds that "the duty of the guardian...to care for the ward...to see that he or she is protected, properly trained and educated.... The guardian of the person shall be entitled to the custody of the ward but shall not have the power to bind the ward or his or her property". The movant relies on the language of inability to bind the ward's property as a limitation on an Arkansas guardianship to take it out of the purview of our DRL; however, I would find that the clear statement of the Arkansas statute granting "custody" of the ward and the duties of care and protection even more clearly puts the Arkansas guardianship within a DRL definition of custody.

Footnote 22: Of more than parenthetical interest, note that the Arkansas adoption law equates guardianship and custody in this regard.