Matter of Levi
Annotate this CaseDecided on May 17, 2017
Surrogate's Court, Oneida County
In the Matter of Adoption of a Child Identified as Levi
X2017-4/A
For the Adoptive Parents:
Casey A. Johnson, Esq.
Bousquet Holstein PLLC
For the Birth Mother:
Frank J. Furno, Esq.
Oneida County Public Defender - Civil
Guardian ad Litem for the Child:
Paul M. Deep, Esq.
Louis P. Gigliotti, S.
DECISION & ORDER
On February 15, 2017, pursuant to Domestic Relations Law § 115-d, this Court issued an order of conditional certification to J.H. and S.C. (hereinafter Adoptive Parents) as qualified adoptive parents of a child identified as Levi (hereinafter Child), who was born February 10, 2017. As part of the petition requesting such an order, Kevin P. Harrigan, Esq., representing A.P. as the Child's birth mother (hereinafter Birth Mother), filed an extra-judicial consent form, an affidavit of financial disclosure and an affidavit indicating that the Birth Mother did not know who was the Child's father, all of which were signed by the Birth Mother on February 11, 2017. The Adoptive Parents thereafter filed an adoption petition on March 2, 2017, which pursuant to Domestic Relations Law § 115-c, was timely filed within ten court days of their taking physical custody of the Child on February 15, 2017.
On March 13, 2017, the Birth Mother filed a handwritten letter dated March 7, 2017, in which she expressed her desire to have the Child returned to her. The Court treated this letter as a revocation of her extra-judicial consent to the adoption, pursuant to Domestic Relations Law § 115-b(6). The Court issued a notice via certified mail to the Adoptive Parents and their counsel dated March 14, 2017, in accordance with Domestic Relations Law § 115-b(6)(b). In response, counsel for the Adoptive Parents filed a notice of the Adoptive Parents' intent to oppose the [*2]revocation, which was dated March 21, 2017 and filed March 23, 2017.
The Court appointed Paul M. Deep, Esq. as guardian ad litem for the Child, pursuant to Domestic Relations Law § 115-b(6)(d)(i). On March 29, 2017, the Court scheduled a hearing for May 16, 2017, and in accordance with Domestic Relations Law § 115-b(6)(d)(i), notified the Birth Mother and her attorney, the Adoptive Parents and their attorney, and the guardian ad litem of same in writing. The envelope addressed to the Birth Mother at the address she provided the Court was returned by the Post Office. The Court sent a second notice on April 20, 2017 to a new address provided by Mr. Harrigan for the Birth Mother. Said envelope was not returned.
At Mr. Harrigan's subsequent request, he was excused from further representation of the Birth Mother due to the conflict of interest that arose following her revocation of consent. The Court referred the Birth Mother to the Oneida County Public Defender's Office - Civil Division, which accepted representation. Two pretrial conferences were conducted with counsel for the Adoptive Parents, counsel for the Birth Mother and the guardian ad litem. The hearing was conducted on May 16, 2017 as planned.
The purpose of the hearing, as set forth in Domestic Relations Law § 115-b(6)(d)(i), was to hear and determine whether the Birth Mother's revocation of consent was timely and properly given, whether the Adoptive Parents' notice of intent to oppose such revocation was timely and properly given, and if necessary, hear and determine what disposition should be made with respect to the custody of the Child. At the outset of said hearing, counsel for the Adoptive Parents stipulated on the record that the revocation of consent was timely and properly given.
Counsel for the Birth Mother could not stipulate as to the timeliness and propriety of the notice of intent to oppose such revocation because the Birth Mother failed to appear for the hearing. Counsel placed on the record in great detail his history of attempted and actual communications with the Birth Mother about her participation at the hearing, including speaking with her by phone as recently as the afternoon before and scheduling an appointment to meet with her immediately prior to the hearing. In her absence, the Court took judicial notice that the Adoptive Parents timely filed their notice of intent to oppose the revocation within the 15-day timeframe provided by statute and that it was in proper form.
Turning to the issue of custody of the Child, the Court stated for the record the standards set forth in Domestic Relations Law § 115-b(6)(d)(v). In particular, the statute provides that the Birth Mother, having given extra-judicial consent, has no superior right to the custody of the Child. The Court's only consideration is the best interests of the Child, with no presumption that such interests would be promoted by giving custody to any particular party. The Court then identified for the parties the relevant factors in a best interests determination as set forth in caselaw. Those factors include ability to provide for the Child's emotional and intellectual development, the quality of the home environment, the parental guidance provided, the original placement of the child, the length of that placement, the relative fitness of the parents and the parents' financial status. (See Matter of Gabriela, 283 AD2d 983, 985 [4th Dept 2001]).
Counsel for the Birth Mother had no evidence to present in light of his client's failure to assist in preparing for and her absence from the hearing. Counsel for the Adoptive Parents called several witnesses: Mr. Harrigan; Holly Darrah, foster parent to the Birth Mother; Allison Jackson, program director of Evelyn's House, a residence for homeless women ages 16-21 who are pregnant or mothering a child; and the Adoptive Parents. The guardian ad litem asked [*3]questions of each witness as well. The Court summarizes their testimony as it relates to each factor in this best interests determination.
Ability to Provide for the Child's Emotional and Intellectual Development
As proof of how they would provide for the emotional and intellectual development of the Child, the Adoptive Parents testified as to their experience with their four-year-old daughter, whom they adopted when she was five weeks old. They described her exposure to family and friends to develop social skills. They talked about encouraging her to express her feelings, both positive and negative, in socially acceptable forms. They explained how they have taught her foreign languages and taken her to foreign countries to expand her awareness of other cultures. The Adoptive Parents relocated to Sweden prior to the Child's birth, as part of a temporary job assignment for J.H. After the Adoptive Parents were given physical custody of the Child, and even though it meant living apart for a time, they decided their daughter should return to Sweden with J.H. so as to resume her regular routine, which includes attending preschool. The Adoptive Parents however, have made a concerted effort to maintain a family unit existence by eating one daily meal together via internet visual communication.
In contrast, Ms. Darrah and Ms. Jackson both described the Birth Mother as an individual needing much emotional assistance herself. Ms. Darrah testified as to her awareness that the Birth Mother has been hospitalized for mental health issues on two recent occasions. Ms. Jackson testified that she became aware of the Birth Mother's particularized need for mental health treatment in the four weeks the Birth Mother resided at Evelyn's House immediately prior to the birth of the Child. Despite her affection for the Birth Mother, Ms. Darrah acknowledged the Birth Mother is a compulsive liar and a deceitful person. She noticed a deterioration in behavior when the Birth Mother stopped taking mental health medication in March 2015 until the time she voluntarily removed herself from foster care shortly after her 18th birthday in August 2015. In particular, Ms. Darrah explained the Birth Mother began taking nude and sexually explicit photos and videos of herself, and sending same to boys she did not know. Ms. Jackson testified as to similar behavior by the Birth Mother while at Evelyn's House, which led to a collective decision by Ms. Jackson, Ms. Darrah and the Birth Mother for her to leave.
Both Ms. Darrah and Ms. Jackson expressed doubt about the Birth Mother's abilities to raise a child. Ms. Jackson recommended that county preventive services be enlisted in such a situation to provide guidance and support to the Birth Mother. Ms. Darrah flatly stated that the Birth Mother is incapable of caring for a child at this point in time.
Quality of the Home Environment
Where the Birth Mother actually resides at present is not known to the Court. Ms. Darrah made clear that she cannot have the Birth Mother live with her any longer, because she cannot provide the kind of help that the Birth Mother needs. Ms. Darrah and Ms. Jackson both testified that the Birth Mother made no plans to prepare a place for her and the Child to live in the event she did not offer the Child for adoption. Ms. Jackson described the Birth Mother as becoming quite anxious when they did have a conversation about the responsibilities involved in caring for the Child, to such a point that the Birth Mother asked that Ms. Darrah be called to attend the meeting.
The Adoptive Parents' testimony described a warm and welcoming environment for the Child. Their daily visual communication is not only so that their daughter feels connected to [*4]both of them, but also so that she and J.H. can see the Child and the Child can hear their voices. Their home in Sweden has a room set aside for the Child. S.C., who resides with the Child in Washington, D.C., takes him on outings and short trips. S.C. testified as to his methods in consoling the Child when hungry or overtired, and he characterized the Child as even-tempered and calm.
Parental Guidance to be Provided
The Adoptive Parents characterized their parenting philosophy as wide with strong boundaries. J.H. explained that this meant the Adoptive Parents want to give their children enough latitude to learn and make mistakes on their own, but to enforce consequences (good and bad) when boundaries are established. They have taken classes about parenting adopted children and believe in the concept of an open adoption whereby a child is made aware of his biological and adoptive family members. They support keeping birth parents informed about a child's progress through photographs and annual reports.
As for the Birth Mother, Ms. Darrah testified that when the Birth Mother entered her home under the auspices of foster care, Ms. Darrah was advised by the County that the Birth Mother could not be left alone with children younger than she. Consequently, Ms. Darrah needed to be present at all times when her grandchildren would come to visit, and she would have to place the Birth Mother in a separate room if Ms. Darrah needed to go to the bathroom. According to Ms. Darrah, the County reluctantly permitted a mild relaxation of this restriction, but only after the Birth Mother took a babysitting class and only after Ms. Darrah agreed to remain at the premises at all times and to limit the Birth Mother's singular exposure to the children to no more than an hour.
Through the testimony of Ms. Jackson, the Court learned the Birth Mother has difficulty following rules. When the staff at Evelyn's House discovered the Birth Mother was making inappropriate use of computer access at the residence by sending photos of her genetalia, such access was restricted. Despite such restriction, the Birth Mother then utilized the house phone to make long distance calls reported by residents to be of an inappropriate nature and a cell phone to send similar photos. When this practice was discovered, Ms. Jackson became concerned not only for the Birth Mother's safety, but also the safety of other residents. Evelyn's House operates in an undisclosed location, and Ms. Jackson expressed concern that the Birth Mother's actions may inadvertently reveal her whereabouts. As previously noted, the Birth Mother engaged in similar behavior when living with Ms. Darrah, yet she denied any involvement when Ms. Darrah approached her about what she discovered and instead claimed that someone had "hacked" her phone to send the photos. It is difficult to see how the Birth Mother could give appropriate parental guidance when she demonstrates little ability to appreciate such guidance herself.
Original Placement of the Child and Length of Placement
The Adoptive Parents testified that the Child was discharged from the hospital following his birth directly to their care. They have had uninterrupted custody of the child since then.
Relative Fitness of the Parents
The testimony summarized in the preceding paragraphs clearly shows the Adoptive Parents are better fit and able to raise the Child. The Birth Mother appeared to recognize same when she gave a handwritten note to the Adoptive Parents and their daughter during their first visit to the hospital to see the Child, which note was entered into evidence as Exhibit 2 and reads [*5]as follows:
Thank you for opening your hearts in willing to adopt my baby. I know he will have a wonderful life, with you. I look foreward [sic] to seeing pictures of him growing up. It makes me feel excited to know that he is going to grow up in a loving, warm, welcomed, happy and nurturing home.Although in her revocation of consent the Birth Mother states her belief that she is capable of giving good care, the testimony of Ms. Darrah and Ms. Jackson raises serious doubt about her ability to do so. Moreover, in her revocation, the Birth Mother expressly stated she will make sure she takes the Child to all of his doctors' appointments. Her own track record suggests otherwise, as her attorney indicated that she made but never kept appointments with him. Her failure to show for the hearing, despite being advised of same by the Court and her attorney on multiple occasions, and despite having told her attorney as recently as the day before that she would attend, indicates not only irresponsibility but also a lack of genuine interest in raising the Child.
Parents' Financial Status
The Adoptive Parents are both college-educated and employed. S.C. testified that he is currently taking leave from his employment as an architect to care for the Child while J.H. and their daughter are in Sweden, where J.H. is on assignment with the Swedish International Development Cooperation Agency. Upon his anticipated return to Sweden, S.C. indicated he could resume his job working remotely for the architectural firm. They testified as to their annual income and confirmed their existing debt obligations are sufficiently covered with enough monies left over to care for an additional child. They receive health insurance benefits, have life insurance policies and own real property.
The Birth Mother's history suggests she is dependent to some degree upon public assistance for benefits. Whether she is currently employed and receiving income is unknown.
Conclusion
In sum, the evidence clearly establishes that it is in the best interests of the Child to remain in the custody of the Adoptive Parents and to be adopted by them. Accordingly, it is hereby
ORDERED that the notice of revocation of consent filed by the Birth Mother shall be denied any force and effect; and it is further
ORDERED that physical custody of the Child shall remain with the Adoptive Parents; and it is further
ORDERED that the Surrogate's Court Clerk's Office is directed to complete its review of the Adoptive Parents' petition for adoption and advise their counsel if any further documentation is required in connection with same.
This constitutes the Decision and Order of the Court.
Dated: May 17, 2017
Louis P. Gigliotti, Surrogate
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