36 N.Y.2d 568, In re Adoption of Malpica-Orsini

Citation:36 N.Y.2d 568, 370 N.Y.S.2d 511
Party Name:In re Adoption of Malpica-Orsini
Case Date:May 08, 1975
Court:New York Court of Appeals

Page 568

36 N.Y.2d 568

370 N.Y.S.2d 511

In the Matter of the ADOPTION OF Heather A. MALPICA-ORSINI.

Hector ORSINI, Appellant,


Charles A. BLASI, Respondent.

New York Court of Appeals

May 8, 1975.

[370 N.Y.S.2d 512] Delson & Gordon, New York City Marvin Srulowitz, New York City, of counsel), for appellant.

No appearance for respondent.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz and Warren M. Goidel, New York City, of counsel), in his statutory capacity under section 71 of the Executive Law.

[370 N.Y.S.2d 513] COOKE, Judge.

Relying solely on the claimed unconstitutionality of subdivision 3 of section 111 of the Domestic Relations Law, pertaining to the consent required for adoption of a child born out of wedlock, appellant appeals directly from a Family Court order of adoption.

Heather Alison Malpica-Orsini was born out of wedlock to Corrine Caberti on November 16, 1970. Appellant Hector Orsini lived with the child and her mother until June, 1972. On September 8, 1972, in a proceeding in which appellant admitted paternity, an order was entered in Family Court, New York County, adjudging appellant to be the father of the child and, pursuant to agreement, directing the payment by him of a monthly sum for support and granting to him visitation rights.

In February, 1973, Corrine Caberti married respondent Charles Blasi, and on June 21, 1973, respondent filed a petition in Family Court, Westchester County, praying for approval of his adoption of the child and alleging his marriage to the natural mother. Appellant then moved in said proceeding for an order enforcing his visitation rights as set forth in the filiation order, granting him notice and an opportunity to be heard in all proceedings concerning his daughter and dismissing the petition for adoption. He contended therein that subdivision 3 of section 111 of the Domestic Relations Law, which limits consent to the adoption of a child born out of wedlock to the natural mother, is unconstitutional in that it violates the due process and equal protection clauses of the United States Constitution by unjustly discriminating between fathers of children born out of wedlock and all other parents. The application was terminated in an order directing that appellant be granted notice and opportunity to be heard at all proceedings concerning his daughter and that force and effect be given to his objections to said adoption. Dismissal of the petition for adoption was denied. Thereafter, following a hearing at which appellant appeared and was represented by counsel, an order was entered allowing and approving the proposed adoption and denying appellant's objection.

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 N.Y. 83, 86--87, 11 N.E.2d 548, 549--550; Carpenter v. Buffalo Gen. Elec. Co., 213 N.Y. 101, 104, 106 N.E. 1026, 1027; Matter of MacRae, 189 N.Y. 142, 143, 81 N.E. 956; Matter of Thorne, 155 N.Y. 140, 143, 49 N.E. 661, 662). The Legislature has supreme control over the subject (Carpenter v. Buffalo Gen. Elec. Co., supra, 213 N.Y. p. 107, 106 N.E. p. 1028; Matter of Cook, 187 N.Y. 253, 260, 79 N.E. 991, 993), [370 N.Y.S.2d 514] 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, 279 N.Y.S. 427, 431).

Since adoption is purely a statutory matter ('Doe' v. 'Roe', 37 A.D.2d 433, 436, 326 N.Y.S.2d 421, 424; Caruso v. Caruso, 175 Misc. 290, 291, 23 N.Y.S.2d 239, 240), the answer to the question of what consents are necessary must be found in the statutory provisions. Section 111 of the Domestic Relations Law, subject to limitations set forth therein and not applicable here, requires the consent of the parents or surviving parent of a child born in wedlock (subd. 2) and of the mother of a child born out of wedlock (subd. 3). The statute is explicit that no consent is required of the father of a child born out of wedlock (Matter of Brousal, 66 Misc.2d 711, 712, 322 N.Y.S.2d 28, 29).

We approach the constitutional testing of this statute with certain well-established principles in mind: that a legislative enactment carries with it an exceedingly strong presumption of constitutionality; that, while this presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt; that every intendment is in favor of the statute's validity; that the party alleging unconstitutionality has a heavy burden; and that only as a last resort will courts strike down legislative enactments on the ground of unconstitutionality. Nor may courts substitute their judgment for that of the Legislature as to the wisdom and expediency of the legislation.

There is a further presumption that the Legislature has investigated and found facts necessary to support the legislation (I.L.F.Y. Co. v. Temporary State Housing Rent Comm., 10 N.Y.2d 263, 269, 219 N.Y.S.2d 249, 252, 176 N.E.2d 822, 825), as well as the existence of a situation showing or indicating its need or desirability (Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 878, 209 N.E.2d 539, 540). Thus, if any state of facts, known or to be assumed, justify the law, the court's power of inquiry ends (Matter of Spielvogel v. Ford, 1 N.Y.2d 558, 562, 154 N.Y.S.2d 889, 891, 136 N.E.2d 856, 857, app. dsmd. 352 U.S. 957, 77 S.Ct. 362, 1 L.Ed.2d 316).

Under the doctrine of separation of powers, courts may not legislate (Bright Homes v. Wright, 8 N.Y.2d 157, 162, 203 N.Y.S.2d 67, 70, 168 N.E.2d 515, 517; Matter of Metropolitan Life Ins. Co. v. Boland, 281 N.Y. 357, 361, 23 N.E.2d 532, 533), or rewrite (Matter of Chase Nat. Bank v. Guardian Realties, 283 N.Y. 350, 360, 28 N.E.2d 868, 871; Matter of Tormey v. LaGuardia, 278 N.Y. 450, 451, 17 N.E.2d 126, 127), or extend legislation (People ex rel. Newman v. Foster, 297 N.Y. 27, 31, 74 N.E.2d 224, 225; Matter of Hogan v. Supreme Ct., 281 N.Y. 572, 576, 24 N.E.2d 472, 473). If consent is to be required of the father of an out-of-wedlock child, that is a matter [370 N.Y.S.2d 515] for the Legislature. The courts have no right to expand the terms of the instant statute.

In measuring appellant's claim of a denial of equal protection, it is necessary to consider various standards of review. It has been observed that there is hardly a law on the books that does not affect some people differently from others (see San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 60, 93 S.Ct. 1278, 36 L.Ed.2d 16 (concurring opn.)). Under traditional analysis, the equal protection clause does not deny to States the power to treat different classes of persons in different ways, but a classification must be reasonable, not arbitrary, and have a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike (Reed v. Reed, 404 U.S. 71, 75--76, 92 S.Ct. 251, 30 L.Ed.2d 225; Neale v. Hayduk, 35 N.Y.2d 182, 186, 359 N.Y.S.2d 542, 544, 316 N.E.2d 861, 862). A State does not violate the guarantee merely because the classifications made by its laws are imperfect (Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491), and a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it (McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393; Matter of Dorn 'HH' v. Lawrence 'II', 31 N.Y.2d 154, 158, 335 N.Y.S.2d 274, 276, 286 N.E.2d 717, 719).

Adoption laws in the United States are founded upon broad humanitarian principles and the public policy involved in the statutes in one of beneficence (2 Am.Jur.2d, Adoption, § 3). Embodied in our adoption statute is the fundamental social concept that the relationship of parent and child, with all the personal and property rights incident to it, may be establishe independently of blood ties, by operation of law, and that has been part of the public policy of this State since 1887 (Domestic Relations Law, § 117; Matter of Upjohn, 304 N.Y. 366, 373, 107 N.E.2d 492, 494). In harmony with the legislative policy thus expressed, the adoption statute has been most liberally and beneficently applied (Matter of Upjohn, supra).

Adoption is a means of establishing a real home for a child (see Schatkin, Disputed Paternity Proceedings (3d ed.), p. 119). In 'Adopting a Child Today' (1965) by Isaac, described by the National Council of Adoptive Parents Organizations as being 'far and away the best book on adoption, foster care, and related subjects in the field,' it is stated at pages 210--211: 'Adoption has always had the dual function of giving children homes and homes children * * * The emphasis is now on promoting the welfare of an otherwise homeless child. This change is partly the result of the increasing importance of psychiatry and psychology, which have revealed the role of a happy family life in producing well-adjusted citizens, and partly the inevitable response to [370 N.Y.S.2d 516] a totally changed situation. Illegitimacy and family breakdown have become problems on an unprecedented scale in modern industrial societies. Never before have there been so many thousands of children for whom society finds each year that it must make some provision. * * * the purpose of adoption is almost uniformly seen as promoting the welfare of children.'

To require the consent of fathers of children born out of wedlock (see General Construction Law, § 59), or even some of them, would have the overall effect of denying homes to the homeless and of depriving innocent children of the other blessings of adoption. The cruel and undeserved out-of-wedlock stigma...

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