Anonymous, Matter of

• Decision Date: 16 June 1980
• Citation: 104 Misc.2d 985,429 N.Y.S.2d 987
• Parties: In the Matter of the Adoption of ANONYMOUS, Adoptive Child. Surrogate's Court, Westchester County
• Court: New York Surrogate Court

Page 987

429 N.Y.S.2d 987

104 Misc.2d 985

In the Matter of the Adoption of ANONYMOUS, Adoptive Child.

Surrogate's Court, Westchester County.

June 16, 1980.

Michael A. Neff, New York City, for petitioners

Ruth Cassell, New York City, and Daniel Steinbock, Poughkeepsie, for respondent.

DECISION

EVANS V. BREWSTER, Surrogate.

This is an application by the maternal aunt and uncle for the adoption of a male child allegedly born out of wedlock on October 1, 1971. Following the child's birth, respondent, the natural father, moved to California with the natural mother and the child where they resided together until October 1, 1974. On that date, by order of the Superior Court of California, the respondent vacated the family residence and subsequently returned to New York. The child remained with his mother until she died in California on August 27, 1978. The child has been released by the California Department of Social Services to petitioners who are residents of Westchester County. The respondent-natural father's name appears on the adoptive child's birth certificate.

Prior to this proceeding, the respondent was convicted of rape in the first degree and sentenced to an indeterminate term of four to twelve years. He is presently incarcerated in a state correctional facility where he was cited to show cause why an order approving the adoption should not be granted.

Respondent has moved pursuant to CPLR 3211(a)(7) for an order dismissing the petition for adoption for failure to state a cause of action on the grounds that the respondent does not consent to the adoption and upon the further ground that the statutes obviating the requirement of his consent are unconstitutional. It is the respondent's contention that Civil Rights Law 79(1) and Domestic Relations Law 111(2)(d) are violative of his rights under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 5, 6, and 11 of the State of New York Constitution.

It should be noted at the outset that the United States Supreme Court has struck down Domestic Relations Law 111 as being constitutionally infirm to the extent that it establishes an "overbroad gender-based classification" which discriminates against unwed fathers by requiring only the natural mother's consent to the adoption of an illegitimate child (DRL 111(1), (2)) even where the natural father has acknowledged paternity or otherwise established a "substantial relationship" with the child. (Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297). "This undifferentiated distinction between unwed mothers and unwed fathers, applicable in all circumstances where adoption of a child of theirs is at issue, does not bear a substantial relationship to the State's asserted interests" (Caban v. Mohammed, supra, 99 S.Ct. 1769, 60 L.Ed.2d 308) in promoting the adoption of illegitimate children.

This is not to say that Domestic Relations Law 111 is unconstitutional in all respects. Indeed, the court acknowledged with approval New York's right to provide, as it does in DRL 111(2)(a), that fathers who have abandoned their children have no absolute right to block adoption of those children (Caban v. Mohammed, supra, 99 S.Ct. 1768, 60 L.Ed.2d 307, footnote 13). The adoption of legislation making parental consent unnecessary in certain instances (e. g. abandonment), is constitutionally permissible to allow the adoption of illegitimate children when their natural parents are unavailable or otherwise unable to provide stable homes for their children. Dispensing with parental consent in cases of abandonment is but one example of the alternatives embodied in DRL 111(2) to the gender-based distinction of Sec. 111(1) which are "more closely attuned" to the state interest of providing for the welfare of its children, asserted in support of the statutory classification sought to be protected. Clearly, the necessity of a natural father's consent to the adoption of a child born out-of-wedlock is not constitutionally required in all circumstances. Only that portion of DRL 111 which accords unwed mothers different rights from those of unwed fathers is constitutionally infirm and the court must therefore apply the statute as it stands save for that portion which has been found to be constitutionally offensive (Matter of Anthony John P., 101 Misc.2d 918, 422 N.Y.S.2d 570).

Respondent contends that DRL 111(2)(d) when read in conjunction with Civil Rights Law 79(1) results in the possibility that his child may be adopted without his consent and without the necessity of a hearing for the purpose of showing him to be an unfit parent, thus resulting in an unconstitutional deprivation of procedural and substantive due process and equal protection.

Domestic Relations Law 111(2)(d) dispenses with the necessity of the consent of any "parent or of any other person having custody of the child * * * who has been deprived of civil rights pursuant to the civil rights law and whose civil rights have not been restored." (Emphasis supplied). Section 79(1) of the Civil Rights Law suspends all the civil rights of a person sentenced to "a term of imprisonment in a state correctional institution for * * * an indeterminate term, having a minimum of one day and a maximum of natural life." The sole exception of the total suspension of civil rights is the right to commence an action or proceeding (Civil Rights Law 79(2)).

Respondent's argument that his right or procedural due process has been violated is without merit. DRL 111(3) provides in pertinent part that, "Notice of the purposed adoption shall be given in such manner as the judge or surrogate may direct and an opportunity to be heard thereon may be afforded to a parent who has been deprived of civil rights and to any other parent whose consent to adoption may not be required * * * if the judge or surrogate so orders." (Emphasis supplied). By its express terms, the statute requires that parents whose consent is not required, for whatever reason, be given notice of the proposed adoption. Although the statute makes the necessity of a hearing discretionary with the court, the decisional law of this state has consistently recognized such parent's right to a hearing on the merits of the adoption (Matter of Anonymous, 79 Misc.2d 280, 359 N.Y.S.2d 738; Matter of Anonymous, 67 Misc.2d 366, 323 N.Y.S.2d 358; see also Matter of Malpica-Orsini, 36 N.Y.2d 568, 370 N.Y.S.2d 511, 331 N.E.2d 486; Matter of Kenneth M., 87 Misc.2d 295, 383 N.Y.S.2d 1005; Matter of Ekstrom, 24 A.D.2d 276, 265 N.Y.S.2d 727; Matter of Anonymous, 13 A.D.2d 885, 215 N.Y.S.2d 684). While the purpose of such hearing is not to determine "unfitness", but rather whether the proposed adoption will be in the best interests of the child, the parent whose consent is not required may there present "such information * * * as will aid (the Court) in determining whether the moral and temporal interests of the foster child will be promoted by the adoption." (Matter of Ekstrom, supra, 24 A.D.2d p. 279, 265 N.Y.S.2d p. 731). Furthermore, evidence regarding respondent's relationship with the child and the closeness of that relationship is pertinent in establishing whether or not the proposed adoption furthers the child's interests. The fact that a "best interests" hearing has not been held at this juncture is due to the staying effect of respondent's motion. Accordingly his right to procedural due process has been preserved.

Respondent's contention that Sec. 111(2)(d) of the Domestic Relations Law and subdivision 1 of Section 79 of the Civil Rights Law deny him substantive due process in that they deprive him, a convicted felon, of substantive rights (i. e. an "unfitness" hearing) accorded all other classes of parents before the abrogation of parental rights is somewhat more troublesome. Although a similar claim of substantive due process was raised in Caban v. Mohammed, (supra), the Supreme Court refused to deal with that issue, choosing instead to decide the case on equal protection grounds.

In his argument that all parents are constitutionally entitled to a hearing as to their parental fitness before the abrogation of parental rights, the respondent relies on Stanley v. Illinois, 405 U.S. 646, 92 S.Ct. 1208, 31 L.Ed.2d 551. There, the State of Illinois by way of dependency proceedings, removed Stanley's out of wedlock children from his custody without an "unfitness" hearing otherwise accorded married parents under Illinois law. The termination of Stanley's parental right was automatic under the terms of the relevant statute without the requirement of any hearing or a finding that the children's interests would be served thereby. In sharp contrast, the respondent is a convicted felon, a parent who by his own actions and conduct, has created a presumption of his unfitness.

In adopting the provisions dispensing with consent in Section 111(2), the State has carefully sought to balance on the one hand the rights of a parent with those of the State in promoting the welfare of its children on the other. "Neither the ties of blood and parenthood nor the moral and temporal interests of the child are absolutes * * *. Each case must proceed to decision upon sound and careful consideration of its particular facts, with full recognition of the primary of parental rights unless and until there shall be submitted convincing proof that they have been substantially eroded by abuse, by misconduct or by circumstances." (Matter of Ekstrom, supra, 24 A.D.2d p. 280, 265 N.Y.S.2d p. 731) (Emphasis added).

In enacting DRL 111(2)(d)...