Doe v. Department of Social Services of City of Poughkeepsie

• Decision Date: 30 October 1972
• Citation: 337 N.Y.S.2d 102,71 Misc.2d 666
• Parties: 'John DOE' et al., Petitioners, v. The DEPARTMENT OF SOCIAL SERVICES OF the CITY OF POUGHKEEPSIE, Respondent.
• Court: New York Supreme Court

Page 102

337 N.Y.S.2d 102

71 Misc.2d 666

'John DOE' et al., Petitioners, v. The DEPARTMENT OF SOCIAL SERVICES OF the CITY OF POUGHKEEPSIE, Respondent.

Supreme Court, Dutchess County.

Oct. 30, 1972.

Nathaniel Rubin, Poughkeepsie, for petitioners.

R. Donald Slee, Poughkeepsie, for respondent.

JOSEPH F. HAWKINS, Justice.

The question posed is: Does a putative father have any legal status to question or oppose strangers adopting his child?

Petitioners, by writ of habeas corpus, seek to bar the respondent from placing the child for adoption and for a determination of the father's rights, in the premises, if any. A temporary stay has been issued barring the respondent from so doing, pendente lite.

Petitioners include the infant's 'putative' or 'natural father' (so variously described by the parties), the paternal grandmother and the great-grandmother, respectively, of the infant child, a girl now 4 1/2 years of age. The respondent is the Department of Social Services of the City of Poughkeepsie upon whom custody has been bestowed by the infant's mother having executed a 'duly acknowledged' instrument, captioned: 'SURRENDER OF CHILD FOR ADOPTION BY MOTHER WITH SOLE AUTHORITY (CHILD BORN OUT-OF-WEDLOCK)', (Form DSS--574, etc.).

The said conveyance is in form prescribed for recording a deed as mandated by § 384, Social Services Law. As further provided in that statute, the instrument was recorded in a special Liber of Adoptions. I have, of course, deleted the liber and page number for the infant's protection as well as according fictitious names to the petitioners, again so as not to make identification too readily available.

The Social Services Law, § 384, subd. 1(c), (formerly Social Welfare Law), by omission, denies any rights to the father to custody if the child is born out-of-wedlock. The Domestic Relations Law, § 111(3), similarly, and also by omission, provides that the consent by the father is unnecessary to the adoption of his child, if born out-of-wedlock.

It should be noted at the outset--and I find this of much importance--that the petitioning father, in 1968, was adjudicated the father of the child by the Family Court. I am further informed, although no copy of such order has been made available, that said petitioner neither denied nor contested his having fathered the child.

It is unnecessary to recite or to comment upon the accusations or charges by the petitioners for only if I determine that the father does have legal status will it be necessary to have a hearing to determine to whom custody should be granted. In such eventuality, it will, of course, be solely the best interests and welfare of the infant which will govern. Conversely, if I hold, on the contrary, that, indeed, he has no such status, then the father's and other petitioners' contentions become irrelevant.

Apart from the said prior judicial determination of paternity, there appear to be other indicia of paternal concern. It is alleged by petitioners that the child had been cared for by the paternal grandmother for approximately half of her life and that the father has during that period supported the child.

The respondent, without admitting any of the allegations respecting the acts of the child's mother or contesting the father's allegations as to support, etc., at this posture of the litigation, relies solely on a demurrer, urging that the putative father has no status to intervene in the contemplated adoption of the child; hence he need not be given notice. As authority, it relies upon People ex rel. Meredith v. Meredith, 272 App.Div. 79, 69 N.Y.S.2d 462, affd. 297 N.Y. 692, 77 N.E.2d 8 and Matter of Hayford, 109 Misc. 479, 179 N.Y.S. 182. Contrarily, the petitioners stress Cornell v. Hartley, 54 Misc.2d 732, 283 N.Y.S.2d 318, and, most particularly, Stanley v. State of Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

Previous law, so frequently reiterated, that the putative father has no right to custody or that his consent to adoption is unnecessary has been profoundly--if not totally--revised by our highest court. The United States Supreme Court in Stanley v. State of Illinois, supra, considered Illinois statutes which are substantially similar to ours. That opinion is particularly apposite since that court had to consider the question of the rights to custody of a putative father, the mother having died, and under the laws of that State, the children became wards of the court and were in the custody of court-appointed guardians. The lower courts had denied legal status to the putative father.

In Stanley, supra, the United States Supreme Court struck down the Illinois statute's presumption which denigrated the rights of a father and declared all 'burdens' upon 'all unwed fathers' as 'constitutionally repugnant.'

'We must therefore examine the question which Illinois would have us avoid: Is a presumption which distinguishes and burdens all unwed fathers constitutionally repugnant? We conclude that as a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before his children were taken from him and that by denying him a hearing and extending it to all other parents whose custody of their children is challenged the State denied Stanley the equal protection of the law guaranteed by the Fourteenth Amendment.' (supra, p. 649, 92 S.Ct. p. 1211).

The court, in its comments upon the father's interests, stated:

'The private interest here, that of a man in the children he has sired and raised, undeniably warrants defence and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513 (1949) (concurring opinion).' (supra, p. 651, 92 S.Ct. p. 1212).

As for the role of the State, which at bar is represented by the respondent, again I quote from Stanley:

'* * * Indeed, if Stanley is a fit father, the State spites its own articulated goals when it needlessly separates him from his family.' (supra, pp. 652--653, 92 S.Ct. p. 1213).

The Supreme Court concluded, with two Justices dissenting, that the putative father's 'interest in retaining custody of his children is cognizable and substantial.' (supra, p. 652, 92 S.Ct. p. 1213).

I am not unaware of the religious and historical sources for tracing genealogy solely through the mother. This, however, is of no import in resolving the issue at bar. In Stanley, supra, p. 652, 92 S.Ct. at p. 1213, the court quoted from Levy v. Louisiana, 391 U.S. 68, 71--72, 88 S.Ct. 1509, 1511, 20 L.Ed.2d 436, stating:

"To say that the test of equal protection should be the 'legal' rather than the biological relationship is to avoid the issue. For the Equal Protection Clause necessarily limits the authority of a State to draw such 'legal' lines as it chooses.' Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73, 75--76, 88...