Ginnan, Matter of
| Citation | 101 Misc.2d 853,422 N.Y.S.2d 1003 |
| Parties | In the Matter of Stacy Marie GINNAN. Petition, Affidavit and an Order to Show Cause to Determine Custody made by Earl Edward Ginnan, Sr., and Joyce Ginnan, Petitioners v. Earl Edward Ginnan, Jr., Respondent, and Clarence Brant, Respondent; Petition to Intervene in Custody Petition by Gerald P. Brant and Patricia Brant; Amended Petition for Adoption by Gerald P. Brant and Patricia Brant; Motion to (1) Sever and Dismiss Allegations of Permanent Neglect in Amended Adoption Petition, and (2) Dismiss the Petitions for Adoption because: (a) Section 111(2)(d) of the Domestic Relations Law is unconstitutional; and (b) the Father's Consent is lacking. |
| Decision Date | 24 October 1979 |
| Court | New York Family Court |
Welch & Welch, Vincent J. Welch, Corning, Yorio & Tunney, Ronald A. Yorio, Painted Post, of counsel, for applicants.
Henry M. Hille, Bath, for petitioner-father.
Samuel J. Knox, Jr., Addison, law guardian, for infant.
At a hearing on the motions made by and on behalf of Earl Edward Ginnan, Jr., the father of the 21-month-old infant, Stacy Marie Ginnan, the subject of the adoption and custody proceedings, the Court makes the following findings of facts:
1. Earl Edward Ginnan, Jr. is the natural father of Stacy Marie Ginnan.
2. The Petitioner was married to Deborah J. Ginnan on May 21, 1977.
3. The subject child, Stacy Marie, was born to Earl and Deborah Ginnan on January 6, 1978.
4. Mr. Ginnan
A. Was indicted under Indictment No. 4312: "THE GRAND JURY OF THE COUNTY OF STEUBEN, by this indictment, accuse the defendant, Earl E. Ginnan, Jr., of the crime of Murder in the Second Degree, in violation of Section 125.25(1) of the Penal Law of the State of New York, a Class A-1 Felony, in that the defendant, on or about the 8th day of July, 1978, at approximately 6:00 a. m., at the Wishing Well Trailer Park in the Town of Lindley, County of Steuben, State of New York, did with intent to cause the death of another person, cause the death of such person, to wit: at the aforesaid time and place, the defendant did cause the death of one DEBORAH J. GINNAN by means of shooting her in the head with a .22 caliber rifle."
B. Did plead guilty to a reduced charge of Manslaughter in the First Degree, a violation of Subsection 2 of Section 125.20 of the Penal Law.
C. Was sentenced on March 3, 1979, to an indeterminate term of imprisonment at a New York State Correctional Institution at Attica, New York, with a maximum of twenty-five (25) years.
5. The subject infant, Stacy Marie Ginnan, was delivered to the physical custody of her great-grandfather, Clarence Brant, on or about July 8, 1978, by Joyce Ginnan, the sister of Earl Edward Ginnan, Jr. The infant's physical custodial arrangements have remained unchanged.
6. There is before this Court:
A. A petition, affidavit, and an order to show cause to determine the custody of Stacy Marie Ginnan made by Earl Edward Ginnan, Sr. and Joyce Ginnan, Petitioners v. Earl Edward Ginnan, Jr., Respondent, and Clarence Brant, Respondent, dated September 22, 1978.
B. A petition to intervene in the above custody petition by Gerald P. Brant and Patricia Brant, dated October 12, 1978.
C. An amended petition for adoption by Gerald P. Brant and Patricia Brant, dated April 27, 1979.
D. A motion brought by Earl Edward Ginnan, Jr., Respondent, to:
(1) sever and dismiss the allegations of permanent neglect in the amended adoption petition, and
(2) dismiss the petitions for adoption because:
(a) § 111(2)(d) Domestic Relations Law is unconstitutional; and,
(b) the father's consent is lacking.
7. At a hearing on the motion held on June 26, 1979, this Court:
A. Took judicial notice of the file on the indictment and sentencing of Earl E. Ginnan, Jr., entitled People v. Earl E. Ginnan, Index No. 40,205 B. Agreed to dismiss, on consent of all the parties, the allegations of permanent neglect in the amended adoption petition.
8. The record reveals that the petitioner, Earl Ginnan, assaulted his wife, Deborah, on September 24, 1977, as a result of which Mrs. Ginnan was hospitalized for alleged attempted strangulation.
9. An amended petition for adoption was brought by the maternal great-aunt of the infant and her husband who reside in Florida. The Florida Department of Health and Rehabilitative Services stated that, inter alia, the Brant family could provide Stacy with warmth, love, and good physical care.
10. The great-grandparents, with whom the infant is currently residing, do not wish to adopt the child nor to have permanent custody.
11. It was stipulated by all the parties that before going forward with the adoption and custody petitions, the constitutional issues raised by the motions of Earl Edward Ginnan, Jr. should be resolved. The following decision is in response to the aforementioned stipulation.
The three issues raised by Mr. Ginnan are of great importance to the law of New York State, and to the basic philosophical attitude of the Legislature. Mr. Ginnan argues that Section III, Subsection (2)(d) of the Domestic Relations Law and Section 79(1) of the Civil Rights Law are unconstitutional because they deny him procedural and substantive due process as guaranteed by the Fourteenth Amendment to the United States Constitution. In addition, he claims that he is denied the equal protection guaranteed him under the United States Constitution and the Constitution of the State of New York.
The procedural due process argument is quickly resolved. The petitioner, Mr. Ginnan, was given notice of the proposed adoption. He has been granted every opportunity to be heard. He has appeared with counsel and argued his position. The Court has agreed to consider his arguments. His right to procedural due process has been satisfied by the Court's accommodation without regard to the statute.
Mr. Ginnan's second argument is that Section III, Subsection (2)(d) of the Domestic Relations Law and Section 79(1) of the Civil Rights Law deny him substantive due process because they automatically deny him his parental right to refuse to consent to an adoption. The relevant portion of the Domestic Relations Law states that in connection with an adoption "(t)he consent shall not be required of a parent or 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 . . . ." Section 79(1) of the Civil Rights Law provides, "Except as provided in subdivision two a sentence of imprisonment in a state correctional institution for any term less than for life or a sentence of imprisonment in a state correctional institution for an indeterminate term, having a minimum of one day and a maximum of natural life, forfeits all the public offices, and suspends, during the term of the sentence, all the civil rights and all private trusts, authority, or powers of, or held by, the person sentenced." The application of these statutes to Mr. Ginnan depend on the facts of this case.
Mr. Ginnan plead guilty to the manslaughter of his wife and, as a result of this, was committed to a State correctional institution for a minimum period of one (1) year and a maximum period of 25 years. At the time of Mr. Ginnan's conviction and incarceration, his infant daughter, Stacy Marie Ginnan was six (6) months old. At the time of writing this Decision, she is approximately 21 months old. Mr. Ginnan, because of his conviction and sentence to a State correctional institution, falls within the provisions of § 79(1) of the Civil Rights Law and thus within the provisions of § 111(2)(d) of the Domestic Relations Law.
It has long been the history of New York jurisprudence to deny to a felon his civil rights. Latterly, the State has divided those subject to this deprivation into two categories: one, those deprived permanently by being declared civilly dead (Avery v. Everett, 110 N.Y. 317, 18 N.E. 148 (1888)); and two, those felons who serve their sentences in a state correctional institution and who are sentenced there for more than one (1) day. The second group of felons have their civil rights suspended for the period of the sentence, regardless of any possible parole, unless those civil rights are restored at the discretion of a court of law upon petition of the felon.
The petitioner, Mr. Ginnan, correctly claims that parental rights are one of the most basic of rights, and is upheld by case law when he asserts that the presumption of constitutionality which ordinarily attaches to statutes can be rebutted when a constitutional right is fundamental. When dealing with rights so "essential," "basic," and "precious," no presumption of constitutionality attaches to the statute that impinges on these rights. Kramer v. Union Free School District, 395 U.S. 621, 627-628, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 59 L.Ed.2d 297; Harman v. Board of Education, 300 N.Y.2d 21, 88 N.E.2d 351 (1949).
The higher the right is regarded, the more jealously the courts guard it against government intrusion. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Thus, the constitutional question "comes to this Court with a momentum for respect" which is otherwise "lacking when an appeal is made to liberties which derive merely from shifting economic arrangements." Stanley v. Illinois, supra, at p. 651, 92 S.Ct. at p. 1212.
In support of his substantive claim, Mr. Ginnan relies heavily on cases dealing with unconsented-to termination of the parental rights of unwed fathers and the abandonment or neglect by the parent. Petitioner contends that Section 111(2)(d) of the Domestic Relations Law converts his suspension of civil rights into an absolute forfeiture of the fundamental human right to parentage. The recent Supreme Court case, Caban v. Mohammed, supra, 99 S.Ct. 1760, which dealt with gender-based...
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Anonymous, Matter of
... ... In Matter of Ginnan, 101 Misc.2d 853, 859, 422 N.Y.S.2d 1003, 1007, a case which but for the crime committed by the nonconsenting parent, is virtually identical in its facts to those here presented, it was stated that "(i)t is the prerogative of the State to pass laws when an individual acts contrary to the laws and ... ...
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Zisman, Matter of
... ... 63 N.Y.2d 1014, 484 N.Y.S.2d 508, 473 N.E.2d 736; Matter of Anonymous, 104 Misc.2d 985, 992, 429 N.Y.S.2d 987; Matter of Ginnan, 101 Misc.2d 853, 861, 422 N.Y.S.2d 1003) ... Moreover, we find that the petitioners, the maternal grandparents who have had custody of the children, continuously since May 25, 1979, shortly after their mother's murder, have provided them with a loving and caring home, and have ... ...
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Guardianship and Custody of Jonathan E. G., Matter of
... ... See, Matter of Ginnan, 101 Misc.2d 853, 863, 422 N.Y.S.2d 1003: "The court is aware that there may be a fact pattern which could give rise to a contrary decision. However, applying the facts of this case to the statutes, the court finds that section 111 (subd. 2, par. (d)) of the Domestic Relations Law and subdivision ... ...
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G.F.C.'s Adoption, Matter of
... ... That argument has been rejected where, as here, a hearing was afforded to the felon at which he was free to present evidence to show that an adoption would not best serve the child's moral and temporal interests (see Matter of Anonymous, supra; Matter of Ginnan, 101 Misc.2d 853, 422 N.Y.S.2d 1003 (Fam.Ct. Steuben Co.1979]; Matter of Anonymous, 79 Misc.2d 280, 359 N.Y.S.2d 738 [Surr.Ct. Nassau Co.1974] ). Respondent's suggestion that his right to procedural due process is abridged in that his lack of veto power over the adoption deprives him of any ... ...