Guardianship and Custody of Jonathan E. G., Matter of

• Decision Date: 30 December 1980
• Citation: 107 Misc.2d 900,436 N.Y.S.2d 546
• Parties: In the Matter of The GUARDIANSHIP and CUSTODY of JONATHAN E. G., A Dependent Child. In the Matter of The ADOPTION of an Adoptive Child having the Name of JONATHAN E. G.
• Court: New York Family Court

Page 546

436 N.Y.S.2d 546

107 Misc.2d 900

In the Matter of The GUARDIANSHIP and CUSTODY of JONATHAN E. G., A Dependent Child. In the Matter of The ADOPTION of an Adoptive Child having the Name of JONATHAN E. G.

Family Court, Schenectady County.

Dec. 30, 1980.

Frank Tedeschi, Schenectady County Dept. of Social Services, Vincent J. Reilly, Jr., Schenectady, on behalf of adoptive parents.

Arthur A. Pasquariello, Schenectady, on behalf of respondent Jonathan G.

Mary M. Coffin, Law Guardian, Schenectady.

Robert Abrams, Atty. Gen., State of New York, Shirley Adelson Siegel, Sol. Gen., of counsel.

HOWARD A. LEVINE, Judge.

Before the court are two petitions in which the central issue is whether statutory grounds have been established to dispense with the consent of respondent, the natural father of an infant boy born January 2, 1978, to that child's adoption by foster parents who have continuously had him in their care since he was three months old. The first petition, filed January 11, 1979, was that of the Schenectady County Department of Social Services (the "Department"), to commit the guardianship and custody of the child to the Department under Social Services Law § 384-b, and thereby to terminate respondent's parental right to refuse to consent to adoption, on the statutory ground of abandonment (SSL section 384-b, subs. (4)(b) and (5)(a)). The second petition, subsequently filed, was that of the foster parents, seeking the direct adoption of the child, and setting forth alternative grounds for dispensing with parental consent under two subsections of section 111 of the Domestic Relations Law, namely, DRL section 111(2)(a), that respondent "evinces an intent to forego his or her parental or custodial rights and obligations * * * ", and subsection 111(2)(d), that respondent "has been deprived of civil rights * * * ". The natural mother of the child and wife of respondent has previously executed an absolute surrender for adoption and therefore her rights were not in issue in this proceeding.

Subsequent to the filing of the first petition, the court was advised that respondent was then incarcerated in the State of Texas, arising out of a December, 1978 arrest for aggravated robbery, a felony, for which he was ultimately convicted and sentenced to a term of 5-15 years in the Texas prison system in May, 1979. At respondent's request in an affidavit submitted to the court, and through the cooperation of the Texas prison authorities, the service of his Texas sentence was interrupted and respondent was returned in custody to Schenectady, to permit him to appear and participate fully in the consolidated trial of the two petitions. In his affidavit he represented that if returned to this jurisdiction for the trial, he would voluntarily return to Texas without impeding that return, legally or otherwise, at the conclusion of the trial. Respondent attended all sessions of the trial, except for a brief continuation of the hearing after the close of the main case wherein it was established that he had escaped from custody while boarding an airplane to return to Texas to serve the balance of his sentence. Respondent was later apprehended in the State of Virginia, and there is presently pending in New York State a felony escape indictment against him.

The evidence established that respondent and the child's mother, during a period of intense matrimonial turmoil, and after a custody contest had been commenced in the Family Court, voluntarily placed the child in foster care in early April, 1978. A plan for visitation and social services to both parents was agreed upon between the parents and the Department, and incorporated in a court order in the custody proceeding on June 6, 1978. The plan provided that respondent would have bi-weekly visitation rights with the child at his mother's home and that he was also to attend regular counseling sessions at the Ellis Hospital Mental Health Clinic. It was conceded by respondent that he attended only one appointment at Ellis Hospital, and respondent's mother testified that he attended only two or, at most, three of the six scheduled visits with the child at her home during the months of April, May, and June, 1978; that in fact, as respondent himself testified, he left Schenectady during about the third week of June, 1978, travelled west, arrived in Texas and remained there continuously, except for a single visit to Schenectady for one week over the Thanksgiving holiday in 1978.

As previously indicated, it was established through his testimony and through a certified judgment of conviction, that he was arrested in December, 1978, and convicted in May, 1979, of aggravated robbery and sentenced to an indeterminate term of not less than 5 nor more than 15 years in the Texas prison system.

The abandonment issue, raised by the Department under SSL section 384-b, and the ground for dispensing with parental consent based upon respondent's intentional relinquishment of parental rights, raised by the foster parents under DRL subsection 111(2)(d), involved common issues of law and fact, and were resolved on purely factual grounds against the respondent. These issues are discussed in detail in a separate unpublished opinion.

The second ground for dispensing with parental consent set forth in the adoption petition is that respondent is a parent "who has been deprived of civil rights pursuant to the civil rights law and whose civil rights have not been restored * * * " (DRL section 111(2)(d)). The applicable section of the Civil Rights Law, section 79, reads as follows:

"Except as provided in subdivision two a sentence of imprisonment in a state correctional institution for any term less than for life * * * forfeits all of the public offices, and suspends, during the term of the sentence, all of the civil rights, and all private trusts, authority, or powers of, or held by, the person sentenced."

Comparable provisions had been contained in the New York statutes for many years prior to its current enactment in section 79.

The first objection raised by respondent to the application of DRL Section 111(2)(d) is that, as a penal statute, Civil Rights Law section 79 must be strictly construed to apply only in cases of a conviction in a New York court and sentence to a term in a New York State correctional institution. It is uncontested that the crime of which respondent was convicted and sentenced would have been a felony under New York law if committed in this State. Also, it was established that the parental and marital rights involved here were all created in New York, the last place of permanent domicile of this respondent. It is true that the civil disabilities upon conviction and sentence contained in Civil Rights Law, section 79 are generally penal in nature. As will be more fully explained below, however, its application under DRL section 111 is part of a general remedial scheme to achieve permanency for children in their parent-child relationships by removing legal barriers to their adoption. Respondent has been rendered neither more nor less incapable of providing a stable and continuous home and parental care for his child because his conviction and sentence to a 5-15 year prison term took place in Texas rather than in New York.

The prevailing case law permits parental consent to be dispensed with in an adoption proceeding on the basis of a non-New York State conviction, providing the crime was the equivalent of a felony under New York law and the sentence was to the equivalent of a New York State prison. See, Matter of Anonymous, 17 Misc.2d 691, 187 N.Y.S.2d 870; and In Re Miller, Co.Ct., 179 N.Y.S. 181. Moreover, the New York courts have imposed the loss of other civil rights with respect to out-of-state convictions. See Nastasi v. State of New York, 186 Misc. 1051, 61 N.Y.S.2d 438; Pallas v. Misericordia Hospital, 264 App.Div. 1, 34 N.Y.S.2d 881, aff'd. 291 N.Y. 692, 52 N.E.2d 590; Wilder v. Wilder, 181 Misc. 1059, 43 N.Y.S.2d 287 and Matter of Lindewall, 287 N.Y. 347, 39 N.E.2d 907. On the basis of the foregoing clear precedent applying Civil Rights Law section 79 and its predecessor statutes to non-New York State felony convictions and sentences and because of the underlying purposes of DRL section 111(2)(d), it is therefore my determination that this statutory ground for dispensing with parental consent to adoption applies to respondent's Texas conviction and sentence.

Respondent has also attacked DRL section 111(2)(d) on the ground that the statute is unconstitutional and invalid under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Specifically, respondent claims that a statute eliminating the need for parental consent because of incarceration has no rational basis in that it "totally ignores good and positive qualities which may exist in the relationship between parent and child", that the fact of incarceration may have "absolutely no relevancy to the issue of 'good parenting' ", and may result in the termination of parental rights of an individual who has been a "model parent", and who has developed strong and permanent ties with his child.

The circumstances of the instant case bear little resemblance to the foregoing suggested applications of the statute. In point of actual fact here, since there has been no contact between respondent and his child since it was three months old, no viable parent-child relationship exists. And no such relationship can be created at least until respondent's earliest possible parole in 1984, without reflecting the various penal effects of his escape from custody following the trial. Indeed, the only meaningful parent-child relationship in this case is the one existing between respondent's child and the foster parents, the petitioners in this adoption proceeding, who have had his continuous care and custody since the age of three months, and who described in detail the full integration of the child into...