People ex rel. Louisa v. Faella
| Decision Date | 14 June 1971 |
| Citation | 322 N.Y.S.2d 831,37 A.D.2d 598 |
| Parties | PEOPLE of State of New York ex rel. Patricia LOUISA, an infant, etc., et al., Appellants, v. Alfred FAELLA et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
John Dewitt Gregory, New York City, Community Action for Legal Services (Marcia Lowry, New York City, of counsel), Richard S. Panebianco, Brooklyn, Williamsburg Legal Services, for appellants.
Harold S. Keller, Brooklyn, for respondents.
Before RABIN, P.J., and HOPKINS, CHRIST, BRENNAN and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
In a habeas corpus proceeding to obtain custody of a child, the appeal is from an order of the Family Court, Kings County, dated November 19, 1970, which dismissed the writ and awarded custody of the child to respondents.
Order reversed, on the law and the facts, without costs, writ sustained and custody of the child awarded to petitioner Patricia Louisa.
On this record it is, to say the least, doubtful that the surrender by petitioner Patricia Louisa of her baby and her consent to the child's adoption were truly voluntary. If it be assumed that they were, the consent was effectively revoked by a request for the return of the baby less than 30 days after it was surrendered and the consent was signed.
And in this contest between the natural parent (petitioner) and nonparents (respondents) we further find on this record that respondents did not sustain their burden of proving that petitioner abandoned the baby or is 'unfit to assume the duties and privileges of parenthood', within the guidelines of People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 468, 113 N.E.2d 801, 803, and People ex rel. Scarpetta v. Spence-Chapin Adoption Service, 28 N.Y.2d 658, 320 N.Y.S.2d 527, 269 N.E.2d 196, dec. April 7, 1971. (See, also, Matter of Anonymous, 60 Misc.2d 854, 304 N.Y.S.2d 46; cf. People ex rel. Anonymous v. Anonymous, 10 N.Y.2d 332, 222 N.Y.S.2d 945, 179 N.E.2d 200.)
Hence petitioner's writ should have been sustained and custody of the baby awarded to her.
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Nicky, In re
...65, 269 N.E.2d 787 (22 days after surrender); Matter of Overton, 44 A.D.2d 900, 356 N.Y.S.2d 387 (two weeks); People ex rel. Louisa v. Faella, 37 A.D.2d 598, 322 N.Y.S.2d 831 (30 days); People ex rel. Anonymous v. Wise Services, 21 A.D.2d 327, 250 N.Y.S.2d 507 ('less than one month'); Matte......
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Infant D., In re
...consent purportedly executed by petitioner was in fact timely revoked (People ex rel. Kropp v. Shepsky, Supra; People ex rel. Louisa v. Faella, 37 A.D.2d 598, 322 N.Y.S.2d 831). The only remaining ground for affirmance is the finding of unfitness, which finding, as already noted, would rend......
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Adoption by Emanuel T., In re
...that they were given improvidently; that they cannot be deemed knowing and 'truly voluntary' consents (compare P. ex rel. Louisa v. Faella, 37 A.D.2d 598, 322 N.Y.S.2d 813); and that they must be held invalid. They were the result of overreaching, if not implicit deception and fraud, by pet......