Raquel Marie X., Matter of

• Decision Date: 10 July 1990
• Citation: 559 N.E.2d 418,76 N.Y.2d 387,559 N.Y.S.2d 855
• Parties: , 559 N.E.2d 418, 59 USLW 2062 In the Matter of RAQUEL MARIE X., an Infant. Mr. and Mrs. C., Respondents; Mr. T., Appellant, et al., Respondent. In the Matter of BABY GIRL S. Adoptive Parents, Appellants; Natural Father et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 855

559 N.Y.S.2d 855

76 N.Y.2d 387, 559 N.E.2d 418, 59 USLW 2062

In the Matter of RAQUEL MARIE X., an Infant Mr. and Mrs. C., Respondents Mr. T., Appellant, et al., Respondent In the Matter of BABY GIRL S Adoptive Parents, Appellants; Natural Father et al., Respondents.

Court of Appeals of New York.

July 10, 1990.

Domenick J. Porco, for appellant in the first above-entitled matter.

Richard S. Birnbaum, for Mrs. T., respondent in the first above-entitled matter.

Alan D. Scheinkman and Ronald J. Bavero, for Mr. and Mrs. C., respondents in the first above-entitled matter.

Richard J. Strassfield, Law Guardian, for Raquel Marie X. in the first above-entitled matter.

Alan D. Scheinkman, for appellants in the second above-entitled matter.

Joseph T. Gatti, Burke Probitsky and Paul G. Reilly, Jr., for Natural Father, respondent in the second above-entitled matter.

George Anthony Terzian and Mary A. Clarke, for Natural Mother, respondent in the second above-entitled matter.

Kevin C. Fogarty, as guardian ad litem, for Baby Girl S. in the second above-entitled matter.

Sue Wimmershoff-Caplan, for the Committee for Mother and Child Rights, Inc., et al., amici curiae.

OPINION OF THE COURT

KAYE, Judge.

The focus of these appeals, involving the adoption of newborn infants, is Domestic Relations Law § 111(1), which provides that--while an unwed mother's consent is always required--an unwed father's consent to the adoption of his under-six-month-old child is required only where he has openly lived with the child or the mother for six continuous months immediately preceding the child's placement for adoption, openly acknowledged his paternity during such period, and paid reasonable pregnancy and birth expenses in accordance with his means (Domestic Relations Law § 111[1][e]. We conclude that the statutory requirement that the father openly live with the mother before the child's placement for adoption neither legitimately furthers the State's interest nor sufficiently protects the father's, and that section 111(1)(e) must therefore be declared unconstitutional.

While the facts in both cases have been developed at length elsewhere (see, Matter of Raquel Marie X., 150 A.D.2d 23, 545 N.Y.S.2d 379; Matter of Baby Girl S., published in part at 141 Misc.2d 905, 535 N.Y.S.2d 676, aff'd without opn. 150 A.D.2d 993, 543 N.Y.S.2d 602), only a few are pertinent to the present analysis.

Both cases are adoption proceedings involving out-of-wedlock children whose birth mothers executed consents to their adoption. The putative adoptive parents were strangers to the children. In each case the child is a girl now just two years old--Baby Girl S. was born on April 24, 1988, Raquel Marie on May 26, 1988. Baby Girl S. was placed for adoption by her mother on April 27, 1988, two days after her birth; Raquel Marie on July 22, 1988, two months after her birth. In each case, the biological parents did not live together for any sustained period of time prior to the child's placement. However, after the initial estrangement during which each unwed mother sought adoption for the child--thus implicating the lives of hopeful adoptive parents--the biological parents reunited and the mother thereafter supported the father's efforts to gain custody of the child. No question of fitness or abandonment is in issue.

In Raquel Marie, on November 4, 1988, approximately three months after the child was placed for adoption, the biological parents--Louise and Miguel--were married, but they do not have custody of the child, who has lived virtually her entire life with her adoptive parents in New Hampshire. The trial court, after a hearing limited to the issue of the need for Miguel's consent under Domestic Relations Law § 111(1)(e), concluded that while Louise and Miguel lived separately in the relevant six-month period before placement--during which he several times assaulted her--they had a sufficiently continuous and ongoing relationship to meet the "living together" requirement of the statute, loosely construed; the court additionally found that, in the key six-month period, Miguel had openly held himself out as the child's father and contributed to the pregnancy and birth expenses, thus entitling him to veto the adoption.

The Appellate Division took a different view of the couple's tumultuous relationship in the six months preceding placement, concluding that it was "neither normal nor stable." (150 A.D.2d, at 26, 545 N.Y.S.2d 379.) In that Miguel failed to satisfy the "living together" requirement of the statute, the Appellate Division determined that he had no right to veto the adoption. While the court explicitly premised its holding on Miguel's failure to meet the "living together" requirement, it additionally observed that there was little evidence of Miguel's compliance with the remaining two requirements of Domestic Relations Law § 111(1)(e), or of any effort on his part to manifest substantial parental responsibility. Miguel's appeal is before us as a matter of right, on a constitutional question (CPLR 5601[b].

In Baby Girl S., while the biological parents (Regina and Gustavo) also did not live together in the relevant six-month period preceding the child's placement, the affirmed findings of the Surrogate established a course of conduct over several months that prevented Gustavo from even knowing of the pregnancy or his paternity, thus rendering literal compliance with the statute impossible. The Surrogate, unanimously affirmed by the Appellate Division, concluded that the adoption should fail both because of fraud of the adoptive parents during the proceeding and because--reading a "savings clause" into the statute for prevention by others--Gustavo did as much as possible to fulfill the statutory requirements and therefore was entitled to veto the adoption. The Surrogate on November 15, 1988, ordered the child transferred from the adoptive parents to Gustavo, with whom she has since remained. After the Appellate Division affirmance, we granted the prospective adoptive parents' motion for leave to appeal.

Concluding that the "living together" prong of Domestic Relations Law § 111(1)(e) renders the statute unconstitutional, we now reverse the Appellate Division order in Raquel Marie; in Baby Girl S., we affirm on the statutory ground and affirmed findings of Gustavo's substantial parental interest, without reaching the question of fraud on the part of the adoptive parents. ¹ The New York Statute Against the

Backdrop of Five Supreme Court cases ²

Assessment of the New York statute and the parties' claims regarding its validity can only be undertaken in the context of the five Supreme Court cases that have shaped the constitutional contours of the unwed father-child relationship.

The evolution of the case law, and corresponding amendments of the New York statute, are themselves a commentary on changing family patterns and social attitudes toward unwed fathers (see generally, Note, Certainly Not Child's Play: A Serious Game of Hide and Seek with the Rights of Unwed Fathers, 40 Syracuse L.Rev. 1055 [1989]; Raab, Lehr v Robertson: Unwed Fathers and Adoption--How Much Process is Due?, 7 Harv.Women's L.J. 265 [1984]; Comment, Caban v Mohammed: Extending the Rights of Unwed Fathers, 46 Brooklyn L.Rev. 95 [1979]; Note, The Unwed Father's Rights in Adoption Proceedings: A Case Study and Legislative Critique, 40 Alb.L.Rev. 543 [1976]; Comment, The Emerging Constitutional Protection of the Putative Father's Parental Rights, 70 Mich.L.Rev. 1581 [1972].

Until the 1970's, unwed fathers had no legally recognized interest. That point is amply illustrated by the 1972 Supreme Court decision in Stanley v. Illinois 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, where children born during a nonmarital cohabitation that spanned 18 years, under Illinois law became wards of the State upon their mother's death.

Stanley established that a father's interest "in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection" (id., at 651, 92 S.Ct. at 1212); the sense of the parental tie as a fundamental interest appears throughout the court's opinions in this area. Illinois' blanket assumption that all unwed fathers were unfit was found to have violated both equal protection and due process, which entitled Stanley to a hearing on his fitness as a parent before the State could terminate his parental rights. The Supreme Court rejected the State's claim that unmarried fathers could reasonably be presumed unqualified to raise their children, and recognized that a father in Stanley's situation had a constitutional interest in his relationship with his nonmarital children entitled to the same protection against State interference as the interests of other custodial parents.

Following Stanley, the New York Legislature in 1976 added Domestic Relations Law § 111-a, for the first time requiring that an unwed father in enumerated circumstances be given notice of an adoption proceeding, which would then entitle him to present evidence relevant to the best interests of the child (L.1976, ch. 665). Still an unwed father in New York had no right to veto an adoption to which the mother had consented.

In 1978, relying on Stanley, Leon Quilloin sought the right to veto the adoption of his 11-year-old child by the boy's stepfather. While Quilloin's name appeared on the birth certificate, he never had custody, or regularly supported or visited the child, nor did he attempt to legitimate him until receiving notice of the proposed adoption. Rejecting Quilloin's equal protection and due process claims, the Supreme Court identified the issue, unresolved by Stanley, as one of the degree of protection a State must afford "the rights of an unwed father in a situation, such as that presented here, in which the countervailing interests are more substantial." (Quilloin v. Walcott, 434 U.S. 246, 248, ...