St. John, In re

• Court: New York Family Court
• Writing for the Court: HUGH R. ELWYN
• Citation: St. John, In re, 272 N.Y.S.2d 817, 51 Misc.2d 96 (N.Y. Fam. Ct. 1966)
• Decision Date: 04 August 1966
• Parties: In re ST. JOHN. Application of Joseph FITZSIMMONS, as Commissioner of Public Welfare for theCounty of Ulster, Petitioner, for a Writ of Habeas Corpus to Determine Custodyof Elizabeth St. John, a Child now held by Michael LIUNI and Mary Liuni, hiswife,Respondents.

Page 817

272 N.Y.S.2d 817

51 Misc.2d 96

In re ST. JOHN Application of Joseph FITZSIMMONS, as Commissioner of Public Welfare for theCounty of Ulster, Petitioner, for a Writ of Habeas Corpus to Determine Custodyof Elizabeth St. John, a Child now held by Michael LIUNI and Mary Liuni, hiswife,Respondents.

Family Court, Ulster County.

Aug. 4, 1966.

Richard W. Griggs, Asst. County Atty., for petitioner.

Joseph Avis, Kingston, for respondents.

Joseph Spencer, New York City, Leonard N. Tarr, Brooklyn, of counsel, for Adoptive Parents Committee, Inc., amicus curiae.

HUGH R. ELWYN, Judge.

In this habeas corpus proceeding which has been referred to this Court by the Supreme Court the Commissioner of Public Welfare of Ulster County seeks to regain the physical custody of Elizabeth St. John, a four year old female child from the respondents, Mr. and Mrs. Michael Liuni in whose home the child had been placed by the Commissioner for boarding care. The Commissioner has legal custody of the child by virtue of surrenders for placement and adoption duly executed by the child's parents pursuant to the provisions of section 384 of the Social Welfare Law. The respondents are not related to Elizabeth, nor do they have legal custody. They have her on a temporary foster parent basis pursuant to an arrangement with the Commissioner of Welfare whereby the Department of Welfare assumes full responsibility for the support and maintenance of the child, including medical expenses, and the foster parents receive compensation for their services in providing board and care.

Pursuant to such a general arrangement, although no written agreement was signed by the Liunis with the Department of Welfare and no indication was given as to the length of time the child would spend with them, the Department on July 9, 1962 placed Elizabeth in the Liunis' care when she was only five days old. With the exception of the first five days of her brief life she has known no other home and no other parents. It is conceded by the Commissioner that the Liunis have provided Elizabeth with a good foster home and that their services as boarding parents have been wholly satisfactory.

Sometime during the end of the first year of Elizabeth's stay in their home, the Liunis inquired of their caseworker if the child were available for adoption. They were advised by the caseworker that it was not the policy of the Ulster County Department of Welfare to place children locally for adoption. Moreover, they were advised that the adoption of Elizabeth was not possible because of a legal entanglement.

It appears that Elizabeth was born to a married woman and fathered by someone other than her husband and that neither the husband of Elizabeth's mother, nor the putative father were available to give their consents. They were further told that in view of the presumption of legitimacy, no adoption of Elizabeth could be contemplated until such time as her mother's husband was available to give his consent, but that the attorneys for the Department of Welfare were trying to untangle the situation. As it turned out, Elizabeth was nearly two years old before her mother executed a surrender for her adoption on March 4, 1964 and it was not until Elizabeth was two and a half years old that the Department succeeded in locating the mother's husband and obtaining from him a surrender and consent to Elizabeth's placement for adoption.

After Elizabeth's arrival the Liunis accepted three other foster children in their home for varying periods of time, but none longer than ten months. At one time because of the urgings of the Department of Welfare they had three foster children in their home along with their own three children. The other foster children, with the exception of Elizabeth, were returned to the Welfare Department upon request.

At various times during Elizabeth's stay in their home the Liunis inquired of their caseworker concerning the adoption of Elizabeth, but these inquiries never reached the stage of any serious consideration by the Department. The Supervisor of the Child Welfare Division of the County Welfare Department testified that so far as the Liunis were concerned she 'doubt(ed) very much if the study would progress to the stage where an application would have been accepted by the Department;' further, that if such an application were now made by the Liunis she would not recommend its approval by the Commissioner.

In the first week of November 1965 while Mrs. Liuni had the care of her own three children and two foster children she suffered a breakdown and was hospitalized for approximately four weeks at the Albany Medical Center. During her confinement Mrs. Liuni's mother took care of the children until such time as Mrs. Liuni recovered. There is, however, no suggestion that either her own or the two foster children she had in care, including Elizabeth, were uncared for or in any wise neglected. After some period of hospitalization Mrs. Liuni's recovery proceeded rapidly and according to her own physician, Dr. John Olivet when he last examined her on April 29, 1966 a physical examination was negative with no signs of mental depression. The Doctor did acknowledge, however, that Mrs. Liuni had exhibited symptoms referrable to the menopause, that she had received shock therapy during the period of her hospitalization as part of the treatment for involutional melancholia which he defined as mental depression, occurring with the menopause and that in February 1961 she had undergone a hysterectomy.

The Liunis lay great stress on the fact that Elizabeth has been allowed to remain in their care for nearly four years, during which time they have, of course, developed a great love and affection for the child. In justification of their seeming delay in evolving a permanent plan for the placement of Elizabeth the Welfare Department asserts that in addition to the legal involvements attendant upon securing the parents' consent to adoption that they were laboring under a medical handicap as well. It seems that Elizabeth was born with a birth defect in the form of a skin blemish on her left temple, clearly visible and to some extent disfiguring. According to Bartholomew J. Dutto, medical advisor to the Welfare Department it was at first thought that plastic surgery might be necessary to repair this defect and that because of the high financial cost of such medical attention it would be better to keep the child until the Welfare Department could assume the responsibility, since once the Department released the child to the adoptive parents the Department would no longer have any control over whether it was done or not. The Doctor further explained that with the passage of time the birth defect tended to fade and that it was though medically advisable to see how the defect healed naturally before resorting to surgery.

Upon advice of their medical consultant plans for Elizabeth's adoption were deferred to await the healing process of time until finally in February 1966 the Department concluded that the birth defect, although still visible, had receded to a point where Elizabeth would be acceptable for adoption. Accordingly, the Department made arrangements for Elizabeth to be evaluated by the Albany Child Guidance Center, affiliated with Albany Medical College Union University to ascertain her readiness and fitness for adoption. The child was seen by Dr. Lenore M. Sportsman, Director of the Albany Child Guidance Center on February 17, 1966 and the following day the Director rendered her written report to the Commissioner of Welfare which reads in pertinent part as follows:

'This child was evaluated at our Center on 2--17--66.

'Elizabeth is a beautiful, blue eyed blond who looks and acts more like a five year old. She is a bright, probably superior, child who relates appropriately to adults, although in a somewhat exaggerated fashion.

'From the history of the boarding mother's emotional difficulties, we suggest that plans for permanent placement be initiated promptly, giving appropriate consideration to the boarding mother's vulnerability. It would be well to emphasize to the boarding father the hazard to his wife's mental welfare if this ambiguous relationship is continued indefinitely. Certainly, he should be helped to see that extended requirements of rearing another child, not yet school age, is likely to impose too great stress on his wife during the menopausal period of life, which is difficult for most women and may prove somewhat overwhelming to her.

'This in no way suggests that we are unmindful of the problems which may arise both for child and mother as separation is proposed and effected.'

Acting upon this report the Commissioner of Welfare advised the Liunis on March 18, 1966 that an adoptive home had been provided for Elizabeth and that the Department would like to start to introduce her to her adoptive parents with the co-operation of the Liunis. At the request of Mr. Liuni a meeting was arranged with Department of Welfare officials at which time he advised the Department that he and his wife wanted to adopt Elizabeth. They were advised, however, by the Department that their request for adoption could not be approved for the following reasons: (1) they were too old. Mr. and Mrs. Liuni are both 48 years of age and it was not departmental policy to approve of adoptive parents who were beyond normal child bearing years; (2) that Mrs. Liuni was not physically able to take on the care and responsibility of a young child at this time in view of her then recent hospital stay and emotional difficulties associated with the menopausal period of her life; (3) that the child who is blond, blue eyed and of fair complexion did not match the Liunis' ethnic background and (4) that foster parents have no legal claim on children committed to their care and that they have been paid for their services.

The Department of Welfare then demanded that the Liunis deliver...