'Tommy', Matter of
| Decision Date | 18 January 1956 |
| Citation | 1 Misc.2d 378,148 N.Y.S.2d 39 |
| Parties | In the Matter of TOMMY, a child thirteen years of age. * Domestic Relations Court of City of New York, Children's |
| Court | New York Domestic Relations Court |
Meyer, Kissel, Matz, Reynolds & Seward, New York City (Gove B. Harrington, New York City, of counsel), for the petitioners.
Tommy is a youngster 13 years of age, the whereabouts of whose natural parents has been unknown since his infancy.
With their consent and through a welfare agency, at the age of four and one-half months, the County Court of Knoxville in the State of Tennessee granted legal adoption of Tommy to a married couple hereinafter referred to as the Vines. The adoptive parents were married in Nevada in a civil ceremony in December 1940. Tommy, who was born in 1942, was adopted by them as aforesaid in January 1944.
The matrimonial bliss of the Vines was ended by a decree of the Supreme Court of the State of New York, Ulster County, in June 1946 when the adoptive father obtained a judgment of absolute divorce against the adoptive mother dissolving the marriage heretofore existing between them, and forbidding the mother to marry any person other than the adoptive father during the lifetime of the adoptive father except by express permission of the Court. The adoptive father remarried another woman.
Tommy, after the divorce decree, lived for a time with his adoptive mother and then for a spell with his adoptive father until strained relationship developed between the boy and his adoptive father's new spouse. The adoptive father then sent Tommy to his adoptive mother where he continued to live until on or about October 26, 1954.
Tommy was very unhappy in his adoptive mother's home due to her addiction to drink and association with immoral characters, male and female. It became a common practice for the adoptive mother, whenever on one of her sprees or escapades, to leave Tommy stranded and on his own resources. The only ray of kindness visited upon him was the interest of neighbors who sheltered him from time to time when he was thus left alone.
In October 1954, the Society for the Prevention of Cruelty to Children, by sworn petition, instituted a proceeding in this Court against both the adoptive mother and father of Tommy and on October 26, 1954 this Court ordered and adjudged Tommy to be a neglected child.
In the course of the neglect proceeding the facts indicated that during the summer of 1954 Tommy was with his adoptive mother at Fire Island where petitioners who are legally married and living together as husband and wife accorded him kindness and the hospitality of their home whenever his adoptive mother left him alone. He wandered over to petitioners for comfort and assistance on innumerable occasions.
It has often been said that it is an ill wind that blows no good. For Tommy the dawn of a new life began when one of the recent hurricanes in all its velocity struck Fire Island. Tommy was left to its peril due to his adoptive mother's disappearance overnight on a mission of satisfying her thirst for alcoholic beverages. The boy sought refuge at the home of petitioners who welcomed him and sheltered him under their protective wing. The ill wind of the hurricane with ravaging force had torn Tommy from the insecure moorings of improper guardianship and control of his adoptive mother. He was transplanted into a new home atmosphere that was destined to be his very own in the not too distant future.
It was in appreciation of the warmth and many kindnesses petitioners had extended to Tommy that he requested the Court at the time of the adjudication of neglect against his adoptive mother to permit him to stay with petitioners. The Court granted his wish and paroled him in their custody. He has been with them ever since.
Petitioners have no children and occupy an apartment of five large rooms in a good residential section of the Borough of Manhattan. Tommy has his own room there. Petitioner-husband is self-employed in the insurance, real estate business and both petitioners are highly respected, fairly substantial and very personable individuals.
In December 1955 petitioners instituted a proceeding in this Court for an order allowing and approving their adoption of Tommy and that he be known and called by their name.
A copy of the petition for adoption with notice of hearing was duly served by the attorneys for petitioners on the attorney of record of the adoptive father and the attorney of record of the adoptive mother. The adoptive mother failed to appear in person or by attorney on the return date. The Court thereupon adjourned the matter and issued a subpoena for the adoptive mother to appear on the adjourned date. She ignored the subpoena of the Court and failed to attend. The Court thereupon proceeded with the hearing and testimony was given by petitioners, the adoptive father, the boy, and the Probation Officer.
The testimony established that petitioners were married to each other in September 1939 and neither has any previous marriage; that they both enjoy good health; that petitioner-wife attends to the household duties while petitioner-husband, who attended college and law school, is engaged in the real estate business. Both petitioners have wholesome habits. They enjoy bridge, swimming and tennis and have a summer home on Fire Island. Both indicate great love for Tommy and express the desire to adopt and furnish him with the security he needs. During the period that he had resided with them they have clearly shown their love for him and their interest in his welfare and growth. His health has improved from an undernourished child to a physically sound boy. They took him out of public school and enrolled him in a private school where he has improved and is getting special attention and a good education.
Tommy appeared before the Court and gave the impression of a well-rounded youth, physically, mentally and spiritually; of excellent manners, demeanor and poise. He is thirteen years of age now. When the Court inquired of him if he understood what the proceedings were all about and if he would like to give his reaction to the same he responded as follows
'Court: Well, do you feel now that Mr. _____ has acted as a father toward you in his attitude and the things he has done for you and with you?
'Tommy: Yes.
'Court: And, do you feel that Mrs. _____ has treated you the way a mother would and do you feel that she is like a mother to you?
'Tommy: Yes, I do Your Honor.
'Tommy: Very much so, Sir.'
Petitioners and the adoptive father in the presence of the Court signed and executed an agreement of adoption, which has been made part of the record, wherein petitioners covenant and agree to adopt Tommy and to treat him and regard him in all respects as their own lawful child extending and assuring to him all rights, benefits and privileges incident to such relation and to fulfill all the responsibilities and duties of parents in respect to him. The adoptive father consented to the adoption of Tommy by petitioners, covenanted to agree and acquiesce therein and to refrain from doing or causing to be done any act or anything whatsoever which will in any way interfere with the rights, duties and privileges of Tommy when so adopted.
Tommy has followed the Protestant faith in which he has been brought up. Petitioner-husband is of the Jewish faith but testified that he had not practiced his religion since the age of fifteen. He testified that he encouraged Tommy to follow the religious faith in which Tommy believes and approves of Tommy attending with regularity the Episcopal Church to which he goes. Petitioner-wife is a Protestant and attends the Episcopal Church with Tommy.
The Rector of the Episcopal Church attended by Tommy and petitioner-wife, under date of December 28, 1955 has sent a communication to the Probation Department of this Court which letter has been received in evidence in this proceeding in which he states:
'I cannot say that I know either Mr. or Mrs. _____ intimately but I think I know them well enough to have every hope that the Court will grant their petition....
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