Opinion
20011/2009.
Decided January 29, 2010.
Frederick J. Magovern, Esq., New York, NY, Woodbury, NY, Lisa Gibbons, Esq., Woodbury, NY, For prospective adoptive mother, Deborah B.
Fred Wertheimer, Esq., Brooklyn, NY, for birth father, Patrick H.
Steven London, Esq., Brooklyn, NY, for birth mother, Alexandria H.
Brad M. Nacht, Esq., Brooklyn, NY, Guardian ad litem for the child.
Pending before the court is Deborah B.'s petition for the adoption of Josie H. and the parents' application to revoke their consent to the adoption. Josie H. was born in Maryland on May 8, 2009, to Alexandria H. and Patrick H. The next day her parents signed papers consenting to their baby's adoption and on May 10, 2009, Josie left the hospital with the prospective adoptive mother, Deborah B., of Brooklyn, New York. Four days after signing the extra-judicial surrender instrument, the parents, realizing they had made a grave mistake, spoke with an attorney to inquire how they could regain custody of their baby. The next day, on their own, they drafted a revocation of their consent to the adoption and mailed it to the Court on May 15, 2009. Deborah B. filed a notice of intent to oppose the revocation. A guardian ad litem was appointed for Josie and a hearing ensued. For the reasons set forth below the Court determines that it is in the best interest of Josie H. that the revocation of consent to the adoption be given effect and that custody revert back to the parents.
Procedural and Factual Background
The hearing in this matter commenced on July 20, 2009, and concluded on December 2, 2009. Fifteen witnesses testified over the course of nine days. Alexandria H. and Patrick H. testified on their own behalf, and presented the testimony of the maternal grandfather, Anthony H.; the paternal grandmother, Lisa H.; the paternal great grandmother, Diane G.; a social work case manager, Ms. R.; Deborah B.'s therapist, Dr. Bernstein; and psychiatric expert, Dr. Mayer. Deborah B. also testified on her own behalf and presented the testimony of her mother, Marsha B.; her best friend, Deborah R.; her sister, Michelle S.; a social worker, Dr. Rosenfeld; the mother of Patrick H.'s son, Chasity S.; and psychiatric expert, Dr. Tuckman. The pertinent facts adduced at trial are as follows.
Josie's mother, Alexandria H., is a single, twenty-three-year-old African-American woman. Alexandria H. resides in Waldorf, Maryland in a two-story, four-bedroom, three-bathroom home with her father, stepmother, her two-and-a-half-year-old daughter Morgan, and her two younger sisters, ages five and two. She has lived with her father for the last eight years. Alexandria H. graduated from high school in 2004, and then commenced a dental assistant course at a community college. She completed an internship as a dental assistant but ultimately chose not to pursue employment as a dental assistant. Alexandria H. testified that she is currently taking classes to be a medical assistant and a diagnostic sonographer at a local community college. At the time she testified in July 2009, Alexandria H. was employed as a hostess at a restaurant, however she is no longer employed at this restaurant. Alexandria H. has done volunteer work for her church running the arts and crafts class in a summer camp. Prior to working at the restaurant, Alexandria H. worked at a Christian academy, teaching a classroom of eleven four-year-olds. Currently, Alexandria H. stays home with Morgan during the day and goes to school at night. Alexandria H. does not have to pay rent to her father, but she contributes towards household bills and expenses and provides for Morgan's food, clothing, and medical care. The father of Morgan is not involved in Morgan's life. Alexandria H. receives food stamps and health insurance through a public plan, and has a small savings account.
Josie's father, Patrick H., is a single, twenty-two-year-old African-American man. Patrick H. resides in Waldorf, Maryland in a three-story, three-bedroom, three-and-a-half-bathroom townhouse with his mother and fourteen-year-old brother, Justin. Patrick H. graduated high school in 2005. Since graduating high school, he has worked at various retail stores. Patrick H. is currently employed in a large retail store and has a small savings account. He is the father of a two-year-old son, Jakhi. Patrick H. shares joint legal custody of Jakhi with Jakhi's mother, Chasity S. While Chasity S. has primary physical custody of Jakhi, Patrick H. sees Jakhi almost on a daily basis. Patrick H. pays court ordered child support to Chasity S. for Jakhi.
Remarkably, Deborah B. asserts for the first time in her summation that Patrick H.'s consent is not required for Josie's adoption because he does not meet the requirements set forth in DRL § 111(1)(e) for a father of a child born out-of-wedlock. This argument is unavailing for several reasons. Pursuant to DRL § 115-b(6)(d) the hearing was conducted solely to decide whether Josie's best interests would be served by giving full force and effect to the parents' revocation. Accordingly, DRL § 111(1)(e) is not implicated here. Additionally, Deborah B. never questioned Patrick H.'s status to consent to Josie's adoption from the time she filed her petition through the conclusion of the hearing in this matter.
Deborah B. is a single, forty-year-old Caucasian woman who resides in Brooklyn, New York. Deborah B. currently resides in a two bedroom apartment along with Josie H. She graduated high school in 1987, and received a bachelor's degree in 1991. Deborah B. is currently employed at a large children's media company as a vice president for event marketing, and earns over $200,000 per year; she has been working at this company for the last thirteen years. Deborah B. has appreciable savings and assets. Her immediate family, who reside in Suffolk County, New York, consists of her mother, father, sister, nieces and nephew. Deborah B. has volunteered mentoring young girls. Deborah B. decided to pursue a family by way of adoption in the spring of 2006. She contacted a social worker, Dr. Rosenfeld, and commenced the home study process in May of 2006. Deborah B. originally wanted to adopt a child from China, however she decided to adopt domestically because of the lengthiness of the international process.
Alexandria H. discovered that she was pregnant in September 2008 and soon thereafter began pre-natal care at a pregnancy center in October/November 2008. Alexandria H. informed Patrick H. of the pregnancy in or around September 2008. Alexandria H. chose not to tell her father about the pregnancy until February or March 2009. Alexandria H. testified that she was scared to tell her father about the pregnancy because she already had a young child at home, and her father had indicated to her in the past that she could not bring another child into the house. Patrick H. did not tell any members of his family about the pregnancy until after the baby was born. Because of their understanding that the baby could not reside with Alexandria H. in her father's home, they were in agreement to place the baby for adoption.
Alexandria H. and Patrick H. had commenced a romantic relationship in April 2008. However, they stopped seeing each other in November 2008. Patrick H. moved out of his mother's house in early January 2009 and resided for several months with Chasity S. and Jakhi, and then moved back to his mother's home. Alexandria H. and Patrick H. began seeing each other again in April 2009, approximately one month prior to Josie's birth. Throughout this proceeding, they have remained steadfast in their goal of regaining custody of their child and have evinced an intent to cooperate in parenting Josie.
Alexandria H. embarked on a search to find a suitable adoptive parent for her child. She first became acquainted with Deborah B. in January 2009 when Alexandria H. responded to an adoption advertisement that Deborah B. had placed in a pennysaver newspaper. Deborah B. sent Alexandria H. an adoption profile and they communicated regularly via telephone and e-mail. Alexandria H. found Deborah B. to be warm and chose her to be Josie's adoptive parent in February 2009. Patrick H. was in agreement with Josie being adopted by Deborah B. Alexandria H. agreed that Deborah B. would name the baby, and be present for the birth. Prior to the birth of Josie, Alexandria H. met with an adoption attorney referred by Deborah B.'s attorney and paid for by Deborah B. The adoption attorney explained the private adoption process to Alexandria H. and provided her with initial paperwork for her to complete.
On May 8, 2009, Alexandria H. called Deborah B. stating that she was in labor. Deborah B. drove down to Maryland along with her parents. Morgan's paternal grandmother, Terri S., drove Alexandria H. to the hospital. Both Terri S. and Deborah B. were present for the birth of Josie on May 8, 2009. Patrick H. arrived shortly after Josie was born.
Alexandria H. testified that although she wanted to honor her commitment to Deborah B., she had second thoughts about the adoption from the beginning. After giving birth to Josie, she described feeling "a pain inside my body" and a "heartache" as she held Josie in her arms for the first time. Patrick H. similarly testified that after they saw Josie, he "fell in love with her." Alexandria H. further testified that after Josie was born, she bathed her, fed her, and even kept Josie in her hospital room with her overnight. The adoption attorney came to the hospital on May 9, 2009 and reviewed the terms of the extra-judicial consent forms with Alexandria H. and Patrick H. Alexandria H. and Patrick H. each testified that they had reservations about their decision to place Josie for adoption, however they both ultimately signed the consents as they felt that they had no other options. Alexandria H. testified that she believed that she, Morgan, and the baby would not have a place to live if she brought the baby home.
Later that same evening, Josie's parents had regrets about signing the consents and decided that they did not want Josie to be adopted. However, they did not act on their reservations. Josie was discharged from the hospital on Sunday, May 10, 2009, to the care of Deborah B. That same day, Alexandria H. called Deborah B. to see if Deborah B. was still in the hospital with Josie because Patrick H. wanted to see Josie one last time. Deborah B. had already left the hospital, however she promised to e-mail photos of Josie that night, which she did. Patrick H. testified that he drove Alexandria H. home from the hospital and they spoke about getting Josie back the entire time. On May 10, 2009, Alexandria H. spoke to her father and learned that Josie was welcomed in her father's home. Over the next few days, both Alexandria H. and Patrick H. consulted with their respective families about Josie and they discovered that, contrary to their beliefs, they had the full support of both families in raising Josie, and concluded that they had, indeed, made a grave mistake in signing the consents. On May 12, 2009, Alexandria H. also called Deborah B. to inquire about how Josie was doing. However, she did not ask for Josie's return. But on May 13, 2009, Alexandria H. contacted their adoption attorney, informing him that she wanted Josie back. The attorney explained to Alexandria H. that he would not act on their behalf and that she and Patrick H. had to write a letter to the court revoking their consent. As soon as Alexandria H. got off the phone with her attorney, she began writing the letter. The final, notarized letter revoking their consent was dated May 14, 2009. The letter was sent out certified mail on May 15, 2009. Shortly after the revocation letter was sent, Alexandria H., Patrick H., and Patrick H.'s mother all wrote e-mails to Deborah B. pleading with her to return Josie to them. Deborah B. exercised her right to oppose the revocation of consent, triggering the instant best interests hearing. At the conclusion of the hearing, the court appointed guardian ad litem recommended that the revocation be given full force and effect and that returning Josie to the custody of her parents would be in her best interests.
Discussion
Domestic Relations Law ("DRL") § 115-b governs consents in private placement adoptions. DRL § 115-b provides for two different types of consents in private placement adoptions: a judicially supervised consent and an extra-judicial consent. A judicial consent becomes irrevocable immediately upon execution of the consent before the judge or surrogate. An extra-judicial consent is subject to revocation if the birth parent withdraws his or her consent within forty-five days after execution. Under DRL § 115-b(3)(a), a consent to a private placement adoption that is not executed or acknowledged before a judge or surrogate "shall become irrevocable forty-five days after the execution of the consent unless written notice of revocation thereof is received by the court in which the adoption proceeding is to be commenced within said forty-five days." If the adoptive parent opposes revocation, the revocation will only be given effect if the court determines that the "best interests of the child will be served by giving force and effect to such revocation." DRL § 115-b(3)(b). The statute is clear that in the best interests proceeding, the birth parents have no right to custody superior to that of the adoptive parent, and that "there shall be no presumption that such interest will be promoted by any particular custodial disposition." DRL § 115-b(6)(d)(v).
DRL § 115-boriginally provided that extra-judicial consents could be revoked within thirty days of the commencement of the adoption proceeding. This provision was further narrowed by the legislature in 1986 so that a birth parent may only revoke an extra-judicial consent within forty-five days of its execution.
There are no absolutes in making this best interests determination, but the court is guided by many of the factors and considerations that are applied in child custody matters between parents. The primary factors to be considered in determining the best interests of the child include the ability to provide for the child's emotional and intellectual development, the quality of the home environment, and the parental guidance provided. See Eschbach v. Eschbach, 56 NY2d 167 (1982); Matter of Summer A. , 49 AD3d 722 (2d Dep't 2008); Matter of Baby Boy M., 269 AD2d 450 (2d Dep't 2000); Matter of Baby Boy P., 244 AD2d 491 (2d Dep't 1997); Matter of Baby Boy L., 206 AD2d 470 (2d Dep't 1994). Other considerations include the original circumstances surrounding the placement of the child, the length of that placement, the relative fitness of the birth parents and the prospective adoptive parents, and the relative financial status of either. Id. The presence of siblings in the home is another important factor to be considered by the court. Eschbach v. Eschbach, 56 NY2d at 173. Circumstances Surrounding Placement
The timeliness of the written revocation is a threshold inquiry and not contested here. It is not disputed that the notice of revocation was received well within the required statutory time frame. Alexandria H. and Patrick H. signed the extra-judicial consent on May 9, 2009, the letter revoking consent was executed only five days later on May 14, 2009, and the revocation was received by the Court on May 19, 2009. There are also no objections to the validity of the consent signed by each birth parent. Therefore, this Court is charged solely with determining what is in the best interest of Josie.
At the outset, the Court must reject Deborah B.'s assertions that both Alexandria H. and Patrick H. lacked interest in Josie because they signed consents for her adoption. To the contrary, the Court finds that they were not disinterested parents, and that their decision to sign the consent was based on what they thought was in their child's best interest at the time. They each felt that they had limited means to support the baby on their own, and they did not believe they had the support of their family members. Alexandria H. testified that there was never a time that she completely wanted to give her child up for adoption. Instead, she testified that she was acting in the best interest of her child because she did not want to put Josie in an unstable position by not having a place to live. At the time, she believed that she could not bring Josie to her father's home. It was never that she did not want to care for Josie; it was that she thought she would not be able to care for Josie based on the circumstances as she understood them. Even in the hours and days following Josie's release from the hospital into Deborah B.'s care, Alexandria H. called Deborah B. on her cell phone and sent e-mails to inquire about how Josie was doing. Under the circumstances as she understood them to be, Alexandria H.'s actions, such as her thoughtful interview of prospective adoptive parents for her child, demonstrate her maturity and commitment to Josie's well being, not a lack of interest.
There was an unfortunate lack of communication between Alexandria H. and her father from the beginning. Although they lived in the same home, she did not inform him of the pregnancy until her sixth or seventh month. When she did tell him about the pregnancy, she communicated that she had already made the decision to place the baby for adoption. They did not discuss the option of bringing the baby home. It was not until after the baby was born that she learned from her father that the baby would be welcomed in the home. Alexandria H. testified that after she signed the adoption papers on May 9, 2009, later that same evening, she changed her mind about the adoption and she spoke to Patrick H. about getting Josie back. On May 10, 2009, Alexandria H. spoke to her father, stepmother, mother and grandmother about wanting Josie back in her care. Patrick H. had a similar initial lack of communication with his family, and he did not tell any of his family members about Josie until after she was born and after he had signed the consent. After Patrick H. told his family about the adoption, he realized that he too had their support in regaining custody of Josie. Patrick H.'s grandmother testified that when she found out about the baby, she immediately did internet research, and made phone calls to New York to find out about adoption revocation procedures. After realizing that they had the emotional and financial support of their families, Alexandria H. and Patrick H. acted quickly and decisively. Wasting no time, the parents immediately prepared the notarized letter to the court revoking their consent. Within a week of the mailing of the revocation letter, Alexandria H. sent Deborah B. an e-mail informing her that she did not want to give up Josie for adoption. Patrick H. also sent a similar e-mail to Deborah B. Deborah B. testified that their e-mails conveyed that they had not thought that they had the support of their parents, but now that they had learned that they did, they wanted Josie returned to their care. Patrick H.'s mother also e-mailed Deborah B. pleading with her to return Josie to her birth family. Deborah B. acknowledged that Alexandria H. was passionate about how she felt in terms of changing her mind about the adoption, and Alexandria H. described the love that she felt for her daughter after giving birth.
Quality of Home Environment and Presence of Siblings
If custody were to revert to the parents, Josie would be part of a large, loving extended family on both the maternal and paternal sides. Alexandria H. and Patrick H. have both testified that they plan for Josie to reside with Alexandria H. in her father's home, and that Josie will also spend significant time in Patrick H.'s home, which is only nine miles away. While in Alexandria H.'s home, in addition to her father and stepmother, Josie will have the companionship of her sister Morgan. Alexandria H. currently shares a room with Morgan, however if Josie was to come live with her, Morgan would move into one of her aunt's rooms and Josie would stay in Alexandria H.'s bedroom with her and sleep in Morgan's crib. Alexandria H. indicated that Morgan and Alexandria H.'s five-year-old sister are so close that Morgan winds up sleeping in her bed half the time. Alexandria H. testified that Morgan gets along well with the other children in the home and the family enjoys playing sports in the backyard, and going to church, playgrounds, amusement parks, and museums. If this Court were not to grant full force and effect to the revocation, Josie would be deprived of the opportunity to grow up with her sister. Alexandria H. has two brothers and two sisters and she described a very close relationship amongst all her brothers and sisters. She hopes for Josie to have the same relationship with Morgan as she had with all her siblings.
Furthermore, if returned to the care of Alexandria H. and Patrick H., Josie would not only have the benefit of living with Morgan, but also of growing up with her brother, Jakhi, almost two years old. While Jakhi physically resides with his mother, Jakhi is with Patrick H. almost on a daily basis, therefore, Josie would be able to have a relationship with him as well.
Alexandria H. has a stable home with her father. While the maternal grandfather acknowledged that he was initially disappointed to learn that his young daughter was pregnant with another child and had even indicated to Alexandria H. in the past that she could not bring another baby into his home, he ultimately supported bringing Josie H. into his home. The maternal grandfather traveled to testify on his daughter's behalf, and indicated that Alexandria H., Morgan, and Josie, were always welcome in his home, and they can stay in his home as long as they wish to be there. He stated that he and his wife would be able to help out with caring for Josie when Alexandria H. is not available. Alexandria H.'s mother also lives approximately fifteen to twenty minutes away from her, and Alexandria H. described having a good relationship with her mother. Alexandria H. also described cousins, aunts, uncles, and grandparents that she sees regularly at monthly gatherings or on big family trips. All these family members contribute to her network of support.
Ms. R., a case manager for a forensic social work practice, performed the home studies of Josie's parents' respective homes. She testified that Alexandria H. resides in a safe, suburban neighborhood, and the home itself is clean, organized and has a spacious frontyard and backyard. The photographs in evidence depict a well furnished home, with more than adequate space and appropriate provisions for Josie.
The evidence also shows that Patrick H. resides in a spacious, organized, and neat home that is appropriate for Josie. Patrick H.'s mother, Lisa H., testified that Patrick H. has always lived with her in her home except for when he moved out for two months in early 2009. She has stated that Josie is welcome to live in this home. Lisa H. testified that she did not find out that Patrick H. had another child until he told her on May 13, 2009, four days after the extra-judicial consents were executed. Patrick H.'s mother described herself as being shocked when she found out about Josie because she was not even aware that Alexandria H. was pregnant. Lisa H. testified that Patrick H. came to her because he wanted to know what he could do to get Josie back. She further stated that she was fully supportive of Patrick H. revoking the adoption because "[Josie's] our blood . . . our family," and she could not imagine Josie growing up and not knowing her family. She stated that her family is close knit, strong and supportive so there is no reason to put the child up for adoption. Lisa H. comes from a family with fourteen brothers and sisters, and she described a large extended family of over fifty people that often gets together on holidays and other occasions. Since the adoption revocation was filed, Lisa H. has come to New York on several weekends with Alexandria H. and Patrick H. to visit Josie. She has also taken her son Justin to New York to visit with Josie. Patrick H. describes his relationship with Justin as being very close. He enjoys spending time with his brother and remembers taking care of Justin when he was a baby. Patrick H.'s grandmother, Diane G., lives twenty to twenty-five minutes away from Patrick H. and testified that Josie is the first girl born to the family in ten years and that she fully supports Patrick H.'s efforts to get Josie back in his care. Patrick H. is close with his grandmother and sees her approximately five to six times per month. Patrick H. also takes his son Jakhi to visit with his grandmother regularly. She too has been to New York to visit Josie along with Patrick H. According to Patrick H., his father, Patrick Sr., will also be another available support system for Patrick H. in caring for Josie. Patrick Sr. also resides in Maryland, approximately twenty-five miles away, and Patrick H. describes his father playing an active role in his life.
There is no question that Deborah B. can offer Josie H. a nurturing and comfortable home in her two bedroom apartment in Brooklyn. She converted the second bedroom in her apartment into a nursery for Josie. Josie is apparently doing well in her care and unquestionably Deborah B. loves Josie. She describes her current neighborhood as one with great diversity, and one where she can take Josie for walks over the Brooklyn Bridge, to the farmer's market and to the Brooklyn Botanical Gardens. Deborah B. also has the support of a loving and embracing immediate family, although not available on a daily basis. Deborah B.'s mother babysits for Josie one day a week. Deborah B. cannot, however, provide Josie with the benefit of being raised with her siblings and being cared by family members on a daily basis. Her home environment lacks what the parents' homes can provide. Deborah B.'s family members cannot take the place of Josie's sister, Morgan, or her brother, Jakhi. It would not be in Josie's best interest to deprive her of the opportunity to grow up with her siblings.
Ability to Provide Parental Guidance and Ability to Provide for the Child's Emotional and Intellectual Development
Deborah B. clearly has had great success in her career. However, Deborah B. cannot provide Josie with what the parents have, the opportunity to be raised by two parents. Allowing Deborah B. to proceed with adopting Josie would deprive Josie of a father who loves her and is able to raise her. Although Deborah B. testified that she has more to offer Josie emotionally, financially, and intellectually than her parents, there is no evidence to support a finding that she is intellectually superior to the parents and therefore better suited to provide Josie with appropriate parental guidance. While Deborah B. has obtained a college degree, which Josie's parents have not, it does not mean that Deborah B. has a higher intellect than the parents, or that she has the greater ability to provide for Josie's intellectual development. Alexandria H. has demonstrated a commitment to advancing her education in order to obtain a higher paying job so that she can be financially independent. Upon finishing high school, Alexandria H. completed a program to become a dental assistant. After deciding that she wanted more hands on experience in the medical field, she decided to enroll in the night program at a local community college to become a certified medical assistant and diagnostic sonographer. Moreover, Alexandria H. devotes significant time to advancing Morgan's intellectual development.
There is every indication that both Patrick H. and Alexandria H. would be able to provide for Josie's emotional and intellectual development. Josie's parents each have already experienced parenting a child. Patrick H. is the father of two-year-old Jakhi, and Alexandria is the mother of two-and-a-half year old Morgan. Patrick H. credibly testified that he picks up Jakhi from daycare every day and takes him back to his home until Jakhi's mother, Chasity S., gets home from work. Patrick H. also spends time with Jakhi on the weekend when Chasity S. has to work. He indicated that when Jakhi is with him, they play and learn together. Patrick H. is helping Jakhi with learning his numbers, colors, and letters. Patrick H. also spends time with Jakhi outside the home, by taking him to places such as the zoo. It is apparent that Jakhi is a dominant part of Patrick H.'s life since he even brought Jakhi to the hospital with him when Josie was born. Patrick H. has introduced Jakhi to his extended family, including aunts, uncles, grandparents, and cousins.
Patrick H.'s mother described him as a wonderful father who wants to give his son a good life, and is willing to do whatever it takes for his son. She has observed Patrick H. taking Jakhi to the park, playing games with him, and teaching him how to count. She characterized Jakhi as a fun loving, happy child who is loved by her entire family. Patrick H.'s mother testified that Jakhi comes to her house almost every evening and that Patrick H. feeds his son dinner. She stated that she has taught Patrick H. to value loyalty, honesty and the importance of family, and she feels that she has been successful in imparting these value to her son.
Patrick H. testified that he wants to be a big part of Jakhi's life just as his father was in his own life, teaching him about sports, right and wrong, and the importance of school. He wants his son to have good manners, to be involved in sports and to do well in school. He describes having a close relationship with his father, and he takes Jakhi to see him on a regular basis. Patrick H. testified that if the court were to return Josie to his care, he would raise Josie the same way he is raising Jakhi, recognizing that raising a girl has its own challenges, and he plans to use the support of his mother, a strong female role model.
Alexandria H. has been raising her daughter Morgan on her own without the involvement of Morgan's father. Notably, despite the absence of Morgan's father, Alexandria H. has maintained a close relationship with Morgan's paternal grandmother, Terri S. Terri S. assists her with babysitting Morgan, and Morgan regularly spends time with her. Terri S. drove Alexandria H. to the hospital when she was in labor with Josie, and she was even present in the delivery room when Alexandria H. gave birth. This displays a level of maturity on the part of Alexandria H. Any differences she may have with Morgan's father have not prevented Alexandria H. from ensuring that Morgan develops a relationship with her paternal grandmother.
By all accounts, Alexandria H. has been described as a good mother to Morgan. Morgan has taken gymnastics and swimming lessons, activities that Alexandria H. would want to do with Josie if she was returned to her care. It is clear that her children's education is important to Alexandria H. She reads to Morgan every night and is very proud of the fact that Morgan knows her ABC's, knows her colors, can count to thirteen by herself and is learning sign language. Alexandria H. indicated that she has been raised in church for her entire life, has volunteered her time in the summer teaching arts and crafts to children at bible study camp, and hopes to go to church with Josie on Sundays as she believes it is important to have a good spiritual background. The maternal grandfather described his daughter as a good parent, stating that his daughter makes Morgan a top priority in her life. He has observed them reading and doing children's activities. He has encouraged Alexandria H. to take care of Morgan herself because that is the job of a parent.
Deborah B. questions the stability of the parents' relationship and Patrick H.'s commitment to Josie. However the nature of the parents' relationship with each other is not necessarily relevant to how active and committed Patrick H. will be in Josie's life. Patrick H. has already demonstrated that he is devoted to his son, Jakhi, regardless of his relationship with Jakhi's mother. He plans to be equally devoted to Josie. Alexandria H. testified that Patrick H. is already an excellent father to Jakhi.
This Court finds that Josie's emotional and intellectual well-being will be better served if she is raised by two parents who can provide her with love and guidance. Allowing Deborah B. to adopt Josie means taking her away from a father who is willing and able to participate in raising her.
Relative Fitness of Respective Parents
Emotional and mental well-being is essential to being a good parent. The mental condition of Deborah B. as well as Josie's parents have been placed at issue during these proceedings. The evidence shows that Patrick H. and Alexandria H. have never suffered from any mental illness and have never used drugs. On the other hand, the mental health of Deborah B. is of some concern. The treatment records of Dr. Tager, Deborah B.'s treating psychiatrist, show that Deborah B. was diagnosed with major depressive disorder and marijuana abuse in January 2008, and she was prescribed the psychotropic medication, Cymbalta, to treat the depression.
Psychiatric experts, Dr. Tuckman and Dr. Mayer, were retained for the purposes of litigation, and testified to the mental status of Deborah B. Neither doctor was Deborah B.'s treating physician, spent little, or no time evaluating Deborah B., and yet made the most extraordinary conclusions. The court assigns minimal weight to their testimony. Dr. Tuckman was called by Deborah B. as a witness towards the end of the trial, apparently to rehabilitate her testimony and to respond to issues regarding her mental health that were raised on cross examination. While Dr. Tuckman only met with Deborah B. for a total of two hours and fifteen minutes, he diagnosed her with an adjustment disorder, which he described as a mild disorder within the realm of normal functioning. He further concluded that she was an emotionally healthy, highly functioning and productive person. He based this conclusion on the success that she has had in her career, mainly being the vice president of event marketing for a large company. Dr. Mayer was called as a witness by Patrick H. to critique the testimony of Dr. Tuckman. Dr. Mayer never personally evaluated Deborah B., and based his conclusions that Dr. Tuckman's diagnosis was inaccurate on the records that he reviewed and Dr. Tuckman's trial examination.
Dr. Tuckman's diagnosis conflicts with the records of Dr. Tager, Deborah B.'s treating psychiatrist. Dr. Tuckman summarily dismisses Dr. Tager's diagnosis of major depressive disorder stating that a history of anxiety or depression is simply just history, and is not relevant to parental functioning. Dr. Tager's notes indicate that on January 23, 2008, Deborah B. reported that she had been depressed for two to three months, starting in November 2007. The notes indicate that she was trying to adopt a baby and that the wait was too long, that she didn't get up anymore with joy and passion, felt paralyzed and had nothing to look forward to, felt sad and anxious, and had difficulty sleeping. Significantly, she was using marijuana on a regular basis to help her sleep. As a result, Dr. Tager prescribed Cymbalta.
Despite Dr. Tager's diagnosis of major depressive disorder, Deborah B. denies ever having been diagnosed with depression, claiming that she suffered from only generalized anxiety. Deborah B. was completely dismissive when confronted with any of the symptoms of depression that she had previously reported to Dr. Tager, and to her therapist Dr. Bernstein.
It is noteworthy that Deborah B. did not call Dr. Tager as a witness at trial. Dr. Tager's notes from February 28, 2008, reflect that while Deborah B.'s condition had improved and she seemed to be responding well to Cymbalta, she still had anxiety and difficulty falling asleep, even with the assistance of Xanax, an anti-anxiety drug. Dr. Tager further notes that Deborah B. had not used marijuana in one to two weeks, however she reported missing it and sleeping better while smoking marijuana. Dr. Tager's last notation is from June 24, 2008, wherein Deborah B. reported that the Cymbalta significantly decreased her anxiety and that she was no longer depressed. Dr. Tager's notes reflect that she was taking Xanax to help her sleep and had decreased her use of marijuana to weekend use. This conflicts with Deborah B.'s testimony during trial where she stated that she was prescribed the Xanax but never took it. She maintained at trial that the only prescription medication she took was Cymbalta. There were no further visits with Dr. Tager after June 2008. Deborah B. has not seen a psychologist or psychiatrist since her last visit with Dr. Tager. She claims that she continues to get the Cymbalta from her general practitioner, however this doctor is not monitoring the use of this drug. Deborah B.'s statement that she currently takes Cymbalta on a daily basis is of questionable reliability, and there is no way of knowing whether Deborah B. is, in fact, still taking her medication.
Deborah B.'s credibility is further called into question because she did not report the use of Cymbalta to Dr. Rosenfeld, a licensed certified social worker, who conducted two home study reports, an initial report, dated December 21, 2007, and an updated report, dated July 14, 2008, well after she began using Cymbalta. The 2008 home study reflects that she was taking no medication — which is inaccurate given the fact that she began taking Cymbalta in January 2008. Dr. Rosenfeld further testified that if a prospective adoptive parent was using a psychotropic medication, such as Cymbalta, it would be something that would be included in a home study. Dr. Rosenfeld's testimony reflected a desire to present Deborah B. in a favorable light. However, she was unable to recall certain conversations with Deborah B. She could not remember if she asked Deborah B. whether she was using psychotropic drugs when she did the updated adoptive home study in July 2008, but then further stated that the fact that Deborah B.'s Cymbalta use is not included in the second report is a "small flaw" in the report. Furthermore, while Dr. Rosenfeld recalled that Deborah B. informed her that she was receiving therapy, she could not remember exactly why she was in therapy.
Dr. Rosenfeld testified that although she took handwritten notes during the course of both home studies, she destroyed those notes after the home study was completed. She further testified that she was not familiar with any rules or ethical standards surrounding the retention of client records.
It is also apparent that Deborah B. was not truthful regarding the full extent of her involvement with mental health professionals. She denied ever knowing or seeing a second psychiatrist, Dr. Sageman. During her examination, Deborah B. was asked approximately three times about whether or not she saw a Dr. Sageman in April 2006, and she testified that she had never heard of such a person and had never seen anyone with that name. She also stated that she was never prescribed any medication during that time period. Yet, this is directly contradicted by the records of her therapist, Dr. Bernstein, and Dr. Bernstein's in court testimony. Her notes and testimony clearly establish that Deborah B. saw Dr. Sageman and was prescribed Valium and a mood stabilizer in April 2006. Dr. Bernstein, however, did not know if Deborah B. took the medication that was prescribed.
Deborah B.'s reporting of her use of marijuana also calls her credibility into question. Deborah B. acknowledges that she has been using marijuana since the age of sixteen. During her testimony, Deborah B. admitted that she was not truthful about the extent of her marijuana use when she was deposed in June 2009. In her EBT, Deborah B. testified that she had not used marijuana in fifteen years. At trial, she testified that she last used marijuana in August 2008. She stated that she lied at her deposition because she was embarrassed, and she did not consider herself a substance abuser because she was using it only to help her sleep or to relax. The evidence shows that Deborah B. has been using marijuana for over twenty years, and that at times she was using it on a daily basis. Also of concern is that Deborah B. minimized her marijuana use to Dr. Bernstein, a therapist that she saw on a weekly basis for three-and-a half-years. Dr. Bernstein's testimony and her records reflect that Deborah B. did discuss marijuana use in her therapy sessions, but Deborah B. indicated that Dr. Bernstein was attributing more significance to the marijuana use than Deborah B. thought was necessary.
Notably, Deborah B. was also not forthcoming with Dr. Rosenfeld about her marijuana use during the adoption home study interviews. She was aware that the extent of her marijuana use could be damaging to her prospect for adopting a child, and therefore she concealed her marijuana use entirely from Dr. Rosenfeld. Both home study reports state, "Deborah denies any history of drug or alcohol problems." Deborah B. met with Dr. Rosenfeld five times for the 2007 report and seven times for the 2008 report for an hour each meeting, and she never disclosed that she had been using marijuana for over twenty years. Dr. Rosenfeld testified that even if Deborah B. had disclosed the marijuana use she would not have included it in the report. This is remarkable since home study reports are relied upon by the courts in adoption proceedings, and use of drugs would be important information for a court to consider. Also of concern is Dr. Rosenfeld's testimony that if she had seen drug paraphernalia in Deborah B.'s apartment, she probably would not have found it significant enough to note it in a home study. The home studies submitted in support of Deborah B. are unreliable because of Deborah B.'s failure to disclose her diagnosis of major depressive disorder and her use of Cymbalta, as well as her failure to disclose marijuana use. Dr. Rosenfeld's testimony was ultimately unpersuasive and the court assigns little weight to the home study reports.
In addition to hiding marijuana use from Dr. Rosenfeld, Deborah B. also hid it from her sister, with whom she has a close relationship. Her sister testified that she was unaware of Deborah B. using marijuana despite evidence that Deborah B. used marijuana at times on a daily basis. In her summation, Deborah B., citing Matter of Summer A. , 49 AD3d 722 (2d Dep't 2008), argues that her marijuana use and failure to disclose should not be a fatal factor to be held against her. In Summer A., despite the adoptive father's failure to disclose prior cocaine use on the adoption application, the court found it to be in the child's best interests to be adopted by him. It should be noted that the adoptive father in Summer A., had completed a six week drug rehabilitation program, whereas Deborah B. admits that she has never sought drug treatment. Here, due to Deborah B.'s lack of candor and inconsistent statements, her testimony that she is no longer dependent on marijuana is not reliable. This is not to imply that marijuana use, in and of itself, renders a person unfit to parent; but the extent of its use — and lack of forthrightness concerning it — are certainly relevant considerations.
In order to present herself in the best light, Deborah B. hid the truth about the extent of her marijuana use and her depression; she sought to portray herself differently from what she presented to her treating therapists and doctors. For example, what she chose to disclose to Dr. Tuckman, who was retained for the purposes of testifying on her behalf, was surely calculated to offset anything damaging to her that came out during the course of the trial. Dr. Bernstein's notes and testimony consistently reflected that Deborah B. presented with low self-esteem and poor self image throughout her therapy sessions. Deborah B. was cognizant of the fact that this could be damaging to her. Accordingly, she reported to Dr. Tuckman, "I really like who I am. I think I'm beautiful, smart, kind, funny." Furthermore, it would appear that she only disclosed the extent of her marijuana use when it became clear that Dr. Bernstein's and Dr. Tager's records would reveal that she used marijuana on a regular basis through at least August 2008, in conflict with her own testimony that she had not used marijuana in fifteen years, and in conflict with Dr. Rosenfeld's home study reports which state that she denied having any history of drug use.
Because Deborah B. has been evasive with the court, the court cannot rely on her assertions that the depression and marijuana use are vestiges of the past. In contrast, Alexandria H. and Patrick H. have been candid with the court. Alexandria H. has no history of drug or alcohol abuse, has never been diagnosed with a mental illness, and has never been on psychiatric medication. Outside of a minor criminal conviction for stealing a pack of socks, Alexandria H. has no criminal record. Patrick H. also has no history of drug or alcohol abuse, has never been diagnosed with a mental illness, and has never been on psychiatric medication.
Pursuant to DRL § 240, in making the best interests determination, the court is required to consider the effect of domestic violence on the child, together with other factors and circumstances the court deems relevant. Chasity S., is the mother of Patrick H.'s son, Jakhi. She was located by a private investigator hired by Deborah B. and was called as her witness. She testified to an incident that took place on September 20, 2009, when she went to pick up Jakhi, from Patrick H.'s home. She said she was not upset or angry when she arrived to pick up Jakhi. Seemingly, without a precipitating incident and without provocation she claimed that Patrick H. twice pushed her to the ground and that Patrick H.'s mother held her in between her legs on the ground while Patrick H. repeatedly kicked her in the ribs and stomach. On direct examination she initially stated that Patrick H. broke her nose, however, on cross examination, she testified that no bones were broken but that her elbows were bleeding. Chasity S.'s account of the incident was inconsistent, grossly exaggerated and not credible. In her sworn domestic violence petition to the District Court of Maryland for Charles County, Chasity S. alleges that Patrick H. pushed her to the ground twice, and that when she got up, he started hitting her. She makes no mention of being kicked by Patrick H. while down on the ground or being held down by Patrick H.'s mother; she claimed that she sustained cuts on her left elbow and both knees, and a black mark on her left thigh. Chasity S. testified that while she did not seek any medical treatment the day of the incident, she went to the hospital the next day. No documentary evidence was submitted to corroborate that she was treated for injuries at any hospital the following day. It is undisputed that the police arrived at the scene, made no arrests and did not transport Chasity S. to the hospital, nor was emergency medical services called to the scene. Chasity S. was evasive with the court. She testified that she got a box out of Patrick H.'s car and threw it on the floor, however when questioned about why she took a box out of Patrick H.'s car, she simply responded "because I did" and gave no further explanation.
Chasity S. maintained that she was calm, however both Patrick H. and Patrick H.'s mother, Lisa H., testified that she was angry. Chasity S.'s account of the incident contradicts the testimony of Lisa H., who the court found highly credible. Lisa H. testified that the incident occurred outside of her home as she watched from the window. She observed Chasity S. pulling items out of Patrick H.'s car and then Patrick H. pulling items out of Chasity S.'s car. As Patrick H. was walking away, Chasity S. jumped on Patrick H.'s back and scratched him. Patrick H. was able to push Chasity S. off of him, however she jumped on him again, this time from the front of his body. At this point, Lisa H. and a neighbor came out of the house and started pulling Chasity S. and Patrick H. apart. Patrick H. sustained a long scratch to his face and his back during the altercation. The police eventually responded and took a report from both Chasity S. and Patrick H. Mutual orders of protection from the Maryland District Court were issued as a result of this incident.
Lisa H. was candid with the court and acknowledged that there was screaming and yelling at the time this incident was occurring, and that although she was not entirely clear on exactly where Jakhi was during this incident, she knew that he was present and recognized that this was not a good incident for Jakhi to have witnessed. The court simply does not believe Chasity S.'s testimony that Patrick H.'s mother held her between her legs on the ground while Patrick H. kicked her repeatedly. It is not credible that Patrick H., described as six feet two inches tall, two hundred and fifty pounds, kicked Chasity S., a five feet two inch woman, in the manner described by her, in the ribs and stomach, without causing serious physical injury. Furthermore, Lisa H. impressed the court as a responsible, mature individual. She is currently raising a fourteen-year-old son, Justin, owns her own home and has a secure full time job as a buyer for a large telephone company. Her dignified demeanor in court belies that she would engage in such outrageous conduct. She spoke about Chasity S. without animosity and without disparaging Chasity S. in any way. Patrick H.'s account of the incident is consistent with his mother's account. Patrick H. testified that this is the only physical altercation that he and Chasity S. have ever had. Patrick H. was aware that Jakhi was present during this incident, he acknowledged that domestic violence is negative, and he regrets that the incident happened. He also made no attempts to disparage Chasity S., and simply stated that his current relationship with her is that they are parents together.
Chasity S. further claims that on September 5, 2009, Patrick H. pushed her and choked her in a mall parking lot in the presence of Jakhi. She testified that she filled out a police report for this incident, however no evidence has been submitted to support that this occurred. She also testified that Patrick H. tried to hit her with his car in August 2008, and that charges were filed against Patrick H; again, no report was produced. There was yet another asserted incident where Patrick H. supposedly prevented her from leaving her bedroom one evening by putting a chair in front of her door and sitting there all night, however no evidence has been provided to support either of these claims. Despite testifying that she had a cell phone with her she did not call the police for help. The testimony of Chasity S. strikes the Court as contrived and fabricated. Furthermore, despite Patrick H. and Lisa H.'s testimony of how Patrick H. picks Jakhi up from daycare on a daily basis and brings him back to his house for dinner, Chasity S. claims that Patrick H. rarely spends time with his son, seeing him, at most, once per week. It was clear that Chasity S. was determined to portray Patrick H. in the most negative light, and she was not beyond lying to do so. It appears that Chasity S.'s testimony is motivated by anger at finding out (from the private investigator) that the father of her child is back with Alexandria H. and that they have a child together. Additionally, Chasity S. believes that she has an ongoing romantic relationship with Patrick H., and does not accept that Patrick H. is in a relationship with someone else.
The court credits the testimony of Patrick H. and Lisa H., and finds that the incident that took place on September 20, 2009, appears to be an isolated event that does not affect Patrick H.'s ability to be a good and appropriate father to Josie. See Booth v. Booth , 8 AD3d 1104 (4th Dep't 2004) (affirming lower court decision that it was in the best interests of the children to remain with their father despite one incident of domestic violence against their mother). No repeated pattern of domestic violence has been established. There have been no allegations that the order of protection has been violated in any way. Patrick H. has not demonstrated behavior that renders him ill-suited to provide his child with moral and intellectual guidance.
Furthermore, despite not having an amicable relationship with Chasity S., Patrick H. acknowledges that he and Chasity S. have to work together as parents for Jakhi. He testified that they currently limit their communication and contact to the parenting of Jakhi. The court finds that Patrick H. has demonstrated maturity through the way he has raised Jakhi. He has shown that he can rise above conflict with Jakhi's mother and parent Jakhi successfully.
Financial Status and Ability of Each Parent to Provide for Josie
Both Josie's parents and Deborah B. have the financial ability to meet Josie's needs. Deborah B. testified that she has more financial stability to provide Josie with the best opportunities in life. She is the vice-president of event marketing for a large company. Deborah B. rents her own apartment in Brooklyn, has substantial savings and possesses assets such as stocks, mutual funds, and a retirement plan. Josie's young parents presently live in their parents' homes. Josie's father works part-time, and her mother takes care of Morgan during the day and goes to school at night. Deborah B. can offer material comforts to Josie, however, financial status is not of paramount importance, and is not dispositive in a best interest analysis. Deborah B. is forty-years old, and Patrick H. and Alexandria H. are only twenty-two and twenty-three, respectively. Deborah B. thus has had almost twice the time to embark on a successful career path and to become financially established. Deborah B. herself started as a receptionist when she was in her early twenties.
Josie's parents are not impoverished. The comparison of financial status is only a relative comparison. Josie's parents may not yet have college degrees, but they both reside in adequate, spacious, suburban homes, where Josie is welcomed. While they are not financially independent, as are many young adults, they both have the support of their families. Alexandria H.'s father is employed by the Washington D.C. transit authority and her stepmother is employed as a hospital x-ray technician. Patrick H.'s mother works in procurement for a large phone company. These grandparents own their own homes and would welcome Josie into their homes. Patrick H.'s mother testified that she is prepared to assist her son to financially care for Josie. Josie's great-grandmother, a very impressive, robust and vibrant woman, also testified that she is prepared to assist Patrick H. in providing for Josie.
Patrick H. testified that he is actively seeking full time employment. He does not view his job in retail as a career job and has aspirations to go to an automotive trade school. Patrick H. contributes towards household expenses and meets his obligation to pay child support for Jakhi. Alexandria H. is striving to improve her earning capacity by taking classes at night at the community college. She expects to obtain her certification as a medical assistant early this year. Alexandria H. testified that she contributes towards the household bills and expenses and that she provides for Morgan's needs. Alexandria H. receives food stamps and medical assistance from a public plan, for herself and Morgan. Alexandria H.'s father testified that Alexandria H. buys all of Morgan's clothes and that she buys groceries for herself and Morgan. He observed that Morgan is thriving in Alexandria H.'s care. Morgan has a comfortable home filled with toys and books, where she can play with her two-year-old and five-year-old aunts, and all her physical needs are met. Both parents testified that the plan is for Josie to live in this same home. All the evidence shows that Alexandria H. and Patrick H. can meet Josie's needs.
Furthermore, despite their limited financial resources, both Josie's parents have been traveling from Maryland to New York City on a consistent basis to visit with Josie since the inception of this case. Despite missing one visit in August 2009 due to Patrick H.'s work obligations in Maryland and their limited finances, Josie's parents have managed to comply with the court ordered visitation schedule which began with one overnight visit per month and then increased to two overnight visits per month. Clearly, both Alexandria H. and Patrick H. have demonstrated that they are committed to having Josie returned to their care. Ms. R., the case manager who conducted the home study for Patrick H. and Alexandria H., testified that she had the opportunity to observe both Alexandria H. and Patrick H. interacting with Josie in New York on five occasions, the last occasion being on September 18, 2009, where she observed the family for about three hours. She observed both of Josie's parents holding Josie, trying to comfort her, changing her diapers, and feeding her. She testified that all the visits went well, and that Josie's parents were nurturing, loving and caring.
During the course of the trial in this proceeding, initially bi-weekly visitation for Alexandria H. and Patrick H. was scheduled. In July 2009, the parties stipulated that Alexandria H. and Patrick H. would have overnight visitation with Josie in New York from August 14, 2009 to August 17, 2009 and from September 18, 2009 to September 21, 2009, and monthly weekend visitation thereafter, and additionally visitation as agreed upon by the parties. A further order of visitation was issued on November 12, 2009 granting the parents visitation with Josie on a bi-weekly basis, alternating between overnight visits in New York and Maryland. This order was stayed by the Appellate Division insofar as it directed the visits to take place in Maryland.
On summation, Deborah B. asserts that after approximately eight months of bonding with Josie, Deborah B. is now Josie's psychological parent and that separating Josie from Deborah B. will be emotionally harmful to Josie. There was no evidence of psychological parenting or bonding presented at trial. The parents are not strangers to their baby and have availed themselves of regular overnight visitation with their daughter.
Having given full consideration to all of the relevant factors and the guardian ad litem's recommendation that it would be in Josie's best interests to return to her parents, the court must make a final child-centered determination. While Josie will have the advantage of Deborah B.'s financial means if she is placed with Deborah B., this alone cannot be the deciding factor. Questions remain about the extent of Deborah B.'s marijuana use, as well as a lack of clarity as to her mental health status. Based on the totality of the circumstances presented, Alexandria H. and Patrick H. are more fit than Deborah B. to care for Josie. With her parents, she will have an opportunity to grow up with her young siblings. She has a warm, nurturing home to return to; full of loving and accepting relatives. Patrick H. and Alexandria H. have the ability to provide Josie with everything she needs, and they have the support of their parents and extensive extended family members. Josie's parents made a mistake in signing the consents, and they sought to correct this mistake within days of her birth. Allowing this adoption to proceed would deprive Josie of a father, a sister, and a brother. Alexandria H. and Patrick H. are fit, competent parents who are able to maintain, support and educate Josie. They are in the best position to provide a nurturing environment.
If the adoption were to proceed, and Deborah B. eventually informed Josie of the circumstances of her adoption, as Deborah B. says she intends to do, Josie would someday learn that her adoption took place not because she was unwanted or because her parents were unable to take care of her. Instead, she might someday learn that she was adopted despite the expeditious and vigorous efforts of her young and loving parents to regain her after what they admit was a grave mistake. In this proceeding to determine what is in Josie's best interests, the potentially traumatic emotional impact of these facts cannot be ignored.
Based on consideration of all the evidence presented in this case, the Court finds that the best interest of Josie will be best served by giving full force and effect to the revocation of the consent and it is ordered that custody of Josie H. be returned to Alexandria H. and Patrick H., with primary physical custody to Alexandria H. and visitation to Patrick H. as the parties may agree.
It is further ordered and directed that Deborah B., Alexandria H., and Patrick H., appear in Surrogate's Court, Kings County, on February 8, 2010 at 2:00 pm for the purposes of transferring custody of Josie unless the parties agree to alternate arrangements.
This constitutes the decision and order of the court.