Opinion
23.
Decided August 12, 2009.
Karen Foley, Esq., Garden City, NY.
This is a private placement adoption proceeding. Petitioners, a husband and wife, are applying for certification as qualified-adoptive parents pursuant to Domestic Relations Law § 115-d.
Pursuant to Domestic Relations Law § 115-d (3-a), a fingerprint and criminal history record check was made of the adoptive parents by the New York State Division of Criminal Justice Services. The repository response reveals a prior criminal history for the prospective adoptive father, including multiple felonies. The prospective father's first arrest occurred in 1978 and his last conviction took place in 1995.
In response to the report, the prospective adoptive father has submitted an affidavit in which he expresses deep remorse for his prior conduct and avers that his crimes were linked to his drug addiction during that period of his life. In 2000, when he was released from prison for the last time, he began a clean and sober life with the assistance of Alcoholics Anonymous. He avers that through AA he has learned to accept his past and make amends to the people he hurt. He has been gainfully employed during this time period. In further support of his petition, the prospective father has submitted to the court numerous letters of recommendation written by friends, co-workers, neighbors, his employer and the individual who has acted as his AA sponsor since 2000. Each letter attests to the moral and upstanding life led by the prospective father for almost nine years, during which time period the petitioner's focus has been on family and responsibility.
Domestic Relations Law § 115-d (3-a) (b) provides that an application for certification of an adoptive parent must be denied for certain felony convictions. These include any conviction for a drug-related offense or for physical assault or battery within the five years prior to the application. Denial of certification is likewise mandated for convictions involving "(1) child abuse or neglect; (2) spousal abuse; (3) a crime against a child, including child pornography; or (4) a crime involving violence, including rape, sexual assault, or homicide, other than a crime involving physical assault or battery" (Domestic Relations Law § 115-d [3-a] [b]).
"The manifest purpose of this provision is to mandate the denial of an application to qualify as an adoptive parent where the applicant has a prior conviction, at any time, for a felony-level crime against children or a spouse. Such a conviction would indicate that the applicant has an established record of major violence against members of his or her own family. Likewise, the application must be denied where the applicant has a prior conviction for violence such as rape, homicide or sexual assault. Again, such a conviction, even in the past, would indicate that the applicant should not be entrusted with children through a court-sanctioned process. Lesser violent felonies preclude the granting of the applicant [ sic] where the conviction is more recent in time — within five years of the application."
(Scheinkman, Practice Commentary, McKinney's Cons Laws of NY, 1999, Domestic Relations Law § 115-d).
Between 1979 and 1995, petitioner pleaded guilty to charges of disorderly conduct, attempted burglary in the second degree and in the third degree, petit larceny, possession of stolen property in the second degree and in the third degree, and burglary in the second degree. These are serious convictions, but they do not fall within the purview of Domestic Relations Law § 115-d (3-a) (b), cited above, so as to mandate denial of certification. Consequently, the granting or denial of the application of the prospective father is left to the discretion of the court.
Domestic Relations Law § 115-d (4) requires an applicant for certification to submit to the court a pre-placement investigation report compiled by a disinterested person. The court, in determining whether the applicant is a suitable person to adopt a child, must consider the entire pre-placement report, along with the report from the New York State Division of Criminal Justice Services ( see 22 NYCRR 205.58[c], which governs Family Court proceedings for certification as a qualified adoptive parent; Matter of Michael JJ, 200 AD2d 80, 81 [3d Dept 1994]). The court must use the report to determine whether there is anything "about the applicant which would be a negative factor affecting his or her suitability to be an adoptive parent" ( Matter of Michael JJ, 200 AD2d 80, 81 [3d Dept 1994]; see Matter of Mary R., 157 Misc 2d 1009 [Fam Ct, Broome County 1993]). The court's main concern is "whether the best interests of the child would be served by placement in the home of the adoptive parent ( see Matter of George L. v Commissioner of Fulton County Dept. of Social Servs., 194 AD2d 955, 956 [3d Dept 1993], which involved a prospective adoption by foster parents; Matter of Michael JJ, 200 AD2d 80, 82 [3d Dept 1994]).
In this case, the pre-investigation report is favorable to the prospective adoptive father. The social worker recommends certification despite the report of the New York State Division of Criminal Justice Services concerning the prior criminal history. The prospective adoptive father openly discussed with the investigative social worker his troubled past, along with the many concrete steps he has taken since 2000 to turn his life around.
It is well-settled that courts have not required perfection in adoptive parents ( Matter of Michael JJ, 200 AD2d 80 [3d Dept 1994]); Matter of Baby Girl W., 151 AD2d 968 [4th Dept 1989], lv denied 74 NY2d 613; Matter of Donald U., 105 AD2d 875 [3d Dept 1984], lv dismissed 64 NY2d 603). In Matter of Donald U., ( 105 AD2d 875 [3d Dept 1984], lv dismissed 64 NY2d 603), an adoption case in which the only issue before the court was "the best interest of the child" ( id. at 876), the prospective adoptive father not only had a criminal record, but had also received a less than honorable discharge from the military for going AWOL and stealing a car. Although the court noted that these facts were "hardly praiseworthy," the court nevertheless approved certification primarily because the crimes had occurred many years prior to the adoption proceeding ( Matter of Donald U., ( 105 AD2d 875, 876 [3d Dept 1984], lv dismissed 64 NY2d 603). Similarly, in Matter of Michael JJ ( 200 AD2d 80 [3d Dept 1984]), the court approved certification although the prospective adoptive father's history of alcohol abuse was a serious concern. The court relied on testimony that the prospective adoptive father had been alcohol-free for approximately eight years and found the prospective adoptive father's problem with alcohol defined "his past rather than his present or future life" ( Matter of Michael JJ, 200 AD2d 80, 83 [3d Dept 1994]).
Similarly, in Matter of Corey, 184 Misc 2d 437 (Fam Ct, Greene County 1999), the prospective adoptive father had been convicted fifteen years earlier, at age 21, of armed robbery, a violent felony. The court had to determine whether Social Services Law § 378-a (2) (e) (1), which governs agency adoptions but which contains language identical to Domestic Relations Law § 115-d (3-a) (b), mandated denial of the prospective father's application. While the court noted that petitioner had been "engaged in a life of alcohol and drugs at the time [of his conviction]" ( id. at 441) the court also recognized that applicant had subsequently decided to change his life, and did so with the help of Alcoholics Anonymous, Narcotics Anonymous, and the mental health services available to him in prison. The record reflected that the prospective adoptive father had no reported problems after his release from prison. When his application came before the court, the applicant had been sober for 10 years and drug-free even longer. The court found that the prospective father had "fully rehabilitated himself from his long-ago life of crime and is a positive role model" for the children he sought to adopt ( id. at 445).
The prospective adoptive father before the court is currently forty-seven years old. He was only seventeen years old at the time of his first arrest, and he subsequently received his condign punishments and left prison for the last time approximately nine years ago. Since that time, he has demonstrably devoted himself to rebuilding his life. Like the prospective adoptive fathers in Matter of Michael JJ ( 200 AD2d 80, 83 [3d Dept 1994]) and Matter of Corey ( 184 Misc 2d 437, 445 [Fam Ct, Greene County 1999]) it appears that the prospective adoptive father's criminal activities define his past rather than his present life. The court, therefore, finds that the prospective adoptive father's record should not preclude him from being an adoptive parent.
Accordingly, the petitioners' application pursuant to Domestic Relations Law § 115-d for certification as qualified adoptive parents is approved.
This constitutes the decision of the court.