Opinion
Argued March 16, 1973
Decided April 26, 1973
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, KENNETH P. WHITING, JR., J.
Thomas B. Oakes for appellant.
Ronald Slocum for respondent.
Bruno Colapietro, Law Guardian.
Conrad E. Stearns and Stephen A. Sutter for adoptive parents.
MEMORANDUM. The order of the Appellate Division should be reversed, without costs, and the judgment of the Family Court, Broome County, reinstated. As urged by the appellant, the weight of evidence supports the determination of the Family Court that the petitioner-respondent "is not fit, competent, and able to duly maintain, support, and educate the child * * * [and that] the best interests of the child require that he remain with his adoptive parents". This being so, the petitioner's writ of habeas corpus should be dismissed and custody of the child shall remain in the adoptive parents. In the view which we have taken, it is unnecessary to consider or pass upon the appellant's further contention that the Appellate Division erred in not applying new subdivision 5 of section 383 of the Social Services Law (L. 1972, ch. 639) which, in effect, eliminates the presumption in favor of the natural parent — notwithstanding that such parent is "fit" to have custody of the child — in determining the child's best interests.
Chief Judge FULD and Judges BURKE, BREITEL, JASEN, GABRIELLI, JONES and WACHTLER concur in memorandum.
Order reversed, etc.