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Criminal Past Does Not Bar Man From Adopting, Judge Decides
New York Law Journal
September 03, 2009
A history of crime and drug addiction spanning two decades should not bar a man from being eligible to adopt, said a New York surrogate judge who credited the man's attempt to turn his life around.
Since leaving prison for the last time in 2000, the prospective father has "demonstrably devoted himself to rebuilding his life," Nassau County Surrogate John B. Riordan ruled in Matter of the Adoption of Unknown (pdf), 362, allowing the man and his wife to take the first step toward becoming adoptive parents.
The couple had applied to be certified as qualified adoptive parents, which would enable them to be placed on a list of prospective candidates for private placement adoptions.
The man, now 47, was first arrested when he was 17 in 1978. Over the next 17 years, he was convicted of multiple felonies, including burglary and possession of stolen property.
His last conviction was in 1995, according to the decision, which did not identify him.
In an affidavit, the prospective father testified that his crimes "were linked to his drug addiction" during that time, but he has been clean and sober since his release from prison in 2000.
In support of his case, the prospective father submitted numerous letters from friends, co-workers and his employer, which attested to "the moral and upstanding life" the man has been leading for almost nine years, Riordan wrote. During that time, he added, the man's focus has "been on family and responsibility."
Under Domestic Relations Law §115-d (3-a)(b), an application for certification of an adoptive parent must be denied for convictions involving drug-related offenses, or physical assault or battery within five years prior to the application.
While the prospective father's crimes were "serious," they did not meet the threshold for mandatory denial, Riordan observed, thus leaving the granting or denial of the application to the court's discretion.
The surrogate also noted that a mandatory pre-placement investigation report required by state law prior to certifying an adoptive parent was favorable. The social worker assigned to the case recommended the man be certified.
"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," the surrogate wrote.
Next, the court turned to well-settled case law for the proposition that courts "have not required perfection in adoptive parents," citing Matter of Michael JJ, 200 AD2d 80, where the court approved certification for a prospective father who had a history of alcohol abuse, but had stayed clean for the prior eight years.
In another case, Matter of Donald U., 105 AD2d 875, on the sole issue of whether the adoption was in the best interests of the child, the court approved a father who had once stolen a car and received a "less than honorable" military discharge, finding that the acts were "hardly praiseworthy" but not severe enough to prevent certification.
In both of those cases, a number of years had passed between the crimes and the petition for approval, Riordan wrote.
Like the fathers in Donald U. and Michael JJ, it "appears that the prospective adoptive father's criminal activities define his past rather than his present life," the judge said in ruling that the man's record should not preclude him from becoming an adoptive parent candidate.
Karen Foley of Foley, Griffin, Jacobson & Faria in Garden City, N.Y., represented the man.
In an interview, Foley said the court had "to look into a lot of facts and give them appropriate weight" before rendering what she called a "good decision."
