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An unmarried couple from the Bronx who have been caring for a boy for 13 years are not barred by their non-marital status from adopting the child, a New York state appellate court ruled Thursday. The unanimous five-judge panel of the Appellate Division, 1st Department, said it agreed with all the parties in the adoption proceeding that the order of Family Court Judge Tandra Dawson denying the joint petition for adoption of Emilio R. should be reversed. The adoption petition was granted. Emilio R., now 15 years old, was placed in foster care with his maternal grandmother in 1987 when he was 1 month old. When the grandmother died in 1989, Emilio was put in the care of his grandmother’s sister, Emma R., and her common-law husband, Lupercio. The couple have lived together, unmarried, for 20 years and have a son of their own, born in 1982. The boys grew up as brothers, Justice Richard W. Wallach noted in his opinion for the court, In re Adoption of Emilio R., 807. When the couple sought to adopt Emilio, the caseworker recommended approval of the adoption without reservation. However, Judge Dawson denied the petition in November 2000, holding that the couple’s common-law relationship disqualified them as eligible adoptive parents under New York’s Domestic Relations Law. Furthermore, the judge said the proposed adoption would not be in Emilio’s best interest because it “would not promote the child’s sense of permanency or emotional security.” The appellate court disagreed on two grounds, Wallach said. New York’s Court of Appeals had “indicated” in its 4-3 ruling in 1995, Matter of Jacob, 86 NY2d 651, that New York’s adoption statute, DRL � 110, was “broad enough to encompass adoption by an unmarried couple.” Secondly, the adoption would be in Emilio’s best interests, he said. “All the parties are in agreement that this child has been raised in a nurturing family setting over the past 13 years. If the goal is indeed to encourage a familial permanency through adoption, it is difficult to imagine a more suitable set of eligible parents than petitioners,” Wallach wrote. In Matter of Jacob, the Court of Appeals approved two “second-parent adoptions,” that is, adoptions by the unmarried partners — one an unmarried male partner and the other a lesbian partner — of the biological mothers of the children. Adoption did not exist at common law, and normally adoption proceedings require strict construction of the statute, Justice Wallach said. However, Chief Judge Judith S. Kaye’s opinion in Jacob emphasized that the application of the law “must be harmonized with the overarching principle of securing the best possible home for the child,” he added. The judge noted that DRL � 110 allows the adoption of a child by an unmarried person. “An adult unmarried person or an adult husband and his adult wife together may adopt another person,” the statute reads. The word “together” was intended to assure that one party to a marriage could not unilaterally bind the spouse to parental responsibility without the other’s consent, he said. “But the use of the word ‘together’ in the statute ‘does not preclude an unmarried person in a relationship with another unmarried person from adopting,’ Wallach said, quoting from Jacob. Justices Peter Tom, Richard T. Andrias, John T. Buckley and Alfred D. Lerner concurred with Wallach’s opinion. Glenda M. Rothberg represented the adoptive parents on the appeal. Assistant Corporation Counsels Elizabeth I. Freedman and Francis F. Caputo appeared for New York City’s Administration for Children’s Services, and Pierre M. Janvier of the Bronx was the law guardian for Emilio R.

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