In the Matter of the Adoption of A. and Another, Infants.
Rosin & Reiniger, New
York City (Douglas Reiniger of counsel), for proposed adoptive parents.
Legal Aid Society,
Jamaica (Stanley Melnick of counsel), Law Guardian.
Barbara Salinitro, J.
On November 22, 1999, the Association to Benefit Children/Variety House (Agency) filed a petition pursuant to section 384-b of the Social Services Law requesting that the court terminate the parental rights of S.D . and W.S . to the subject child A., who was born on October 27, 1987. The Agency also filed petitions requesting that the court terminate the rights of S.D . and G.R . to the subject child G., who was born on September 24, 1996. Both children had been living with their maternal grandfather R.D ., and his wife A.D ., since July 1997 based on neglect findings against S.D . The termination petitions were subsequently withdrawn when S.D ., G.R . and W.S . agreed to voluntarily surrender their parental rights to the subject children. On December 14, 2000, S.D . and W.S . executed surrenders before a Family Court judge. On January 12, 2001, G.R . also executed a judicial surrender in Family Court. The original surrender documents each contained the following condition: " I/We understand that the foster parent(s), [R.D . and A.D .] will adopt the within named child, otherwise this surrender shall be null and void." During the court's allocution of S.D ., she stated, " I want the children strictly with my father, not [A.D .]" (transcript, Dec. 14, 2000 at 7). The judge then gave S.D . the opportunity to consult with her attorney outside the presence of the court. When the matter was before the court again, S.D .'s attorney indicated that he had spoken to his client and that the Agency had agreed to amend the judicial surrender applications to delete A.D .'s name as an adoptive parent. Before doing so, the judge said to the Agency's attorney: " I'd be striking the reference to [A.D .]?" and the Agency attorney
replied: " Yes. That's correct Judge." The judge then asked the attorney: " Any objections to that?" and the attorney answered " No." (Transcript, Dec. 14, 2000 at 8.) The reference to A.D . in the surrender documents was then stricken, rendering them conditioned on the adoption of the children by R.D . only. S.D . initialed the changes, and the allocution continued. At the conclusion of the allocution, S.D . executed surrenders for both children before the court. With the consent of counsel, the court then amended the surrender that was prepared for W.S . by deleting A.D .'s name from the document. After a full allocution, W.S . then executed a surrender of the child, A. On January 12, 2001, G.R . appeared in Family Court and executed a surrender of his rights to the child G. after a full allocution. His surrender was amended to delete A.D .'s name as an adoptive parent from the document. G.R . initialed the change and signed the surrender.
On June 19, 2001, R.D . and A.D . filed petitions to adopt both subject children together as husband and wife. These petitions were subsequently assigned to this court for review. Upon reviewing the petitions and the supporting documents, this court realized that all the surrenders were conditioned upon R.D .'s adoption of the children, and that the biological parents had indicated that they were not consenting to A.D . adopting the children. Since this court was aware that under the Domestic Relations Law R.D . could not adopt the children without his wife A.D ., it then brought this problem to the attention of counsel.  Subsequently, the attorney for R.D . and A.D . made a motion before this court requesting that it either allow both R.D . and A.D . to adopt jointly, regardless of the condition contained in the surrenders, or allow R.D . to adopt alone. The court then heard oral arguments on the motion.
Section 110 of the Domestic Relations Law delineates who may adopt. The statute reads in pertinent part:
" An adult unmarried person or an adult husband and his adult wife together may adopt another person. An adult married person who is living separate and apart from his or her spouse pursuant to a decree or judgment of separation or pursuant to a written agreement of separation ... or an adult married person who has been living separate and apart from his or her spouse for at least three years
prior to commencing an adoption proceeding may adopt another person."
The statute specifically indicates the circumstances under which a married person may adopt. The statute provides that a married adult must adopt together with his/her spouse unless they have either been living apart for at least three years or have been legally separated. A married adult whose spouse does not join in the adoption petition does not have standing to adopt another person under the statute. Counsel for the prospective adoptive parents in this matter argues that the Court of Appeals does not require a strict construction of the adoption statute based on its decision in Matter of Jacob (86 N.Y.2d 651, 658 ). In Jacob, the Court allowed the homosexual partner of a biological parent to adopt the child of that individual. The Court noted that the purpose of the adoption statute was to further the best interests of children. In Jacob, however, the prospective adoptive parent was an unmarried individual. Under the clear language of Domestic Relations Law § 110, an unmarried person has standing to adopt. The Court even noted that " [t]he statute uses the word 'together' only to describe married persons and thus does not preclude an unmarried person in a relationship with another unmarried person from adopting." (Id. at 660.) The statute does, however, preclude a married individual in an intact marriage from adopting without his/her spouse. Moreover, the Court in Jacob never advocated contravening the clear language of the statute to confer standing on an individual. In fact, the Court in Jacob stated that both the language of the statute as well as its legislative intent must be strictly construed. (Id. at 659.) In 1984 and again in 1991, Domestic Relations Law § 110 was amended to allow married adults to adopt without their spouses under certain circumstances. Those circumstances are the ones that are currently delineated in Domestic Relations Law § 110. In 1984 (L 1984, ch 218, § 1), the statute was amended to allow a married individual who is living separate and apart from his/her spouse to adopt when there is a judgment of separation or a ...