The opinion of the court was delivered by: Saxe, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on October 11, 2012
David B. Saxe,J.P. James M. Catterson Rolando T. Acosta Leland G. DeGrasse Rosalyn H. Richter, JJ.
Respondent Leake & Watts Services, Inc., appeals from the order of the Family Court, Bronx County (Carol R. Sherman, J.), entered on or about October 28, 2011, which denied its motion to dismiss the aunt's petition to adopt the child, over whom respondent has had custody and guardianship since the death of the child's mother. Rosin Steinhagen Mendel, New York (Douglas H. Reiniger and Gail Steinhagen of counsel), for appellant. Warren & Warren, P.C., Brooklyn (Ira L. Eras of counsel), for Carol W., respondent. Andrew J. Baer, New York, for Carmen A., respondent. Law Offices of Randall S. Carmel, P.C., Syosset (Randall S. Carmel of counsel), attorney for the child. SAXE, J.P.
This appeal requires us to consider an issue not previously directly addressed by this Court: When a foster care agency has guardianship and custody of a child and there is no living parent or other individual with the right to consent to the child's adoption, does the agency's refusal to consent to an adoption by a potentially viable candidate preclude the court from entertaining that individual's adoption petition? Here, the child's biological mother is deceased, the child is in foster care, and respondent foster care agency is the only entity with the legal authority to consent to the child's adoption. Both the child's foster mother and her maternal aunt have filed petitions to adopt the child, but the agency declined to consent to the aunt's proposed adoption of the child. The Family Court was unwilling to dismiss the aunt's adoption petition, and determined that the two competing petitions would be addressed simultaneously. We conclude that the statutory scheme requires us to reverse the order of the Family Court and dismiss the aunt's petition, because in the absence of the agency's consent, the petition is legally insufficient; the court is precluded from permitting her to adopt the child.
Yary was born February 25, 2006. On June 22, 2006, the Administration for Children's Services (ACS) filed a neglect petition alleging that Yary's mother failed to provide her with adequate care and had a prior history of neglecting Yary's older siblings, all of whom had been removed from her care. On July 10, 2006, pursuant to an order of the Family Court, Bronx County, Yary was removed from her mother's care and remanded into foster care in the custody of ACS. On July 13, 2006, ACS placed Yary with respondent foster care agency Leake and Watts Services, which on August 8, 2006 placed her in the home of the foster mother, where the child has remained.
On May 8, 2007, the Family Court issued a dispositional order placing Yary in ACS custody with a permanency goal of reuniting mother and child, but on January 10, 2008, the court changed Yary's permanency goal from reunification to adoption. On January 31, 2008, the agency filed a petition to terminate the mother's parental rights (TPR petition). For a variety of reasons, the fact-finding hearing on the TPR petition had to be repeatedly adjourned and reassigned, and on the day before the rescheduled fact-finding hearing was to be held on January 27, 2010, the mother unexpectedly suffered a heart attack and died. Her death abated the TPR petition, and, since Yary's father had not answered the petition and had never supported Yary or been part of her life, which made his consent to any adoption unnecessary (Domestic Relations Law § 111[a]), the court immediately transferred guardianship and custody of the child to the agency. Thereafter, on July 6, 2010, the court issued a written order freeing the child for adoption and granting ACS and the agency the authority to consent to her adoption "by a suitable person or persons, subject to the customary approval and order of a court of competent jurisdiction." ACS transferred its authority to consent to Yary's adoption to the agency on September 21, 2010. On December 13, 2010, the foster mother executed a written agreement with the agency to adopt Yary. The agency executed its written consent to the foster mother's adoption on February 9, 2011, and the foster mother's agency adoption petition was filed with the court pursuant to Domestic Relations Law §§ 112 and 113 on February 23, 2011.
Meanwhile, a few weeks after the mother's death, on March 1, 2010, petitioner Carmen A., Yary's maternal aunt, a Florida resident, filed a petition for guardianship of the child. The aunt and the agency appeared in court on May 7, 2010, but the matter was adjourned for completion of service. On the August 10, 2010 adjourn date, both the aunt and her attorney of record were absent, and the Family Court referee dismissed the aunt's guardianship petition, observing that: the aunt had failed to appear; the foster mother, in whose home Yary had resided since 2006, had "proceeded diligently with plans to adopt"; and since Yary had already been freed for adoption, a guardianship by the aunt would not be in her best interest.
On October 12, 2010, the aunt moved to vacate the default, explaining that she had been present in the courthouse on the previous date, but was late because of the long line to enter the building, and that her attorney had been engaged in another proceeding. The matter was adjourned to November 22, 2010, at which point the court denied the application to vacate the default, finding that since Yary's permanency goal is adoption, and she had been freed for that purpose, guardianship would not be in her best interest, because it would not satisfy that goal. The aunt indicated that she wished to adopt Yary, and the court informed her that she could file an adoption petition. The aunt retained new counsel, and filed her petition for a private placement adoption pursuant to Domestic Relations Law § 115 on April 26, 2011.
Court conferences on both petitions were held with all parties on May 25, July 11, and September 28, 2011. The court initially found that both the foster mother's and the maternal aunt's petitions were missing necessary documentation. Specifically, the aunt's private adoption petition was filed without the certification that she is a qualified adoptive parent, the Interstate Compact for the Placement of Children approval, an affidavit of marital status, and a written consent from Yary's lawful custodian, i.e., the agency. By May 24, 2011, with the exception of the agency's written consent, the aunt had submitted all of the remaining outstanding documentation or its functional equivalent.
The foster mother's agency adoption petition was originally missing an adoption report signed and notarized by both an agency representative and the foster mother, as well as tax returns needed to determine whether the forensic evaluator could be paid by state funds. In addition, the foster mother had failed to explain the nature of her relationship with the other adult in her home, the two different amounts listed as her mortgage payment, how she was managing funds, and to provide verification of her monthly income. Agency's Motion to Dismiss
On June 30, 2011, the agency moved to dismiss the aunt's adoption petition, arguing that since the custody and guardianship rights of the child for the purpose of adoption had been transferred to it, the only path for an adoption was through an agency adoption pursuant to Domestic Relations Law §§ 112 and 113, to which the agency must give its consent under Domestic Relations Law § 112(2). The agency further argued that since, as it stated on the record at the May 25, 2011 court appearance and in an earlier letter to the aunt's ...