ADOPTION BY BIOLOGICAL FATHER - PART 3

Finally, the court gave its conclusion that the adoption statute permits adoption by an unmarried adult, an adoption which results in the child having only one legal parent.

Matter of John (Joseph G.), 2019 NY Slip Op 05132, Decided on June 26, 2019, Appellate Division, Second Department:


The Adoption of the Child by His Biological Father is Permitted by the Adoption Statute


The second reason given by the Family Court for dismissing the adoption petition here was that, under New York's adoption statute, a biological parent may not adopt his or her own child. This determination was also erroneous.


"Adoption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person" (Domestic Relations Law § 110). Our adoption statute specifies the categories of persons who may adopt a child. It states that "[a]n adult unmarried person, an adult married couple together, . . . any two unmarried adult intimate partners together," or a formally separated person may adopt another person (id.). Further, a married couple together may adopt a child of either of them, and a spouse may adopt a child of the other spouse (id.). If satisfied that the best interests of the child will be promoted by the adoption of the child by an authorized person or persons, the judge or surrogate "shall make an order approving the adoption" (Domestic Relations Law § 114[1]).


Since adoption is solely the creation of statute (see Matter of Eaton, 305 NY 162, 165), the adoption statute must be strictly construed (see Matter of Jacob, 86 NY2d 651, 657). "What is to be construed strictly and applied rigorously in this sensitive area of the law, however, [*3]is legislative purpose as well as legislative language. Thus, the adoption statute must be applied in harmony with the humanitarian principle that adoption is a means of securing the best possible home for a child" (id. at 657-658). "[I]n strictly construing the adoption statute, our primary loyalty must be to the statute's legislative purpose—the child's best interest" (id. at 658).


The appellant here, as an "adult unmarried person," is among those who are statutorily authorized to adopt a child. That he fits within the statutory definition is not, however, conclusive, as our loyalty must be to the statute's legislative purpose. Thus, in Matter of Robert Paul P. (63 NY2d 233, 238), a man was not permitted to adopt his same-sex partner, even though the statutory language permitted the adoption, since the purpose of the statute is to create a parent/child relationship. Conversely, prior to the statute being expressly amended to permit joint adoption by unmarried intimate partners, the Court of Appeals allowed second-parent adoptions by partners of biological parents (see Matter of Jacob, 86 NY2d 651).


Here, the appellant, an otherwise qualified "adult unmarried person," seeks to adopt a child in order to gain legal and social recognition for the parent/child relationship already existing between himself and the child. The Family Court disallowed it on the ground that there is no authority for a parent to adopt his or her biological child. We disagree. The blanket prohibition, invoked by the Family Court, against legal adoption of a child by a biological parent, is not supported by either the language of the statute or its purpose.


There is nothing in the text of the Domestic Relations Law which precludes a parent from adopting his or her own biological child. While adoption, as we recognized above, is a statutory creation, the adoption sought here is authorized by the governing statute and there is nothing in the statute which precludes it. Further, to the extent that the Legislature has contemplated this subject, it has permitted adoptions notwithstanding an existing biological connection.


Domestic Relations Law § 110 expressly provides that "[a]n adult or minor married couple together may adopt a child of either of them born in or out of wedlock." Thus, the statute expressly provides that a married person may adopt his or her own child together with his or her spouse, and does not limit the couple to a second-parent adoption. This provision allows the spouse who is the biological parent to jointly adopt his or her own child together with his or her spouse, notwithstanding the preexisting biological connection. Thus, it is readily apparent that the statute does not totally prohibit adoptions of biological children by their parents. Apart from the absence of an express legislative prohibition on the adoption of biological children by their parents, we perceive nothing in the purposes of the statute that should lead us to engraft such a prohibition by judicial construction. Rather, such adoptions may serve salutory purposes which are consistent with the overarching legislative purpose of promoting the best interests of adoptive children.


The issue we consider here is relatively novel and there is little by way of precedent. Apart from the fact that the appellant successfully adopted his biological twin children in 2013, there is one reported case in which a petition for adoption of a biological child was granted. In Matter of Sebastian (25 Misc 3d 567 [Sur Ct, NY County]), the genetic mother and the gestational mother had been married in the Netherlands. While a legal relationship already existed in New York due to the presumption of legitimacy, other states, at the time, refused to recognize the validity of the marriage or the genetic mother's parentage. Further, although the Surrogate's Court believed that the genetic mother should be able to obtain an order of filiation, because of the nature of the Surrogate's Court it was unclear whether the Surrogate's Court had jurisdiction to do so outside of an adoption proceeding. Thus, adoption provided the only means of ensuring that the genetic mother's parental relationship would be recognized throughout the United States.


While Matter of Sebastian presented unique issues related to the Full Faith and Credit Clause of the United States Constitution (US Const, art IV, § 1), there may be other situations in which the adoption of one's biological child is the only means to establish a parent/child relationship in this state. For example, if a married woman gives birth to a child biologically fathered by a man other than her husband, the husband is presumed to be the father of the child (see Matter of Findlay, 253 NY 1, 7), and the biological father may be estopped from asserting his paternity (see Family Ct Act §§ 418[a]; 532[a]; Matter of Shondel J. v Mark D., 7 NY3d 320, 327). The legal parents of the child would be the married couple. If, many years later, the husband died or divorced the mother, and the mother then married the biological father, the biological father would have no mechanism for creating a legal parent/child relationship with the child other than a second-parent adoption. Similarly, if both the husband and wife died, and the biological father wanted to establish a legal [*4]parental relationship, adoption of his biological child would be the only mechanism for creating a parent/child relationship.


Here, in dismissing the adoption petition, the Family Court relied on Matter of Zoe D.K. (26 AD3d 22), which held that an unwed biological mother could not adopt her own child so as to remove the biological father from the birth certificate. As the Appellate Division, Fourth Department, viewed it, the adoption did not provide " a means of securing the best possible home'" for the child (id. at 24, quoting Matter of Jacob, 86 NY2d at 658), nor did it give " legal recognition to an existing family unit'" (Matter of Zoe D.K., 26 AD3d at 24, quoting Matter of Raquel Marie X., 76 NY2d 387, 398). Rather, as a result of the adoption, the father, without his knowledge or consent, was relieved of all parental responsibilities and rights, while the rights and responsibilities of the mother remained unchanged. As the adoption did not serve the purpose of the statute, the court granted the father's application to vacate the order of adoption (see Matter of Zoe D.K., 26 AD3d at 24-25).


The situation here is significantly different. While the appellant seeks to have the surrogate removed as a parent, an adoption would not be adverse to her rights, but rather is undertaken with her consent. Further, the surrogate has no genetic connection to the child and was never intended to be a parent to the child. Although a surrogacy contract is not enforceable against the birth mother to deprive her of parental rights, it may be used as "evidence of the parties' unequivocal intention" that the intended parents become the parents of the child (Matter of Frank G. v Renee P.-F., 142 AD3d 928, 930).

The appellant, at present, has no legal relationship with the child, and the record before us indicates that the surrogate neither has, nor ever sought to have, any relationship of any sort with the child. Thus, an adoption of this child by the appellant would "create[ ] a legal parent-child relationship where none previously existed" (Matter of Sebastian, 25 Misc 3d at 571; see Domestic Relations Law § 110), while severing a legal relationship with the gestational mother that exists solely as a legal abstraction with no physical or emotional manifestation. While the appellant could obtain an order of filiation, such would leave the surrogate as the legal mother, which was not their intent in creating the child. Further, the continuance of a bare legal tie between the child and the surrogate would not require her to actually assume a maternal role toward the child. The surrogate would be left as a vestigial parent only. While her rights could be terminated for abandonment or neglect, absent an adoption, only governmental authorities could initiate termination proceedings, leaving both the appellant and the child at the mercy of governmental discretion.


Relegating the appellant, and others similarly situated, to seeking orders of filiation would be a shallow remedy. Originally created in order to avoid having children born out-of-wedlock becoming public charges, paternity proceedings have historically had as their principal purpose ensuring that the subject children are provided with adequate financial support (see Matter of Cathleen P. v Gary P., 63 NY2d 805, 807; Matter of L. Pamela P. v Frank S., 59 NY2d 1, 5). While statutes have expanded the impact of orders of filiation beyond financial support to such matters as inheritance (see EPTL 4-1.2[a][2][A]), workers' compensation benefits, and notice of adoption (see Matter of Cathleen P. v Gary P., 63 NY2d at 807; Matter of Kordek v Wood, 90 AD2d 209, 212), orders of filiation are not the legal equivalent of adoptions, which grant full and complete legal recognition to an existing familial relationship between parent and child (see Matter of Raquel Marie X., 76 NY2d at 398). Nor would an order of filiation provide the appellant with judicial authorization to make decisions on behalf of the child. For that, the appellant would have to first obtain an order of filiation and then initiate a custody proceeding, thus requiring him to initiate successive and time-consuming proceedings in which the ostensibly adverse party would be the gestational surrogate who had already renounced her own tie to the child.


An apt analogy are cases involving a declaration of maternity of a genetic mother over a gestational mother. In such cases, courts have presumed that the genetic mother could have adopted her biological child. This Court, in T.V. v New York State Dept. of Health (88 AD3d at 301), observed that there was no provision prohibiting a declaration of maternity and the Domestic Relations Law "does not limit the parties to a formal adoption proceeding." Likewise, in Matter of Andres A. v Judith N. (156 Misc 2d 65, 71 [Fam Ct, Queens County]), the Family Court held that it did not have jurisdiction to enter an order of maternity, but noted that the biological mother was [*5]not without a remedy since she could adopt her biological children [FN2] (see also Feigenbaum v New York State Dept. of Health, 2010 WL 9596711, 2010 NY Misc LEXIS 6860 [Sup Ct, Suffolk County, No. 2009-019430]). The court in Doe v New York City Bd. of Health (5 Misc 3d 424, 427 [Sup Ct, NY County]) noted that Domestic Relations Law § 124 "specifically leaves open the type of legal proceeding that may be instituted following the birth of a child born pursuant to a surrogate parenting contract, and does not limit the parties to a formal adoption proceeding."


Since the adoption statute permits adoption by an unmarried adult, an adoption which results in the child having only one legal parent is not against the language or purpose of the adoption statute. Moreover, the continuity of a fictitious family structure whereby a gestational surrogate with no genetic ties or intention to be a parent remains a legal parent is hardly consonant with a child's best interests. Thus, under the circumstances presented, the adoption of one's biological child from a gestational surrogate complies with the purpose of the adoption statute and should be permitted where, as in all adoption cases generally, the proposed adoption in the best interests of the child [FN3]. Our conclusion is consistent with legislation recently passed by both the State Senate and the State Assembly, and awaiting action by the Governor, which would amend Domestic Relations Law § 110 to explicitly provide that where an adoption petitioner's parentage is legally recognized under New York law, adoption should not be denied solely on the basis that such parentage is already legally recognized (see NY Senate Actions on 2019-2020 Senate Bill S3999; NY Assembly Actions on 2019-2020 Assembly Bill A460).