ON ADULT ADOPTIONS

Adult adoptions are not the same as establishing guardianship. Legal guardianship is intended to help safeguard and provide for an adult who cannot care for him or herself, making legal, financial, and health decisions on the individual's behalf. Adult adoptions are completed for different reasons: a former foster child who was not being legally available for adoption and grew close to the foster family as a child may be adopted as an adult if he/she so wishes; a step-child who has grown fond of his/her step-parent may be adopted as an adult by the step-parent; an adult adoptee after finding his/her birth family may choose to be adopted by his/her family of origin; and a way to create legal inheritance rights within a relationship.

In this case, the adult adoption was intended to punish a birth mother.



Matter of Jalyssa L.-J., NYLJ December 20, 2019,  Date filed: 2019-12-09, Court: Family Court, Chemung, Judge: Judge Mary Tarantelli,  Case Number: A-01629-19



"This is a proceeding for the adoption of an adult child by her aunt. The prospective adoptive parent has submitted a “PETITION FOR ADULT ADOPTION” (Adoption Form 29a) and a “CONSENT TO ADULT ADOPTION BY ADOPTEE” (Adoption Form 29b). The only other papers submitted in support of the adoption are purported copies of the birth certificates for both the proposed adoptive parent and the adult adoptive child and a proposed Report of Adoption (Form DOH-1928) promulgated by the Department of Health to notify it of a completed adoption for the purpose of making a new birth certificate. See Public Health Law §4138. The petition is dismissed for failure to seek and obtain pre-certification as a qualified adoptive parent in accordance with Domestic Relations Law §115-d, see DRL §115(1)(b), and for failure to make any showing that the proposed adoption would be in the best interests of the child. Id. §116(2). Further, based upon its intimate familiarity with the parties and the statements of the adult adoptive child in petitions and in open court in proceedings now pending and recently concluded and upon observing the demeanor of the adult adoptive child in those proceedings, the Court concludes that the parties’ purpose is not to formalize a parent-child relationship and to otherwise promote the best interests of the adult adoptive child,1 but rather to punish the adult adoptive child’s mother for pursuing custody and placement of the adult adoptive child’s neglected children. In dismissing the petition, the Court takes the opportunity to discuss the apparent inadequacy of the official forms promulgated for adult adoptions. See Family Ct. Act §214; Uniform Rules for the Fam Ct (22 NYCRR) §205.7(a). The forms were prescribed for Family Court on March 28, 2018. Admin Order of Chief Admin Judge of Cts AO/161/18. Similar forms were earlier prescribed for Surrogate’s Court to “simplify and streamline adult adoptions.” 2017 Rep of Sur Ct Advisory Comm to Chief Admin Judge of Cts of St of NY at 109. However, “[w]hile…adult adoptions may be dealt with more liberally than child adoptions,…[they] are subject to the same statutory law as other adoptions.” Matter of Mazzeo, 95 AD2d 91, 92 (3d Dept 1983) (citations omitted). Thus, as the Court of Appeals has observed, “an adult adoption must still be in the best interests of the adoptive child2 and the familial, social, religious, emotional and financial circumstances of the adoptive parents which may be relevant must still be investigated. Neither the explicit statutory purpose nor criteria have been diluted for adult adoptions, and this [C]ourt has no basis for undoing what the Legislature has left intact.” Matter of Robert Paul P., 63 NY2d 233, 237 (1984) (internal quotation marks and citation omitted). Indeed, the only simplified statutory procedure for adult adoptions is the elimination of the requirement for the consent of the adoptive child’s legal parents and custodians. Matter of Anonymous, 106 Misc 2d 792, 797 (Fam Ct, Kings County 1981); see DRL §111(4).


However, the adult adoption petition form does more than simply remove the references to parental consent that are found in the standard form petition. The form also removes references to (1) the religious faith and income of the adoptive parent(s); (2) the religious faith of the adoptive child; (3) the heritage, religious faith, education and general physical appearance of the birth parents; (4) the adoptive child’s medical history; (5) the child protective history of the adoptive child and the adoptive parent(s); and (6) the criminal history of the adoptive child and the adoptive parent(s). All of this information is required either directly or indirectly by statute and is necessary to determine the best interests of the adult adoptive child. See DRL §115, 115-d; 116; see also DRL §112(3); 115(11).

For example, section 116, subdivision 3, of the Domestic Relations Law provides, in pertinent part, that prior to completing an adoption:


The judge…shall cause to be made an investigation by a disinterested person…to examine into the allegations set forth in the petition. The investigator…shall ascertain as fully as possible, and incorporate in his report the various factors which may bear upon the determination of the application for adoption including, but not limited to,…facts relating to the familial, social, religious, emotional and financial circumstances of the adoptive parents which may be relevant to a determination of adoption.3 (emphasis added). Moreover, before ordering the investigation, a court must make a preliminary finding “that the adoption [appears to] be in the best interests of the child.” DRL §116(2) (emphasis added). Of course, to make that finding, the court must have relevant information regarding the child’s best interests.


The relevant statutory framework further contemplates that a proposed adoptive parent will be pre-certified prior to submitting a petition for adoption. DRL §115(1)(a). The certification process requires an applicant for pre-certification to provide information regarding (1) the marital and family status and history of the applicant(s); (2) the physical and mental health of the applicant(s); (3) the property owned by and the income of the applicant(s); and (4) whether the applicant(s) have ever been respondents in any proceeding concerning allegedly abused, neglected, abandoned or delinquent children. Id. §115-d(1)(d). Furthermore, the applicant(s) must state whether they or any person 18 years of age or older residing in their home have ever been the subject of an indicated report of child abuse or maltreatment. Id. §115-d(1)(c); SSL §422(4)(A)(e),(p); §424-a(1)(a)(i);(c). The applicant(s) are also required to provide their fingerprints to enable a court to obtain a copy of their criminal histories. DRL §115-d(3-a). Upon submission of all of the required proof in support of an application for pre-certification, a court will order an investigation “to examine into the [truth and accuracy of the] allegations set forth in the application and any other factors which may be relevant to the suitability of the applicant[(s)]…as…qualified adoptive parent[(s)].” Id. §115-d(4). The investigation is required to include a personal interview and a home visit to help ascertain the “familial, social, religious, emotional and financial circumstances of the adoptive parent[(s)]…which may be relevant to certification as…qualified adoptive parent[(s)].” Id. §115-d(5). The pre-certification requirements may be waived for good cause shown, id. §115(1)(b), however, a court cannot make that determination without adequate information.


However well-intentioned the simplified adult adoption petition may have been, it must yield where it is inconsistent with the governing statute and the case law interpreting it. Matter of Moran Towing & Transp. Co. v. New York State Tax Commn., 72 NY2d 166, 173 (1988), citing Matter of Trump-Equitable Fifth Ave. Co. v. Gliedman, 62 NY2d 539, 545 (1984); NY Statutes §73 (“The courts…do not sit in review…of the Legislature or determine the expediency, wisdom, or propriety of its action on matters within its powers”). With respect to the pre-certification process, there is no statutory exemption in cases where the adoptee is an adult. On the other hand, the statute contains a specific exemption where the adoptive parent is a step-parent who has continuously resided with his step-child and the child’s biological parent for at least one year from the pre-certification process. DRL §115-d(8). The familiar principle of expressio unius est exclusio alterius suggests that the legislative omission of adult adoptions from the pre-certification exemption was intentional and that the provisions were intended to apply to adult adoptions. See e.g. Matter of 1605 Book Ctr. v. Tax Appeals Trib. of State of NY, 83 NY2d 240, 245-46 (1994), cert denied 513 US 811 (1994); Oefinger v. New York State Police, 146 AD2d 186, 188-189 (3d Dept 1989); Matter of Excellus Health Plan v. Serio, 303 AD2d 864, 867 (3d Dept 2003), affd, 2 NY3d 166 (2004), citing NY Statutes §240; see NY Statutes §74. Similarly, the exception to the parental consent requirement in adult adoptions, see DRL §111(4), supra, suggests that the Legislature intended all of the other adoption provisions to apply, see e.g. Matter of Citizens For An Orderly Energy Policy v. Cuomo, 78 NY2d 398, 431 (1991), citing NY Statutes §240, including the disclosure of the familial, social, religious, emotional and financial circumstances of the adoptive parent(s) and any other information illuminating the best interests of the adoptive child. See Robert Paul P., 63 NY2d at 237.


The Court has observed that the simplified petition forms have given adoptive parents and their attorneys the false impression that nothing else is required to complete an adult adoption. Some, as this case demonstrates, have even come to believe that the papers required by the Uniform Rules of the Family Court (22 NYCRR) §205.53 do not apply to adult adoptions even though the Rules are specifically made applicable to “all…adoption proceedings in Family Court.” Id. §205.52(a). In order to avoid the apparent confusion, in this Court’s view, prospective adoptive parents and the adult children they seek to adopt would benefit from an administrative review of the forms prescribed for adult adoptions.



Footnotes

1. See Matter of Robert Paul P., 63 NY2d 233, 237 (1984) (the "expressed purpose" of adoptions is to "legally formaliz[e] a parent-child relationship"); DRL §110.

2. In evaluating best interests, the Court must be satisfied that the temporal and moral interests of the adult adoptee will be promoted by the adoption and that the parties' purpose is neither insincere nor motivated by fraud. Stevens v. Halstead, 181 AD 198, 202 (2d Dept 1917); Matter of Adult Anonymous II, 88 AD2d 30, 32 (1st Dept 1982); Mazzeo, 95 AD2d at 92.      

3. See DRL §110 (a court shall not be "prevent[ed]…[from] reject[ing]…a prospective applicant based upon his poor health or limited life expectancy.""