Opinion
May 25, 1971
Judgment of Supreme Court, New York County, entered September 30, 1970, dismissing custody petition affirmed, without costs and without disbursements. Where a mother has formally surrendered a child to an authorized adoption agency, her right to regain custody is committed to the discretion of the court. ( People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., 28 N.Y.2d 185. ) The court should exercise its discretion to direct a change of custody back to the natural parent only upon a determination "that the interest of such child will be promoted hereby and that such parent is fit, competent and able to duly maintain, support and educate such child." (Social Services Law, § 383, subd. 1; see, also, People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., supra.) We conclude that within these guidelines and on the basis of the record, the determination dismissing the petition should be sustained. On the prior appeal, this court, in remanding the matter, stated: "A mother's right to custody may be restored upon proof that the best interests of the child dictate her return to her parent as one fit, competent and able to support, educate and care for her." ( 34 A.D.2d 947.) On the remand and after a fair hearing, the trial court determined that "it has not been established by the evidence * * * that the petitioner is fit under present circumstances to procure custody of this child". This conclusion is amply supported. In view of certain statements in the dissenting opinion, we point out that the petitioner's plans for support and care of the infant are most indefinite. She testified that if the child were returned to her she would leave California and secure a teaching job at Carlow College for Women in Pittsburgh so that her parents could take care of the child while she was working. Her testimony was that the "department head [of the college] has said that if this comes to pass and I settle in Pittsburgh courses will be added to the curriculum which suit my abilities and background as they continually are added to the curriculum." Petitioner admitted that "I have not been specifically hired, because it is speculative, you see", and also that if her teaching job did not materialize she would seek employment with the Florence Crittendon Home in Pittsburgh. Petitioner, however, has never contacted that Home, but says that her sister called. Although it is true, as is pointed out by the dissent, that there is "no legal or constitutional barrier to the return of the infant" to the petitioner, it does not satisfactorily appear that she is "fit, competent and able to support, educate and care" for the child. (See 34 A.D.2d 947, supra.) The best interests of the child will be served by leaving her with her proposed adoptive parents with whom she has resided since shortly after birth. We confirm in all respects the findings and conclusions of the trial court.
I dissent and would reverse and sustain the petition. To bring this matter into proper focus a brief chronology of events is in order. The infant was born December 3, 1968, to the petitioner, presently about 28 years of age and holder of a master's degree in psychology. Though petitioner vacillated somewhat and was uncertain whether or not to place her child for adoption, the thread of a deep and constant love for the child appears from this record. Petitioner wanted to keep this child. She was torn in trying to decide what was best for the child. Petitioner's parents apparently wanted petitioner to keep the child and offered their assistance. Petitioner surrendered the child for adoption February 20, 1969. The child was placed with the prospective adoptive parents on March 10, 1969. All parties agree that within three or four weeks of the date of surrender, which was February 20, 1969, petitioner sought the return of her child. When her request was denied, petitioner initiated a habeas corpus proceeding in April, 1969. Since that time this matter has been in the courts. Certainly if the child had been returned at the time of the initial request, this entire proceeding could well have been avoided, without heartache or undue distress to anyone. The proposed adoptive parents, then childless, now have two children, and the interval of care then had been too brief for deep attachment. The observation that the child has spent most of her young life with the proposed adoptive parents, while accurate, has validity as a supportive argument only because of the interminable delay in these long drawn out proceedings. Though the Trial Judge on this rehearing found against petitioner, the court stated its belief that the child would not be damaged if there were a change. This court on a prior appeal by petitioner reversed and remanded for a hearing with respect to " any changed circumstances with respect to the situation of the appellant, particularly her marital status" ( 34 A.D.2d 947, italics added). Thus, while petitioner's marital situation was a factor to be considered, it was not the only factor to be reviewed. The marriage contemplated by petitioner did not take place chiefly, it would appear, because of a difference in the religions of the respective parties and the obligations attendant thereon. The marital status of petitioner cannot be a condition precedent to or solely determinative of her fitness to rear the child. It might have a bearing on the issue of environmental stability in that it might be presumed that the status of marriage affords a measure of permanency both in location and relationship. On the other hand, marriage for the single purpose of gaining court approval is much too high a price to pay, even under the circumstances here present. This petitioner is well educated, as are the proposed adoptive parents, and has maintained a good work record at a salary adequate for her support and that of the infant. Additionally, her parents, who have expressed a desire to help care for the child, own a two-story seven-room house with three bedrooms, and are possessed of sufficient means, financially, to assist petitioner should that become necessary. A change in jobs or in area location, standing alone, does not warrant a conclusion of irresponsibility or instability. Especially is this true if the change or changes resulted in improved job opportunities. There is no dispute that petitioner surrendered the infant as provided by statute (Social Services Law, § 384). Nor is there any dispute that in a very short period of time thereafter she sought the return of the infant. What is best for the child poses a problem, the resolution of which demands consideration of many factors. An adopted child reared by an otherwise childless couple may well be subjected to experiences which an adopted child as one among natural children of the couple will not encounter. Either could prove to be totally satisfactory or totally unsatisfactory. General experience has demonstrated that a child in the case of its natural parent has a more rounded development when, as here, the parent, by training and educational background with adequate financial resources available, is fit, competent and able to support, educate and maintain the child. The child in a real sense is a part of the mother. The mere act of surrender, occurring as it must have in a period of emotional stress when uncertainty prevailed as to the best course to pursue for the future well-being of the child, should not place petitioner beyond the pale in terms of recovering custody. This was recognized by the Court of Appeals recently in the Scarpetta case ( People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., 28 N.Y.2d 185). The court there observed (p. 192) "`the status of a natural parent' is so important `that in determining the best interests of the child, it may counterbalance, even outweigh, superior material and cultural advantages which may be afforded by adoptive parents * * * For experience teaches that a mother's love is one factor which will endure, possibly endure after other claimed material advantages and emotional attachments may have proven transient'" citing People ex rel. Grament v. Free Synagogue Child Adoption Committee ( 194 Misc. 332, 337, 338). Since the adoption has not been consummated, I see no legal or constitutional barrier to the return of the infant should the courts of our State so decide. The conduct of petitioner has not evinced indifference to the welfare of this child, nor is there anything to indicate other than a proper motivation in seeking its return (cf. People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., supra). I would reverse and grant the petition.