Court splits on adoption case

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In a split decision, a state appeals court has affirmed a lower court ruling in an adoption case.

In April 2021, Jefferson County Family Court Judge Eugene J. Langone Jr. dismissed an adoption petition for a boy to be adopted and ruled that the father’s consent was required for the petition.

“Contrary to petitioners’ contention … there is a sound and substantial basis to support the determination of Family Court that the father demonstrated “his willingness to take parental responsibility,” according to the majority opinion from the Appellate Division of state Supreme Court, Fourth Department.

Voting to affirm Langone’s ruling were justices John V. Centra, Stephen K. Lindley, and John M Curran. Justice Nancy E. Smith dissented.

The father, an active-duty soldier, “did everything possible to manifest and establish his parental responsibility under the circumstances,” according to the decision.

The father “publicly acknowledged his paternity from the outset of the pregnancy,” the majority wrote.

The father did not pay any expenses in connection with the pregnancy or the birth, but all of the expenses were paid by the military.

Before the child’s birth, the father pursued paternity testing and the mother promised that he could have custody of the child, and he started buying items in anticipation of obtaining custody of the boy.

The father got the help of his commanding officers to obtain custody of his child and made plans for relatives or friends to help care for the child until his enlistment ended.

“We thus respectfully disagree with our dissenting colleague and conclude that the father established his ability to assume custody of the child. Contrary to the position of the dissent and petitioners, custody and housing are separate and distinct concepts,” the majority wrote.

“A parent who lacks housing for a child is not legally precluded from obtaining custody,” the majority wrote.

“Many parents enlist the aid of family members to help them provide housing, including single parents who serve in the military. That temporary inability to provide housing should not preclude them from asserting their custodial rights to the children where, as here, they have established their intent to embrace their parental responsibility,” the majority wrote.

“The evidence at the hearing established that the mother lied to the father, telling him that she would give him custody of the child; misled petitioners into believing that the father did not want the child, even though she knew that he was aggressively pursuing custody; and misled the courts by filing a false affidavit stating that no one was holding himself out as the father,” according to the majority opinion.

In her dissent, Smith wrote that she agreed that the father “established his willingness to assume custody of the child, and that the mother frustrated his attempts to obtain custody.”

But she disagreed with the majority’s conclusion that “the father established his ability to do so.”

“To the contrary, the father, who was honorably serving in the United States Army, took no steps to put himself in a position to provide care for the child. During the pertinent time period, the father initially lived in an army barracks and then was deployed to an overseas active zone, and indeed he testified by telephone on two occasions, first from an overseas deployment and thereafter from a temporary assignment in the state of Texas.”

“There is no indication in the record that he made any attempt to obtain military housing that would permit him to provide care for the child, tried to place the child on his health insurance plan, paid more than inconsequential parts of the mother’s birth and pregnancy expenses, or obtained any food, clothing or accessories necessary to care for a child.”

“His only plan for providing care for the child … was merely a nebulous indication that his girlfriend or his father could care for the child until he was able to assume custody,” Smith wrote.

The father was required to show that he could care for the child or demonstrate that he was able to obtain such care, and I conclude that he failed to do so,” she wrote.

“I conclude that Family Court erred in concluding that the child should be taken from the only home he has ever known,” Smith wrote.

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