Law News

Law Barring Adoptions by Felons Struck Down

by Michael Riccardi
New York Law Journal
September 16, 1999

A Brooklyn Family Court judge has overturned a six-month-old state law that automatically disqualifies persons with criminal records of violent felonies from adopting children.

Judge Philip C. Segal said that a Brooklyn woman is entitled to a chance to prove herself fit to adopt four girls for whom she had been caring as a foster parent.

He went on to conclude that the factual evidence shows that the adoption would be in the best interest of the children. Judge Segal also said that a mechanical application of the Adoption and Safe Families Act (ASFA) would "immediately sever an intact family."

"A homicide conviction may, and usually does, render a child's custodian unfit; but that fact is beside the point," Judge Segal wrote. "It is the inability ever to prove otherwise under ASFA that renders the statute unconstitutional."

He said that children in foster care have the right to an "individualized determination" of their best interest in adoption cases, and that creating blanket rules such as ASFA exposes them to "an arbitrary procedure that leaves their fate to happenstance."

Under the law, would-be adoptive parent's petition would have been automatically denied, since she pleaded guilty to manslaughter for recklessly killing an abusive boyfriend 21 years ago.

In a case of first impression in Matter of Jonee, A-25547-50/98, Judge Segal said that the "one-size-fits-all" approach of the ASFA would have deprived Gwendolyn Grant, 53, of due process.

The judge noted the mitigating circumstances of Ms. Grant's conviction, and said that every expert who has examined the family has approved of the woman's care for the children.

Ms. Grant, he pointed out, has had stable employment as a dental assistant for 16 years and, eight years ago, took in her four nieces, ranging in age from nine to 15, because of her sister's and their mother's drug addiction.

The statute, which took effect on Feb. 11, calls for the dismissal of adoption petitions filed by prospective parents who have on their records felony convictions for any "crime involving violence," including homicide.

That would spell the end for Ms. Grant's attempt to adopt her four nieces. She had been up-front about the conviction, reporting it to the social service agency overseeing the children and including an affidavit about the crime in her adoption petition.

According to the opinion, the killing occurred during a violent struggle with an abusive boyfriend. The man was drunk and striking Ms. Grant's head against kitchen cabinets when he began to choke her. She grabbed a carving knife and stabbed him in the chest. Pleading guilty to reckless manslaughter, Ms. Grant was convicted, sentenced and completed her probation in three years.

Judge Segal agreed with arguments that the ASFA "creates an irrebuttable presumption that petitioner is unfit" and deprives the children of an individualized determination of their best interests.

Since Ms. Grant has a constitutionally protected liberty interest in the integrity of her family unit, it can not be taken away without due process.

Additionally, the court reasoned, children in foster care "have a constitutionally protected right to be free of arbitrary state decisions that have a significant impact on their custody and welfare."

He concluded that all of the evidence collected in this case demonstrated that Ms. Grant was an "excellent" care-giver and that she and her four nieces formed an intact family.

"In these circumstances, petitioner's conviction cannot be dispositive," Judge Segal wrote.

Moreover, the law, if applied mechanically, "compels an outcome [that is] obviously damaging to the children's interest."

Richard A. Miller of Brooklyn, as well as lawyers from Brooklyn Legal Services Corp. B and Washington Square Legal Services represented Ms. Grant. Richard J. Warren, of Warren & Warren, was the lawyer for the placement agency, Angel Guardian Home and Family Services. Valerie Pels and Gerard Nolan, of the Legal Aid Society, are the law guardians for the four children.

According to the opinion, the law guardians backed Ms. Grant's adoption petition and asked the court to invalidate the statute. A home study carried out by Angel Guardian also recommended that the adoption go through.

Copyright 1999 NLP IP Company -- American Lawyer Media.