The Appellate Division, Second Judicial Department, of the New York State Supreme Court has ruled that when a adoptive parent dies before the adoption proceeding is finalized, the proceeding is null and must be terminated. In the Matter of Tia G. (Anonymous), the children's biological father appealed a court order from Suffolk County Family Court Judge, Andrew Tarantino, that granted Theresa G., the biological mother and her fiancee permission to adopt the children without the consent of the biological father.
When her fiancee died, the biological mother wanted to continue with the adoption. However, the Supreme Court ruling of February 2, 2010 vacated the Family Court order. The Supreme Court decision states:
""The fundamental purpose of an adoption is to establish the relationship of parent and child between living human beings. The proceeding is distinctly personal in nature and, therefore, abates upon [*2]the death of either the adoptive parent or the child" (Matter of Freud, 69 Misc 2d 906, 907). "[T]he plain language of Domestic Relations Law article 7, which must be strictly construed as it is in derogation of common law (see Matter of Jacob, 86 NY2d 651), demonstrates that only a person who is capable of acquiring the rights and responsibilities of a parent may adopt another person (see Domestic Relations Law § 110). A deceased person does not fit within that category (see Matter of Mazzeo, 95 AD2d 91; Matter of D.S., 160 Misc 2d 331; Matter of Freud, 69 Misc 2d 906)" (Matter of Male Infant L., 282 AD2d at 534-535).
Where, as here, the surviving petitioner, in effect, seeks a final order of adoption nunc pro tunc, "such an order is not recognized in this State" (id. at 535; see Matter of D.S., 160 Misc 2d at 332), any such order that is issued is a nullity, and the proceeding is "beyond the statutory jurisdiction of the court" (Matter of D.S., 160 Misc 2d at 332)."
The court also dismissed the biological father's appeal.
For more info: Read the court's decision.
Read more articles by Dan Weaver on family court.
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