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Court Decides if Criminal Offense Disallows Adoption by Defendant

A child was born on August 9, 2004. Since September 22, 2004, when the child was discharged from the hospital, on the basis of a petition that had been filed alleging that his biological mother had neglected him, the child has resided in the home of his maternal cousin and her husband.

A New York Sex Crimes Lawyer said the adoption home study prepared by a social worker employed by New York Foundling, the foster care agency that has care and custody of the child describes him as a healthy seven-year-old boy with no special needs who is developing age-appropriately, and who is beginning regular second grade classes. The home study also reflects the fact that the child’s maternal cousin and her husband have been married for over thirteen years and that they are both employed. The maternal cousin is a nursing assistant, and her husband is the Head Supervisor of the Custodial Department of a State College. Also residing in the home is the couple’s fifteen-year-old biological son. The social worker describes the biological son as healthy, doing well in school, and having a positive and loving relationship with the child. The adoptive parents, their son and the child reside in a three bedroom house in New York.

The couple has been involved in the child’s life since he was a baby. One can see that they love the child very much and that he means the world to them. A New York Sex Crimes Lawyer said they were observed by the social worker to be very attentive and affectionate toward the child, who lovingly refers to them as mommy and daddy. They share an inseparable bond with the child, and have a good understanding of his needs. They are providing effectively for his physical, emotional, and spiritual needs. The couple understand and willing to accept the moral and legal responsibilities of adoption. Their commitment to the child is deep rooted and they have made it clear that he knows that they are there for him. The child feels the same strong sentiments toward the family and although too young to fully comprehend adoption, he is a happy, well-adjusted child for he knows that he is loved and wanted. Based on the overall progress the child has made in the home, it is therefore recommended that the application for adoption submitted by the couple be approved and that the child be adopted by the caring family.

The child’s attorney also believes that it is unequivocally in the child’s best interest to be adopted by the couple. This is based upon the social worker’s report, as well as the independent investigation by a social worker employed by the Legal Aid Society. On August 8, 2011, the Legal Aid Society social worker visited the couple’s home, interviewed the couple and the child separately, and observed their interactions. In a detailed affidavit submitted to the court, she depicts a stable, happy, loving family in which the child has thrived. According to her, the family has provided the same financial and emotional support for the child as they have their biological son. She observed the genuine bond that exists between the child and the father of the family and she noted that both the child and the family would be devastated and traumatized if he were to be removed from the home of the family or if the adoption were not to be approved. Based on her investigation and professional experience, the social worker concluded that the adoption should absolutely be approved so that the child may continue to grow and thrive in the loving home.

A Nassau County Sex Crimes Lawyer said that pursuant to Social Services Law, which requires prospective foster and adoptive parents to submit their fingerprints to both the New York State Division of Criminal Justice Services and the Federal Bureau of Investigation, the court is in receipt of a letter dated July 29, 2009 in which the New York State Office of Children and Family Services (OCFS) reported that the father of the family had a 1987 Washington D.C. conviction for simple assault and a 1992 Kings County (New York State) conviction for Robbery in the Third Degree. The July 29th letter further indicated that New York Foundling may consider the convictions in determining whether to certify or approve him as a foster parent or to revoke his approval as an adoptive parent and directed the agency to perform a safety assessment of the family’s home.

On November 24, 2009, pursuant to Social Services Law, New York Foundling conducted a safety assessment of the conditions of the household. In that safety assessment, with respect to the robbery conviction, the father of the family stated that he had been hanging out with a group of friends when the group decided to rob a man whom they knew had been making nightly bank deposits of large sums of money. A Queens Sex Crimes Lawyer said according to him, upon seeing this man get out of his car, he, together with the rest of the group, ran up, pushed the man against a wall and told him that it is a stick-up. He and his friends then took the man’s bag which contained money, and fled.

Based on the remoteness in time of his criminal convictions and the fact that in the years since the 1992 robbery conviction, the father of the family has reformed his behavior and has led a productive life, the safety assessment reported that he does not pose a safety concern to the child. The assessment concluded that because he has been the sole father figure in the child’s life, New York Foundling strongly believes that it is in the best interest of the child to be adopted by the family.
In order to gain further understanding of the facts underlying the man’s 1992 robbery conviction, the court obtained the criminal court complaint and his transcript of guilty plea. The criminal complaint charged him with one count each of Robbery in the First Degree, Robbery in the Second Degree and Assault in the Second Degree, and alleged that on November 27, 1991, in Kings County, he hit the victim with an unknown blunt object about his head and face and took a bag containing money that the victim had been carrying. The blows allegedly knocked out the victim’s front teeth, caused his nose to bleed, and resulted in his sustaining a separated shoulder. On February 3, 1992, having been promised a sentence of one and one-third to four years imprisonment, he pled guilty to one count of Robbery in the Third Degree and admitted that, on November 27, 1991, when the owner of a store came out of the store, he hit him, caused him to fall, took his bag containing money, and fled.
Finally, the court is in receipt of a sworn affidavit from the father of the family in which he admits that in 1992 he robbed a storeowner of a bag containing money. In the course of the robbery, he admits to striking the storeowner once on the jaw with his bare fist, causing him to fall to the ground. He denied using a weapon during the robbery and also stated that the storeowner neither appeared to be injured nor lost consciousness during the robbery. He expressed remorse and stated that he accepted responsibility for the incident by pleading guilty and serving two years of imprisonment and two years on parole.

Prior to the 2008 amendment of Social Services Law (SSL), the court would have found that the father of the family’s 1992 robbery conviction did not automatically disqualify him from adopting the child because, quite clearly, denial of the couple’s petition to adopt would have created an unreasonable risk of harm to the child’s mental health and granting said petition would have been in the child’s best interest and would not have placed his safety in jeopardy. However, in 2008, in order to comply with the federal Adam Walsh Child Protection Act of 2006, New York State eliminated the language in SSL which only presumptively disqualified from becoming foster or adoptive parents those who had been convicted of certain felonies, and by doing so made automatic the disqualification of those prospective foster or adoptive parents who had been convicted of certain felonies.

The court, therefore, initially must decide whether the man’s conviction in 1992 for Robbery in the Third Degree falls within the category of convictions which would automatically disqualify him from adopting the child. SSL reads, in pertinent part that an application for certification or approval of a prospective foster parent or prospective adoptive parent shall be denied where a criminal history record of the prospective foster parent or prospective adoptive parent reveals a conviction for a felony conviction at any time involving child abuse or neglect; spousal abuse; a crime against a child, including child pornography; or a crime involving violence, including rape, sexual assault, or homicide, other than a crime involving physical assault or battery.

Because robbery is not specifically mentioned in the provision, the court, therefore, must decide whether the man’s 1992 robbery conviction constitutes a crime involving violence. When the court construes the text of the statutory provision, and gives effect to the plain meaning of the words crime involving violence, there is little doubt that his robbery conviction falls within the category of convictions that would ordinarily automatically disqualify him from adopting the child. The criminal complaint, the man’s plea allocution and his admissions establish uncontestedly that he, with a group of other men, forcibly stole property from the victim. Even if the court were to accept his most recent description of the incident, that he did not hit the victim with an object, but that he only hit him with a bare fist in the jaw, this would not alter the court’s conclusion that the crime involved violence. Although he claims that he did not see any injuries to the victim during the robbery, he does not contest the fact that the victim had his teeth knocked out, nose bloodied, and shoulder separated. Under these facts and circumstances, it would be disingenuous, and demeaning to the victim of the crime, for the court to conclude that the crime did not involve violence. Plainly, it did.

Contrary to his contention, the fact that robbery is not specifically included in Social Services Law is not dispositive. Although the provision specifically includes rape, sexual assault and homicide and specifically excludes assault as crimes involving violence, there is nothing in either the legislative history of the provision or the state or federal regulations promulgated there under that would indicate that the listed crimes are exhaustive, and not merely illustrative, of crimes involving violence. Indeed, the agency vested with statutory authority to make an initial determination with respect to which category a conviction falls within, has promulgated an official list of crimes, the conviction of which would result in the automatic disqualification of prospective foster or adoptive parents that goes far beyond the crimes specifically designated in the statute. The court rejects the man’s interpretation of the statute as much too narrow.

Our past actions and decisions affects our future. Even if we turn our backs from our past wrongdoings, it will continue to haunt us one way or another. If you want to prove that you are innocent of what is alleged of you and that you are worthy of trust and be trusted with the life of a child, consult a Kings County Sex Crime Lawyer. Stephen Bilkis and Associates can also provide you with a Kings County Criminal Attorney to represent you in court.

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