WHEREAS, Petitioners M.S. and R.S. having filed adoption petitions on February 17, 2022, seeking to adopt the subject minor children Serenity JJ. and Wyatt JJ., the biological minor children of Petitioner M.S. and Interested Party Michael UU.; and

WHEREAS, pursuant to a Decision and Order issued on July 31, 2023; this Court having determined that Interested Party Michael UU.'s consent to the adoption was not required pursuant to DRL §111. In re Wyatt JJ., 79 Misc 3d 1243(A) (Warren County Family Court 2023).

WHEREAS, the Court having conducted a Hearing over multiple days including January 26, 2024; February 1, 2024; and August 15, 2024; and

WHEREAS, the Court conducted a Lincoln hearing with both children on September 4, 2024, in the presence of the Attorney for the Children; and

WHEREAS, written summations were provided by counsel and the matter was considered fully submitted on September 10, 2024; and

WHEREAS, the Court having considered the sworn testimony of M.S. and R.S., Jeffrey F., Melinda R. and Michael UU.; and the Court having considered Petitioner's Exhibit #1 (51 Photographs); and

WHEREAS, the Court having taken Judicial Notice of the following proceedings and Orders:

1. Decision and Order issued by the Warren County Family Court (Michael Hartnett, FCJ) on July 31, 2023; and

2. Testimony and evidence submitted at the prior Fact-Finding hearing related to the DRL §111 determination, held on April 17, 2023; and

3. Petition for Modification of a Custody Order of Another Court, (Michael UU. v. M.S.) (Docket V-xxxxx-22/22A; File Unit Number XXXXX); and

4. Judgment of Divorce issued by the Supreme Court of the State of New York, Warren County (John S. Hall, Jr., ASCJ)

5. Decision and Order issued by the Warren County Family Court (Paulette Kershko, FCJ) on April 3, 2018 (Docket V-xxxxx-17; V-00913-17; File Unit XXXXX); and

WHEREAS, in connection with the Petition for Adoption; Petitioner R.S. having submitted ^[FN1] a criminal background history from the State of New York, State of New Jersey, State of Delaware ^[FN2] , State of Maryland ^[FN3] , and State of Florida ^[FN4] ; and the Court having considered such submissions; and

NOW THEREFORE, after due consideration, the Court finds:

The Court heard from five witnesses in the context of the "best interest" hearing. The Court found M.S. to be generally credible in her testimony. Although the testimony was largely self-serving; the Court concluded that she appeared to be genuine in her testimony. The Court found Jeffrey F. and Melinda R. to be credible witnesses. The Court found Michael UU. to be a generally credible witness, although his testimony was not probative to the issues of this hearing. The Court found R.S. to be generally lacking in credibility. Specifically, the Court notes that R.S. was generally responsive to questions; but when confronted about his history reverted to a generic "I don't recall" response and became extremely evasive and vague when being cross-examined. Although the portion of R.S. testimony regarding his interaction with the children appeared genuine, and the Court has credited such testimony — the balance of the testimony was not provided substantial weight as it appeared to be entirely self-serving and was substantially undermined through cross-examination.

Serenity (Age 10) is the biological child of M.S. and Michael UU. Wyatt (Age 8) is the biological child of M.S. and Michael UU. Both children were born during the time M.S. and Michael UU. were married.

On April 3, 2018, the Warren County Family Court (Paulette Kershko, FCJ) issued a Decision and Order ^[FN5] providing a de novo custody determination relative to both children that provided sole legal custody and primary physical custody to M.S. and Michael UU. was provided with limited parenting time during his incarceration.

M.S. and R.S. began a romantic relationship in approximately 2017. R.S. moved into the residence of M.S. shortly after the relationship with Mrs. S. started. R.S., M.S., and the children have continuously resided in [Upstate], New York since the commencement of this proceeding.

M.S. and Michael UU. subsequently divorced in March 2019. Pursuant to a Judgment of Divorce which provided M.S. with sole legal custody and primary physical custody, with "the Husband (Michael UU.) visitation will be determined by family court. [R.S.] will be allowed to watch the children on a daily basis."

Petitioners filed step-parent Petitions for Adoption (Private Placement) that were sworn to by both R.S. and M.S. on February 17, 2022. The Petition, at Paragraph 20(b) provides "The adoptive parent(s) (has)(have) no knowledge of any criminal record concerning themselves or any other adult over the age of 18 residing in the household (except) none" (emphasis in original). The Petitions were accompanied by a Report of Investigation (Private Placement)^[FN6] that [*2]was signed by R.S. and M.S.

Michael UU. objected to the adoption Petitions. Michael UU. subsequently filed a Petition ^[FN7] seeking custody of Serenity ^[FN8] . Following protracted litigation and pre-trial proceedings, the Court scheduled a hearing related to the determination regarding DRL §111, as to whether the consent of Michael UU. was required.

Notably, on April 11, 2023, Petitioner R.S. filed two Amended Petitions for Adoption (Stepparent Adoption) that were sworn to by both R.S. and M.S. on April 11, 2023. The Amended Petitions make no reference to any criminal record of the Petitioner or any other adult over the age of 18 residing in the household ^{[FN9] [FN10]} . The Amended Adoption Petitions were subsequently withdrawn by the Petitioner at the outset of the trial on consent in 2023.

By Decision and Order issued on July 31, 2023, this Court determined that Michael UU.'s consent to the adoption of either child was not required. In re Wyatt JJ., 79 Misc 3d 1243(A) (Warren County Family Court 2023).

Serenity (Age 10) lives with her mother and stepfather in [Upstate], New York. Serenity attends public school in the [redacted] School District where she is in the fifth grade. Serenity is a thoughtful, articulate, and mature ten-year-old who enjoys taking care of animals, playing outside, and spending time with family. Serenity generally gets along with everyone in her household including her brother, Wyatt. Serenity has a positive and loving relationship with R.S. and Serenity views R.S. as her father. R.S. provides Serenity with support including routine child-care, assisting with homework and other normative parenting support. R.S. contributes financially to the support of Serenity, by financially contributing to household expenses such as groceries, utilities and other costs.

Wyatt JJ. (Age 8) lives with his mother and stepfather in [Upstate], New York. Wyatt JJ. attends public school in the [redacted] School District where he is in the third grade. Wyatt is an energetic, witty and charismatic eight-year-old who enjoys riding his bike, playing with friends and playing videogames. Wyatt generally gets along with everyone in his household including his sister, Serenity. Wyatt has a very close and positive relationship with R.S. Wyatt and R.S. are described as "inseparable." Wyatt only knows R.S. as his father; and Wyatt has not been exposed to the concept of Michael UU. being his biological father.

M.S. (29) (hereinafter "M.S." or "Mrs. S." or "Petitioner Mother") currently resides with her husband, R.S., and her two children, Wyatt and Serenity in [Upstate], New York. Mrs. S. was previously married to Michael UU. and divorced in 2019. M.S. is self-employed as a house cleaner where she earns approximately $2,000 per week in income.

R.S. (39) currently resides with his wife, M.S., and her two children, Wyatt and Serenity in [Upstate], New York. R.S. is currently employed in the field of construction as a laborer and works various general contracting jobs throughout the year, earning approximately $52,000 in annual income.

R.S. was raised in the State of New Jersey. R.S. acknowledged a "rough" childhood and having difficult teenage and young adult years, often associating with the "wrong crowd." In his early twenties, R.S. went to live with his mother in the State of Delaware. After residing in Delaware, R.S. for a time resided in the State of Florida; before returning to New Jersey in approximately 2014 at the time when he was charged with various crimes. R.S. was incarcerated from 2014 through 2017 in New Jersey. In so far as the Court can ascertain from the record developed at trial, Mr. S. is not currently under probation or parole supervision and is not subject to any registration requirements such as the Sex Offender Registration Act (commonly called "SORA").

The Court finds that based on the submissions of the Petitioners that R.S. presents with the following criminal history.^[FN11] On December 15, 2003, R.S. was convicted of Conspiracy in the third degree (11 Delaware Code §511(1)); Theft (11 Delaware Code §841). On December 6, 2010, R.S. was convicted by plea in New Jersey (Greenwich Township Municipal Court) of Personal use of cannabis items (NJ Rev Stat §2C:35-10a(1)) and was sentenced to a term of probation for three (3) years. On April 4, 2014, R.S. was convicted by plea in New Jersey (Gloucester County Superior Court) of Endangering the welfare of children (NJ Rev Stat §2C:24A(2)) and was sentenced to a term of incarceration in state prison for three (3) years. On April 4, 2014, R.S. was convicted by plea in New Jersey (Gloucester County Superior Court) of Theft from another person (NJ Rev Stat §2C:20-2B) and sentenced to a term of incarceration in state prison for five (5) years. R.S. was released from state prison in New Jersey in May 2017.

Following his release from prison in June 2017, R.S. lived with his mother in New York City (Queens) for a short time. Thereafter he met M.S. through a "dating app" — and shortly thereafter moved to Upstate New York and began living with Mrs. S. and her children.

Since residing with Mrs. S., R.S. manifests a different presentation than prior to his incarceration. Mr. S. has held consistent employment and appears to be a stable presence in the household. Mr. S. volunteered at the local fire company but was later rejected from volunteering ^[FN12] . Mr. S. also has volunteered with the children's extra-curricular activities such as coaching softball — until he was likewise rejected from volunteering in that role due to the organizers of that activity becoming aware of his criminal history. R.S. has a close relationship with his own parents including Melinda R. Melinda R. (the children's step-grandmother) has a positive and loving relationship with the children and has traveled from South Carolina to New York to spend time with the children. Mr. S. gets along well with Mrs. S.s' extended family that resides in the local area.

The Court conducted a Lincoln hearing with both children. Accordingly, the Court has considered the wishes of the subject children, assigning appropriate weight to such wishes as stated, based on the age and maturity of the children.

In this stepparent adoption proceeding, the Court has previously determined that pursuant to DRL §111, that the consent of the biological father, Michael UU. was not required. The Court then turns to the determination as to whether or not such adoption would be in the children's best interests. As provided in DRL §114(1), "[i]f satisfied that the best interests of the adoptive child will be promoted thereby, the judge or surrogate shall make an order approving the adoption and directing that the adoptive child thenceforth be regarded and treated in all respects as the child of the adoptive parents or parent." "[T]he unassailable and overriding consideration in any adoption proceeding remains the best interest of the child." In re Adoption of Alicia TT., 294 AD2d 642 (3d Dept 2002).

Interested Party Michael UU. has raised a claim that the prospective adoptive parent is per se disqualified as a result of the requirements provided in DRL §115-d(6). The argument of Michael UU. is unpersuasive and contrary to established precedent; and as such the petition will not be denied on those grounds.

DRL §115-d, titled "Petition for certification" generally requires prospective adoptive parents to be certified as a "qualified adoptive parent." Further, "[n]otwithstanding any other provision of law to the contrary, a petition for certification as a qualified adoptive parent shall be denied where a criminal history record of the application reveals a conviction for a felony conviction at any time involving child abuse or neglect; or a crime against a child, including child pornography; or a crime involving violence DRL §115-d(3-a(b))(i), et seq.

Notably, DRL §115-d(8) explicitly provides that, "[t]he provisions of this section shall not apply to petitions brough by a step-parent of a step-child where the step-child has resided with the birth parent and the step-parent for a continuous period of one year. (emphasis added).

Here it is undisputed that R.S. is a stepparent to the subject children, and it is undisputed that R.S. has resided with the birth parent (M.S.) and the children for a continuous period of one year. Accordingly, the automatic bar to adoptive parent certification based on prior felony convictions, as provided in DRL §115-d, is inapplicable as the instant case is a petition for stepparent adoption. Courts throughout New York State have consistently held that the requirements of DRL §115-d are not applicable to stepparent adoptions, consistent with the plain reading of the statute. Matter of Camilla, 163 Misc 2d 272 (Kings County Family Court 1994); In re Donna S., 23 Misc 3d 338 (Monroe County Family Court 2009).

As such, the background and history of R.S. — insofar as he presents with an undisputed criminal background involving conviction for various felonies, including what would be a disqualifying offense for an agency adoption ^[FN13] ; this Court does not hold that such conviction history is an automatic bar to a stepparent adoption.

Rather, a case-specific fact inquiry regarding the history and circumstances of the parties is warranted and required. Such an approach has afforded the parties due process to provide the Court with information to make an informed analysis as to what outcome would serve the best interests of the subject children. In re Adoption of Corey, 184 Misc 2d 437 (Green County Family Court 1999).

The determination of best interests is considered based on a totality of all relevant factors to which include the "ability to provide for the child's emotional and intellectual development, the quality of the home environment, and parental guidance provided." Eschbach v. Eschbach, 56 NY2d 167 (1982), see also Matter of Baby Boy O. 181 AD3d 606 (2d Dept 2020). "Other factors to be considered include the original placement of the child, the length of that placement, the financial status and ability to provide for the child, and the relative fitness of the prospective adoptive parents and the biological parents." Matter of Baby Boy O., Supra at 607, citing Matter [*3]of Anya W. [Darryl W.-Chalika W.-R., 156 AD3d 710; Eschbach v. Eschbach, Supra at 172.

The Court in considering and reviewing the testimony and evidence adduced at both hearings; finds that the general home environment of the subject children, where R.S. has been present for a period of years, is generally stable and positive. There was no evidence suggesting that there is any presence of domestic violence or other undesirable conditions present in the physical construct of the home. To the contrary, it appears to this Court as though both Mr. S. and Mrs. S. are reasonably stable in their employment and housing circumstances, and that both parents provide a generally positive and comfortable home environment for the subject children. Accordingly, the factors attributable to financial status and recent track record of the Petitioner being able to provide for the child; do not raise concerns for the Court. The Court credits the testimony of the Petitioners that R.S. has been involved in the daily lives of the children, attending medical appointments, and providing an otherwise suitable home environment.

The Court has given substantial weight and consideration to relative fitness of the prospective adoptive parent, R.S. In that regard, the Court finds that at the core of the decision to approve the adoption petition rests on the balancing and determination of whether the criminal background and history of R.S. outweighs the recent positive interactions between R.S. and the children.

On one side of this equation is that R.S. has been involved in the children's lives for approximately seven years, and — based upon the record before this Court — he has had a positive impact in the children's lives. R.S. has provided appropriate childcare and supervision, assisted with the children's educational development, appropriately promoted their social and emotional development and has been appropriately involved in their daily lives.

On the other side of the equation is the background and criminal history of the Petitioners, and the manner in which that history was made known to the Court. After careful and due consideration, it is this Court's determination that the concerns raised by the criminal history of the Petitioner outweigh the other factors in considering the totality of the circumstances as to what outcome of this proceeding would serve the children's best interests.

The Court does not expect perfection in adoptive parents — and does not expect perfection here. Michael JJ., 200 AD2d 80, 82 (3d Dept 1994). However, the underlying circumstances and the nature and extent of the criminal background of R.S. warrants a determination that approving the adoption would not be in the children's best interest.

Notably, the criminal history of R.S. includes multiple convictions for crimes related to drug possession, conspiracy, theft, and a crime against a child. Those underling convictions include a conviction related to a violent crime (theft from a person) and also include a separate felony conviction related to a crime committed against a child, for which Mr. S. was sentenced to a prison term. Although, as previously discussed, a pre-adoption certification is not required for a stepparent; however it is of note that if R.S. had sought to be a certified pre-adoptive parent; the Petition would be barred by multiple convictions.

The Court has considered applicable precedent and finds that Matter of Adoption of Donald U. is instructive, albeit the result of the instant case provides a different outcome. Matter of Adoption of Donald U., 105 AD2d 875 (3d Dept 1984). In Donald U., an adoption was approved despite the petitioning party presenting with a criminal history background that occurred more than twelve years before making application to adopt, as well as being dishonorably discharged from the military and a history of failing to make child support payments. This Court finds the case at bar to be distinguishable from Donald U. in several respects. Initially, the Petitioner in the case at bar presents with multiple convictions ranging from convictions related to drug possession to violent felonies including being convicted for a crime against a child. Additionally, Petitioner R.S. was sentenced to a term of prison resulting from the convictions for theft from a person and endangering the welfare of a child — and no evidence was presented as to any ameliorative efforts (i.e., treatment, therapy or other efforts) that would demonstrate the causes of the underlying behaviors resulting in the convictions having been mitigated in any way. Rather, in the case at bar — R.S. served a prison term from 2014 through 2017; and shortly after being released moved to New York City for a short time — and then into the home of M.S. It is also noteworthy to this Court that the conviction of Endangering the welfare of child was related to sexual abuse of a very young child.

In considering the best interest of the children, a discussion of the interplay between the sworn assertions in the Petitions and the general factor of relative fitness of the parties, is warranted. A proceeding for adoption may be appropriately dismissed where the Petition makes material misrepresentation. Matter of Adoption of Baby Girl S., 141 Misc 2d 905 (Surrogate's Court, New York County 1988) affd 150 AD2d 993 (1st Dept 1989); Matter of Lord, 28 AD2d 1203 (4th Dept 1967). Although summary denial of the petition may not be appropriate in all circumstances; the Court may consider the prospective adoptive parent's conduct in misrepresenting or failing to disclosure material facts in their adoption petition. Margensey v. Manitta, 156 AD2d 1026 (4th Dept 1989) (internal citations omitted). Compare Matter of Baby Girl W. [Kohn-Preiss], 151 AD2d 968 (4th Dept 1989), lv denied 74 NY2d 613 (1989) (holding that misrepresentation by prospective adoptive parents of educational, employment and financial background did not warrant dismissal of adoption petition).

Of substantial significance to the Court in rendering the decisions herein is the manner in which the criminal history of R.S. was elicited. The initial Petitions filed by R.S. and M.S. averred that neither party ^[FN14] was previously convicted of a crime. The lack of reference to any criminal history in the Petitions - when viewed in a light most favorable to the Petitioning parties - could at best be considered misleading. However, when viewed in the context of the later withdrawn Amended Petitions ^[FN15] (wherein the reference to criminal history was altogether [*4]deleted), the lack of candor in failing to disclose the criminal history of the Petitioners appears to be an outright misrepresentation.

During the hearing on April 27, 2024, M.S. — when asked as to her criminal history — admitted to being convicted of various crimes related to filing false instruments in an attempt to obtain benefits. M.S. testified that she did not disclose that information in the Adoption Petitions as she was unsure and otherwise confused if those convictions were convictions which she had to report — claiming her belief that the criminal proceedings were resolved with a non-criminal conviction. The Court finds the explanation provided by M.S. to be dubious ^[FN16] ; however — if the misrepresentations in the Petitions were solely limited to M.S.'s background, the Court likely would have determined the outcome of this proceeding differently.

Turning to the Petition for Adoption filed by R.S. — the Court finds that there is no reasonable explanation as to why R.S. elected to state and aver in a sworn Petition that he has no criminal history. The only logical conclusion that this Court can surmise is that the Petition for Adoption which stated R.S. does not have a criminal history is simply a material misrepresentation. The Court's conclusion that the failure to disclose the history was an attempt to subjugate the information is reinforced by the attempt of the Petitioner to file an Amended Petition which simply deleted any reference to having a criminal history. During his testimony, R.S. failed to provide any credible reason or persuasive justification as to why he submitted a petition which materially misrepresented his criminal history.

Although a New York State criminal background history was submitted in conjunction with the Petition, the extent of the criminal background and history of R.S. was discovered in the context of his own testimony — and contrary to the Petitioner's claim — was not volunteered willingly. Rather, the extensive nature of the criminal history of R.S. was elicited largely through cross-examination — which ultimately required the Petitioner — at the direction of the Court — to provide additional background history to be gathered from multiple States. Further, during questioning R.S. was asked about the context of the underlying charge resulting in the conviction of Engaging the welfare of children — to which he provided context that the original arrest stemmed from an allegation of sexual abuse of a very young child. R.S. ultimately acceded that he was convicted by guilty plea to the felony level charge of Endangering the welfare of a child and was later sentenced to a three-year prison term.

Further, when being questioned about his criminal history, R.S. was generally evasive and vague in his recitation of the context of his convictions — claiming various theories of why he was charged including a theory of mistaken identity and a far-fetched theory related to his relationship to a political figure — both of which the Court found unpersuasive. The record adduced at both hearings was abjectly devoid of any corroborative information or evidence that would attribute credibility to R.S.'s recitation of why he pleaded guilty to a felony level charge [*5]related to harming a child. Later in his testimony, R.S. claimed that he was convicted of a crime against a child only because he was persuaded by his lawyer to plead guilty. Notably absent from Mr. S's testimony was any contrition or remorse, but rather Mr. S. wishes for this Court to simply consider his word that he is a "changed person" and that he was innocent of the endangering charge.

In summary — the Court found R.S. to be generally evasive, vague and self-serving in his testimony regarding his criminal background — and his unwillingness to show contrition and genuine remorse gives this Court great concern in the context of considering the best interests of the children. Additionally, other than the passage of time — Mr. S. was released from prison in 2017; the record is lacking in evidence to support that R.S. is rehabilitated. Although the subject children have been well-cared for by the Petitioners, the Court cannot overlook the combination of the criminal background history of the parties and the manner in which that information was originally concealed and later ultimately discovered during the course of the hearings.

On the balance of the evidence, this Court cannot condone the behaviors of the Petitioner — and in the absence of persuasive evidence of contrition, remorse and rehabilitation - will not acquiesce and approve an adoption by an individual who has intentionally attempted to mislead the Court and presents with a criminal history inclusive of multiple felonies related to crimes ranging from drug possession to crimes against children.

Notwithstanding the Court's determination regarding the denial of this Petition; the functional and relative circumstances of the Petitioning parties will not be fundamentally altered insofar as R.S. and M.S. are married and living in an intact household with the subject children. While a denial of the Petition for Adoption does impact the legal relationship of R.S. to the children - there is no evidence before this Court that would be suggestive that a denial of the Petitions would fundamentally alter the day-to-day circumstances of the subject children. Compare In re Adoption of Corey U, Supra (holding that removing the children from the home of the Petitioners would deprive them of the only loving family relationship which they have been raised in throughout their young lives.)

The Court did hear and give consideration to the wishes of the subject children, as expressed in the context of the Lincoln hearing ^[FN17] ; and based on the age and maturity of the subject children has provided appropriate weight to such wishes. Notably, the expressed wishes of the children are only one factor to be considered and do not dictate a certain result in the best interest calculus. Imrie v. Lyon, 158 AD3d 1018, 1022 (3d Dept 2018), citing Eshbach v. Eschbach, Supra at 173 (internal citations omitted).

After careful and thoughtful deliberation, and upon a review of the persuasive and [*6]credible testimony, based upon a totality of the circumstances presented, the Petitions for Adoption must be denied as not being in the best interests of the subject children.

Based upon the foregoing it is;

ORDERED and ADJUDGED, that Petitioners have failed to demonstrate that approval of the Petitions for Adoption would serve the Best Interests of the subject child, Serenity JJ., and as such the Petition for Adoption (Docket A-xxxxx-22; File Unit Number XXXXX) is hereby DISMISSED, with prejudice; and it is further

ORDERED and ADJUDGED, that Petitioners have failed to demonstrate that approval of the Petitions for Adoption would serve the Best Interests of the subject child, Wyatt JJ., and as such the Petition for Adoption (Docket A-xxxxx-22; File Unit Number XXXXX) is hereby DISMISSED, with prejudice; and it is further

ORDERED and ADJUDGED, that the Custody Modification Petition (Docket V-xxxxx-22/22A) filed by Respondent Michael UU., which has been held in abeyance pending the determination on the issue of whether Respondent Michael UU. is a consent parent, shall proceed and the Clerk of the Court shall upon scheduling the custody proceeding for conference notify the parties and counsel; and it is further

ORDERED, that the Clerk's Office is directed to serve a copy of this Order upon counsel of record for the parties and the Attorney for the Child by electronic mail, and first class USPS Mail, same to be considered good and sufficient service pursuant to FCA §1113; and it is further

ORDERED, all parties shall take notice that: pursuant to section 1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in court, thirty-five days from the mailing of the order to the appellant by the clerk of the court, or thirty days after service by a party or Attorney for the Child upon the appellant, whichever is earliest.

It is so Ordered.