Friday, February 19, 2010


NYLJ 6/13/07


“Human lives don’t come with guarantees and certainly not money-back to the customer if not completely satisfied.” From the High Chair, you may often want to sport Solomonic wisdom but, 9 out of 10, the best you can get off on in a Judge Judy-style wisecrack.

When faced with a woman who has returned her adoptive son to social services as “unmanageable,” you can’t say: Hmm, this book isn’t living up to its cover. It is as much to say: She has an off-the-rack Bonwit-Teller look about her but bag and shoes match. So maybe she picked up the Gucci clutch on Canal Street, but those slingbacks are authentic. Hey, never made a bust on a blanket sale, and—anyways—just because she’s well-heeled, does that mean she’s less entitled to a fair hearing?

And, to be fair, the case of the boy “Jay” is about as sad as one can expect without physical deformity. Born to a drug-addicted mother, Jay tested positive for both cocaine and syphilis at birth, with a very low weight. When placed with an adoptive mother at 3-years-old he was already hyper-active. There is no question his new parent was aware that she was getting a handful, but there is also the question as to why she did not return to the agency to receive government-sponsored assistance. Her testimony painted the picture of a loving, caring person making every effort to accommodate a disabled child, one with severe mental impairment. As his illness progressed at day care, it was evident for his violent behavior—banging head against the wall, throwing chairs, kicking at other children—that something on the order of extreme care and constant monitoring was called for, something the adoptive mother could not provide. Jay was institutionalized in a private residential treatment center and the mother, at wit’s end or more, went back to the department to see if she could relinquish custody to the state temporarily. Or at least until some sort of treatment could be decided.

Her arguments—that she feared for her life, the child’s and the children around him—were sound. Unfortunately, social Services gave her only two choices: take him home now or permanently relinquish all parental rights. That they said nothing about parental obligations was never considered by the woman. As to why her own counsel did not ask for full elaboration on this issie one can only blame the mother’s haste. That thigns could ever come to such a pass, according to the counsel for the county department, was that the mother never sought the respite care or other preventative services the state law requires be given to families with disabled children. At best, the woman was ignorant and overly confident in her mothering skills; at worst, she and her son were victims of a careless, insensitive, regulation-obsessed bureaucracy. It was this that was entered by the concurring opinion, rebuking the state for its failure to inform her of her rights and privileges, but never failing in their duty to fill in forms, and follow the rules.

It is SS Law Section 398(6)(f) that relieves an out-of-wedlock parent of a surrendered child from future financial responsibility. Common sense would dictate that the same should apply to a relinquished child as well, along with signing over the $1,000-a-month state support payments. So you wouldn’t think that the State would garnish her wages, freeze her bank accounts and impound her car/ that, and make it necessary to sell her home.

Well, it may seem cruel and unusual punishment for not being Super-Mom, but it is also not enough to enjoin the Department of Social Services being equitably estopped from enforcing the support order.

“On your side of the scale are the various diagnoses of pervasive developmental disorder, obsessive-compulsive disorder and cerebral palsy. Along with the failures of the department to provide more aggressive care options, while, as well, failing to inform her that she would continue to be responsible for child care payments.

“On the other, regrettably, is the Law. Perhaps there should be the same relief provided for adoptive parents as it is for teen pregnancy problems of the 1950s—which is from where this legislation stems—but there it is. Until the state’s representatives and senators see fit to pass a law to that effect, there is little else to say. The adoption process was entered into with full knowledge of the child’s medical history and can claim no misrepresentation of the difficulties that were anticipated in his rearing.

“This is, unfortunately, not a case where you can get a replacement. And even though you didn’t break it; you bought it.”

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