DeMARTINO v. SCARPETTA
334 F.Supp. 1089 (1971)
Nick F. DeMARTINO and Jean DeMartino, Plaintiffs,
Olga SCARPETTA and Spence-Chapin Adoption Service, Defendants.
No. 71 Civ. 1596.
United States District Court, S. D. New York.
April 27, 1971.
Fuchsberg & Fuchsberg, New York City, for plaintiffs.
Joseph Zalk, Zalk, Rubel & Perret, New York City, for defendants.
MOTLEY, District Judge.
Plaintiffs have brought this action for a declaratory judgment that they are entitled to notice of all proceedings in which the right to custody of the child Lenore is involved and that in such proceedings they have a right to be heard. They also seek an injunction enjoining defendants from enforcing the judgment of the Supreme Court, New York County, awarding custody of the baby Lenore to defendant Olga Scarpetta and, pending final determination of this action, enjoining defendants from enforcing said judgment.
Plaintiffs, Mr. and Mrs. Nick F. DeMartino, residents of Brooklyn, New York, acquired custody of the baby from defendant Spence-Chapin Adoption Service (the agency) on June 18, 1970, one month after she was born out-of-wedlock to defendant Olga Scarpetta on May 18, 1970. Miss Scarpetta presently resides in the Borough of Manhattan but is a citizen of a South American country. Plaintiffs had previously adopted a child
from the Spence-Chapin Adoption Service located in Manhattan. They had advised the agency of their desire to adopt another child. The baby Lenore was, therefore, put in plaintiffs' custody by the agency with the understanding that, upon expiration of the probation period, plaintiffs would adopt the baby in compliance with New York law. However, five days after the baby had been placed with plaintiffs by the agency, the baby's natural mother sought to recover her child. She had placed the baby with the agency four days after the baby's birth. Ten days later, she signed a surrender document surrendering the custody of the child to the agency. On June 23, 1970, Miss Scarpetta notified the agency that she desired to have the child returned to her.
After several unsuccessful oral requests to the agency for return of her child during July and August 1970, Miss Scarpetta secured counsel and on September 21, 1970 commenced a habeas corpus proceeding against the agency in the Supreme Court, New York County. The only defendant in that proceeding was the agency. Defendant Scarpetta, as required by New York law, did not know the identity of the persons with whom the agency had placed her child for adoption. The DeMartinos had not yet adopted the child. Although the DeMartinos had been made aware by the agency in October 1970 that the habeas corpus proceeding had been commenced, they did not make application to intervene at that time. The agency resisted the action consequently, and a hearing was held on November 2, 1970 at which time witnesses testified and other evidence was received.
After the hearing, the Supreme Court on November 20, 1970 granted the habeas corpus petition and awarded custody of the child to its natural parent. Plaintiffs then sought to intervene. No action was taken on plaintiffs' motion to intervene by the Supreme Court and after a certain period of time it was deemed denied.
The agency appealed to the Appellate Division, First Department. Plaintiffs moved to intervene. The motion was denied. The judgment of the Supreme Court was affirmed on January 28, 1971.
Upon appeal to the New York Court of Appeals that court, on April 8, 1971, likewise affirmed the trial court. It held that the record adequately supported the determination that the child's best interests were served by awarding custody to its natural mother who had been found fit and competent and financially able to rear her child. People ex rel. Scarpetta v. Spence-Chapin Adoption Service, 28 N.Y.2d 185, 321 N.Y.S.2d 65, 269 N.E.2d 787 (1971).