Firm Helps Pro Bono Clients Become New Parents in Adoption Case

Monday, October 21, 2013

  • Volunteers of Legal Service

On August 8, an adoption case nearly 16 years in the making concluded when a couple from New York officially adopted two boys they had fought to protect and nurture since 1997. For the WilmerHale attorneys who guided the couple through the legal triumphs and setbacks since the firm took on the case, it was an especially proud moment.

“This pro bono adoption case turned out to be more complicated than we initially thought,” says New York-based Senior Associate Joseph Yu, who inherited the matter along with Associate Cyndy Chueh from former WilmerHale associates Ronnie Lin and Kimberly Chehardy.

Joseph YuThe case was referred to WilmerHale in March 2010 through the firm’s pro bono program with Bronx Lab School, where one of the boys was a student. WilmerHale works with the Bronx Lab School through VOLS’ Children’s Project. The team, supervised by Partner Dino Wu, met with clients Charles and Sarah Smith1 , a married couple who were the teenage boys’ legal guardians and who wanted to adopt the boys.The Smiths first met the two boys through their son, Thomas, who in 1997 believed that he was their biological father. The Smiths, believing themselves to be the paternal grandparents, spent time with the boys regularly, though the boys lived with their biological mother and maternal grandmother. During a visit in February 1997, the Smiths noticed one of the boys had a swollen finger. The maternal grandmother claimed her grandson had seen a doctor; nevertheless, the Smiths brought the boys to a hospital, where they were informed that both boys exhibited signs of abuse.

The hospital released the boys to the Smiths’ custody after the Smiths promised not to send them back to their biological mother and grandmother. The Smiths then petitioned the Bronx County Family Court to become legal guardians.

During the guardianship hearings, the boys’ mother and maternal grandmother contested the Smiths’ guardianship petitions, and the grandmother insisted that Thomas Smith undergo a paternity test. That test proved that he was not the boys’ father, and that the Smiths were not related to them. Nevertheless, the Smiths pursued guardianship. They succeeded in April 1998, after the court agreed that it was in the best interest of the children that they be cared for by the Smiths.

“By the time we took on the case, the Smiths had been the boys’ legal guardians for 15 years,” explains Yu. “But the judge who granted guardianship warned the Smiths that if the birth mother shaped up her act, the boys would have to go back to her. Our clients were scared that would happen. They thought of the boys as their own sons, so they pursued adoption.”

The biological mother ceased contacting the boys not long after the Smiths became legal guardians. By the time WilmerHale filed the adoption petitions in March 2012, the biological mother had not contacted her sons in more than 10 years.

Cydny ChuehAfter the adoption petitions were filed, the court required that the biological mother be served notice, even though the Smiths did not know where she was. With help from Assistant Managing Attorney Saverino Mercadante, the team attempted to serve the mother at the maternal grandmother’s home—her last known address. The grandmother informed the process server that the mother no longer lived with her, and even provided a fake address to throw the team off track. The team also checked area hospitals, prisons and government agencies, and their efforts to locate the mother formed the bases of a motion for substituted service. The court granted the motion, and the team delivered the notice papers to the grandmother’s home.

“The true test came during the notice hearing, where we were certain the mother would finally show up to contest the adoption,” says Yu. “I waited at the courthouse for hours, but no one showed, so the judge scheduled an inquest to establish that the elements of abandonment had been met.”

At the inquest on August 8, 2013, Sarah Smith testified to how she and her husband met the boys and obtained custody, and how the mother had not contacted the boys in more than 10 years. Judge Peter Passidomo found clear and convincing evidence that the elements of abandonment had been met, and finalized the adoptions.

“The judge stated that he could not imagine how different the boys’ lives would have been had the Smiths not stepped in years ago,” says Yu. “I’ve heard both boys are thriving, with one attending an academic camp before returning to high school, and the other attending college. While this case didn’t sail through the court as easily as we thought it would, the end result made all the work worthwhile.”

1 The names of the clients have been changed to protect the family’s privacy.