The third forum in the 2023 Disability Law Series: Civil Rights and Individuals With Developmental Disabilities, sponsored and developed by Albany Law School’s Government Law Center and Institute for Aging and Disability Law, took place on March 9. The forum, “Consent of Adults in Adoption and Marriage Decisions,” was a panel comprised of Natalie M. Chin, associate professor of law and co-director of the Disability and Aging Justice Clinic at the City University of New York; Sheila E. Shea ’86, director of the Third Judicial Department’s Mental Hygiene Legal Service (MHLS); and Edward Wilcenski ’95, co-founding partner of Wilcenski & Pleat PLLC. Moderating the panel was Simeon Goldman, general counsel to the Independent Living Center of the Hudson Valley. Introducing the panel and welcoming participants was Hon. Leslie Stein, retired New York State Court of Appeals judge and current director of the Government Law Center.
Chin and Shea jointly presented on Matter of Marian T., a recent New York State Court of Appeals case involving a petition by the New York State Office for People With Developmental Disabilities (OPWDD) Family Care providers to legally adopt 64-year-old Marian T, a person with developmental disabilities living with the petitioners (who were paid for her care and supports rendered). The legal thread wending through decisions in the Surrogate’s Court of Otsego County, the Appellate Division, Third Department, and majority and dissenting opinions in the Court of Appeals was the relevance of or necessity for “consent” by or on behalf of the adult adoptee. The surrogate thus appointed a guardian ad litem empowered to consent for Marian, who was regarded as not capable of consenting in each court. The MHLS, which is statutorily authorized to advocate for persons with intellectual and developmental disabilities (I/DDs), and Chin submitted amicus briefing at both appellate levels. Both amici argued that to disregard the Domestic Relations Law (DRL) requirement of consent “infantilizes” the adoptee. Both panelists expressed dissatisfaction with the appellate courts’ failure to consistently and directly address issues unique to adult adoption, including the capacity to consent, the need for consent, and how to apply the DRL. Court of Appeals Judge Rivera in her dissent (and in agreement with the amici) opined that the majority had misinterpreted antidiscrimination theory. Their dissent contended that what was discriminatory in the matter before the court was treating disabled persons differently than other adults by discounting or ignoring the basic right to consent or refuse. In response to attendees’ questions, the panelists agreed that by being adopted into the family itself Marian lost certain rights inherent in detailed OPWDD family care regulations.
Chin initiated the discussion of marriage and consent thereto by discussing the role and function of marriage in the overarching realm of human sexuality and the civil right to expression thereof. Shea cited and quoted a number of US Supreme Court and state court opinions on marriage and sexuality (all dealing with legal rights issues). In New York State, under the DRL, marriage is a “civil contract.” Wilcenski addressed the issue of marriage between persons with I/DDs from a very direct and personal perspective—and with his brother’s knowledge and consent. Wilcenski's younger brother, who has an I/DD, is now 51 years old and was married for 18 years. His former spouse also has an I/DD, and they both require significant unpaid support from their families. The benefits available for people with I/DDs who are able to work are quite limited, and married couples are further penalized. The ultimate practical question for families when discussing rights is whether, knowing in advance the challenges involved, would the family support the marriage of an adult with an I/DD?
The fourth forum in the series, “Challenges in Guardianship and Strategies to Address Them,” will be held on Thursday, March 30, 2023, and will be moderated by Lawrence R. Faulkner, general counsel at the Arc Westchester. Panelists will include: Rose Mary Bailly, overseer of the Institute for Aging and Disabilities Law at the Government Law Center and adjunct professor of law at Albany Law School; Julie Friedman, principal attorney at the Third Judicial Department’s Mental Hygiene Legal Service; Lisa K. Friedman, attorney at the Law Office of Lisa K. Friedman; Kathryn E. Jerian ’07, chief operating officer and general counsel at the Arc New York; and Christopher Lyons, chief executive officer at AIM Services, Inc. For more information and to register for upcoming forums, click here.
If you have questions regarding this blog, please contact Paul Kietzman, of counsel, at pkietzman@barclaydamon.com.