People ex rel. Williams v. Windham Child Care

Kupferman, J. (concurring).

While I concur in the determination, I do not believe we should gloss over the primary complaint of the petitioner that because she was married but separated from her husband, she was ineligible to adopt until she got her divorce. Subdivision 3 of section 383 of the Social Services Law, in providing for the possibility of adoption for foster parents of over two years’ duration, refers to "any adult unmarried person”. The purpose of this was to prevent discrimination against single people, not to require that they be divorced rather than separated. In fact, the distinction made may very well be a denial of equal protection of the law. (See Stanley v Illinois, 405 US 645; but see, Mathews v Lucas, 427 US 495; Labine v Vincent, 401 US 532; Matter of Malpica-Orsini, 36 NY2d 568.)

It must again be said that it is the best interest of the child that is involved and not the supremacy of rules that must be considered. (See concurring opn in Matter of Flores, 54 AD2d 104.)

Stevens, P. J., Markewich, Birns and Capozzoli, JJ., concur in Per Curiam opinion; Kupferman, J., concurs in an opinion.

Appeals from two orders of the Supreme Court, Bronx County entered on July 2, 1976 and September 20, 1976, respectively unanimously dismissed as nonappealable, without costs and without disbursements.