In re Walker , 448 N.Y.S.2d 474 ( 1982 )

Kupferman, J.,

concurs in part and dissents in part in a memorandum as follows: We have a situation where former foster parents who desired to adopt were rejected by the Commissioner of Social Services on the ground of age. Although we may disagree, we are bound by the determination of the Court of Appeals in Matter of O’Rourke v Kirby (54 NY2d 8), which finds that such a denial is not arbitrary or capricious. Accordingly, we are concerned only by what seems to be a failure of communication with regard to the interim proceedings here, prior to the time that a court in Oregon approved the adoption of the child by a family there. As this court’s memorandum points out, the person in charge for Spence-Chapin, the adoption agency, took it upon herself to forward consents in the face of what should have appeared to be a stay by this court of such action, and counsel for the agency in what seems to be a confusing interpretation of the action of this court, did not fully impress upon the agency the need for compliance. Therefore, while I concur with the conclusion that the matter should be returned to the status quo ante until it has received full appellate consideration, and that the Oregon court should be so notified, I cannot agree that counsel for the adoption agency should be considered delinquent.