Anonymous, Matter of

• Decision Date: 10 June 1976
• Citation: 40 N.Y.2d 96,351 N.E.2d 707,386 N.Y.S.2d 59
• Parties: , 351 N.E.2d 707 In the Matter of ANONYMOUS. ST. CHRISTOPHER'S HOME et al., Respondents, v. Judith LONGOBARDI, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 59

386 N.Y.S.2d 59

40 N.Y.2d 96, 351 N.E.2d 707

In the Matter of ANONYMOUS.

ST. CHRISTOPHER'S HOME et al., Respondents, v. Judith LONGOBARDI, Appellant.

Court of Appeals of New York.

June 10, 1976.

Gerald Goldfeder, Bayside, for appellant.

Joseph R. Carrieri, Mineola, for St. Christopher's Home, respondent.

John C. Schaeffer, Jr., and Delores Seligman, Garden City, for Roberta H., respondent.

Gerald Goldfeder, Bayside, for Organization of Foster Families For Equality and Reform, Inc., and others, amici curiae.

COOKE, Judge.

There are currently three routes by which an individual or agency can terminate a parent's right to a child, thus placing that child in a position whereby he or she will be available for adoption. One such route, the most direct, is via a proceeding pursuant to article VII of the Domestic Relations Law. Such proceeding is brought by the individual who wishes to adopt. It accomplishes both the termination of parental rights and the adoption.

The second route is by way of a guardianship proceeding under the Social Services Law. Section 384 of the Social Services Law permits an authorized agency to petition for the guardianship and custody of a child under circumstances which include abandonment of the child by the parent for a period of at least six months. When guardianship is granted, the agency, not the parent, is the proper party to consent to an eventual adoption of the child.

Finally, there is the permanent neglect proceeding of article 6 of the Family Court Act. While the Social Services Law is applicable to situations where a child has been 'abandoned or deserted * * * left * * * without being visited or having payments made toward his support, for a period of at least six months, by his parent, guardian or other lawful custodian without good reason' (Social Services Law, § 371, subd. 2, par. (c)), the permanent neglect proceeding was designed to be instituted in situations where parental conduct falls short of abandonment (see Gordon, Terminal Placements of Children and Permanent Termination of Parental Rights: The New York Permanent Neglect Statute, 46 St. John's L.Rev. 215). A permanently neglected child is, by statute, defined as 'a person under eighteen years of age who is in the care of an authorized agency, either in an institution or in a foster home, and whose parent or custodian has failed for a period of more than one year * * * substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the moral and temporal welfare of the child' (Family Ct. Act, § 611).

Entering the courts by way of the second route, St. Christopher's Home instituted a guardianship proceeding pursuant to subdivision 6 of section 384 of the Social Services Law, alleging the abandonment of Richard H. by his natural mother. Richard, born out of wedlock on April 30, 1969, was left with an acquaintance of his mother shortly after birth and was, within a few weeks, turned over to the Bureau of Child Welfare of the Department of Social Services for the purposes of foster care. While testimony as to those circumstances differed, there is no dispute that Richard, at the age of five weeks, was received into the home of Judith Longobardi, appellant, where he has remained for what is now seven years. Approximately three and a half years after his arrival in the Longobardi home, Richard's foster care status was reviewed by the Family Court pursuant to section 392 of the Social Services Law. The results of that review was a direction by the Family Court Judge to the agency to initiate proceedings to terminate the natural mother's rights, thus freeing Richard for adoption.

On December 12, 1973, St. Christopher's Home petitioned for guardianship, alleging the requisite six-month abandonment by Richard's mother. At trial, the agency gave testimony to the effect that it was unable to locate Richard's mother, correspondence addressed to her having been returned by the post office marked 'addressee unknown'. There was, however, proof that the agency had the addresses of Richard's maternal grandfather and aunt but made to attempt to have either assist in efforts to reach Richard's mother. Having failed to employ these relatives in its search for Richard's mother, who as it now appears had moved to Florida within a year of Richard's birth, the Surrogate found the agency had failed to use diligent efforts to encourage and strengthen the parental relationship as required by sections 611 and 614 of the Family Court Act and, thus, failed to sustain its burden of proving abandonment. The Appellate Division, applying the same standard, affirmed.

The question raised here is whether, in a proceeding predicated upon abandonment under section 384 of the Social Services Law, it must be shown that the agency used diligent efforts to encourage and strengthen hthe parental relationship, a requirement written into sections 611 and 614 of the Family Court Act but not appearing in the Social Services Law. A review of the origins of the two types of proceedings, as well as an analysis of the statutory provisions of each, compel an answer in the negative.

At the outset and prior to historical analysis, it should be noted that while a question of first impression in this court, this is not the first instance in which the relationship between these provisions of the Social Services Law and the Family Court Act has been considered. In Matter of Ellick, 69 Misc.2d 175, 328 N.Y.S.2d 587, the Family Court addressed itself to the procedural due process question which arose in the application of section 384 of the Social Services Law and held that a proceeding brought under said section must follow the procedural provisions set forth in article 6 of the Family Court Act. This question does not arise and will not be considered on this appeal. In Matter of Jennifer 'S', 69 Misc.2d 942, 949, 330 N.Y.S.2d 872, 879, however, the Surrogate raised a question similar to the one herein and contemplated, without deciding, that due process 'may require all courts to construe the language of both statutes together, so that the infant's best interests are truly served.' In the subsequent opinion of the same title (Matter of Jennifer 'S', 69 Misc.2d 951, 954--955, 333 N.Y.S.2d 79, 84), the Surrogate responded to the question raised earlier by stating that a reading of the 'diligent efforts' requirement of the Family Court Act into the definition of an abandoned child in the Social Services Law 'is necessary to afford parents substantive due process'. However, once having articulated the incorporation, the Surrogate then eliminated the requirement from both sections by holding that the failure of the agency to comply with the requirement could not preclude a finding of abandonment under section 384 or of permanent neglect under article 6. Certainly, the need for reconciliation of these statutory provisions continued (see Ellison & Occhialino, Family Law, 24 Syracuse L.Rev. 513, 541).

The origin of the guardianship and custody proceeding can be traced to chapter 438 of the Laws of 1884. Even then parental rights were subject to termination, guardianship and custody to be assumed by an agency upon a finding of abandonment. Such a finding required a showing of acts so unequivocal as to bear one interpretation and one only, that the parents manifested an intention to abandon their child forever (Matter of Bistany, 239 N.Y. 19, 24, 145 N.E. 70, 71) or, as it was phrased in Matter of Maxwell, 4 N.Y.2d 429, 433, 176 N.Y.S.2d 281, 283, 151 N.E.2d 848, 850, 'a settled purpose to be rid of all parental obligations and to forego all parental rights', no lesser showing being sufficient. Such a heavy burden was deemed appropriate 'since the right of a parent, under natural law, to establish a home and bring up children is a fundamental one and beyond the reach of any court' (People ex rel. Portnoy v. Strasser, 303 N.Y. 539, 542, 104 N.E.2d 895, 896; Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042).

Adoption, unknown to the common law, exists solely by statute (Betz v. Horr, 276 N.Y. 83,...