Bennett v. Jeffreys

• Decision Date: 21 September 1976
• Citation: 40 N.Y.2d 543,356 N.E.2d 277,387 N.Y.S.2d 821
• Parties: , 356 N.E.2d 277 In the Matter of Joanne BENNETT, Respondent, v. Marie JEFFREYS, also known as Marie Green, also known as Marie Morrow, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 821

387 N.Y.S.2d 821

40 N.Y.2d 543, 356 N.E.2d 277

In the Matter of Joanne BENNETT, Respondent, v. Marie JEFFREYS, also known as Marie Green, also known as Marie Morrow, Appellant.

Court of Appeals of New York.

Sept. 21, 1976.

Jerome J. Goldstein, Mount Vernon, for appellant.

John T. Hand and Lawrence S. Kahn, Mount Vernon, for respondent.

Herbert J. Malach, New Rochelle, Law Guardian, Marcia Robinson Lowry and William J. Toppeta, New York City, for infant.

BREITEL, Chief Judge.

Petitioner is the natural mother of Gina Marie Bennett, now an eight-year-old girl. The mother in this proceeding seeks custody of her daughter from respondent, to whom the child had been entrusted since just after birth. Family Court ruled that, although the mother had not surrendered or abandoned the child and was not unfit, the child should remain with the present custodian, a former schoolmate of the child's grandmother. The Appellate Division reversed, one Justice dissenting, and awarded custody to the mother. Respondent custodian appeals. ¹

The issue is whether the natural mother, who has not surrendered, abandoned, or persistently neglected her child, may, nevertheless, be deprived of the custody of her child because of a prolonged separation from the child for most of its life.

There should be a reversal and a new hearing before the Family Court. The State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances. If any of such extraordinary circumstances are present, the disposition of custody is influenced or controlled by what is in the best interest of the child. In the instant case extraordinary circumstances, namely, the prolonged separation of mother and child for most of the child's life, require inquiry into the best interest of the child. Neither court below examined sufficiently into the qualifications and backgrounds of the mother and the custodian to determine the best interest of the child. Consequently a new hearing should be held.

Some eight years ago, the mother, then 15 years old, unwed, and living with her parents, gave birth to the child. Under pressure from her mother, she reluctantly acquiesced in the transfer of the newborn infant to an older woman, Mrs. Jeffreys, a former classmate of the child's grandmother. The quality and quantity of the mother's later contacts with the child were disputed. The Family Court found, however, that there was no statutory surrender or abandonment. Pointedly, the Family Court found that the mother was not unfit. The Appellate Division agreed with this finding.

There was evidence that Mrs. Jeffreys intended to adopt the child at an early date. She testified, however, that she could not afford to do so and admitted that she never took formal steps to adopt.

The natural mother is now 23 and will soon graduate from college. She still lives with her family, in a private home with quarters available for herself and the child. The attitude of the mother's parents, however, is changed and they are now anxious that their daughter keep her child.

Mrs. Jeffreys, on the other hand, is now separated from her husband, is employed as a domestic and, on occasion, has kept the child in a motel. It is significant that Mrs. Jeffreys once said that she was willing to surrender the child to the parent upon demand when the child reached the age of 12 or 13 years.

At the outset, it is emphasized that not involved is an attempted revocation of a voluntary surrender to an agency or private individual for adoption (see Social Services Law, § 383, subd. 5; People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., 28 N.Y.2d 185, 321 N.Y.S.2d 65, 269 N.E.2d 787, cert. den. 404 U.S. 805, 92 S.Ct. 54, 30 L.Ed.2d 38; Domestic Relations Law, § 115--b, subd. 3, par. (d), cl. (v)). Nor is abandonment involved (see, e.g., Matter of Malik M., 40 N.Y.2d 840, 387 N.Y.S.2d 835, 356 N.E.2d 288). Nor does the proceeding involve an attempted permanent termination of custody (Family Ct. Act, § 614, subd. 1; § 631; Matter of Anonymous (St. Christopher's Home), 40 N.Y.2d 96, 386 N.Y.S.2d 59, 351 N.E.2d 707; Matter of Orlando F., 40 N.Y.2d 103, 386 N.Y.S.2d 64, 351 N.E.2d 711; Matter of Ray A.M., 37 N.Y.2d 619, 376 N.Y.S.2d 431, 339 N.E.2d 135). Nor is there involved the temporary placement into foster care by an authorized agency which is obliged to conduct an investigation and to determine the qualification of foster parents before placement of a child in need of such care (see Social Services Law, § 383, subds. 1--3; Matter of Jewish Child Care Assn. of N.Y. (Sanders), 5 N.Y.2d 222, 224--225, 183 N.Y.S.2d 65, 66, 156 N.E.2d 700, 701; State of New York ex rel. Wallace v. Lhotan, 51 A.D.2d 252, 380 N.Y.S.2d 250, app.dsmd. 39 N.Y.2d 743, 384 N.Y.S.2d 1030, 349 N.E.2d 893).

Instead, this proceeding was brought by an unwed mother to obtain custody of her daughter from a custodian to whom the child had been voluntarily, although not formally, entrusted by the mother's parents when the mother was only 15 years old. Thus, as an unsupervised private placement, no statute is directly applicable, and the analysis must proceed from common-law principles.

Absent extraordinary circumstances, narrowly categorized, it is not within the power of a court, or, by delegation of the Legislature or court, a social agency, to make significant decisions concerning the custody of children, merely because it could make a better decision or disposition. The State is Parens patriae and always has been, but it has not displaced the parent in right or responsibility. Indeed, the courts and the law would, under existing constitutional principles, be powerless to supplant parents except for grievous cause or necessity (see Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551). Examples of cause of necessity permitting displacement of or intrusion on parental control would be fault or omission by the parent seriously affecting the welfare of a child, the preservation of the child's freedom from serious physical harm, illness or death, or the child's right to an education, and the like (cf. e.g., Wisconsin v. Yoder, 406 U.S. 205, 213--215, 92 S.Ct. 1526, 32 L.Ed.2d 15; Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070).

The parent has a 'right' to rear its child, and the child has a 'right' to be reared by its parent. However, there are exceptions created by extraordinary circumstances, illustratively, surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time. It is these exceptions which have engendered confusion, sometimes in thought but most often only in language.

The day is long past in this State, if it had ever been, when the right of a parent to the custody of his or her child, where the extraordinary circumstances are present, would be enforced inexorably, contrary to the best interest of the child, on the theory solely of an absolute legal right. Instead, in the extraordinary circumstance, when there is a conflict, the best interest of the child has always been regarded as superior to the right of parental custody. Indeed, analysis of the cases reveals a shifting of emphasis rather than a remaking of substance. This shifting reflects more the modern principle that a child is a person, and not a subperson over whom the parent has an absolute possessory interest. A child has rights too, some of which are of a constitutional magnitude (cf. Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725; Matter of Winship, 397 U.S. 358, 365, 90 S.Ct. 1068, 25 L.Ed.2d 368; Tinker v. Des Moines School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731; Matter of Gault, 387 U.S. 1, 47, 87 S.Ct. 1428, 18 L.Ed.2d 527).

Earlier cases, such as People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 468--469, 113 N.E.2d 801, 803--804 and People ex rel. Portnoy v. Strasser 303 N.Y. 539, 542, 104 N.E.2d 895, 896, emphasized the right of the parent, superior to all others, to the care and custody of the child. This right could be dissolved only by abandonment, surrender, or unfitness. Of course, even in these earlier cases, it was recognized that parental custody is lost or denied not as a moral sanction for parental failure, but because 'the child's welfare compels awarding its custody to the nonparent' (People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 469, 113 N.E.2d 801, 804, Supra).

Although always recognizing the parent's custodial rights, the concern in the later cases, given the extraordinary circumstances, was consciously with the best interest of the child. Thus, in People ex rel. Anonymous v. Anonymous 10 N.Y.2d 332, 335, 222 N.Y.S.2d 945, 946, 179 N.E.2d 200, 201, in acknowledging the "primacy of parental rights", the court pointed out that 'it has never been held or suggested that the child's welfare may ever be forgotten or disregarded' 10 N.Y.2d at p. 335, 222 N.Y.S.2d at p. 946, 179 N.E.2d at p. 201. And in People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., 28 N.Y.2d 185, 321 N.Y.S.2d 65, 269 N.E.2d 787, Supra, the ultimate consideration, again given extraordinary circumstances, was the best interest of the child, 28 N.Y.2d at pp. 192, 193, n. 10, 321 N.Y.S.2d at p. 71, 269 N.E.2d at p. 792. Thus, the court held 'that the record before us supports the finding by the court's below that the surrender was improvident and that the child's best interests--moral and temporal--will be best served by its return to the natural mother', p. 194, 321 N.Y.S.2d p. 72, 269 N.E.2d p. 792.

Finally, in Matter of Spence-Chapin Adoption Serv. v. Polk, 29 N.Y.2d 196, 204, 324 N.Y.S.2d 937, 944, 274 N.E.2d 431, 436, the court rejected any notion of absolute parental rights. The court restated the abiding principle that the child's rights and interests are 'paramount' and are not subordinated to the right of...