C., In re

• Decision Date: 10 September 1970
• Citation: 314 N.Y.S.2d 255,63 Misc.2d 1019
• Parties: In the Matter of Efrain C. A Child under Sixteen Years of Age Alleged to be Neglected; Department of Social Services of New York City, Petitioner.
• Court: New York City Court

Page 255

314 N.Y.S.2d 255

63 Misc.2d 1019

In the Matter of Efrain C. A Child under Sixteen Years of Age Alleged to be Neglected Department of Social Services of New York City, Petitioner.

Family Court, City of New York, New York County.

Sept. 10, 1970.

[63 Misc.2d 1020] J. Lee Rankin, Corp. Counsel, Carl Zuckerman, Special Asst. Corp. Counsel by Herbert Molin, of counsel, for petitioner.

Henry I. Sperling, for respondent mother.

Charles Schinitsky, Legal Aid Society, by James Goldberg, Brooklyn, Law Guardian for Child.

OPINION

NANETTE DEMBITZ, Judge.

This civil proceeding against a mother for neglect of her child, presents two questions as to the construction and application of the child-adoption laws of New York State. The first provision in issue is the clause of Section 111 of the Domestic Relations Law, providing that a parent's consent to an adoption shall not be required if he has been judicially deprived of his child's custody by reason of neglect. Upon the precedents discussed below, the Court concludes that this statute authorizes the adoption of the child herein without the mother's consent. ¹ The second statutory problem turns on Section 116 of the Family Court Act, providing that 'when practicable' a child shall be committed to an agency under the control of persons of his religious faith and shall be adopted only by persons of that faith. The Court holds that this religious conformity provision, ² constitutionally and properly construed, permits the instant child's placement with an agency under the control of persons of a different religion as well as adoption by such persons; and it orders such a placement for adoptive purposes.

I. Dispensation with Parental Consent under Section 111 of

Domestic Relations Law

A. Function of Section in Child Welfare Structure

Section 111 of the Domestic Relations Law is clear and unequivocal in its grant of power to the courts to dispense with a parent's consent to his child's adoption when such parent has been deprived of custody because of neglect. See Matter of Antonopulos, 171 App.Div. 659, 157 N.Y.S. 587 (2nd Dept., 1916) upholding the grant of an order of adoption without the consent of, or notice to the mother, on the basis that the Children's Court (the predecessor of this Court) had theretofore transferred the child's custody from her to an agency because of her neglect. Accord: Matter of Connolly, 154 Misc. 672, 278 N.Y.S. 32 (Surr.Ct.Kings, 1935); see also People ex rel. Lentino v. Feser, 195 App.Div. 90, 96, 186 N.Y.S. 443, 447 (1st Dept., 1921); Matter of Anonymous, 10 Misc.2d 1076, 1079, 170 N.Y.S.2d 178, 182 (Sup.Ct. Nassau, 1958); Matter of Cohen, 155 Misc. 202, 206, 279 N.Y.S. 427, 432 (Surr.Ct.Kings, 1935).

No judicial doubt as to the power granted by section 111 has ever been expressed, so far as this Court can discover. Considering, however, 'the primacy of parental rights' (see People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 469, 113 N.E.2d 801, 804), this Court holds that the authority granted by the neglect clause of section 111 must be exercised with extreme care and only on the basis of clear and convincing evidence, after a full hearing, of compelling grounds for dispensation with parental consent (see below at 'B', as to these procedural requirements.)

Within this circumscribed orbit, the neglect clause of section 111, though currently in disuse, is a significant segment in the Legislature's child welfare structure. Its cautious application can contribute to the solution of the outstanding and indeed overwhelming child-care dilemma posed by the large number of children in prolonged and often unconstructive foster-care. ³ For example, a normally-endowed and attractive fifteen year old boy recently brought before this Court as an ungovernable runaway, truant, and thief, had resided in one inadequate fosterhome after another ever since the age of three weeks, because his mother had not wished to surrender him for adoption despite her neglect of him.

To untie such a child from his mother's destructive hold--from a mother who blocks his opportunities for true parental care--the Legislature has provided, in addition to Section 111, 'permanent neglect' proceedings under Article VI of the Family Court Act and transfer of guardianship proceedings under Section 384 of the Social Services Law. However, those proceedings require an elapse of at least a year and six months respectively after the child's removal from the mother before they can even be commenced, as well as time-consuming and costly procedures before their conclusion. During this interim the child's chances for adoption diminish substantially because of his possible development of emotional and behavioral disturbances while in foster-care, and because of the relatively scarce adoptive demand for older children. With those procedural routes the child in the case at bar would be three and a half or four years old before an adoptive home could even be sought for him. For, though the New York City Department of Social Services has had contact with the child and his mother since his birth, through administering to her thousands of dollars of Aid to Dependent Children funds (colloquially known as 'A.D.C.' or 'welfare'), it was only when the child was over two years old and through the fortuity of his hospitalization that a proceeding was commenced to remove him from the abject neglect in which he had been born and had spent his life. ⁴

A failure to make the prediction at an early age that a child will never receive stable and adequate care from his parents, and a failure to act upon this prediction by freeing him for adoption at an early age, mean the probable loss of his chance for adoption. By the neglect clause of section 111, which has its counterpart in the laws of other States, ⁵ the Legislature affords a means to avoid the obstacles to adoption arising from the delays and other hazards attendant on permanent neglect and transfer of guardianship proceedings--provided, of course, that the circumstances are so compelling that dispensation with parental consent under section 111 is justified.

B. Procedure for Application of Section 111

One reason for the negligible use of the Section 111 neglect provision is that no procedure is prescribed for its judicial consideration prior to the time of review of a petition for adoption. Unless theretofor considered, the section can be operative only for those fortunate children whose adoption is actively sought by a relative or acquaintance (and it has in fact been so used in this Court in several unreported cases). For the most ill-born child, like the boy in the case at bar, for whom an adoptive home must be found by a social agency if he is to secure this benefaction, section 111 cannot be given its appropriate application unless it is considered in the neglect proceedings in this Court; otherwise no adoptive home will ever be sought nor adoption petition filed. ⁶ Consideration of section 111 in the neglect proceedings after the parent has been deprived of custody, in those extreme cases in which there is reason to believe that its use may be justified, therefore appears to this Court to promote the purposes of the Domestic Relations Law and the Family Court Act, and indeed the objective of the very establishment of this Court with integrated jurisdiction over various family-related proceedings. Compare Matter of Ekstrom, 24 A.D.2d 276, 278, 265 N.Y.S.2d 727, 730 (3rd Dept., 1965), as to adaptation of procedures to basic purposes of section 111.

As to the method for consideration of section 111 in the course of neglect proceedings, the procedure in the case of adoption petitions must be noted. There the courts have dispensed with a hearing or even notice to the parent as to the application of the neglect clause, holding that the statutory condition--that the parent has been judicially deprived of custody by reason of neglect--is a matter of record that he cannot in any event controvert. ⁷ However, since this Court holds that there must be a showing of exigent circumstances for dispensing with parental consent in addition to the bare statutory condition, due process requires that the parent have his 'day in Court' ⁸ as to such circumstances, with prior notice of the Section 111 issue. Compare Matter of Toy, 19 Misc.2d 89, 91, 189 N.Y.S.2d 987, 989 (Surr.Ct.Wayne, 1959). In the instant case, after the Court's removal of the child from respondent-mother's custody due to her neglect and because of information elicited during the investigation preliminary to the dispositional hearing, ⁹ respondent-mother and her counsel were notified that the Section 111 issue would there be considered; and an extensive hearing was thereafter held.

C. Findings and Conclusion as to Section 111

This Court holds that the mother's consent to the child's adoption must be dispensed with pursuant to Section 111 of the Domestic Relations Law on the basis that it is entirely improbable that the respondent-mother will ever be able to provide stable and suitable care for the child either personally or through a relative. ¹⁰ The Court's findings of fact, supported by clear, convincing and for the most part indisputable evidence, are in summary as follows (a more detailed statement of the findings being on file in the Clerk's office):

The child's putative father was a narcotics addict at the time of the child's out-of-wedlock birth on December 1, 1967 and has been in Sing Sing Prison since early 1968. The respondent-mother, who states her age as 40, admittedly has been a narcotics addict for several years, and has failed to undertake the rehabilitative treatment to which she has been repeatedly referred. She lacks even the concept of the sustained effort necessary for such rehabilitation.

During most or all of the child's life, he has resided with or been cared for by various unrelated men or women including, according to the Department of Social...