C., In re

• Decision Date: 13 July 1973
• Citation: 74 Misc.2d 884,346 N.Y.S.2d 690
• Parties: In the Matter of Yolanda C. et al., children alleged to be neglected, * Norma C., Respondent.
• Court: New York City Court

Page 690

346 N.Y.S.2d 690

74 Misc.2d 884

In the Matter of Yolanda C. et al., children alleged to be

neglected, ^* Norma C., Respondent.

Family Court, City of New York, Kings County.

July 13, 1973.

Norman Redlich, Corp. Counsel, New York City by William Anshen, Brooklyn, and Marvin Epstein, New York City, for City of New York.

Stephen Gershowitz, Law Guardian.

DECISION

RICHARD M. PALMER, Judge:

The court has before it applications on Misc. Form 3 for extension of placement of the two children, Yolanda born on March 9, 1967 and Preston born on March 21, 1970. The applications have been submitted by Special Services for Children, Division of Inter-Agency Relationships, of the Department of Social Services of the City of New York.

The applications state that the children were placed in the custody of the agency on September 1, 1971 and the placements expire on May 17, 1973. (The endorsements show only a remand status to Nov. 17, 1971).

Instead of giving any name and address in the blanks on Misc. Form 3 for 'Parents or Guardians' and their current address, the applications recite 'Surrendered 4--19--73'. There is no carbon copy of the notice to the parent of the date of the hearing on the application as is usually attached to such applications.

The text of the applications recites that the mother surrendered the children on April 19, 1973 and that each child was put on adoptive referral. They go on to state before requesting extension of placement for 12 additional months:

'Since the foster parents do not want to adopt with subsidy, Sheltering Arms Children's Service is presently looking for an adoptive home for Yolanda (Preston)'.

The authority of the court to place neglected children out of the custody of their parents and to extend placement is found in section 1055(b) of the Family Court Act.

The purpose of child neglect proceedings is to protect children. On a finding of neglect the court has the power to place a neglectful parent under court supervision or on probation and the power to make an order of protection. The court also has the more drastic power to removing the child and placing it in the custody of a relative or other suitable person or of a commissioner of social services or some other authorized agency for up to 18 months with the power to extend for additional periods of one year each. However, the general rule that a parent has a superior right to custody over all other persons with the burden of proof being on the one who would divest the parent of custody applies in neglect proceedings as well as in custody proceedings. See Matter of Darlene T., 28 N.Y.2d 391 at 394, 322 N.Y.S.2d 231 at 232, 271 N.E.2d 215 at 216 (1971); cf. People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 113 N.E.2d 801 (1953).

Placement of a child out of the custody of a neglectful parent is only temporary. It has been held that the court may not move to free a child for adoption by others and permanently cut off the rights of a parent in a neglect proceeding. See Matter of Arroyo, 37 A.D.2d 531, 321 N.Y.S.2d 961 (1st Dept.1971), app. withd., 29 N.Y.2d 747, 326 N.Y.S.2d 399, 276 N.E.2d 234 which apparently disapproved of the position taken by the court below in Matter of Efrain C., 63 Misc.2d 1019, 314 N.Y.S.2d 255 (Fam. Ct. N.Y.Co.1970).

The Family Court may not extend placement of a neglected child unless there is a showing of present inability of the parent to care for the child and that continued placement is in its best interests. See Matter of Kenneth G., 39 A.D.2d 709, 331 N.Y.S.2d 788 (2nd Dept.1972) and Matter of Cynthia B., 39 A.D.2d 941, 333 N.Y.S.2d 994 (2nd Dept.1972).

When the parent has surrendered custody pursuant to section 384 of the Social Services Law, the commissioner of social services acquires custody and guardianship and the fitness of the parent to have custody of the child becomes irrelevant. There is thus no longer any basis for neglect proceedings as their purpose is to protect a child from a parent.

In this connection it is noted that it has been held that the Family Court...