Deborah S., Matter of

• Decision Date: 08 June 1979
• Citation: 100 Misc.2d 485,419 N.Y.S.2d 803
• Parties: In the Matter of DEBORAH S., * pursuant to Section 392 of the Social Services Law. Family Court, City of New York, City-Wide Foster-Care Review Part
• Court: New York City Court

Page 803

419 N.Y.S.2d 803

100 Misc.2d 485

In the Matter of DEBORAH S., ^* pursuant to Section 392 of the Social Services Law Family Court, City of New York, City-Wide Foster-Care Review Part.

June 8, 1979.

Allen G. Schwartz, Corp. Counsel, New York City (Helene Holmes, New York City, of counsel), for petitioner.

Gary R. Connor, Legal Aid Society, New York City, for respondent-mother.

Barry Mallin, New York City, for intervenor, former foster-parents.

Thomas P. Burke, Burke, Burke & Burke, New York City, law guardian (by assignment), for child.

Gerald E. Bodell, New York City (Joseph V. Moliterno, New York City, of counsel), for intervenor, Catholic Home Bureau, former foster-care agency.

NANETTE DEMBITZ, Judge.

This foster-care proceeding presents the question of how best to achieve a stable familial relationship for a seven-year old girl who spent her first first five years (except for a few days) in the home of the intervenors, her former foster-parents, Mr. and Mrs. Ruiz; was then returned to respondent, her biological mother, for 14 months; and then was placed by the Commissioner of Social Services because of her mother's neglect in the home of different foster parents where she has resided for the past year. Litigation over the custody of the child, Deborah, which began in 1974, is now before this Court as the result of the Appellate Division's reversal in June 1978 of an order made by another judge of this Court in December 1976 directing Deborah's return to her mother from her former foster-parents, the Ruiz'. ¹

The Catholic Home Bureau, the private agency which supervised Deborah's foster-care by the Ruiz' as well as the natural mother's care of the child after her return from them and attempts to rehabilitate the mother during both those periods, urges this Court to direct resumed foster-care by the Ruiz'. On the other hand, the City's Commissioner of Social Services, who contracts with the private agencies and distributes funds to them for foster-care, advocates Deborah's continuance in her present foster-home in the hope of another eventual return to the mother; the natural mother joins in this position. Only the attorney assigned as Law Guardian for the child, who has conscientiously represented her since 1976, has entirely changed his position from that he then took in favor of Deborah's return to the biological mother. Based on continued demonstration of the mother's fundamental incapacities, the Law Guardian now argues that return to the Ruiz' represents the only hope of Deborah's securing the stable, nurturing care which she urgently needs. (See Matter of Jonathan D., 62 A.D.2d 947, 948, 403 N.Y.S.2d 750, 1st Dept., as to required "consideration of Law Guardian's report"). After extensive testimony on this agonizing issue, ² the Court concludes on the basis of the findings hereinafter stated, supplemented by more detailed findings filed herewith that clear and convincing evidence supports the position urged by the Law Guardian (toward which the Appellate Division indicated a tentative inclination in its decision of June 27, 1978, remanding the proceeding for the hearing that has now been held).

I.

The Commissioner of Social Services raises the preliminary issue that this Court should not have obeyed the Appellate Division's order remanding this foster-care review proceeding for a new hearing. The Commissioner's argument is that Deborah is now in foster-care by virtue of a Family Court order issued under a petition filed in March 1978 against her mother for parental neglect, rather than in foster-care under the provision of section 392 of the Social Services Law, which section was the basis for the proceeding that the Appellate Division reviewed and remanded.

The Commissioner's argument must be rejected because it contradicts the clearly expressed intent of the Appellate Division's remand. The appellate court explicitly addressed the factual and procedural point raised by the Commissioner. Observing that Deborah was then in a new foster-home as a result of the neglect proceeding, the Appellate Division criticized "The disjunctive proceedings that have afforded this child . . . little opportunity to live in a stable . . . environment." Further, the Appellate Division made it crystal clear throughout its opinion and orders that the central issue in the remanded hearing was to be whether or not Deborah should be returned to the foster-care of Mr. and Mrs. Ruiz, the then-appellants. The appellate opinion reflects a concern with human relationships rather than procedural variations, effectuating the principle of Matter of Sanjivini K., 40 N.Y.2d 1025, 1027, 391 N.Y.S.2d 535, 537, 359 N.E.2d 1330, 1332, that the Appellate Division has discretion, regardless of the various types of past or pending proceedings, to exercise "ingenuity and energy . . . to make appropriate provision for her (the child's) welfare."

There is no inconsistency between the order in the neglect proceeding for foster-care in general, and consideration of whether Deborah should be returned to the foster-care of Mr. and Mrs. Ruiz. The later issue that is, the particular foster-care that Deborah should be afforded was not considered in the neglect proceeding nor could it be under customary Family Court procedure. The Appellate Division order harmonizes the Family Court Act's neglect provisions with the rights accorded under section 392 of the Social Services Law to foster-parents of over 18 months' duration to assert their view of the foster child's best interests. The Family Court's "continuing jurisdiction under the provisions of subdivision 10 of section 392 of the Social Services Law" to review foster-care arrangements, is a significant basis for action for the welfare of a child, regardless of what other proceedings are brought. See Matter of Anonymous, 48 A.D.2d 696, 697, 368 N.Y.S.2d 372, 373, reversed on other grounds, 40 N.Y.2d 96, 386 N.Y.S.2d 59, 351 N.E.2d 707. Nor is it unusual for the Family Court's jurisdiction over a proceeding to continue even if an Inconsistent order has been entered in a later-initiated proceeding a more extreme situation than that at bar. ³

Finally, the Commissioner's contention that he alone has the authority to determine with what foster-parents a child should reside, ignores the Court's authority regarding long-term foster-parents under section 392 of the Social Services Law. As stated in People ex rel. Ninesling v. Department of Social Services, 46 N.Y.2d 382, 390, 413 N.Y.S.2d 626, 631, 386 N.E.2d 235, 240, in connection with a related provision of the Social Services Law: "(A)t the expiration of an extended period of foster care the Department of Social Services . . . plan . . . loses something of its prima facie validity as an expression of the best interests of the child."

In sum, the Appellate Division's intention for this Court to continue the foster-care review proceedings which were before it on appeal and to hold hearings on the issue of whether seven-year old Deborah should be returned to the foster-care of the then-appellants, Mr. and Mrs. Ruiz, is clear not only from its language, but also from the circumstance that such intention is supported by statute and legal principle. The order herein entered is therefore within this Court's jurisdiction.

II.

The Appellate Division herein reiterated the principle it stated in Matter of Jonathan D., 62 A.D.2d 947, 948, 403 N.Y.S.2d 750, 751, that an inquiry pursuant to S.S.L. section 392 into the best interests of a child who " has been in the custody of foster parents for a prolonged period of time" requires a careful examination "into the qualifications and background of the mother." Unfortunately, as the findings herein show, the evidence establishes clearly and convincingly that the mother will not, regardless of the services offered her, acquire the capacity to give Deborah safe and adequate care. And the Court must not blind itself to the evidence, out of sympathy for the mother's own deprivations, and thus sanction generation-to-generation victimization of children.

A.

Because of her intellectual or emotional limitations and her own needs, respondent mother has from at least the time of Deborah's birth in 1972 to the present-day chronically cohabited with violent men who physically abuse her and any of her children residing with her, appropriate her public assistance funds for themselves, and command her household and her treatment of her children without regard for their welfare. Despite her acknowledgment through the years and in her testimony that these men were dangerous to her children; despite repeated attempts by social agencies to help her separate from them; and despite her repeated statements of intention to do so, she is chronically unable to stick to that intention.

Illustrative is an incident involving one Olinsky, who has a continuing current relationship and lived with the mother, both before and during Deborah's 14 months' return to her in 1976-8. While Deborah and her then 10-year old sister watched, crying and screaming, Olinsky knocked the mother down, kicked her, broke her jaw, and punched her front teeth out; he pulled the girls' hair and hit them, bruising Deborah's cheek and ear. Complaining to the Catholic Home Bureau that Olinsky was becoming more and more brutal, the mother asked for aid in relocating herself with her children at an address to be concealed from him a request she had made and withdrawn after previous incidents. However, she with Deborah and her other children left a shelter for battered women after a short period, before a new apartment could be found for them, and resumed living with Olinsky. Olinsky then telephoned the CHB social case-worker to tell her to keep away from the home; he also refused to let the mother have a home-maker supplied by the Department of Social Services to help her. Despite the mother's knowledge that her relationship with Olinsky is one...