Delores B., Matter of

• Decision Date: 20 October 1988
• Citation: 141 A.D.2d 100,533 N.Y.S.2d 706
• Parties: In the Matter of DELORES B. CARDINAL McCLOSKEY CHILDREN'S AND FAMILY SERVICES, Petitioner-Appellant, v. WILLIE B., Respondent-Respondent. In the Matter of WILLIE JOHN B. JR. CARDINAL McCLOSKEY CHILDREN'S AND FAMILY SERVICES, Petitioner-Respondent, v. WILLIE B., Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 706

533 N.Y.S.2d 706

141 A.D.2d 100

In the Matter of DELORES B.

CARDINAL McCLOSKEY CHILDREN'S AND FAMILY SERVICES, Petitioner-Appellant, v. WILLIE B., Respondent-Respondent.

In the Matter of WILLIE JOHN B. JR.

CARDINAL McCLOSKEY CHILDREN'S AND FAMILY SERVICES, Petitioner-Respondent, v. WILLIE B., Respondent-Appellant.

Supreme Court, Appellate Division First Department.

Oct. 20, 1988.

David H. Berman, of counsel (Gerald E. Bodell, Larchmont, with him on the brief; Bodell and Gross, attorneys), for Cardinal McCloskey Children's and Family Services.

Ruth N. Cassell and David C. Leven, New York City, of counsel (Prisoners' Legal Services, attorneys), for Willie B.

Before MURPHY, P.J., and KUPFERMAN, CARRO, ELLERIN and SMITH, JJ.

SMITH, Justice.

The issue in this case is whether a father who is serving two concurrent sentences of twenty-five years to life for murder should be found to have permanently neglected his two children so that his parental rights may be terminated and the children freed for adoption. Social Services Law § 384-b 4(d). We conclude that in this case the facts support such a finding and his parental rights should be terminated.

On or about June 14, 1984, petitioner instituted two separate proceedings in Family Court to terminate the parental rights of respondent father on the ground that he had permanently neglected the children within the meaning of Social Services Law § 384-b. Following a joint fact-finding hearing, the Family Court reluctantly dismissed the petition concerning the infant Delores B. The Family Court determined that it was constrained by recent amendments to the Social Services Law, Domestic Relations Law and Corrections Law (L. 1983, ch. 911, McKinney's Session Laws, 1983 Regular Session, p. 1767-1770, effective January 1, 1984), regarding termination of parental rights of an incarcerated parent, to hold that respondent, a prisoner, had done all he could to plan for the child and had not permanently neglected her (In the Matter of Delores B., an infant, 130 Misc.2d 484, 496 N.Y.S.2d 930 (Fam.Ct., N.Y.Co., 1985). However, the Family Court found the infant Willie B. to be a permanently neglected child, determining that even prior to his incarceration respondent had failed to plan for Willie's future.

The infant Willie B., born on August 10, 1975, has been in the petitioner agency's care since his placement on July 1, 1977. Willie's foster parents wish to adopt him. He has been in four other foster homes and has behavioral problems. The infant Delores B., born on August 16, 1979, several months after her father's incarceration, has been in the care of petitioner agency since her placement on July 31, 1980. On May 16, 1981, the natural mother, Delores B., executed a surrender of Willie for purposes of adoption. Her parental rights to custody and guardianship of the child Delores were terminated by court order on September 12, 1983. She is not a party to these proceedings.

Respondent father, Willie B., is currently serving two concurrent terms of imprisonment of from twenty-five years to life for murder. The convictions result from an incident in which defendant, angered that his mailbox had been broken into and his welfare check stolen, set fire to his mattress and when he could not put out the blaze, left the building without giving an alarm and caused the death of a seventy-four year old woman and her two year old granddaughter. He has been incarcerated since April 10, 1979. The Appellate Division, First Department affirmed his judgment of conviction (People v. Bethea, 94 A.D.2d 982, 463 N.Y.S.2d 665 (2nd Dept., 1983)) and the Court of Appeals denied leave to appeal (People v. Bethea, 60 N.Y.2d 589, 467 N.Y.S.2d 1035, 454 N.E.2d 13 (1983)). The United States District Court, Eastern District denied petitioner's writ of habeas corpus and the Court of Appeals, Second Circuit affirmed the decision (Scully v. Bethea, 834 F.2d 257 (1987)).

On appeal of the order terminating his parental rights with respect to Willie, respondent argues that: (1) petitioner failed to establish that it had fulfilled its statutory obligation to exercise diligent efforts to strengthen the parental relationship before seeking to terminate respondent's parental rights; (2) the Family Court incorrectly based its determination on a span of time prior to respondent's incarceration; and (3) the Family Court erred in determining that respondent had failed to plan for Willie's future. Petitioner agency contends that the Family Court properly terminated the respondent's parental rights with respect to Willie since, notwithstanding the petitioner's diligent efforts, respondent did not consistently visit Willie or plan for his future. It argues further that the Family Court erred in "excusing" respondent's failure to plan for Delores because of his incarceration. Finally, it contends that the best interests of both children lie in terminating respondent's parental rights.

Prior to the enactment of Chapter 911 of the Laws of 1983 respecting the "Termination of Parental Rights of Incarcerated Parent," an incarcerated father had no authority to consent to or refuse to consent to the adoption of a child. Thus Domestic Relations Law § 111(2)(d) provided that the consent of a parent to adoption was not required of a person "who has been deprived of civil rights pursuant to the civil rights law and whose civil rights have not been restored." Civil Rights Law § 79 states that a person who is serving an indeterminate term of imprisonment with a maximum of life "forfeits all the public offices," and also "suspends, during the term of the sentence, all the civil rights, ... held by, the person sentenced." Civil Rights Law § 79-a states that a person sentenced to prison for life is "civilly dead."

Because Chapter 911 of the Laws of 1983 gave an incarcerated parent the authority to consent or withhold consent to adoption and respondent has declined to consent to freeing his children for adoption, his parental rights may be terminated only by clear and convincing proof that he has permanently neglected his children. Social Services Law § 384-b(3)(g) and (4)(d).

Social Services Law § 384-b(7)(a) defines a "permanently neglected child" as:

a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of more than one year following the date such child came into the care of an authorized agency 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 best interests of the child.

Applying the definition to the facts of this case, it is clear (1) that the petitioner agency has met its burden of exercising diligent efforts to strengthen the relationship of parent and child, (2) that the respondent has failed to adequately plan for his children, and (3) that the legislative intent that children grow up in a normal family setting is served by terminating the parental rights of the respondent.

First, the threshold issue in any neglect proceeding is "whether the agency has exercised diligent efforts to encourage and strengthen the parental relationship." Matter of Sheila G., 61 N.Y.2d 368, 381, 474 N.Y.S.2d 421, 462 N.E.2d 1139 (1984). The Family Court correctly determined that the petitioning agency was diligent in its efforts to aid the family. Evidence adduced at the fact-finding hearing reveals that petitioner, through its case workers, arranged meetings with the parents, set up scheduled visits with the children and endeavored to contact relatives who might care for the children.

Specifically, Philip White, a supervisor, testified to contact between the natural parents and the agency between April 1978 and January 1979. The first contact between petitioner and respondent was on April 11, 1978. On May 5, 1978, a visit was arranged between the natural parents and the child Willie. Respondent attended. The agency provided the parents with a visitation schedule during a visitation meeting held on June 7, 1978. Of the approximately eight scheduled visits between June 23, 1978 and September 14, 1978, respondent attended only two. On one of those occasions respondent arrived too late to see Willie. Respondent called on two occasions to cancel visits because of problems resulting from Delores B.'s (natural mother's) pregnancy and delivery. Letters reminding the parents of the meetings were addressed to the mother. Respondent, however, had access to those letters.

The case worker assigned to the case of Willie, Arlene Ferguson Henderson, testified that she arranged a meeting with the parents and Willie in February, 1979. The parents failed to attend an earlier meeting scheduled for January 17, 1979. At a March 8, 1979 meeting, she provided respondent with a visitation schedule for four visits in March, April and May of 1979. Respondent failed to attend the first visit on March 26, 1979 and the social worker later learned that he had been arrested on or about April 10, 1979. He did not attend the next scheduled visit. The social worker contacted respondent several times thereafter regarding his plans for Willie. At respondent's recommendation, she attempted to contact several of his relatives with the hope that they could care for Willie. The attempt to find a suitable relative willing and able to care for the child was unsuccessful. During this period, respondent contacted Ms. Henderson to inquire about Willie. Arrangements were made to bring Willie to visit respondent in prison on at least one occasion.

Another caseworker, Esham Johnson, assigned to the Delores B. case on October 27, 1980, testified that approximately once a month, he contacted respondent in prison to keep him apprised of the child's progress and...