Dionisio R., In re

• Decision Date: 10 March 1975
• Citation: 81 Misc.2d 436,366 N.Y.S.2d 280
• Parties: In the Matter of the Review of the Foster Care Status of DIONISIO R. * and Richard R.* pursuant to Section 392 of the Social Services Law. Family Court, New York City, New York County
• Court: New York Family Court

Page 280

366 N.Y.S.2d 280

81 Misc.2d 436

In the Matter of the Review of the Foster Care Status of DIONISIO R. ^* and Richard R.* pursuant to Section 392 of the Social Services Law Family Court, New York City, New York County.

March 10, 1975.

W. Bernard Richland, Corp. Counsel of the City of New York, New York City, Leon Palevsky, Asst. Corp. Counsel, for petitioner.

John J. Carlin, New York City, for New York Catholic Guardian Society.

Newton Greenberg, New York City, Law Guardian for Dionisio R. and Richard R.

Kermit J. Casscells, Staten Island, for Frances Manco ^**.

Vilma Lopez**, pro se.

FELICE K. SHEA, Judge:

In this foster care review proceeding pursuant to Social Services Law § 392, the Court is asked to determine the conflicting rights of two foster mothers, both of whom have expressed a desire to adopt Dionisio and Richard R., twin brothers born out of wedlock on July 4, 1971, whose natural parents have surrendered them for adoption.

THE FACTS

On August 19, 1971, Dionisio's and Richard's mother signed a voluntary commitment authorizing the Commissioner of Social Services to place the infants in foster care. The Commissioner gave casework responsibility for supervising the foster care placement of the boys to the New York Catholic Guardian Society (the 'Agency') which placed them in the home of Mr. and Mrs. Anthony Lopez, where they remained until February 11, 1974, a period of more than twenty-four months.

In its report to the Department of Social Services dated May 24, 1973, the Agency stated that the adjustment of the boys to the Lopez home 'could be considered as very good' and that the 'plan is for the child(ren) to be adopted by the foster parents' as soon as they are free for adoption. ¹ By the time this matter came before the Court on April 4, 1974, for a review of foster care, the situation in the Lopez home had changed. According to Agency reports, Mr. and Mrs. Lopez were experiencing marital difficulties and had lost their apartment. Mrs. Lopez had moved in with her parents temporarily and shortly thereafter her father suffered a stroke. The Agency advised Mrs. Lopez that because of the emotional stress, unsettled living conditions and physical illness in her family, it planned to move the children. On February 6, 1974, Mrs. Lopez signed what the Agency referred to as a 'waiver of a hearing'. On February 11, 1974, the boys were moved to the home of Mr. and Mrs. Benny Manco.

By May, 1974, Mrs. Lopez had obtained an apartment and had brought her own four children back to live with her. However, according to the Agency, Mr. and Mrs. Lopez were estranged and Mr. Lopez' whereabouts were unknown.

Meanwhile, Richard and Dionisio were living in the home of Mr. and Mrs. Manco, a childless couple who had been married for nine years. Mr. Manco worked as a bus driver. Mrs. Manco had worked as a computer keypunch operator for twelve years. In April, 1974, just two months after the twins came to live with the Mancos, the foster father was tragically killed in an automobile accident.

Because of these developments, the Agency advised the Court, by report dated May 29, 1974, that it needed additional time to determine if adoption by either of the foster mothers would be in the children's best interests.

Between June, 1974 and January, 1975, the review of the foster care status of the R. twins came before this Court four times. Both foster mothers appeared in Court, expressed an interest in adopting the twins, and stated they were able to pay for counsel. Mrs. Manco engaged an attorney, but Mrs. Lopez did not bring an attorney to Court to represent her. On two Court dates, Mrs. Lopez failed to appear although she sent her adult daughter on her behalf on one occasion.

The Court psychologist interviewed Mrs. Manco on January 3, 1975 and submitted a favorable written evaluation of her parental capacity, recommending that the twins be adopted by her. A law guardian was appointed for the children and he also recommended adoption by Mrs. Manco as being in the best interest of his wards.

SOCIAL SERVICES LAW SECTION 392

Section 392 of the Social Services Law mandates periodic review by the Family Court of the status of children in foster care. In enacting the statute, which directs the Court to consider less costly alternatives to foster care, the legislature may have hoped to save money--a purpose noted in Matter of L., 77 Misc.2d 363, 364, 353 N.Y.S.2d 317, 321. But the legislature also intended to prevent foster children from becoming 'lost' children and to expedite the making of permanent plans for them. Matter of P., 71 Misc.2d 965, 969, 337 N.Y.S.2d 203, 207; see also 1970 New York State Legislative Annual, p. 32.

Section 392(7) permits one of four dispositions to be made 'in accordance with the best interest of the child.' The review of the foster care of the R. children, who have been freed for adoption by surrender instruments signed by their parents, is governed by subdivision 7(d) which provides that the Court shall enter an order

'. . . directing that such child be placed for adoption in the foster family home where he resides or has resided or with any other person or persons.' ²

Section 392 also provides that:

'4. Notice of the hearing shall be given and a copy of the petition shall be served upon the following, each of whom shall be a party entitled to participate in the proceeding:

'(c) the foster parent or parents in whose home the child resided or resides at or after the expiration of a continuous period of twenty-four months in foster care:

'(e) such other persons as the court may, in its discretion, direct.'

Section 392(4)(c), while not completely clear, appears to encompass both Mrs. Manco, in whose home the children resided at the time the review petition came before this Court, and Mrs. Lopez, in whose home they formerly resided. Both foster mothers received notice (Mrs. Manco by Court direction); each appeared, and the Court finds that they are both proper parties to this proceeding.

SSL § 383(3)--PREFERENCE TO FOSTER PARENTS

In determining the best interests of the two young R. boys, the Court must also consider the statutes providing legal rights for foster parents, since they express a legislative policy that the best interests of children are not served by uprooting them needlessly from homes in which deep attachments have been formed. Matter of S., 74 Misc.2d 154, 347 N.Y.S.2d 470; Foster, Adoption and Child Custody: Best Interest of The Child?, 22 Buffalo L.Rev. 1, 13 (1973).

Following the decision in Matter of Jewish Child Care Ass'n, 5 N.Y.2d 222, 183 N.Y.S.2d 65, 156 N.E.2d 700, ³ New York reversed its policy against allowing foster parents to adopt foster children and in 1969 amended SSL § 383 to grant a preference to foster parents who have cared for a child for two years or more. ⁴ SSL § 383(3) provides, in pertinent part:

'3. Any adult husband and his adult wife and any adult unmarried person, who, as foster parent or parents, have cared for a child continuously for a period of two years or more, may apply to (an) authorized agency for the placement of said child with them for the purpose of adoption, and if said child is eligible for adoption, the agency shall give preference and first consideration to their application over all other applications for adoption placements. However, final determination of the propriety of said adoption of such foster child shall be within the sole discretion of the court, as otherwise provided herein.'

(a) Waiver of Preference; SSL § 400

The Agency and the present foster mother, Mrs. Manco, argue that Mrs. Lopez is not entitled to a preference under SSL § 383(3) because when the agency determined to remove the twins from her home, she executed a written waiver of what is claimed to be her sole remedy, namely, administrative review pursuant to SSL § 400. ⁵ In fact, the document signed by Mrs. Lopez waived only 'the ten day's (sic) notice usually given to a foster parent before removing a child' and advised her of her right to request a conference with a public official. ⁶

Putting aside the question of whether the 'waiver' document effectively apprised Mrs. Lopez of her right to contest the removal of the children, it is clearly not a waiver of any right to a preference she may have under SSL § 383(3). It was signed at a time when the R. twins were not free for adoption, and made no mention of a possible right to adopt. A waiver must be an intentional relinquishment of a known right, narrowly construed, and limited to its specific terms. Werking v. Amity Estates, 2 N.Y.2d 43, 155 N.Y.S.2d 633, 137 N.E.2d 321; Matter of Mendleson, 46 Misc.2d 960, 261 N.Y.S.2d 525.

Moreover, SSL § 400 cannot be the exclusive remedy to which a foster parent is relegated when an agency removes a child from a foster home. The issue of child custody should be decided only by a Court after an evidentiary hearing. Berger v. Berger, 45 A.D.2d 1000 358 N.Y.S.2d 20 (2nd Dep't) (mem.); Matter of Antonoff v. Antonoff, 44 A.D.2d 577, 353 N.Y.S.2d 229 (2nd Dep't) (mem.); Nestel v. Nestel, 38 A.D.2d 942, 331 N.Y.S.2d 241 (2nd Dep't) (mem.); 2 Foster & Freed, Law and the Family, § 29:29 (1966). A conference with a welfare center official followed by an administrative hearing in which the only parties are the foster parents and the Department of Social Services, where the foster parents need not be represented by an attorney, and where the child and the natural parents are not represented, could well be an unsuitable procedure for determining whether or not a child should remain in a foster home.

In addition, as was pointed out in Matter of W., 77 Misc.2d 374, 355 N.Y.S.2d 245, when administrative remedies are finally exhausted, Court review is by way of an Article 78 proceeding before the Supreme Court in Special Term Part I, a part of that Court without expertise in questions of child custody.

The time involved in taking the matter before the...