Guardianship of Star Leslie W., Matter of

Decision Date18 October 1984
CourtNew York Court of Appeals Court of Appeals
Parties, 470 N.E.2d 824 In the Matter of the GUARDIANSHIP OF STAR LESLIE W., an Infant. Leake & Watts Children's Home, Respondent; Mary W.S., Appellant.
David J. Lansner, New York City, for appellant
OPINION OF THE COURT

SIMONS, Judge.

This is an appeal from an order terminating respondent's parental rights to her child, Star Leslie W., because of permanent neglect (Social Services Law, § 384-b, subd. 4, par. subd. 7). To support that order the statute requires proof before Family Court that respondent failed to maintain contact with or plan for the future of her child for a period of one year after the child came into the custody of an authorized agency notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship. Respondent contends that petitioner failed to establish neglect under the statute by clear and convincing evidence (see Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599; Matter of Michael B., 58 N.Y.2d 71, 459 N.Y.S.2d 254, 445 N.E.2d 637) but more particularly she claims that the order should be reversed because the child was not in the custody of an authorized agency at the time the petition was filed and because the petition was not filed until several months after the one-year period of neglect found by the court. Family Court granted the petition and the Appellate Division, 101 A.D.2d 254, 475 N.Y.S.2d 829 affirmed by a divided court. We now affirm its order.

Respondent, a foster child herself, lived with her foster family from 1965 until 1977. She was 18 years old when she left. On July 19, 1979 she gave birth to Star Leslie W. After attempting unsuccessfully to care for the baby for a week she took Star to the home of her former foster mother and left her there. Respondent's foster parents were subsequently placed on foster parent status for Star in August so they could be paid, respondent signing a voluntary commitment of the child to the Commissioner of Social Services for that purpose. He subsequently transferred care to Leake & Watts Children's Home which in turn transferred her to the foster parents. Star resided with them continuously until July, 1982, except for a period of one month in December-January, 1981-1982 when she lived with respondent. In July, 1982, after the foster mother became ill and was no longer able to care for Star, petitioner placed her in a preadoptive home. During the time the foster parents had Star, respondent was given unlimited visitation rights. She saw her child six times in 1979 and six times in 1980. The visits were either at the foster home or arranged by petitioner at its clinic during examinations of the child. To the knowledge of petitioner, respondent did not see the child between October, 1980 and June, 1981.

During 1979 and 1980 respondent changed residences several times leaving her own apartment to live variously with her boyfriend, Robert, and her sister in The Bronx and then moving to Yonkers to live with another sister before returning to Robert. She was frequently out of contact with the petitioner for extended periods of time, moving without leaving a forwarding address and failing to notify it of the changes. Petitioner's social worker testified that she could not locate respondent for a period of four months after April, 1980 and that respondent moved to Yonkers in October, 1980 and did not reappear until June, 1981. The social worker talked with respondent in November, 1980 and learned of her move to Yonkers but respondent would not tell the social worker how to contact her there.

In February, 1981 when petitioner could not locate respondent, it instituted a proceeding to terminate her parental rights based upon a one-year period of permanent neglect. Respondent apparently learned of this through her foster mother and appeared at the intake hearing in June, 1981. At respondent's urging, the petition was withdrawn in October, 1981 and plans were made to deliver Star to her temporarily at her boyfriend's apartment, where she was then living. On December 17, 1981, the transfer was completed but it ended on January 13, 1982 when respondent left the apartment and returned with the baby to her foster mother. Although respondent contended at trial that she left because there was no heat in the apartment, Family Court accepted contrary evidence and found that she left because her boyfriend had thrown her out of the apartment after a violent fight which necessitated a call to the police. Two days later respondent returned to the apartment with her foster parents to recover her clothes. She went upstairs and, during the two hours they waited, failed to come down. Star remained in the foster home, and respondent visited her there five times between January and July, 1982. Star is now five years of age. During her life she has resided with respondent only one week after her birth and for the period from December 17, 1981 until January 13, 1982.

In February, 1982 petitioner instituted this proceeding. The natural father was served by publication and failed to appear.

I

We have recently stated our strong determination that before terminating a parent's rights the State must first attempt to reunite the parent with her child. Thus, the threshold inquiry by the court in any neglect proceeding must be whether the agency exercised diligent efforts to strengthen the parental relationship (Matter of Sheila G., 61 N.Y.2d 368, 474 N.Y.S.2d 421, 462 N.E.2d 1139). Those efforts must include counseling, making suitable arrangements for visitation, providing assistance to the parents to resolve or ameliorate the problems preventing discharge of the child to their care and advising the parent at appropriate intervals of the child's progress and development (Social Services Law, § 384-b, subd. 7, par. Matter of Sheila G., supra, 61 N.Y.2d at pp. 384-386, 474 N.Y.S.2d 421, 462 N.E.2d 1139; Matter of Star A., 55 N.Y.2d 560, 450 N.Y.S.2d 465, 435 N.E.2d 1080). These measures are not exclusive. The agency is free to attempt other reasonable and practical means to encourage and strengthen the family relationship.

Additionally, neglect may be found only after it is established that the parent has failed 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 (Social Services Law, § 384-b, subd. 7, par. ). The requirement is several: the parent must maintain contact with the child and also realistically plan for her future. A default in performing either may support a finding of permanent neglect (Matter of Orlando F., 40 N.Y.2d 103, 110, 386 N.Y.S.2d 64, 351 N.E.2d 711; Matter of Candie Lee W, 91 A.D.2d 1106, 458 N.Y.S.2d 347; Matter of John AA., 89 A.D.2d 738, 453 N.Y.S.2d 942). Insubstantial or infrequent contacts with the child are insufficient (Social Services Law, § 384-b, subd. 7, par. ) and the planning requirement contemplates that the parent shall take such steps as are necessary to provide a home that is adequate and stable, under the financial circumstances existing, within a reasonable period of time. Good faith alone is not enough: the plan must be realistic and feasible (Social Services Law, § 384-b, subd. 7, par. ).

After a fact-finding hearing, Family Court found that respondent had maintained contact with Star, notwithstanding respondent's absences for extended periods. It found, however, that respondent had failed to plan for her child's future, despite the agency's diligent efforts, and it therefore granted the petition and permanently terminated respondent's parental rights. After a dispositional hearing, it transferred custody to petitioner and the Commissioner of Social Services for adoption. At the Appellate Division, all the Judges agreed that respondent had failed to plan for the child. Two Judges dissented because they believed that petitioner had not made diligent efforts to reunite respondent with her child. Justice Asch also found procedural irregularities which in his judgment required reversal.

The evidence in the record supports Family Court's finding of diligent efforts to assist respondent. At the time of the birth respondent lived in a small apartment by herself. Petitioner had no objection to the accommodations but respondent did not want to care for the baby there so petitioner's social worker referred her to the Home's housing office. Respondent went to the housing office where she was given referrals to investigate but she failed to follow through on them. Although it was clear that housing was respondent's main problem, she failed to take any concrete steps to solve it. Apparently her only plan to establish a home for Star was to marry her boyfriend. In the meantime, she moved frequently, staying with him intermittently after 1979, and leaving twice for extended periods of time during which she failed to notify the agency of her change of address or how she could be reached. Nevertheless, petitioner's staff counseled her as they could and it continued foster care in respondent's own former foster home, a familiar setting, and encouraged her to visit often and participate in the child's upbringing. It arranged for clinic visits for the child and informed the mother of them so she could be present to visit and check the baby's progress.

Notwithstanding petitioner's lack of success and its inability to maintain regular contact with respondent because of her moves, the agency agreed to withdraw the 1981 petition after she returned that summer and made renewed efforts to reunite mother and child by encouraging future visitation and by arranging...

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