John AA, Matter of
| Decision Date | 29 July 1982 |
| Citation | 453 N.Y.S.2d 942,89 A.D.2d 738 |
| Parties | In the Matter of JOHN "AA" 1 et al., Children Alleged to be Permanently Neglected. Bernhardt S. KRAMER, as Commissioner of the Ulster County Department of Social Services, Respondent, v. JOHN "AA" 1 et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Alan N. Sussman, Kingston, for appellants.
Edward E. Strohsahl, Saugerties, for respondent.
Wilfred E. Marrin, New York City, for foster parents.
Jay L. Samoff, Kingston, for minor children.
Before MAHONEY, P. J., and KANE, CASEY, WEISS and LEVINE, JJ.
Appeal from a judgment of the Family Court of Ulster County, entered April 5, 1979, which adjudged appellants' three children to be permanently neglected pursuant to article 6 of the Family Court Act.
This case comes before us on remand from the United States Supreme Court. When last before us, the sole issue was whether the standard of proof fixed by section 622 of the Family Court Act--a fair preponderance of the evidence--was so low as to deprive appellants of due process of law. We held that it was not and affirmed the judgment terminating their parental rights (Matter of John AA., 75 A.D.2d 910, 427 N.Y.S.2d 319). The Court of Appeals dismissed the parents' appeal for lack of a substantial constitutional question (Matter of Apel 51 N.Y.2d 768, 432 N.Y.S.2d 1031, 411 N.E.2d 801). On certiorari, the United States Supreme Court vacated our order and remanded the matter for further proceedings not inconsistent with the majority opinion which held that "a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence" (Santosky v. Kramer, 455 U.S. ----, ----, 102 S.Ct. 1388, 1391, 71 L.Ed.2d 599, 603).
The threshold issue is whether this matter must be remitted to the Family Court for a new hearing. In its closing paragraph, the majority opinion of the Supreme Court states (455 U.S. 745, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599, 617, footnote omitted):
We, of course, express no view on the merits of claims. At a hearing conducted under a constitutionally proper standard, they may or may not prevail.
Appellants contend that this language requires a new evidentiary hearing at the Family Court level. We disagree. It is clear from the majority opinion that the Supreme Court's dissatisfaction with the procedure by which the State terminated appellants' parental rights was solely with the burden of proof employed by the factfinder in determining permanent neglect. Neither the procedural aspect of the evidentiary portion of the factfinding hearing itself nor the elements necessary to establish permanent neglect were found lacking. We see no reason why the change in the standard of proof dictated by the Supreme Court should affect the validity of the portion of the hearing at which proof was taken. Nor do we see any useful purpose to be served by holding new hearings, which would only further delay a resolution of this matter. 2 The proof in the record either is insufficient under the new standard, requiring dismissal of the petition, or the proof, viewed under the new standard, supports a finding of permanent neglect, in which case the judgment should be affirmed. The Supreme Court's reference to "a hearing conducted under a constitutionally proper standard" must be considered as applying to the decision-making portion of the factfinding hearing, since that is the only portion in which the standard of proof is relevant. Accordingly, we will review the sufficiency of the Family Court's determination under the more rigorous clear and convincing evidence standard (see Matter of Janet AA, 88 A.D.2d 670, 450 N.Y.S.2d 922).
With regard to respondent's diligent efforts to encourage and strengthen the parental relationship, one of the elements necessary to establish permanent neglect (Social Services Law, § 384-b, subd. 7, par. ), there is uncontested proof that all of the relevant services within respondent's authority to provide or arrange were made available to appellants. They were informed of the availability of these services, which included family planning, family counseling, a nutritional aide, public health nursing, vocational rehabilitation, psychiatric counseling and transportation, and they were urged to take advantage of these services. Visitation with the children was also arranged by respondent. Accordingly, even under the clear and convincing evidence standard of proof, respondent has met his burden on the element of diligent efforts.
The remaining contested element requires proof that appellants have failed substantially and continuously or repeatedly to maintain contact with or plan for the future of the children, although physically and financially able to do so (Social Services Law, § 384-b, subd. 7, par. ). To satisfy this element, respondent must prove either failure to maintain contact or failure to plan for the future (see Matter of Orlando F., 40 N.Y.2d 103, 109-110, 386 N.Y.S.2d 64, 351 N.E.2d 711). Since respondent has not alleged that appellants failed to maintain contact with their children, the relevant issue is whether they failed to plan for the future of their children.
The statute defines the required plan as follows:
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