Klug, In re

• Decision Date: 15 July 1969
• Citation: 32 A.D.2d 915,302 N.Y.S.2d 418
• Parties: In the Matter of Sandra Joy KLUG a/k/a Joy Klug, a child under the age of eighteen years, alleged to be a permanently neglected child. JEWISH CHILD CARE ASSOCIATION OF NEW YORK, Petitioner-Appellant, Estelle KLUG a/k/a Estelle Marasti, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 418

302 N.Y.S.2d 418

32 A.D.2d 915

In the Matter of Sandra Joy KLUG a/k/a Joy Klug, a child under the age of eighteen years, alleged to be a permanently neglected child JEWISH CHILD CARE ASSOCIATION OF NEW YORK Petitioner-Appellant, Estelle KLUG a/k/a Estelle Marasti, Respondent-Respondent.

Supreme Court, Appellate Division, First Department.

July 15, 1969.

H. L. Buttenwieser, New York City, for petitioner-appellant.

S. A. Shay, New York City, for respondent-respondent.

Before CAPOZZOLI, J.P., and TILZER, McGIVERN, NUNEZ and McNALLY, JJ.

PER CURIAM.

Order of the Family Court, entered January 2, 1969, dismissing the petition, reversed on the law and the facts, without costs or disbursements, and the matter remanded for further proceedings consistent with this memorandum.

In this proceeding under Article 6, Family Court Act, for permanent termination of parental custody of a child and to award custody to the petitioner agency, the Family Court, after a hearing, found that petitioner had not demonstrated 'by a fair preponderance of the evidence' that it had 'made diligent efforts to encourage and strengthen the parental relationship' as required by sections 614 and 622 of the Family Court Act. The chief support in the record for that finding is evidence of efforts by the petitioner to help the mother surrender the child for the sake of the child and the mother. Under the unusual circumstances of this case, that proof, alone, does not dictate a finding that the agency failed to meet the obligations imposed by the statute. The agency's records in evidence support the conclusion that the agency did comply with the requirements of Section 614(c). It was, therefore, error for the Family Court to assign such decisive weight to that factor and to consider itself thereby restricted by the statute under which the court could terminate parental rights.

At the new hearing further proof of this critical issue should be adduced. The court should also permit the petitioner to submit proof in support of its allegation (required by subdivision (d) of Section 614) that the parent has failed for a period of more than one year Substantially and Continuously to maintain contact with and plan for the future of the child although physically and financially able to do so. (Emphasis ours.) The court made no finding upon this allegation. The mother's present financial and physical ability to care for her child should be inquired into, as well as her ability or lack of ability to substantially plan for the future of the child. Whether the requirements of Article 6 Part I, of the Family Court Act have been complied with should be determined under the particular facts and the totality of circumstances of each case rather than on the limited construction adopted by the Trial Judge herein.

We therefore remand for further proceedings consonant with the foregoing.

CAPOZZOLI, J.P., and NUNEZ, J., concur.

TILZER, J., concurs in a concurring memorandum.

McGIVERN and McNALLY, JJ., dissent in a dissenting memorandum by McNALLY, JJ.

TILZER, Justice (concurring):

I agree that the trial court's reading of the statute is too restrictive. With knowledge that the purpose of the statute was to enlarge the definition of neglect so as to provide a solution for the many thousands of children placed in institutions and forgotten by their parents, I would conclude that the placement agency might travel two paths at the same time. So that a parent would not be deprived of her right to be a parent solely because she lacked assistance in being rehabilitated, the statute (section 614(c)) required that the agency make efforts to strengthen the parental relationship. Nevertheless, the agency, while pursuing its efforts to encourage the parental relationship, for the true good of the mother as well as the child, had to assess its progress in the mother's rehabilitation, look to the future and travel that other road of the long-term custody of the child. In the event its efforts failed, the child would not be an agency boarder for a period of years but could then be absorbed as a member of a family in the foster home where she had been placed at an early age. Thus, I disagree with the court below that for the agency to seek to strengthen the parental relationship between this mother and child would have violated its 'responsibility for the welfare of the child in its custody.'

In weighing the petitioner's proof, the language of subdivision (d) of section 614 should be interpreted with a realization of the aim of the statute to terminate parental rights in the case of a 'permanently neglected child.' A child is permanently neglected when her mother (in this case) has failed for more than one year to 'substantially * * * maintain contact with and plan for the future of the child although physically and financially able to do so' (section 614(d)). '(S)ubstantially,' means more than occasional visits, a birthday card or a doll at Christmas. 'Contact' must be interpreted to mean a meaningful contact where a parent has exercised her parental obligation and has provided love, affection and guidance. '(P)lan for the future' requires that the parent recognize the temporary nature of her child's placement with the agency, that she express her intention or at least her hope to provide a home for her daughter where she will receive a mother's love, and, further, that she has performed some minimal act toward the fulfillment of that undertaking. The words 'although physically and financially able to do so' also require an interpretation in the...