L., In re

• Decision Date: 26 February 1974
• Parties: In the Matter of the Review of the Foster Care Status of Carla L. * Pursuant to Section 392 of the Social Services Law. Family Court, New York County
• Court: New York Family Court

Page 317

353 N.Y.S.2d 317

77 Misc.2d 363

In the Matter of the Review of the Foster Care Status of

Carla L. ^* Pursuant to Section 392

of the Social Services Law.

Family Court, New York County.

Feb. 26, 1974.

Adrian P. Burke, Corp. Counsel of the City of New York, Franklin E. White, Sp. Asst. Corp. Counsel, New York City, by Dorothy Elfenbein and Harold Mondshein, New York City, of counsel, for Commissioner of Social Services.

Hansel L. McGee, Bronx Legal Services, New York City, for the Natural Mother; William R. Dalsimer, New York City, of counsel.

Dennis M. Beck, New York City, Law Guardian.

Alfonso A. Ilaria, New York City, for Foster Parents.

Sage, Gray, Todd & Sims, New York City, Cheryl J. Bradley, New York City, of counsel, for Edwin Gould Services for Children.

DECISION

STANLEY GARTENSTEIN, Judge.

The enactment of Section 392 of the Social Services Law providing for review of foster care placements at least once every two years in this Court, has created, in the short term since its effective date, an entirely new field of law with substantial legal issues going to the very heart of the Family Court process. Many of these issues are now raised in an omnibus motion which brings the entire concept and effectiveness of this section as a working tool of this Court into focus.

THE FACTS:

The infant Carla was born in February, 1966 and is now eight years old. She was voluntarily committed to the Commissioner of Social Services by her biological mother who could not care for her because of severe physical and emotional problems. She has been with the same foster parents since she was one month old and is a well adjusted child in the framework of the foster family. The within proceeding is the first to review the foster care status of Carla. The natural mother opposes an extension of foster care as requested. She claims she has made known her willingness and ability to care for the child and cites her apparently excellent care of her other child, now four years old. It is charged that the obstacle to reunion of Carla with her biological mother is not her unfitness to care for her, but the foster parents' determination to adopt.

SECTION 392:

Proceedings under Section 392 are the first instance of a conferral of exclusive original jurisdiction upon this Court by any statutory scheme other than as contained in the Family Court Act proper. ¹ Its original purpose appears to have been fiscal in nature as a spur to the resolution of situations where foster-care and the higher attendant expense thereof to the taxpayers (as opposed to possible adoptions of the same children or return to their biological parents and the lower cost to the taxpayers attendant thereon) might have been allowed to continue indefinitely. The Court is given no power to affect the status of any persons before it nor to adjudicate any rights as between them on the merits. The section simply gives the Court the right to make one of four dispositions bearing in mind the respective interests of the taxpayers, child, foster-parents, natural-parents, child-care agency, and the Commissioner. These are:

a--continuation of foster-care;

b--continuation of foster-care with a direction that proceedings be taken to legally free the child for adoption;

c--continuation of foster-care with a direction that a legally free child be placed for adoption;

d--discharge of the child to the biological parent.

Hanging as it does, outside the physical confines of the Family Court Act, this jurisdictional statute makes no reference to any auxiliary adjective statute. Nor does it, owing to its original limited scope, contain any machinery which might avoid lengthy proceedings for the narrow statutory purpose only to compel the same parties to relitigate the same issues in another branch of the Court in order to establish their status or effectuate their rights. Not even the basic Family Court Act has been made applicable to these proceedings, nor, by inference (See F.C.A. § 165) any appropriate provisions of the C.P.L.R. It might even be argued that the inclusion in Section 392 of the one right to an order of protection, the only right ordinarily available in this Court so granted (See Subdivision 8), might, by inference, be construed to exclude other remedies otherwise available in this Court. Nor, to carry an argument to extremes, is there any statutory authority mandating any application of the rules of evidence or the right to issue process; or even a provision for review on appeal. Obviously, these are legislative oversights. The question is, do they render the statute defective as a possible deprivation of due process of law?

MOTIONS BEFORE THE COURT:

The biological mother moves for relief, requesting In seriatum: 1--That these proceedings be dismissed outright because of laches and the child immediately discharged to her; 2--That the Court grant disclosure to the natural mother in the form of an order permitting inspection of the complete case record maintained by the agency overseeing foster care; 3--That the Court transfer all proceedings to the Family Court of Bronx County on the grounds that the natural mother has a phobia of travel which prevents her participation in proceedings in this County.

SECTION 392: CONSTITUTIONALITY; INHERENT POWER OF THE COURT:

The first motion to dismiss because of laches raises a disturbing argument which goes to the heart of Section 392. Briefly, it is argued that until its enactment, no remedy existed for a mother whose children had been voluntarily placed; that faced with an agency's refusal to return a child or even to make his whereabouts known, a biological parent had nowhere to turn other than a writ of habeas corpus in the Supreme Court, a proceeding in which the burden was on the petitioner to establish a sophisticated legal case and which required representation by counsel. It is further argued that under most circumstances, those who must place children temporarily are the impoverished who have no access to counsel or the sophistication to obtain free legal aid to the indigent. The biological mother submits that with the enactment of Section 392 which places upon the agencies the burden of seeking review, the legislature intended to make an order continuing foster care the sole basis for withholding custody of a child from his biological parent. Lacking timely application for review as mandated by statute, the biological parent urges a dismissal of these proceedings with a direction that the child be forthwith returned. Impliedly, this argument, addressed to the 'defective' nature of the petition, makes the issue one of parental rights against contractual agency rights emanating from the original agreement and incidentals thereof. It submits that the issue made relevant by statute does not include any room for an adjudication based upon the best interests of the child despite the catch phrase of Subdivision 7 to that effect; that the 'best interests' criteria is constricted by the narrow 'one in four' choice given the Court by statute, thus indicating a legislative intent to pay only lip service to the 'best interests' criteria. Finally, it claims that compelling the natural mother to go through this proceeding--perhaps to prevail--without giving her the additional benefit of an adjudication on the merits of hers and the child's status constitutes a constitutionally defective deprivation of due process of law.

Two aspects of this argument require the Court's attention. First, does the doctrine of laches apply when the best interests of the child are at stake? We hold in the negative. There can be no parental property right in a child regardless of the relative weakness or strength of a statutory scheme for review of foster care. The interests of a child exist independently of those of its parents and must be held to override them. (Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659).

So much is basic. We must however consider the fact that courts are more and more being confronted with the insoluble dilemma of children, who by whatever means, grow up in homes other than those of their biological parents and whose psychological well being will be devastated by removal from the only homes they know. The Court recognizes that placements are sometimes effectuated by dealings with zealous, well meaning persons whose interests coincide with their concept of the child's best welfare but who sometimes take steps not sanctioned by law under circumstances where a biological mother may not fully understand the impact of her actions in placing a child. Can the desire to lend every effort of the Court to see to it that a biological mother is granted due process of law defeat the 'equity' (for want of a better word) built up by a child and its foster parents in the status quo? We must conclude in the negative. The solution to the problems raised rests in the diligence of the Department of Social Services and the effective functioning of the Court's review procedures under this Section. It is also parenthetically noted that Section 392 has now been joined by Section 358--a of the Social Services Law providing for review of all voluntary placements within 30 days of removal of a child. Hopefully, when the backlog is eliminated and the review machinery working smoothly, these considerations will be academic. Until that time, however, the Court must accept the undeniable compromise position that as between two persons entitled to the protection of the Court, the interests of the weaker must be protected with greater zeal. In short, we hold, as we must, that the 'best interests of the child' criteria is not merely a descriptive statutory phrase, but an expression of that which must be given overriding concern.

The second argument concerning the ineffectiveness of this proceeding to affect status and/or provide a determination on the merits is well taken. However, despite the fact that...