Marilyn H., Matter of

Citation106 Misc.2d 972,436 N.Y.S.2d 814
PartiesIn the Matter of MARILYN H.
Decision Date24 February 1981
CourtNew York Family Court
Ira G. Greenberg, New York City, for petitioners Foster parents


This proceeding was initiated by the foster-parents of eleven year old Marilyn, to terminate her biological mother's rights in accordance with the Family Court Act and the Social Services Law, and to transfer her guardianship to them so that they can adopt her. Marilyn has lived with her foster-parents under the supervision of a child-care agency since she was 12 days old, and according to her guardian ad litem strongly desires her adoption; the case presents difficult and somewhat novel issues as to the balance between children's rights and parental rights.

After two years of preliminary and pre-trial proceedings before other judges of this court, 1 a "fact-finding hearing" has now been held, as provided in article 6 of the Family Court Act, to determine the threshold question posed by the foster-parents' petition: whether the evidence establishes that Marilyn has been "permanently neglected," within the statutory meaning of that term, by her natural mother, the respondent. This issue is crucial in a contest between foster-parents and natural parent under the Family Court Act, because it is only after a finding of "permanent neglect" that the court is statutorily authorized to determine whether adoption is in the child's "best interests." (Fam. Ct. Act, secs. 622, 623, 625(a), 631).

The guardian ad litem for Marilyn supports petitioners' allegations as to respondent's acts of "permanent neglect", and also argues that the child's best interest, including her purported desire for adoption by the foster-parents, constitutionally demands consideration in the instant fact-finding stage of this proceeding, rather than only in the event of a possible subsequent stage contingent on a neglect finding against the mother. Respondent-mother is joined in her defense by the intervenor New York City Department of Social Services, which exercises overall authority over foster-care for New York City children, as well as the intervenor foster-care agency with which the Department contracted for social case work services in connection with Marilyn's foster-care. The agency also argues that this court lacks jurisdiction because Marilyn's alleged natural father was not served herein, and it raises the constitutional point that respondent cannot be deprived of her child because she is a fit parent. Whether the Constitutional guarantee of due process requires a higher standard of proof of "permanent neglect" than the "fair preponderance of the evidence" provided in the Family Court Act, will also be considered. 2

A. Court's Jurisdiction despite Failure to Serve Alleged Father

The foster-care agency argues for dismissal of the petition on the ground that the court lacks jurisdiction to grant petitioners' prayer for the guardianship of Marilyn for the purpose of adopting her, because a Mr. D, whom respondent named as Marilyn's unwed father, has not been served. Such service, in this court's opinion, was not and is not required, since the mere naming of the father of an out-of-wedlock child does not make him a necessary party to an action relating to her adoption.

Responsive to the series of Supreme Court decisions from 1971 to 1979 on the rights of unwed fathers, 3 provisions were added to the New York Social Services and Domestic Relations Laws concerning the rights of fathers who have had specified associations with their out-of-wedlock children, in proceedings relating to their adoption. The issue raised by intervenor agency as to notice to a named unwed father of proceedings to terminate parental rights, is a question of first impression and of general importance to child welfare and court administration. For, out of caution born of the residual uncertainties from the Supreme Court opinions, adoptions have been handicapped and delayed while searches have been made to find and serve a named father although he has (as shown below in the instant case) established no identification or relationship with his alleged child and has long since disappeared.

To answer the procedural question as to the need to serve Mr. D and similarly situated males, we must first consider the substantive rights of unwed fathers. Section 384-c of the Social Services Law (effective 1977) provides for notice to an unwed father of a permanent neglect or other proceeding to transfer guardianship for purpose of adoption, if his name was recorded on the subject child's birth certificate, or he has been identified by the mother in a sworn written statement or he has identified himself or been identified in other specified respects. However, such fathers have under section 384-c only the right to appear in a dispositional or best interests hearing; there is no explicit provision as to the right of an unwed father to be heard in the instant fact-finding stage of a guardianship proceeding. The legislative intention in that respect must be inferred by construing the Social Services Law's guardianship provisions in the light of the amendment of section 111 of the Domestic Relations Law as to the right of an unwed father to veto his child's adoption. 4

Amended section 111 provides that the consent of the father of an out-of-wedlock child is required as well as the consent of the mother, if he has maintained contact with the child in specified ways. However, there was no change in the preexisting provisions that no parental consent is required for the adoption of a child for whom "a guardian has been appointed" in transfer of guardianship proceedings (D.R.L. § 111 subd. 2(c)), and that guardianship can be transferred for purpose of adoption of "a permanently neglected child." (Soc. Serv. Law § 384-b subd. 4(d)). While the Social Services Law does not mention whether or when an unwed father is a necessary party in a permanent neglect proceeding, in applying such law the unwed father amendment of the Domestic Relations Law clearly must be respected. Accordingly, a guardian cannot be appointed under the Social Services Law for the purpose of a child's adoption unless a successful permanent neglect proceeding or other proceeding to terminate parental rights has been brought against an unwed father whose consent to the adoption is required under the amendment to D.R.L. 111.

The issue then is whether Mr. D (assuming him to be a living person) is a necessary party-respondent in the instant proceeding because of the consent provisions of the Domestic Relations Law. To summarize the facts before adverting to the procedural principles, it is entirely and completely clear that he has not supported or maintained contact with Marilyn in the manner specified in such provisions or in any fashion. While the issues in this case are hotly contested, in none of the evidence offered by any of the parties as to Marilyn's life is there any room for, or any possibility or hint of, any contact or attempted contact by Mr. D, nor can any of the evidence be deemed self-serving in this respect since paternal interest was never in any way in question. Indeed, there is more reason to credit respondent-mother's testimony that Mr. D has had no contact with her or Marilyn since the child's birth than her statement that he was the father. Even if Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297, were viewed as guaranteeing a right to an unwed father regarding his child's adoption on a somewhat more flexible basis than the criteria provided in section 111 of the Domestic Relations Law, the result here would be the same. For Mr. D would fail to have any right with regard to Marilyn under even the most minimal standard of relationship.

To re-state, then, the question posed by the intervenor agency as to service on the putative father: when it is established with complete clarity that a man is outside the classes of unwed fathers with a right to be heard, must he nevertheless be joined and served as a necessary party merely because the mother has named him? It would be a procedural anomaly, as will be shown below, to do so (and dismiss the instant proceeding or delay an order with respect to respondent mother until a separate proceeding is concluded against Mr. D). It is true, of course, that his status has herein been appraised ex parte, but that type of an appraisal is customary in determining the necessity for joinder or service.

CPLR section 1001 provides: "Persons ... who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants." Under this rule the court has the duty to determine whether a judgment in an action "will adversely affect the rights of nonparties" (Castaways Motel v. Schuyler, 24 N.Y.2d 120, 125, 299 N.Y.S.2d 148, 247 N.E.2d 124) or whether the "rights of respondents are ... interwoven with the rights" of nonparties (Greenspan v. O'Rourke, 27 N.Y.2d 846, 316 N.Y.S.2d 639, 265 N.E.2d 462) so that the action should be dismissed or the nonparty joined and served. 5 And in a leading decision under the counterpart Federal rule (Federal Rules of Civil Procedure, Rule 19) the Supreme Court stated that the courts have a duty to consider whether the judgment may "as a practical matter" affect a non-party's interest and to examine "the actual interest of the nonjoined person." Provident Tradesmens Bank v. Patterson, 390 U.S. 102, 110, 122, 88 S.Ct. 733, 738-744, 19 L.Ed.2d 936....

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3 cases
  • Deborah S., Matter of
    • United States
    • New York Family Court
    • August 11, 1982
    ...example, the year of the mother's neglect is both long past and unrelated to the child's present situation, see Matter of Marilyn H., 106 Misc.2d 972, 985, 436 N.Y.S.2d 814. Here however there is no warrant for an exception to the statutory coverage.6 See Montana v. United States, 440 U.S. ......
  • Delores B., Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • October 20, 1988
    ...ability," but results instead from a physical and/or financial inability due to an "external impossibility," (see Matter of Marilyn H., 106 Misc.2d 972, 982, 436 N.Y.S.2d 814), a finding of permanent neglect is precluded. Respondent's long-term incarceration imposes just such an external im......
  • Adoption of Christopher L., Matter of
    • United States
    • New York Surrogate Court
    • May 4, 1982
    ...106 Misc.2d 770, 435 N.Y.S.2d 645; Matter of Sally Janet R., N.Y.L.J., February 9, 1981, p. 13, col. 6; see also Matter of Marilyn H., 106 Misc.2d 972, 978, 436 N.Y.S.2d 814]. The infant was born on December 5, 1979 in Queens County. The certificate of birth does not state the name of the c......

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