Orlando F., Matter of
| Decision Date | 10 June 1976 |
| Parties | , 351 N.E.2d 711 In the Matter of ORLANDO F., a child alleged to be permanently neglected. NEW YORK FOUNDLING HOSPITAL, Appellant, v. THEODORA F., Respondent. |
| Court | New York Court of Appeals Court of Appeals |
David H. Berman, Frederick J. Magovern and Gerald E. Bodell, New York City, for appellant.
Mary Work and Donald Grajales, New York City, for respondent.
This is a proceeding pursuant to article 6 of the Family Court Act (§§ 611--634, inclusive) instituted by the New York Foundling Hospital to permanently terminate respondent Theodora's parental right to the custody of her son. The crucial issues involve the planning by the mother for the future of her child and the permission given by the Family Court to the child's Law Guardian to withdraw at the beginning of the fact-finding hearing, without any replacement.
The Family Court dismissed the petition which sought a declaration of permanent neglect and, further, ordered the return of the child to his natural mother. The Appellate Division modified that order by striking the provision directing the return of the child and otherwise affirmed.
On June 27, 1971, Theodora gave birth to a boy, Orlando, the subject of this proceeding. The father of the youngster is unknown. Respondent, then 18 years of age, had spent 10 of her years at a State institution for the retarded, but had been released about a year prior to Orlando's birth. She was classified in her last IQ test as 'dull normal'. When only three days old, the Bureau of Child Welfare obtained an emergency placement for Orlando and in July, 1971, he was placed with a foster family in Rockland County, in whose care he has remained since then. During the first year of Orlando's stay with his foster parents, respondent initially returned to her own foster home, later living with her father and then with her mother, but during the summer of 1972 she went to stay with some friends, linda and Richard Dennis and their small child. During that first year, the respondent visited her son on three occasions, in August of 1971 and then in January and April of 1972. There was evidence that until the fall of 1972 petitioner had assigned no caseworker to assist respondent mother, although help was received from a Ms. Peterson, an employee of the State Department of Mental Hygiene.
At the fact-finding hearing before the Family Court, a social worker for petitioner, David Pilliod, testified that he was assigned to the case in September, 1972 and that, after contacting respondent who had not dealt with the agency since the prior January, a meeting was scheduled for October 12, 1972. At that conference, attended by Pilliod, Peterson and respondent, it was agreed that there would be an intensive drive in weekly sessions for the next six months in an effort to strengthen the parent-child relationship. Pilliod stated that a plan should be devised which 'would start by considering visits and also by reflecting on what her plans were for herself and the baby.' Respondent informed the witness that she was looking for an apartment.
An appointment, set for October 16, 1972, was not kept by respondent. Pilliod attempted, without success, to contact her through Ms. Peterson and a Mrs. O'Shawnessy, a worker at the Handicapped Rehabilitation Center where respondent was being trained to procure employment. Theodora called on October 30, 1972 and met with Pilliod on November 3, 1972, after arriving two hours late. Plans to have the mother visit with her son on December 27, 1972 were initiated and on November 10, 1972 details for the visit were discussed. Appointments for November 17 and 19, 1972 were broken because respondent had overslept and, again, on December 15 because she had forgotten about it. A visit did, however, take place on December 27, 1972, but Orlando began to scream as soon as he was brought into the room. Attempts to calm the child proved futile and he started to kick and scream whenever his mother came near him. After Orlando's return to his foster parents, respondent, who appeared quite upset, told Pilliod that she was moving into an apartment on January 1, 1973. At a meeting on January 5, 1973, it was disclosed that respondent had not as yet moved into her apartment due to a lack of furniture and that she refused Pilliod's offer to consult welfare. Appointments scheduled for January 15 and 16, 1973 were not kept, so that another was slated for January 22, 1973, to prepare for a visit with Orlando two days later. This meeting had to be postponed because respondent mistook the date and came on the 25th of January rather than the 24th. When she subsequently failed to appear for sessions set forth February 6 and 8 and March 5 and 12, 1973, Pilliod phoned the rehabilitation center and was informed that, as the result of lack of attendance, respondent had not been placed in a job.
No contact was made by the mother until April 3, 1973 when she entered Pilliod's office to announce that she was 'tired of planning and talking to social workers'. As of this time, Pilliod's evaluation was that 'Theodora was unable to make a plan for Orlando or placement back with her.' Thereafter, further appointments were missed until July 6, 1973 when Pilliod met with respondent and her friends, the Denises. It was related that these friends would be willing to care for Orlando on a temporary basis and they agreed to return and discuss possible details. There was no follow-up by them. From July 6, 1973 until September 4, 1973, no communication was forthcoming from respondent because she had 'been away'. On September 11, 1973 Pilliod, convinced that no other viable solution could be reached, transferred the case to another caseworker and began completing the paperwork necessary to institute this proceeding to terminate Theodora's parental rights.
Dr. Ronald, a psychologist specializing in the area of mental retardation, testified on behalf of respondent. She related that she had known respondent since January or February of 1974, had observed respondent's second illegitimate child as being bright, attractive and properly cared for, and had concluded that respondent was physically and financially able to care for a child. She further opined that people reared in an institutionalized setting require 'much more concrete structure and plan action' to deal with daily tasks than others, because of a lack of experience.
At the conclusion of the fact-finding hearing the Family Court Judge dismissed the petition. He found that the natural mother had evinced a 'burning desire' to obtain custody of her child and that petitioner had failed to prove affirmative neglect. Orlando was directed to be returned to his natural mother. The Appellate Division modified by deleting that portion of the order which directed Orlando's return because, in their view, 'it has not yet been shown that the parent is in a position to care for the child'. The dismissal of the petition seeking to terminate parental custody was affirmed on the ground that the period of time in which respondent had failed to maintain contact with the child was only eight months, not the one-year limitation required by statute (Family Ct. Act, §§ 611, 614). Justice Kupferman dissented in part. In his view, the evidence demonstrated that respondent mother had failed to plan for the future of her child and that, '(i)nasmuch as it is the best interest of the child with which we are concerned', the parental right should be terminated. We agree.
Section 611 of the Family Court Act, 1 in defining a permanently neglected child, at the time of the institution of the proceeding, provided: (Emphasis added.) It was necessary that these definitional elements be alleged in the petition, in addition to an assertion that 'the moral and temporal interests of the child require that the parents' or other custodian's custody of the child be terminated permanently' (Family Ct. Act, § 614, subd. 1, par. (e); see L.1973, ch. 870). 2 Both the Family Court and the Appellate Division were in agreement that the significant element left unproven by petitioner was that respondent had failed for a period of one year to substantially and continuously maintain contact with or plan for the future of the child. A reading of the respective opinions, here, however, reveals that the phrase 'maintain contact with or plan for' was interpreted as comprising only one requirement, that is, it was read in the conjunctive rather than the disjunctive. For example, the Appellate Division, referring to the fact that respondent communicated with petitioner in September of 1973 and suit was brought in May of 1974, concluded that 'The period of lack of Contact here was only 8 months' (emphasis...
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