Patricia Ann W., Matter of

• Decision Date: 13 January 1977
• Citation: 89 Misc.2d 368,392 N.Y.S.2d 180
• Court: New York Family Court
• Parties: In the Matter of PATRICIA ANN W. and Michelle Elaine W., children under the age of 18 years, alleged to be permanently neglected children.

Page 180

392 N.Y.S.2d 180

89 Misc.2d 368

In the Matter of PATRICIA ANN W. and Michelle Elaine W. children under the age of 18 years, alleged to be permanently neglected children.

Family Court, Kings County.

Jan. 13, 1977.

John J. Carlin, Floral Park, for petitioner.

Hyman J. Mendelson, Brooklyn, for respondent father.

Harold Venokur, Brooklyn, for respondent mother.

Charles Schinitsky, New York City by Rhoda J. Cohen, Brooklyn, for the children.

DECISION AND ORDER

STANLEY GARTENSTEIN, Judge:

Proceedings before the Court involve efforts by the Little Flower Children's Services, an authorized voluntary child care agency under the applicable provisions of the Social Services Law, to terminate parental rights to the subject infants, Michelle, born May 23, 1967, now nine years old, and Patricia, born August 19, 1969, now seven. The biological parents are the respondents. Five separate proceedings and cross-proceedings have been before the court at some stage of this bitter litigation, vis.: one proceeding for each subject child against both natural parents framed in abandonment (SSL § 384); one proceeding for each subject child against the natural father only, framed in permanent neglect pursuant to Family Court Act Section 611; and habeas corpus proceedings brought on behalf of the biological father for custody of both girls. The custody proceedings have heretofore been dismissed for failure to prosecute. The abandonment proceedings have been held in abeyance pending resolution of the permanent neglect proceedings against the biological father which were tried before the undersigned. Upon conclusion of the trial involving alleged permanent neglect by the natural father, decision was reserved and the abandonment proceeding was severed as to him and marked ready for trial for a date certain as to the mother. This decision and order is issued in the permanent neglect proceeding.

THE FACTS:

Michael W. and Mae W. the biological parents of the subject infants, were married on July 23, 1965. The issue of this marriage consists of a boy, Wayne Michael, born November 1, 1965, and the two girls. Wayne Michael, who is not involved in or affected by these proceedings, is now eleven and resides with his paternal grandmother in an upstate community.

Michelle and Patricia, then two years and five months old respectively, were first placed on February 9, 1970 by the maternal grandmother after they and Wayne Michael were left with her by the biological mother. No formal surrender instrument was ever executed by either of the natural parents or the maternal grandmother. The natural father testified without contradiction that upon learning from a friend that all his children, including Wayne Michael, were at the neighborhood social services center and a placement against his will imminent, he rushed to the center, took Wayne Michael bodily from there, and upon his return to 'rescue' his other children, found them gone with no information about their whereabouts available. Upon being informed of their placement at the agency and of visitation procedures at a later date, he did in fact see the girls at agency facilities on a sometime regular and sometime sporadic basis until his last date of visitation, May 16, 1971. It is undisputed, though subject to contradictory explanations, that as late as August 9, 1972, the natural father was at the agency with his then paramour to visit her children in placement and that he did not see his own.

Both children were reunited with the natural mother on December 6, 1972. They were voluntarily returned to agency care by her on April 9, 1973 when she found herself incapable of caring for them and she has not visited them since that date. In the interim, the father was not heard from by the agency until a 'diligent search' (legal condition precedent for freeing the children for adoption) located him and he met with the social worker on January 20, 1974 to discuss possible resumption of his role as father or freeing the children for adoption by the excellent foster parents with whom the girls had been living since their return to placement in 1973. Another meeting took place on February 12, 1974 at which time he was advised that in view of his continued absence and the desire of the foster parents to adopt the girls, visitation would be denied in the future and litigation commenced to free the girls for adoption. Proceedings were in fact filed toward this end on April 28, 1975.

In the interim, the marital status of the parties had been dissolved by a decree of the Supreme Court, County of Nassau, entered on October 25, 1972 in favor of the father against the mother on an oral counterclaim framed in abandonment and adultery, with the issue of custody of all the children referred to the Family Court to hear and determine. Neither party instituted proceedings in this court for custody pursuant to this referral.

Before considering the application of applicable statute and case law, it is here germane to note that in the course of proceedings, the Court, on consent of all parties on record, met with and interviewed separately the foster parents; the girls; Wayne michael, brought from his upstate home; the agency workers; the natural father; and the natural mother. Considering how unsettled their status has been and the length and intricacy of these proceedings, the girls are intelligent, alert, beautifully cared for, happy and secure in the home of their foster parents. They are emphatic about their desire to remain there. The girls are aware of the possible import and/or effect of these proceedings, of their own status and of their natural family. In point of fact, to settle all doubts in their minds and in the contesting natural father's, one visit was in fact arranged for him during the course of this litigation on consent of all parties and the child care worker, which was approved by the court. This visit went well but changed neither the girls' desire to remain where they are nor the father's resolve in contesting these proceedings. Additionally, Wayne Michael was interviewed by the court. In contrast to his sisters' resolve not to see their father or their brother, he looks forward either to full reunion with them or at least to a meaningful relationship. In point of fact, a shattering scene took place outside the court's chambers where Wayne Michael who had anticipated a reunion with his sisters, was accidentally brought into contact with them and ignored.

This information assumes relevance at this point because although not part of the prima facie case made relevant by statute, it involves the well being not only of an innocent rejected sibling, but also the best interests of the girls whose future we are called upon to consider.

TERMINATION OF PARENTAL RIGHTS:

A--THE FICTIONS:

In the spectrum of those relationships coming before this court, the one surrounded by the most taboos and secrecy is that of adopting parent and child. We give effect legislatively to an almost ritual secrecy surrounding both the natural and adoptive families and perpetuate a legal fiction that 'termination of a parental rights' negates the very existence of a biological family. In reality, this phrase is nothing more than a label for the simple legal proposition that consent of a biological parent so adjudicated is not legally required for adoption (DRL § 111). As the latest thinking bears out, the reality of his natural family is uppermost in the mind of the adoptive child and his functioning as a person at peace with himself cannot go forward until his questions are answered and his psychological universe in order. In this age of increased enlightenment, the law is being geared in the direction of allowing sufficient factual matter about the lives of the parties to see the light of day toward the end that all concerned may learn to deal with these realities from the vantage point of their own insights. This trend is illustrated by legislation contemplating face to face confrontation between biological and foster parents (See, so-called Scarpetta Laws, Social Services Law §§ 383(3); 384(3); 392(4); 400 and discussion in Matter of Ida Denise W., 77 Misc.2d 374, 355 N.Y.S.2d 245 and in decisions illustrated by Matter of Raana Beth N., 78 Misc.2d 105, 355 N.Y.S.2d 956, in which visitation was granted a biological parent in the very same order which 'terminated' parental rights). Moreover, the veil of secrecy usually maintained in adoption proceedings has been lifted when its purpose has been found to bear no relevance to proceedings before the court (See Matter of Raana Beth N., supra.). It is therefore possible to discern a new trend recognizing that termination proceedings as a prelude to adoption are simply a legal way of assuring a child's psychological parents that no one will take him away.

These thoughts are necessary at this juncture because we are here faced with the reality of two girls who know the facts surrounding these proceedings; who have physically seen their biological parents as recently as during the pendency of this trial; who have as a reality a brother whose overwhelming motivation in life is a relationship with them and who are entitled to a relationship with him despite their immature fantasy that rejection of him will further their adoption by the foster parents. We are also confronted with the reality of prospective adoptive parents who know the biological parents and vice versa. In short, faced with these realities which are more or less unique, we must interpolate and innovate while staying within the letter and spirit of the law.

B--HISTORY OF TERMINATION PROCEEDINGS:

The history of termination proceedings, or to be more accurate, judicially freeing a child for adoption, may someday be characterized as the road from Matter of Bistany, 239 N.Y. 19, 145 N.E. 70 to Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277. These two decisions of the...