Raymond M, In re

• Decision Date: 20 January 1975
• Parties: In the Matter of RAYMOND M * a child under eighteen years of age alleged to be permanently neglected. Family Court, St. Lawrence County
• Court: New York City Court

Page 321

364 N.Y.S.2d 321

81 Misc.2d 70

In the Matter of RAYMOND M ^* a child under

eighteen years of age alleged to be permanently neglected.

Family Court, St. Lawrence County.

Jan. 20, 1975.

Ethan Phillips, Canton, for petitioner, St. Lawrence County Dept. of Social Services

Charles E. Palm, Star Lake, for respondent.

Verner M. Ingram, Jr., Potsdam, law guardian.

G. elihu Chase, Massena, for foster parents.

DECISION

J. GEORGE FOLLETT, Judge.

This is a proceeding for permanent termination of parental rights. The case concerns a chid born February 13, 1972. The Mother was just past sixteen years of age when the child was born. The child was placed in foster care by order of this Court in a neglect proceeding when the child was less than six weeks old. He has now lived in the same foster home for over two and a half years. The mother had not been married at the time of birth, and paternity has never been established.

Following placement, the mother continued an involvement with a young man whom she married in the fall of 1972. Thereafter, the young couple moved repeatedly, not staying in one place more than a few months. Her husband has been almost continuously unemployed. For the most part, they have been financially dependent upon their semi-monthly public assistance checks.

With transportation arranged for and provided by the agency, the mother visited sporadically at first, then on a fairly regular basis. However, the testimony reveals that there was minimal interaction between the mother and the child on the occasion of these visits. Furthermore, the child became totally totally integrated into the foster family and has not developed any meaningful ties with his natural mother. During the two and a half years the child has been in placement, the stepfather has seen the child on only one occasion.

The Petitioner requests permanent termination of parental rights pursuant to Article 6 of the Family Court Act. The Petitioner alleges compliance with Sections 611 and 614 of the Act in that it has made diligent efforts to encourage and strengthen the parental relationship; and, in the alternative, that diligent efforts would be detrimental to the moral and temporal welfare of the child.

The diligent efforts requirement imposed by the statute must be gauged on a case by case basis. ¹ Efforts at rehabilitation should be designed to remedy the particular deficiencies in parental capabilities which are found to exist in any given case. Efforts should be carried out according to a plan for achieving realistic short term and long term goals. Diagnostic workups of the adults and the child should be obtained when necessary to aid in the development of the plan. Planning for the return of the child should begin when the child is placed in foster care. Therefore, of necessity, the planning should involve both the foster parents and the natural parent as well as the child if of sufficient age. Their combined imput in and acceptance of the plan is essential to its success.

Any plan will undoubtedly require modification and updating from time to time as goals are achieved or not attained, or as circumstances change. Also, goals may prove impractical or unrealistic thereby requiring development of alternative goals. Any updating and modification of the plan must also involve the parent and foster parent as well as the child when appropriate.

It may be proper in a given case for the agency to shift responsibility for achievement of planned goals to the natural parent with little or no outside help or interference from the agency caseworker. Where this is done, the natural parent should have a clear understanding of the goals which they must attain as well as accept the timetable agreed upon for their attainment.

However, in other cases, considerable encouragement and supportive assistance from the caseworker and other service agencies using appropriate caseworker techniques may be required to encourage and strengthen the parental relationship. Thus in most instances an open, friendly and cooperative relationship should exist between the caseworker, the parent and foster parent characterized by sufficiently frequent visits to assist and be assured that goals are being achieved.

Applying these principles to the case at hand, it is clear that the agency has failed to make the diligent efforts contemplated by the statute. No meaningful plan of encouraging and strengthening the parental relationship was developed at the time the child was taken into foster care. There was no apparent effort made to involve the foster parents and the natural mother let alone the stepfather in the formulation of a plan for strengthening the parental relationship. In fact, the case record discloses that the first meaningful contact between the mother and the caseworker did not occur until nearly six months after the child had been lodged in foster care. The second contact did not occur until more than three months after the first. At that time, the center of discussion was the reported pregnancy of the Respondent mother. No supportive services were offered. Instead, a month later the Respondent mother was given an ultimatum that she could not visit her child in foster care, the subject of this proceeding, until after she displayed a physician's statement reporting whether or not she was pregnant.

Admittedly, this young woman, during the period of time that the rehabilitative efforts should have been undertaken, acted irresponsibly and was grossly uncooperative with the caseworkers assigned to her case. However, the evidence indicates that too frequently caseworker contacts resulted in confrontation in which threat and coercion were used to obtain compliance with imposed standards, standards which were largely unrelated to the mother's lack of stability and her deficiencies in parental skills. The actions of the agency fall far short of the statutory standard of diligent efforts required by the facts of this case.

However, the agency urges that the record justifies a finding that diligent efforts should be excused for the reason that such efforts would be 'detrimental to the moral and temporal welfare of the child.' ² This language of Sections 611 and 614 of the Family Court Act was added by Chapter 901 of the Laws of 1971. The amendment was recently discussed by this Court in the case of Mtr. of Wood. ³ There it was held that the agency should be excused from its diligent efforts obligation where there was no realistic hope of improving the mother's functioning to the level where she could take adequate care of her children then in foster care.

However, the evidence in this case does not support the same conclusion. The mother, although from a deprived background, will undoubtedly mature and might well have benefitted substantially from appropriately planned casework services. Indeed, she has followed the caseworker's recommendation by maintaining contact with her child. Although she has failed to stabilize her life, it must be remembered that she is still only nineteen and, if given sufficient help, may in time become a responsible mother and adult.

Therefore, the issue which now must be answered is: Do the facts of this case, apart from the efforts or lack of efforts of the agency in the past warrant a finding At this time that 'efforts would be detrimental to the moral and temporal welfare of the child.' It is necessary to look further into the legislative intent underlying the 1971 amendment in order to determine this issue.

The bill which resulted in Chapter 901 of the laws of 1971 was introduced at the request of the New York State Department of Social Services. The legislative memorandum supporting the bill notes that 'There are times, however, when efforts to strengthen the parental relationship will be detrimental to the best interest of the child and result in emotional damage to such a child.' ⁴ The memorandum then takes note of a Family Court case, Mtr. of Clear, ⁵ decided shortly theretofore. The reference to Mtr. of Clea is significant. In that case Judge Polier determined that the diligent effort requirement had not been met and, in fact, could not be met for the reason that the agency had exerted its influence to encourage surrender for adoption rather than to reunite mother and child. Upon appeal, the Appellate Division by a divided court reversed and remanded with two judges holding that 'It was, therefore, error for the Family Court to assign such decisive weight to that factor (efforts at surrender) and to consider itself thereby restricted by the statute under which the court could terminate parental rights.' One judge concurring in a separate opinion concluded that 'A parent who has failed in her obligation to maintain, care for, protect, and plan for the future well-being of her child, has forfeited her parental rights. The welfare of the child is still the primary and paramount concern of the court.' The two remaining judges dissented and held that under the statute, by reason of its 'restrictive nature,' . . . 'it is not enough to establish that the best interests of the child may be furthered by the permanent termination of the respondent's legal custody of the child.'

Faced with this dilemma, Judge Polier, on remand in November, 1970, noted that the trial court was relieved from a strict construction of the statute by the Appellate Division majority opinion and found 'On the preponderance of the evidence, the agency did make efforts to encourage a relationship with the child, limited as it was by a conviction that such efforts would not succeed.'

The amendment here under consideration was adopted at the next session of the state legislature. It appears that the amendment was intended to resolve the dilemma presented in Mtr. of Clear by focusing attention upon the welfare of the child as distinct from the claims of competing adults. It constitutes one more step which the legislature has...