Roxann Joyce M., Matter of
| Decision Date | 19 May 1980 |
| Parties | In the Matter of ROXANN JOYCE M. (anonymous). CATHOLIC GUARDIAN SOCIETY OF the DIOCESE OF BROOKLYN, INCORPORATED, Appellant, v. NICHOLAS M. (anonymous) et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Hurley, Kearney & Lane, Brooklyn (Richard J. Cea, Kevin M. Kearney, John H. Kearney and Denis M. Hurley, Brooklyn, of counsel), for appellant.
Steven M. Bernstein, Community Action for Legal Services, Inc., Brooklyn (Mark Hus, Brooklyn, of counsel, Louise Gruner Gans, New York City, on brief), for respondent Nicholas M. (Anonymous).
William E. Hellerstein, New York City (Wendy Sue Lauring, Brooklyn, of counsel, Carol Gerstman, Brooklyn, trial counsel), Law Guardian.
Before GULOTTA, J. P., and COHALAN, MARGETT and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
In a permanent neglect proceeding pursuant to article 6 of the Family Court Act, the petitioner, Catholic Guardian Society of the Diocese of Brooklyn, Inc., appeals from an order of the Family Court, Kings County, dated February 2, 1979, which, after a hearing, dismissed the petition on the ground that the respondent father had been denied his due process rights when he was not informed that his parental rights could be severed if he failed to plan for the future of the child (see Social Services Law, § 384-b, subd. 7, par. (a)).
Order reversed, on the law and the facts, without costs or disbursements, the child is adjudicated to be permanently neglected, and the matter is remitted to the Family Court, Kings County, for an immediate dispositional hearing pursuant to section 631 of the Family Court Act.
The record establishes that the parents had sufficient notice of their statutory obligations to satisfy their due process rights. The trial court's concern with that issue is commendable, but misplaced. We therefore reach the issue of whether the Catholic Guardian Society of the Diocese of Brooklyn (hereafter the agency) established, by a fair preponderance of the competent, material evidence (see Family Ct. Act, §§ 622, 624), that there was a failure of the parents for more than one year to maintain contact with or plan for the future of the child, and that the agency made diligent efforts to encourage and strengthen the parental relationship, except when such efforts would have been detrimental to the best interests of the child (see Social Services Law, § 384-b, subd. 7, par. (a)). We conclude that on the record the agency proved its case.
Roxann was born on March 14, 1968 and was placed by her parents in foster care less than two months later, in May, 1968. Three older siblings (two sisters and a brother) were also placed in foster care about that time, but not with Roxann. A petition brought by the parents in 1973 to have custody of the children restored to them was denied. The travail afflicting this family was noted by the court that denied the petition. Among other factors, the mother experienced severe disturbances requiring hospitalization and the three older siblings are mentally retarded. The trial court concluded that the parents at that time were unable to care for the children and that their behavior was detrimental to the children's well-being (see Matter of Nathan M. v. Catholic Guardian Soc., 76 Misc.2d 1003, 352 N.Y.S.2d, 319).
The agency interpreted this to mean, according to the supervisor who testified in the instant proceeding, that visitation with the natural parents should not be promoted.
In 1976 the father again petitioned for the return of the children. The petition was evidently dismissed, upon consent, when the agency agreed to reinstitute visitation. The father told the supervisor that he was now divorced from the children's mother, so that the problems created by her in the household no longer existed. "Family visiting" at the agency was arranged in 1976. In early 1977 the supervisor visited the father's home and spoke with a woman whom the father proposed as a homemaker. A month later, the supervisor discussed with the father the fact that a second homemaker had been proposed by the father. The father's response was that he would ultimately choose which of the two women he would marry. The supervisor interviewed the second woman.
The natural mother told the supervisor that she did not want Roxann adopted; she wanted her to remain in foster care.
The resumed visitation was not successful so far as Roxann was concerned. She refused to visit and kept only two appointments in 1977. The agency supervisor purposed that the father talk to the agency psychiatrist to devise a way to bridge the estrangement. This the father declined to...
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Joyner by Lowry v. Dumpson, 707
... ... 816, 824 & n. 9, 97 S.Ct. 2094, 2099 & n. 9, 53 L.Ed.2d 14 (1977); In re Roxann Joyce M., 99 Misc.2d 390, 392-93, 417 N.Y.S.2d 396, 398 (Fam.Ct.1979), rev'd on other grounds, 75 ... Consequently, we hold that on this record as a matter of law the New York foster care statutes do not violate the Rehabilitation Act ... II ... ...
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Marilyn H., Matter of
... ... to the parent of the possibility of a permanent neglect proceeding, prior to the acts of neglect thereafter alleged against him (see Matter of Roxann, 75 A.D.2d 872, 428 N.Y.S.2d 264 (2nd Dept.)). However, even in a criminal case due process does not require such advance actual notice, but only ... ...
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John AA, Matter of
...from appellants and the strong psychological ties that the children have formed with their foster parents (see Matter of Roxann Joyce M., 75 A.D.2d 872, 873, 428 N.Y.S.2d 264). The formulation of such a plan calls for "a degree of prescience and insight that some people lack--especially the......
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Matter of Hannah D.
... ... notice of her obligations to maintain contact and plan for her children's future to satisfy due process requirements (see, Matter of Roxann Joyce M., 75 A.D.2d 872) ... We conclude, however, that the record of the dispositional hearing fails to establish that termination of respondent's ... ...