Roxann Joyce M, Matter of

• Decision Date: 27 April 1979
• Parties: In the Matter of ROXANN JOYCE M, a child under the age of eighteen years alleged to be a permanently neglected child.
• Court: New York Family Court

Page 396

417 N.Y.S.2d 396

99 Misc.2d 390

In the Matter of ROXANN JOYCE M, a child under the age of eighteen years alleged to be a permanently neglected child.

Family Court, Kings County.

April 27, 1979.

Hurley, Kearney & Lane, Brooklyn, for petitioner; Richard J. Cea, Brooklyn, of counsel.

Community Action for Legal Services by Mark Hus, Brooklyn, of counsel, for respondent Nicholas M.

Edward G. Koppell, New York City, for respondent Claire M.

The Legal Aid Society by Carol Gerstman, Brooklyn, of counsel, for Roxann Joyce M.

DECISION

JEROME M. BECKER, Judge:

This decision supplements a decision dictated into the record on January 10, 1979, at the conclusion of a fact-finding hearing in the above-captioned matter.

Adoption proceedings, and proceedings to free children for adoption, were unknown at common law (Matter of Malpica-Orsini, 36 N.Y.2d 568, 570, 370 N.Y.S.2d 511, 513, 331 N.E.2d 486, 487; Matter of Anonymous, 40 N.Y.2d 96, 101, 386 N.Y.S.2d 59, 62, 351 N.E.2d 707, 710). These proceedings exist solely by statute. Statutes in derogation of common law must be strictly construed (N.Y. Statutes, § 311 (McKinney's 1971)).

Against this background, the court will now proceed to examine the issues presented in this case.

On November 23, 1977, the petitioner instituted a guardianship and custody proceeding pursuant to section 384-b of the Social Services Law alleging failure to plan for the future of Roxann M by the respondent-parents, Claire M and Nicholas M (see Social Services Law, § 384-b, subd. 7, par. (a)).

Roxann, born March 14, 1968, was voluntarily placed by the natural parents with the Commissioner of Social Services on May 8, 1968. Most foster care placements are voluntary. They occur when physical or mental illness, economic problems or other family crises make it impossible for the natural parents to provide a stable home life for their children from some limited period. Resort to placement is almost compelled when it is not possible in such circumstances to place the child with a relative or friend or to pay for the services of a homemaker or a boarding school. Inability to care for Roxann compelled the M's to resort to placement. At the time, however, they did not envisage that a "limited time" would be Almost eleven years.

Roxann, almost eleven years old, is a bright, articulate youngster who exhibits a maturity far beyond her age. Since infancy she has resided with the same foster family, and her foster parents wish to adopt her.

Voluntary placement requires the signing of a written agreement by the natural parent or guardian, transferring the care and custody of the child to an authorized child welfare agency. ("Authorized agency" is defined in Social Services Law, § 371(10).) By statute the terms of such agreements are open to negotiation (Social Services Law, § 384-a, subd. 2, par. (a)). However, more frequently the agencies require execution of standardized forms. Herein, respondents signed a standardized form (see Appendix A).

Before reaching the question of whether or not the respondent-parents failed to substantially plan for the future of their child, a more fundamental question concerning procedural due process must be resolved. The question is: Were these respondent-parents given notice of their duty to plan for the future of their child and the consequences should they fail to do so i. e., termination of their parental rights?

Before proceeding to a resolution of that issue, a brief historical analysis of permanent neglect proceedings is warranted.

HISTORICAL ANALYSIS

Prior to the 1973 amendment to section 614 of the Family Court Act (L.1973, ch. 870), an adjudication of permanent neglect could not be made unless the petitioner proved a failure of the parents both to "maintain contact" And to "plan for the future of the child." Arguably, parental rights were safeguarded by the definiteness of the "maintain contact" requirement which afforded parents sufficient notice of their obligations in order to avoid termination of parental rights. However, the 1973 amendment to the statute substituted "or" for "and." This change from the conjunctive to the disjunctive, as interpreted by the Court of Appeals in Matter of Orlando F., 40 N.Y.2d 103, 386 N.Y.S.2d 64, 351 N.E.2d 711, permits an adjudication solely on the basis of failure to plan, irrespective of the qualitative and quantitative substantiality of continued contacts with the child by the

parents. Thus the duty to plan was made a separate and distinct obligation.

OPINION

Too often custodial agencies create unintentional legal traps for parents either by acts of commission or omission. Seemingly, an act of omission is the root of the problem in the instant case.

In part, these traps arise because the parties involved in a voluntary placement are not dealing with one another on an equal basis. "The parent is . . . saddled with problems: economic, physical, sociological, psychiatric, or any combin(ation) thereof. The agency in contrast is vested with expertise, experience, capital, manpower and prestige. Agency efforts correlative to their superiority are obligatory." (Matter of Sydney, 84 Misc.2d 932, 934, 377 N.Y.S.2d 908, 909). Unless they are told, how many parents voluntarily placing their child are aware that if they do not adequately plan for the return of the child they stand to lose their invaluable parental rights forever? Very few, I dare say.

Yet it is settled law that the Fourteenth Amendment requires that a defendant charged with a crime be read his Miranda rights. By analogy, a parent who places a child should be entitled to similar safeguards. That parent, too, should be read his or her visitation and planning obligations regarding the child. This oral recitation and explanation, which the Court designates "Roxann Rights," should be given by a competent representative of the agency to the parent. The recitation should be given in English and a second language when necessary. After the reading of the "Roxann Rights," the parent should be carefully questioned to insure that he or she understands his or her duties and obligations.

NOTICE

The respondent-father ^* was not given notice of a statutory duty to plan for the future of his child (Family Court Act, § 614 and Social Services Law, § 384-b, subd. 7, par. (a)). This constituted an abridgement of his due process rights.

There is little doubt that the due process clause of the Fourteenth Amendment is offended by the failure of the agency to advise the respondent of his duty to plan for the future of his child and the consequences of his failure to do so. Exacting procedural safeguards are a necessity when parental rights are sought to be interfered with, as those rights have long been recognized and fervently guarded (Matter of Cardinal (Munyan), 30 A.D.2d 444, 294 N.Y.S.2d 180; Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)). Moreover, notice requirements guaranteed by the Fourteenth Amendment have been extended to parental termination proceedings (See Alsager v. District Court of Polk County, Iowa, D.C., 406 F.Supp. 10 (1975)).

A cursory review of the W-864 form signed by the parents reveals that only the duty to "visit the child" and the consequences should the parents fail to do so is mentioned. Nowhere in the form, executed when the law was more stringent and required both a failure to maintain contact and a failure to plan before termination, is there mention of the duty to plan. No explanation was given about why the more obvious and more easily understood requirement (maintain contact) is contained in the agreement while the more vague requirement (plan for the future of the child) is omitted. The silence of the agreement on this issue is ringing and condemning. Seemingly, a parent voluntarily placing a child would realize that he or she must "visit the child", but he or she may not realize that he or she must formulate a plan for the future of the child.

As composed, the subject agreement presents difficulties for one unfamiliar with "legalese." The intent of the printed agreement should be to apprise the parent of his or her responsibilities regarding the child, as well as the responsibilities of the agency. It need not be an instrument fraught with legal technicalities and terminology foreign to parents. Rather, it should be an easily understood instrument containing lay terms (Social Services Law, § 384-a, subd. 2, par. (c)).

SOCIAL SERVICES LAW, § 384-a

Recognizing the pitfalls inherent in voluntary placements, the legislature enacted section 384-a of the Social Services Law (L.1975, ch. 710). Shortly thereafter, section 384-a was amended to provide that in all voluntary placements parental rights and obligations be enumerated at the time of placement, and that these rights could not later be curtailed without court order (L.1976, ch. 669). The memorandum of Assemblyman Gottfried offers some insight into the legislative intent of the amendment. Commenting on foster care placements he noted, Inter alia :

This bill attempts to correct this situation (long-term foster care) in two ways: first by amending section 384 of the Social Services Law to stipulate that the instrument the parent signs when placing a child clarifies specific parental and agency responsibilities, particularly concerning visitation. . . .

It is essential that at the outset of a placement, when the family's interest and motivation to plan for the child are highest, that attention be given to assuring that alternatives to placement have been explored, and that if placement is needed the parent(s) of the child understand their responsibilities (including visiting, keeping the agency informed of their whereabouts, contributing to support where able.) . . . (New York State Legislative Annual-1976, pp. 262-262).

As Mr. Gottfried observed, "(I)t is important, since parental rights can be terminated that parents placing a child be fully...