Sanjivini K., Matter of

• Decision Date: 26 June 1978
• Citation: 407 N.Y.S.2d 185,63 A.D.2d 1021
• Parties: In the Matter of SANJIVINI K. (anonymous). ROCKLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent, v. USHA K. (anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 185

407 N.Y.S.2d 185

63 A.D.2d 1021

In the Matter of SANJIVINI K. (anonymous).

ROCKLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent, v. USHA K. (anonymous), Appellant.

Supreme Court, Appellate Division, Second Department.

June 26, 1978.

Flory M. Loonin, Haverstraw, for appellant.

Marc L. Parris, County Atty., New City (John B. Franklin, New City, of counsel), for respondent.

Louis J. Artale, Spring Valley, Law Guardian.

Before MOLLEN, P. J., and MARGETT, HAWKINS, SUOZZI and Gulotta, JJ.

MEMORANDUM BY THE COURT.

In a permanent neglect proceeding pursuant to article 6 (part 1) of the Family Court Act, Usha K., the natural mother of the subject infant, Sanjivini K., appeals (by permission) from an order of the Family Court, Rockland County, dated March 1, 1976, which, after a fact-finding hearing, adjudged that the infant is a permanently neglected child and set the matter down for a dispositional hearing.

On the court's own motion, the notice of appeal is deemed amended so as to show that it is also from an order of disposition of the same court, dated May 28, 1976, which, after a hearing, Inter alia, directed that "custody of said child * * * is awarded to Department of Social Services * * * (upon the following terms and conditions: Department of Social Services is to immediately make arrangements for adoption)" (see CPLR 5520, subd. (c)).

Orders affirmed, without costs or disbursements.

We find present "extraordinary circumstances" requiring affirmance (see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277; see, also, Matter of Sanjivini K., 40 N.Y.2d 1025, 391 N.Y.S.2d 535, 359 N.E.2d 1330, revg. 53 A.D.2d 863, 385 N.Y.S.2d 350).

As a result of Usha's travails and her inability to obtain a job in Rockland County, the uncertainty of her immigration status and her inability to develop a more intimate relationship with her daughter, as well as the fact that the child has been with foster parents since her birth (May 2, 1966) and for the past 10 years has lived in a stable, constructive environment, with the result that she is a healthy and well adjusted child, it would now be extremely traumatic to rip the child from that environment and also subject her to a possible return to India, a prospect which appellant herself once thought not to be in the child's best interest. (Appellant sees no risk now because the child is older.)

The dissenters would remand this matter for a so-called "Bennett -type" hearing. We would merely note that presently there is a complete record before this court containing a plethora of facts pertaining to the conduct and activities of the natural mother and the impact of the past 12 years upon the child. Clearly, the record establishes that the best interests of the child would be served by affirmance.

Viewed from the standpoint of the impact on the child, a De facto permanent neglect must be deemed to have been established.

MOLLEN, P. J., and MARGETT and HAWKINS, JJ., concur.

SUOZZI, J., dissents and votes to reverse the orders, etc., with the following memorandum, in which GULOTTA, J., concurs:

I would (1) reverse the orders appealed from, (2) convert the permanent neglect proceeding to one to determine the best interests of the child pursuant to Matter of Sanjivini, K., 40 N.Y.2d 1025, 1026-1027, 391 N.Y.S.2d 535, 536-537, 359 N.E.2d 1330, 1331-1332, revg. 53 A.D.2d 863, 385 N.Y.S.2d 350 and Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277, and (3) remand the proceeding to the Family Court for a full hearing and withhold a final determination as to the status of the child and the respective rights and obligations of the natural mother and foster parents pending the determination to be made after the new hearing. In the meantime, visitation between the child and the natural mother should be continued if it has not heretofore been discontinued, or resumed if it has been discontinued.

The Family Court found that the child was permanently neglected as defined by section 611 of the Family Court Act because of the mother's failure to plan for the child's future, notwithstanding the diligent efforts of the Department of Social Services to "encourage * * * the parental relationship" with this child, as a result of which this child has been living for 10 years with foster parents whom she now considers her parents.

As in the case of a finding that a natural parent has surrendered or abandoned her child, or is an unfit parent, this finding deprives the parent of custody, frees the child for adoption, terminates the parent's right to veto an adoption and to visit with the child and extinguishes all other rights and obligations of the parent.

The majority, in affirming the orders, has reached the same result as the Family Court, but has done so on an entirely different ground, which implicitly rejects and reverses the factual finding of permanent neglect made by the Family Court pursuant to section 611. I agree with my colleagues in the majority in their rejection and reversal of this finding, since there is no factual basis for it.

The records of all the prior proceedings since 1966 disclose that except for the finding of permanent neglect herein, no similar finding has been made during the 12 years encompassed by this litigation. In fact, the Family Court (STOLARIK, J.), in January, 1974, in a similar proceeding, dismissed the proceeding for lack of evidence. That order, which was not appealed and, therefore, was final and conclusive, exonerated this parent of any fault over the eight-year period which antedated that order. There is no basis for such a finding during the period subsequent to that order, because the separation of parent and child over the past four years is directly attributable to the less than expeditious pace with which the subsequent proceedings have progressed through that court and the appellate courts since January, 1974. In the foster care review proceeding which immediately preceded this neglect proceeding, this court absolved the parent of any fault, finding that the "six-month gap in visitation in 1974 * * * was caused only by misunderstandings generated by Usha's (the natural mother's) strong desire to re-establish a full and normal relationship with her child" (Matter of Sanjivini K., 53 A.D.2d at p. 865, 385 N.Y.S.2d at p. 352). The proceeding which resulted in the orders appealed from, was commenced 12 days after the Family Court order involved in the earlier appeal was made and, therefore, calls for the evaluation of substantially the same conduct of the parent as was appraised so favorably by this court in that earlier appeal. We stated (p. 865, 385 N.Y.S.2d p. 352):

"The record certainly does not establish that Usha abandoned her child or is an unfit mother. To the contrary, under the most trying circumstances, Usha manifested qualities of courage, industry, persistence and intelligence, and those characteristics cannot be turned against her to indefinitely deprive her of her child."

Having rejected the Family Court's factual finding of permanent neglect (which is the Sine qua non of the permanent neglect order presently on appeal), and absent any other findings of fact to review herein, the reversal of the orders appealed from is inevitable.

The majority, however, purportedly relying on Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277, Supra and Matter of Sanjivini K., 40 N.Y.2d 1025, 391 N.Y.S.2d 535, 359 N.E.2d 1330, revg. 53 A.D.2d 863, 385 N.Y.S.2d 350, Supra, the latter involving the same parties in a foster care review proceeding, does not dismiss the permanent neglect proceeding but, instead, affirms the orders of the Family Court on a finding of "De facto permanent neglect" arising out of the extraordinary circumstances created by the child's long-term placement with foster parents (the child had been in foster care for 10 years as of the date of the orders appealed from, and about 12 years at the present time). I disagree with my colleagues in the majority because they are enunciating a new principle of law based on a newly invented concept of "De facto permanent neglect" for which there is no statutory authority or decisional precedent.

The majority, in effect, proclaims that the presence of extraordinary circumstances arising out of this child's long-term placement in foster care constitutes "De facto permanent neglect" which, as a matter of law, authorizes and mandates a denial of custody to the natural parent and allows this child to be adopted without the mother's consent, effectively extinguishing all of the natural parent's rights. The net result of the majority's action is a conclusive determination of the status of the child and the rights and obligations of the respective parties to this proceeding. To reach this result, the majority purports to decide the "best interests of the child" without the benefit of a Bennett -type hearing, as required by Bennett and directed by the Court of Appeals in Matter of Sanjivini K. In addition to usurping the original jurisdiction of the Family Court, it does so on the basis of a record which (1) is a replica of the record in Matter of Sanjivini K., which the Court of Appeals branded as insufficient for the determination of such crucial issues, and (2) was made before the Bennett standards were enunciated. At the same time the majority extinguishes all of this natural parent's rights as to custody, visitation and adoption in the absence of any finding of unfitness, surrender, abandonment or permanent neglect which, as the Court of Appeals reiterated in Bennett, was a prerequisite for any such drastic action (Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 823, 356 N.E.2d 277, 280, Supra ).

I submit that the majority is misconstruing the principles of Bennett and misreading the Court of Appeals' conclusion in Matter of Sanjivini K., 40 N.Y.2d at p. 1026, ...