Sanjivini K., Matter of

• Decision Date: 06 July 1976
• Citation: 53 A.D.2d 863,385 N.Y.S.2d 350
• Parties: In the Matter of SANJIVINI K. (anonymous), etc. ROCKLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent, v. USHA K. (anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 350

385 N.Y.S.2d 350

53 A.D.2d 863

In the Matter of SANJIVINI K. (anonymous), etc.

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

Supreme Court, Appellate Division, Second Department.

July 6, 1976.

Alan M. Simon, Spring Valley (Flory M. Loonin, Haverstraw, on the brief), for appellant.

Diana W. Rivet, County Atty., New City (John B. Franklin, New City, of counsel), for respondent.

Louis J. Artale, Spring Valley (Ivan Blecher, Spring Valley, on the brief), Law Guardian.

Before LATHAM, Acting P.J., and COHALAN, RABIN, SHAPIRO and TITONE, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to section 392 of the Social Services Law to review the foster care status of the subject infant Sanjivini K. (Sandy), the natural mother, Usha K., appeals from an order of the Family Court, Rockland County, dated February 14, 1975, which, after a hearing, Inter alia, directed that (1) the foster care status be continued, (2) the Commissioner of the Department of Social Services institute a proceeding to legally free the infant for adoption and, upon failure of his department to do so within 30 days after entry of the order, gave permission to the foster parents with whom the infant resides to institute such a proceeding and (3) unless a proceeding to free the infant for adoption was commenced by the termination of 'said three-month period', the placement of the infant should terminate forthwith and the child shall be surrendered immediately by the commissioner and the foster parents to the natural mother, and that all rights and responsibilities of the department and the foster parents 'shall wholly cease'. (We note that the appeal by Usha K. from a prior order of the same court, dated June 26, 1974, was dismissed by order of this court dated December 4, 1975, pursuant to section 670.4 (subd. (a) par. (5)) of the rules of this court, 22 NYCRR.)

Order reversed, on the law and the facts, without costs or disbursements, and it is directed that the subject infant, Sanjivini K., be returned to her natural mother, appellant Usha K., by August 31, 1976.

The determination of whether the foster care status should have been continued hinged upon whether it was 'in accordance with the best interest of the child' (see Social Services Law, § 392, subd. 7). The Department of Social Services' file, which was placed in evidence at the hearing held on the subject application in November, 1974, contains an intake history and a subsequent department diary of the circumstances under which Usha K. came to this country and what befell her. We learn therefrom, and from the other papers in the record on this appeal, that Usha was the only child of an Indian couple and was raised in a small village near Bombay. Her father, a bank auditor, died when Usha was 12 years old. Usha was then raised by her mother. There was no schooling or employment for children in Usha's village and, therefore, at the age of 13, she went to Bombay to live with a distant relative and to make a living. She took secretarial training and, at the age of 14, was working at a full-time day job and going to school at night. She did this so that she and her mother could save enough money for Usha to come to this country to get a college education. Usha came to the United States in January, 1962 and obtained a student visa in the hope of getting an education in the field of nutrition. A department case note of March 31, 1966 states that 'Usha has been in the US studying since January 1962 * * *. She has been in 3 colleges altogether'. In 1964 Usha's mother died in India. The department note of March 31, 1966 also states that 'Usha is an orphan. * * * She has no siblings or close relatives. She seems to be completely alone.' DP The department files report that Usha became pregnant by a young Indian student who was supposed to properly marry her, but who abandoned her during pregnancy, and that:

'Usha does not want to give her baby for adoption. However, she does want temporary plans made for this baby for about 2 years, so she can complete her college education and then be able to care for and support the baby herself. Usha's real and only interest is in this 2 year temporary foster care for her baby.'

Usha gave birth to Sandy on May 2, 1966 in a hospital in Rockland County and on May 21, 1966, voluntarily placed the infant with the Department of Social Services for temporary foster care. The department immediately placed the child in a foster home in the care of Mr. and Mrs. James B., where the child remained until late 1968. She was then placed in a foster home in the care of Mr. and Mrs. Robert C. of Nanuet, Rockland County, where the child has resided to date. That family also has two adopted daughters. It is quite clear that the environment in that home is warm, constructive and wholesome, that Sandy has been happy and is thriving there, and that she would even like to be adopted by the foster parents.

In the course of Usha's studies, her student visa expired. In May, 1967 she was facing immediate deportation; the Immigration Service sought to have the child accompany her. The Department of Social Services was advised by the Immigration Service that the welfare of the child on India was not a matter for the Immigration Service's concern and that Usha could not remain in this country even though her child was a citizen by virtue of her having been born in the United States.

The Department of Social Services then procured Legal Aid Society counsel to aid Usha to legalize her status. However, the department was also concerned that the child not be deported with Usha should Usha's legal...