Sheila G., Matter of

• Decision Date: 27 March 1984
• Citation: 462 N.E.2d 1139,61 N.Y.2d 368,474 N.Y.S.2d 421
• Parties: , 462 N.E.2d 1139 In the Matter of SHEILA G.
• Court: New York Court of Appeals Court of Appeals

Page 421

474 N.Y.S.2d 421

61 N.Y.2d 368, 462 N.E.2d 1139

In the Matter of SHEILA G.

Court of Appeals of New York.

March 27, 1984.

Barry R. Abbott, New York City, for appellant.

Frederick A.O. Schwarz, Jr., Corporation Counsel, New York City (Helen P. Brown and Michael Gage, New York City, of counsel), for Commissioner of Social Services, respondent.

Eleanor J. Ostrow, Gregory F. Hauser and Mary B. Seyferth, New York City, for foster parents, respondents.

Robert Payne Preuss and Lenore Gittis, New York City, Law Guardians for Sheila G.

OPINION OF THE COURT

COOKE, Chief Judge.

When a child-care agency has custody of a child and brings a proceeding to terminate parental rights on the ground of permanent neglect, it must affirmatively plead in detail and prove by clear and convincing evidence that it has fulfilled its statutory duty to exercise diligent efforts to strengthen the parent-child relationship and to reunite the family. Only when this duty has been deemed satisfied may a court consider and determine whether the parent has fulfilled his or her duties to maintain contact with and plan for the future of the child. In the instant proceeding, the petitioning agency presented nothing to establish that it had fulfilled its duty with respect to the subject child's natural father. Consequently, the Family Court properly dismissed the petition insofar as it alleged that the child had been permanently neglected by her father.

I

Sheila G. was born out of wedlock on August 29, 1977. Soon after her birth, she was placed voluntarily by her mother with the Department of Social Services for the City of New York. The department, in turn, authorized its agent, the Orphan Asylum Society of the City of Brooklyn, commonly known as the Brookwood Child Care Agency, to supervise the child's care. Sheila was placed in a foster home on September 29, 1977.

On November 7, 1977, Sheila's natural father, Dennis H., telephoned the Brookwood agency. He acknowledged paternity and requested a meeting with agency officials, which was held two weeks later. At that time, Dennis expressed his desire to visit and financially support the child.

Representatives of Brookwood informed Dennis that the mother had adamantly refused to permit Dennis access to the child. Dennis was instructed that, until such time as he formally established paternity, the agency would be bound by the mother's instructions and he would not be allowed to see Sheila. Brookwood provided Dennis with the name and the address of the Kings County Family Court.

Over the course of the next year, Dennis regularly contacted Brookwood, inquired about Sheila's well-being, and related his progress in establishing paternity. Dennis reported a number of visits he had made to the Family Court and discussions he had had with clerks and with a Judge. He also stated that he had been informed that the matter could go no further unless Sheila's mother participated in the process. The mother's failure to co-operate was cited by Dennis in explaining why he had been unable to establish paternity.

During this period, Brookwood's efforts centered on working with Sheila's mother toward reuniting the two. The mother's disinterest and her inability to appropriately care for the child or plan for the child's future soon became apparent to Brookwood. Consequently, it was determined in early 1978 that the agency plan would be to seek a surrender of Sheila for adoption and to place the child in a preadoptive home. In the event that a voluntary surrender by the natural parents was not forthcoming, Brookwood decided that it would initiate a proceeding to terminate the rights of the mother and father.

Sheila was placed in her current foster home in October, 1978, when she was 13 months old. Her foster parents were, at that time, informed by the Brookwood caseworker that the father's whereabouts were unknown and that Sheila would be available for adoption within six months' time.

The next month, the mother had a "change of heart" and decided that Dennis should be permitted access to the child. A biweekly visitation schedule was established by which Dennis, his mother, and his sister would visit Sheila at Brookwood's offices. For the next year and a half, until the instant proceeding was brought, Dennis and his family regularly attended the scheduled visits.

In January, 1979, Dennis came forward with a plan to take custody of Sheila. Dennis, an employee of the Post Office, had adequate income to support himself and Sheila. At that time, however, he lived at a YMCA. Dennis proposed to the Brookwood caseworker that he would move in with his mother who would take care of the child until he returned from work each day. Dennis reiterated this plan to the caseworker in April, 1979.

In July, 1979, Dennis formally established paternity. He then suggested a new plan for taking custody of his daughter. Under this plan, Dennis stated that he preferred independence from his mother and that, rather than moving to his mother's home, he would find his own apartment. Sheila would be placed in a day-care center while the father was at work. Dennis reiterated this plan in October, 1979 and January, 1980.

This proceeding was commenced in May, 1980. Brookwood brought a petition in Family Court against both of the natural parents for a determination that Sheila was a permanently neglected child, that both parent's rights be terminated, and that Sheila be made available for adoption (see Family Ct Act, § 614, subd. 1; Social Services Law, § 384-b, subd. 7, par. [a] ). The matter was set down for a fact-finding hearing (see Family Ct Act, § 622).

Evidence relating to the allegations against the natural mother was presented at many scheduled hearings held during the latter part of 1980 and the early months of 1981. At the close of the fact-finding hearing, the Family Court found that Sheila had been permanently neglected by her mother. That determination was not appealed to the Appellate Division and is not at issue in this appeal.

The allegations against the natural father were the subject of hearings held on February 18-19, 1981. "The essence of the agency's case" against Dennis, in the words of Brookwood's attorney, was "the failure to plan. Not lack of visitation, but failure to plan." The agency argued that it had, under the circumstances, made a reasonable effort in assisting Dennis. It was noted that the agency repeatedly informed Dennis that he would have to establish paternity and that it had provided Dennis with the name and address of the court in which he could receive an order of filiation. Also cited were two incidents, one in April, 1979, when the agency had offered Dennis counseling, and a second in February, 1980, when Dennis had been offered assistance in finding an apartment. Relying on these efforts and the assertion that Dennis was a well-intentioned and intelligent individual, the agency argued that it nevertheless took Dennis 18 months, from the time of Sheila's birth, to establish paternity. In the agency's view, this constituted evidence of a failure to plan for Sheila's future sufficient to give rise to a determination of permanent neglect.

At the close of the fact-finding hearing, the guardian ad litem for Sheila argued that Dennis's parental rights should not be terminated. It was noted that, promptly after Sheila's birth, Dennis had informed Brookwood that he was the child's father and had since undertaken his own efforts to establish paternity. The guardian also asserted that a finding of a failure to plan should not rest on Dennis's failure to establish paternity. To this end, it was pointed out that the "morass of coming to court * * * and getting orders of filiation, getting summons [is] something * * * that many attorneys, many attorneys that I have been familiar with, have difficulty with, let alone a lay person."

In a decision from the Bench on February 19, 1981, the Family Court dismissed the petition brought against Dennis and later explained the reasons for dismissal. The court held that Brookwood failed to exercise diligent efforts on behalf of uniting Sheila and Dennis. It found that "vis-a-vis Dennis * * * Brookwood did not assess him and his family as a parent and family to whom Sheila could be released. Brookwood did not identify specific problems preventing discharge of Sheila to [Dennis's] family, nor plan for provision of services to resolve or ameliorate the identified problems." The court added that it could not "reconcile with Brookwood's statutory duty * * * [the] ignoring and rejection of Dennis and his family, as an alternative to the mother, in light of [their] persistent presence, strengths, interest, potential, and natural and legal rights." Dennis on the other hand, was found to have been "consistent, persistent, and diligent in his contacts, efforts, and expressions of interest with regard to Sheila."

A cross motion for custody had been made by Dennis, and the court ordered that, in light of this motion and the fact that the petition against Sheila's mother had been sustained and her parental rights had been terminated, a dispositional hearing (see Family Ct Act, § 623) and custody hearing should be held simultaneously. The foster parents were granted their motion to intervene in the proceedings (see Social Services Law, § 383, subd. 3).

Over the course of the next year, hearings were held on the question of custody. Principally, Sheila's emotional well-being was called into issue. Offered in evidence was the testimony and written reports of a child psychologist employed by Brookwood, a psychiatric consultant to Brookwood, a psychiatrist retained by the Family Court, and a psychiatric social worker retained by the foster parents to prepare a report and to testify in court. All concurred, that in recent months the relationship between Sheila and Dennis and Dennis's family had deteriorated. The experts related that the girl had...