Snyder v. Seneca County Dept. of Social Services

• Citation: 88 A.D.2d 772,451 N.Y.S.2d 508
• Parties: In the Matter of Rosanne SNYDER, Appellant-Respondent, SENECA COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent-Appellant.
• Decision Date: 14 May 1982
• Court: New York Supreme Court — Appellate Division

Page 508

451 N.Y.S.2d 508

88 A.D.2d 772

In the Matter of Rosanne SNYDER, Appellant-Respondent,

SENECA COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent-Appellant.

Supreme Court, Appellate Division,

Fourth Department.

May 14, 1982.

Sam C. Bonney, Waterloo, for appellant-respondent.

John M. Sipos by Emil Bove, Seneca Falls, for respondent-appellant.

Robert Abrams, Atty. Gen. by Clifford Royael, Albany, for State of N. Y.

Before DILLON, P. J., and SIMONS, DOERR, MOULE and SCHNEPP, JJ.

MEMORANDUM:

At the time of the hearings to determine whether respondent's children were permanently neglected, the requisite standard of proof was preponderance of the evidence. However, the Supreme Court recently declared this standard of proof unconstitutional when applied to cases involving permanent termination of parental rights (Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599). Therefore, we must give effect to the law as it presently exists (People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478) and apply the higher standard of proof to the evidence offered at the hearing (see Matter of Keith C., 36 A.D.2d 712, 319 N.Y.S.2d 621; Matter of Arthur M., 34 A.D.2d 761, 310 N.Y.S.2d 399).

Petitioner has proved by clear and convincing evidence that respondent failed "substantially and continuously or repeatedly" to maintain contact with the children and that the agency was diligent in its efforts to encourage and strengthen the parental relationship (Social Services Law, § 384-b, ).

Respondent is the 23-year-old mother of four children. Three of respondent's children have been in the care of foster parents, pursuant to voluntary transfer agreements, since February 8, 1979. Petitioner, Seneca County Department of Social Services, filed a permanent neglect petition on March 14, 1980. Respondent visited the children five times while they were in the care of the foster parents. In the year prior to the hearings, respondent visited the children only twice. She also sent Christmas presents and Valentine cards.

The record clearly demonstrates that respondent has failed substantially and continuously or repeatedly to maintain contact with her children. Evidence of insubstantial or infrequent contacts by a parent with his or her child is not sufficient as a matter of law to preclude a determination that such child is permanently neglected (Social Services Law, § 384-b, ).

Furthermore, there is clear and convincing evidence that the agency exercised due diligence to encourage and strengthen the parental relationship by arranging visitation, offering transportation, referring respondent to counseling, tracking respondent down in order to consult with her and inform her of the children's progress and aiding her in formulating a plan for the children's future. Respondent, on the other hand, frequently changed residence without providing the agency...