Suzanne N Y, Matter of
| Decision Date | 03 December 1979 |
| Citation | 102 Misc.2d 215,423 N.Y.S.2d 394 |
| Parties | In the Matter of SUZANNE N Y, a Child Under the Age of Eighteen Years, Alleged to be Permanently Neglected. |
| Court | New York City Court |
This proceeding marks the third time that the Petitioner, The Jewish Child Care Association (JCCA), has sought to terminate the parental rights of Elaine S. Y. as to her daughter, Suzanne Y. The suffering and despair that this litigation has wrought renders it a sad commentary on the workings of our system of justice.
The Court first obtained jurisdiction over this matter as a result of a neglect proceeding filed against Mrs. Y. This resulted in a finding of neglect, and placement of Suzanne with the Commissioner of Social Services in a foster home under the supervision of JCCA.
JCCA then filed a petition on September 16, 1974 to terminate the parental rights of Mrs. Y based upon permanent neglect alleging that she failed to plan for the future of Suzanne. At an inquest, Suzanne was adjudicated permanently neglected. After a dispositional hearing, Mrs. Y's parental rights were terminated and Suzanne was adopted by her foster parents.
Subsequently, Mrs. Y moved to vacate the default. Her motion was denied. She successfully appealed to the Appellate Division, which vacated the default, and ordered a new trial.
On November 21, 1977, Hon. Stanley Gartenstein terminated parental rights pursuant to a principle of "no-fault" termination. Matter of Suzanne Y., 92 Misc.2d 652, 401 N.Y.S.2d 383 (Fam.Ct., N.Y.County, 1977). His sensitive and thoughtful decision held that although JCCA had failed to make a prima facie case based on statutory grounds, parental rights should be terminated in the best interests of the child. He postulated that this holding was a logical outgrowth of Bennett v. Jeffries, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 (1976).
On December 21, 1978 the Appellate Division, First Department reversed the order terminating parental rights, and remanded the matter for a new trial. The Court relying on Corey L. v. Martin L., 45 N.Y.2d 383, 408 N.Y.S.2d 439, 380 N.E.2d 266 (1978), held that termination of parental rights can only be based upon the grounds articulated in Social Services Law section 384-b, and that the "best interests" test enunciated in Bennett v. Jeffries, supra, is not applicable to proceedings to terminate parental rights. Matter of Suzanne N. Y., 66 A.D.2d 723, 411 N.Y.S.2d 326 (1st Dept., 1978). This conclusion became unassailable when the question was squarely considered by the Court of Appeals in Matter of Sanjivini K., 47 N.Y.2d 374, 418 N.Y.S.2d 334, 391 N.E.2d 1316 (1979). It unequivocably held that only statutory grounds can suffice to terminate parental rights.
The Appellate Division remanded this case to the Family Court stating, inter alia, "But we think that the interests of everyone will be better protected by our adhering to procedural regularity, by not attempting as an appellate court to try to make the findings of fact which a trial court seeing and hearing the witnesses and the parties is so much better able to do, especially where so much depends on a judgment as to the personalities, abilities, emotions and actions of the parties." 66 A.D.2d 723 at 724, 411 N.Y.S.2d at 327.
The expectations of the Appellate Division were destined to be unrealized. In the trial held before this Court Petitioner presented only such testimony as was necessary to qualify the agency's records for Suzanne for admission into evidence. (P's Exhibits 1a, 1b and 1c in Evidence), through a supervisor who had no personal knowledge of the case.
In addition Respondent, on consent, introduced the transcript of the Sept. 1977 trial before Judge Gartenstein (Respondent's Exhibit A in Evidence). Ironically, this Court was left no better able to make a "judgment as to the personalities, abilities, emotions and actions of the parties" than was the Appellate Division when this very same evidence was considered by it in October of 1978.
In order to prevail Petitioner must prove permanent neglect by a preponderance of the credible evidence. Its burden is one of constitutional magnitude. Corey L. v. Martin L., supra. This Court holds that it failed to meet this burden. Accordingly the petition must be dismissed.
The elements of permanent neglect are set forth in Social Services Law § 384-b(7)(a) which states: Permanent neglect is a failure for a period of more than one year following placement, "substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child."
To plan for the future of the child means to take such steps as may be necessary to provide an adequate stable home, and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent. S.S.L. § 384-b(7)(c). Such a plan must be realistic and feasible. Matter of Orlando F., 40 N.Y.2d 103, 386 N.Y.S.2d 64, 351 N.E.2d 711 (1976).
The testimony in the prior hearing (Respondent's Exhibit A in Evidence) indicates a genuine desire on the part of Mrs. Y to have Suzanne returned to her. She searched for a larger apartment in anticipation of Suzanne's return. She attended therapy sessions consistently, in a sincere attempt to ameliorate her mental health. Such actions may constitute planning by conduct. See Matter of Sydney, 84 Misc.2d 932, 377 N.Y.S.2d 908 (Fam.Ct., Queens County, 1975).
Furthermore, the failure to formulate a feasible and realistic plan does not in and of itself constitute permanent neglect. Respondent clearly required help to encourage and strengthen her relationship with Suzanne, and under the statute's mandate was entitled to receive it unless that were to prove detrimental to Suzanne's best interests.
The efforts expected of the agency include the investigation of financial problems of the parent, the formulation of viable proposals, suggestions as to the development of a plan for services, informing the parent as to the child's progress, as well as arrangements for visitation. Matter of Anita "PP", 65 A.D.2d 18, 410 N.Y.S.2d 910 (3rd Dept., 1978), S.S.L. § 384-b(7)(e).
The requirement of diligent efforts stems from both the nature of the proceeding, and the relative positions of agency and parent. The proceeding constitutes an interference by the State in the parent-child relationship. In this setting, the parent is severely disadvantaged, being burdened with economic, emotional, mental and physical problems. On the other hand, the agency Matter of Joyce Ann R., 82 Misc.2d 730, 371 N.Y.S.2d 607 (Fam.Ct., Kings Co., 1976); Matter of Sydney, supra ; Matter of Santosky, 89 Misc.2d 730, 393 N.Y.S.2d 486 (Fam.Ct., Ulster Co., 1977).
It is incumbent upon the agency to take steps to attempt to strengthen the bond between parent and child, except where doing so would contravene the child's best interests. The first step that the agency must take is to inform the parent in a manner simply stated, and strongly urged, of his or her responsibilities with respect to the child, and the agency. It must emphatically bring home to the parent in terms he or she is capable of comprehending that the failure to plan for his or her child may result in the dire consequence of the irrevocable loss of his or her child. This obligation was held implicit in the statutory definition of "diligent efforts" by Hon. Jerome M. Becker in Matter of Roxann Joyce M., 99 Misc.2d 390, 417 N.Y.S.2d 396 (Fam.Ct., Kings Co., 1979). His reasoning is apposite here.
In that case Judge Becker refused to terminate parental rights. He held that the agency breached its obligation to inform the Respondent father of his obligation to plan for Roxann's return, or what the consequences would be if he failed to do so. Judge Becker noted that there was no proof that the agency had advised him of his obligation to plan. He also noted that the surrender instrument was silent on this issue, no oral explanations were tendered, nor, apparently, was he provided with a copy of "The Parents' Handbook", A Guide for Parents of Children in Foster Care published by the Department of Social Services' Special Services for Children unit.
He found that the Agency's omission to advise Respondent constituted an unconstitutional deprivation of due process, as well as a failure to comply with its duty under S.S.L. § 384-b(7).
While this Court agrees with the reasoning that bottomed Judge Becker's conclusion that the Agency's actions were unconstitutional nonetheless it respectfully declines to follow that portion of the decision.
As recently stated by the First Dept. in Matter of Dora P., 68 A.D.2d 719, 418 N.Y.S.2d 597 (1st Dept. 1979)
"It is a cardinal tenet of our law that constitutional questions should not be reached unless there is need for their determination to resolve the issue at hand and the question is squarely presented (Comiskey v. Arlen, 43 N.Y.2d 696, 401 N.Y.S.2d 200, 372 N.E.2d 34; Matter of Peters v. New York City Housing Auth., 307 N.Y. 519, 121 N.E.2d 529; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817)." 68 A.D.2d 719 at 729, 418 N.Y.S.2d at 603.
In addition Statutes § 150 provides that a statute should not ordinarily be set aside as unconstitutional by a Court of original jurisdiction unless such...
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