Tricia Lashawanda M., Matter of

• Decision Date: 30 March 1982
• Citation: 113 Misc.2d 287,451 N.Y.S.2d 553
• Parties: In the MATTER of the Custody and Guardianship OF TRICIA LASHAWANDA M., * A dependent child under the age of eighteen years to the Custody and Guardianship of Brooklyn Home for Children, pursuant to Section 384-b(b) and (d) Social Services Law of the State of New York. Family Court, City of New York, Queens County
• Court: New York Family Court

Page 553

451 N.Y.S.2d 553

113 Misc.2d 287

In the MATTER of the Custody and Guardianship OF TRICIA LASHAWANDA M., ^* A dependent child under the age of eighteen years to the Custody and Guardianship of Brooklyn Home for Children, pursuant to Section 384-b(b) and (d) Social Services Law of the State of New York Family Court, City of New York Queens County.

March 30, 1982.

Allan D. Shafter, Shafter & Shafter, Garden City, for petitioner.

Martin Goldman, Jamaica, law guardian.

Murray Fox, Cedarhurst, for respondent.

STANLEY GARTENSTEIN, Judge:

To all the "horror stories" of the foster-care system which have recently surfaced, must now be added the frightening matter at bar. What is most disturbing, more so than had this matter involved out and out deceit or overreaching, is the fact that the trampling of one mother's rights to her own child results here from the uninspired application of standard social-work platitudes which so often reinforce the sad but crushing reality that, all things being equal, the poor and disenfranchised have less of a chance to keep their own children than the "haves" or the affluent. The bottom line therefore, is not that one mother has been abused, which is bad enough, but that the potential for repetition of this terrible injustice is indigenous to the entire system. The legislature must in some manner face its responsibility of overhauling the entire foster care system toward the end of eliminating this shame of our Society.

THE FACTS:

Catherine Linda M., just short of her 21st birthday at the time this proceeding was heard, is the mother of Tricia Lashawanda M., now six. This proceeding seeks to terminate her parental rights so that the subject infant may be adopted.

This is not the first time this court (or this judge, for that matter) has been called upon to adjudicate a matter involving Catherine Linda M. In 1975, this very same young woman was herself adjudicated a neglected child and placed, prior to her 14th birthday, with the Commissioner of Social Services for shelter care. The Commissioner designated as his sub-contractor to discharge his responsibility for her care, the Brooklyn Home for Children, the very same agency which now seeks, in this proceeding, to terminate her parental rights. On January 2, 1976, when Catherine Linda was not yet in placement as a neglected child for an entire year, she herself gave birth to a child, the infant in question. It is uncontested that upon being wheeled out of the delivery room, less than a half hour after she regained consciousness, and while still under the effects of the anesthetic, she was given a paper to sign by her own social worker. This paper, signed under these highly questionable circumstances, was a "consent" instrument by virtue of which her own baby was taken from her by the very agency whose ward she was. Following a series of lightning quick maneuvers, Catherine Linda found herself no longer under the care of this agency which had now conveniently taken over her own child as its ward to her own exclusion. This sophisticated scheme was complete even before Catherine Linda reached her 15th birthday. It is further uncontested that there do in fact exist facilities at which a young mother and her child can reside together where parenting skills may be learned and reinforced, but because this particular agency did not have such facilities, it chose instead, to separate mother and child, keeping the child as an adoptable infant and relegating the mother to other unsatisfactory facilities under the auspices of the Commissioner of Social Services, rather than requesting the Commissioner to find appropriate other facilities for both of them. Faced with the agency's protestations of its good faith intentions to the effect that it had always planned for the reunion of mother and daughter, the court is constrained to note that in the very first Foster Care Review in this court (SSL § 392), it was already conceded that the plans for the infant were always and will continue to be adoption. ¹

With the very agency to whom Catherine Linda was to look, as a matter of law, for guidance and protection, thus acting against her interests, this 15-year-old was somehow supposed to undertake a course of visiting her child sufficiently to forestall this abandonment proceeding grounded upon her alleged failure to visit. This at a time when the Commissioner of Social Services who sub-contracted with the agency in question for the care of her infant, was the same Commissioner charged with her own care and serving her needs which obviously included these crucial visits with her child.

Catherine Linda ceased being a ward of the Commissioner of Social Services in November, 1979. She was and still is a public charge, still the responsibility of the very same Commissioner who was charged with protecting her interests when she was his ward, and the very same Commissioner who must sanction this proceeding by his sub-contractor, the petitioning child care agency, for all intents and purposes, his alter ego.

THE EVIDENCE:

It is uncontested that respondent visited her child on eleven separate occasions between May 21, 1976 and January 16, 1979. Sometime prior to the last of these dates, the Commissioner of Social Services transferred her to a so-called "diagnostic" facility which under the best of conditions, could be considered either as a dumping ground for an unwanted juvenile with special needs; or an effort, after being responsible for her for more than three years, to belatedly learn something about these needs. She remained here for 3 months and was discharged in November, 1978 when the Commissioner moved her to the St. Lawrence Group Home in the Bronx. This in the face of his responsibility not to discourage visitation (SSL 384-b5a) and the fact that her own baby was in a foster home in Kings County. Following this, the Commissioner saw fit to transfer her, within a short interval, to 2 other group homes. His dismal failure with her ended in November, 1979 when she reached 18.

Respondent was given an appointment on January 7, 1980 to discuss the future of her child, by letter from the agency which was returned marked "addressee unknown". Despite the fact that the Commissioner had respondent's address in his files as a recipient of public assistance, the agency chose to ignore this knowledge as well as the fact of life that mail to ghetto neighborhoods has at best a tenuous chance of being delivered. The agency admits that respondent called on May 12, 1980 to request visitation; somehow this appointment was not kept. It also concedes that although respondent was enrolled at Project Return, a drug treatment facility, it made absolutely no effort to integrate this fact into a planning conference with her.

On September 5, 1980, by unilateral action of the agency, the caseworker broke off all contact with respondent. It is conceded that the agency did not have the faintest glimmer of knowledge as to how respondent supported herself despite the fact that the same Commissioner has responsibility for administering her public assistance and for the care of her child now in issue. Exactly one month prior to the agency's unilateral action, respondent called the caseworker for an appointment to see her child and gave the worker her address in order to facilitate future contacts. The agency relies on the 6-month period immediately preceding February 1981 to establish abandonment.

RESPONDENT'S PERSONAL HISTORY:

At this juncture, it is important to reconstruct portions of this very special young woman's life and chronicle her efforts to get up every time life knocked her down. Catherine Linda M. now lives in a 2 1/2 room apartment owned by the City of New York. She has received public assistance for the past 1 1/2 years. For a period of time, she drifted into drug-use. Her Criminal Court "rap-sheet" shows 6 arrests, one of which resulted in her being placed on Probation under the supervision of a Probation Officer whose influence can only be characterized as a fortunate accident of personal chemistry. Miss M. maintained voluntary contact with this Officer for months after the criminal courts terminated her Probation favorably. In the face of testimony on record to the effect that the caseworker refused to let her see her baby when she tried to set up visitation, claiming that she had "no time" or "is busy", it was only through the official intervention of Miss M.'s Probation Officer that she saw her child at all during 1980. On other occasions she appeared for visitation and the child was not there. Miss M. was never permitted to see her child at the foster home but instead had to content herself with appearing at the agency. Despite every possible obstacle placed in her way, respondent last saw her child at the foster home on January 3, 1982. The child knows Miss M. as her mother. On the last visit, respondent brought her a doll and dungarees for her birthday.

Miss M.'s efforts to become a useful member of Society evince a sustained drive to put her life together and a sole overriding goal of getting back her child and being a full time mother. In 1978, she completed the "Y.E.P." Program successfully and trained on a job, but the program could not place her. After that she took 6 months of secretarial on-the-job instruction through a program known as Boy's Harbor only to lose out when its funding ran out. She spent another 7-month training period at the Montreal Community Associates where she typed, interviewed applicants for jobs and answered the phone. At the same time, she was in regular attendance at an ex-offender program known as Private Concerns, Inc. which lost its funding in September, 1980. She then completed Project Green Hope, but failed a qualifying typing test and was encouraged to try again. She has also completed 6 months of training in the so-called GEP Program located in the New York State Harlem Office Building...