Wesley L., Matter of

• Decision Date: 03 January 1980
• Citation: 423 N.Y.S.2d 482,72 A.D.2d 137
• Parties: In the Matter of the Commitment of WESLEY L., III, Pursuant to the Provisions of Section 384 of the Social Services Law. TALBOT PERKINS CHILDREN'S SERVICES, Petitioner-Respondent, v. BETTY W. and Wesley L., Jr., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 482

423 N.Y.S.2d 482

72 A.D.2d 137

In the Matter of the Commitment of WESLEY L., III, Pursuant

to the Provisions of Section 384 of the Social

Services Law.

TALBOT PERKINS CHILDREN'S SERVICES, Petitioner-Respondent, v. BETTY W. and Wesley L., Jr., Respondents-Appellants.

Supreme Court, Appellate Division, First Department.

Jan. 3, 1980.

Helena Pichel Solleder, New York City, for respondents-appellants.

Terry Milburn, New York City, for petitioner-respondent.

Before SANDLER, J. P., and BLOOM, MARKEWICH, LUPIANO and SILVERMAN, JJ.

LUPIANO, Justice.

This is an appeal from an order of commitment entered after a hearing and a decision which held that the parents had abandoned their child under Social Services Law § 384 and committed custody and guardianship to the Commissioner of Social Services of the City of New York, and authorized petitioner Talbot Perkins Children's Services to consent to the adoption of the minor Wesley L., III.

At the hearing on April 27, 1977, the following testimony and evidence were elicited: Ms. Zunz, foster care supervisor for the agency, stated that the child Wesley, born on July 23, 1973, came into the care of the agency in August 1973, having been so referred by the Department of Social Services because the child was born with tremors and irritability and it was suspected that the mother was a drug user. On December 19, 1973, the child was discharged to the mother but was returned to the care of the agency in January of 1974, the mother signing a voluntary authorization for placement of the child on January 10. On February 14, 1974, the mother visited the child at the agency. On March 29 of that year the parents visited the child at the agency and requested return of the child. They agreed to secure a report from the drug program which they had attended. On April 30, 1974, the mother visited the agency to see her child, but the foster mother was unable to bring the child. On May 13, 1974, the mother went to the agency for a reunion, but the foster mother did not bring the child because the natural mother was late in confirming the appointment. On August 5, 1974, the natural parents were late in arriving at the agency for a reunion with Wesley and discovered that the foster mother had already left with the child. On August 23 the parents had a reunion with the child. On September 16, the mother had a reunion with the child. On October 10, the parents appeared at the agency relevant to the mother being apparently successful in curing her drug addiction at the Martin Luther King Clinic. On October 28, 1974, the parents had a reunion with the child. On January 31, 1975, the mother was interviewed at the agency regarding the present state of her effort to rehabilitate herself in regard to her drug addiction. There were visits by the parents at the agency (the child not being present because he resided in a foster home) on February 5, 1975 and in May 1975, at which time they continued to evince an intent to take the child back. In September of 1975, the parents had a second child, who apparently exhibited the same withdrawal symptoms as had Wesley at birth, and the agency was contacted by the Department of Social Services (Bureau of Child Welfare). Nevertheless, the second child, Richard, was discharged to the parents in October of 1975, pursuant to a decision of the Bureau of Child Welfare and has since continuously resided with the parents.

The petition herein was filed in April of 1976, and the court allowed testimony as to visits subsequent to the filing.

On November 24, 1976, after conference with the Surrogate, the parents attended a reunion with Wesley, at which time Wesley's younger brother Richard was present. On December 10, Ms. Alleyne, a case worker, visited the parents' home and found it to be a clean and simply furnished, two bedroom Bronx apartment. The second bedroom was occupied by Richard, but would be shared by Wesley on visits to the home. On December 26, 1976, the father formally acknowledged paternity of Wesley, as he had theretofore informally promised and the parents took the child home for Christmas vacation until December 28, 1976. Arrangements were made by the parents for an overnight visit by Wesley at their home to take place on January 7, 1977. However, this visit did not occur due to a sudden change in the parents' plans. From February 9 to February 17, 1977, Wesley was permitted to visit his parents and they returned him to the agency without any adverse incident occurring. From March 16 to March 25, 1977, Wesley had another home visit. Ms. Alleyne declared that upon return to the agency after the March 1977 home visit, Wesley had a bandage on his leg from a scratch "where mommy hit me" and a bruise on his hand "where daddy hit me." She further testified that on March 24, 1977, the parents were instructed to go to a clinic and be tested to ascertain if they were free of their addiction. Mr. L., the father, produced a letter regarding the parents' drug status ostensibly given by a drug rehabilitation clinic. The letter is a patent forgery and contains misspelling of the most simple words; it would not fool any reasonably educated person. While it reflects unfavorably on the father for attempting to practice a falsehood on the agency, it also may be viewed as a pathetic act indicative of the strong desire of the natural parents to retain a bond with Wesley. While the measure thus undertaken is not laudable, it patently emanates from the desire of the natural parents to obtain custody of their son, a desire which has its impetus in the love of a parent for a child. At this point the agency refused to permit any further visits, despite the parents' request for same.

Wesley's mother explained that the scratch was the result of his attempt to escape a spanking for hitting his younger brother, Richard, a habit of Wesley's of which the mother had complained to a case worker after an earlier visit.

The Surrogate in his decision stated, relevant to the parents' drug problem:

"In August (1974), the agency received a letter from the parents' drug program saying that they were not rehabilitated, though they had attended the program during the last two months of 1973. The parents then claimed that they did not need a drug program as they were drug free. The agency asked for proof that they were drug free, but none was supplied."

Scrutiny of the Surrogate's decision discloses a proper concern for the best interests of the child and as a general proposition the decision may not be faulted. However, two factors give pause to the judicial operation which would sever the natural parent-child bond under the laws of the State of New York. They are: (1) the statement in the decision that the "parents have not evidenced sufficient parental interest in their child", and (2) the failure of the court to mention in any manner the detailed and thoughtful report of the guardian Ad litem appointed for the child Wesley and the similarly detailed report of the guardian Ad litem appointed to represent the natural parents.

Contrary to an assertion made by petitioner in its brief on appeal, the separation of siblings is a factor to be considered in determining what is in the best interest of a child (Cf. Matter of Malik, M., 40 N.Y.2d 840, 841, 387 N.Y.S.2d 835, 836, 356 N.E.2d 288, 289 (1976)). Similarly, it is well recognized that consideration should be given to the report and recommendation of the Guardian Ad Litem appointed for the child as he is the child's advocate (See, Matter of Ray A. Jr., 37 N.Y.2d 619, 624, 376 N.Y.S.2d 431, 435, 339 N.E.2d 135, 138 (1975)); Cf. Matter of Orlando, F., 40 N.Y.2d 103, 112, 386 N.Y.S.2d 64, 68, 351 N.E.2d 711, 716 (1976)). The guardian Ad litem for the child states his opinion that while the facts disclose abandonment for a period of more than six months prior to the filing of the petition, Section 384 of the Social Services Law

"does not require that upon (such finding) the Surrogate commit the custody and guardianship of the . . . child to the petitioning authorized agency. Rather, such power is discretionary with the Surrogate. Accordingly, I find that my ward's best interests would be served by following recommendations resulting from a full scale, independent investigation into the fitness of his parents as if this were a custody proceeding, and thus, I respectfully recommend the same. I do not feel that the petitioner's investigation clearly indicates that the relief prayed for is in my ward's best interest."

Admittedly, for a year after the birth of the second child little or no contact was maintained by the parents with Wesley. However, subsequent to that period, the parents have exhibited a continuous interest in...