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Court Decides Custody of Foster Children

The children in question were placed in petitioner’s foster care. Their birth mother’s drug use was the catalyst for the placement. Her whereabouts are unknown and she was not present at any of the Family Court proceedings. Respondent is the father of the children. At the time of the children’s placement, he was incarcerated in state prison on a murder conviction and will remain incarcerated until at least May 2016. By that time, both children will have passed their 18th birthdays. In early August 2000, an agency case worker took the children to visit respondent in prison.

A New York Family Lawyer said that, according to the agency worker this was the only visit respondent had with the children prior to the agency’s filing of separate petitions seeking the termination of his parental rights. These petitions alleged that respondent had evinced intent to forgo those rights by reason of his failure to visit or communicate with the children in the six-month period prior to the filing and had therefore abandoned them. She testified that she contacted respondent through prison channels after the aforementioned visit, but he never responded or contacted her. Some of the letters she sent to him were returned to the agency but she did not produce at the hearing copies of any of the letters she claimed to have sent. She testified that respondent provided no financial support for the children did not maintain contact with them, did not send cards, letters or gifts and that no one contacted the agency on his behalf before the petitions were filed. She maintained that the agency did nothing to prevent or discourage respondent from coming forward, nor were there any other obstacles that might have prevented him from contacting the agency.

A Bronx Family Lawyer said that, on cross-examination, however, the agency worker testified that before the petitions were filed, she telephonically spoke with a family service specialist from the Osborne Association who had contacted her on respondent’s behalf regarding the children.

A New York Custody Lawyer said the Association facilitates family visits for prisoners incarcerated in New York correctional facilities. She gave the specialist the children’s foster parents’ names and addresses, as well as a letter acknowledging that the agency was in agreement with the Association’s scheduling a visit between the children and respondent in August 2004. She stated that the first time she personally met with the specialist was during that month. Upon questioning by the court, she admitted that she did not send any letters to respondent between February and August 2004 to notify him of any conferences, and did not make any other attempt to contact him during that six-month period. She never asked her supervisor if she could contact respondent directly, either orally or in writing, but stated that she would have had no problem with such direct communication had she known it was permitted.

A Bronx Custody Lawyer said that, the court indicated it was “a little shocked” that the caseworker and her supervisor were not familiar with the law requiring them to work with incarcerated parents and expressed concern over the lack of communication with respondent. The court also noted that this failure on the part of the agency could have an impact on the outcome of the hearing.
The specialist testified that, the Association received a letter from respondent, who was a participant in a parenting class at a Correctional Facility, asking for help in restoring communication and visitation with his children. Respondent learned about the Association from the specialist’s colleague who ran the parenting class. The letter from respondent stated he knew which agency was dealing with his children, but that he had lost contact with the agency and needed someone to advocate on his behalf. He explained that he had not heard from the agency and could not call it directly because prison policy required the name of an individual to call. Although he had the name and a possible telephone number of the agency, he did not know the name of the caseworker and thus would not be permitted to call.

Respondent testified that he was the father of the children and had contact with them through letters, phone calls and trailer visits between 1991 and 2000 when they lived with their mother. In 2000, their mother stopped bringing the children to visit and his family lost contact with her. A Bronx Family Lawyer said he did not know where she or the children were, and there was no one in her family for him to contact. Respondent claimed that in October 2003, a caseworker from petitioner agency brought the children to visit him. He asked the caseworker for “some paperwork” from the agency about “whatever is going on,” but prison rules prohibited his receipt of this material during visits. The caseworker told respondent she was leaving the agency but someone else would contact him. According to respondent, no one from petitioner agency ever contacted him concerning the children after May 2004, and he was unable to contact anyone at the agency because he did not have the correct telephone number or the name of a contact person as required by prison rules regarding phone calls.

A Bronx Family Lawyer said that, the Family Court found that based on the agency worker’s testimony, there was only one visit between respondent and the children during the requisite six-month period, that being in August 2004. The court further found that visit to be insignificant, that respondent did not send cards, gifts, letters or financial support to the children, and that his testimony concerning his inability to contact the agency was incredible. The court concluded that the agency had proven by clear and convincing evidence that respondent had an intent to forgo his parental rights and obligations by failing to visit and communicate with the children or the agency, although presumptively able to do so. A Bronx Family Lawyer said that, the Family Court found based on the testimony of the caseworkers, that the agency established by a preponderance of the evidence that it was in each child’s best interests that respondent’s parental rights be terminated. The court entered a dispositional order for each child accordingly.
The issue in this case is whether petitioner agency proved by clear and convincing evidence that respondent had abandoned his children.

The Court in deciding the case cited the provisions of Social Services Law § 384-b (4) (b) authorizes termination of parental rights when a parent abandons a child for a period of six months immediately prior to the date the petition is filed. A child is “abandoned” by his parent under this statute. “If such parent evinces intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed” (§ 384-b [5] [a]).

Social Services Law § 384-b (7), which addresses the “permanently neglected child,” provides that “evidence of insubstantial or infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a determination that such child is a permanently neglected child. A visit or communication by a parent with the child which is of such character as to overtly demonstrate a lack of affectionate and concerned parenthood shall not be deemed a substantial contact” (§ 384-b [7] [b]).

The Court said that, clear and convincing evidence is necessary to prove abandonment. The incarcerated parent presents “special considerations” that must be considered in determining whether he or she meets the statutory requirements for substantial contact with the child or children. The statutory scheme prior to the 1983 amendments presumed that an incarcerated parent was unable to maintain contact with or plan for the future of his or her child, thus a finding of permanent neglect by that parent was precluded. At the same time, the consent of such parent was not required before his or her child was released for adoption. The Legislature amended the statutes by removing the status of incarceration as a basis for the termination of parental rights and by recognizing the continuing parental obligations of incarcerated parents to their children. The incarcerated parent must cooperate with the child care agency in planning for the child and arranging visits; the agency, in turn, must exercise diligent efforts to arrange for such visits.

While an agency bringing a petition for abandonment is not required to use “diligent efforts” to encourage a parent to maintain contact with a child or children when a parent is incarcerated, there is an issue here as to whether the agency made any efforts to assist in communication. The case worker admitted that she made no effort to contact respondent in the six-month period prior to the filing of the petitions. Her self-serving testimony that she sent letters to respondent, some of which were returned to the agency, was not supported by any evidence. By contrast, although respondent’s incarceration limited his ability to contact the agency, his testimony was uncontroverted that state regulations required inmates to have a person’s name before being permitted to call an agency. During the six-month period between February and August 2004, he contacted the Association to seek help in restoring communication and visitation with his children. He utilized the services of an intermediary to contact the agency, and she was, in fact, in regular contact with agency caseworker on his behalf. Grigsby was instrumental in making arrangements with the agency for the August 6, 2004 visit, and met with both the children and foster parents in July 2004. Whether or not respondent could have taken other actions of a similar nature during the relevant six-month period of time, the fact remains that he did make an effort through the specialist during that period to resume contact with his children.

Although the court found respondent had abandoned the children, what it really did was take the easier route to termination of parental rights by improperly applying the “permanently neglected child” element of “insubstantial contacts” rather than the “abandoned” child standard. These subdivisions are designed to accomplish two different goals. “The abandonment section is intended quickly to free for adoption children whose parents have shown no interest in them; the neglect section is designed to free for adoption children whose parents, although technically not guilty of abandonment, have failed to maintain regular contact with their children although granted a longer period of time to attempt to re-establish a family relationship”.

Under the circumstances presented, there is no basis for the court’s determination that the August 2004 visit constituted an “insignificant contact” even under the permanent neglect standard, or that respondent evinced of intent to forgo his parental rights and obligations. Since petitioner seeks termination of respondent’s parental rights so the children could be freed for adoption, the question of abandonment is the threshold issue. Although the court found at the dispositional hearing that it would be in the best interests of the children if they were freed for adoption, that is not the proper standard to be applied in a proceeding seeking to terminate parental rights on the ground of. Simply put, a parent cannot be displaced “because someone else could do a `better job’ of raising the child,” absent extraordinary circumstance such as abandonment, unfitness or persistent neglect. A termination of parental rights is a drastic event. On the record before us, the burden necessary to determine those rights has not been met.
Accordingly the Court held that the order of the Family Court, which, to the extent appealed from, terminated respondent father’s parental rights upon findings of abandonment and committed custody and guardianship of the children to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously reversed, on the law and the facts, without costs, the orders vacated, and the petitions dismissed.

A parent who permanently abandons his child is not worthy of its custody. If you know a parent who neglects his own child, seek the advice of a Bronx Child Custody Attorney and Bronx Child Support Attorney in order to know the possible ways to protect the child from further harm. Bronx Order of Protection Attorney can handle the case in Court.

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