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Court Discusses Concept of Permanent Neglect

This is an appeal from an order of the Family Court, New York County, dismissing a petition brought by petitioner Hospital seeking (1) termination of the parental rights of respondent mother; (2) custody of the subject child; and (3) a declaration that the child was free for adoption, pursuant to Social Services Law Section 384-b and Family Court Act, Article Six. A New York Family Lawyer said the out-of-wedlock infant was born on March 25, 1974. The current whereabouts of the father are unknown and there is no evidence of any contact or support by him at any time. The infant came into the custody of the hospital on April 21, 1976 after he was found strapped in his stroller, alone and unattended, at about 4 a. m., near an abandoned building in Brooklyn. The mother was apprehended and arrested for burglary of the building. She subsequently pleaded guilty to criminal trespass. She claimed that on her way to the store with the child she was pursued and had to leave the infant unattended. In consequence of this incident, a finding of neglect was made against the mother by the Family Court, Kings County.

A New York Custody Lawyer said that, the child was placed with the Commissioner of Social Services for an initial period of eight months. Thereafter placement was extended until March, 1979. The mother, herself, had been placed in foster care at the age of 3 because her own mother was unable to care for her and her five brothers and sisters, four of whom were placed in foster care. Her schooling ended at the 10th grade. She was transferred from one institution to another and from one foster family to another until the age of 18. The longest period with a foster parent was from 1972 to 1974. Although she knew her parents, she had no relationship with them. In a psychological evaluation in connection with the placement of the subject child, the mother was diagnosed as an inadequate personality with anxiety features needing psychiatric treatment and counseling. “Therapy should be directed in part to help her to accept responsibility for everything which may happen to her infant.”
During 1976 the mother visited with her son on 12 or 13 separate occasions out of a possible 60 available dates, as noted in the agency records. On September 17, 1976, at the extension of placement hearing, she indicated upset at the decision. She believed her son should have been released to her. She was directed to avail herself of counseling which the agency was directed to provide. In December 1976 she expressed upset that her son was in a foster home in Bronx. In view of the fact that she lived in Brooklyn and she was in an advanced state of pregnancy with a second child, it would be difficult for her to make the long trip to Bronx and visit her son. She could not visit him until after the baby was born. During the entire year 1977, the mother visited the subject child only once. In October 1977 she advised the agency that she wanted her son returned but she was too busy with her second baby. During 1977 she had financial problems, moved from place to place and had fires in at least two of her places of residence. On June 8, 1978 she stated that she could not plan for his son, that she no longer lived with his paramour and was now living with another man. She wished the agency to continue to care for her son and to help her with the many decisions she would have to make. Her new paramour had three children in foster care in Brooklyn. She admitted she could not care for the three children in addition to his son.

A Queens Family Lawyer said the record establishes that the mother consistently failed to keep appointments with the agency, failed to show up for visits with the subject child, failed to keep the agency informed of her changes of residence and offered no plan for the return of her son or for his care. The evidence is plain that for at least one year she had no contact with her son and neither had nor made any plans for his care. A Bronx Family Lawyer said that, the evidence is equally clear that the agency made only limited efforts to provide appropriate counseling or assistance in helping to work out a plan or program. The Family Court judge improperly received in evidence testimony as to visits made with the subject child after the petition was filed.
The issue in this case is whether the parental rights of the mother must be terminated because of her total failure for over a year to maintain contact with the subject child and to plan for his future. Even if such a failure be found, what effect is to be given to the fact that the agency made only minimal efforts to discharge its statutory duty to encourage and strengthen the parental relationship?
The Court in deciding the case cited Article 6, Part I of the Family Court Act authorizes termination of the parental rights of parents of a “permanently neglected child”. Family Court Act Section 611 incorporates by reference the definition of a permanently neglected child as set forth in Social Services Law section 384-b, subd. 7, as follows: (a) For the purposes of this section, “permanently neglected child” shall mean a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of more than one year following the date such child came into the care of an authorized agency 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. In the event that the parent defaults after due notice of a proceeding to determine such neglect, such physical and financial ability of such parent may be presumed by the court.

Permanent neglect is to be found if parental failure “to maintain contact with or plan for the future of the child” has occurred “substantially and continuously or repeatedly” for “more than one year” after the “child came into the care of an authorized agency”. It is clear here that there was a complete failure to maintain contact or to plan for more than one year. The statute requires a showing that the parent who allegedly failed to maintain contact with or plan for the future of the child was “physically and financially able to do so”. A Queens Custody Lawyer said the meaning of this phrase has been the subject of varied holdings. The Family Court judge concluded that because of the mother’s unfortunate history and her circumstances during the year prior to the application, the birth of another child, the distance between herself and the foster parent, the occurrence of the two fires which caused her to move frequently, and other circumstances, she “acted within her physical and financial ability. Clearly she has never rejected this child and has maintained contact with him whenever possible.” The Court disagrees. The record is plain that for over one year there was almost no effort to maintain contact with the child and no effort whatsoever to plan for the future of the child. Both are required.

The Family Court judge went on to find that the agency failed to make diligent efforts to encourage and strengthen the parental relationship, as required by the statute. The obligation of the agency is to offer rehabilitative services and other supportive assistance to aid a parent in making such plans. The record is clear that the agency made only a few efforts to make counseling services available. The communications arbitrarily fixed dates for visits. There was only a limited follow-up when there was no response. There was only a sparse showing that the requisite counseling or other rehabilitative services were offered and rejected. Broken conference appointments should not be relied on by such an agency to avoid the requisite effort to assist a mother with a plan and a program for the return and upbringing of her child. However the inadequacy of the agency’s efforts to render such assistance is not determinative. It is undisputed that for over one year this mother had almost no contact with her child, made no real effort to keep in contact with him, and had no plans for his future. She was not in a position to take the child at the time of the hearing, and had no plan or program to care for or bring him up in the near future. On this basis we are constrained to hold that parental rights must be terminated.

It has been sufficiently demonstrated that respondent failed to maintain any contact with her son. But even if there be excuses for such neglect, as suggested by the Family Court judge, it is beyond dispute that there was a total failure to plan. Here we have permanent neglect, failure to maintain contact and failure to plan. However unfortunate the mother’s background, it provides no basis for avoiding the obligation to the child imposed by the statute. The deficiencies in the agency’s performance of its obligation do not justify the mother’s failure to maintain contact or to plan, or preclude a finding of neglect under the circumstances of this case. The requirement to plan is a requirement of the parents.

Here we have a mother who failed to maintain contact or to plan or to take advantage of or utilize the agency’s limited efforts to foster the parent-child relationship. There was nothing by way of plan offered by the mother to evaluate. The agency social worker testified that in March of 1978, in a discussion about visitation, the worker “asked her why she had not been visiting her son and she said that she didn’t see any point in visiting as long as she wasn’t prepared to take him back and at that point she admitted that she wasn’t prepared for her son’s return.” The burden of proof has been met to establish a failure to maintain contact and a failure to plan. Under such circumstances the deficiency of the agency, although it is not to be condoned, does not preclude the finding of neglect which this record requires.

Accordingly, the Court held that the order of the Family Court, New York County, which dismissed the petition brought by petitioner Hospital seeking (1) permanent termination of all parental rights of the respondent-mother, (2) custody of the child, and (3) a declaration that the child was free for adoption pursuant to Social Services Law Section 384-b and Family Court Act Article 6, should be reversed on the law and the facts, without costs, and the petition reinstated and the proceeding remanded to the Family Court for further proceedings, premised upon a finding of permanent neglect.

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