The natural parents, never married but lived together from 1967 to 1974, during which time three children were born. In August 1974, after many earlier criminal convictions, the natural father was convicted on drug charges and sentenced to prison for a two-year-to life sentence.A New York Family Lawyer said in 1975 the natural mother voluntarily placed the second born child, who suffers from severe physical and mental handicaps, in temporary foster care. The mother abandoned the two other children and on December 7, 1976 the Family Court placed them in the Commissioner of Social Services custody for 18 months. A Bronx Child Custody Lawyer said that, during his entire imprisonment the natural father (whose whereabouts was then unknown) made no attempt to stay in touch with his family and he testified he heard nothing from the natural mother. Only after the agency, through its own diligent efforts, located him in a Correctional Facility in August 1977, did the natural father learned of the children’s foster care placements; immediately after being paroled, in September 1977, he visited the agency to seek custody or visitation. The three children, meanwhile, had lived in separate foster homes and facilities until summer 1977. The foster parents, had asked the agency for a handicapped child to adopt in 1976. A New York Custody Lawyer said after she had been placed in their home for some two months, the foster parents’ requested that the two other children join her; the children were reunited in September 1977 for the first time since 1975.
A Bronx Child Custody Lawyer said that the agency denied the natural father’s requests for custody or visitation, and he began legal proceedings to protect his rights. On December 1, 1977 he was adjudicated the legal father, and, by agreement among counsel he had two visits with the children, the first in December 1977 and the second in February 1978. Only the oldest child had any recollection of her natural father, having been only one year old when he was imprisoned, and the handicapped child being mentally incapacitated. When these proceedings came to trial the natural father was unemployed, on parole, and living on public assistance with a woman he had known less than a year, who was expecting his child in December 1978. A New York Custody Lawyer said the foster parents live with the three children in a three-bedroom suburban garden apartment. The foster father is employed as a maintenance man; foster mother is a full-time housewife.
A Nassau County Family Lawyer said that the New York Hospital filed a petition pursuant to Section 384-b of the Social Services Law (“SSL”) seeking termination of parental rights and a transfer of custody and guardianship to NYFH; a petition was also filed by the Commissioner of Social Services (“CSS”) pursuant to Family Court Act (“FCA”) Section 1055 seeking an extension of this court’s original placement order entered in the course of a prior Article Ten neglect proceeding; and a petition in the form of a writ of habeas corpus filed by the natural father seeking return of the children to his custody.
At the outset of the hearing, the agency presented its evidence of abandonment by the natural mother, the only named respondent on the petition, who failed to appear at the hearing and whose whereabouts is unknown. At the conclusion of the hearing the court found, by a fair preponderance of the evidence, that the natural mother, Maria O., abandoned her three children; in that since May 1976, she failed to visit or communicate with them; that her only contact with the agency during this entire period consisted of two brief meetings with an agency caseworker on September 29, 1977 and October 14, 1977 when she was brought to the agency’s office by the natural father; that those two agency contacts are insufficient to preclude a finding that the natural mother has otherwise evinced an unmistakable intent to forego her parental rights and obligations in a manner which manifestly rises to the level of abandonment as that term is set forth in Section 384-b of the SSL. Accordingly, on the basis of these findings the court adjudicated these children to be “abandoned” pursuant to SSL 384-b(5) by their natural mother.
The issue in this case is whether petitioner’s petition for termination of parental rights and guardianship should be granted.
The Court said that, having made a fact-finding adverse to the respondent parent in a petition under SSL § 384-b, the court would ordinarily proceed to a dispositional hearing to determine whether it is in the children’s’ best interests to sever the parental tie and free the children for adoption by transferring guardianship to the Commissioner. Here, however, the intervening presence of the natural father, who is not named as a respondent on this petition and whose unfitness on specific statutory grounds is not alleged, raises a question of constitutional dimension which necessitates close scrutiny.
From the outset of this proceeding it has been the agency’s position that it need not allege nor prove statutory grounds of unfitness with regard to a natural father, who has been adjudicated the legal father of the children but who never married the children’s mother. This view flows principally from the structure and statutory language of SSL § 384-c(2) which provides for notice to “any person adjudicated by a court in this state to be the father of the child” who is the subject of a proceeding initiated pursuant to SSL § 384-b. Section 384-c(3) specifically states that, “the sole purpose of notice under this section shall be to enable the person served pursuant to subdivision two to present evidence to the court relevant to the best interests of the child.” The clear implication of the text is that the agency need not name an unwed father as a respondent, nor prove his unfitness as a parent on statutory grounds, regardless of whether, as here, he has acquired the status of a legal father through an order of filiation.
A Nassau County Custody Lawyer said this same distinction and concomitant limitation on the parental rights of an adjudicated but unwed father is even more manifest in the closely related Sections 111 and 111-a of the Domestic Relations Law (“DRL”) regarding the rights of unwed fathers in adoption proceedings. DRL § 111 requires the consent ” (b) of the Parents or surviving parent, whether adult or infant, of a child born In wedlock ; (c) of the Mother, whether adult or infant, of a child born Out of wedlock”, but conspicuously fails to require the consent of an unwed natural father. The Court of Appeals has upheld the constitutionality of this provision stating that such distinctions between wed and unwed fathers and unwed mothers and fathers does not violate the equal protection guarantees of the state or federal constitutions. In the case at bar, the agency and the CSS underscore the Court of Appeals decision as dispositive and controlling while, on the other hand, counsel for the natural father urges this court to reject the said decision and strike down DRL § 111 as violative of the equal protection clause of the Federal Constitution’s Fourteenth Amendment.
The rule as to the rights granted by New York State statutes to unwed fathers when their children are to be freed for adoption is currently under scrutiny by the United States Supreme Court. A decision may be expected within weeks, not later than the end of the current term, unless re-argument is scheduled. After noting the slow yet steady clarification of the parameters of the rights of unwed fathers, and the dimensions of the particular case Sub judice, this trial court cannot, in conscience, blindly enforce the New York Court of Appeals’ rulings. Neither will the court presume to anticipate the Supreme Court’s ultimate decision on to the merits. Rather, this court respectfully declares its intention of holding in abeyance its own decision on the agency’s termination-of-parental rights petition until after the Supreme Court has spoken. The court knows full well that its action is extraordinary, but as will become clear, the circumstances demand no less.
Certainly, New York courts are bound by rulings of the Supreme Court as to the constitutional validity of state statutes. It is also well established that a summary affirmance by the Supreme Court in one case does not preclude the trial court’s consideration in a similar case of issues not raised in the earlier proceeding. In addition to citing the new issues on appeal, the court also noted that “several questions presented here were raised in (the earlier summary affirmance) but having heard oral argument and entertained full briefing on these issues together with the other questions raised in the case, we proceed to treat them here more fully.” Most of these factors are clearly present in this case. Less plain is a judicial trend favoring a change in the rule. The Supreme Court’s decisions do not themselves indicate that a change is likely.
Despite the presence of all these factors, the court is loathe “to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant. The court has weighed the genuine personal interests at stake here; these are questions affecting the lives of three young children and the adults who claim to love them. It has also examined the legal issues, and concludes that a precipitous decision on the merits of the guardianship petition would only produce more vexing litigation. Needless trauma would ensue if this court were to open the road to adoption only to have the Supreme Court bar the way by overruling the Court of Appeals decision.
The court will therefore preserve the status quo; if it will allow these children what family stability is possible under the circumstances by deciding only the separate issue of custody without reaching the question of terminating parental rights. The court is aware that CPLR § 4213 provides that a decision must be reached within 60 days of the last written submission. However, under the Family Court Act the provisions of the CPLR are applicable only “to the extent that they are appropriate to the proceedings involved” FCA § 165. For the reasons outlined above, this court does not find a strict adherence to CPLR § 4213 to be appropriate in this instance.
In order to protect your rights as custodian of your child, seek the assistance of a Bronx Child Custody Attorney and/or Bronx Order of Protection Attorney. Permanent neglect of a child should be proven, our Bronx Family Attorney at Stephen Bilkis and associates can help you.