A New York Family Lawyer was born out of wedlock on 29 August 1977. Soon after her birth, she was placed voluntarily by her mother with the Department of Social Services for the City of New York. The department, in turn, authorized its agent, the Orphan Asylum Society of the City of Brooklyn, commonly known as the Brookwood Child Care Agency, to supervise the child’s care. A was placed in a foster home on 29 September 1977 but on 7 November 1977, A’s natural father, B., telephoned the Brookwood agency. He acknowledged paternity and requested a meeting with agency officials, which was held two weeks later. At that time, B expressed his desire to visit and financially support the child.
A New York Custody Lawyer said the representatives of Brookwood informed B that the mother, C, had adamantly refused to permit access to the child. B was instructed that, until such time as he formally established paternity, the agency would be bound by the mother’s instructions and he would not be allowed to see A. Brookwood provided B with the name and the address of the Kings County Family Court.
B persistently contacted Brookwood inquiring about A’s welfare, made a couple of visits and was informed that the matter of his paternity could go no further unless A’s mother participated in the process. The mother’s failure to co-operate was cited by B in explaining why he had been unable to establish paternity.
A Westchester County Family Lawyer said that during this period, Brookwood’s efforts centered on working with A’s mother toward reuniting the two. The mother’s disinterest and her inability to appropriately care for the child or plan for the child’s future soon became apparent to Brookwood. Consequently, it was determined in early 1978 that the agency plan would be to seek a surrender of A for adoption and to place her in a preadoptive home. In the event that a voluntary surrender by the natural parents was not forthcoming, Brookwood decided that it would initiate a proceeding to terminate the rights of the mother and father.
A Suffolk County Family Lawyer said in October 1978, A, now 13 months old was placed in her current foster home. Her foster parents were informed that B’s whereabouts were unknown and that A would be available for adoption in 6 months. C, however had a change of heart. This time, she wanted B to have access to the child. A biweekly visitation schedule was established by which B, his mother, and his sister would visit A at Brookwood’s offices. For the next year and a half, until the instant proceeding was brought, B and his family regularly attended the scheduled visits.
In January, 1979, B came forward with a plan to take custody of A. B, an employee of the Post Office, had adequate income to support himself and A. At that time, however, he lived at a YMCA. B proposed to the Brookwood caseworker that he would move in with his mother who would take care of the child until he returned from work each day. B reiterated this plan to the caseworker in April, 1979. He was able to formally establish paternity at this time suggesting a new plan to find his own apartment and put the child in daycare when he was working.
In May 1980, the instant proceeding was commenced. Brookwood brought a petition in Family Court against both of the natural parents for a determination that A was a permanently neglected child, that both parent’s rights be terminated, and that A be made available for adoption.
Evidence relating to the allegations against the natural mother was presented at many scheduled hearings held during the latter part of 1980 and the early months of 1981. At the close of the fact-finding hearing, the Family Court found that A had been permanently neglected by her mother. That determination was not appealed to the Appellate Division and is not at issue in this appeal.
The allegations against the natural father were the subject of hearings held on February 18-19, 1981. The essence of the agency’s case against him, in the words of Brookwood’s attorney, was the failure to plan. Not lack of visitation, but failure to plan. The agency argued that it had, under the circumstances, made a reasonable effort in assisting B. It was noted that the agency repeatedly informed B that he would have to establish paternity and that it had provided B with the name and address of the court in which he could receive an order of filiation. Also cited were two incidents, one in April, 1979, when the agency had offered B counseling, and a second in February, 1980, when B had been offered assistance in finding an apartment. Relying on these efforts and the assertion that B was a well-intentioned and intelligent individual, the agency argued that it nevertheless took B 18 months, from the time of A’s birth, to establish paternity. In the agency’s view, this constituted evidence of a failure to plan for A’s future sufficient to give rise to a determination of permanent neglect.
At the fact-finding hearing, the guardian ad litem for A argued that B’s parental rights should not be terminated. It was noted that, promptly after A’s birth, B had informed Brookwood that he was the child’s father and had since undertaken his own efforts to establish paternity. The guardian also asserted that a finding of a failure to plan should not rest on B’s failure to establish paternity. To this end, it was pointed out that the “morass of coming to court and getting orders of filiation, or getting summons, is something that many attorneys have difficulty with, let alone a lay person.”
The Family Court dismissed the petition against B the reasons being that Brookwood failed to exercise diligent efforts on behalf of uniting A and B. It found that with regard to B, Brookwood did not assess him and his family as a parent and family to whom A could be released.
A cross motion for custody had been made by B, and the court ordered that, in light of this motion and the fact that the petition against A’s mother had been sustained and her parental rights had been terminated, a dispositional hearing and custody hearing should be held simultaneously. The foster parents were granted their motion to intervene in the proceedings.
Hearings were conducted over the course of the year. A’s custody was the issue and the court is concerned with her well- being. Experts were called to witness and all concurred that the relationship between A and B and B’s family had deteriorated. They relate that A is suffering from separation anxiety disorder because she has already built a strong attachment to her foster parents. B’s fitness to assume custody was also questioned.
B was granted custody but it was not immediate due to the child’s condition. A was placed in the continuing custody of the Department of Social Services that was thereby instructed by the court to effectuate the unification of A and B. The department submitted to the court the plan to unify A and B by 25 September 1982.
The foster parents appealed and the Appellate Division modified it by holding that the child had been permanently neglected by both of her natural parents. The court determined that Brookwood had satisfied its statutory duty to exercise diligent efforts, finding that A had not been placed in her preadoptive home until she had been in the agency’s custody for more than one year. Under the law, a 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 that child came into the care of the agency, substantially and continuously or repeatedly to remain contact with or plan for the future of the child, although physically of 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 interest of the child.
The record indicates that Brookwood proceeded with utter indifference to B’s rights. Brookwood failed to satisfy its statutory duty. This, in itself, precludes a finding of permanent neglect.
While the foster parents suggest that in view of B’s admission of drug and alcohol abuse, Brookwood was not obligated to make diligent efforts and would have been contrary to A’s best interest, this argument has no merit. Although an agency need not exercise diligent efforts when the efforts would be against the best interest of the child, Brookwood did not rely on this exception in its petition or at the fact-finding hearing. Indeed, the record indicates that, prior to the dispositional hearings, Brookwood had made no effort to learn of B’s problems and, at the fact-finding hearing, the agency argued that it had exercised diligent efforts. Moreover, it is doubtful that suspected drug abuse by a parent would serve to entirely relieve an agency of its duty to exercise diligent efforts. This is precisely the type of problem that child-care agencies are designed to help ameliorate. The exception is not complete, and such an agency would be justified in relying on the exception only to the extent that, under the circumstances, a particular effort would be demonstrably contrary to the child’s best interest.
In other words, the petitioning agency here presented nothing to establish that it had fulfilled its duty with respect to the subject child’s natural father. Consequently, the Family Court properly dismissed the petition insofar as it alleged that the child had been permanently neglected by her father.
When a child-care agency has custody of a child and brings a proceeding to terminate parental rights on the ground of permanent neglect, it must affirmatively plead in detail and prove by clear and convincing evidence that it has fulfilled its statutory duty to exercise diligent efforts to strengthen the parent-child relationship and to reunite the family. Only when this duty has been deemed satisfied may a court consider and determine whether the parent has fulfilled his or her duties to maintain contact with and plan for the future of the child.
Once a child has been voluntarily placed with an authorized child-care agency, and is under foster care, the Family Court is vested with continuing jurisdiction over the child until there has been a final disposition of custody. A decision by that court to maintain the status quo or to return the child to his or her natural parent requires consideration of the child’s best interest. Thus, in view of the court’s decision that A was improperly held to be permanently neglected by her natural father, it is necessary to remit the matter to the Family Court for a custody determination in A’s best interest.
The court has had the occasion to comment in a similar context that “it is doubtful whether it could be found to be in the child’s best interest to deny her parent’s persistent demands for custody simply because it took so long for her to obtain it legally. The court does not disavow that principle by remitting the matter to the Family Court. Rather, in view of the evidence offered concerning A’s emotional well-being and unanswered questions concerning B’s problems with drugs, further review is both desirable and required. It may be that immediate transfer of custody would be manifestly improvident and that an indeterminate period of continued custody by A’s foster parents is required. Nonetheless, this should be left to the sound discretion of the Family Court. However, the court must add that in the event A’s custody is continued with her foster parents, B, as in the case of all parents whose children have been placed in the foster care system, is entitled to affirmative, repeated, and meaningful assistance in gaining custody of his daughter, with supervision of the agency’s efforts by the Family Court.
Accordingly, the order of the Appellate Division is reversed, without costs, and the matter is remitted to the Family Court of Kings County for further proceedings in accordance with the opinion.
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