The subject child was born on February 10, 2004 with a positive toxicology for opiates. This father is listed on her birth certificate. The subject child remained in the hospital for over a month due to withdrawal symptoms. When she was released from the hospital on March 17, 2004, the Administration for Children’s Services (hereinafter ACS) conducted an emergency removal, and thereafter, she was remanded to ACS, subsequent to, and pending, the resolution of the neglect petition ACS filed against her mother and father on March 19, 2004. On April 16, 2004, she began to reside with her current no kinship foster parents.
At the time the subject child was born, both her mother and father were using street methadone and heroin. ACS’s neglect petition alleges neglect by virtue of their substance abuse as well as the mother’s mental illness. The subject child’s parents were not married at the time she was born or subsequently. An order of filiation was entered on May 11, 2004 upon the request and consent of her parents, because at that time the agency and parents did not have a copy of her birth certificate in order to know whether the father had established his paternity. Based on the parents’ admissions and consent, a finding of abuse and neglect was entered against both parents on May 11, 2004. While this father was incarcerated, the court ordered him to be produced telephonically from prison in order that he could participate in all proceedings, including the permanency hearings. Upon consent, the court issued an order of disposition placing the child with the Commissioner of ACS on September 7, 2004.
The last permanency hearing order was issued on October 18, 2005 wherein the court approved the goal of reunification with parents. However, the court extended the child’s placement in foster care because the return of the child home would be contrary to her best interest, insofar as the respondent mother failed to make sufficient progress in her mental health and substance abuse services and the respondent father was incarcerated. The court approved a service plan for the father, which included successfully completing a drug treatment program and its aftercare component upon his release from prison. It is important to note that when the subject child was placed in foster care, specifically non kinship, her birth parents were warned and notified in this permanency hearing order as well as the prior disposition order that if she remained in foster care for 15 of the most recent 22 months that the agency may be required to file a petition to terminate parental rights.
The foster care agency filed a petition to terminate the mother’s parental rights (hereinafter TPR) on the grounds of permanent neglect on June 16, 2006, and placed the father on notice of the pending petition, including his right to provide evidence regarding the child’s best interest at the dispositional phase.
On September 29, 2006, this court commenced another permanency hearing, accepting documentary evidence and hearing testimony from the agency caseworker. ACS rested, and both parents requested an adjournment for purposes of testifying. Pending the conclusion of the permanency hearing, the court directed the agency to continue to work with the parents in planning for the return of their daughter. The court emphasized that even though the agency had recommended a goal of adoption and had filed a petition to terminate the mother’s parental rights, this court required the agency to engage in concurrent planning, pending conclusion of the permanency hearing. The case had to be adjourned to January 19, 2007, the earliest date the court and all attorneys were available. On January 19, 2007, the law guardian was engaged in an emergency hearing, which takes priority over all matters before Family Court. The permanency hearing had to be adjourned to April 17, 2007, the earliest date the court and four attorneys were available.
In February 2007, the father’s counsel submitted two motions, the first requesting a stay of the termination of parental rights fact-finding, pending the permanency hearing and appeals. The second moved the court to dismiss the termination of parental rights petition, claiming Domestic Relations Law § 111 (1) (d) is unconstitutional as drawn and as applied.
The issues in this case are, first, whether the agency’s petition to terminate the mother’s parental rights should be held in abeyance, pending the conclusion of, and appeals from, the permanency hearing, and second, whether the agency is collaterally estopped from prosecuting its petition to terminate the mother’s parental rights, which alleges that he is only entitled to notice thereof, as a result of a prior permanency hearing order. His second motion presents the primary issue of whether Domestic Relations Law § 111 (1) (d), which sets out the requirements for an unwed father to have veto rights over his child’s adoption, is constitutionally infirm because it denies him equal protection and due process based on distinctions by gender and marital status.
The first issue presented is whether the court must or should hold the termination of parental rights petition in abeyance, pending the conclusion of, and appeals from, the permanency hearing, and pending the court changing the goal to “free for adoption.” The father’s counsel argues this is a case of first impression, and that despite the lack of statutory or case law support, this court should find that the Commissioner, or an authorized agency who has been vested with authority by the Commissioner, cannot file a petition to terminate parental rights until the permanency hearing and all appeals have been decided. The father’s main argument is that the permanency hearing drives the petition to terminate parental rights and that a parent’s due process rights are violated if the court does not first conclude the permanency hearing and approve a goal of “free for adoption.” Further, the father maintains that only the Family Court has the authority to change the permanency goal.
The counsel for the agency, who did not submit any papers in opposition to the motion, argued that the intention of the New York Legislature in passing the new permanency laws of 2005, and Congress in passing the Adoption of Safe Families Act (hereinafter ASFA), was to ensure timely permanency for children who were languishing in foster care. The agency maintained that Tatiana, who has been in foster care for three years already, deserves permanency and would be prejudiced if the court held the TPR in abeyance. Further, the agency argued that under the executive branch, it has the discretion to change the permanency goal, since it is not “effectuated” until the court proceeds with the petition to terminate the parental rights. Lastly, the agency maintained it does not have to obtain the court’s approval before it files a petition to terminate parental rights.
This issue raises questions that concern the essence of the permanency laws passed in December of 2005, and the roles that the judicial and executive branches play in these proceedings. In 2005, part of Family Court Act former § 1055 was replaced by article 10-A, which governs permanency hearings for foster care placements. The main purpose of this new legislation was to improve permanency for children in foster care and bring New York in more affirmative compliance with federal guidelines set forth in ASFA and the requirements under title IV-E of the Social Security Act. The most significant change in the new law was Family Court’s continuous jurisdiction from the day a child is placed in foster care until the date that permanency is achieved (e.g., family reunification, adoption, custody or guardianship). In addition, Family Court must now hold a permanency hearing every six months when a child continues in an out-of-home placement.
Pursuant to article 10-A, the Commissioner or the authorized agency has the obligation to recommend a permanency plan, which includes a permanency goal, such as but not limited to, “return to parent” or “free for adoption.” There is nothing in the statute or case law that limits an agency’s discretion to change the permanency goal. The court does, however, have the authority to direct an agency not to change a permanency goal without the court’s approval. An agency is required to file a petition to terminate parental rights when a child has been in non-kinship foster care for at least one year or 15 of the most recent 22 months absent compelling circumstances. The court also has the authority “where the court finds reasonable cause to believe that grounds for termination of parental rights exist” to direct the local social services district or other agency to institute a proceeding to legally free the child for adoption or permit the foster parents to file such a petition if the agency has not complied, unless there is good cause shown for delaying such a filing. As such, based on the clear statutory language in article 10-A, the agency has the executive discretion to change the permanency goals and to file petitions to terminate parental rights, but Family Court has the ultimate authority to approve or modify the permanency goal and to either grant or deny the agency’s petition for termination of parental rights. Ultimately, only the court can actually legally free a child for adoption.
With respect to the parents’ due process rights, the father’s argument is misplaced. As such, courts must use at least a clear and convincing standard in order to ensure parents’ due process rights are respected. Yet counsel relies on this decision to assert that the permanency hearing is meant to ensure parents’ due process rights. The standard of proof at a permanency hearing is a preponderance of the evidence, lower then clear and convincing evidence. Notably, a court cannot sever a parent’s parental rights at a permanency hearing, which is why the higher burden of proof is required at a termination of parental rights proceeding.
In this case, the subject child has been in foster care since birth. She is currently three years old and has been with the same foster parents, who would like to adopt her. The last permanency hearing order was dated October 18, 2005 in which the goal was approved as “return to parents.” The subsequent permanency hearing began in September of 2006 and after three adjournments, due to attorney unavailability, has not been completed. The May 31, 2007 court date was originally set aside to start the TPR, which was filed in June of 2006. Based on the above analysis, the court finds that Tatiana, the subject child, would be prejudiced if the court granted the father’s motion to hold the TPR in abeyance, since she has been in foster care for three years and deserves permanency. The father, on the other hand, is not prejudiced because the agency is still required to prove their cause of action by clear and convincing evidence and then, at disposition, that it serves the best interest of the child to be freed, all of which is appealable. This court declines the father’s request to set a precedent, which would frustrate the purpose of the permanency law.
The next issue is whether the agency filing of the petition in June of 2006 to terminate the mother’s parental rights and give the father notice is collaterally estopped by the permanency hearing order issued by this court in October of 2005, which stated that the goal was “return to parents.”
It is established law that the doctrine of collateral estoppel bars the “relitigation of factual issues between the same parties when those issues were in controversy and actually determined in a prior lawsuit.” In order to establish collateral estoppel there must be (i) an “identity of issues” that were decided in the prior litigation and are decisive of the present litigation and (ii) the party against whom collateral estoppel is sought had a “full and fair” opportunity to be heard. Courts apply the doctrine of collateral estoppel with flexibility, considering competing policy concerns such as “fairness to the parties, conservation of the resources of the court and the litigants, and the societal interests in consistent and accurate results.”
Based upon the foregoing analysis, the court held that the father does not meet the requirements of a consent father, under Domestic Relations Law § 111 (1) (d), because he did not have a substantial and continuous relationship with his daughter for the past three years. Moreover the distinction drawn by the statute is constitutionally permissible because it is based on the relationship an unwed father establishes with his child.
Accordingly, both motions are denied in their entirety.
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