In re Suzanne N. Y.

Order of disposition, Family Court, New York County, apparently entered December 13, 1977 though dated January 23, 1978, terminating parental rights of appellant mother with respect to her daughter Suzanne under article 6 of the Family Court Act and providing for visitation rights, is reversed, on the law and the facts, without costs, and the matter is remanded for a new trial, both as to fact finding and disposition. If at all possible, the new trial shall begin within 60 days after the order determining this appeal. (Previous appeal, see 54 AD2d 673.) The Trial Judge found neither permanent neglect nor that the mother is presently and for the foreseeable future unable, by reason of mental illness or mental retardation, to provide proper and adequate care for the child (Family Ct Act, §§ 611, 622; Social Services Law, § 384-b, subd 7, par [a]; § 384-b, subd 4, par [c]). In the absence of such findings, the statute literally requires that the court shall dismiss the petition. (Family Ct Act, §§ 622, 632, subd [a].) The Trial Judge nevertheless granted the prayer of the petition and terminated appellant mother’s parental rights with respect to Suzanne on the ground that it was time for the pronouncement of a "no fault” theory based on the best interests of the child. The Trial Judge’s view of the law appears to be supported by the decision of the closely divided Appellate Division, Second Department, in Matter of Sanjivini K. (63 AD2d 1021). But since then the Court of Appeals has decided Matter of Corey L v Martin L (45 NY2d 383, 389-391) in which it reaffirmed the importance of strict adherence to the statutory scheme in cases involving termination of parental rights and rejected consideration of the child’s best interests alone 724 as "foreign to the issue” in the absence of prerequisite findings as to the parents’ conduct. The agency and the Legal Aid Society as guardian for the infant ask us to supply the necessary prerequisite to a termination of parental rights by making a finding that the child is permanently neglected because of appellant mother’s failure to plan for the future of the child for more than one year following the date the child came into the care of an authorized agency. (Social Services Law, § 384-b, subd 7, par [a]; Family Ct Act, § 611.) We decline to make such a finding. We share with our dissenting brothers their concern for the best interests of the child as well as the respect due the parent and child tie, and their concern at the time that this proceeding has already endured without a final determination. But we think that the interests of everyone will be better protected by our adhering to procedural regularity, by not attempting as an appellate court to try to make the findings of fact which a trial court seeing and hearing the witnesses and the parties is so much better able to do, especially where so much depends on a judgment as to the personalities, abilities, emotions and actions of the parties. We think it is better that a Trial Judge make the appropriate findings after a hearing conducted by a Judge who does not share the view of the law enunciated by Judge Gartenstein and with which we disagree. We note particularly that we are making no determination as to physical custody which presents somewhat different considerations than does termination of parental rights. (Cf. Matter of Bennett v Jeffreys, 40 NY2d 543, 545.) The child is now with foster parents and was with them before the order terminating parental rights. If and when the question of changing physical custody comes up, we must assume that the court will apply appropriate rules of law based on the factual situation as it may then exist. Despite its order terminating the natural parent’s parental rights, the Family Court provided for visitation by the natural mother. There are serious problems as to whether the court had power to make such a provision. But as we are reversing the order terminating parental rights, the issue of power is no longer before us. We reverse the provision for visitation so as to leave the Family Court free to make such provision on such notice to parties in interest, as may be appropriate. Concur—Murphy, P. J., Fein, and Markewich, JJ.