In re the Guardianship of Whitten

OPINION OF THE COURT Kassal, J. This is an appeal by appellant Mary Whitten Stringfield, from the order of disposition which permanently terminated her parental rights and transferred custody and guardianship of Star Leslie to petitioner, Leake & Watts Children’s Home, jointly with the Commissioner of Social Services. We agree with the determination of the Family Court that there was clear and convincing proof that appellant had failed and neglected to maintain contact with or plan for the future of the child for a period of more than one year — 255 — following the date the child came into the care of the agency, notwithstanding petitioner’s diligent efforts to encourage and strengthen the parental relationship (Social Services Law, § 384-b, subd 7, par [a]). As found by the Trial Judge, appellant’s plan was tenuous and unrealistic, with no positive, affirmative steps taken “to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent.” (Social Services Law, § 384-b, subd 7, par [c].) Appellant’s child, Star Leslie, was born July 19, 1979. One week later, the mother brought the child to her foster parents, Mr. and Mrs. Harden, who were to care for her until appellant could do so. Within a few weeks appellant departed from the Harden Home, leaving the child behind, whereupon the Hardens sought reimbursement as foster parents and, at Mrs. Harden’s request, appellant signed a voluntary surrender agreement. The child entered foster care with the same Hardens in August, 1979. Thereafter, during the last four months of 1979, appellant visited the child six times and, in all of 1980, there were only six visits, on January 12, February 15, April 21, August 21, and October 6 and 8, 1980, the last four being clinic appointments at the agency. In December, 1980, appellant moved to her sister’s home in Yonkers, did not apprise the agency of her whereabouts and maintained no contact with petitioner until June, 1981. The first proceeding to terminate appellant’s parental rights was instituted in February, 1981 and, after the initial hearing held in June, 1981, when appellant expressed a willingness to care for her daughter, the petition was withdrawn. On December 17, 1981, the child was returned to the mother. Less than one month later, however, on January 13, 1982, appellant returned the child to the Hardens, at which time the child was found to have serious diaper rash. At the time, appellant had been living with Robert Stringfield, whom she later married during the period the fact-finding hearing was held. The record confirms the Family Court’s finding of neglect and failure to plan for the future and the order of disposition entered thereon. This conclusion is supported — 256 — by the Legal Aid Society, serving as Law Guardian of the child. While the dissent challenges this as an inaccurate statement of the Law Guardian’s position and, for that purpose, quotes the second sentence appearing on page 1 of the Law Guardian’s brief on this appeal, the balance of the 25-page brief unmistakably reflects the Law Guardian’s recommendation. The Law Guardian opines that “Star’s rights and interests are best served by the order terminating appellant’s parental rights and awarding custody to the respondent agency so that Star may be adopted.” The Law Guardian’s brief closes with this unequivocal statement of its position: “Thus, while disruption of the adoption plan may advance appellant’s interests, it will not advance Star’s interests. Star is entitled to the legal permanence and attendant emotional security of an adoption by her foster parents. The order freeing her for adoption is sound and should be affirmed.” Both appellant and Stringfield claimed that the child was taken to the Hardens during a snowstorm when the boiler of the building in which they lived broke, so that the apartment was without heat. According to the social worker, however, appellant told her a different story — that she and Stringfield had a fight, the police had been called and Stringfield had ordered her out of the apartment. This account was confirmed by the police “sprint” report, recording a response to an incident at the premises involving a female with a knife. It further appears that two days after returning to the Harden home, Mr. and Mrs. Harden accompanied appellant to Stringfield’s apartment to retrieve her belongings but, when appellant never came downstairs, the Hardens returned home without her. They alone continued to care for the child. This hardly appears to be the “stable” relationship and healthy and mature atmosphere conducive to normal child rearing, as suggested by the dissent. Thereafter, on January 21, 1982, appellant sought the agency’s permission to resume the care of her daughter. While the agency did permit visitation, it directed Mrs. Harden not to return the infant to appellant. Subsequent to the return of the child to the Hardens in January, 1982, there were five visits by the mother, on February 2, May — 257 — 30, June 20, and July 2 and 4, 1982. This permanent neglect petition was filed February 17,1982. Following the fact-finding hearing in July, 1982, the child was removed from the Harden home since Mrs. Harden had to be hospitalized. The infant was placed in a preadoptive home with another couple, with children, and where she now resides. Contrary to the intimation by our dissenting colleague, there was not only “one incident” of neglect here. The relationship evinces a pattern of continuous neglect and an utter failure to plan for the future of the child. As found by the Trial Judge, “[t]he record has shown quite clearly that there is a lack of insight; there is a lack of judgement [sic]; there is a lack of consistency.” The finding, to a large extent, was based upon the trial court’s assessment of credibility, a determination with which we are reluctant to interfere. The Family Court Judge, having observed the demeanor of the witnesses first hand, is in far better position to make an on-the-scene evaluation of creditability (Matter of Layton v Foster, 61 NY2d 747; Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; Siegel, NY Practice, § 529, pp 731-732). Section 384-b (subd 7, par [a]) of the Social Services Law defines “ ‘permanently neglected child’ ” as “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”. Section 384-b (subd 7, par [c]) of the Social Services Law defines “ ‘to plan for the future of the child’ ” as taking “such steps as may be necessary to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent. The plan must be realistic and feasible, and good faith effort shall not, of itself, be determinative.” Before parental rights may be terminated, the proof offered must be “clear and convincing” (Santosky v Kramer, 455 US 745). The record establishes that for more than one year after the child came under the care of the agency, appellant — 258 — failed to plan for the child’s future. The statute requires formulation and action upon a feasible and realistic plan (Matter of Orlando F., 40 NY2d 103, 110). As far as appears, appellant had no plan, maintaining infrequent and sporadic contact with the child over an extensive period, with no visits during periods of several months. Clearly, she has demonstrated an utter failure to develop a meaningful plan for the child’s future. Some affirmative action on her part was necessary, beyond uncommitted and infrequent contacts and mere expressions of concern for or desire to care for the infant. We disagree with the dissent that the evidence was equivocal. To the contrary, the proof of neglect and failure to plan is clear and most convincing. In addition to other overwhelming proof, Dr. Ruth Cohen, a psychiatrist associated with the Family Court Mental Health Services, was an objective and disinterested witness. Her personal evaluation, based both on a review of records and an interview, concluded that appellant was unable “to lead a normal functioning aspect of life to deal with appropriate insight and judgement [sic] in terms of everyday kinds of matters that are necessary for normal functioning.” She carefully diagnosed appellant’s personality traits and opined that appellant had “no insight into her problems” and tended to “externalize blame” by ascribing fault to the agency for having assumed custody over the child. On this record, it appears that appellant never developed a real relationship with the child. The trial court found that her conduct between January, 1980 and June, 1981 evinced a failure to plan for the child’s return. The statutory period provided for in section 384-b (subd 7, par [a]) of the Social Services Law contemplates any one-year period during the child’s placement and this need not be the year preceding the filing of the petition for permanent neglect (see Matter of Norma Jean K., 81 AD2d 919). At best, the return of the child to the mother in December, 1981 lasted for only a few weeks, the Hardens thereafter resuming the care of the infant. Her subsequent voluntary abandonment of her daughter in favor of Stringfield, after she had allegedly gone to retrieve her belongings, together with the lack of contact during the ensuing period in 1982, — 259 — further evidence the absence of any meaningful plan. Furthermore, it does not appear that appellant attempted to secure employment, other than during the four or five months in 1982 when she worked in the energy office in a job provided her through public assistance. Her other experiences, babysitting on a part-time basis for a neighbor, do not operate as a substitute for her failure as a parent to plan for her child’s future. The absence of any real or meaningful relationship with the infant is reflected in the report of appellant’s visits with the child. As was reported by the social worker, Marianne Cohen, appellant is “usually very passive * * * sits and smokes cigarettes and talks to child occasionally * * * does not play with the child * * * or interact in any meaningful or emotional way.” Of significance is the report of the December 23,1982 visit, after a decision on the fact-finding hearing had been issued but before the disposition hearing was held. The mother spent most of the time teasing and snatching toys away from the child, although she was told by the social worker that Star disliked being teased. It was reported that the child at one point told her mother to “get out” and told appellant, “I’m not your friend anymore”, whereupon the mother responded, “then I’m not your friend either.” It was further reported that although the child cried upon being separated from Mrs. Harden, she “does not get emotional about” and is “indifferent to” appellant’s visits, and also is not upset when appellant leaves. This is in sharp contrast to the excellent adjustment which the child has currently made in the preadoptive home of her present foster parents, who have treated her “with much warmth and understanding and intelligence.” On this record, the pattern of neglect over a long period of time and the absence of any definitive plan for the child’s future clearly militate against affording the parent an additional opportunity to do what she has been reluctant or unwilling to do in the past. Under the circumstances, with due regard for the paramount concern of the best interests and welfare of the child, we agree with the determination which terminated appellant’s parental rights (cf. Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Dickson v — 260 — Lascaris, 52 NY2d 894). Star has already experienced one painful separation from the Hardens. She is now well adjusted with her foster parents, who apparently love her and whom she regards as her new psychological parents. Another separation will be a wrench to her emotional security. For her development, continuity of this relationship is essential. We share to the same degree the profound concern of our dissenting colleague as to the critical nature of the issues raised and determination to be reached in Family Court neglect proceedings, both in terms of general considerations and the specific situation at bar. The issue of termination of parental rights is always most troublesome. Nor do we disagree at all as to the absolute necessity to safeguard the fundamental rights of litigants and ensure procedural due process. Aside from serving as a statement of general social policy, however, the conclusions expressed by the dissent are unwarranted and inapplicable here. On this record, there was no denial of due process and, furthermore, there is no such claim by appellant. There were two extensive hearings held, presided over by an experienced Judge; the fact-finding hearing is contained in a transcript of 96 pages, the dispositional hearing, 113 pages; all parties appeared and were effectively represented by able counsel, the child had separate counsel in that Legal Aid Society served as Law Guardian; and there is not the slightest charge by the respondent of a denial of any procedural right in connection with the holding of the hearings. All parties were accorded a full panoply of their rights, including the right to call any witness and fully cross-examine those who testified at the hearings. While we fully appreciate the views of our dissenting colleague, the sentiments expressed in the last paragraph of the dissent are inflammatory and irrelevant to the disposition of this appeal. The proceeding was neither arbitrarily tried nor decided, nor is it in any way demonstrative of a “star chamber proceeding”. The issues were fully and fairly tried by competent counsel and an able jurist and the intimation that the court is an intruder and should refrain from taking appropriate action in these cases would amount to an abdication of the judicial respon — 261 — sibility inherent in our office. The judicial disposition which accords with due process can hardly be equated with the “arbitrary midnight ‘knock on the door.’ ” Accordingly, the order of disposition of the Family Court, New York County (Bruce M. Kaplan, J.), entered April 8, 1983, which permanently terminated appellant’s parental rights and transferred custody and guardianship to petitioner, Leake & Watts Children’s Home, jointly with the Commissioner of Social Services, should be affirmed, without costs or disbursements.