This consolidated-proceeding before the court is somewhat complex procedural posture. A New York Family Lawyer said there are three separate matters: a petition filed by New York Foundling Hospital (hereafter “the agency”) pursuant to Section 384-b of the Social Services Law (“SSL”) seeking termination of parental rights and a transfer of child custody and guardianship to NYFH; a petition 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. All three petitions were consolidated, and a hearing was held on October 19 and 20 and concluded on October 25, 1978. Counsel was requested to submit post-trial memoranda in lieu of oral summations; the last was received on December 22, 1978.
A Bronx Family Lawyer said that, the natural parents, never married but lived together from 1967 to 1974, during which time three children were born: Yvonne, on October 23, 1968; Gladys, on June 9, 1970, and William, on April 20, 1973. 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. He was imprisoned until September 1977. In 1975 the natural mother voluntarily placed the subject child, who suffers from severe physical and mental handicaps, in temporary foster care. In 1976 the mother abandoned the two other children and on December 7, 1976 the Family Court placed them in the CSS’s custody for 18 months.
A Bronx Custody Lawyer said that, during his entire imprisonment the father (whose whereabouts was then unknown) made no attempt to stay in touch with his family and he testified he heard nothing from the mother. Only after the agency, through its own diligent efforts, located him in the Correctional Facility in August 1977, did he learn of the children’s foster care placements; immediately after being paroled, in September 1977, he visited the agency to seek child 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. After the subject child had been placed in their home for some two months, the foster parents requested that the natural parents join her; the children were reunited in September 1977 for the first time since 1975. In October 1977 the agency denied the father’s requests for child 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 father, the child having been only one year old when his father was imprisoned, and the other child being mentally incapacitated. Visits were discontinued when the natural parents became upset by them.
A New York Custody Lawyer said that, when these proceedings came to trial in October 1978, the 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. The foster parents, live with the three children in a three-bedroom suburban garden apartment.
The issue in this case is whether the natural parents of the subject child should be divested of its 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, 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 father; that those two agency contacts (not, note, contacts with her children) are insufficient to preclude a finding that the 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.
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.
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 in the 1978 case decision. 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.
Although rare, refusal by a lower court or individual judge to apply seemingly binding superior precedent is not unique. Among the factors courts have weighed in their efforts to determine whether current precedent is binding are: substantial factual distinctions; recent trends in substantive judicial opinion favoring change in the rule, reversed; pending Supreme Court review of a similar case; presentation of new legal as well as factual issues not reviewed earlier; and, finally, the weight and constitutional dimension of the rights at issue.
The court declines to apply the New York rule pronounced in the 1978 case for much the same compelling reasons cited by the federal district court, when it declined to enforce a state flag-salute statute. After noting that the rationale and legal authority for the earlier rulings had been made uncertain by later developments, the court concluded:
Under such circumstances, and believing, as we do, that (the statute as applied) is violative of religious liberty we feel that we would be recreant to our duty as judges, if through a blind following of a decision which the Supreme Court itself has thus impaired as authority, we should deny protection to rights which we regard as among the most sacred of those protected by constitutional guaranties. Despite the presence of all these factors, the court is loathed “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 1978 case.
The court will therefore preserve the status quo; 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.
Court’s 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. If you are involved in s a similar case, seek the legal advice of a Bronx Visitation Attorney and Bronx Guardianship Attorney at Stephen Bilkis and Associates.