New York Family Law Blog
In a proceeding pursuant to article 6 of the Family Court Act, to adjudicate SX a permanently neglected child, and to commit him to the custody and guardianship of the Commissioner of the Nassau County Department of Social Services (DSS), the natural mother, MY, appeals from an order of disposition of the Family Court, Nassau County, entered September 16, 1983, which directed that the guardianship and custody of SX be committed to the Commissioner of the DSS on condition that the child be adopted by Mr. and Mrs. Z.
The subject of this proceeding is SX, born August 30, 1970. SX has a brother, GX, born December 4, 1967, a sister, JX, born September 20, 1971, a stepbrother, W, born May 30, 1974, and a stepsister, E, born June 26, 1975. SX’s mother is MX, who, after being divorced from SX;s father, remarried and became known as MY (the appellant).
The affidavit of Mrs. N of November 24, 1982 in support of the permanent neglect petition instituting this proceeding, states that in January, 1976, MY left SX and his siblings with their father, departed for Florida, and left no forwarding address. The father, unable to cope with the children, deposited them with the police.
During the same month, January, 1976, petitions alleging neglect were filed by the DSS against SX’s mother, MY, on behalf of the five children.
The neglect petition of 1976 filed on behalf of SX charged, inter alia, that he was subjected to heated verbal arguments between his natural parents, that he had been struck with a belt and pounded against the wall by his stepfather, that his parents could not control SX’s temper, and that MY left the State without a formal plan for the children’s supervision.
All of the children were found to be neglected, as defined by section 1012 of the Family Court Act, and, on September 9, 1976, all were placed in custody of the DSS. By 1981, all the children except SX had been returned to MY, who was again residing in New York.
From 1976, when he was less than six years old, SX lived in foster homes. In 1978, due to behavioral problems, he was placed in residence at St. Christopher’s Home in Sea Cliff. Coincidentally, his brother, Gene was also in residence at St. Christopher’s. While at the home, the “Z” family became interested in SX, and on
June 22, 1979, he was placed with the Z family, where he resides to date. These foster parents want to adopt SX.
Since 1979, placement of SX with the “Z” family was extended annually on consent of the appellant. Revelations of suicidal tendencies and the deterioration and regressive condition of SX were raised, thereby causing accelerated procedures regarding SX’s placement. On November 26, 1982, the DSS filed the petition instituting the present proceeding to adjudicate SX a permanently neglected child and to commit the guardianship and custody of SX to the Commissioner of the DSS pursuant to section 384-b of the Social Services Law.
After three days of hearings, the permanent neglect proceeding was completed on December 13, 1982. On April 6, 1983, the court rendered a decision on the fact-finding hearing and granted the petition for commitment and guardianship and custody pursuant to section 384-b of the Social Services Law.
On her appeal from the order of disposition, SX’s mother advances four legal points, viz.: (1) service in this proceeding was not effected upon her in compliance with section 617 of the Family Court Act, i.e., failure to serve the summons 20 days in advance of the hearing, thereby depriving the Family Court of both subject matter and in personam jurisdiction; (2) the court refused to grant her an adjournment to prepare for trial and its insistence on proceeding on only six days notice deprived her of due process and the effective assistance of counsel; (3) the court did not use the proper legal standard in its decision granting the petition, i.e., it applied to the fact-finding determination a standard appropriate to the dispositional hearing, viz., the best interest of the child; and (4) respondent failed to establish by clear and convincing proof that SX was a permanently neglected child.
In reviewing the arguments made on appeal, we find no basis for disturbing the order under review.
Appellant’s third and fourth points are clearly without merit because the record indicates by clear and convincing evidence that she failed to meet the planning requirement of section 384-b of the Social Services Law, and that SX is a permanently neglected child within the meaning of paragraph (a) of subdivision 7 of that section.
We have considered the circumstances under which this petition has been brought and find that the “best interests” of the child will be served by granting the petition.
Similarly, we find no merit to appellant’s first and second points pertaining to jurisdiction and appellant’s request for an adjournment. Those contentions, however, warrant some further review of the record and some comment.
The court noted that the short notice contention raised by counsel for the mother should be weighed against “a life that could be terminated” and offered to subpoena any witness “to come back” if the mother’s attorney wanted to cross-examine anybody. The court added that commencing this proceeding and taking testimony had afforded SX the security of knowing that the legal proceedings and the uncertainty generated by them are going to come to an end. It was also noted on the record that the Trial Judge had been on this case since 1976.
In view of the evidence that the child might have died before a return date of “at least 20 days” and any subsequent extensions of time for appearance and answer requested by the mother, it is manifest that–under the circumstances of the case–the court might well have been derelict in its duty if it had relied upon the time frame of that statute, as appellant’s counsel now argues that it should have done.
In effect, there was no summons statute covering the extraordinary exigency faced by the court, in either the Family Court Act, court rules, or the CPLR. Under the circumstances, the issue was one of due process. When the various articles of the Family Court Act are examined, it may be seen that the notice requirement varies with the exigency involved in the nature of the proceeding. Thus, in juvenile delinquency, PINS, family offense and child protective proceedings, the service of the summons and petition shall be made at least 24 hours before the time stated for appearance.
The record also clearly indicates that appellant initially sought only a brief adjournment and that the court was willing to afford appellant time–but only on condition that the petitioner commences presenting her evidence to allay the child’s fears. The record also shows that appellant waived any jurisdictional objections at the outset of the hearing and only raised the issue of jurisdiction after seven witnesses had testified.
There appears to have been a complete indifference by the appellant to the plight of her child; rather her counsel chose to do nothing except to place on the record a technical objection that might form the basis for reversal on a later appeal, and which would unnecessarily cause the continuance of the legal uncertainty that led to the suicidal tendencies expressed by the child. Accordingly, the order granting the petition for commitment and guardianship and custody pursuant to section 384-b of the Social Services Law is hereby affirmed.
In most of abuse and/or neglect proceedings, the best interest of the child is paramount and this interest is properly protected by our courts. Because of the vulnerability of every child to be abused and neglected by people responsible for their care and protection, the law has been very vigilant in prosecuting for these cases.
The Stephen Bilkis & Associates can assist you in rendering justice for these little children. Call us now.