New York Family Law Blog
This is a motion brought before the Appellate Division of the Supreme Court of the State of New York, Second Department, by the respondent on appeals from two orders of fact-finding and disposition of the Family Court, Kings County, (one as to each child), both dated 9 June 2006, inter alia, to amend a decision and order of the Court dated 30 October 2007.
The court denied the motion, based upon the papers filed in support of the motion but ordered granted that branch of the motion which was to amend the decision and order. Thus, the decision and order of the Court dated 30 October 2007, in the above-entitled matter was recalled and vacated. The following decision and order was substituted.
The case:
Pursuant to Social Services Law § 384-b, in two related proceedings to terminate the mother’s parental rights on the ground of permanent neglect, the mother appealed from two orders of fact-finding and disposition of the Family Court, Kings County (one as to each child), both dated 9 June 2006, which, after fact-finding and dispositional hearings, found that she had permanently neglected the subject children, terminated her parental rights, and transferred custody and guardianship of the children to the petitioner and the Commissioner of Social Services of the City of New York for the purpose of adoption. Thereafter, it was ordered that the orders of fact-finding and disposition must be modified, on the facts and in the exercise of discretion, by deleting the provisions thereof terminating the mother’s parental rights and transferring custody and guardianship of the children to the petitioner and the Commissioner of Social Services of the City of New York for the purpose of adoption; the orders of fact-finding and disposition was affirmed, without costs or disbursements, the findings of permanent neglect must remain in effect, and the proceedings were remitted to the Family Court, Kings County, for a new dispositional hearing and new dispositions.
The legislature has placed primacy on the child remaining with the natural parent because it found that the child’s needs are usually best met in the natural home and that parents are generally entitled to bring up their own children. It is the State’s primordial obligation to help the family stay together. Thus, in proceedings involving termination of parental rights based upon permanent neglect, the threshold consideration is whether the presentment agency discharged its statutory obligation to exercise diligent efforts to encourage and strengthen the parental relationship.
The Family Court concluded that the termination of parental rights was warranted because, although the presentment agency made diligent efforts to assist and encourage a meaningful relationship between the mother and her children, the mother failed to avail herself of such efforts or plan for the children’s future. However, at the fact-finding hearing, the testimony adduced revealed that the mother did make significant strides toward strengthening her parent-child relationships during the subject time period. For instance, concern is justifiable on the fact that the mother was chronically late in arriving for visitation, and that she missed some of her scheduled visits. Nevertheless, the caseworker considered the mother to be in compliance with the agency-formulated service plan for much of the designated period of neglect. Sometime in September 2004, the caseworker even congratulated the mother on her completion of the service plan, which included visitation with the children, having an income, and obtaining public assistance, as well as on her successful completion of a 22-week parenting skills program, and for being generally cooperative. Moreover, the mother provided proof of suitable housing for her and the children-a two-bedroom apartment in a building owned by her father.
In view of the foregoing, it is the court’s conclusion that the termination of the mother’s parental rights was unwarranted. What the Family Court should have done was to suspend judgment for one year, at which point it would have been in a better position to evaluate the mother’s progress and to determine whether the children’s best interests would be endangered by their return to the custody of the natural mother.
Now, since more than one year has elapsed since the dispositional hearing was held, the entry of a suspended judgment at this time is imprudent. Thus, the matter must be remitted to the Family Court, Kings County, for a new dispositional hearing. Thereafter, the court must then determine, among other things, whether the mother met the appropriate conditions outlined in 22 NYCRR 205.50, prior to the issuance of the two orders dated 9 June 2006, and more specifically, whether she had been able to build upon her apparent successful beginning in forging a healthy relationship with her children up to that time, or whether, in light of her present circumstances and those of the children, the best interests of the children would require a termination of parental rights.
A child’s custody, more often than not, is the hardest issue a court must resolve. The best interest of the child must always be taken into consideration despite how hard it may seem. If you ever find yourself in a similar situation, please do contact Stephen Bilkis & Associates for a free consult.