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Issue on Appeal is Whether Commissioner Should Pursue Action to Terminate Parental Rights


In a neglect proceeding, the court on inquest found the respondent mother neglected her child as alleged in the petition filed by the petitioner Commissioner of Social Services of the City of New York. A Lawyer said that based on preponderance of the evidence the mother left the child some seven years before with the maternal grandmother without leaving any provisions for the care of the child and without informing of her whereabouts. At disposition, the Commissioner urged that the child continue to reside in the physical custody of the grandmother who pursuant to investigation by the Commissioner was found to be a proper and adequate resource.

Accordingly the child was placed with the Commissioner for up to eighteen months on the understanding that she reside with her grandmother who would be set up as a foster kinship home. Placement was extended twice for twelve-month period pursuant to the supplemental petition filed by the Commissioner who advised that the child and grandmother have “a great relationship, there is much love between them”. However, on the second supplemental petition the Commissioner gave an advice that the grandmother’s home was not approved for foster kinship purposes within the regulations.

The disqualification was premised on the fact that the grandmother was caring for six very young grandchildren in a five-bedroom house and her wish to no longer have the child welfare agency involved. The Commissioner threatened to remove the child from the grandmother, the only individual whom the child had known as her parent since birth, for a period of over nine years, if placement continued with the Commissioner. The Commissioner endorsed a modification that the disposition of the placement be directed with the grandmother. Thereafter, the court continued the extension of placement for another twelve months, but transferred the placement from the Commissioner to the grandmother. The Court directed the Commissioner to effect permanency planning for the child by having parental rights terminated so that the child may be adopted by her grandmother.

The matter appeared on the court’s calendar for a report as to the status of termination of parental rights proceeding to be filed on the child’s behalf. The Commissioner reported continued reluctance to effect the planning goal, claiming that by virtue of the placement being transferred to the grandmother it was the legal and financial responsibility of the latter to effect the freeing of the child for adoption and the Commissioner would no longer be bothered.

Almost six months after the court’s initial direction that termination proceedings be instituted by the Commissioner on the child’s behalf, the Commissioner moves to file a motion to vacate such directive. This directive was memorialized in an order whereby the Court pursuant to Family Court Act ordered the Commissioner to undertake the filing of a termination of parental rights petition within ninety days and in default thereof authorized the child’s maternal grandmother to file such petition and directed that the Commissioner afford legal representation to the maternal grandmother in that proceeding. The child’s law guardian opposes the Commissioner’s motion, advising that the maternal grandmother “wishes to continue a loving home for the subject child and to begin to plan for her permanently”. Prior to transfer of placement to the grandmother, the child had been in placement with the Commissioner for two years, five months and two days. Throughout this period there was no contact by the mother with her child.

The petitioner Commissioner claims that the subject child, by virtue of the modification of disposition from placement with the Commissioner to placement with her maternal grandmother ceased to be a “dependent child” within the ambit of Social Services Law and therefore may not be the subject of a termination of parental rights proceeding.

The Commissioner further argues that the subject child’s grandmother who is the foster parent of the child may not bring a termination of parental rights proceeding in her own name in such capacity because she is not a foster parent as defined in Social Services Law. The Commissioner claims that he is absolved of any responsibility to plan for, provide service to or effect the best interest of the subject child because the child is beyond the pale of the Social Services Law. Thus, the Commissioner asserts that the only legal remedy provided by the state to effect permanency planning is the initiation by the maternal grandmother of an adoption proceeding.

Accordingly, an Injury Lawyer said that it is inferred by the petitioner Commissioner that the grandmother left to her own initiative may adopt her granddaughter without the consent of the child’s parent, the respondent mother, based on abandonment, surrender, mental illness or mental retardation. Under the facts herein the only available ground is abandonment.

The issue in this case is whether the Commissioner is still responsible to undertake the filling of the termination of parental rights petition in behalf of the subject child who is no longer considered as a “dependent child”, by virtue of the transfer of the placement of the said child to her maternal grandmother.

The Court in deciding the case defines a dependent child. A “dependent child” under the Social Services Law is a child who is in the custody of, or wholly or partly maintained by an authorized agency or an institution, society or other organization of charitable, eleemosynary, correctional, or reformatory character.

The Court cited a guidance to be obtained from interpreting the legislative enactment of the Social Services law. First, it is desirable for children to grow up with a normal family life in a permanent home and that such circumstance offers the best opportunity for children to develop and thrive; Second, it is generally desirable for the child to remain with or be returned to the natural parent because the child’s need for a normal family life will usually best be met in the natural home, and that parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered; Third, the state’s first obligation is to help the family with services to prevent its break-up or to reunite it if the child has already left home; and Fourth when it is clear that the natural parent cannot or will not provide a normal family home for the child and when continued foster care is not an appropriate plan for the child, then a permanent alternative home should be sought for the child.

The legislature further finds that many children who have been placed in foster care experience unnecessarily protracted stays in such care and without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens. The legislature further finds that provision of a timely procedure for the termination, in appropriate cases, of the rights of the natural parents could reduce such unnecessary stays.

It is the intent of the legislature in enacting the above mentioned section to provide procedures not only assuring that the rights of the natural parents are protected, but also, where positive, nurturing parent-child relationships no longer exist, furthering the best interests, needs and rights of the child by terminating parental rights and freeing the child for adoption”.

By its terms this statement of legislative policy is not restricted to “destitute”, “dependent”, “neglected” or “abused” children, but applies to any child in foster care. One of the main avenues by which children enter foster care is by virtue of a dispositional order of placement in a Family Court Act which is the Child Protective Proceeding. Said article “is designed to establish procedures to help protect children from injury, birth injury, spinal injury or mistreatment and to help safeguard their physical, mental and emotional well-being. It is designed to provide a due process of law for determining when the state, through its Family Court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met. It is clear that state intervention having its desire to protect children from mistreatment and injury has as its ultimate goal to meet the child’s needs.

The teaching of the aforementioned statutory declarations is that the petitioner Commissioner having initiated state action with respect to the subject child and obtained the entry of the child into foster care pursuant to the original placement order, the subsequent orders of extension of placement and the modification of disposition from placement with the petitioner to placement with the grandmother, all indicia of state action, has an inchoate obligation while the child is in placement to effect proper meeting of the child’s needs. Indeed, the Court held that the fact that the placement of the child was modified from placement with the Commissioner to placement with the grandmother at the Commissioner’s request did not effect a substitution of parties to the proceeding. Thus, the Commissioner remains the named petitioner and has an on-going obligation to protect the child and advance the fulfillment of the child’s needs in proper fashion.

In addition, pursuant to Family Court Act the Family Court has broad discretion in deciding where to place a child determined to be abused, injured, or neglected. It permits the court to place the child in the custody of a relative or other suitable person, or of the Commissioner of Social Services or of such other officer, board or department as may be authorized to receive children as public charges, or a duly authorized association, agency, society or in an institution suitable for the placement of a child.

Where a child was placed with a relative or other suitable person, uncertainty as to the involvement of the Commissioner of Social Services in planning for and meeting the needs of the child constituted the gravamen of a perceived stagnant situation where the child cannot be returned to the parent for lack of change in the status quo yet also cannot be freed for adoption because the Department of Social Services has failed to attempt to strengthen the parental relationship.

In 1975, the Court said that the legislature met this concern by enacting subdivisions (c) and (d) of Family Court Act ยง 1055. Subdivision (c) provides that in addition to or in lieu of an order of placement or extension of placement (whether such placement is with the Commissioner or relative or other suitable person) the court may make an order directing the Commissioner to undertake diligent efforts to encourage and strengthen the parental relationship when it finds such efforts will not be detrimental to the child’s best interests. Subdivision (d) in the pertinent part states: “In addition to or in lieu of an order of extension or continuation of a placement the court may make an order directing a social services official to institute a proceeding to legally free the child for adoption, if the court finds reasonable cause to believe that grounds therefore exist”. The Court said that the petitioner Commissioner in essence argues that where a child is in “private” placement by virtue of state action (i.e. placed directly with a relative), such child is not the beneficiary of state action to terminate parental rights as a corollary of the state’s obligation to effect permanency planning for the child.

The Court held that this argument creates two distinct classes of children in foster care in respect of state action with differing rights to permanency planning by way of termination of parental rights and adoption regardless of the mandate to effect best interests of children in foster care. Children placed directly with the Commissioner may be freed for adoption, according to the petitioner’s thesis on the basis of abandonment, permanent neglect, mental illness or mental retardation, repeated or severe abuse, or surrender while those placed directly with a relative may advance all of the aforementioned grounds for termination of parental rights except the ground of permanent neglect or repeated or severe abuse. These latter two grounds are not set forth in the Domestic Relations Law as a basis for dispensing with parental consent. All children in the care of individuals other than parents, who are exercising parental duty and responsibility for such children by virtue of placement orders under Family Court Act are in foster care. The petitioner Commissioner would afford permanency planning by way of termination of parental rights to only those children directly placed with the Commissioner and being cared for in whole or in part by his agents or employees and as to all other children placed with relatives or individuals under state action, the Commissioner would withdraw from them the benefit of termination of parental rights as a prerequisite to freeing said children for adoption. As already noted the latter classification of children (“private” placement) would never obtain the benefit of the termination based on permanent neglect. The petitioner’s legal interpretation of the various statutory enactments by which children enter foster care and remain in foster care under Family Court Act Article 10 viewed in conjunction with pertinent provisions of the Social Services Law creates a grave implication of unequal protection of the laws.

The Court said that the petitioner Commissioner has taken the position in this matter that the grandmother’s home having not been approved, the placement must be direct with the grandmother and that this disposition is mandated by applicable regulation of the Department of Social Services. This position explicitly acknowledges the suitability of the maternal grandmother as a foster parent for her grandchild apart from the fact that the grandmother’s home was not approved.

To reiterate, the subject child was in placement direct with the Commissioner for two years, five months and two days prior to modification of placement; at no time during this period did the Commissioner ascertain if the permanency planning needs of the child could be met by adoption by her related foster parent; there has been no contact between the respondent mother and child for such period; the foster parent, the maternal grandmother, has at all times been considered a suitable relative by the Commissioner; the modification of disposition to placement direct with the grandmother was at the Commissioner’s insistence based upon the Commissioner’s invocation of the aforementioned regulation.

Under the circumstances outlined above and in light of the specific grant of placement options available to the court under Family Court Act and in order to effectuate the meeting of the subject child’s needs, the court construes the applicable statutory enactments in a manner designed to avoid disparate treatment in terms of permanency planning and meeting the needs of the children placed directly with the Commissioner or directly with a relative. Accordingly the regulation of the Department of Social Services notwithstanding, the court denies the motion of the petitioner Commissioner for an order vacating this court’s prior order directing the Commissioner to file a termination of parental rights proceeding on behalf of the subject child.

The Court further held that in order to more properly effectuate this directive and remove any apprehension by the Commissioner that he may not do so within the terms of the Social Services Law, the court as parents of the State to the child modifies the dispositional order of to direct that the child is placed with the Commissioner of Social Services with a further direction to the Commissioner that the child reside with her maternal grandmother. The Court ordered that the termination of parental rights proceeding is to be initiated by the Commissioner on behalf of the subject child forthwith and failure to do so may be viewed as contempt of Court.

A child that has been neglected by his own parents causes emotional pain. Every child from birth has the right to be taken care of by his relatives in the absence of her parents. Do you know of a child that has been neglected by his parents? You need the assistance of a Kings Birth Injury Attorney. At Stephen Bilkis and Associates, we can provide you with the services of our Kings Injury Attorney to assist you with your needs.

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