11 Class 11 - Termination of Parental Rights / Representing Parents - November 10 11 Class 11 - Termination of Parental Rights / Representing Parents - November 10
11.1 In re the Guardianship of Star Leslie W. 11.1 In re the Guardianship of Star Leslie W.
In the Matter of the Guardianship of Star Leslie W., an Infant. Leake & Watts Children’s Home, Respondent; Mary W. S., Appellant.
Argued September 4, 1984;
decided October 18, 1984
*139POINTS OF COUNSEL
David J. Lansner for appellant.
I. Petitioner did not establish by clear and convincing evidence that appellant had permanently neglected her child. (Matter of Malpica-Orsini, 36 NY2d 568; Matter of Anita “PP”, 65 AD2d 18; Matter of Karen L., 80 AD2d 681; Matter of Amos HH, 59 AD2d 795; Thorn v New York City Dept, of Social Servs., 523 F Supp 1193; Matter of Mehl, 114 Misc 2d 55; Matter of Mickey B., 65 AD2d 603; Matter of Sheila G., 61 NY2d 368; Matter of Ricky Ralph M., 56 NY2d 77; Matter of Star A., 55 NY2d 560.) II. The dispositional order terminating appellant’s parental rights should be reversed. (Matter of Norma Jean K., 81 AD2d 919; Matter of Wesley L., 72 AD2d 137, 49 NY2d 1047; Matter of Leon RR, 48 NY2d 117; Matter of Star A., 55 NY2d 560; Matter of Thomas TT., 67 AD2d 788; Matter of Sanjivini K., 47 NY2d 374.)
Helen L. Buttenwieser and Ann S. Harrison for respondent.
I. Respondent-appellant’s actions have clearly demonstrated her failure to plan for her child. (Matter of Melanie Ruth JJ, 76 AD2d 1008; Matter of Orlando F., 40 NY2d 103; Matter of John A A., 89 AD2d 738.) II. Star Leslie came into the custody of the Commissioner of Social Services on August 27, 1979 and is in his care to date.
Wendy Sue Lauring, William E. Hellerstein and Lenore Gittis, Law Guardian, for Star Leslie W. I.
The affirmed finding of permanent neglect is supported by the record. Appellant’s objections to that finding go to the weight of the evidence and are beyond this court’s power of review. (Aerated Prods. Co. v Godfrey, 290 NY 92; Lue v English, 58 AD2d 805, 44 NY2d 654; Matter of Infant D., 34 NY2d 806; Matter of Sheila G., 61 NY2d 368; Matter of Mickey B., 65 AD2d 603; Matter of Amos HH, 59 AD2d 795; Matter of *140Norma Jean K., 81 AD2d 919; Matter of Ray A.M., 37 NY2d 619.) II. The evidence established that the dispositional order freeing the child for adoption is in her best interests. (Matter of Orlando F., 40 NY2d 103; Santosky v Kramer, 455 US 745.)
Frederick A. 0. Schwarz, Jr., Corporation Counsel (Fay Leoussis of counsel), for New York City Commissioner of Social Services.
OPINION OF THE COURT
This is an appeal from an order terminating respondent’s parental rights to her child, Star Leslie W., because of permanent neglect (Social Services Law, § 384-b, subd 4, par [d]; subd 7). To support that order the statute requires proof before Family Court that respondent failed to maintain contact with or plan for the future of her child for a period of one year after the child came into the custody of an authorized agency notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship. Respondent contends that petitioner failed to establish neglect under the statute by clear and convincing evidence (see Santosky v Kramer, 455 US 745; Matter of Michael B., 58 NY2d 71) but more particularly she claims that the order should be reversed because the child was not in the custody of an authorized agency at the time the petition was filed and because the petition was not filed until several months after the one-year period of neglect found by the court. Family Court granted the petition and the Appellate Division affirmed by a divided court. We now affirm its order.
Respondent, a foster child herself, lived with her foster family from 1965 until 1977. She was 18 years old when she left.. On July 19, 1979 she gave birth to Star Leslie W. After attempting unsuccessfully to care for the baby for a week she took Star to the home of her former foster mother and left her there. Respondent’s foster parents were subsequently placed on foster parent status for Star in August so they could be paid, respondent signing a voluntary commitment of the child to the Commissioner of Social Services for that purpose. He subsequently transferred care to *141Leake & Watts Children’s Home which in turn transferred her to the foster parents. Star resided with them continuously until July, 1982, except for a period of one month in December-January, 1981-1982 when she lived with respondent. In July, 1982, after the foster mother became ill and was no longer able to care for Star, petitioner placed her in a preadoptive home. During the time the foster parents had Star, respondent was given unlimited visitation rights. She saw her child six times in 1979 and six times in 1980. The visits were either at the foster home or arranged by petitioner at. its clinic during examinations of the child. To the knowledge of petitioner, respondent did not see the child between October, 1980 and June, 1981.
During 1979 and 1980 respondent changed residences several times leaving her own apartment to live variously with her boyfriend, Robert, and her sister in The Bronx and then moving to Yonkers to live with another sister before returning to Robert. She was frequently out of contact with the petitioner for extended periods of time, moving without leaving a forwarding address and failing to notify it of the changes. Petitioner’s social worker testified that she could not locate respondent for a period of four months after April, 1980 and that respondent moved to Yonkers in October, 1980 and did not reappear until June, 1981. The social worker talked with respondent in November, 1980 and learned of her move to Yonkers but respondent would not tell the social worker how to contact her there.
In February, 1981 when petitioner could not locate respondent, it instituted a proceeding to terminate her parental rights based upon a one-year period of permanent neglect. Respondent apparently learned of this through her foster mother and appeared at the intake hearing in June, 1981. At respondent’s urging, the petition was withdrawn in October, 1981 and plans were made to deliver Star to her temporarily at her boyfriend’s apartment, where she was then living. On December 17, 1981, the transfer was completed but it ended on January 13, 1982 when respondent left the apartment and returned with the baby to her foster mother. Although respondent contended at trial that she left because there was no heat in the apartment, Family *142Court accepted contrary evidence and found that she left because her boyfriend had thrown her out of the apartment after a violent fight which necessitated a call to the police. Two days later respondent returned to the apartment with her foster parents to recover her clothes. She went upstairs and, during the two hours they waited, failed to come down. Star remained in the foster home, and respondent visited her there five times between January and July, 1982. Star is now five years of age. During her life she has resided with respondent only one week after her birth and for the period from December 17, 1981 until January 13, 1982.
In February, 1982 petitioner instituted this proceeding. The natural father was served by publication and failed to appear.
I
We have recently stated our strong determination that before terminating a parent’s rights the State must first attempt to reunite the parent with her child. Thus, the threshold inquiry by the court in any neglect proceeding must be whether the agency exercised diligent efforts to strengthen the parental relationship (Matter of Sheila G., 61 NY2d 368). Those efforts must include counseling, making suitable arrangements for visitation, providing assistance to the parents to resolve or ameliorate the problems preventing discharge of the child to their care and advising the parent at appropriate intervals of the child’s progress and development (Social Services Law, § 384-b, subd 7, par [f]; Matter of Sheila G., supra, at pp 384-386; Matter of Star A., 55 NY2d 560). These measures are not exclusive. The agency is free to attempt other reasonable and practical 'means to encourage and strengthen the family relationship.
Additionally, neglect may be found only after it is established that the parent has failed 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 (Social Services Law, § 384-b, subd 7, par [a]). The requirement is several: the parent must maintain contact with the child and also realistically plan for her future. A *143default in performing either may support a finding of permanent neglect (Matter of Orlando F., 40 NY2d 103, 110; Matter of Candie Lee W, 91 AD2d 1106; Matter of John AA., 89 AD2d 738). Insubstantial or infrequent contacts with the child are insufficient (Social Services Law, § 384-b, subd 7, par [b]) and the planning requirement contemplates that the parent shall take such steps as are necessary to provide a home that is adequate and stable, under the financial circumstances existing, within a reasonable period of time. Good faith alone is not enough: the plan must be realistic and feasible (Social Services Law, § 384-b, subd 7, par [c]).
After a fact-finding hearing, Family Court found that respondent had maintained contact with Star, notwithstanding respondent’s absences for extended periods. It found, however, that respondent had failed to plan for her child’s future, despite the agency’s diligent efforts, and it therefore granted the petition and permanently terminated respondent’s parental rights. After a dispositional hearing, it transferred custody to petitioner and the Commissioner of Social Services for adoption. At the Appellate Division, all the Judges agreed that respondent had failed to plan for the child. Two Judges dissented because they believed that petitioner had not made diligent efforts to reunite respondent with her child. Justice Asch also found procedural irregularities which in his judgment required reversal.
The evidence in the record supports Family Court’s finding of diligent efforts to assist respondent. At the time of the birth respondent lived in a small apartment by herself. Petitioner had no objection to the accommodations but respondent did not want to care for the baby there so petitioner’s social worker referred her to the Home’s housing office. Respondent went to the housing office where she was given referrals to investigate but she failed to follow through on them. Although it was clear that housing was respondent’s main problem, she failed to take any concrete steps to solve it. Apparently her only plan to establish a home for Star was to marry her boyfriend. In the meantime, she moved frequently, staying with him intermittently after 1979, and leaving twice for extended periods of time during which she failed to notify the agency of her *144change of address or how she could be reached. Nevertheless, petitioner’s staff counseled her as they could and it continued foster care in respondent’s own former foster home, a familiar setting, and encouraged her to visit often and participate in the child’s upbringing. It arranged for clinic visits for the child and informed the mother of them so she could be present to visit and check the baby’s progress.
Notwithstanding petitioner’s lack of success and its inability to maintain regular contact with respondent because of her moves, the agency agreed to withdraw the 1981 petition after she returned that summer and made renewed efforts to reunite mother and child by encouraging future visitation and by arranging for a trial period when the child would live with respondent and her boyfriend. It was planned that respondent would obtain public assistance for the child, find day care help and return to school. Hopefully she and her boyfriend would marry. After several visits to the apartment with Star to acquaint her with her mother and the surroundings, Star was transferred to respondent on December 17. The agency supervised the trial arrangement, visiting the apartment periodically, helping with the adjustment of the assistance budget and attempting to arrange day care for the child so that respondent could continue her schooling. It was only after this trial effort had failed, respondent had returned the baby to her foster parents and had failed to return to care for her that petitioner ceased its efforts and started this proceeding. It was not required to do more. The statute requires only reasonable efforts and this record is devoid of any commitment by respondent to plan for herself and her baby or to follow through on suggestions and efforts made by petitioner’s staff (see Matter of Orlando F., 40 NY2d 103, supra; Matter of Candle Lee W, 91 AD2d 1106, supra; Matter of John AA., 89 AD2d 738, supra). An agency which has tried diligently to reunite a mother with her child but which is confronted by an uncooperative or indifferent parent is deemed to have fulfilled its duty* (see Matter of Sheila G., 61 NY2d 368, 385, supra).
*145Respondent contends further that the order may not stand because petitioner did not establish that the child was in the care of an authorized agency at the time the proceeding was commenced, as the statute requires (Social Services Law, § 384-b, subd 7, par [a]). She maintains that the agency is unable to prove either its right to care for the child or that neglect continued for one year after it legally received her. The argument is premised on two alternative grounds, first that the commitment document is not to be found in the record and second, that custody, even if lawfully acquired in 1979, was terminated by the delivery of Star to respondent December 17, 1981 and no new commitment was acquired after her return to the foster parents.
We find no merit to either contention. The petition identified the commitment and alleged that respondent had executed it on August 27, 1979, petitioner’s social worker testified to the execution without objection, and respondent’s counsel did not challenge the sufficiency of the evidence on this ground at the hearing. Having failed to raise the issue at that time, she may not do so now (see, generally, Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 162).
Nor was the custody of petitioner terminated by the delivery of the child t'o respondent in December, 1981. The transfer of care was temporary and made on a trial basis. Respondent does not contend otherwise. Indeed she testified that she understood that she was on “probation” when she received Star. On this appeal she urges only that there is no authority for such a trial transfer of a child to her mother. The statute, however, mandates diligent efforts, defining them as “reasonable attempts * * * to assist, develop and encourage a meaningful relationship between the parent and child” (Social Services Law, § 384-b, subd 7, par [f]). Four types of efforts are enumerated in the statute and petitioner engaged in each of them trying to strengthen respondent’s relationship with her child. For over two years it was unsuccessful. The statute also provides, however, that those specified measures are not exclusive, and there is no reason why, when it became *146apparent that respondent intended to remain with her boyfriend, and considering her obvious, if sporadic, interest in her child, petitioner could not reasonably assume “diligent efforts” permitted it to try this further alternative in an attempt to reunite the family. Such arrangements, carefully and deliberately made and agreed to, are well within an agency’s implied powers under the statute. Indeed, only a cynical interpretation of the law would attach to such good-faith efforts the peril of frustrating further termination proceedings if the experiment failed and neglect was apparent. Nor did the agency violate respondent’s rights when, as she claims in a related argument, it refused her oral request to return the child after she left her with her foster parents in January, 1982. The statute provides that the parent’s notice to the agency to return the child must be written (Social Services Law, § 384-a, subd 2, par [a]).
Finally, respondent objects to the determination at the fact-finding hearing because Family Court and the Appellate Division found neglect for the period January, 1980 to June, 1981, a period ending several months before this proceeding was instituted in February, 1982. Her contention is that the period of neglect must be the one-year period prior to the institution of proceedings. The short answer to that contention is that the Legislature has provided for termination if the parent is chargeable with conduct constituting neglect for a period of “one year following the date such child came into the care of an authorized agency” (Social Services Law, § 384-b, subd 7, par [a]). The statute contemplates a continuous period of one year at any time after the child’s placement (see Matter of Norma Jean K., 81 AD2d 919; Matter of Melanie Ruth JJ, 76 AD2d 1008; Matter of Jones, 59 Misc 2d 69; Gordon, Terminal Placements of Children and Permanent Termination of Parental Rights: The New York Permanent Neglect Statute, 46 St John’s L Rev 215, 233-234). That construction is consistent with the common-law rule of abandonment, which has been held to provide that a parent has no right to block the adoption of a child she has abandoned, notwithstanding a later change of heart (see People ex rel. Pickle v Pickle, 215 App Div 38, 44; Matter of *147Jones, 59 Misc 2d 69, supra). The permanent neglect statute was intended to supplement this rule (see NY Legis Ann, 1959, p 415). Moreover, the construction adopted is reasonable because delay beyond the one-year period of neglect may be required to permit careful consideration by the agency staff of the decision to terminate parental rights, or it may be deemed advisable by the agency to allow a further effort at reuniting the family. Whether the delay is justified or not, however, the agency should not be held strictly to a period either one year immediately following commitment to its care or one year immediately preceding the petition to establish neglect. It may not delay institution of proceedings indefinitely, but the delay occurred in this case because of petitioner’s effort to reunite the family after the one-year period and that conduct does not require reversal of the findings of permanent neglect.
That is not to say that the conduct of the parent after the one-year period of neglect should not be considered. At the fact-finding hearing the court is obliged to consider her conduct and commitment toward her child during the interim, if that conduct has substantially changed, as well as the efforts of the agency. An awareness of that judicial obligation, or at least a hope that respondent would improve, apparently motivated petitioner to withdraw the 1981 petition in this case and attempt a trial period of care to give respondent a second chance. That these efforts failed is not to be held against it here when the evidence in the record supports the finding of a continuous period of neglect exceeding one year, unredeemed by sufficient conduct by respondent giving the agency or the court confidence of future success in reuniting the family.
II
Respondent also challenges the direction made by the court at the conclusion of the dispositional hearing.
Unlike a fact-finding hearing which resolves the issue of permanent neglect and in which the best interests of the child play no part in the court’s determination, the court in the dispositional hearing must be concerned only with the best interests of the child. There is no presumption that those interests will be served best by return to the *148parent (Family Ct Act, §§ 623, 631). At the time of the dispositional hearing, respondent had married Robert and was expecting another child. Both husband and wife had been employed irregularly and were supporting themselves principally by public assistance. Petitioner produced two witnesses, an experienced caseworker who had worked with Star since birth and with respondent for several years when she was in foster care, and a psychiatrist who offered her professional opinion after examining respondent and the agency’s records. The reports of petitioner and the psychiatrist were also received. Psychological tests and psychiatric evaluation showed respondent suffered from chronic mental illness and was of borderline intelligence. Both petitioner’s witnesses concluded that based upon respondent’s past performance and her mental capacity, she was unable to accept the responsibility to care for Star, particularly with a second child due. Conversely, the evidence established that the preadoptive parents were happily married, both were steadily employed, and were the successful adoptive parents of a seven-year-old boy placed with them by petitioner four years earlier. Star had lived with her preadoptive family for six months at the time of the dispositional hearing, was well adjusted to them and doing well in school. This evidence supports the court’s factual finding that Star’s best interests required permanent termination of respondent’s rights and the transfer of custody and guardianship to petitioner and the Commissioner of Social Services to make her available for adoption.
Finally, we find no merit to respondent’s contention that the court improperly accepted written reports of petitioner’s witnesses in evidence at the dispositional hearing (see Matter of Leon RR, 48 NY2d 117). The only objection registered was to the psychiatrist’s addendum report delivered to respondent’s counsel a few hours before the psychiatrist testified. The original report had been prepared several weeks earlier and submitted to counsel for his examination then. It indicated that an addendum was forthcoming and the addendum report, when completed, contained no surprising changes in findings or diagnosis from the original. Counsel’s only objection at trial was that *149in view of the addendum he wished his own psychiatric evaluation of respondent. The court did not abuse its discretion as a matter of law in denying the application.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye concur.
Order affirmed, with costs.
11.3. Coronavirus Wrecked My Transition from Foster Care
11.4 SSL § 384-b 11.4 SSL § 384-b
SSL § 384-b. Guardianship and custody of destitute or dependent children; commitment by court order; modification of commitment and restoration of parental rights
1. Statement of legislative findings and intent.
(a) The legislature recognizes that the health and safety of children is of paramount importance. To the extent it is consistent with the health and safety of the child, the legislature further hereby finds that:
(i) 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;
(ii) it is generally desirable for the child to remain with or be returned to the birth parent because the child's need for a normal family life will usually best be met in the home of its birth parent, and that parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered;
(iii) 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
(iv) when it is clear that the birth 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.
(b) The legislature further finds that many children who have been placed in foster care experience unnecessarily protracted stays in such care 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 birth parents could reduce such unnecessary stays.
It is the intent of the legislature in enacting this section to provide procedures not only assuring that the rights of the birth parent 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.
2. For the purposes of this section,
(a) “child” shall mean a person under the age of eighteen years; and,
(b) “parent” shall include an incarcerated parent unless otherwise qualified.
3.
(a) The guardianship of the person and the custody of a destitute or dependent child may be committed to an authorized agency, or to a foster parent … to institute a proceeding under this section, or to a relative with care and custody of the child, …. Where such guardianship and custody is committed to a foster parent or to a relative …, the family court or surrogate's court shall retain continuing jurisdiction over the parties and the child and may, … revoke, modify or extend its order, if the foster parent or relative fails to institute a proceeding for the adoption of the child within six months …
…
(e) A proceeding under this section is originated by a petition on notice served upon the child's parent or parents, the attorney for the child's parent or parents and upon such other persons as the court may in its discretion prescribe. Such notice shall inform the parents and such other persons that the proceeding may result in an order freeing the child for adoption without the consent of or notice to the parents or such other persons. Such notice also shall inform the parents and such other persons of their right to the assistance of counsel, including any right they may have to have counsel assigned by the court in any case where they are financially unable to obtain counsel. …
(g)
(i) An order committing the guardianship and custody of a child pursuant to this section shall be granted only upon a finding that one or more of the grounds specified in subdivision four of this section are based upon clear and convincing proof.
(ii) Where a proceeding has been properly commenced under this section by the filing of a petition before the eighteenth birthday of a child, an order committing the guardianship and custody of a child pursuant to this section upon a finding under subdivision four of this section shall be granted after the eighteenth birthday of a child where the child consents to such disposition.
…
(i) In a proceeding instituted by an authorized agency pursuant to the provisions of this section, proof of the likelihood that the child will be placed for adoption shall not be required in determining whether the best interests of the child would be promoted by the commitment of the guardianship and custody of the child to an authorized agency.
…
(k) Where the child is over fourteen years of age, the court may, in its discretion, consider the wishes of the child in determining whether the best interests of the child would be promoted by the commitment of the guardianship and custody of the child.
(l)
(i) Notwithstanding any other law to the contrary, whenever: the child shall have been in foster care for fifteen months of the most recent twenty-two months; or a court of competent jurisdiction has determined the child to be an abandoned child; or the parent has been convicted of a crime as set forth in subdivision eight of this section, the authorized agency having care of the child shall file a petition pursuant to this section unless based on a case by case determination:
(A) the child is being cared for by a relative or relatives; or
(B) the agency has documented in the most recent case plan, a copy of which has been made available to the court, a compelling reason for determining that the filing of a petition would not be in the best interest of the child; or (C) the agency has not provided to the parent or parents of the child such services as it deems necessary for the safe return of the child to the parent or parents, unless such services are not legally required; or
(D) the parent or parents are incarcerated, in immigration detention or immigration removal proceedings, or participating in a residential substance abuse treatment program, … provided that the parent maintains a meaningful role in the child's life … and the agency has not documented a reason why it would otherwise be appropriate to file a petition pursuant to this section.
(ii) For the purposes of this section, a compelling reason whereby a social services official is not required to file a petition for termination of parental rights … includes, but is not limited to, where:
(A) the child was placed into foster care … and a review of the specific facts and circumstances of the child's placement demonstrate that the appropriate permanency goal for the child is either (1) return to his or her parent or guardian or (2) discharge to independent living;
(B) the child has a permanency goal other than adoption;
(C) the child is fourteen years of age or older and will not consent to his or her adoption;
(D) there are insufficient grounds for filing a petition to terminate parental rights; or
(E) the child is the subject of a pending disposition under article ten of the family court act, …
(iii) For the purposes of this paragraph, the date of the child's entry into foster care is the earlier of sixty days after the date on which the child was removed from the home or the date the child was found by a court to be an abused or neglected child pursuant to article ten of the family court act.
(iv) In the event that the social services official or authorized agency having care and custody of the child fails to file a petition to terminate parental rights within sixty days of the time required by this section, or within ninety days of a court direction to file a proceeding not otherwise required by this section, such proceeding may be filed by the foster parent of the child without further court order or by the attorney for the child on the direction of the court. In the event of such filing the social services official or authorized agency having care and custody of the child shall be served with notice of the proceeding and shall join the petition.
(v) … an assessment of whether a parent maintains a meaningful role in his or her child's life shall be based on evidence, which may include the following:
· a parent's expressions or acts manifesting concern for the child, such as letters, telephone calls, visits, and other forms of communication with the child;
· efforts by the parent to communicate and work with the authorized agency, attorney for the child, foster parent, the court, and the parent's attorney or other individuals providing services to the parent, including correctional, mental health and substance abuse treatment program personnel for the purpose of complying with the service plan and repairing, maintaining or building the parent-child relationship;
· a positive response by the parent to the authorized agency's diligent efforts …;
· and whether the continued involvement of the parent in the child's life is in the child's best interest.
In assessing whether a parent maintains a meaningful role in his or her child's life, the authorized agency shall gather input from individuals and agencies in a reasonable position to help make this assessment, including but not limited to, the authorized agency, attorney for the child, parent, child, foster parent or other individuals of importance in the child's life, and parent's attorney or other individuals providing services to the parent, including correctional, mental health and substance abuse treatment program personnel. The court may make an order directing the authorized agency to undertake further steps to aid in completing its assessment.
4. An order committing the guardianship and custody of a child pursuant to this section shall be granted only upon one or more of the following grounds:
(a) Both parents of the child are dead, and no guardian of the person of such child has been lawfully appointed; or
(b) The parent or parents, whose consent to the adoption of the child would otherwise be required …, abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court; or
(c) The parent or parents, …, are presently and for the foreseeable future unable, by reason of mental illness or intellectual disability, to provide proper and adequate care for a child who has been in the care of an authorized agency for the period of one year immediately prior to the date on which the petition is filed in the court; or
(d) The child is a permanently neglected child; or
(e) The parent or parents, …, severely or repeatedly abused such child. Where a court has determined that reasonable efforts to reunite the child with his or her parent are not required, pursuant to the family court act or this chapter, a petition to terminate parental rights on the ground of severe abuse … may be filed immediately upon such determination.
5.
(a) For the purposes of this section, a child is “abandoned” by his parent if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed.
(b) The subjective intent of the parent, whether expressed or otherwise, unsupported by evidence of the foregoing parental acts manifesting such intent, shall not preclude a determination that such parent has abandoned his or her child. In making such determination, the court shall not require a showing of diligent efforts, if any, by an authorized agency to encourage the parent to perform the acts specified in paragraph (a) of this subdivision.
6.
(a) For the purposes of this section, “mental illness” means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act.
(b) For the purposes of this section, “intellectual disability” means subaverage intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act; provided, however, that case law regarding use of the phrase “mental retardation” under this section shall be applicable to the term “intellectual disability”.
(c) The legal sufficiency of the proof in a proceeding upon the ground … shall not be determined until the judge has taken the testimony of a psychologist, or psychiatrist, in accordance with paragraph (e) of this subdivision.
…
7.
(a) For the purposes of this section, “permanently neglected child” shall mean a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of either at least one year or fifteen out of the most recent twenty-two months 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, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child. The court shall consider the special circumstances of an incarcerated parent or parents, or of a parent or parents participating in a residential substance abuse treatment program, when determining whether a child is a “permanently neglected child” as defined in this paragraph. …
(b) … evidence of insubstantial or infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a determination that such child is a permanently neglected child. A visit or communication by a parent with the child which is of such character as to overtly demonstrate a lack of affectionate and concerned parenthood shall not be deemed a substantial contact.
(c) As used in paragraph (a) of this subdivision, “to plan for the future of the child” shall mean to take 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. In determining whether a parent has planned for the future of the child, the court may consider the failure of the parent to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available to such parent.
(d) For the purposes of this subdivision:
(i) A parent shall not be deemed unable to maintain contact with or plan for the future of the child by reason of such parent's use of drugs or alcohol, except while the parent is actually hospitalized or institutionalized therefor; and
(ii) The time during which a parent is actually hospitalized or institutionalized shall not interrupt, but shall not be part of, a period of failure to maintain contact with or plan for the future of a child.
(e) Notwithstanding the provisions of paragraph (a) of this subdivision, evidence of diligent efforts by an agency to encourage and strengthen the parental relationship shall not be required when:
(i) The parent has failed for a period of six months to keep the agency apprised of his or her location, provided that the court may consider the particular delays or barriers an incarcerated parent or parents, or a parent or parents participating in a residential substance abuse treatment program, may experience in keeping the agency apprised of his or her location; or
(ii) An incarcerated parent has failed on more than one occasion while incarcerated to cooperate with an authorized agency in its efforts to assist such parent to plan for the future of the child, as such phrase is defined in paragraph (c) of this subdivision, or in such agency's efforts to plan and arrange visits with the child as described in subparagraph five of paragraph (f) of this subdivision.
(f) As used in this subdivision, “diligent efforts” shall mean reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child, including but not limited to:
(1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family;
(2) making suitable arrangements for the parents to visit the child except that with respect to an incarcerated parent, arrangements for the incarcerated parent to visit the child outside the correctional facility shall not be required unless reasonably feasible and in the best interest of the child;
(3) provision of services and other assistance to the parents, except incarcerated parents, so that problems preventing the discharge of the child from care may be resolved or ameliorated;
(4) informing the parents at appropriate intervals of the child's progress, development and health;
(5) making suitable arrangements with a correctional facility and other appropriate persons for an incarcerated parent to visit the child within the correctional facility, if such visiting is in the best interests of the child. When no visitation between child and incarcerated parent has been arranged for or permitted by the authorized agency because such visitation is determined not to be in the best interest of the child, then no permanent neglect proceeding under this subdivision shall be initiated on the basis of the lack of such visitation. Such arrangements shall include, but shall not be limited to, the transportation of the child to the correctional facility, and providing or suggesting social or rehabilitative services to resolve or correct the problems other than incarceration itself which impair the incarcerated parent's ability to maintain contact with the child. When the parent is incarcerated in a correctional facility located outside the state, the provisions of this subparagraph shall be construed to require that an authorized agency make such arrangements with the correctional facility only if reasonably feasible and permissible in accordance with the laws and regulations applicable to such facility; and
(6) providing information which the authorized agency shall obtain from the office of children and family services, outlining the legal rights and obligations of a parent who is incarcerated or in a residential substance abuse treatment program whose child is in custody of an authorized agency, and on social or rehabilitative services available in the community, including family visiting services, to aid in the development of a meaningful relationship between the parent and child. Wherever possible, such information shall include transitional and family support services located in the community to which an incarcerated parent or parent participating in a residential substance abuse treatment program shall return.
8.
(a) For the purposes of this section a child is “severely abused” by his or her parent if
(i) the child has been found to be an abused child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life, which result in serious physical injury to the child … or
(ii) the child has been found to be an abused child, … as a result of such parent's acts; provided, however, the respondent must have committed or knowingly allowed to be committed a felony sex offense … or
(iii)
(A) the parent of such child has been convicted of murder … and the victim of any such crime was another child of the parent …, or another parent of the child, …
(B) the parent of such child has been convicted of criminal …
(C) the parent of such child has been convicted of assault in the second degree … and the victim of any such crime was the child …or
…; and
(iv) the agency has made diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child, and such efforts have been unsuccessful and are unlikely to be successful in the foreseeable future. …
(b) For the purposes of this section a child is “repeatedly abused” by his or her parent if:
(i) the child has been found to be an abused child,
(A) … as a result of such parent's acts; or
(B) … as a result of such parent's acts; provided, however, the respondent must have committed or knowingly allowed to be committed a felony sex offense ..; and
(ii)
(A) the child … has been previously found, within the five years immediately preceding the initiation of the proceeding in which such abuse is found, to be an abused child, … however, … the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined …or
(B) the parent has been convicted of a … against the child, a sibling of the child or another child for whose care such parent is or has been legally responsible, within the five year period immediately preceding the initiation of the proceeding in which abuse is found; and
(iii) the agency has made diligent efforts, to encourage and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child, and such efforts have been unsuccessful and are unlikely to be successful in the foreseeable future. Where a court has previously determined in accordance with this chapter or the family court act that reasonable efforts to make it possible for the child to return safely to his or her home are not required, the agency shall not be required to demonstrate diligent efforts as set forth in this section.
(c) … the requirements of paragraph … shall be satisfied if one of the findings of abuse … is found to be based on clear and convincing evidence.
…
9. Nothing in this section shall be construed to terminate, … any rights and benefits, including but not limited to rights relating to contact with siblings, inheritance, succession, social security, insurance and wrongful death action claims, possessed by or available to the child pursuant to any other provision of law. …
…
11. Upon the entry of an order committing the guardianship and custody of a child pursuant to this section, the court shall inquire whether any foster parent or parents with whom the child resides, or any relative of the child, or other person, seeks to adopt such child. If such person or persons do seek to adopt such child, such person or persons may submit, and the court shall accept, all such petitions for the adoption of the child, together with an adoption home study, if any, completed by an authorized agency or disinterested person as such term is defined in subdivision three of section one hundred sixteen of the domestic relations law. …
N.Y. Soc. Serv. Law § 384-b (McKinney)
11.5 In re Children 11.5 In re Children
In the Matter of T. Children. Peter A., Appellant; Administration for Children’s Services, Respondent.
[726 NYS2d 276]
—In a proceeding to terminate parental rights pursuant to Social Services Law § 384-b, the father appeals, as limited by his brief, from so much of an order of the Family Court, Kings County (Greenbaum, J.), dated October 27, 1998, as, after a fact-finding hearing, terminated his parental rights to the child Jasmin T. on the ground of abandonment.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The Family Court properly determined that there was clear and convincing proof of the father’s abandonment of Jasmin T. during the six-month period prior to the filing of the petition (see, Social Services Law § 384-b [5] [b]; Matter of I.R., 153 AD2d 559, 560; Matter of Rose Marie M., 94 AD2d 734). The father failed to show a good reason for his failure to contact or communicate with his daughter (see, Matter of Charmaine T., 173 AD2d 625, 626-627). Neither the order of protection, the father’s drug use, nor his incarceration prevented him from contacting his child or the agency by telephone or by letter (see, Matter of Anthony M., 195 AD2d 315; Matter of Dawntal Danielle C., 170 AD2d 375; Matter of Thomas G., 165 AD2d 729; Matter of I.R., supra; Matter of Ulysses T., 87 AD2d 998, affd 66 NY2d 773). Ritter, J. P., S. Miller, Friedmann and Crane, JJ., concur.