Delores B. Cardinal McCloskey Children's & Family Services v. Willie B.

141 A.D.2d 100, 533 N.Y.S.2d 706, 1988 N.Y. App. Div. LEXIS 10225

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 1988
• Status: Published

Opinions

OPINION OF THE COURT

Smith, J.

The issue in this case is whether a father who is serving two concurrent sentences of 25 years to life for murder should be found to have permanently neglected his two children so that his parental rights may be terminated and the children freed for adoption. (Social Services Law § 384-b [4] [d].) We conclude that in this case the facts support such a finding and his parental rights should be terminated.

On or about June 14, 1984, petitioner instituted two separate proceedings in Family Court to terminate the parental rights of respondent father on the ground that he had permanently neglected the children within the meaning of Social Services Law § 384-b. Following a joint fact-finding hearing, the Family Court reluctantly dismissed the petition concerning the infant Delores B. The Family Court determined that it was constrained by recent amendments to the Social Services Law, Domestic Relations Law and Correction Law (L 1983, ch 911, eif Jan. 1, 1984), regarding termination of parental rights of an incarcerated parent, to hold that respondent, a prisoner, had done all he could to plan for the child and had not permanently neglected her (Matter of Delores B., 130 Misc 2d 484 [Fam Ct, NY County 1985]). However, the Family Court found the infant Willie B. to be a permanently neglected child, determining that even prior to his incarceration respondent had failed to plan for Willie’s future.

The infant Willie B., born on August 10, 1975, has been in the petitioner agency’s care since his placement on July 1, 1977. Willie’s foster parents wish to adopt him. He has been in four other foster homes and has behavioral problems. The infant Delores B., born on August 16, 1979, several months after her father’s incarceration, has been in the care of petitioner agency since her placement on July 31, 1980. On May 16, 1981, the natural mother, Delores B., executed a surrender of Willie for purposes of adoption. Her parental rights to custody and guardianship of the child Delores were terminated by court order on September 12, 1983. She is not a party to these proceedings.

Respondent father, Willie Bethea, is currently serving two concurrent terms of imprisonment of from 25 years to life for murder. The convictions result from an incident in which defendant, angered that his mailbox had been broken into and his welfare check stolen, set fire to his mattress and when he could not put out the blaze, left the building without giving an alarm and caused the death of a 74-year-old woman and her two-year-old granddaughter. He has been incarcerated since April 10, 1979. The Appellate Division, Second Department, affirmed his judgment of conviction (People v Bethea, 94 AD2d 982 [2d Dept 1983]) and the Court of Appeals denied leave to appeal (People v Bethea, 60 NY2d 589 [1983]). The United States District Court, Eastern District, denied petitioner’s writ of habeas corpus and the Court of Appeals, Second Circuit, affirmed the decision (Bethea v Scully, 834 F2d 257 [1987]).

On appeal of the order terminating his parental rights with respect to Willie, respondent argues that: (1) petitioner failed to establish that it had fulfilled its statutory obligation to exercise diligent efforts to strengthen the parental relationship before seeking to terminate respondent’s parental rights; (2) the Family Court incorrectly based its determination on a span of time prior to respondent’s incarceration; and (3) the Family Court erred in determining that respondent had failed to plan for Willie’s future. Petitioner agency contends that the Family Court properly terminated the respondent’s parental rights with respect to Willie since, notwithstanding the petitioner’s diligent efforts, respondent did not consistently visit Willie or plan for his future. It argues further that the Family Court erred in "excusing” respondent’s failure to plan for Delores because of his incarceration. Finally, it contends that the best interests of both children lie in terminating respondent’s parental rights.

Prior to the enactment of Laws of 1983 (ch 911) respecting the "termination of the parental rights of an incarcerated parent”, an incarcerated father had no authority to consent to or refuse to consent to the adoption of a child. Thus, Domestic Relations Law § 111 (2) (former [d]) provided that the consent of a parent to adoption was not required of a person "who has been deprived of civil rights pursuant to the civil rights law and whose civil rights have not been restored”. Civil Rights Law § 79 (1) states that a person who is serving an indeterminate term of imprisonment with a maximum of life "forfeits all the public offices”, and also "suspends, during the term of the sentence, all the civil rights * * * held by, the person sentenced.” Civil Rights Law § 79-a (1) states that a person sentenced to prison for life is "civilly dead”.

Because Laws of 1983 (ch 911) gave an incarcerated parent the authority to consent or withhold consent to adoption and respondent has declined to consent to freeing his children for adoption, his parental rights may be terminated only by clear and convincing proof that he has permanently neglected his children. (Social Services Law § 384-b [3] [g]; [4] [d].)

Social Services Law § 384-b (7) (a) defines a "permanently neglected child” as: "A child who is in the care of an authorized agency and whose parent or custodian has failed for a period of more than one year 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.”

Applying the definition to the facts of this case, it is clear (1) that the petitioner agency has met its burden of exercising diligent efforts to strengthen the relationship of parent and child, (2) that the respondent has failed to adequately plan for his children, and (3) that the legislative intent that children grow up in a normal family setting is served by terminating the parental rights of the respondent.

First, the threshold issue in any neglect proceeding is "whether a child-care agency has exercised diligent efforts to encourage and strengthen the parental relationship”. (Matter of Sheila G., 61 NY2d 368, 380 [1984].) The Family Court correctly determined that the petitioning agency was diligent in its efforts to aid the family. Evidence adduced at the fact-finding hearing reveals that petitioner, through its caseworkers, arranged meetings with the parents, set up scheduled visits with the children and endeavored to contact relatives who might care for the children.

Specifically, Philip White, a supervisor, testified to contact between the natural parents and the agency between April 1978 and January 1979. The first contact between petitioner and respondent was on April 11, 1978. On May 5, 1978, a visit was arranged between the natural parents and the child Willie. Respondent attended. The agency provided the parents with a visitation schedule during a visitation meeting held on June 7, 1978. Of the approximately eight scheduled visits between June 23, 1978 and September 14, 1978, respondent attended only two. On one of those occasions respondent arrived too late to see Willie. Respondent called on two occasions to cancel visits because of problems resulting from Delores B.’s (natural mother’s) pregnancy and delivery. Letters reminding the parents of the meetings were addressed to the mother. Respondent, however, had access to those letters.

The caseworker assigned to the case of Willie, Arlene Ferguson Henderson, testified that she arranged a meeting with the parents and Willie in February 1979. The parents failed to attend an earlier meeting scheduled for January 17, 1979. At a March 9, 1979 meeting, she provided respondent with a visitation schedule for four visits in March, April and May of 1979. Respondent failed to attend the first visit on March 26,

1979 and the social worker later learned that he had been arrested on or about April 10, 1979. He did not attend the next scheduled visit. The social worker contacted respondent several times thereafter regarding his plans for Willie. At respondent’s recommendation, she attempted to contact several of his relatives with the hope that they could care for Willie. The attempt to find a suitable relative willing and able to care for the child was unsuccessful. During this period, respondent contacted Ms. Henderson to inquire about Willie. Arrangements were made to bring Willie to visit respondent in prison on at least one occasion.

Another caseworker, Esham Johnson, assigned to the Delores B. case on October 27, 1980, testified that approximately once a month, he contacted respondent in prison to keep him apprised of the child’s progress and performance. He met with respondent in prison on several occasions and brought Delores along on these visits.

The agency, in attempting to maintain and strengthen the parental bonds, arranged visits, communicated "with respondent concerning the children’s progress, and communicated with relatives who might care for the children. It is difficult to imagine what other steps petitioner could have taken, particularly after respondent’s incarceration. Social Services Law § 384-b (7) (f) defines "diligent efforts” to include consultation and cooperation to develop a plan for a child and his family, informing parents of a child’s progress and development, and making arrangements with a correctional facility for visits by a child with his parent "if such visiting is in the best interests of the child” (Social Services Law § 384-b [7] [f] [5].)

Second, petitioner agency also met its burden of proof that respondent had not planned for the future of his children.

In discussing Social Services Law § 384-b (7) (a), the Court of Appeals has stated, "The requirement is several: the parent must maintain contact with the child and also realistically plan for her future. A default in performing either may support a finding of permanent neglect” (Matter of Star Leslie W., 63 NY2d 136, 142-143 [1984]). In the present case, aside from providing names of relatives who were either unable or ill-suited to care for the children, respondent’s only plan concerning Willie during his incarceration was to allow the child’s present foster parents to care for him until his release from prison. This plan is not realistic by virtue of defendant’s long sentence of 25 years to life. When asked whether he made plans for Delores, he replied, "No”.

Even prior to his incarceration, respondent failed to offer any substantial plan for Willie’s future. It must be emphasized that Willie remained in foster care for approximately two years before respondent’s incarceration with no plans made for his future. To plan within the meaning of the statute is " 'to formulate, and act to accomplish, a feasible and realistic plan’ ” (Matter of Orlando F., 40 NY2d 103, 110 [1976]).

The fact of a parent’s incarceration does not in itself render him physically or financially unable to maintain contact with or plan for the future of his children. The concept that incarceration renders a parent unable to maintain contact or plan for his child’s future was rejected with the repeal of Social Services Law § 384-b (7) (d) (former [ii]) and amendments to the Domestic Relations Law and Correction Law which, prior to 1984, did not require an incarcerated parent’s consent to an adoption. Social Services Law § 384-b (7) (d) (former [ii]) had deemed an incarcerated parent unable to maintain contact with or plan for the future of the child when incarcerated. An incarcerated parent’s obligation to his child is now the same as that of any other parent. (Social Services Law § 384-b.) The New York State Legislature has emphasized the responsibility of an incarcerated parent towards a child (Legislative findings and declaration, L 1983, ch 911, § 1 [ii], [iii]):

"(ii) A parent who has been incarcerated, however, does and should have an obligation to fulfill, while actually incarcerated, the requirement set forth in section three hundred eighty-four-b of the social services law, of visiting or communicating at least once every six months with the child or authorized agency. Having failed to fulfill such requirement, such parent should have his or her parental rights terminated upon the ground of abandonment pursuant to section three hundred eighty-four-b of the social services law;

"(iii) A parent who has been incarcerated should also fulfill, while actually incarcerated, the obligations of a parent as described in the provisions of section three hundred eighty-four-b of the social services law relating to the termination of parental rights upon the ground of permanent neglect. However, such ground of permanent neglect should recognize the special circumstances and need for assistance of an incarcerated parent to substantially and continuously or repeatedly maintain contact with, or plan for the future of his or her child. An incarcerated parent who has failed to fulfill these obligations may have his or her parental rights terminated upon such ground”.

If incarceration rendered a parent unable to plan for his or her child, then every incarcerated parent would have an automatic excuse for failing to meet his or her statutory obligation.

Third, the termination of the respondent’s parental rights furthers the legislative intent that children grow up in a normal family setting in a permanent home in order to develop and thrive, that the natural parents have priority in raising their children, but that when the parent cannot or will not provide a normal family home, termination of parental rights and efforts at adoption are preferable to prolonged foster care. The statement of legislative findings and intent which is a part of Social Services Law § 384-b enunciates the clear intent of the Legislature. It reads as follows:

"§ 384-b. Guardianship and custody of destitute or dependent children; commitment by court order

"1. Statement of legislative findings and intent.

"(a) The legislature 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 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;

"(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 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.

"(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 natural 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 natural parent are protected, but also, where positive, nuturing 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.”

In reaching its decision, the Family Court decried the fact that the rights of an incarcerated parent were now paramount to that of a child. It said: "It has become clear in this court in many similar cases that the amended statutes affecting prisoners’ rights are not reforms for the children. This court sees incarcerated parents regularly, and it is clear that such a parent is likely to express great interest in a child and fight for his or her right to prevent the child’s having a full life separate from that parent. Often this happens because the imprisoned parent has nothing else to do. It may happen because the parent loves the child and cannot objectively assess the effects of that love. However real the concern for the child may be, a parent who will never be an active parent may prevent the child’s ever having one” (Matter of Delores B., supra, 130 Misc 2d, at 485).

We conclude that the Family Court erred not only in finding that, on this record, there could be no permanent neglect, but also in its conclusion that the rights of an incarcerated parent are superior to those of the child. When the Legislature concluded that the fact of incarceration should not automatically take away a parent’s right to consent or not to consent to adoption, it did not raise an insuperable barrier to a norniál family upbringing for a child. The plan advanced by the respondent was for care of his children by relatives, a plan which could not be implemented. His only other plan was to have the children remain in foster care throughout their childhood. This is contrary to the intent of the Legislature.

Finally, on the issue of terminating respondent’s parental rights and his fitness to remain a parent, it cannot be overlooked that he set a fire and walked away from it, leaving two persons to die, one an elderly grandmother and the other a mere infant. What we have in this case is a father who showed little interest in his son when he was out of prison and who was in prison when his daughter was born. While respondent’s interest in the children has increased during his incarceration, he has nevertheless failed to plan realistically for their futures. It is clear that the best interests of the children lie with termination of the father’s rights.

Accordingly, order, Family Court, New York County (Leah Marks, J.), entered December 12, 1985, which dismissed a petition brought pursuant to Social Services Law § 384-b seeking to terminate the parental rights of respondent Willie Bethea and to free the infant Delores B. for adoption, should be reversed, on the law and the facts, the petition granted and the matter remanded for a dispositional hearing, without costs, and further, order, Family Court, New York County (Leah Marks, J.), entered February 28, 1986, which, inter alia, adjudged the infant Willie John B., Jr., to have been permanently neglected by respondent within the meaning of Social Services Law § 384-b and ordered respondent’s parental rights terminated and the guardianship and custody of said child transferred to petitioner for its consent to his adoption, should be affirmed, without costs.