In re Dorene "G"

70 A.D.2d 188
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 4, 1979
StatusPublished
Cited by5 cases

This text of 70 A.D.2d 188 (In re Dorene "G") is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Dorene "G", 70 A.D.2d 188 (N.Y. Ct. App. 1979).

Opinions

[190]*190OPINION OF THE COURT

Greenblott, J.

Donna, age six, was born to appellant and his wife on May 31, 1973. At the time of the parents’ separation some six months later, seven children resided with them. Appellant’s wife left Donna and five other children with appellant and took with her Corrine, a child born to her out of wedlock. Three of the children left with appellant were his children from a previous marriage, and the other three were the offspring of his marriage to Donna’s mother. In December of 1974, the parents were divorced.

In the spring of 1974, appellant and his wife executed a custody agreement. He received custody of the three children from his previous marriage and she obtained custody of the three children from their present marriage and custody of Corrine. Shortly thereafter, however, he surrendered custody of the three children living with him to the St. Lawrence County Department of Social Services (agency), and on March 4, 1974, appellant’s wife surrendered custody of the four children residing with her to the agency. On the same day, Donna, who was then 10 months old, was placed in a foster home. Appellant subsequently moved to Buffalo, New York, approximately 300 miles from the foster home.

On July 2, 1974, the agency filed a petition alleging that all seven children, including Donna, were neglected within the meaning of article 10 of the Family Court Act. The Family Court found the children to be so neglected, and in an order entered July 15, 1975, it directed that the children be placed with the agency for one year.

On September 24, 1976, the Family Court directed the agency to institute a proceeding to legally free Donna for adoption, and on May 27, 1977, the agency filed a petition seeking an order adjudicating Donna a permanently neglected child and permanently terminating the parental rights of her parents. The Family Court, in its fact-finding decision filed February 28, 1978 (93 Mise 2d 399), held that the agency met its burden of proof at the fact-finding hearing; and in its dispositional decision filed July 12, 1978, the court concluded that the parental rights to Donna should be terminated permanently and that the child’s best interests would be served by permitting the present foster parents to adopt her. Only the father appeals.

[191]*191Section 384-b (subd 4, par [d]) of the Social Services Law provides that an order terminating parental rights may be granted where the child is "permanently neglected”. A permanently neglected child is defined as one whose parents have "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.” (Social Services Law, § 384-b, subd 7, par [a].)

The first issue presented by this appeal is whether the agency made diligent efforts required by the statute to encourage and strengthen the parental relationship and, if not, whether it was excused from such efforts as being contrary to the child’s best interests (Family Ct Act, § 614, subd 1, par [c]). The Family Court concluded that such efforts would have been detrimental to the child’s best interests, thereby relieving the agency of its obligation to strengthen the parental relationship. The court reasoned that the child, having lived over four fifths of her lifetime with the foster parents, formed deep psychological ties to them and that it would have been detrimental to her best interests to encourage the parental relationship. We agree.

Doctor Rapp, a psychologist, testified at a hearing held on October 7, 1977 that she had examined Donna and the foster parents in March of 1977 and observed the interrelation between them. Donna, then three and one-half years old, said that her last name was that of her foster parents, that a "friend” (actually her father) came to visit her, and that the foster parents were her parents. Doctor Rapp further testified that Donna had formed a psychological bond with the foster parents, whom she views as the only significant adult figures in her life, and that it would be detrimental to remove Donna from the foster home because it is the. home in which she has been residing since 10 months of age. "It is with the [foster parents] that she has formed psychological bonds for the parents”, explained Doctor Rapp, and "it would be in Donna’s best interest to remain in the environment which has been secure and stable for her and in which she has formed a strong relationship with the two parent figures”. Doctor Rapp [192]*192concluded that it would be detrimental to the best interests of Donna to encourage and strengthen the parental relationship.

Doctor Versteeg, also a psychologist, testified that he examined appellant on February 20, 1975, and asked appellant to specify the goals for his children. Appellant "could answer only minimally and would immediately return back to his own justification for his behavior * * * [he] was much more concerned with rationalizing or justifying his past behavior * * * his marital history, than he was in dealing with the needs of his children.” Dr. Versteeg explained that appellant had "poor parenting ability” in the sense of "continuing responsible, emotionally acceptable parenting ability”, and that he is a "fairly self-centered, ego-centered individual who is pretty much incapable to respond from [sic] the human needs of another person.”

Doctor Versteeg’s mental health evaluation of appellant was placed in a report dated February 20, 1975, and, thus, less than a year after Donna had been placed in the foster home, the agency had a mental health evaluation indicating that any efforts to improve Donna’s relationship with her father would not have been in her best interests. Additionally, the record indicates that following the monthly visits by appellant, Donna screamed, experienced nightmares and wet her bed. According to Doctor Versteeg, Donna regarded her foster parents as her real parents and she would be faced with "serious difficulties throughout her life” if that bond were broken. Furthermore, it should be noted that on December 20, 1974 Donna (as well as the other six children) was adjudicated a neglected child under article 10 of the Family Court Act, based upon the Family Court’s conclusion that the children were then living in a "grossly disorganized and chaotic family” which has been subjected to "repeated instances of marital strife and conflict”, intensified when appellant’s children from his former marriage were introduced into the household. We, therefore, conclude that the record amply justifies the Family Court’s conclusion that since agency efforts to strengthen and encourage the parental relationship would have been detrimental to the best interests of the child, it need not have pursued such efforts.

The next issue is whether the evidence adduced at the fact-finding hearing established that appellant failed to maintain contact with Donna or plan for her future. We agree with the Family Court that appellant has maintained regular [193]*193contact with Donna. However, that does not end the inquiry, since the contact and planning requirements of the statute must be read in the disjunctive (Matter of Orlando F.,

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Bluebook (online)
70 A.D.2d 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dorene-g-nyappdiv-1979.