In re Florence X.

Appellate Division of the Supreme Court of New York

In re Florence X.

75 A.D.2d 942, 428 N.Y.S.2d 80, 1980 N.Y. App. Div. LEXIS 11592

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 15, 1980

StatusPublished

Cited by7 cases

This text of 75 A.D.2d 942 (In re Florence X.) 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 Florence X., 75 A.D.2d 942, 428 N.Y.S.2d 80, 1980 N.Y. App. Div. LEXIS 11592 (N.Y. Ct. App. 1980).

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Opinion

Appeal from an order of the Family Court of Otsego County, entered March 2, 1978, which (1) adjudged appellant’s six children to be permanently neglected; (2) permanently terminated appellant’s custody of the children, and (3) awarded custody to the petitioner. Before children can be adjudged permanently neglected, the petitioner must show that it exercised diligent efforts to strengthen and encourage the parental relationship, except when such efforts would be detrimental to the children (Social Services Law, § 384-b, subd 7, par [a]; Family Ct Act, § 614, subd 1, par [c]; Matter of Ray A. M, 37 NY2d 619, 623). The petitioner admits its failure to attempt to further the parental relationship. It seeks justification for such failure in the exception to the [943]*943rule. The proof offered at the hearing, however, fails to show that such efforts, if undertaken, would have been detrimental to the children. The children had never been physically neglected or abused by the appellant father; he remained in constant contact with them; and he performed the disciplinary and companionship functions of a father. The appellant’s problems were lack of a job, a stable home after his wife’s death in 1970 and a periodic drinking problem—all of which might have well responded to diligent efforts if the petitioner attempted them. How the petitioner’s aiding of the father in these problems would detrimentally affect the children lacks any basis in the record. Additionally, the record clearly indicates that petitioner’s entire case record was introduced into evidence without providing advance notice to respondent or an adequate opportunity to examine its contents. Such a procedure violated the principle of "fundamental fairness” established by the Court of Appeals in Matter of Leon RR (48 NY2d 117) and warrants reversal (cf. Matter of Lisa Ann U., 75 AD2d 944). Order reversed, on the law and the facts, without costs, and petition dismissed. Mahoney, P. J., Greenblott, Main, Casey and Herlihy, JJ., concur.

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Appeal from an order of the Family Court of Otsego County, entered March 2, 1978, which (1) adjudged appellant’s six children to be permanently neglected; (2) permanently terminated appellant’s custody of the children, and (3) awarded custody to the petitioner. Before children can be adjudged permanently neglected, the petitioner must show that it exercised diligent efforts to strengthen and encourage the parental relationship, except when such efforts would be detrimental to the children (Social Services Law, § 384-b, subd 7, par [a]; Family Ct Act, § 614, subd 1, par [c]; Matter of Ray A. M, 37 NY2d 619, 623). The petitioner admits its failure to attempt to further the parental relationship. It seeks justification for such failure in the exception to the [943]*943rule. The proof offered at the hearing, however, fails to show that such efforts, if undertaken, would have been detrimental to the children. The children had never been physically neglected or abused by the appellant father; he remained in constant contact with them; and he performed the disciplinary and companionship functions of a father. The appellant’s problems were lack of a job, a stable home after his wife’s death in 1970 and a periodic drinking problem—all of which might have well responded to diligent efforts if the petitioner attempted them. How the petitioner’s aiding of the father in these problems would detrimentally affect the children lacks any basis in the record. Additionally, the record clearly indicates that petitioner’s entire case record was introduced into evidence without providing advance notice to respondent or an adequate opportunity to examine its contents. Such a procedure violated the principle of "fundamental fairness” established by the Court of Appeals in Matter of Leon RR (48 NY2d 117) and warrants reversal (cf. Matter of Lisa Ann U., 75 AD2d 944). Order reversed, on the law and the facts, without costs, and petition dismissed. Mahoney, P. J., Greenblott, Main, Casey and Herlihy, JJ., concur.

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Bluebook (online)

75 A.D.2d 942, 428 N.Y.S.2d 80, 1980 N.Y. App. Div. LEXIS 11592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-florence-x-nyappdiv-1980.

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