Trends in the Case Law of Termination of Parental Rights


††††††††††††††††††††††† The reported case law of termination of parental rights in New York State, which is primarily the body of Appellate Division decisions on the subject, is not one marked by a balance of decisions for and against the parentís position.Most observations which can be made are true well over 90% of the time.

††††††††††††††††††††††† Almost all appeals in TPR cases are appeals by parents from an order terminating their parental rights.Almost all such appeals result in affirmances by the Appellate Division.[1]

††††††††††††††††††††††† The petitioner is either the local social services department or the foster care/ adoption agency having custody of the child, except for the relatively rare private adoption case in which the fatherís consent to adoption is at issue, see, e.g., In re Jonathan Logan P., 309 A.D.2d 576, 765 N.Y.S.2d 506 (1st Depít 2003);In re Jason Brian S., 303 A.D.2d 759, 758 N.Y.S.2d 96 (2d Depít 2003).In most New York City cases the petitioner is a private agency which provides foster care for the child, makes the decision of whether to work toward reunification of the family or termination of parental rights, and then places the child for adoption.

††††††††††††††††††††††† The Law Guardian is usually the Legal Aid Society in New York City, and usually a panel law guardian elsewhere in the state.On almost all of the appeals the Law Guardian (attorney for the child)[2] supports the petitioner.Because of the large proportion of the stateís TPR appeals which arise in New York City (approximately half), in effect the policy decision of whether to support or oppose the parent in a termination case is frequently being made by a single agency, the Legal Aid Society.

††††††††††††††††††††††† Almost all of the TPR appeals are prosecuted by an attorney assigned pursuant to article 18-B of the County Law.The remaining parents are represented by a public defender, legal services office or legal aid society in the few counties which have that system of representation for Family Court respondents.Retaining of counsel by such parents is evidently rare if not nonexistent.One explanation for this observation could be that parents who are motivated enough to retain counsel to keep their children are unlikely to abandon or permanently neglect them. Some more disturbing possible alternative explanations are (a) that TPR is really TPPR (termination of poor parentsí rights) and (b) that the retaining of counsel is a signal to the court that the parent does not fit the mold of a TPR respondent.


Statutory Framework


Termination of parental rights may be ordered by a court on any of the grounds set forth in SSL ß384-b, or, as to a father, by determination pursuant to DRL ß111 or SSL ß384-c that the fatherís consent to adoption is not required.

The grounds for termination pursuant to SSL ß384-b are set forth in subdivision 4:

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 in accordance with section one hundred eleven of the domestic relations law, 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, whose consent to the adoption of the child would otherwise be required in accordance with section one hundred eleven of the domestic relations law, are presently and for the foreseeable future unable, by reason of mental illness or mental retardation, 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, whose consent to the adoption of the child would otherwise be required in accordance with section one hundred eleven of the domestic relations law, severely or repeatedly abused such child, and, except as provided for herein, the child has been in the care of an authorized agency for the period of one year immediately prior to the initiation of the proceeding under this section. . . .


(Emphasis supplied).(See complete text of SSL ß384-b in supplemental materials at the end of this coursebook.)

The first ground, both parents being dead, is rarely the subject of dispute. While there has been some significant litigation concerning the ground of abandonment, including the most recent Court of Appeals decision, In re Gabrielle HH, -- N.Y.2d --, 2003 N.Y. LEXIS 4099 (Dec. 18, 2003), that ground does not represent a large proportion of TPR appellate case law, presumably because in many abandonment cases the parents have truly abandoned their child and therefore are not around to take an appeal.The lionís share of the appellate decisions on termination of parental rights are permanent neglect cases, with a lesser number of abandonment and mental illness/mental retardation cases and a few on consent to adoption (or the lack thereof).

Termination of Parental Rights in the Court of Appeals


††††††††††††††††††††††† After a flurry of cases on termination of parental rights following the decision of Santosky v. Kramer, 455 U.S. 745 (1982), and the concerns it raised as to the protection of the due process rights of parents, a long gap ensued, and in fact there has not been a Court of Appeals decision favorable to the parent since 1990, and that was a case involving consent to adoption, not termination under SSL ß384-b.See In re Raquel Marie X., 76 N.Y.2d 387, 559 N.Y.S.2d 855, 559 N.E.2d 418 (1990).

††††††††††††††††††††††† The Court of Appeals has decided approximately 21 cases on termination of parental rights (ďTPRĒ) since the Supreme Court decided Santosky v. Kramer in 1982.Most of these were decided in the first few years following Santosky.In fact, after 1992 there were no Court of Appeals cases on TPR until 2003.For this 10-year period, then, appellate review was limited to the Appellate Division, and in the great majority of the cases, particularly in more recent years, the result was affirmance of a Family Court order terminating parental rights.†† The list, and the discussion, include some cases involving termination of parental rights through denial of a parentís right to object to adoption or to revoke a consent to adoption, referred to collectively as ďconsent to adoptionĒ cases.

††††††††††††††††††††††† The following are the number of TPR cases in the Court of Appeals by year:












††††††††††††††††††††††† The 1989 decision was the last conventional TPR case before 2003:In re Gregory B., 74 N.Y.2d 77, 544 N.Y.S.2d 535, 542 N.E.2d 1052.ďThe common issue presented on these appeals is whether the evidence adduced in each case supported a finding that the incarcerated parent ďpermanently neglectedĒ his child within the meaning of Social Services Law ß 384-b (7) (a), thus justifying the termination of his parental rights and the concomitant freeing of his child for adoption. For the reasons that follow, we conclude that the termination of parental rights was, in each case, proper and supported by clear and convincing evidence.ĒId. at 82.

††††††††††††††††††††††† The 1990 decision, In re Raquel Marie X., supra, 76 N.Y.2d 387, 559 N.Y.S.2d 855, 559 N.E.2d 418, involved the permissibility of dispensing with an unmarried fatherís consent to adoption pursuant to DRL ß111.Although this is a procedurally distinct issue from those arising under the TPR statute, SSL ß384-b, the effect is the same on the father (with the notable exception that, if notice is dispensed with, the father in some cases may never be aware that he had a child).The statute governing consent to adoption, DRL ß111(1), provided at the time that ďwhile an unwed motherís consent is always required[,] an unwed fatherís consent to the adoption of his under-six-month-old child is required only where he has openly lived with the child or the mother for six continuous months immediately preceding the childís placement for adoption, openly acknowledged his paternity during such period, and paid reasonable pregnancy and birth expenses in accordance with his means (Domestic Relations Law ß 111 [1] [e]).Ē†† Id. at 394.The Court held the provision to be unconstitutional.

††††††††††††††††††††††† The 1992 decision, Robert O. v. Russell K., 80 N.Y.2d 254, 590 N.Y.S.2d 37, 604 N.E.2d 99, involved a similar issue.ď[T]he interest spoken of in the relevant portion of Raquel Marie (supra, at 401-402) is nothing more than the Ďbiological parental interestí--i.e., the opportunity, of limited duration, to manifest a willingness to be a parent.Ē80 N.Y.2d at 266.(Emphasis in original.)

Marino S.


††††††††††††††††††††††† After the long gap, the Court of Appeals revisited the area of termination of parental rights twice in the past year.The case of In re Marino S., 100 N.Y.2d 361, 763 N.Y.S.2d 796, 795 N.E.2d 21 (July 2, 2003), cert. denied,-- U.S. --, 72 U.S.L.W. 3372(Dec. 1, 2003), arose out of a TPR proceeding in Family Court (Sara P. Schechter, J.) in which a child was the victim of sexual and other aggravated abuse, but diligent efforts to reunite the family had not been made.The retroactivity of the Adoption and Safe Families Act was at issue.

††††††††††††††††††††††† The Court summarized the effect of the Act as follows:

The New Statute. In February 1999, during the pendency of the abuse and termination proceedings, New York passed the Adoption and Safe Families Act (ASFA) (L. 1999, ch. 7). The Legislature thereby brought New York into conformity with a 1997 federal law of the same name, maintaining the stateís eligibility for federal funding for foster care services. [footnote omitted]New Yorkís ASFA overlays numerous provisions of the Social Services Law, Family Court Act and Domestic Relations Law, adding to the tangle of cross-referenced provisions. In addition to particular amendments, ASFA made explicit our lawís constant concern for prompt permanency in a childís life, going so far as to set time frames for termination proceedings (see Social Services Law ß384-b[3][l]).


The Court held that ďFamily Court, affirmed by the Appellate Division, correctly determined that ASFA should be applied retroactively.ĒId. at 370.


Gabrielle HH

††††††††††††††††††††††† In its most recent decision on TPR, the Court of Appeals had occasion in effect to consider the appropriate strictness for an abandonment case.The case arose out of an Appellate Division, Third Department decision with a rare dissent.The case raised the issue of whether a father who claimed to have been prevented from having contact with his child by the motherís affirmative efforts to conceal their whereabouts.†† The Court ruled:

Record evidence supports the affirmed factual findings that Adam HH. [the respondent-appellant father] had no contact with either the child or the agency during the six months prior to the filing of the abandonment petition. This lack of contact evinces his intent to forego his parental rights (see Social Services Law ß 384-b [5][a]). Adam HH.ís contention that his parental rights were improperly terminated because DSS failed to demonstrate that it engaged in diligent efforts to encourage his relationship with the infant is misplaced. In the abandonment context, ďthe 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 subdivisionĒ (Social Services Law ß 384-b [5][b]; see Matter of Julius P., 63 N.Y.2d 477, 481, 472 N.E.2d 1003, 483 N.Y.S.2d 175 [1984]).

To the extent that Adam HH. now contends that he did not contact the agency because he believed that an order of protection prohibiting him from direct or indirect contact with the child barred him from doing so, the Appellate Division correctly observed that the proof adduced at the hearing provided no basis for this claim. Represented by counsel, he testified that he understood the order as preventing him from contacting the mother or child but he did not indicate that he believed the order prevented him from contacting DSS. His present claim is therefore unsupported by any evidence in the record. In any event, ďthe statute makes clear that the burden rests on the parent to maintain contactĒ (Matter of Julius P., 63 N.Y.2d at 481) and Family Court found that DSS did not discourage him from working with the agency to plan or provide for the child. In addition to his lack of contact with the agency, Adam HH. demonstrated a consistent pattern of disregarding his obligations as a parentóthrough his abuse of the biological mother, his violations of the orders of protection and his persistent refusal to submit to the court-ordered mental health evaluation.

Thus, there is no reason to disturb the determinations of Family Court and the Appellate Division that the agency established abandonment by clear and convincing evidence (see Social Services Law ß 384-b [3][g]; [4][b]).

In re Gabrielle HH, -- N.Y.2d -- (2003).

††††††††††††††††††††††† Neither Marino S. nor Gabrielle HH makes reference to Santosky.

††††††††††††††††††††††† The rendering of two unrelated decisions in one year in effect expanding the powers of the Family Court to terminate parental rights, after a hiatus of thirteen years since the last case on termination of parental rights under SSL ß384-b, must be viewed in the context of strong public policy declared by the Chief Judge, the Governor and the Mayor of the City of New York, in favor of moving more children on to adoption.Practitioners may have some concern that, in the twenty years since Santosky, the view of the appellate process may have evolved from being the forum in which due process rights of the parent will be protected to a ďbarrier to adoption finalization.ĒSee press release, Governorís office, May 21, 2003, reproduced in the supplemental materials at the end of this coursebook.


Termination of Parental Rights in the Appellate Division


††††††††††††††††††††††† The primary focus of this portion of the program is the year 2003.A look at the preceding half-year, however, reveals a period of consistent affirmance.†† In the six months from June through December, 2002, there were approximately[3] 57 appeals by parents from termination of parental rights (here listed in reverse chronological order), all resulting in affirmances:

In re Lindsay N., 300 A.D.2d 216, 751 N.Y.S.2d 739 (1st Depít Dec. 31, 2002).


In re Charlotte B., 300 A.D.2d 1150, 755 N.Y.S.2d 349 (4th Depít Dec. 30, 2002).


In re Damion S., 300 A.D.2d 1039, 752 N.Y.S.2d 476 (4th Depít Dec. 30, 2002).


In re Ja-Nathan F., 300 A.D.2d 1030, 752 N.Y.S.2d 573 (4th Depít Dec. 30, 2002).

In re Tamara Liz H., 300 A.D.2d 202, 752 N.Y.S.2d 634 (1st Depít Dec. 24, 2002).


In re Osadail V., 300 A.D.2d 67, 751 N.Y.S.2d 31 (1st Depít Dec. 10, 2002).


In re Shane I., 300 A.D.2d 709, 751 N.Y.S.2d 127 (3d Depít Dec. 5, 2002).


In re Jennifer R., 300 A.D.2d 13, 749 N.Y.S.2d 880 (1st Depít Dec. 3, 2002).


In re DíAnna KK., 299 A.D.2d 761,751 N.Y.S.2d 326 (3d Depít November 27, 2002).


In re Karina U., 299 A.D.2d 772, 751 N.Y.S.2d 114 (3d Depít Nov. 27, 2002).


In re Thelonius BB., 299 A.D.2d 775, 751 N.Y.S.2d 99 (3d Depít Nov. 27, 2002).


In re Danielle Shane F., 299 A.D.2d 288, 749 N.Y.S.2d 720 (1st Depít Nov. 26, 2002).


In re Joseph W., 299 A.D.2d 291, 749 N.Y.S.2d 721 (1st Depít Nov. 26, 2002).


In re Miguel C., 299 A.D.2d 302, 749 N.Y.S.2d 728 (1st Depít Nov. 26, 2002).


In re Bryan W., 299 A.D.2d 929, 749 N.Y.S.2d 347 (4th Depít Nov. 15, 2002).


In re Jonathan S., 299 A.D.2d 969, 750 N.Y.S.2d 544 (4th Depít Nov. 15, 2002).


In re Michelle T., 299 A.D.2d 975, 749 N.Y.S.2d 454 (4th Depít Nov. 15, 2002).


In re Scott J., 299 A.D.2d 975, 749 N.Y.S.2d 454 (4th Depít Nov. 15, 2002).


In re Susan C., 299 A.D.2d 943, 749 N.Y.S.2d 761 (4th Depít Nov. 15, 2002).


In re Mia Tracy-Nellie G., 299 A.D.2d 186, 750 N.Y.S.2d 15 (1st Depít Nov. 12, 2002).


In re ďBaby BoyĒ H., 299 A.D.2d 171, 753 N.Y.S.2d 363 (1st Depít Nov. 7, 2002).


In re Cheyanne M., 299 A.D.2d 162, 753 N.Y.S.2d 360 (1st Depít Nov. 7, 2002).


In re Diana L., 299 A.D.2d 359, 749 N.Y.S.2d 167 (2d Depít Nov. 4, 2002).


In re Tashara B., 299 A.D.2d 356, 749 N.Y.S.2d 173 (2d Depít Nov. 4, 2002).


In re Abdel Kader H., 298 A.D.2d 319, 748 N.Y.S.2d 858 (1st Depít Oct. 31,2002).


In re ďBaby GirlĒ M., 298 A.D.2d 315, 748 N.Y.S.2d 501 (1st Depít Oct. 29, 2002).


In re Makever Carl B., 298 A.D.2d 303, 748 N.Y.S.2d 493 (1st Depít Oct. 29, 2002).


In re Joseph S., 298 A.D.2d 588, 748 N.Y.S.2d 684 (2d Depít Oct. 28, 2002).


In re Jovantay U., 298 A.D.2d 641, 749 N.Y.S.2d 103 (3d Depít Oct. 17, 2002).


In re Andre W., 298 A.D.2d 206, 748 N.Y.S.2d 720 (1st Depít Oct. 15, 2002).


In re Jolie S., 298 A.D.2d 194, 748 N.Y.S.2d 367 (1st Depít Oct. 10, 2002).


In re Caresse Solange E., 298 A.D.2d 173, 749 N.Y.S.2d 215 (1st Depít Oct. 8, 2002).


In re Stephanie C., 298 A.D.2d 176, 748 N.Y.S.2d 243 (1st Depít Oct. 8, 2002).


In re Thomas M., 298 A.D.2d 162, 749 N.Y.S.2d 485 (1st Depít Oct. 8, 2002).


In re Shah Ronnie J., 298 A.D.2d 129, 747 N.Y.S.2d 758 (1st Depít Oct. 3, 2002).


In re Aaron G., 298 A.D.2d 123, 748 N.Y.S.2d 43 (1st Depít Oct. 1, 2002).


In re Antonio Tyrone B., 298 A.D.2d 128, 747 N.Y.S.2d 232 (1st Depít Oct. 1, 2002).


In re Devon Dupree F., 298 A.D.2d 103, 747 N.Y.S.2d 501 (1st Depít Oct. 1, 2002).


In re Jamell Lamont H., 298 A.D.2d 108, 747 N.Y.S.2d 375 (1st Depít Oct. 1, 2002).


In re Derrick R.,298 A.D.2d 1010, 748 N.Y.S.2d 126 (4th Depít Oct. 1, 2002).


In re Tommy R., 298 A.D.2d 967, 748 N.Y.S.2d 119 (4th Depít Oct. 1, 2002).


In re Jasmine F., 298 A.D.2d 997, 748 N.Y.S.2d 308 (4th Depít Oct. 1, 2002).


In re Raychael L.W., 298 A.D.2d 930, 747 N.Y.S.2d 656 (4th Depít Oct. 1, 2002).


In re Yusef P., 298 A.D.2d 968, 748 N.Y.S.2d 120 (4th Depít Oct. 1, 2002).


In re Chanelle H., 297 A.D.2d 611, 747 N.Y.S.2d 363 (1st Depít Sept. 26, 2002).


In re Melody Xena A., 297 A.D.2d 613, 747 N.Y.S.2d 481 (1st Depít Sept. 26, 2002).


In re Jorge G., 297 A.D.2d 564, 747 N.Y.S.2d 158 (1st Depít Sept. 24, 2002).


In re Qudra W., 297 A.D.2d 580, 747 N.Y.S.2d 172 (1st Depít Sept. 24, 2002).


In re Saleem G., 297 A.D.2d 677, 747 N.Y.S.2d 107 (2d Depít Sept. 16, 2002).


In re Samantha P., 297 A.D.2d 348, 746 N.Y.S.2d 844 (2d Depít Aug. 19, 2002;revised Sept. 5, 2002).


In re Ikea L., 296 A.D.2d 573, 745 N.Y.S.2d 716 (2d Depít July 29, 2002).


In re Dana Marie L., 296 A.D.2d 499, 745 N.Y.S.2d 481 (2d Depít July 15, 2002).


In re Ronell Dashawn P., 296 A.D.2d 502, 745 N.Y.S.2d 484 (2d Depít July 15, 2002).


In re Taleah C., 296 A.D.2d 459, 744 N.Y.S.2d 717 (2d Depít July 8, 2002).


In re Genesis Jeanice Blair M., 296 A.D.2d 317, 744 N.Y.S.2d 845 (1st Depít July 2, 2002).


In re Dillon W., 296 A.D.2d 416, 745 N.Y.S.2d 451 (2d Depít July 1, 2002).


In re Female D., 296 A.D.2d 408, 744 N.Y.S.2d 891 (2d Depít July 1, 2002).



††††††††††††††††††††††† This writer made this observation in the course of writing briefs for TPR appeals, and incorporated the foregoing list into the Brief for Appellant[4] written January 29, 2003, in the case In re Samantha C., 305 A.D.2d 167, 757 N.Y.S.2d 849(1st Depít May 8, 2003), lv. den., -- N.Y.2d -- (July 1, 2003), arguing in pertinent part (at 13-18; footnotes omitted):

A review of every New York appellate decision which could be found on appeals from final orders in termination of parental rights proceedings for the second half of 2002 reveals the astonishing discovery that out of fifty-nine (59) decisions there was not a single reversal on the merits.Of these 59 decisions, there was one, In re Maria Ann P., 296 A.D.2d 574, 745 N.Y.S.2d 717 (2d Depít 2002), in which the Family Court had dismissed the petition and that dismissal was affirmed, and there was another, In re Kindra B., 296 A.D.2d 456, 745 N.Y.S.2d 74 (2d Depít 2002), in which Family Court had denied a motion to vacate the appellantís default, and the Appellate Division remanded the case for a hearing on the merits.In every one of the other fifty-seven (57) cases, the Appellate Division affirmed the termination of parental rights.In not one of these cases, thus, did the Appellate Division find the proof to be less than clear and convincing evidence.

Family Court has many dedicated judges, but no court can function so consistently correctly that its fact-finding determination will be upheld on the merits in 57 out of 57 cases in which the merits are reached.The result can only be explained by a policy determination that termination petitions should be sustained.The clear and convincing evidence standard is not being enforced in this State where 57 out of 57 cases reviewed are held to have met the standard.

. . .


It is respectfully submitted that the uniformity of affirmance of termination of parental rights indicates a denial of due process.Family Court could not have been correct in 57 out of 57 cases.†††


††††††††††††††††††††††† The time period of June-December 2002 was chosen because it was the most recent six-month period preceding the filing of the brief.

††††††††††††††††††††††† The remainder of this discussion pertains to the Appellate Division TPR decisions rendered in 2003.Including cases involving the necessity of a fatherís consent to adoption (i.e., not brought pursuant to SSL ß384-b), there were a total of 121 TPR appeal decisions in 2003, two in the Court of Appeals (see discussion supra) and 119 in the Appellate Division.Of the 119 cases, 112 were resolved entirely against the parent and seven resulted in relief partially or totally in the parentís favor (infra).

††††††††††††††††† The 2003 cases were of the following types:

Permanent neglect†††††††††††††††††††††††††††††††† 78

Abandonment†††††††††††††††††††††††††††††††††††††† 14

Mental illness/retardation†††††††††††††††††††††† 12

Consent to adoption†††††††††††††††††††††††††††† 5

Ground not identifiable††††††††††††† 10[5]


Total††††††††††††††††††††††††††††††††††††††† ††††††††† 119[6]


The decisions were rendered in the following departments:

1st Depít††††††††††††††††††††††††††††††††† 33

2nd Depít†††††††††††††††††††††††††††††††† 42

3rd Depít†††††††††††††††††††††††††††††††† 11

4th Depít††††††††††††††††††††††††††††††††† 33


Total††††††††††††††† ††† ††††††† ††††††††††119


††††††††††††††††††††††† All of the affirmances[7] were unanimous, except for In re Annette B., -- A.D.3d --, 2003 N.Y. App. Div. LEXIS 13892 (2d Depít Dec. 22, 2003) (dissent by Justice William Friedmann), and In re Gabrielle HH, 306 A.D.2d 571, 760 N.Y.S.2d 269 (3d Depít June 5, 2003) (dissent by Justice Edward O. Spain), affíd, -- N.Y.2d -- (Dec. 18, 2003).

††††††††††† The following are the cases determined in favor of the parent on appeal:

In re Madeleine S., -- A.D.3d --, 2003 N.Y. App. Div. LEXIS 13225 (1st Depít Dec. 11, 2003).Stepparent adoption;natural fatherís refusal to consent enforced.

In re Joseph Albert R., -- A.D.3d --, 2003 N.Y. App. Div. LEXIS 13033 (2d Depít Dec. 8, 2003).Permanent neglect;reversed and petition dismissed, agency failed to make diligent efforts.

In re Ziemel Jamek-Sha S., 309 A.D.2d 867, 766 N.Y.S.2d 62 (2d Depít Oct. 20, 2003).Default by mother at dispositional hearing;appeal from denial of motion to vacate default;reversed and remanded for dispositional hearing.

In re Melissa G., 306 A.D.2d 919, 762 N.Y.S.2d 316 (4th Depít June 13, 2003).Agencyís appeal from denial of its petition to revoke suspended judgment;affirmed.

In re James V., 302 A.D.2d 916, 754 N.Y.S.2d 506 (4th Depít Feb. 7, 2003).Remanded for dispositional hearing because none had been held.†† (Note:dispositional hearing has now been held, parental rights have been terminated, and appeal is scheduled for argument for the January 2004 Term.)

In re Zachary CC, 301 A.D.2d 714, 753 N.Y.S.2d 561 (3d Depít Jan. 2, 2003).Appeal by Department of Social Services from suspended judgment;affirmed.

In re Amber AA, 301 A.D.2d 694, 754 N.Y.S.2d 387 (3d Depít Jan. 2, 2003).†† Remand for best interests hearing;suspended judgment was not complied with, but termination may not have been in childís best interests.

††††††††††††††††††††††† A review of the remaining 110 cases, supplemented in some cases by a review of the briefs, indicates a number of areas in which the case law appears to be expanding the scope of termination of parental rights beyond that envisioned by the legislature in adopting SSL ß384-b and the Supreme Court in imposing the requirement of clear and convicning evidence upon New York State (and all states)in Santosky v. Kramer, 455 U.S. 745 (1982).†† The following is not an outline of the categories of the decisions, but rather a discussion of several significant recurrent themes in the case law.


A.Abandonment;insubstantial contact doctrine.


††††††††††††††††††††††† The ground of abandonment, although considerably less frequently encountered in the appellate case law than that of permanent neglect, merits particular scrutiny because of its propensity for excusing a wholesale failure of the local social services department and foster care/adoption agencies.


††††††††††††††††††††††† Abandonment predates permanent neglect as a ground for termination of parental rights.†† Originally, it was presumably not so much a ground as a declaration of the fact that a childís parents (or at least the mother, with the father quite possibly not knowing of the existence of the child) had removed themselves from the childís life with no intent of returning.Such true abandonment was not much different from death of parents, which was much more common before the recent improvement in medical care.The older placement facilities for children started as orphan asylums.One of the currently active foster care/ adoption agencies, New York Foundling Hospital, bears in its name a reminder of what true abandonment was:dropping a baby off on the doorstep of a church.


††††††††††††††††††††††† In order to permit children to be placed for adoption without waiting endlessly for the possible return of their disappeared parents, a six-month limit was set after which abandonment would be presumed.


††††††††††††††††††††††† Now, the abandonment ground has been expanded to the point that it might well be styled constructive abandonment, but that term has become firmly associated with matrimonial law.The very existence of abandonment litigation demonstrates the extent to which the scope of abandonment has been expanded.


††††††††††††††††††††††† The doctrine that some contact, or even some visitation, during the six-month period on which an abandonment case must be based, may be disregarded, is one which is unknown to the statutory law but has worked its way into the case law without any express recognition of the change.


††††††††††††††††††††††† SSL ß384-b, subdivision 5, governing abandonment, does not make any reference to an insubstantial contact doctrine.It reads in full as follows:


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.


Subdivision 7 of the same statute, on the other hand, reads in pertinent part as follows:


7. (a) For the purposes of this section, "permanently neglected child" shall mean. . . .

. . .

(b) For the purposes of paragraph (a) of this subdivision, 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.


(Emphasis supplied.)


††††††††††††††††††††††† In In re Latoya P., 305 A.D.2d 263, 758 N.Y.S.2d 804 (1st Depít 2003), lv. den., -- N.Y.2d -- (July 2, 2003), the respondent mother and father testified that the mother was at Thanksgiving dinner during the six-month period at her motherís house with the subject child and respondentís sister, who was the childís kinship foster mother, and played with the child.[8]The sister was unsure as to whether the respondent was there.†† The Court ruled in pertinent part as follows (at 263-64):


Order of disposition, Family Court, Bronx County (Carol Stokinger, J.), entered on or about September 26, 2001, terminating respondent-appellant's parental rights upon a finding of abandonment, and transferring the subject child's custody and guardianship to petitioner Commissioner of Administration for Children's Services for the purposes of adoption, unanimously affirmed, without costs.

The finding of abandonment is supported by clear and [263/64] convincing evidence, including petitioner agency's case record and respondent's testimony at best showing only "sporadic and minimal attempts" to visit and communicate with the child (Social Services Law ß 384-b[4][b],[5][a];see Matter of Ravon Paul H., 161 A.D.2d 257, 555 N.Y.S.2d 49). . . .


Similarly, in In re Kaitlyn B., -- A.D.3d --, 767 N.Y.S.2d 369 (4th Depít Nov. 21, 2003), while the opinion consists entirely of a reference to the (unreported) decision of Family Court, and therefore gives no indication of the rationale for the Courtís affirmance, a review of the Brief for Appellant reveals that the case was in fact an abandonment case in which an issue was whether the contacts between the parent and the agency (complicated by actions taken by the agency which made contact more difficult) were to be disregarded as insubstantial.The opinion reads in full as follows:


It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs for reasons stated at Family Court, Steuben County, Furfure, J.


767 N.Y.S.2d at 369.


B.†††††††† Abandonment;concealment of childís whereabouts.


††††††††††††††††††††††† Frequently the respondent parent in an abandonment case has been prevented by the other parent from knowing where his child is.These cases represent a departure from the statutory scheme because the requirement of a showing of intent to abandon is not strictly enforced;the outcome of the case is in effect determined not by any intent of the father to abandon his child but by the intent of the mother to exclude the child from the fatherís life.


††††††††††††††††††††††† In In re Antonio J., -- A.D.3d --, 767 N.Y.S.2d 334 (4th Depít Nov. 21, 2003), efforts of the mother to conceal the whereabouts of the child were held not to prevent the termination of the fatherís parental rights:


Family Court properly terminated the parental rights of respondent with respect to his son on the ground of abandonment (see Social Services Law ß 384-b [4] [b]; Matter of Derrick J., 287 A.D.2d 503, 731 N.Y.S.2d 627, lv denied 97 N.Y.2d 608, 765 N.E.2d 300, 739 N.Y.S.2d 97; Matter of Anthony M., 195 A.D.2d 315, 600 N.Y.S.2d 37). The child was born out of wedlock in 1991 and has been in foster care since December 1998. The present proceeding was commenced in March 2000 after the mother voluntarily surrendered her parental rights. Respondent has not seen the child since shortly before respondent's incarceration in December 1998, and respondent does not dispute that he failed to contact the child or petitioner during the six-month period immediately prior to the filing of the petition (see ß 384-b [5] [a]). The contention of respondent that the mother concealed the child's whereabouts from him is not supported by the record inasmuch as there was a complete absence of any contact between the mother and respondent during the relevant time period. Indeed, respondent's last contact with the mother prior to the filing of the petition was shortly before respondent was incarcerated. The testimony of respondent that he unsuccessfully tried to locate the mother and the child while incarcerated was not credited by the court, and that finding, "which turns almost entirely *** on the assessment of the character and temperament of the parent, *** must be accorded the greatest respect" (Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337).  The burden rested on respondent to maintain contact with the child (see Matter of Julius P., 63 N.Y.2d 477, 481, 483 N.Y.S.2d 175, 472 N.E.2d 1003), and thus we deem it irrelevant that the efforts of petitioner to locate respondent may have been thwarted by incorrect information provided by the mother.


(Emphasis supplied.)


††††††††††††††††††††††† Similarly, in In re Ruben J.R., 303 A.D.2d 238, 757 N.Y.S.2d 10 (1st Depít March 13, 2003), lv. den., -- N.Y.2d -- (June 26, 2003), the mother let it be known to the father that she did not want him to visit the child.†† The role of the mother was not addressed in the opinion.


C.††††††† Permanent Neglect:Defaults.


††††††††††††††††††††††† Although a default could of course arise in any type of termination proceeding, the problem seems to occur particularly in permanent neglect cases.


††††††††††††††††††††††† Defaults had occurred in eight of the 119 cases decided in 2003, including one of the cases decided in the parentís favor.Unlike ordinary civil actions, these cases generally involve defaults occurring during the pendency of the case, not at the outset.


††††††††††††††††††††††† The inability to attend every single court appearance is brought about by the same overwhelming life problems which tend to land a parent in court for termination on the ground of permanent neglect.While diligent efforts are imposed upon the agency to work with the parent in conjunction with such programs during the period to which the petition is referable, and in fact participation in treatment programs is frequently at the core of the plan for the parent, if the parent fails to attend a single court appearance due to illness or actual engagement in an inpatient program, but fails to make an application for an adjournment, the likely result will be termination on default.Respondent parents are typically poor and without an abundance of resources.Inpatient programs are designed to control the participantís behavior, and are therefore forboding if not absolutely forbidding as to contact with the outside world.In In re Laura Mariela R., 302 A.D.2d 300, 754 N.Y.S.2d 546 (1st Depít Feb. 25, 2003), for example, the parent had been in an in-patient drug rehabilitation program, but failed to notify the court of her conflict.The result was an immediate inquest and termination of her parental rights, notwithstanding the fact that she had attended numerous prior court appearances over the past year without fail.The Court ruled (at 301):


While Family Court should have explained its reasons for denying respondent's motion to vacate the dispositional order, (Nadle v L.O. Realty Corp., 286 AD2d 130), the motion was nevertheless properly denied since she failed to demonstrate a reasonable excuse for her defaults in appearing at the fact-finding and dispositional hearings. Although respondent averred that she had been participating in an in-patient drug rehabilitation program at the time of the hearings, she did not explain why she had been unable to notify her attorney or the court of her unavailability for a hearing date she knew about two months earlier (see Matter of Ashley Marie M., 287 AD2d 333). Respondent, in support of her motion for vacatur, also failed to make the requisite showing that she possessed a meritorious defense. Her affidavit provided no indication that, contrary to the allegations of the permanent neglect petition, she had in fact planned for the child's future (see Matter of Willie James Scott R., 265 AD2d 163). Respondent's attorney's conclusory affirmation in opposition to the petition was unavailing since she lacked personal knowledge of the facts.


††††††††††††††††††††††††††††††† The intolerance of default, even a single default by a disadvantaged litigant after establishing a record of attendance, stands in marked contrast to the strong public policy in ordinary civil cases of disposing of cases on the merits and giving the defendant his or her day in court, and in particular the policy of liberally opening defaults in matrimonial cases (which frequently involve children as well but usually do not involve indigent parties).†† Defaults were not opened where the illness was not corroborated, In re Menesha B., 306 A.D.2d 22, 759 N.Y.S.2d 662 (1st Depít June 3, 2003), by documentary evidence.In re Joei R., 302 A.D.2d 334, 756 N.Y.S.2d 516 (1st Depít Feb. 27, 2003), lv. den., -- N.Y.2d -- (July 2, 2003).


D.Permanent neglect:Refusal to confess to sexual abuse.


††††††††††††††††††††††† Where alleged sexual abuse of a child has occurred in a family, frequently a criminal case is not brought due to the higher standard of proof (proof beyond a reasonable doubt), but rather the case is brought as article 10 proceeding (Fam. Ct. Act art. 10), on the ground of abuse or neglect, and a finding is made based on the applicable lower standard of proof (proof by a preponderance of the evidence) and the relaxed evidentiary standards unique to child protective proceedings.The parent consistently denies the abuse, and then, when he is ordered into sex offender treatment, the treatment predictably fails because a standard requirement of such programs is that the alleged offender confess his acts of sexual abuse.He is then made a respondent in a termination proceeding on the ground of permanent neglect, for failure to complete the treatment program, and thus ultimately his parental rights are terminated without there ever having been a finding by clear and convincing evidence of the sexual abuse which is the true ground for the termination.†† The decision of In re Samantha C., 305 A.D.2d 167, 168, 757 N.Y.S.2d 849 (1st Depít May 8, 2003), lv. den., -- N.Y.2d -- (July 1, 2003), is illustrative of the means by which a preponderance finding in an article 10 proceeding is in effect converted to a permanent neglect finding in a termination case:


Order of disposition, Family Court, Bronx County (Allen Alpert, J.), entered on or about March 1, 2002, which, upon findings of permanent neglect, terminated the respondents' parental rights with respect to the subject child and committed custody and guardianship of the child to the Commissioner of Social Services and petitioner agency for the purpose of adoption, unanimously affirmed, without costs.

Clear and convincing evidence, including the testimony of the caseworker assigned to the case during the statutorily relevant period and petitioner agency's case record, supports Family Court's finding that, respondents, by failing to attend a therapeutic program whose completion was deemed essential to their resumption of custodial parenting responsibilities, failed to plan for, and thus permanently neglected, the child (see  Social Services Law ß 384-b [7]; Matter of Nathaniel T., 67 N.Y.2d 838, 840, 501 N.Y.S.2d 647, 492 N.E.2d 775). Respondents' denial of their need for therapeutic intervention rendered the agency's diligent efforts unavailing (see Matter of Sheila G., 61 N.Y.2d 368, 385, 474 N.Y.S.2d 421, 462 N.E.2d 1139).

There was ample support for Family Court's finding that termination of respondents' parental rights so as to facilitate the adoptive process was in the child's best interests (see Matter of Star Leslie W., 63 N.Y.2d 136, 147-148, 481 N.Y.S.2d 26, 470 N.E.2d 824).

The pertinent statutory provisions are the following:


FCA sec. 1046(b)(i):

. . .

(b) In a fact-finding hearing:

(i) any determination that the child is an abused or neglected child must be based on a preponderance of evidence. . . .


SSL sec. 384-b(3)(g):


(g) 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 are based upon clear and convincing proof.


E.†††††††† Affirmance of termination without opinion.


††††††††††††††††††††††† Twelve of the 33 TPR decisions of the Appellate Division, Fourth Department, rendered in 2003, are in essence affirmances without opinion:one sentence affirmances stating no points of law and making no reference to the facts of the case, although sometimes referring to the Family Court decision as the basis for the affirmance.Since the Family Court decision is not reported or otherwise published, the Appellate Division decision is for all practical purposes an affirmance without opinion.


††††††††††††††††††††††† Without obtaining and reviewing the briefs in each case, the legal researcher cannot know what the decisions in effect have decided, and therefore cannot determine whether the termination was in accordance with due process and statutory requirements.


George E. Reed, Jr.

January 8, 2004



Last updated January 31, 2004



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[1]†† This observation is not correct as to the Court of Appeals, but all but two of the 21 Court of Appeals decisions rendered in the modern era(after Santosky v. Kramer) were decided between 1982 and 1992.

[2] The reasoning is admittedly somewhat circular, but knowing that it is rare for the Law Guardian to oppose the petitioner, it is assumed that if a decision affirming termination of parental rights makes no reference to the Law Guardianís position that is because the Law Guardian took the same position as the petitioner.

[3]†† The various case counts in this article are believed to be correct, but may well be slightly under the total.The counts were obtained by searching for ďtermination of parental rightsĒ (or variations thereof), ď384-bĒ and ď384bĒ, using a major legal research database, and culling spurious results.In particular, the focus being on statutory termination of parental rights on the grounds set forth in SSL ß384-b, the inventory of cases concerning consent to adoption, etc., may not be complete.

[4]†† The same list, less four cases which were subsequently found, appeared in the Brief for Appellant written January 3, 2003, in the case ofIn re Latoya P., 305 A.D.2d 263, 758 N.Y.S.2d 804(1st Depít May 20, 2003), lv. den., -- N.Y.2d Ė (July 2, 2003).

[5]†† All ten cases categorized as ďground not identifiableĒ were decided in the Fourth Department.Two other Fourth Department cases would have been given the same designation, but the briefs were obtained and the cases recategorized accordingly.

[6]†† The count is believed to be correct but the inventory may not have been entirely error-free.In particular, the reporting of ďconsent to adoptionĒ cases may well be incomplete;the focus of this program is termination of parental rights in proceedings originated by the government or an agency under contract with the government, as opposed to the private proceedings in which a fatherís parental rights may occasionally be terminated.It should also be noted that one case with both abandonment and permanent neglect grounds was categorized as abandonment, and that in a few cases it appeared but was not explicitly stated that the ground was permanent neglect.Finally, where separate cases involving the same children were decided the same date, they were counted as one case.

[7]General references to affirmances herein include cases in which the appeal was dismissed.

[8] The necessary facts do not appear in the opinion, but only in the Brief for Appellant and the transcripts.