Matter of Jessica
Marie Q. (Edna M. Z.)
2003 NYSlipOp 11897
Decided on March 10,
2003
Appellate Division,
Second Department
This opinion is
uncorrected and subject to revision before publication in the Official Reports.
Decided on March 10,
2003
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION :
SECOND JUDICIAL DEPARMENT Argued - February 18, 2003
DAVID S. RITTER, J.P.
SONDRA MILLER
HOWARD MILLER
BARRY A. COZIER, JJ.
DECISION & ORDER
2002-07761
2002-07762
2002-07764
[*1]In the Matter of Jessica Marie Q. (Anonymous). Westchester County
Department of Social Services, petitioner-respondent;
and
Edna M. Z. (Anonymous), respondent; George E. Reed, Jr., nonparty-appellant.
(Proceeding No. 1) (Docket No. B-121/01)
[*2]
In the Matter of Leslie Ann Z. (Anonymous). Westchester County Department of
Social Services, petitioner-respondent;
and
Edna M. Z. (Anonymous), respondent; George E. Reed, Jr., nonparty-appellant.
(Proceeding No. 2) (Docket No. B-122/01)
In the Matter of Katie Lynn B. (Anonymous). Westchester County Department of
Social Services, petitioner-respondent;
and
Edna M. Z. (Anonymous), et al., respondents; George E. Reed, Jr.,
nonparty-appellant. (Proceeding No. 3) (Docket No. B-123/01)
George E. Reed, Jr., White Plains, N.Y., Law Guardian for
the children nonparty-appellant pro se.
Charlene M. Indelicato, White Plains, N.Y. (Stacey Dolgin-Kmetz and Thomas G.
Gardiner of counsel), for petitioner-respondent.
In three related proceedings
pursuant to Social Services Law § 384-b to terminate parental rights on the
ground of permanent neglect, the Law Guardian appeals from three orders of
fact-finding and disposition (one as to each child) of the Family Court,
Westchester County (Walker, J.), all entered May 9, 2002, which, after a
fact-finding hearing on inquest and a dispositional hearing, terminated the
parents' rights with respect to the children, and transferred custody of the
children to the Westchester [*3]County
Department of Social Services for purposes of adoption. In all three
proceedings, the Law Guardian took direct appeals to the Court of Appeals pursuant
to CPLR 5601(b)(2). By three orders dated July 9, 2002 (one as to each child),
the Court of Appeals transferred the appeals to this court on the ground that
no direct appeal lies when questions other than the constitutional validity of
a statutory provision are involved (NY Const, art VI, § 3[b][2]; § 5[b]; CPLR
5601[b][2]).
ORDERED that the orders are
affirmed, without costs or disbursements.
The Law Guardian argues that Social
Services Law § 384-b(3)(i) deprives permanently neglected children of their
rights to substantive and procedural due process under the Fifth and Fourteenth
Amendments to the United States Constitution. Specifically, the statute does
not require proof of the likelihood that the child will be placed for adoption
in determining whether the parental rights of a child should be terminated. He
further argues that Social Services Law § 384-b(3)(l) violates the substantive
and procedural due process rights of permanently neglected children to the
extent it compels the filing of a petition for termination of parental rights
when adoption of a permanently-neglected child is unlikely. The Law Guardian
contends that the child's fundamental constitutional right in his or her
parents is offended by the unconditional termination of parental rights,
without providing that termination becomes final only upon the adoption of the
child, and by not including a provision permitting visitation if the child so
wishes.
Natural parents have a fundamental
liberty interest in the care, custody, and management of their child, as
guaranteed by the Fifth and Fourteenth Amendments of the United States
Constitution (see Santosky v Kramer, 455 US 745). "[T]he Due Process
Clause would be offended '[if] a State were to attempt to force the breakup of
a natural family, over the objections of the parents and their children,
without some showing of unfitness and for the sole reason that to do so was
thought to be in the children's best interest'" (Quilloin v Walcott, 434
US 246, 255, quoting Smith v Organization of Foster Families, 431 US 816,
862-863; see Nicholson v Williams, 203 F Supp 2d 153; Matter of Terrance G.,
190 Misc 2d 224).
Even assuming that under the
circumstances present here, where a biological parent has been adjudicated to
have permanently neglected a child, the child may claim a fundamental due
process right to be raised by that parent, the Social Services Law, while
impinging upon that right, is narrowly tailored to serve the compelling
interest of protecting the child (see generally Ware v Valley Stream High
School Dist., 150 AD2d 14, mod 75 NY2d 114). While Social Services Law §
384-b(3)(i) does not require the Family Court to consider the likelihood of a
child's adoption when determining whether or not to terminate the rights of
permanently
neglectful parents, the statute does not prohibit the Family Court from doing
so (see e.g. Matter of Gina I., [*4]270 AD2d
21). Further, while Social Services Law § 384-b(3)(l) requires the agency to
file a parental rights termination petition under certain circumstances, the
final disposition is not automatically the termination of parental rights. It
must be in the best interests of the child, which is always the "paramount
concern" at any dispositional hearing (Matter of Sylvia Esther O., 253
AD2d 465). We further note that there is authority permitting the Family Court
to allow post-termination visitation, provided doing so is in the child's best
interests (see Matter of Corinthian Marie S., 297 AD2d 382).
In this case, the evidence at the
dispositional hearing demonstrated that the parents never completed, as
mandated, a substance abuse rehabilitation program or a parenting class, had
barely any contact with the children, and utterly failed to plan for the
children's futures. Under these circumstances, termination of the parents'
rights, and freeing the children for adoption, was in the children's best
interests, as opposed to a suspended judgment and continued visits with the
parents, even if the likelihood of adoption was a required consideration (see
Matter of Gina I., supra; Matter of Victoria B., 185 AD2d 811).
The Law Guardian also challenges the
constitutionality of Family Court Act §§ 631 through 634, to the extent those
sections specifically fail to provide for a suspended judgment pending adoption
(if any) in cases in which adoption is unlikely. However, since the Law
Guardian failed to include in his notice to the Attorney-General the
constitutional challenges to those statutes, and did not argue to the Family
Court that they were unconstitutional, his challenge is not properly before
this court (see Matter of Coleman v Thomas, 295 AD2d 508; Emmer v Emmer, 69
AD2d 850).
The Law Guardian's remaining
contentions are without merit.
RITTER, J.P., S. MILLER, H. MILLER and COZIER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk