In re Medina Amor S.
Matter of Medina Amor S. v Omar S.
2008
NY Slip Op 00177
Decided
on January 10, 2008
Appellate
Division, First Department
Sweeny,
J., J.
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on January 10, 2008
SUPREME
COURT, APPELLATE DIVISION
First
Judicial Department
David
B. Saxe,J.P.
George
D. Marlow
Milton
L. Williams
John
W. Sweeny, Jr., JJ.
17691769A
[*1]In
re
and
Omar S., Respondent-Appellant, Graham Windham Services to
Families, Petitioner-Respondent.
Respondent
appeals from two orders of the Family Court, Bronx County (Gayle P. Roberts,
J.), entered on or about May 3, 2006, which, to the extent appealed from,
terminated his parental rights upon findings of abandonment and committed
custody and guardianship of the children to petitioner agency and the Commissioner
of Social Services for the purpose of adoption.
George E. Reed, Jr.,
Carrieri & Carrieri,
P.C.,
of counsel), for respondent.
Law
Office of Kenneth M. Tuccillo,
Hudson
(Kenneth M. Tuccillo
of counsel, Law Guardian for
Frederic
P. Schneider,
Omar
A.
SWEENY,
J. [*2]
The
issue in this case is whether petitioner agency proved by clear and convincing
evidence that respondent had abandoned his children. For the reasons cited
herein, we determine that it did not.
The
children in question, Omar and
Respondent
is the father of the children. At the time of the children's placement, he was
incarcerated in state prison on a murder conviction and will remain
incarcerated until at least May 2016. By that time, both children will have
passed their 18th birthdays.
In
early August, 2000 Myrlande Georges, an agency
caseworker, took Omar and
Georges
testified that she contacted respondent through prison channels after the
aforementioned visit, but he never responded or contacted her. Some of the
letters she sent to him were returned to the agency but she did not produce at
the hearing copies of any of the letters she claimed to have sent. Georges
testified that respondent provided no financial support for the children, did not maintain contact with them, did not send
cards, letters or gifts and that no one contacted the agency on his behalf
before the petitions were filed. She maintained that the agency did nothing to
prevent or discourage respondent from coming forward, nor were there any other
obstacles that might have prevented him from contacting the agency.
On
cross examination, however, Georges testified that in July 2004, before the
petitions were filed, she telephonically spoke with April Grigsby, a family
service specialist from the Osborne Association who had contacted Georges on
respondent's behalf regarding the children. The Osborne Association facilitates
family visits for prisoners incarcerated in
Upon
questioning by the court, Georges admitted that she did not send any letters to
respondent between February and August 2004 to notify him of any conferences,
and did not make any other attempt to contact him during that six-month period.
Kim
Benson, the agency caseworker assigned to
The
court indicated it was "a little shocked" that the caseworker and her
supervisor were not familiar with the law requiring them to work with
incarcerated parents and expressed concern over the lack of communication with
respondent. The court also noted that this failure on the part of the agency
could have an impact on the outcome of the hearing.
Ms.
Grigsby testified that on May 14, 2004, the Osborne Association received a
letter from respondent, who was a participant in a parenting class at Shawangunk Correctional Facility, asking for help in
restoring communication and visitation with his children. Respondent learned
about the Osborne Association from Grigsby's colleague who ran the parenting
class. The letter from respondent stated he knew which agency was dealing with
his children, but that he had lost contact with the agency and needed someone
to advocate on his behalf. He explained that he had not heard from the agency
and could not call them directly because prison policy required the name of an
individual to call. Although he had the name and a possible telephone number of
the agency, he did not know the name of the caseworker and thus would not be
permitted to call. Grigsby wrote back to respondent, and eventually determined
that Georges was the children's caseworker.
Grigsby
also testified that she left messages for Georges on May 21 and 28, and Georges
returned her call on June 2. Georges provided Grigsby with contact information
for both children and their foster parents, and they discussed the possibility
of a visit with respondent. Grigsby asked for and received a letter from
Georges acknowledging that Grigsby would facilitate a visit to the prison, and
on August 6, 2004, the visit was held.
During
July, Grigsby visited both the children and their respective foster parents and
communicated this to respondent. Grigsby was in regular contact with Georges on
behalf of respondent during the period from about May 20 to August 6, 2004.
Respondent
testified that he was the father of the children and had contact with them
through letters, phone calls and trailer visits between 1991 and 2000 when they
lived with their mother. In 2000, their mother stopped bringing the children to
visit, and his family lost contact with her. He did
not know where she or the children were, and there was no one in her family for
him to contact. Respondent claimed that in October 2003, a caseworker from
petitioner agency brought the children to visit him. He asked the caseworker
for "some paperwork" from the agency about "whatever is going
on," but prison rules prohibited his receipt of this material during
visits. The caseworker told respondent she was leaving the agency but someone
else would contact him.
After
learning about the Osborne Association, he wrote to them and received a return
letter from Grigsby. She located the children and kept respondent informed of
what was happening. He started writing and sending cards to the children in or
about May 2004. Grigsby would take the letters to the children and they in
turn, sent him letters and cards. Grigsby had records of these letters and
cards in her file. There were no phone calls but respondent had a visit with
them on August 6, 2004.
According
to respondent, no one from petitioner agency ever contacted him concerning the
children after May 2004, and he was unable to contact anyone at the agency
because he did [*4]not have the correct telephone number or the name of a
contact person as required by prison rules regarding phone calls.
Family
Court found that based on Georges' testimony, there
was only one visit between respondent and the children during the requisite
six-month period, that being in August 2004. The court further found that visit
to be insignificant, that respondent did not send cards, gifts, letters or
financial support to the children, and that his testimony concerning his
inability to contact the agency was incredible.
The
Court concluded that the agency had proven by clear and convincing evidence that
respondent had an intent to forgo his parental rights and obligations by
failing to visit and communicate with the children or the agency, although
presumptively able to do so.
At
the dispositional hearing, both Georges and Benson testified that each foster
mother was willing to adopt her foster child, and that each child wished to
maintain contact with respondent. Respondent, through counsel, expressed his
preference that the children not be freed for adoption. However, counsel stated
that respondent was not a viable resource for them at that time, and had not
been able to get any family members to come forward. Counsel also expressed
respondent's desire to remain in contact with the children.
Family
Court found, based on the testimony of the caseworkers,
that the agency established by a preponderance of the evidence that it was in
each child's best interests that respondent's parental rights be terminated.
The court entered a dispositional order for each child accordingly.
Social
Services Law § 384-b(4)(b) authorizes termination of parental rights when a
parent abandons a child for a period of six months immediately prior to the
date the petition is filed.
A
child is "abandoned" by his parent under this statute "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"
(§ 384-b[5][a]).
Social
Services Law § 384-b(7), which addresses the "permanently neglected
child," provides that "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." Clear and
convincing evidence is necessary to prove both abandonment(Matter
of Annette B., 4 NY3d 509, 514 [2005], and permanent neglect (see Matter of
Jonathan R.M., 26 AD3d 205, 206 [2006]).
The
incarcerated parent presents "special circumstances" that must be
considered in determining whether he or she meets the statutory requirements
for substantial contact with the child or children (see Legislative findings, L
1983, ch 911, § 1). The statutory scheme prior to the
1983 amendments presumed that an incarcerated parent was unable to maintain
contact with or plan for the future of his or her child (former Social Services
Law § 384-b[7][d][ii]), thus a finding of permanent
neglect by that parent was precluded (see Legislative memorandum, 1983
[*5]McKinney's Session Laws of NY, at 2707). At the same time, the consent of
such parent was not required before his or her child was released for adoption
(Domestic Relations Law former § 111 [2][d];
Legislative memorandum, supra at 2707). The Legislature amended the statutes by
removing the status of incarceration as a basis for the termination of parental
rights and by recognizing the continuing parental obligations of incarcerated
parents to their children (see Social Services Law § 384-b[7][d];
Domestic Relations Law § 111[2]). The incarcerated parent must cooperate with
the child care agency in planning for the child and arranging visits; the
agency, in turn, must exercise diligent efforts to arrange for such visits
(Social Services Law § 384-b[7][e][ii], [f][5]).
While
an agency bringing a petition for abandonment is not required to use
"diligent efforts" to maintain contact with a child or children when
a parent is incarcerated (Matter of Reality Rashida
J., 206 AD2d 315, 318 [1994]), there is an issue here as to whether the agency
made any efforts to assist in communication. Georges admitted that she made no
effort to contact respondent in the six-month period prior to the filing of the
petitions. Her self-serving testimony that she sent letters to respondent, some
of which were returned to the agency, was not supported by any evidence.
Moreover, Benson's testimony that she was unaware she could make direct contact
with respondent affirms the agency's lack of effort to foster contact between
him and the children.
By
contrast, although respondent's incarceration limited his ability to contact
the agency, his testimony was uncontroverted that
State regulations required inmates to have a person's name before being
permitted to call an agency. During the six-month period between February and
August 2004, he contacted the Osborne Association to seek help in restoring
communication and visitation with his children. He utilized the services of an
intermediary, Grigsby, to contact the agency, and she was, in fact, in regular
contact with agency caseworker Georges on his behalf from at least June or July
2004. Grigsby was instrumental in making arrangements with the agency for the
August 6, 2004 visit, and met with both the children and foster parents in July
2004. Although there is a question as to whether respondent did send cards and
letters to the children, Grigsby testified that he sent cards to her for
delivery to the children and had a notation to that effect in her file. Whether
or not respondent could have taken other actions of a similar nature during the
relevant six-month period of time, the fact remains that he did make an effort
through Grigsby during that period to resume contact with his children.
Although
the court found respondent had abandoned the children, what it really did was
take the easier route to termination of parental rights by improperly applying
the "permanently neglected child" element of "insubstantial
contacts" (Social Services Law § 384-b[7]) rather
than the "abandoned" child standard (§ 384-b[5]). These subdivisions
are designed to accomplish two different goals. "The abandonment section
is intended quickly to free for adoption children whose parents have shown no
interest in them; the neglect section is designed to free for adoption children
whose parents, although technically not guilty of abandonment, have failed to
maintain regular contact with their children although granted a longer period
of time to attempt to re-establish a family relationship" (Matter of
Ulysses T., 87 AD2d 998, 999 [1982], affd 66 NY2d 773
[1985]). Underthe circumstances presented, there is
no basis for the court's [*6]determination that the
August 2004 visit constituted an "insignificant contact" even under
the permanent neglect standard, or that respondent evinced an intent to forgo
his parental rights and obligations (Social Services Law § 384-b[5][a]; cf.
Matter of Richard X., 226 AD2d 762, 765 [1996], lv
denied 88 NY2d 808 [1996]).
Since
petitioner seeks termination of respondent's parental rights so the children
could be freed for adoption, the question of abandonment is the threshold
issue. "Abandonment, as it pertains to adoption, relates to such conduct
on the part of a parent as evinces a purposeful ridding of parental obligations
and the foregoing of parental rights . . . The best interests of the child, as
such, is not an ingredient of that conduct and is not involved in this
threshold question" (Matter of Corey L. v Martin L., 45 NY2d 383, 391
[1978]). Although the court found at the dispositional hearing that it would be
in the best interests of the children if they were freed for adoption, that is
not the proper standard to be applied in a proceeding seeking to terminate
parental rights on the ground of abandonment (Matter of Female W., 47 NY2d 861
[1979]). Simply put, a parent cannot be displaced "because someone else
could do a better job' of raising the child," absent extraordinary
circumstance such as abandonment, unfitness or persistent neglect (Matter of
Bennett v Jeffreys, 40 NY2d 543, 548 [1976]). The
"best interests" standard applied at the dispositional hearing was,
on the basis of this record, present sub rosa
throughout all of the agency's case, from findings through disposition. The
court found Georges's testimony wholly credible
despite the contradictions, particularly her admission that she did not attempt
to contact respondent during the six-month statutory period as well as her
failure to substantiate her statements that letters sent to respondent were
returned to the agency. By the same token, the court found respondent's
testimony incredible in all respects. Significantly, the court found that
Grigsby made her first contact with Georges "sometime in June 2004,"
well before the petitions were filed and well within the six-month statutory
period. The court discounted respondent's testimony that he sent letters to the
children. As noted, it discounted the visit and ignored respondent's efforts with
the Osborne Association, efforts which had commenced in May 2004, again long
before the petitions were filed. At the dispositional hearing, the agency
caseworkers presented evidence as to the suitability of the prospective
adoptive parents. The court, invoking the "best interests" standard,
found that respondent "apparently is not, at this time, a resource for the
children. So . . . there's really no other option." By improperly applying
the permanent neglect standard, the court in effect bootstrapped its finding of
abandonment to draw an inescapable conclusion that freeing these children for
adoption was in their "best interests." While there is a significant
tension between respect for the rights of natural parents and the need to
protect children, the statutory scheme "should not be so broadly applied
that it establishes a preference" (Corey L., 45 NY2d at 392, supra).
A
termination of parental rights is a drastic event (Matter of Verona Jonice N., 177 AD2d 115, 119 [1992]). On the record before
us, the burden necessary to determine those rights has not been met.
Orders,
Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about May 3,
2006, which, to the extent appealed from, terminated respondent father's
parental rights upon findings of abandonment and committed custody and
guardianship of the children to petitioner [*7]agency
and the Commissioner of Social Services for the purpose of adoption,
unanimously reversed, on the law and the facts, without costs, the orders
vacated, and the petitions dismissed.
M-4379
- In re
Motion
seeking leave to strike reply brief denied.
All
concur.
THIS
CONSTITUTES THE DECISION AND ORDER
OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
JANUARY 10, 2008
CLERK