65 A.D.2d 18 | N.Y. App. Div. | 1978
OPINION OF THE COURT
Appellant, Werner "PP”, immigrated to this country from Germany in 1960 and married Bonnie Monroe in 1964. Two children were born to the marriage, Anita, 12, and Robert, 10. In 1970, the mother abandoned the family, and appellant, unable to properly care for the children, voluntarily surrendered them to the Orange County Department of Social Services for foster care.
In December of 1971, appellant moved to Otsego County, where he had obtained employment as a baker for which he was trained. His children were reunited with him in April of
The foster care status of appellant’s children was reviewed in August of 1976, pursuant to section 392 of the Social Services Law. Although the Agency requested that the children’s foster care be continued, the Family Court directed it to initiate a permanent neglect proceeding against appellant and his divorced wife. The wife consented to termination of her parental rights to the children, but appellant vigorously contested the action.
At the fact-finding hearing the testimony revealed that the Agency was fully aware of appellant’s difficulties which prevented the return of his children: heavy financial burdens; irregular and lengthy working hours; and absence at home of proper care for the children while he worked. Appellant testified that he intended to consummate his plan of regaining the custody of his children by shortly marrying his girlfriend and thereby establish a home for his children. The Family Court, however, in its decision dated July 12, 1977, stated that it did not "believe that he ever is going to marry her”, and that he has no "definite plan to regain custody of his children” now. The court also concluded that the Agency "attempted to encourage and strengthen the parental relationship to begin with, but in recent months it would have been detrimental to the best interests of the children if they attempted to do that any longer”. At the dispositional hearing held in August of 1977, appellant testified that he had in fact married on July 29, 1977 and was now in a position to retake his children. Nevertheless, the court stated that "you [appellant] don’t mean what you say”, and that it was "[t]oo bad” that he had not done this earlier. The court, finding that the children were permanently neglected, terminated appellant’s parental rights.
Section 384-b of the Social Services Law enables autho
Appellant contends, inter alia, that the Agency did not sustain its burden of proving that it made diligent efforts to strengthen and encourage the parental relationship.
In a proceeding constituting one of the most severe intrusions by the State into an individual’s life—the permanent termination of his parental rights—the allegations in the petitions and the proof adduced at the fact-finding hearing should carefully adhere to the statutory requirements. Yet the allegations of the petitions are conclusory; they neither specify nor detail what efforts, if any, were undertaken by the petitioner to "encourage and strengthen the parental relationship” (see Family Ct Act, § 614). There is only a general allegation in the petitions that the Agency has made "consistent efforts to have the parents maintain contact with or plan for the future of the children and although the parents are financially and physically able to do so they repeatedly neglected to keep appointments to see the child or make plans
The term "diligent efforts” has now been defined by the Legislature as:
"[Reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child, including but not limited to:
"(1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family;
"(2) making suitable arrangements for the parents to visit the child;
"(3) provision of services and other assistance to the parents so that problems preventing the discharge of the child from care may be resolved or ameliorated; and
"(4) informing the parents at appropriate intervals of the child’s progress, development and health.” (Social Services Law, § 384-b, subd 7, par [f].)
The Agency is required to mold its efforts in the context of and in recognition of a parent’s individual situation. The Agency and the parent "cannot be viewed as equals in the planning process” (Matter of Joyce Ann R., 82 Misc 2d 730, 733), and "[a]gency efforts correlative to their superiority are obligatory” (Matter of Sydney, 84 Misc 2d 932, 934). The Agency’s neglect in fulfilling its express statutory duty cannot be excused or justified because it would have been difficult or burdensome for the Agency to undertake such efforts due to the parent’s predicaments. Additionally "the statute should be construed in favor of the [appellant] because of the human relationship” (Matter of Anthony "CC”, 48 AD2d 415, 418-419, mot for lv to app den 37 NY2d 708). Finally, we have pointed out that the statute is "extremely harsh and seems contrary to human instincts and should only be implemented under the most stringent circumstances” (Matter of Peter ”DD” v St. Lawrence County Dept, of Social Servs., 48 AD2d 956 [Herlihy, J., concurring]).
The petitions allege that appellant was advised that if he
The statute also mandates that the Agency make "suitable arrangements for the parents to visit the child” (Social Services Law, subd 7, par [f], cl [2]). After appellant moved from Otsego County (where his children were residing with the Agency) to Oneida County where he had obtained employment, he requested that he be allowed to take his children for one or two weeks. Petitioner denied this request. When appellant requested that the children be transferred to Oneida County so that he could see them more often, the Agency indicated that it would oppose such a transfer. The Agency knew that appellant lived over one hour from where his children resided and that his long working hours made visitations impractical.
Appellant repeatedly informed the Agency and the Family Court of his objective to retake his children when he remarried. We are impressed that he has consummated his plan for the return of his children. He has remarried and his wife, a graduate of Hartwick College, unequivocally testified at the fact-finding hearing that she not only wants to live with the
A thorough and careful examination of the record reveals that the Agency’s dealings with appellant were routine, and at times perfunctory. The State’s first obligation is to reunite a child with his family when he has left home (Social Services Law, § 384-b, subd 1, par [a], cl [iii]). Upon this record, we are unable to say that the Agency has complied with this obligation.
The orders should be reversed, on the law and the facts, and the petitions dismissed, without costs.
Greenblott, J. P., Kane, Main, Mikoll and Herlihy, JJ., concur.
Orders reversed, on the law and the facts, and petitions dismissed, without costs.
. The record contains no support for the allegation that appellant failed to keep visitation appointments. To the contrary, a foster mother testified that "I cannot say that I remember that he [appellant] did that.”