91 Misc. 2d 738 | N.Y. Fam. Ct. | 1977
In May, 1975, the two children who are the subject of the instant proceedings were adjudicated as neglected children and placed in the custody of the petitioner, Department of Social Services, for a period of 18 months. The respondents, parents of the children, were directed to co-operate and fully participate in a plan of rehabilitation involving various services set forth in a written letter to the court, dated May 13, 1975. This plan included attendance at a parent rehabilitation and enrichment program on a weekly basis and mental health counseling.
The instant proceedings were brought by the Department of Social Services to terminate the parental rights of the respondents on the ground of permanent neglect. The petitions allege that for a period of more than one year respondents have failed substantially, continuously and repeatedly to maintain contact with the children and have also so failed to plan for their children’s future, although financially and physically able to do so. The petitions further allege that the parents have continuously and repeatedly failed to co-operate with the petitioner in attempts to strengthen the parental relationship with the children and to follow the rehabilitative plan previously ordered by the court.
Respondents have moved to dismiss the petitions on the grounds that New York’s permanent neglect statute is unconstitutional for vagueness and infringement of respondents’ First Amendment rights of privacy and denies them equal protection of the laws.
The phrase in issue, "failure to plan for the future of the child”, was incorporated in the original enactment of New York’s permanent neglect statute in 1959. The purpose of the legislation clearly appears from the legislative history (see Governor’s memorandum of approval, NY Legis Ann, 1959, pp 415-416) and is extensively discussed in Gordon, Terminal Placements of Children and Permanent Termination of Parental Rights: the New York Permanent Neglect Statute (46 St. John’s L Rev 215). Until 1959, literally thousands of New York children remained in the limbo of foster care, neither restored to a permanent stable home with their biological parents nor freed for adoption, because their parents were unable or unwilling adequately to care for them and would not consent to their permanent placement in an adoptive home. Parental consent generally could only be dispensed with by proof of total abandonment. The strictness of the abandonment concept applied by the New York courts meant that parents who were unable or unwilling meaningfully to exercise parental rights could nevertheless forestall the per
Applying the foregoing legislative history, the New York courts have had an opportunity to construe and apply the meaning of the "failure to plan” ground. It is a well-settled principle of constitutional law that an authoritative construction of a State statute by its courts must be considered and is binding in any attack on the statute for vagueness. (See Wainwright v Stone, 414 US 21; Broadrick v Oklahoma, 413 US 601; and Law Students Research Council v Wadmond, 401 US 154.) As so construed, the requirement of the parent to substantially plan means not only to formulate, but also to accomplish, a feasible and realistic plan to restore the child to a permanent, stable home with its parent. (See Matter of Stephen B., 60 Misc 2d 662; Matter of Orzo, 84 Misc 2d 482 and Matter of Orlando F., supra.) As stated in Orlando F. (40 NY2d at p 110) "to be sure, the mother has evinced a 'burning desire’ to regain custody of the child, but it is undisputed that in the three years preceding this litigation she failed to take the affirmative steps necessary to insure that Orlando would
As so construed, the statutory phrase in question more than adequately satisfies the constitutional requirement for definiteness under the due process clause. To make the "plan” provision as definite as the "keep in contact” one, which respondents suggest is necessary, would require a detailed recital of every conceivable program of personal, economic, residential and social rehabilitation that might tend to accomplish the goal of restoration of children to a wholesome, permanent home environment with their parents. Such a recital, if not impossible to accomplish, at the least would produce a statute of such complexity and prolixity that it would defeat the purposes of both practical implementation and fair notice to those affected. Such definiteness is not constitutionally required under the vagueness doctrine, as applied by the Supreme Court, even when dealing with statutes imposing criminal sanctions or restricting First Amendment rights of free expression or political activity. Thus, the court has upheld as sufficiently definite statutory prohibitions against "political activity” by governmental employees (Civil Serv. Comm. v Letter Carriers, 413 US 548 and Broadrick v Oklahoma, 413 US 601, supra); permitting discharge of Federal employees for "such cause as will promote the efficiency of [the] service” (Arnett v Kennedy, 416 US 134, 151-152); conditioning admission to the Bar upon an assessment of "the character and general fitness requisite for an attorney and counselor-at-law” (Law Students Research Council v Wadmond, supra, p 156); and authorizing a court martial for
As construed by New York’s courts the statute, in plain language, conveys to parents their duty to participate in the formulation of a program of action which will realistically tend to accomplish the desired goals of the statute, namely, the return of the child to their custody with adequate care on a permanent, stable basis. That mandate, in any particular case, will in all likelihood be tailored to the conditions of parental personality, economic status and home atmosphere which led to the placement of the child in foster care in the first instance. It will be further delineated through the implementation of the statutory mandate imposed upon the agency to make "diligent efforts to encourage and strengthen the parental relationship”. More cannot be required by way of definiteness without either restricting the scope of the legitimate State purpose underlying its enactment or, as previously described, making the statute totally unworkable. As stated by the United States Supreme Court in Colten v Kentucky (407 US 104, 110) "The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.”
Moreover, it should be noted that in the instant case the "plan” required of the respondents was even more particularized and delineated by the order of disposition in the previous neglect proceeding at the time of placement of the children in foster care, wherein specific programs for the rehabilitation of the family unit were set forth. The petition in the instant
The second prong of respondents’ constitutional attack is based upon a claimed infringement of their right of privacy in that the failure to plan ground for termination of parental rights is claimed to represent an unwarranted intrusion upon parental freedom to rear their children as they wish and their intimate family life. Unquestionably the freedom to rear one’s child is the kind of personal activity included within the right of privacy protected under interpretations of the First Amendment by the United States Supreme Court in such cases as Wisconsin v Yoder (406 US 205), Griswold v Connecticut (381 US 479) and Roe v Wade (410 US 113). A reading of these decisions, however, makes it clear that the State’s invasion of respondents’ privacy alone is not determinative of the invalidity of the statute. These cases stand for the proposition that the right of privacy is not absolute, but must be balanced against legitimate State interests. As stated in Roe v Wade (supra, p 154), perhaps the most extreme of the privacy cases: "We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”
The welfare of children has been recognized repeatedly as an area of legitimate State concern, even when pursuit of that concern has impinged upon fundamental rights. As stated by no less zealous an advocate of personal freedom than Mr. Justice Rutledge, in Prince v Massachusetts (321 US 158, 166-168): "but the family itself is not beyond regulation in the public interests, as against a claim of religious liberty. * * * And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interests in
In the instant case, there can be no doubt of the State’s legitimate concern in preventing the twofold evils of protracted foster care, namely, its harmful effects upon proper child development and the fiscal impact of the cost of indefinite maintenance of children by the State. Also to be balanced against respondents’ right of privacy is the right of the children, who are also persons within the meaning of the Fourteenth Amendment (Matter of Gault, 387 US 1) to continuous care in a stable, permanent home environment. As discussed previously, the means selected here to further these legitimate countervailing interests are appropriate in mandating that parents plan for their child’s future by making concrete preparations to be able to provide its adequate, stable care in their own home or suffer the loss of their ability to prevent its placement for such care in a permanent, adoptive home. Furthermore, New York’s permanent neglect statute does not manifest any callous disregard of parental rights. A judicious balancing of parental right and State interests is demonstrated by its requirement of proof of diligent agency efforts to strengthen the parental relationship and of parental physical and financial ability to keep in contact and plan, before an adjudication of permanent neglect may be made. In Roe v Wade (410 US 113, supra) the Supreme Court held that at the point of fetal viability the State’s legitimate interests in the protection of health, medical standards and prenatal life become dominant over the pregnant mother’s right of privacy in the abortion decision, permitting the State to prohibit an
The final contention of the respondents is that the statute is invalid under the equal protection clause. Preliminarily it may be observed that the statute on its face does not treat persons similarly situated differently nor does it reveal any distinctions in the treatment of the respondents or indeed any parent or child on such "suspect” bases as race, creed, national origin, wealth or class status. Nor have respondents claimed that the statute in its application produces any invidious discriminatory effects on such bases or any similar bases. This fact, under the more recent Supreme Court cases, affects the scope of review under the equal protection clause. As stated by the court in Buckley v Valeo (424 US 1, 30-31), in reviewing the campaign contribution limitations of the 1974 Federal election campaign reform legislation: "Apart from these First Amendment concerns, appellants argue that the contribution limitations work such an invidious discrimination between incumbents and challengers that the statutory provisions must be declared unconstitutional on their face. In considering this contention, it is important at the outset to note that the Act applies the same limitations on contributions to all candidates regardless of their present occupations, ideological views or party affiliations. Absent record evidence of invidious discrimination against challengers as a class, a court should generally be hesitant to invalidate legislation which on its face imposes evenhanded restrictions.” (Emphasis supplied.)
Respondent’s claim that the statute is discriminatory in that a distinction is made between parents whose children are in the care of an authorized agency, who are exclusively subject to the sanction of termination of parental rights for permanent neglect, and all other parents, is an ingenious argument but in my view a specious one. The evil addressed
Even if I were, however, to accept respondents’ contention
Moreover, both courts and commentators have criticized the two-tiered approach evolved by the Supreme Court in the 1960’s in equal protection cases, in which the strict scrutiny
Clearly, from the previous discussion, New York’s permanent neglect statute is sustainable under the "substantial rational basis” test. The Court of Appeals’ decision in Matter of Malpica-Orsini (supra), is in my view a fortiori controlling. The same fundamental right was involved in Malpica as in the instant case, namely, the right of a natural parent to prevent the adoption of his child by withholding consent. In that case, the court dealt with the provision of section 111 of the Domestic Relations Law permitting the adoption of an illegitimate child upon notice but without the consent of its natural father. In Malpica, the discrimination, appeared upon the face of the statute, which expressly distinguished between the consent requirements for adoption, on the part of the parents of a legitimate and an illegitimate child. Here, as previously indicated, no such discrimination appears in the statutory language. Moreover, in Malpica, the court was dealing with distinctions based upon illegitimacy, which theretofore had been considered a suspect classification under previous Supreme Court decisions. Nevertheless, the court upheld the constitutionality of the statutory distinction and the infe
Respondents’ motions to dismiss the petitions herein are therefore denied, and the parties and their respective attorneys are directed to appear before me for trial on October 24 and October 25, 1977 at 9:00 a.m.
. In 1976, the Legislature comprehensively revised and reorganized all the laws dealing with termination of parental rights, incorporating the substantive provisions of these laws, including permanent neglect, in new section 384-b of the Social Services Law (L 1976, ch 666, eff. Jan. 1, 1977). The new statute (§ 384-b, subd [7], par [c]) expressly defines "plan for the future of the child”, to "take such steps as may be necessary to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent. The plan must be realistic and feasible, and good faith effort shall not, of itself, be determinative”. The definition also permits the court to "consider the failure of the parent to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available”. Thus the revision largely incorporates the previous judicial construction of the planning requirement. In Matter of Ray A. M. (37 NY2d 619) and Matter of Orlando F. (supra), the Court of Appeals held that the law "as it exists today” should be applied in permanent neglect cases, but with respect to failure to plan, no substantially different result would be reached under the new than under the prior statute.
. The vagueness doctrine is even less strictly applied when the indefiniteness of the statutory language does not result in a "chilling effect”, inhibiting the full exercise of constitutionally protected and encouraged rights under the First Amendment to free expression and to engage in political associations and activities. Thus, an attack on vagueness has almost never been recently upheld when it relates to economic or business regulation. (See Willamson v Lee Optical Co., 348 US 483.) No such "chilling effect” is involved in the instant case, since the purpose of the statute is to encourage, not restrict, the fullest exercise of parental rights and responsibilities. Any unclarity in the meaning of the statute would thus only work to the encouragement of parental conduct tending to result in the fullest exercise of such rights by restoration of the child to the home and custody of such parents.