54 N.Y.2d 282 | NY | 1981
OPINION OF THE COURT
The issue on this appeal is whether respondent’s child, Hime, was shown to be a “permanently neglected child” within the meaning of subdivision 7 of section 384-b of the Social Services Law, because respondent failed for a period
Hime was born on March 10, 1975. She was placed temporarily with the Jewish Child Care Association on April 9, 1975 and on July 8, 1975, after the Family Court determined that she was a neglected child, was plafced with that agency for one year. Respondent was in Bellevue Hospital from April 1, 1975 until June 26, 1975. The proceeding to terminate her parental rights was begun July 22,1976, the petition alleging both mental illness and permanent neglect.
The Family Court Judge found that there had been- no failure to plan and characterized the agency’s efforts as begrudging (92 Misc 2d 652, 655, 657), although his comments in his first opinion, and in the course of a dispositional hearing held a year later, suggest that the root of his findings was the conflict inherent in the agency’s being required to work with the foster parent while at the same time being supportive of the mother
On appeal to us, we reversed the Appellate Division’s mental illness finding on the law, because the evidence was insufficient to show incapacity “for the foreseeable future” as required by section 384-b (subd 4, par [c]) of the Social Services Law. On remand the Appellate Division found
Section 384-b of the Social Services Law carefully balances the interest of a child in foster care not to “experience [an] unnecessarily protracted [stay] in such care without being adopted or returned” (subd 1, par [b]) with the parents’ interest in continuing the parent-child relationship (subd 1, par [a], els [i], [ii], [iii]). It spells out the grounds upon which parental rights may be terminated and the child freed for adoption (subd 4), the burden of proof with respect to each ground (subd 3, par [g]) and the elements of each ground that must be proved (subds 5, 6, 7). On the question of failure to plan, it directs that the plan “must be realistic and feasible, and good faith effort shall not, of itself, be determinative” (subd 1, par [c]), but also provides in subdivision 7 (par [d], cl [iii]) of section 384-b that institutionalization “shall not interrupt, but shall not be part of, a period of failure to * * * plan for the future of a child.” Thus, respondent’s mental illness bears on the present appeal only in the measurement of the one-year period, which runs to June 26, 1976, one year after respondent’s discharge from Bellevue.
In light of the disagreement between the courts below, this court reviews the record to determine which, findings conform to the weight of the evidence (Grant Co. v Srogi, 52 NY2d 496, 511; Rorie v Woodmere Academy, 52 NY2d 200, 204; see Matter of Ray A. M., 37 NY2d 619, 623; Cohen and Karger, Powers of the New York Court of Appeals, p 485).
After careful review of the record, we conclude that the weight of the evidence is with the Appellate Division’s findings. As it noted, on the issue of financial ability respondent not only refused to provide details, thus giving rise to an unfavorable inference, but also testified that she had always supported herself. Clearly, she also had “physical
For the foregoing reasons, the order of the Appellate Division should be affirmed, without costs.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.
Order affirmed.
But compare Matter of Leon BR (48 NY2d 117, 126) : “These duties, however, are by no means contradictory; indeed, they are complementary.”