Petition — Santosky v. Kramer
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RECEIVED
DEC 135 169
OFFICE OF THE cLEp
x
IN THE SUPREME COURT, Us
SUPREME COURT OF THE UNITED STATES
October Term, 1980
no. 80-5889
JOHN SANTOSKY II and ANNIE SANTOSKY,
Petitioners,
Ve
BERNHARDT S. KRAMER, Commissioner,
Ulster County Department of Social
Services, et al.
MOTION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS
The petitioners ask leave to file the attached
Petition for a Writ of Certiorari to the Supreme Court of
the State of New York, Appellate Division, Third Department
without prepayment of costs and to proceed in forma pauperis
pursuant to Rule 46.
Leave to proceed in forma pauperis was sought and
granted in the Supreme Court of the State of New York,
Appellate Division, Third Department.
The petitioners’ affidavit in support of this motion
is attached.
MARTIN GUGGENHEIM
Washington Square Legal Services, Inc.
Attorney for Petitioner
80 Fifth Avenue
Suite 1501
New York, New York 10011
(212) 924-3200
IVED
DEC 13 tap
OFFive OF THE CLERK
SUPREME COURT OF TEE UNITED STATES SUPREME COURT, US.
IN THE
pened
OCTOBER TERM, 1980
no. 80-5389
JOHN SANTOSKY II and ANNIE SANTOSKY,
Petitioners,
~- against -
BERNARDT S. KRAMER, Commissioner, Ulster
County Department of Social Services,et al,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF TRE STATE OF
NEW YORK, APPELLATE DIVISION, THIRD
DEPARTMENT
MARTIN GUGGFNERIM
Washington Square Legal Services, Inc.
80 Fifth Avenue
Suite 1501
New York, New York 19011
(212) 924-3290
Attorney for Petitioner
ALAN N. SUSSMAN
185 Fair Street
Kingston, New York 124901
Of Counsel
QUESTION PRESENTED
Whether Section 622 of the Family Court Act of the
State of New York is unconstitutional because it permits the
Family Court to terminate parental rights on a finding of
permanent neglect which is based upon a "fair preponderance
2f the evidence."
TABLE OF CONTENTS
QUESTION PRESENTED... ccccccccccccccccccccccccccccccccs
TABLE OF AUTHORITIES... .cccccccccccccccccscccccccccces
OPINIONS BELOW... cccccccccccccccccssccccccsscccsssescee
GROUNDS ON WHICH JURISDICTION IS INVOKED........+se0
CONSTITUTIONAL PROVISION AND STATUTE INVOLVED........-
STATEMENT OF THE CASE... ccccccccccccccccccccccccccsccce
REASONS FOR GRANTING THE WREtoecccrvovcseedocescsoseres
INDEX TO APPENDIX
APPENDIX A
Opinion of the Supreme Court of the
State of New York, Appellate Division,
third Department, Filed May 1, 1980...........
APPFNDIX B
Opinion of Family Court, Ulster
County, Filed March 12, 1979. .cccccccccccccccce
APPENDIX C
Orders of Family Court, Ulster
County, Filed April 5, BETO se hb ae bbeebsest vowe
APPENDIX D
Order Dismissing Appeal, Filed
by Court of Appeals of the State
of New York on September 16, 1980..........0.4.
APPENDIX E
Order of the Appellate Division,
Third Department, Filed May 1, 1980..........-
ii
TABLE OF AUTHORITIES
Cases
Addington v. Texas, 441 U.S. 418 (1979) ..seeeeeeeeees
In re Christopher B., 82 Cal. App.3d 698,
Ca .* Rotr. 9 (1978) ccccccccccccecccesececoce
In re Maria, Flisa and Norma C., 5 Fam.
Le Rptr. 3089 (Terr. Ct. Drs cenéianereneeaenaed
Caruso v. Superior Court, 100 Ariz. 174,
Cleveland Board of Education v. La Fleur,
414 Ueawe 632 (1974) cv ccacccscccccerccesevcccecoses
Dale county Devt. of Pensions v. Robles,
3 So. Ala. GLV App. eeneeeveeneeeeeneneenee
Noe v. Delaware, U.8. ’
Docket No. DOOR cs rkuh sos cbs ees eressatenoct ences
In Interest of C.K.G., 365 So.2d 424
a. App. eeeeeceeeeoeveeeeeeeweeeeeaeeeeees er ee
State in Interest of Gray, 353 So.2d 393
(La. 1977) ce ccccecvsceseessecccesesscsseesseverece
Griswold v. Connecticut, 301 U.S. 479 (1965)......6-.
In re B.C.H., 108 N.J. Super. 531, 262
. 97D) ccccccceccccdecccsessccseveccesesoecees
In re Eric Hambleton, 574 P.2d 982 (1978) ...--e-esee0>
In re Hochmuth, 251 N.W.2d 484 (1977) ...s-eeeeeceeees
Huey v. Lente, 85 N.M. 597, 514 P.2da
3 Dec ccccccccccccccccecoccceseeseseesecoes
In Interest of Jackson, 312 So.2d 912
(La. App. JG7D) cn cvcccc ccs cesecccccesceceesaeceee
interest of Jones, 34 Ill. App.2d 603,
340 N.E.20q 296 (1975) -ccccccccccccpeccccscccccce *-f
In re Cynthia K., 75 Cal. App.3d 81,
Ca * Rptr. 875 C1OTT) covet gdsorecvcvensesebese
In re Kelly, 262 N.W.2d 781 (1978) -cnccsccscsccccocece
In Interest of Kerns, 225 Kan. 746, 594
In re William L., 383 A.2d 1228 (1978) ..---ceeeeceees
Long Vv. Long, 255 N.W.2d 140 (1977) wcccccccccccccccce
iii
TABLE OF AUTHORITIES
(cont'd)
Cases
In re G.M., 596 S.W.2d 846 (Tex. BUG 6c tas codeuens oe
May v. Anderson, 345 U.S. 528 (1935) ..cccccccccccccce
Meyer v. Nebraska, 262 U.S. 390 (1923).......-0-. cece
Moore v. City of East Cleveland,
431 U.s. 494 CROC Ty e866 6066660465060 06600604 bbe tCK8
In re Angelina M.P., 6 Fam. L. Rptr.
2490 tealit. Ct. App., 3rd Dist. 1980) ..ccccccvece
Parham Vv. Jelse, 442 Uss. 5384 CLOTS) ce cccctccceccovenves
In Interest of Pitts, 535 P.2d 1244
EFC. LTO s4.6 b's sos cn tebe 66 Oe RS Beeb tes 66008 oe OR ERS
Prince v. Massachusetts, 321 U.S. 518 (1944)....ceeee
Quilloin Vv. Walcott, 434 U.S8. 246 CAS7G) ss ce eedoanens
Matter of Guardianship of R., 155 N.J.
Super. ’ * o CLOT 7 ccvrecseescvecseiscene
Matter of Adoption of J.S.R., 374 A.2d 860
(D.C. App. L977) bo bed debe reed bebe ee beseeeeeeseeese
In re Welfare of Rosenbloom, 266 N.'W.2d
In re K.S., 2 Fam. L. Rptr. 2193 CLS IG) ccees ocean eeses
In re Sego, 82 Wash.2d 736, 513
P. d 31 CEOV Sa) 6 606 cecds ers eedeveceeescoeseraennes
Sims v. "Moore, 438 F. Supp. 1179 (1977),
reversed on jurisdictional grounds,
442 0.8. 415 CAT Oo) 0 0coe bob 080 06 66066 6O0 bb Cds R OOK
Skinner v. Gklahoma, 316 0.8. 8335 (1942) ..ccecesosesece
In Interest of Souza, 204 Neb. 503,
ave . Rad 06 66 6 0600 0600 ee dees 66 ROS bO ES RO
Stanley v. Illinois, 405 U.S. 645 (1972) ...eeeeeseees
State v. Robert H., 393 A.2d 1387 (N.H. 1978).....e--
In re Tolbert, 62 Ill. App.3d 927,
38 N.E.2d 565 C2O7E) oc comae6 6 esneh Obs Cece ces we nbee
In re Willis, 207 S.E.2d 129 (W.Va. 1978) ...--eeeeeee
iv
TABLE OF AUTHORITIES
5 (cont'd)
Cases
In re X, Y, and Z, 607 P.2d 911 (Wyo. 1980)..........
In re Ybarra, 29 I1l1. App.3d 725, 331
N.E. 2d 224 Care ada a Saw aed 0 0k 6860 eWddioe 66490688
Statutes
0.8. Constitucion, Léth AmMeNEMENE sc cccccestivcsecceses
28 75.6. BZLS7 CD) Seccoesecsecetsavdiacesesesvesccvasses
Family Court Act, State of New York, §622.....ceeeee.
Page
8
7
2
2
3,4,5
IN THF
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
No. 80
JOHN SANTOSKY II and ANNIE SANTOSKY,
Petitioners,
- against -
RERNARDT S. KRAMER, Commissioner, Ulster
County Department of Social Services,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF THE STATE OF
NEW YORK, APPELLATE DIVISION, THIRD
DEPARTMENT
Petitioners, John Santosky II and Annie Santosky,
respectfully pray that a writ of certiorari issue to review
the judgment and opinion of the Supreme Court of the State
of New York, Appellate Division, Third Department, entered
on May 1, 1980, which unanimously affirmed an order of the
Ulster County Family Court entered on April 5, 1979.
OPINIONS BELOW
The Family Court of the State of New York, Ulster
County (Elwyn, J.), adjudged petitioners’ three children
permanently neglected and ordered that petitioners' parental
rights be terminated. In the Matter of Tina Frances Apel,
et al. (Opinion entered March 12, 1979 and attached as
Appendix "B"; orders entered April 5, 1979, and attached as
Appendix "C").
The Avpellate Division, Third Department, affirmed
the Ulster County Family Court. In the Matter of John AA,
et al., __ A.D.3rd , 427 N.Y.S.2d 319 (May 1, 1980).
(Appendix "A").
Petitioners’ appeal to the Court of Appeals was dis-
missed on September 16, 1980. In the Matter of Tina A.,
N.Y.2d - (Appendix "D").
JURISDICTION
The New York Supreme Court, Appellate Division, Third
Department, affirmed the Ulster County Family Court on May
1, 1980. Petitioners’ appeal to the Court of Appeals was
dismissed on September 16, 1980. This petition is timely
filed within ninety (90) days of the date of the Court of
Appeals’ dismissal. Jurisdiction is invoked pursuant to 28
U.S.C. §1257(3).
CONSTITUTIONAL PROVISION AND STATUTE INVOLVED
The Fourteenth Amendment to the United States Consti-
tution provides in relevant part:
No State shall...deprive any person of
life, liberty, or property, without due
process of law....
Section 622 of the New York Family Court Act pro-
vides:
Definition of “fact-finding hearing” -
When used in this part, Wect-Tinding
hearing” means in the case of a petition
permanently to terminate custody a
hearing to determine whether the allega-
tions required by paragraphs (a), (b),
(c), and (d) of section six hundred
fourteen are supported by a fair pre-
ponderance of the evidence.
STATEMENT OF THE CASE
On October 16, 1979, respondent Bernhardt S. Kramer,
Commissioner of the Ulster County Department of Social Ser-
vices, filed a petition in Ulster County Family Court alleg-
ing minors John Santosky III, Jed Conrad Santosky and Tina
Frances Apel to be permanently neglected by petitioners,
John Santosky II and Annie Santosky
Prior to trial, petitioners notified the Attorney
General of New York, pursuant to Section 71 of the Executive
Law, that they intended to assert at the hearing that the
Family Court Act was unconstitutional in that it required a
standard of proof for finding permanent neglect based on a
“fair preponderance of the evidence" rather than upon “clear
and convincing” evidence in violation of the Due Process
Clauses of the United States Constitution, Amendment 14, and
the New York Constitution, Article 1, Section 6. On January
2, 1979, the Attorney General responded that he would not
appear in the hearing.
A fact-finding hearing was held in the Family Court,
Ulster County on January 23, 26, 31 and February 1, 1979.
On the first day of the hearing, in his opening statement,
counsel for petitioners reasserted the claim that the statu-
tory standard for finding permanent neglect, located in
Section 622 of the Family Court Act, was unconstitutional.
He stated, "I have challenged this...on the grounds that it
denies the respondents the due process of law and that the
apvropriate standard of proof should he...clear and convinc-
ing evidence." The Court thereupon took note that the Attor-
ney General had been notified and had elected not to appear.
After the conclusion of the hearing, the Family Court
of Ulster County determined that the petition should be
granted and concluded that “the record in this case supports
by a preponderance of the evidence a finding that there has
indeed been a failure on the part of these parents to ‘plan
for the future of (their children) alth ough physically and
financially able to do so.'"
In the court's fact-finding decision, dated March 22,
1979, it devoted two full pages to a discussion of petitioners’
claim that the standard cf proof required by Section 622 of
the Family Court Act was unconstitutional. After noting that
the Attorney General had been notified and elected not to
appear, the court stated that "a finding of unconstitutiona-
lity should not be lightly undertaken by courts of first
instance.” The court explicitly decided to terminate peti-
tioners' parental rights “upon the standard of proof prescribed
by the statute -- ‘a fair preponderance of the evidence.'"
Petitioners then appealed directly to the Court of
Appeals, claiming that the sole issue involved was a consti-
tutional question. The Court of Appeals declined jurisdiction
by ruling that issues other than the constitutional question
were involved. ‘The court transferred the matter to the
Appellate Division, Third Department.
In their brief to the Appellate Division petitioners
argued only one point: that Section 622 of the Family Court
Act is unconstitutional in that it denied to petitioners a
fundamental right without due process of law. Petitioners
again argued that the United States and New York constitutional
guarantees of due process of law require that the termination
of parental rights be supported by no less than clear and
convincing evidence. In a Memorandum Decision, the Third
Department followed a previous case decided by that court
which held that Section 622 was constitutional. In adhering
to the earlier decision, the court noted that “the permanent
neglect statute...recog:’ zes and seeks to balance rights
possessed by the child...with those of the natural parents...
Accordingly, application of the preponderance of evidence
standard in such a proceeding involving these often conflict-
ing rights is proper and constitutional." In the Matter of
John "AA", _ A.D. __, __, 427 N.¥.S.2d 319, 320 (3rd
Dept. 1980) (citations omitted).
Petitioners appealed to the Court of Appeals of. New
York, which dismissed the appeal on September 16, 1980.
REASONS FOR GRANTING THE WRIT
I
The precise issue presented in this petition is pre-
sently before this Court. Doe v. Delaware, Docket No. 79-5932.
If the Court decides in Doe that termination of parental
rights must be based on more than a preponderance of the evi-
dence, that decision may not be applied retroactively. Thus,
refusal to grant this petition may resuit in the irrevocable
termination of petitioners’ parental rights even though the
termination was based on a constitutionally det.cient standard.
Because the rights at stake are so fundamental, petitioners
urge the Court to grant the petition and schedule the case
for plenary argument or, minimally, hold the petition until
a final decision is rendered in Doe v. Delaware.
II
The substantial importance of the constitutional ques-
tion involved in this case is most apparent from the fact that
the same question is presently before the Court.
Furthermore, it has been the consistent opinion of
this Court that the interest of parents in the custody and
control of their children is one of the highest rights recog-
nized in American jurisprudence. See Parham v. J.L., 442
U.S. 584 (1979); May v. Anderson, 345 U.S. 528, 533 (1953);
Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Skinner v.
Oklahoma, 316 "!.S. 535, 541 (1942); Meyer v. Nebraska, 262
U.S. 390, 399 (1923).
Petitioners contend that New York State has deprived
them of their fundamental right to the custody of their
children without due process of law. It is now beyond per-
adventure that “freedom of personal choice in matters of...
family life is one of the liberties protected by the due
process clause of the Fourteenth Amendment." Cleveland Board
of Fducation v. La Fleur, 414 U.S. 632, 639 (1974), cited
again in Quilloin v. Walcott, 434 U.S. 246, 255 (1973). See
also, Stanley v. Illinois, 405 U.S. 645 (1972); Moore v. City
of East Cleveland, 431 U.S. 494 (1977); Griswold v. Connecticut,
301 U.S. 479 (1965).
Standard of proof is an integral function of due pro-
cess. Addington v. Texas, 441 U.S. 418 (1979). Deprivation
of sacred family rights based on a standard of proof as low
as "preponderance of the evidence" is a flagrant violation of
the Pourteenth Amendment. Petitioners' claim must be pre-
served in order to provide then a hearing that comports with
due process.
III
The Third Department's decision upholding the New York
statute is in conflict with at least two federal courts and
at least twenty-two state appellate courts. Those courts
have ruled that the standard of proof for the termination of
parental rights and/or adjudication of neglect or abuse must
be raised from a "preponderance of the evidence" to a higher
standard. The decisions so holding are as follows:
State Courts:
Alabama - Dale County Dept. of Pensions v. Robles, 368
S0.2da 39 (Ala. Civ. App. 1979).
Alaska - In re K.S., 2 Fam. L. Rptr. 2198 (1976).
Arisona ~ Caruso v. Superior Court, 100 Ariz. 174, 412
P.2d 463 (1966).
California - In re Cynthia K., 75 Cal. App.3d 81, 141
Cal. Rptr. 875 (1977); In re Christopher B., 82 Cal. App.3d
603, 147 Cal. Rptr. 390 (1978); In re Angelina “.P., 6 Fam.
L. Rptr. 2490 (Calif. Ct. App., 3rd Dist. 1980).
District of Columbia - Matter of Adoption of J.5S.R.,
374 A.2d 860 (D.C. App. 1977).
Florida - In Interest of C.xX.G., 365 So.2d 424 (Fla.
App. 1978).
Illinois - Interest of Jones, 34 Ill. App.3d 603, 340
N.E.2a 296 (1975); In re Ybarra, 29 fll. App.3d 725, 331
N.E.2d 224 (1975); In re Tolbert, 62 Ill. App.3d 927, 38 N.E.
24 565 (1978).
Iowa - In re Hochmuth, 251 N.W.2d 484 (1977); Long v.
Long, 255 N.W.2d 140 (1977); In re Kelly, 262 N.W.2d 781
(1978).
Kansas - In re Fric Hambleton, 574 P.2d 982 (1978);
In Interest of Kerns, 225 Kan. 746, 594 P.2d 187 (1979).
Louisiana - State in Interest of Gray, 353 So.2d 393
(1977); In Interest of Jackson, 312 So.2d 912 (La. App. 1975).
Minnesota - In re Welfare of Rosenbloom, 266 N.W.2d
888 (1978).
Nebraska - In Interest of Souza, 204 Neb. 503, 283 N.W.
2a 48 (1979.
New Hampshire - State v. Robert H., 393 A.2d 1387 (19798).
New Jersey - Matter of Guardianship of &., 155 N. J.
Super. 186, 392 A.2d 634 (1977); In re B.C.H., 108 N.J. Super.
531, 262 A.2da 4 (1970).
New Mexico ~- Huey v. Lente, 85 N.M. 597, 514 P.2d 1093
(1973).
Pennsylvania - In re William L., 383 A.2d 1228 (1978).
Texas - In re G.M., 596 S.W.2d 846 (Tex. 1980).
Utah - In Interest of Pitts, 535 P.2d 1244 (Utah 1978).
Virgin Islands - In re Maria, Elisa and Norma C., 5 Fam.
Law Rptr. 2039 (Terr. Ct. 1978).
Washington - In re Sego, 82 Wash. 2d 736, 513 P.2da 831
(1973).
West Virginia - In re Willis, 207 S.E.2d 129 (W. Va. 1978).
Wyoming - In re X, Y, and Z, 607 P.2d 911 (iyo. 1980).
Federal Courts:
Eighth Circuit Court of Appeals - Alsager v. District
Court of Polk County, Iowa, 545 F.2d 1137 (1976), affirming
406 ©. Supp. 10 (S.D. Iowa 1975).
Southern District of Texas - Sims v. Moore, 438 F. Supp.
1179 (1977) (reversed on jurisdictional grounds, 442 U.S. 415,
1979).
In addition, the lower court's decision upholding the
"preponderance of the evidence" standard is possibly in con-
flict with two decisions of this Court.
In re Winship, 397 U.S. 358 (1970) established that
when a child faces loss of liberty for a law violation, due
process requires that the facts against him be proved beyond
a reasonable doubt. Regardless of whether the proceedings
are labeled civil or criminal, and even though delinquency
proceedings are concerned with a "child's best interest,"
the iature of the right at stake, to wit, liberty, calls for
the highest standard of proof. 397 U.S. at 367. Justice
Harlan, concurring, explained that “the choice of the stand-
ard for a particular adjudication does...reflect a very funda-
mental assessment of the comparative social costs of erroneous
factual determinations." 397 U.S. at 370. In termination of
parental rights proceedings, an erroneous factual determina-
tion costs families their fundamental right to family inte-
grity. Surely such a right deserves more protection than
what the "preponderance of the evidence" standard provides.
Addington v. Texas, 441 U.S. 418 (1979) raised the
standard of proof required in civil commitment procedures
from a "preponderance" of the evidence to “clear and convinc-
ing" evidence. That case discussed the intermediate standard
of proof - i.e., “clear and convincing" evidence - as appli-
cable to cases in which the interest at stake is more sub-~
stantial than mere loss of money. When important rights are
at stake, the risk of losing them must be reduced by raising
the standard of proof.
The Appellate Division's decision approving the "pre-
ponderance of the evidence" standard does not comport with
the principles regarding allocation of risks as announced in
Winship, supra, and Addington, supra. In order to protect
the fundamental right to family integrity, a deprivation of
that right must be based on no less than clear and convincing
evidence.
CONCLUSION
For the reasons stated above, the petition for a writ
of certiorari should be granted.
Respectfully submitted,*
Most Poagy §
MARTIN GUGGENHEIM
Washington Square Legal Services, Inc.
80 Fifth Avenue
Suite 1501
New York, New York 16011
(212) 924-3200
Attorney for Petitioner
ALAN N. SUSSMAN
185 Pair Street
Kingston, New York 12401
Of Counsel
ed Counsel wish to acknowledge the invaluable work of Lynn
Armentrout, a third-year law student at New York University
School of Law, in the preparation of this petition.
19
APPENDICES
Supreme Court—Appellate Bivision
Third Judicial Bepertment May 5 198
0
May 1, 1980 - 36228
In the Hatter of JOH! "AA"™ et al., Children
Alleged to be Permanently Weglected.
BERiTMARDT S. KRAMER, as Commissioner, Ulster
County Department of Social Services,
Respondent,
v.
Joni "AA'™ et al., Appellants.
Appeal from a judgment of the Family Court of Ulster County
(Elwyn, J.) entered April 5, 1979, which adjudged appellants'
three children to be permanently neglected pursuant to article 6
of the Family Court Act.
The sole contention upon this appeal is that section
622 of the Family Court Act is unconstitutional because the
standard of proof required by the statute, a fair preponderance of
the evidence, is so low that it deprives them of due process of
law. In Hatter of Anthony L. "CC" (48 A D 2d 415, 419), this court
held that the level of proof required by section 622 was con-
stitutional. In adhering to our decision, we note that the permanent
neglect statute (Social Services Law, § 384-b; Family Ct. Act,
§ 611, et seq.) recognizes and seeks to balance rights possessed by
the child (see Social Services Law, § 354-b, subd. 1; Matter of
Bennett v. Jeffreys, 40 ii Y 2d 543, 546, 547) with those of the
natural parents (see Social Services Law, § 384-b, subd. lt; Matter of
Sanjivini K., 47 N Y 2d 374, 332; Matter of Corey L v. Martin L,
45 WY id 383, 392). Accordingly, application of the preponderance
of evidence standard in such a proceeding involving these often
conflicting rights is proper and constitutional.
Judgment affirmed, without costs.
MAHOWEY, P. J., GREENBLOTT, KANE, MAI and MIKOLL, JJ., concur.
* Fictitious name.
STATE OF NEW YORK
FAMILY COURT : ULSTER COUNTY
lle fom pegs | Margate seo of
Guardianship Custody pursuant —
to § 384-b of the Social Services Law
of TINA FRANCES APEL, JOHN SANTOSKY .
and JED CONRAD SANTOSKY, children the age
' of Eighteen years alleged to be Permanently .
Neglected Children. ;
“ee eee eeeaee Fe eee eee eenaeanececaaaenae eerste TP
April 5, 1979
RICHARD W. GRIGGS, Attorney for
Commissioner of Social Services.
ALAN SUSSMAN (VICTORIA BLYTHE of Counsel),
Attorney for Respondent,
MARRIN & SMYTH (ROSEMARY SMYTH, of Counsel),
Attorneys for Foster Parents.
JAY SAMOFF, Law Guardian.
HUGH R. ELWYN, J: The Court has previously found that
the allegations required by paragraphs (a), (b), (c) and (d) of
section six hundred fourteen of the Family Court Act were
supported by a fair preponderance of the evidence (F.C.A. 622).
after a dispositional hearing held,ee.Aprél, 5, 1979.- >.
the Court now finds that the best taterests.of,all three of
the Santosky children require that their pazeots' custody be
terminated permanently (F.C.A. § 623) and that their guardianship
|; and custody be committed tc the petitioner, the Commissioner of
| Social Services of Ulster County (F.C.A. § 631, subd (c). The
‘ey petitioner's witnesses, Danie! lucy and Lynn Davis, the social
workers in charge of the Santosky case, and the petitioner's two
| expert witnesses, Dr. Lenore M. Sportsman, Director of the Albany
| Child Guidance Center and Elizabeth Smith, Director of the Family
) Service Center of the Children's Home of Kingston were unamimous .
° and €irm in their opinion that the children's, best interests re-
quired that the parents’ right to their custody, be permanently
terminated ont that a permanent and stable. home environment be
sought for each child. through the medium of adoption. No evidence
to the contrary has been presented on behalf of the respondents.
The court notes, however, that Dr. Lenore Sportsman expressed
the opinion that the children John and Tina could be expected to
continue to have psychological difficulties in adjusting to any
home situation and that she therefore strongly recommended and,
in fact, considered it essential that any set of adoptive parents
“>
should be receptive, amenable and cooperative with efforts to
provide spam with such profeseiogel egunsehing, whether in the
form of cepemlacele psychological, or fami Ly counseling services
as might be offered to them.
Accordingly, the Court directs the entry of order pursuant
to section 687 of the Family Court Act committing the guardianship
and custody of Tina Frances Apel, John Santosky III and Jed
Conrad Santosky to the Commissioner of Social Services of Ulster
County, but will attach to the order of commitment the condition
that Commissioner provide supportive help to each child and their
respective foster parents in the form of such professional psychi-
atric, psychological and family counseling services, as in the
judgment of his professional advisers may be required to best i ‘
promote the adjustment of child and foster parents, or adoptive 9,
parents, to a healthy and permanent relationship. . ! Bh
The Clerk will prepare and submit an appropriate order. 4
Dated; April 10, 1979.
STATE OF NEW YORK
FAMILY COURT : ULSTER COUNTY
In the Matter of the Commitment of
Guardianship and Custody pursuant
to § 384-b of the Social Services Law Docket Nos.
of TINA FRANCES APEL, JOHN SANTOSKY III,
and JED CONRAD SANTOSKY, children under B-3-4-5-78,
the age of Eighteen Years alleged to
be Permanently Neglected Children,
January 26, 31, February 1, 1979
RICHARD W. GRIGGS, Attorney for Commissioner of
Social Services.
ALAN SUSSMAN, Attorney tor Respondents.
MARRIN & SMYTH, (WILFRID E. MARRIN, of Counsel),
Attorneys for Foster Parents.
JAY SAMOFF, Law Guardian.
HUGH R, ELWYN, J: This case represents a second attempt
by the Commissioner of Social Services of Ulster County to ter-
minate permanently the parental rights of John and Annie Santosky
by reason of the permanent neglect of their three children.
1. For the result of the first attempt see Matter of
Santosky, 89 Misc. 2d 730, affd., 63 AD2d 750.
(Family Court Act, Art. 6). Each of these three children have
been previously adjudicate! to oe neglected children within the
meaning of Article 10 of the Family Court Act and placed with the
Commissioner of Social Services for an initial period of 18
months, subject to the further order of the court. Tina Frances
Apel, now age 7, has been in foster home placement since November
20, 1973; John Santosky, now age 5, since September 30, 1974 and
Jed Conrad Santosky, now age 4, since September 30, 1974. The
placement of these three children has twice been extended (Family
Court Act § 1055), the latest extension being on June 14, 1977,
and a third application for an extension of placement filed June
13, 1978 is currently pending with this proceeding. The Court
takes judicial notice of its own records that relate to the pro-
ceeding before it (Matter of Denlow, 87 Misc. 2nd 410, 411-412
and cases there cited).
This proceeding instituted pursuant to Section 384-b of the
Social Services Law (L. 1976, c 666, effective January 1, 1977) 2
was initiated by the filing of a petition on October 16, 1978
pursuant to subd. 4 (d) of that law and Article 6 of the Family
2. This statute had been enacted, but was not effective at
the time of the earlier trial in this case which occurred in
November 1976.
= 3.
Court Act. The Petition contains all of the necessary allegations
required by Section 614 of the Family Court Act.
Although the petition alleges, after detailing the agency's
diligent efforts to encourage and strengthen the parental relation-
ship, that "notwithstanding such efforts, the parents have failed
for a period of more than one year following the date the childrea
came into the care of the petitioner, an authorized agency, sub-
stantially and continuously or repeatedly to maintain contact
with or plan for the future of the child although physically and
financially able to dn ex" (8.0.4. & 614, subd. 1 (d), Lt was not
contended nor was any proof, of fered at the trial that the parents
had failed to maintain contact with their children. On the con-
trary it is conceded they have through their counsel, diligently
sought to have permitted to them such contact through supervised
visits as’ the agency would allow. At one point in these proceed-
ings the Agency, upon advice of their expert consultant in child
‘ psychiatry, sought to curtail altogether the parents’ contact
with their children in foster care upon the ground that such visitatio:
was confusing and even detrimental to the children's emotional
well being. The parents’ right to maintain contact with their
children through periodic visitation was restored only through the
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intervention of the court.
However, the proof in this case shows that on some sixteen
occasions when visits with their children were scheduled the father
was from twenty minutes to an hour ha¢e and on one occasion when
fire engines passed the house found thea momentarily more demand-
ing of his time and attention. In any event, such visits as did
take place between the parents and their children were at best
superficial and devoid of any real emtional content, and were
probably wholly meaningless from the standpoint of the children
who have come to view their real parents as strangers and their
meeting with them as something only to be endured. From the
caseworker's description of the infrequent visits that have
occurred the court finds such visits to have been "of such
character as to overtly demonstrate a iack of affection and con-
cerned parenthood" (Social Services Law, § 384-b, subd. 7 (b).
Such visits “shall not be deemed a substantial contact", (Social
Services Law, § 384-b subd. 7 (b). Moreover, it is noted that
the same subdivision of section 384-b of the Social Services Law
declares that: "(F)or the purposes of paragraph (a) of this
3. See written, but unpublished, decision of this court,
dated June 27, 1977, pp. 10-14. Appendix A.
5.
subdivision, evidence of insubstantial or infrequent contacts by
@ 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." Consequently, the court could,
even though the point is not seriously urged by the Commissioner,
find the children to be permanently neglected, on that ground
alone (Matter of Orlando, 40 N.Y. 2d 103).
The Commissioner has elected, however, as in the first casa,
to predicate his contention that the children have been permanently
neglected solely upon the parents’ "failure to plan for the future
of their children" (F.C.A. §§ 611, 614, subd. 1, (d) ) "The
statute * * * is stated in the disjunctive and, thus, even though
parents may maintain contact with their children, the failure to
plan fer the future of the children, in and of itself, suffices
to support a determination of permanent neglect (Matter of Orlando
F., 40 N.Y. 2d 103; Matter of Amos HH, 59 AD2d 795)" (Matter of
Leon "RR", 24 AD2d //2 , 3rd Dept., January 25, 1979). The
Commissioner has, quite wisely I believe, eschewed any temptation
to predicate this case upon the theory that there has evolved
from Bennett v. Jeffreys, 40 N.Y. 2d 543 a non-statutory, so-
fault basis for the permanont termination of parental rights.
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Even though this case is predicated upon and is decided on
statutory grounds (Social Services Law 384-b and F.C.A. Art. 6),
the non-statutory - no-fault concept as a basis for the permanent
termination of parental rights has had such an appealing fascina-
tion for some courts that it deserves some discussion here,
lest this insidious and pernicious doctrine of questionable
constitutional validity find further lodgment in the law.
The Non-Statutory, No-Fault Concept.
Although Matter of Bennett v. Jeffreys, 40 N.Y. 2d 543 did
not "involve an attempted permanent termination of custody (Family -
Court § 614, subd 1; § 631; Matter of Anonymous (St. Christopher's
Home), 40 N.Y. 2d 96; Matter of Orlando F., 40 N.Y. 24 103; :
Matter of Ray A.M., 37 N.¥. 2d 619)" some courts have found in
the "extraordinary circumstances" rule of Bennett, particularly ee
where there has been a "protracted separation" of parent and .
child and "the psychological trauma of removal is grave enough
to threaten destruction of the child," a new non-statutory, no-
fault ground for termination of parental rights. Since the Court
of Appeals in Bennett did not expressly create such a new ground
for termination of parental rights and was indeed careful’ to state
with care and specificity the circumstances under which inter-
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vention by the State in the right and responsibility of a
natural parert to custody of a child would be warranted (p. 549),
the source of this novel predicate for the exercise of the power
of the State can only be traced to the command of the seme court
in Matter of Sanjivini K., 40 N.Y. 2d 1025, 1026, to resolve "the
status of the child and the rights and obligations of the parties
in that permanent neglect proceeding in conformity with the
standards we have enuncisted (“atrer of Bennett v. Jeffreys, 40
N.Y. 2d 543)."'
Instead of limiting the command of the court to the dispo-
sitional phase of a proceeding for the permanent termination of
parental rights (Family Court Act, Art. 6) where by statute "the
best interests of the child" is the focus and thrust of the pro-
ceeding (Family Court Act §§ 623, 614, subd. 1 (6) ), the courts
have found in Bennett a new non-statutory, no-fault ground for
terminating parental rights (See Matter of Sanjivini'R., 63 AD 2d
1021). This newly invented concept of "de facto permanent
neglect" did not, however, go completely unchallenged, but was in
fact severely criticized by the two dissenting justices as a
concept for which there was no statutory authority or decisional
precedent - one not sanctioned by anything in Bennett v. Jeffreys
(See dissent pp. 1021-1031). ?
A number of other appellate courts have by their holdings
likewiee seemingly sanctioned the creation of this new and inde-
pendent non-statutory, ne-fault ground for the termination of
parental rights (See, Matter of Abbott House v. Barbara J., 55
AD2d 604; Matter of Leticia Rose M., 54 AD2d 909; Matter of Kim
Marie J., 59 AD2d 716; Matter of Jean Yvette E., 59 AD2d 907;
Matter of Jonathan D., Jewish Child Care Assn. v. Dantelld F.D., 62
AD2d 947). >
It remained, however, for the judges of the Family Court to
come forth with a clear and unequivocal articulation of the new
concept of a non-statutory, no-fault ground for the termination
of parental rights. The first to do so was Jucge DONOVAN of
Westchester County in Matter of Amy S., 89 Misc. 2d 42, 49-50,
followed by Judge GARTENSTEIN of New York County in Matter of
4. Matter of Sanjivini K., 63 AD2d 1021 is on appeal to the
Court of Appeals. The case should provide final clarification of
the "best interests" test of Bennett v. Jeffreys to statutory
termination proceedings.
5. The Appellate Division affirmed an order dismissing a
permanent neglect petition, but modified it by directing the
court to hold a dispositional hearing on the issue of the best
interest of the child. Pursuant to that direction the Family Court
held a hearing and continued foster care. However, the Family
Court, recognizing the unsatisfactory state of the case law in
this area urged the court of Appeals to rule on the applicability
of Bennett, 40 N.Y. 2d 543 to cases involving Agencies and the
termination of parental rights (Matter of Jonathan D., Fam. Ct.,
New York Co., N.Y.L.J. Feb. 9, 1979, p. 6, c. 3).
Suzanne Y., 92 Misc. 2d 652, 658-661," Judge MILLER of Rockland
County in Matter of Strausberg, 92 Misc. 2d 620, 624 and Judge
FOLLETT of St. Lawrence County in Matter of Andress, 93 Misc.
399, 402-403.
Most recently, the Appellate Division (3rd Dept) in Matter
of Leon "RR", GZ AD2d /// , has found in Matter of Bennett v.
Jeffreys, 40 N.Y. 543 and Matter of Sanjivini K., 40 N.¥. 2d 1025
"a common law standard for termination of parental rights inde-
pendent of the statutes", citing Matter of Kim Marie J., 59 AD2d
716, and Matter of Suzanne Y., 92 Misc, 2d 652.
All of this, as Judge DONOVAN in Matter of Amy S., Supra
points out (p. 50), is to embark upon a "path fraught with danger",
for the concept opens the lid of a "Pandora's Box" (p. 45). Like-
wise, Judge GARTENSTEIN in Matter of Suzanne Y., supra 662 was
equally uncomfortable with the unpredictability and the potential
for abuse acd tyranny i 5 2 concept provides for social agencies
and courtsto exercise for cre acod of its victims.
Moreover, the concept of a non-statutory, no-fault ground for
the termination of parental rights, because a court determines
that "the best interests" of the child requires it, is fraught
6. Matter of Suzanne Y., 92 Misc. 2d 652 has been reversed
by the Appellate Division, First Department Go ap2d 723, The
Court unanimously rejected Judge Garanstein's "no fault" theory of
termination of parental rights. Sa,
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with a serious constitutional question.
"In a long line of cases dating back more than 50 years,
the Supreme Court has endowed the family with an aura of consti-
tutional protection. In Meyer v. Nebraska, 262 US 390 (1923),
the court invalidated a state law which prohibited the teaching
of German. It held that the State's ‘concern’ for children and
their best interest - in this case, the protection of children
from foreign influences - was insufficient to overcome parents’
rights to control their children's upbringing. In the more recent
past in Stanley v. Illinois, 405 U.S. 645 (1972), the court invali-
dated an Illinois statute which automatically deprived non-
marital fathers of their children's custody upon the death of
their mother. In describing the rights of parents as compared
to nearrelated third parties, the court stated:
"(We have) frequently emphasized the importance of the
family. The rights to conceive and to raise one's
children have been deemed ‘essential’, ‘basic civil
rights of man’ and ‘rights far more precious than property
rights’. It is cardinal with us that the custody, care |
and nurture of the child reside first in the parents,
whose primary function and freedom include preparation
for obligations the state can neither supply nor hinder.
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The integrity of the family has found protection in
the Due Process Clause of the Fourteenth Amendment,
the Equal Protection Clause of the Fourteenth Amendment,
and che Ninth Amendmen:.
"And most recently, in Smith v. Organization of Foster
Families, 53 L. Ed. 2d 14 (1977), a case involving the three
sided dispute between the state, natural parents and foster
parents (see Children's Rights Report, Vol. 1, Nos. 4 & 6), a
unanimous Supreme Court held that the right of natural parents to
the custody of their children is a ‘constitutionally recognized
liberty interest that derives from blood relationship, state law
sanction, and basic human right.'
"Relying on these and other cases, the Supreme Court has
underscored a right which is nowhere clearly mentioned in the
constitution but has recently come to be known as the ‘right of
family integrity’. (Quoted from Children's Rights Report, Vol.
III, No. 2, October 2, 1978, p. 2).
In Smith v. Organization of Foster Parents, 431 U.S. 816,
53 L. Ed. 2d 14; 97 S. Ct. 2097 Justice POTTER STEWART in his
separate opinion emphasized that the constitution forbids the
state from depriving fit parents of their children because it
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believes it to be in the child's "best interests", or because
the child will be happier with scaeone else. In his opinion in
which the Chief Justice and Mr. Justice REHNQUIST concurred he
wrote: "One of the liberties protected by the Due Process
Clause, the court has held, is the freedom to ‘establish a home
and bring up children’ Meyer v. Nebraska, supra, at 399, 67 L.
Ed. 1042, 43 S. Ct. 625, 29 ALR 1146. If a State were to
attempt to force the breakup of a natural family over the objec-
tions of the parents and their children, without some showing of
unfitness and for the sole reason that é¢odo so was thought to be
in the child's best interest, I should have little doubt that the
State would have intruded impermissibly on the ‘private realm of .
family life which the state cannot enter’ Prince vs. Massachusetts,
4?
*
321 US 158, 166, 88 L. Ed. 645, 64S. Ct. 438" (Smith v. Organize-
tion of Foster Parents, supra, 53 L. Ed. 14, 46-7).
More recently, the United States Supreme Court clearly
raised the warning flag when in Quilloin v. Walcott, U.S. 54
L. Ed. 2d 511-519-520, 98 S. Ct. 549, 554-555 it said: "We have
recognized on numerous occasions that the relationship between
parent and cbild in cone! ‘int ionally protected, (citations.)
"It is cardinal with us that the custody, care and nurture of the
child reside first in the parents, whose primary function and
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freedom include preparation for obligations the state can neither
supply nor hinder’. (citation.) And it is now firmly established
that ‘freedom of personal choice in matters of . . . family life
is one of the liberties protected by the Due Process Clause of
the Fourteenth Amendment’. (citation.)
"We have little doubt that the Due Process Clause would be
otfended '(1)f 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
-o was thought to be in the children's best interest'." (citing
Smith v. Organization of Foster Families for Equality and Reforna,
431 US 816, » 53 L. Ed. 24 14, 97 8. Ct. 2094 (1977)
(Stewart Js, concurring).
Likewise, the court of appeat& in Bennett v. Jeffreys, 40 N.Y.
543, 548, which is the fountain-head for the development of the
no-fault basis for the termination of parental rights and again
in Matter of Goldman, 41 N.Y. 2d 894 recognized that in the
exercise of the state's power there are constitutional limits to
be observed. (See also, Janet G. v. N.Y. Foundling Hoep. 94 Misc.
2d 133, 141-142). Move vevert!y, in Matter of Corey L. v. Mertin
L., 45 N.Y. 2d BAI the cor ot af Appeals speaking with respect to
14.
the termination of parental rights through adoption said (p. 386):
"Despite recent changes in statutory law, there remains a heavy
burden of constitutional magnitude on one who would terminate
the rights of a natural parent through adoption". The constitu-
tional barrier to the termination of a parent's rights is again
emphasized by the court when at p. 389 it says: "Nevertheless, '
while accepting the change wrought by statutory law, this court
has and must continue to respect constitutional limitations on
the procedures for termination or deprivation of parental rights
(see Matter of Goldman, 41 N.Y. 2d 894, 895, supra; Matter of
Bennett v. Jeffreys, 40 N.Y. 2d 543, 548)". And again at p. 392
the court says: " * * *, the statute should not be so broadly
applied that it establishes a preference. A termination of parental
rights is a drastic event indeed so much so that it raises questions
of constitutional dimension" (citing Matter of Goldman and Bennett
v. Jeffreys, supra).
Although Matter of Corey L. v. Martin L., supra dealt with the
termination of a parent's right by reason of abandonment in the
context of an adoption proceeding there is language in the court's
opinion which can fairly be said to create some doubt as to whether
or not the Appellate Divisions and the Family Courts have not gone
too far in finding in Bennett a non-statutory, no fault ground for
termination of parental rights all in obeisance to the rubric of
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the "best interests" of the child. For instance, at p. 389 the
court says: " .v. . . the ultimate question is whether the
submitted proof establishes abandonment as a matter of law",
citing Matter of Bistany, 239 N.Y. 19, 24 and Matter of Maxwell,
4. N.Y. 24 429, 433. Cannot one with equal logic substitute "per-
manent neglect" for "abandonment"? And again at p. 391 the
court says: "Absent consent, the first focus there was on the
issue of abandonment since neither decisional rule nor statute
can bring the relationship to an end because someone else might
rear the child in a more satisfactory fashion. * * * * The best
interests of the child, as such, is not an ingredient of that
conduct (the parents) and is not involved in the threshold
question. While promotion of the best interests of the child is
essential to ultimate approval of the adoption application, such
interests cannot act as a substitute for a finding of abandonment".
Again the question arises, cannot the words "permanent neglect" |
be substituted for "abandonment"? And finally, the court says
(pp. 391-392): "If, for purposes of determining mere custody,
the best interests of the child would not permit a parent to be dis-
placed in the absence of extraordinary circumstances, surely a
complete termination of obligations and rights is not to be
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allowed in a situation where, as here, abandonment has not been
established, even if an ensuing adoption might be viewed by
some to be in the best interests of the child."
The Court of Appeals decision in Corey L. v. Martin L., supra
has caused some Family Court Judges to have some second thoughts
as to whether the implications thought to have flowed from Bennett
have not been too broadly applied (See decision of Judge GARTEN-
STEIN who "crystalized" the no-fault concept in Matter of Suzanne Y.,
92 Misc. 2d 652 in the Second Matter of Suzanne Y., 95 Misc. 2d 733;
Matter of Elizabeth Green, Family Ct., Bronx Do., N.¥.L.J. Dec. 12,
1978, p. 12, c. 6; and In re Jonathan D., Family Ct. New York County,
N.Y.L.J. Feb. 9, 1979, p. 6, col. 3). Obviously, the last worl on
the concept of a non-statutory, no fault ground for the permanent
termination of parental rights has not yet been written and won't.
be until the Court of Appeals has occasion to clarify and resolve
the issue.
It is not necessary for this court to attempt to resolve the
constitutional issue posed by the concept of no-fault termination
of parental rights hased pon 2 comparative best interest standard,
for the case can br devic ‘; atatutery prounis (Social Services
7. The Court of Appeals may soon have the opportunity to
do so, since the decision of the Appellate Division (2nd Dept)
in Matter of Sanjivini K., 63 AD2d 1021 is now on appeal to the
Court of Appeals.
Reversed 47N.Y. 2d 394.
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Law § 384-b and Family Court Act, Art. 6). "Constitetional
questions should not be reached unless their disposition is
necessary" (Comiskey v. Arlen, 55 A D 2d 304, 306, affd. 43 N.Y.
2d 496). It is enough to point out the constitutional infirmity
in such a concept, leaving its final resolution to an appellate
court,
Constitution» ity of Quantum of Proof.
The respondent has raised a question as to the constitutionality
of section 622 of the Family Court Act which permits the court to
determine whether the allegations of permanent neglect (paragraphs
(a), (b), (c) and (d) of subdivision one of section 614) are
supported ~ a fair preponderance of the evidence. It is contended
that to be constitutional the standard of proof mst be "beyond a
reasonable doubt" or at least "clear and convincing". The
Attorney General has been notified that the constitutionality of
the statute will be brought into question (Executive Law § 71,
CPLR § 1012 (b), in this court, but he has chosen not to appear.
In response to the constitutional issue the court notes that
sections 611 and 614 have been found to prescribe a constitutional
standard of proof by the Appellate Division (3rd: Dept.) In re
Anthony L. "CC", 48 AD2d 415 and by a Family Court in Matter of
Orzo, 84 Misc. 2d 482, 490-493.
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Moreover, a finding of unconstitutionality should not be
lightly undertaken by courts of first instance. "A statute
should not ordinarily be set aside as unconstitutional by a court
of original jurisdiction unless such decision is inescapable.
Courts of first instance should not exercise transcendent power
of declaring, an act of the tenistature unconstitutional except
in rare cases tovo)viny Li's aed iberty, and where the invalidity
of the Act is apparent on its face", (McKinney's Cons. Laws of
N.Y¥., Book 1, Statutes § 150, and authorities there cited. See,
e.g. Comiskey v. Arlen, 55 A D 2d 304, affd. 43 N.Y. 2d 696;
Bolling v. Corsi, 204 Misc. 778, 783, affd. 306 N.Y. 315). The
tendency is to leave such questions to appellate tribunals (City
of New Rochelle v, Echo Bay WaterFront Corp., 182 Misc. 176, 177,
affd. 268 A D 2d 182, affd. 294 N.¥. 678). Even intermediate
Appellate Courts sometimes defer to higher appellate courts (Matter
of Excelsior Pictures Corp. v. Regents, 2 A D 2d 941). "There
is a strong presumption that a statute duly enacted by the Legis-
lature is constitutional" (People v. Pagnotta. 25 N.Y. 2d 333,
337).
Consequently, the issue of the constitutionality of the
statute (F.C.A. § 622) will not be passed upon and the decision
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here made is predicated upon the standard of proof prescribed by
the statute - "a fair preponderance of the evidence",
The Agency's Diligent Efforts.
The only real plan for the future of the Santosky children
that has ever been formulated by anyone is the plan evolved by
the Commissioner of Social Services pursuant to this Court's order
of December 31, 1975 (See Matter of Santosky, supra 732).
To implement this plan through "diligent efforts" ® to
evicourage and strengthen the parental relationship, che Agency
in accordance with court's directive, redoubled its efforts to
raise these parents to an acceptable minimal level of competency
as parents (See Matter of Santosky, supra 741).
8. Section 384-b, subd 7 (f) defines this phase as follows:
"(f) As used in this subdivision, ‘diligent efforts’ shall
mean reasonable attempts by an authorized agency to encourage a
meaningful relationship between the parent and the 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.
(4) Informing the parents at appropriate intervals
of the child's prearess, development and health."
Fo: an elahbare sy oe! che need for the Agency to make
"diligent efforts” auto ove srences at Lis f£ellure to do so,
see Matter of Anita it, &s sors TR.
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The Commissioner in his petition alleges and the proof
supplied through the testimony of the two case workers in charge
of the Santosky case supports a finding that following this court's
decision in January 1977 and for the past two years at varying
times the Agency has offered and arranged for and encouraged
the respondents to accept:
(a) Visits with the children on an average of twice
a month, the children being brought to their home.
(b) Attendance by Respondent, Annie Santosky at the
Child Enrichment Program offered by the Family Service Center to
mothers with pre-school children, which program included the use
of a parent aid. Transportation was provided.
(c) Psychological evaluations of both respondents, and a
ae oT Re PS evaluation of the Respondent, John Santosky,
at St. Francis Clinic, Poughkeepsie, Transportation was also pro-
vided.
(d) Follow-up psychiatric and psychological services to
both respondents at Southern Ulster Mental Health Center.
(e) Counseling sessions for Respondents with certified
social worker, Elizabeth Smith of Family Service Center.
(f) Birth control counseling at Planned Parenthood.
(g) Vocational training to the Respondent, John Santosky
through the Office of Vocational Rehabilitation and Gateway
Industries.
21.
(h) Education assistance to the Respondent, John Santosky
at the Adult Learning Center.
(i) Nutrition Aid Services to Respondent, Annie Santosky
since November 1977.
(j) Homemaker Service to help the Respondents immediately
prior to and after the birth of their fourth child in June 1978.
(k) Public Assistance, Food Stamps and Medicaid to the
Respondent. The total value of all Social Services offered to
the Respondents since November 1976 exceeds $16,000.
"In short," as the court stated in its opinion in Matter of
Sautosky, supra, 733; “ever since the Santosky children have
been in foster home placement, the parents have not only had
offered, but diligently urged upon them every social service
available in Ulster County which could conceivably have helped
the Santoskys in achieving a goal of the eventual reunion of the |
family".
I am satisfied, therefore, as I was ir, the earlier case,
that the preponderance of the evidence supports a finding that
the Ulster County. Department of Social Services has indeed made
diligent efforts to encourage and strengthen the parental relation-
ship. The observation that it has done so, “aibeit with minimal
success" cannot, however, be truly said of the Agency's rencwed
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and redoubled efforts. To credit the Agency's efforts with any
success this time around is to take a more charitable view of
the matter than the evidence warrants, for both case workers who
have been so long intimately involved with providing social ser-
vices to this family testified that in spite of all their efforts
they could discern no forward progress whatever; that their
progress in parenting ability and skills was non-existent. At
the end, the Santoskys' capacity to function as parents for their
children remained as minimal as at the start. Regretfully, the
Agency acknowledges that its diligent efforts through the offering
of a variety of social services, which met with a response ranging
from grudging acceptance to outright hostility has been a failure.
Nevertheless, in spite of ample cause for discouragement and
ultimate failure the court is satisfied that the requirement of
paragraph (c) of subdivision one of Section 614 of the Family
Court Act has been amply met by a preponderance of the evidence.
Since the children who are but 7, 5 and 4 years of age are
all obviously under 18 years of age and are presently by virtue
of orders of this, court in the care of the Ulster County Department
of Social Services, an authorized Agency, the court finds that the
requirements of pararrar st (2) «nd (b) of subdivision one of Sec-
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tion 614 of the Family Court Act are supported by a preponderance
of the evidence. As in the first trial of this case the critical
issue and the one on which the parents right to the continued
possession of their children stands or falls, is their alleged
failure to plan for the future.
The Parents’ Financial Ability to Plan.
To sustain an adjudication of permanent termination of
parental rights there must be a finding that the parents "failed
for a period of more than one year * * * substantially and contin-
uously or repeatedly tc maintain contact with or plan for the
future of the child although physically and financially able to
do so", (F.C.A. §§ 611, 614, subd. 1 (d) ).
Because the phrase, although . . . "financially able to do
so" could not under well recognized rules for the construction of
statutes be rejected as superfluous but had to be given meaning
and effect (McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 231),
the court in its earlier decision in this case found that because
they were the recipients of full public assistance, including
food stamps and medicare, that the Santoskys’ financial ability
was non-existent. Inshort, the court found that by reason of
their poverty, their failure to plan for the future had to be
excused (See Matter of Santosky, 89 Misc. 2d 730). Although the
dismissal of the proceeding was affirmed on appeal, this conclusion
B-23
24,
of the trial court was rejected by the Appellate Division (3rd
Dept) which in its decision of affirmance under the name of
Matter of John W. and others, 63 AD2d 750 said: "The Court
determined, however, that respondents’ failure to plan for the
future of the children had to be excused by their poverty. It
is the opinion of this court that, absent evidence that a parent
is receiving an inadequate amount of public assistance, the fact
that the parent is receiving public assistance does not automatical-
ly excuse that parent from substantially planning for the future
of a child. There was no proof in the present case that respondents
were receiving inadequate public assistance."
This view of the adequacy of public assistance to provide
sufficient financial ability to plan for the future seems to be
shared by the Appellate Divisions of both the lst and 4th Depart-
ments. In Matter of Klug, 32 AD2d 915 the lst Dept. observed:
"So far as financial ability to care for a child is concerned,
the court is well aware of the fact that in this city a mother
may obtain support to maintain herself and her child." And in
Matter of Keras v. Keras, 59 AD2d 1022 the 4th Dept. said:
"Respondent contends on appeal that the proof fails to establish
by a preponderance of the evidence that she was financially and
physically able either to maintain contact with or plan for the
B-24
25.
future of her children. The assertion of financial ability
clearly lacks merit. Although respondent was a recipient of
public assistance, she could have made arrangements to visit
and communicate with her children."
To rebut any contention that the public assistance fur-
nished to the Santoskys might be inadequate, although no such
contention was in fact made, the Commissioner offered proof
that from December 1, 1976 to September 30, 1978 the County of
Ulster furnished to the Santoskys financial assistance totaling
$15,338.72 in the following categories and amounts;
Public Assistance $ 9,120.00
Medicaid 2,633.72
Nutrition Aide 150.00
Counseling Service 300 .00
Child Welfare Caseworker Counseling 3,155.00
TOTAL $ 15,338.72
In light of the Appellate Division's decision in this case,
Matter of John W. and others, 63 AD2d 750, and the Appellate
decisions to which reference has been made the court is constrained
to hold that the Santoskys' total dependence on public assistance
througho::t the history of this litigation furnishes no excuse for
their failure to plan for the future of their children so long in
foster care.
26.
Failure to Plan.
This court in ite earlier decision in this case (Matter of
Santosky, 89 Misc. 2d 730, affd. 63 AD2d 750) reviewed at some
length (pp 734-5) the decisional definitions of the phrase "sub-
stantially to plan for the future of the child." Much of what
was there said has now been codified by the enactment of Section
384-b of the Social Services Law (1. 1976, c. 666, effective
January 1, 1977) where ir subd. 7 (c) "to plan for the future of
the child" is defined,
Social Services Law § 384-b, subd. 7 (c) now provides:
"(c) As used in paragraph (2) of this subdivision, ‘to
plan for the future of the child’ shall mean 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. In determining
whether a parent has planned for the future of the child, the
court may consider the failure of the parent to utilize medical, —
psychiatric, psychological and other social and rehabilitative
services and material resources made available to such parent”.
B-26
27.
In contrast to the situation prevailing at the time of the
first trial (November 1976) when this court was able to find
that “while the Santoskys' plans for the future of their
children (were) indeed nebulous and (had) never been articulated,
they (had nevertheless) ‘acted to accomplish’ the agency's
plans" 9 these parents’ failure since 1976 to “utilize medical,
psychiatric, psychological and other social and rehabilitative
services and material resources" has been almost total and com-
plete. Except for superficial cooperation with a nutritional
aide and a public health nurse, the Santoskys have failed in any
meaningful way to take advantage of the many social and rehabili-
tative services that have not only been made available to them
but have been diligently urged upon them. Even Elizabeth Smith,
Director of the Family Service Center of the Children's Home of
Kingston, the witness who was previously most favorable to their
cause, has been reluctantly forced to conclude because of their
passivity and reluctance to participate in activities designed to
9. This finding was found by the Appellate Division to be
sufficiently supported by the record. "Considering the record
as a whole, we are of the opinion that the respondents have sub-
stantially planned for the future of their children" (Matter of
John W. and others, 63 AD2d 750).
B-2
28.
help them, 10 particularly the Children's Enrichment Program, a
program specifically designed to deal with the problems of parent-
child relationships, that the return of any of the children to
the Santoskys’ in any foreseeable future should not be considered.
At no time can it be fairly said that these parents have
ever "tak(en) such steps as may be necessary to provide an ade-
quate, stable home and parental care for the child(ren) within a
period of time which is reasonable under the financial circum-
stances available to (them),"' (Social Services Law § 384-b subd.
7 (c) ). Two of these children have been in foster care for
more than four years and the third more than five. For all of
this time the Santoskys have been the recipients of Social Ser-
10. The four factors which to the witness provided contra-
diction to the return of the children to the Santosky home
within the foreseeable future were:
"1, The Santoskys' passivity in seeking and
participating in activities intended to be helpful to
them (In the main, I see them only if I am able to
go to their home as they have made numerous excuses
as to why they could not keep appointments at my
office);
2. The Santoskys' restrictive parenting
practices which inhibit normal development in their
child;
3. The Santoskys' fears which preclude
participation in activities outside their own family
group.
4. The recent birth of a fifth child which
adds to the demands made upon both Mr. and Mrs.
Santosky."
B-#8
29.
vices +1 and there is nothing in their situation which holds
out any hope that they may ever become financially self sufficient
or emotionally mature enough to be independent of the services
of social agencies. More than a reasonable amount of time has
passed and still, in the words of the case workers, there has
been no discernible forward movement. At some point in time it
must be said, "enough is enough".
12 formilated by the Agency, and the
Except for the plan
Santoskys' superficia’ el! :is to comply therewith, which have
tapered off to the point where they are no longer measureable,
there has never been any "plan" formulated by the parents, probably
because they are simply incapable of doing so. However, even |
giving them credit for their miniscule efforts to comply with the
Agency's plan through taking advantage of the social services
offered to them is no longer enough to save them from the loss
of their children, for the statute states that, "good faith effort
shall not of itself, be determinative". (Social Services Law §
384-b, subd. 7 (c) ).
In short, the time has arrived when the court must acknowledge,
ll. Since 1976 a total of $9,120 has been provided in public
assistance and a total of $6,118.72 in other social and rehabilita-
tive services.
12. See Matter of Santosky, 89 Misc. 2d 730.
B-29
30.
no matter how tragic the result may be for these parents, that
the Santoskys are not now caprble, and at any time in the foresee-
able future, are probably incapable, despite all efforts to assist
them, of planning for the future of their children as that term is
defined by law (Social Services Law, §384-b, subd. 7 (c) ), in
any meaningful way. I therefore conclude that the record in ths
case supports by a preponderance of the evidence a finding that
there has indeed been a failure on the part of these parents
to "plan for the future of (their children) although physically
and financially able to do so" (F.C.A. § 614, subd. 1 (d); Matter
of Orlando F., 40 N.Y. 2d 103).
The testimony of the petitioner's witness, Dr. Lenore M.
Sportsman, Director of the Albany Child Guidance Center, and Exhibits
No. 2-4 in evidence have not been considered in the determination
of the Fact Finding phase of this proceeding (F.C.A. § 622, but
will be considered in the Dispositional Hearing (F.C.A. § 623).
This matter will, therefore, be scheduled for a dispositional
hearing "to determine what order of disposition shall be made in
accordance with the best interests of these children" (F.C.A. §
623). The Clerk of the Court is directed to schedule such a dis-
positional hearing on notice to all interested parties.
In the meantime, and until such a hearing can be held, the
B-30
o
a,
Py
*..
31,
Commissioner's application for an extension of placement is
granted and the children are continued in the care of the
Commissioner of Social Services (F.C.A. § 1055).
Dated: March 12, 1979.
B-31
&
|
ae. STATE OF NEW YORK
FAMILY COURT : COUNTY OF ULSTER
In the Matter of
TINA FRANCES APEL Docket Nos.
JOHN SANTOSKY III N-34-73
: JED CONRAD SANTOSKY N-35-74
N-36-74
Persons Alleged to be Neglected Children.
June 14, 1977
RICHARD GRIGGS, Attorney for Department of Social Services.
ALAN SUSSMAN, Attorney for Respondents.
pri. JAY SAMOFF, Law Guardian for Children.
HUGH R. ELWYN, J.: Tina Frances Apel, now nearly 6 years of
age, the daughter of Annie Santosky, one of the respondents herein,
was adjudicated to be a neglected child within the meaning of
Article 10 of the Family Court Act cn November 26, 1973 and placed
with the Ulster County Commissioner of Social Services for an
initial period of 18 months, sulbiect to the further order of this
courc.
The order of placement was, by consent, temporarily extended
on May 10, 1975 and again on August 19 and December 5, 1975. On.
December 31, 1975, in accordance with this court's written decision
of the same date order of placement was extended for a period of
one year from the date of the expiration of the initial 18 months
of placement until May 26, 1976.
John Santosky III and Jed Conrad Santosky who are now nearly
4 and 3 years of age respectively, the children of john and Annie
Santosky were each adjudicated to be neglected children within the
meaning of Article 10 of the Family Court Act on September 30, 1974
and placed with the Ulster County Commissioner of Social Services
for an initial period of 18 months, subject to the further order
of this court. On March 9, 1976 the order of placement for John
Santosky 11 and Jed Conrad Santosky was extended, upon consent, to
April 13, 1976. Om April 13, 1976 the orders of placement for
John Santcsky III, Jed Conrad Santosky and Tina Frances Apel vere,
on consent, extended to July 15, 1976. Without objection all three
children continued to remain in foster care after July 15, 1976,
although the order for extended placement had expired.
On September 9, 1976 the Commissioner of Social Services
filed petitions involving all three children (Docket Nos. B-4-76,
B-5-76 and B-6-76) charging the parents with permanent neglect
(F.C.A. Article 6). On September 24, 1976 in proceedings had in
the permanent neglect proceedings, at which the Commissioner and
the respondents were represented by counsel and the children by
their Law Guardian, the orders of placement affecting the three
children in Docket Nos. N-34-73, N-35-74 and N-36-74 were, on
consent, “extended until such time as the court makes a determin-
ation in the permanent neglect proceedings now before it", without
prejudice to the rights of the petitioner and the law guardian to
make an application for an extension of the order of pigccnent..
Accordingly, on September 24, 1976 orders extending the placement
with the Commissioner of Social Services were made continuing the
status quo as to all three children without prejudice to the rights
of the petitioner or the respondents.
The proceedings in which all three children were alleged to
be permanently neglected was tried in this court on November 16,
17, and 18, 1976; a decision was rendered dismissing the petitions
on January 28, 197? and on order entered accordingly. This decision
is now on appeal 60 the Avpellale Division, 3rd Department. Al-
though this court's decision and order dismissing the permanant
1. AS an appendix a transcript of that portion of the
proceedings of September 27, 1976 containing the aforesaid
stipulation of counsel is annexed hereto.
neglect proceedings was nade on January 28, 1977, the children
have continued to remain in the Commissioner's care in foster homes.
On March 3lst, 1977 the Commissioner filed separate petitions
in each neglect case seeking an extension of placement for each of
the Santosky children for the reason that "to return child would
be contrary to best interest of this child. The parents are not
cooperating fully with the services being recommended to strengthen
the parental relationship". Attached to each petition is a copy
of a report from Lenore M. Sportsman, M.D., Director of the Albany
Child Guidance Center for Psychiatric Service affiliated with
Albany Medical College Union University, warning of the adverse
impact upon the children of continued exposure to their parents.
Since "no placement shall be extended or continued * * * * except
upon a hearing held concerning the need for extending or continuing
the placement" (F.C.A. § 1055 (ii) ), a hearing on the petitioner's
request for an extension of the placement was held on June 14, 1977.
Unlike an application for the extension of placement of a
juvenile delinquent or a PINS which when it has expired may not
be extended nunc pro tunc (People ex rel. Schinitsky v. Cohen,
34 A D 2d 1020), a application for extension of an expired order
of placement may be granted where the original order of placement
was made in a neglect proceeding pursuant to Article 10 (Matter of
Morris W., 79 Misc. 2d 567). Accordingly, even though the
application for the extension of placement was not made until two
months after the court had rendered its decision in the permanent
neglect matter and the order of placement pursuant to the stipula-
tion of September 27, 1976 had expired, the court will, neverthe-
less, entertain the Commissioner's application for an extension
of the orders of placement for these children. The imperative of
this court's responsibility to act in the best interests of these
children who, as a de facto matter are still in foster care, de-
mands that the court assume jurisdiction in spite of any possibility
of loss of jurisdiction through a lapsed order.
Although still maintaining, as he did on previous applications
for the extension of placement and in the permanent neglect pro-
ceeding, that the Santoskys have yet to demonstrate their capacity
to function as responsible parents capable of providing for their
children, the emphasis in the Commissioner's case has now shifted
from the shortcomings of the parents to the potential psychological
damage to the children were they to be returned to their parents
to justify the need for continued placement. For essentially the
Same reason, i.e. ‘ee psychological trauma to the children through
exposure to the parents, the Commissioner has cut off the parents
visitations with their children and has permitted no visits by
6.
the parents with their children since this court’s decision in
the permanent neglect case in January 1977.
In fairness, it must be said that the Commissioner's position
is not wholly arbitrary but is supported by and based almost
entirely upon the very respectable professional opinion of Dr.
Lenore Sportsman, the Director of the Albany Child Guidance Center
in a series of reports to the Commissioner which reports are in
evidence” and which were corroborated and elaborated upon by the
doctor's sworn testimony.
In summary the Dr. found in each child evidence of emotional
"hang-ups" (depression, anxiety) related to a fear of having to be
repossessed by their parents; that the natural parents no longer
represented the "psychological parents"; that for the children to
be compelled to maintain contact with their natural parents would
only exacerbate their fears and anxieties; that there was nothing
positive for the childre: in a! lowing, continued contact between
the children and their parents, but cather that it would hinder
their progress.
In contrast to Dr. Sportsman's opinions stands the testimony
of Elizabeth Smith, the Director of the Family Planning Center, a
witness for the Santoskys, who over a period of many months has
worked closely with both Mr. and Mrs. Santosky counselling thea
2. See Appendix 11.
in many areas, but essentially, as she put it, to become individuals
capable of standing on their owg feet and to be emotionally inde-
pendent of the other. Although she felt it important that the
parents be permitted to maintain contact with their children for
their emotional health, she also conceded under questioning by the
court that the time was not yet ripe for the immediate return of
all three children to the parents. Instead, she recommended a
phased reintroduction of the children into the home and when asked
by the court for her profese'one! adviae in the matter, counseled
against the immediate return of the children.
It is interesting to note that both of the professional
witnesses who testified conceded that neither had talked to the zs
other side or considered their point of view. That is, Dr. Sports
man's opinion concerning the psychological impact upon the children
from further exposure to the parents was based sang on fe’ |
examination of the children without talking to the parents or
taking into account their point of view and Mrs. Smith's opinions
were based solely upon her contacts with the Santoskys and an
espousal of their cause without ever having seen or made any attempt
to evaluate the children. Thus, both professional witnesses were
really advocates with a bias - Dr. Sportsman for the children and
Mrs. Smith for the parents.
The court is well aware of its responsibilities to act in
these matters in the best interests of the children, but the court
also believes that it has a responsibility to the parents as well
and that in evaluating the need for an extension of placement the
court must weigh and, if possible, try to accommodate what seems
to be competing interests. In discharging that responsibility
the court has conscientiously weighed these competing interests
and for the reasons hereinafter expressed is of the opinion that
the time is not yet ripe for the immediate return of all three
children to the Santosky household.
First, because in spite of the long time that has elapsed
since these children were first placed in foster care and the
conceded substantial progress the Santoskys have made toward becoming
more emotionally stable, metre persens and Mr. Santosky's commend-
able academic progress toward securing a high school equivalency
diploma, I am not yet convinced that I can with a clear conscience
safely entrust the care and upbringing of these children to these
parents, especially when I recall the circumstances which led to
the original adjudication of neglect.
Secondly: Mrs. Elizabeth Smith, the Santoskys' own profession-
al witness and the person most sympathetic to their plight end
their cause has counseled against it.
Thirdly: Am. appeal from the court's decision dismissing the
Commissioner's case of Permanent Neglect is pending in the Appellate
Division, Third Dept. If the Appellate Court were to reverse the
court's decision and find that these children were indeed permanent -
ly neglected children within the meaning of Article 6 of the Family
Court Act and Section 384-b of the Social Services Law, and direct
their commitment to the Cormissioner for adoptive placement, the
Santoskys' joy upon their reunion with the children would have been
illusory and short lived at best; at worst, it would wreak untold
emotional havoc upon the children to have been taken from their
foster parents to be delivered to their natural parents who, accord-
ing to Dr. Sportsman, no longer are the psychological parents only
to have them uprooted once more for re-delivery to the footer
parents for adoption. Prudence would seem to dictate that this.
eventuality, which can only be described as a nightmare for the
children, should be avoided at all costs. On the other hand, if the
4
children are continued in foster care and the Appellate Court should
affirm this court's decision finding these children not to be
permanently neglected children as that term if used in the law, no
movement of the children would have taken place in the interim and the
parents would still be fre to seek an early termination of the
court's order extending the!r placement if the then existing cir-
10.
cumstances warranted it (F.C.A. § 1062). Of course, the parents
would have been denied the custody of thcir children in the interim
but in balancing their interests against the best interests of the
children, it is, I am afraid, a price they will have to pay. Pru-
dence and caution counsel that the status quo remain undisturbed
until the uncertainties concerning these children's future generated
by the permanent neglect proceedings and the pending appeal be
resolved.
Consequently, the Commissioner's application for an extension
of the placement of all three children is granted and the placements
will be extended for an additional period of one year, subject to
whatever rights the respondents may have pursuant to section 1062 .
of the Family Court Act to petition for an earlier termination.
with respect to the respondents’ order for the Commissioner
to show cause why the parents shoule not be permitted to resume
periodic visitation with their children while in foster care, I do
not believe in spite of Dr. Lenore Sportsman's warnings concerning
the effect these visits have upon the children's emotional health,
that the Commissioner has shown sufficient cause for withholding
them. The agency ‘ts under a statutory duty to make diligent fis,
efforts to encourage and strengthen the parental relationship when
such efforts will not be detrimental to the best interests” of the
3. Formerly the criterion was that the efforts “not be
detrimental to the moral and temporal interest of the child"
(Family Court Act § 611, amended L. 1976, C. 666 § 14).
ll.
child" (Social Services Law § 384-b (7) (a); See also Volume 18
of the Codes, Rules and Regulations of the State of New York
applicable to the Department of Social Services, particularly section
450.8 (6) ).
"The best interests of the child” which is, of course, xo
where specifically defined, is perhaps an even broader concept
than the phrase it replaced ~- "the moral and temporal welfare of
the child.” It is certainly broad enough to embrace considerations
other than the child's emotional "hang-ups", i.e. depression,
anxiety, fear of monsters and the like. Im short, the court cannot,
as the psychiatrist does, focus upon the child's emotional "hang-
ups" to the exclusion of other valid considerations in deciding
what is in "the child's best interests".
It is not contended that the parents’ visits with their children
have a deleterious effect upon them by reason of the parents’
alcoholism, drug abuse, abusive or threatening behavior or by virtue
of any moral defect of character. Rather the sole reason for deny-
ing visitation is that through the passage of time and lack of
frequent contact the parents have become virtual strangers to their
children, or in the language of the psychiatrist they have ceased
to be the "psychological parents". Thus the very condition which
the court created to save these children from their neglectful
12.
parents - all of course presumably in their best interests - has
bred and fostered the condition now complained of - an attenuated,
almost non-existent parent-child relationship. The obvious defect
in the whole foster care system ~ the separation and consequent
alienation of children from their parents has fed upon itself and
spawned a genie that no one knows quite how to put back into the
bottle. Once again the Santoskys find themselves caught up in the
"Catch 22" situation of being threatened with the loss of their
children through failure to maintain contact and to plan for their
children's future, while being denied access to their children
because a psychiatrist has found parental visits to be an anxiety
creating, emotionally disturbing experience for the children.
If these parents are to retain any hope whatever of ever
regaining the custody of their own children and assuming once again |:
their rightful responn'>il'ty for their upbringing, it is absolutely
essential, in my judgment, that some contact, however tenuous, be
maintained between parent and child, even if it is not an altogether
happy experience for the child. Otherwise, the Department of Social
Services has accomplished by indirection - all cloaked in the
rubric of "the best interests of the child” what they have so far
failed to accomplish by direction - for all practical purposes the
termination of all parental rights through denial of access to
13.
their own children. This should not be permitted to happen
merely because in the opinion of a psychiatrist of some professional
eminance the visits are confusing and emotionally upsetting to the
children.
Unless and until these parents’ rights to the custody and
control of their own children are terminated permanently by an
Appellate Court's reversal of this court's judgment or their rights
are Somehow terminated by a court of competent jurisdiction, these
parents’ right to maintain some kind of a meaningful contact with
their own children should not be wholly cut off, even if these
children do suffer some confusion and emotional "hang-ups" in the
process.
Again, it is a matter of weighing competing interests and in
my fudgnent the need for keeping the door ajar to the possibility
of a full resumption of the parents’ rights and responsibilities,
at least until the appeal now pending involving these children is
determined, outweighs any temporary emotional upset the children
may suffer as a consequence.
It is simply beyond the ability of the law to provide every
child with a perfect, or even near perfect, set of parents. The
luck of the draw in the selection of one's parents is determined
by a higher authority of whose wisdom and knowledge it is ex-
14,
claimed: “how unsearchable are his judgments and his ways past
finding out".” It is indeed deplorable that the Santosky children
have had the misfortune to be born to parents who have so far
proven themselves wholly inadequate to the task, but until these
parents’ rights to their own children are legally terminated it is
a misfortune they will simply have to bear.
Consequently, since I find that it will not be detrimental
to the child's best interests for the agency to continue diligent
efforts to encourage and strengthen the parental relationship, the
Commissioner of Social Services and his authorized deputies are
hereby ordered, until the determination of the appeal in the
permanent neglect proceedings now pending, to permit the respondent.
to visit with each of their children now in foster care at least
twice a month, for a minimum of two hours per visit, subject to
the further order of the court upon the determination of the appeal.
(F.C.A. § 255; Im re Edward M., 76 Misc. 2d 781, affd. sub. nom.
in re Murray, 45 A D 2d 906; Usen v. Sipprell, 41 A D 2d 251).
Dated: June 27, 1977.
Sec. 631 F.C.A, . \
At a Term of che Family Court of the State of New York,
held in and for the County of CLSTER
ae RINGSTON » New York
on__Apxril 5, 1579
PRESENT: 1i0N. HUGH R, FU\YN
Judge
In the Matter of
Docket No. 5- 3-79
TLU FRANCES APEL ORDER OF DISPOSITION
A Child under the Age of Eighteen Years,
Alleged to be a Permanently Neglected Child, P
A Petition under Article 6, Part 1 of the Family Court Act having been filed in this Court alleging that
Zina Frances Apel is a permanently neglected child;
and ‘cummens having been issued and duly served upon Jotsate ond Annie Ssatocky
- the parent(s) (GUs5dia2D ) of said child; and
The matter having duly come on for an adjudicatory hearing; and the said parent(s) (€68:64) 420255) having
appeared Thhving! faites tr SppearF thereon; and this Court, after hearing the proofs and the testimony offered in
relation to the case, having found that the allegations of the petition herein required by paragraphs (a), (b), (¢) and
(d) of Section 614 of the F amily Court Act are supported by a fair preponderance of the evidence; and
The matter having duly come on for a dispositional hearing; and the said parent(s) Eustodianeszf having ap-
peared (baving failed:to appeasKkthercon; and this Court having made examination and inquiry into the facts and cir-
cumstances of the case and into the Surroundings, conditions and capacities of the persons involved in this pro-
ceeding; now, therefore, it is
? = A iad
ADJUNGED that __ 2429@ Fraaces Apel
is a permanently neglected child as defined by Article 6, Part 1 of the Family Court Act; and
*IT APPEARING that the moral and temporal interests of the child require that the parent’(s’) @utatiaNEXX
custody of the child be terminated permanently, it is
“ORDERED that the custody of _ 222 Frances Apel
the parent(s) TustocianlD ) of said child, over said child be and the same hereby is terminated permanently; and ir
is further RMDP Apy
*ORDERED that the custody of said child be and the same hereby is awarded to Ulster County
Comaisisner of Social Services he Petitioner herein (upon the following terme oma co annnn
that the Commis = provides Cupportive holp'ts tho’ child ‘and fostee parents
Gsy be required to bess somote ths adjustment of child end foster
pasents cr cdoptive parent Co a healthy and pesmenent relaticnchip,
; .
HS SRDER ED Te the Dine heap re OES PS RIP LI I
es han a a wn : pe F
lied in the tppends Seatend SNS Ny pat heeehe
ENTER,
a
; ; *.A.4
ce it
*These Provisions are eliminated if judgment is suspended, i ~
**This provision is eliminated if judgment is not suspended.
Best Copy Available
¢. 64) F.C.A. ; Form 6-1-5 (Permanent Neglect)
Ac a Term of the Family Court of the State of New York,
held in and for the County of _ ULSTER
at __RDRIGSTON , New York
on__April 5, 1979
PRESENT: HON, R. omer
* Judge
In the Natte: of : Docket No. B24=78
ORDER OF DISPOSITION
A Child under the Age of Eighteen Years,
Alleged to be a Permanently Neglected Child.
A Petition under Article 6, Part 1 of the Family Court Act having been filed in this Court alleging that
Jchn Santosky IIl is a permanently neglected child;
and summons having been issued and duly served upon Johnnie and Annie Saotosky P
the parent(s) QD—Ya aK EX) of said child; and
‘The master having duly come on for an adjudicatory hearing; and the said parent(s) (RMMRKSH) having
appeared XBauah M&NSa"cs “aphaatyehereon; and this Court, after hearing the proofs and the testimony offered in
relation to the case, having found that the allegations of the petition herein required by paragraphs (a), (b), (¢) and
(d) of Section 614 of the Family Court Act are supported by a fair preponderance of the evidence; and
The matter having duly come on for a dispositional hearing; and the said parent(s) (Gestodlaada) ) having ap-
peared (Maving Talfed to ‘appears thereon; and this Court having made examination and inquiry into the facts and cir-
cumstances of the case and into the surroundings, conditions and capacities of the persons involved in this pro-
ceeding; now, therefore, it is
ADJUDGED thar ___Joan Santosky It
is a permanently neglected child as defined by Article 6, Part 1 of the Family Court Act; and
*IT APPEARING chat the moral and temporal interests of the childrequire that the parent'(s’) (cstdian(s4 )
custody of the child be terminated permanently, it is
*ORDERED that the custody of _ John Santosky IIT ;
the parent(s) (Aistodlance)” ) of said child, over said child be and the same hereby is terminated permanently; and it
is further
er
t-4>-
“ a ar
eR red MER Cott
pO Ne
é
“ORDERED that the custody of said child be and the same hereby is awarded to Ulster County ae
Commiofoner of Social Servicen hs Dasiebiese tient ies eee ne
that the provide cu rive bolp to Y ho child tad "sootsnitient
l psyc a ms, oa end fently
fs Professional advisors
SS promote ths ad ustesnt of child and foster
parents or adoptive parcnts to a heal and permanent relaticnchip,
* ).
RS SROERED MMAR BOT EAN pS canna Nn ttaneate fete
TPO 203 tot ES eR, part hereo s
ENTER,
‘
as
: z )-F.c,
*Theseé provisions are eliminated if judgment is suspended, i
**This provision is eliminated if judgment is not suspended,
C-4
Bec. 631 F.C.A, Form 6-1-5 (Permanent Neglect)
: At a Term of the Family Court of the State of New York,
held in and for the County of ULSTER
at _RINGSTON a
on_April 5, 1979
PRESENT: HON, BUGA R. ELWYT
~.Judge
In the Matter of aT Docket No. 3° 5-73
JD _ CONRAD SANTOBRY ORDER OF DISPOSITION
A Child under the Age of Eighteen Years,
Alleged to be a Permanently Neglected Child. ,
A Petition under Article 6, Part 1 of the Family Court Act having been filed in this Court alleging that
Jed Conrad Santosky is a permanently neglected child;
and summons having been issued and duly served upon Johnnie and Annie Santosky _
the parent(s) Teuseodian(as' of said child; and
“The matter having duly come on for an adjudicatory hearing; and the sfid parent(s) Reustddianas ) having
appeared SH TA SARIN hppear) thereon; and this Court, after hearing the proofs and the testimony offered in
relation to the case, having found that the allegations of the petition herein required by paragraphs (a), (b), (¢) and
(d) of Section 614 of the Family Court Act are supported by a fair preponderance of the evidence; and
The matter having duly come on for a dispositional hearing; and the said parent(s) (Suetodiwnes)-) having ap-
peared (having failed 20 appear) ‘thereon; and this Court having made examination and inquiry into the facts and cir
cumstances of the case and into the surroundings, conditions and capacities of the persons involved in this pro-
ceeding; now, therefore, it is
ADJUDGED that Jed Conrad Santosky
is a permanently neglected child as defined by Article 6, Part 1 of the Family Court Act; and
*IT APPEARING that the mora! and temporal interests of the childrequire that the parent'(s’) (Mustodian'ts’)’)
custody of the child be terminated permanently, it is
"ORDERED that the custody of _Y&4 Conrad Saatosky
the parent(s) (eidtddiants> ) of said child, over said child be and the same hereby is terminated permanently; and it
is further
8 6 ee Cee ee ees ee ee a) on
*ORDERED that the custody of said child be and the same hereby is awarded to Ulster County
Coumisioner of Sociai Services the Petitioner herein (upon the following terms and conditions:
that the Commiséoner provide supportive help to the child and Foster
rents in the form of euch professional pcychiatric, peychologicel and
re ly counsel services, as in the judgnent of his professionel
advicors- mey agg Bae At to best promote the adjustment of child end
— perents or edoptive perents to a kcalthy aad perranent relation-
Pe
a De
AAERLIORBER EDAHL rag me eBS TAT the Same hereby Te suapendcwuponcehe-remeane condhion swpees
MSARAT APPR AFA ams RON MIX oF aa edo Nahe 2oh=
ENTER,
*These provisions are eliminated if judgment is suspended.
**This provision is eliminated if judgment is not suspended.
JO ALNNOD
JO Y3LLYW 3HL NI
MYOA M3N JO 3LVLS
ay) 40
LUNOGOD ATIWNVGA
3 Mo. No. 797
In the Matter of
Tina Frances Apel, John Santosky
III aad Jed Conrad Santosky,
children &c. Alleged to be
Permanently Neglected Childrea.
Bernhardt S. Kramer, Commissioner
Ulster County Department of
Social Services,
~ Respondent,
John Santosky II and Annie
Santosky,
Appellants.
Motion to dismiss appeal granted and
appeal dismissed, without costs, upon the
ground that 20 substantial constitutional
question is directly involved.
peysres COURT OF pres SEP 46 1980
SEP 16 1988
— on
—_——- --—
AT a Term of the Appellate Division
of the Supreme Court of the
State of New York in and for
the Third Judicial Department,
held at the Justice Building
in the City of Albany, New York,
commencing on the 17th day of
March, 1980.
PRESENT : 7 cee. , :
HON. A. FRANKLIN MAHONEY,
ese? EP ‘‘Presiding Justice, ,
HON. LOUIS M. GREENBLOTT, i"
.° HON. T. PAUL KANE, . ‘
HON. ROSERT G. MAIN, @ ;
BON. ANN T. MIKOLL,
" ¢. ©'Sule: Associate Justices.
In the Matter of TINA FRANCES APEL, , °
JOEN SANTOSKY III and JED CONRAD SANTOSKY,
children under the age of eighteen years
alleged to be Permanently Neglected
Children.
o ORDER
BERNHARDT S. KRAMCR, Commissioner, Ulster
County Department of Social Services, 36228
Petitioner-Respondent,
JORN SANTOSKY II and ANNIE SANTOSKY,
Respondents-Appellants.
The appellants having appealed from a judgment of the Family
Court of Ulster County (ELWYN,. J.), entered April 5, 1579, which
adjudged appellants’ three children to be permanently neglected
pursuant to article 6 of the Family Court Act, and said matter
having been presented during the above-stated Term of this Court,
and after due doliberation the Court having rendered a decision
on May 1, 1980, it is hereby
ORDERED that the judgment appealed from be affirmed,
without costs.
ENTER:
DATED Ab ENTERED: May 7; “1980
A TRUE COPY
/s/ John J. O'Brien |
Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.