Amicus Brief — Santosky v. Kramer

ne

Office Supreme Court, Us.

No. 80-5889 EJ LED

IN THE JUN 1 1981

Supreme Court of the United is -taiaes

OCTOBER TERM, 1980 CLERK

>

JOHN SANTOSKY II and ANNIE SANTOSKY,

Petitioners,

—against—

BERNARDT S. KRAMER, Commissioner,

Ulster County Department of Social Services

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF

NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

—

———

BRIEF AMICUS CURIAE OF COMMUNITY

ACTION FOR LEGAL SERVICES, INC.,

M.F.Y. LEGAL SERVICES, INC., AND

BROOKLYN LEGAL SERVICES CORPORATION, A.

LOUISE GRUNER GANS

Community Action for Legal

Services, Inc.

CATHERINE P. MITCHELL,

General Counsel ,

335 Broadway

New York, New York 10013

(212) 431-7200

M.F.Y. LEGAL SERVICES, INC.

NORMAN SIEGEL, ESQ.,

Project Director

759 Tenth Avenue

New York, New York 10019

(212) 581-2810 ¢

BROOKLYN LEGAL SERVICES,

GARY CONNOR Core A

LOUISE GRUNER GANS ARNOLD ROTHBAUM, EsQ.,

DANIEL GREENBERG Project Director

CAROLYN KUBITSCHEK 260 Broadway

JEAN SCHNEIDER Brooklyn, New York 11211

EDWARD N. SIMON (212) 782-6195

On the Brief Attorneys for Amici Curiae

-

TABLE OF CONTENTS

Pade

MOTION FOR LEAVE TO FILE BRIEF

AS AMICI Cpe ae 6 6 6.6.6.0 8666 6658088 i

TABLE OF AUTHORITIES eoeeeseeeneteeneteensteeeeee viii

INTEREST OF Un G6 060605 6060406666604 05 l

STATEMENT OF THE CASE eeeeoeeeeeeere ec eee @ l

QUESTION PRE s 060 9066660000808008080 4

SUMMARY OF ARGUMENT *oeeneeoeneeeeneeneeeeeeeee 5

ARGUMENT...

oeenerieeneeneeneeeeeeeereteerereeeeee 6

POINT I

DUE PROCESS REQUIRES A

CLEAR AND CONVINCING

STANDARD OF PROOF IN

PROCEMDINGS FOR TERMINATION

OF PARENTAL RIGPTS .-.-eeeeeees

A.

CONCLUSION

TRHEFOGUCEION. occccccccosces 7

The Nature of the

Permanent Neglect

PFOCOOCGING ecccccccscccsce B

The Interests

at Stake eenerere 8feeeeee#efnree#e##*# 15

The Risk of

Erroneous Deprivation...... 30

The Process that

is Due *ee3wenrteeeeneeeenetee#eeee@ 50

eeeeeeeeeeeeeeeeeereeeeeeeeee 61

MOTION FOR LEAVE TO FiLE

BRIEF AMICI CURIAE

Community Action for lI«aal

Services, Inc., MFY Legal Services, Inc.,

and Brooklyn Legal Services Corporation A,

respectfully move, pursuant to Rule 36 of

this Court's Rules, for permission to file

the within brief Amicus Curiae in

Santosky v. Bernardt S. Kramer, Commissioner

of Ulster County Department of Social

Services, by reason of the Amici's

substantial interest in the outcome of this

case and their considerable experience in

litigation concerning the issues presented

herein.

The attorneys for all parties to

this appeal have been requested to consent

to the filing of this brief and Counsel for

both Petitioner and Respondent have granted

their consent.*

*Letters of consent have been filed with

the Clerk of this Court.

INTEREST OF AMICI CURIAE

Community Action for Legal

Services, Inc. is the largest civil

legal services program in the nation.

Funded by the National Leaal Services

Corporation as successor to the United

States Office of Economic Opportunity

(OEO) legal services program, CALS

provides a full range of civil legal

services to indigent New York City residents

who cannot afford to pay a private

attorney. CALS has a full time staff

of over 121 attorneys, based in 21

neighborhood offices, who provide legal

assistance to more than, 40,000 persons

a year. CALS attorneys provide representation

in all the trial courts in New York City,

in the State and Federal Appellate Courts

and in this Court. MFY Legal Services, Inc.

and Brooklyn Legal Services, Corporation A,

ii

are two of CALS' delegate corporations.

Their neighborhood offices are located

in the lower East Side and the West

Side of Manhattan and in the Williamsburg

section of Brooklyn, New York respectively.

Both programs have an active family law

practice.

Approximately 20% of the cases

handled by CALS neighborhood legal services

offices, including MFY Legal Services, Inc.

and Brooklyn Legal Services Corporation A

are in the area of family law. These cases

include a significant number involving the

termination of parental rights in the Family

Court of the State of New York -=- at least

1,000 cases since 1967.

Attorneys associated with CALS,

as well as MFY Legal Services, Inc. and

Brooklyn Legal Services, Corporation have

handled many reported cases involving

iii

termination proceedings and related

areas of family law, including Smith

v. Organization of Foster Families, 431

U.S. 816 (due process claims of foster

parents in relation to foster children and

their natural parents); Shelton v. Smith,

422 F. Sup.; 460 (E.D.N.Y. 1976) aff'd,

547 F. 2d 768 (2d Cir. 1976) (termination

of visitation between parents and children

in foster care without due process);

Matter of Ray A.M., 37 N.Y. 2d 103 (1976)

(termination of parental rights).

The constitutional question raised

by the instant appeal, namely whether due

process requires that a judicial order

involuntarily terminaging parental rights

must be supported by clear and convincing

evidence is one of central concern to

Community Action for Legal Services Inc.,

and its delegates. In fact attorneys from

iv

MFY Legal Services, Inc. and Brooklyn

Legal Services Corporation A have

litigated this precise issue in the

Family Court of the State of New York in

Matter of Orzo,84 Misc. 2d 482, 374 N.Y.S.

2d 534 (Fam. Ct., N.Y. Co., 1975); In

the Matter of Marilyn H., 2d Misc. 2d

’ 436 N.Y.S. 2d 814 (Fam. Ct., N.Y.

Co. 1981).

Accordingly, Amici wish to

submit their brief because of their

concern about the impact of this case on

their clients and because they hope to

be able to present to the court an analysis

of the issues from the standpoint of the

indigent parent which may not otherwise

be presented.

Wherefore, Community Action

for Legal Services, Inc., MFY Legal Services,

Inc., and Brooklyn Legal Services, Corporation

A respectfully request leave to file the

attached brief as Amici Curiae.

Respectfull

{. 494

“arke Ww a

LOUISE GRUN GANS

Community Action for

Legal Services, Inc.

CATHERINE P. MITCHELL

General Counsel

335 Broadway

New York, N.Y. 10013

submitted; -

MFY LEGAL SERVICES, INC.

NORMAN SIEGEL, Project Director

759 Tenth Avenue

New York, N.Y. 10019

BROOKLYN LEGAL SERVICES,

CORPORATION A

ARNOLD ROTHBAUM, ESQ.

Project Director

260 Broadway

Brooklyn, N.Y.

vi

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

NO. 80-5889

JOHN SANTOSKY II and ANNIE SANTOSKY,

Petitioner,

-against-

BERNARDT S. KRAMER, COMMISSIONER,

Ulster County Department of Social

Services,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF NEW YORK,

APPELLATE DIVISION,

THIRD DEPARTMENT

BRIEF AMICUS CURIAE OF

COMMUNITY ACTION FOR LEGAL

SERVICES, INC., MFY LEGAL

SERVICES, INC. AND BROOKLYN

LEGAL SERVICES, CORPORATION A

vii

TABLE OF AUTHORITIES

Cases: Page

Addington v. Texas

"4) U.S. 418 (1979) eevee wocecoewmeseeeooese

Alsager v. District Court of Polk County

406 F. Supp. 10, aff'd 545 F. 2d 1137

[eee Cabs A2PtOP veviensee ocovcccecccccccccsen sae

Armstrong v. Manzo

Pee Walle Se CBEPOO? ccnceccceesa caccccccces 16

Caban v. Mohammed

DE Gate SUC CEPTS! cccccceucepsces Breeepanean

Davis v. Page

CAS Fe Ba O19 (SER CE. L980 ccccccceceace 36

Doe v. Delaware

49 U.S.L.W. 4250 (March 19, 1981).......27,34

Duchesne v. Sugarman

566 F. 2d 317 (2d Cir. EPTTE- canehessss SEES

Fedorenko v. United States

Uaewe (1981) *enenereeveeeneeeneeeneeeeeeeee 56

Grayned v. City of Rockford

SUS U8. 106 . secccccorscrccees

Griswold v. Connecticut

U.S. "“@ereeeee eoeoeeere reer eeee 15

In re Orlando F.

40 N.Y. 2d 103, 386 N.Y.S.2d 64

(1976) eeerereeeeeeeeer eee ee eee eeeeeeeeee 10,11,14

viii

TABLE OF AUTHORITIES (Continued)

Page

In re Winshi

397 U.S. 58 (1969) cccccccccccdepoeeeacen

In the Matter of Peter John D. D.

48 A.D. 2a 956, FOS Beokehc sa 25a éosesne ae

Knauer v. Unites States

Se Uclo CSS CASES) coccocesvenes o0seuneee

Levy v. Louisiana

Soy Wes OE COGS) cccccdescccevestcoescnenre

Mathews v. Eldridge

424 U.S. 319 sccdcccccccccocsnces Peau pam

Matter of Barbara P.

Misc. , oot R.Y.8.28 203

(Fam. Ct. , Fe Coe, 1972) *“eeneeeeeeeeeee poe

Matter of Coddington

84 Misc. 2a 553 (Fam. Ct., Ulster Co.

LOTS) cccceccvvescecccsseccoccccsssceessenese Uae

Matter of Derek Denlow

87 Misc.2d 910 (Fam. Ct., Kings

Co., 1976) eeeeeveeeeeoeev eee eee eeeneeeeeeeeneer ee 14

Matter of Donna Dorene G.

70 A.D.2d 188, 420 N.Y.S.2d 576

(3d Dept., 1979) eoeeeeee ee eee eer eee eewreeeeee 49

Matter of Hime Y

52 N.Y.2d 242, 437 N.Y.S.2d 286

CROGRD nccccececccceccecdcnsscdcevesdsueenee Can

ix

TABLE OF AUTHORITIES (Continued)

Page

Matter of Jones

59 Misc.2d 69, 297 N.Y.S.2d 675

[eas Gas Mote COs ¢- LOGS) covccneccccccces 9

Matter of Joyce A. R.

52 A.D.2d 882, 383 N.Y.S.2d 58

(2d Dept., 1976) eeeeer eer eer eee eeeeeaeeereeee 49

Matter of Karas

59 A.D.2d 1022, 399 N.Y.S.2d 758

(4tR Dept., 1977) ceccccvccccccccccscccesces L3

Matter of Lisa Ann U

A.D.2d , 427 N.Y.S.2da 994

(3d Dept., ee a ee epee be ee 49

Matter of Leon R.R.

48 N.Y.2d 117 (1979) cecccsecscececeeeeeee 13

Matter of Marilyn H.

Misc. 2d , 436 N.Y.S.2d 814

Fam. Ct., N.Y. Co., 1981) «cesee-ee+9,10,43

Matter of Melanie

76 A.D.2d 1008, 492 N.Y.S.2da 773

(3d Dept., 1980) eeneeeeaeeeeeeeeeeeeneeeneeeaeeee 9

Matter of Orzo

84 Misc.2d 482, 374 N.Y.S.2d 554

(Fam. Ct., N.Y.Co., 1975) ekonsscénacteaeese

Matter of Ray A. M.

48 A.D.2d 161, aff'd 37 N.Y.2d 619

(1975) eeeeeeveeeeeeneeaereaneneeaer een eaeeeaneeaeaeeaeeaeee 13

TABLE OF AUTHORITIES (Continued)

Page

Matter of Roxanne Joyce M.

99 Misc.2d 390, 417 N.Y.S.2d 396

(Fam. Ct., Kings Co., 1979), rev'd

75 A.D.2d 1872, 428 N.Y.S.2d 264

(28 Dept., 1980) ccccccccedccvcccccccccccscccscs 30

Matter of Shantal

68 A.D.2d 482, 417 N.Y.S. 2d 696

(let Dept., 1979) cevcccccccccccccccccccseee 9

Matter of Sylvia Clear

58 ise ea 699 (Fam. Ct., N.Y. COee

1969), rev'd sub. nom. Matter of

Klug, 32 A.D.2d 915 (lst Dept.,

1363} pet. granted on rehearing,

Matter of Sylvia Clear, 65 Misc.

2d 323 (Fam. Ct. N.Y. Co. 1970) «ceoeceeeee 14

Matter of Suzanne Y.

92 Misc.2d 652, 401 N.Y.S.2d 383

(Fam. Core N.Y.CoO., 1977) eeoeeee eee eeeeeeree 48

Matter of Wayne T. PD.

70 A.D.2d 617 (2d Dept., 1979) eeseeeeeeeeee Il

May v. Anderson

TES UO. . S29 (1983) cccccvccccccccccccccceced gee

Parham v. J. R.

TTF U.S. 504 (1979) ccccccvccccccccccceetO ep 2hy ta

Rosenbloom v. Metromedia, Inc.

403 U.S. 29 (19OIL) cocccccccrccccccccessec edb De

xi

TABLE OF AUTHORITIES (Continued)

Page

Quilloin v. Walcott

434 Uses 246, (1978) coccccuces ommeaeoanreuaeal

Roe v. Wade

410 U.S. 113 (1973) eveeeeeeeeeseeeeeeeeees 15

Smith v. O.F.F.E.R.

431 U.S. 816 (1977) ...-.16,17,19,21,42,46,52

Stanley v. Illinois

405 U.S. 645 (1972) .....15,25,26,27,29,53,57

Vance v. Terrazas

444 Fy - 252 (1980) eeoeeeeeeeeeeeeeeeeeeeee 56

Wisconsin v. Yoder

U.S. 972) ondeenseeeseesssencunae

Statutes:

GLI ccoccccccee

ELS ceccccccce SoS

622 .-4,5,8,23,30

623 sovess cameron

631 ccocccoceceD a6

New York Family Court Act

AMAAMAN

New York Social Services Law

S JOSE ccécccosavescas OF

SOG=d rcccccccccscoed eee

384-b(1) (a) (ii)--. 20,26

384=-b(1) (a) (iv).--- 27

384=-b(1) (b) ..---++- 28

384-b(G) (b) --eeee5- 57

AAMAN

xii

TABLE OF AUTHORITIES

(Continued)

Page

New York Social Services Law

§

§

§

§

§

384-b.7(a) .....-8,12,31,32

384-b.7(b) ....- cocccee LO

384-b.7(c) ....11,12,31, 32

384-b.7(f) ...-12,31,32,44

384-b.7(f) (1)..22,31,32,37

Codes, Rules and Regulations of the

State of New York

18 NYCRR

18 NYCRR

18 NYCRR

18 NYCRR

18 NYCRR

18 NYCRR

18 NYCRR

18 NYCRR

18 NYCRR

18 NYCRR

SS eer mtr

Se EPs

ONG. S) dcsvascaccneseoeee

O06 . ShMbcs ssccicceasccsncee

BA0 S10) 08) dsc cccncasens ie

B06 3469-08) ik xcstxccen at

AAS AD Ua iiuccusnpeeeeee ae

BRET ceiccrnstee ee

OE 8S vcexscwasecteeseee ee

606.15(a) (2), (3), (4). 38

OTHER AUTHORITIES

Catz & Kuelbs, THE REQUIREMENTS OF

APPOINTMENT OF COUNSEL FOR INDI-

GENT PARENTS IN NEGLECT OR

TERMINATION PROCEEDINGS, 13 J.

Pes GOW BES CADIS) scccccesccsccoceces«sase Ae

CHILDREN WITHOUT HOMES, Children's

Defense Fund Bo. | PP errr

THE CHILDREN OF THE STATE II, Annual

Report of the Temporary State

Commission on Child Welfare (1976) ...... 47

xiii

TABLE OF AUTHORITIES (Continued)

Page

DEVELOPMENTS IN THE LAW - THE

CONSTITUTION AND THE FAMILY,

Ss GREC. be Baws LASG [EVOG) kcvcccaccees 32

FOSTER CARE IN NEW YORK CITY, Child

Welfare Information Service, Inc.

(May-June, BU sla a id By ea a ri aa ee loa 42

Foundation for Child Development,

STATE OF THE CHILD: N.Y.C. II

2 ee re re a Se eee ee

Goldstein, Joseph, Anna Freud, and

Alfred Solnit, BEYOND THE BEST

INTERESTS OF THE CHILD (1979) ........... 59

McCormick, HANDBOOK ON THE LAW OF

EVIDENCE PROT E i460 sa bd wee ees oAeaeees 51

Mnookin, CHILD CUSTODY ADJUDICATION:

JUDICIAL FUNCTIONS IN THE FACE

OF INDETFRMINANCY, 39 Law & Con-

temporary Problems 226 (1975).........33,34

REDIRECTING FOSTER CARE, A Report

to the Mayor of the City of New

York, CEG 6 ne bees 6664660050000 8 S09 eer eRSee

44,45

Report, BARRIERS TO THE FREEING OF

CHILDREN FOR ADOPTION, The Tem-

porary State Commission on Child

Welfare (March, 1976)........ ccccce 40, 45,46

xiv

TABLE OF AUTHORITIES (Continued)

Page

Simon, Rita James and Linda Mahan,

QUALIFYING BURDENS OF PROOF: A

VIEW FROM THE BENCH, THE JURY

AND THE CLASSROOM, 5 Law and

Society Review 319, (1971) -eeeeeeeeeeeeee Sl

XV

INTEREST OF AMICI CURIAE

The interest of Amici Curiae is

set forth in the accompanvina motion,supra.

STATEMENT OF THE CASE

This case is before this court as a

result of the issuance of a writ of certiorari

to review a decision of the Supreme Court of

the State of New York, Appellate Division,

Third Department, issued May 1, 1980, whicn

affirmed the decision of the Family Court of

Ulster County, New York, dated April 5, 1979.

The Family Court found three of petitioners’

children to have been permanently neglected by

petitioners and ordered petitioners’ parental

rights to those children permanently terminated.

Petitioners, John and Annie Santosky, are

husband and wife and the parents of five child-

ren. The oldest child, Tina Frances Apel, was

found to have been neglected by her parents in

1973 and was placed in foster care. At the

time of the Family Court's decision, she was

seven years old and had been in foster care

for five years. John and ged Santosky, the

-j-

next two children, were found to be neglected

in 1974 and were also placed in foster care.

At the time of the hearing they were 5 and 4

years old and had been in foster care about

four years. The Santosky's fourth child was

born in 1978, and the fifth in 1979. The

younger two children live at home with their

parents, as they always have.

Throughout the period that the three older

children have been in foster care, the

Santoskys have visited them regularly, as often

as the agency would allow. In 1977 the agency

tried for a time to stop the visits on the

grounds that they were confusing to the

children, but the Family Court, on the

Santosky's application, ordered the visits

resumed. The Santoskys did apparently have

trouble getting along with the various profes-

sionals who tried on behalf of the agency to

help them. The workers claimed to find the

Santoskys passive, suspicious, and uncoopera-

tive.

On October 16, 1978 respondent filed a

petition in the Ulster County Family Court

seeking to terminate the Santosky's parental

rights to the three older children on the

grounds of permanent neglect. On March 12,

1979, after a fact-finding hearing, the Court

found permanent neglect. On April 5, 1979,

after a dispositional hearing, the court

terminated the Santoskys' parental rights.

Petitioners appealed immediately to the

New York Court of Appeals, on the sole grounds

that New York's statute on termination of

parental rights was unconstitutional in that

it permitted a finding of permanent neglect

upon a “fairy preponderance of the evidence",

rather than "clear and convincing evidence."

On April 14, 1979 the Court of Appeals referred

the appeal to the Appellate Division of the

New York Supreme Court, Third Department.

The Appellate Division reviewed the record and

them affirmed the Fanily Court's judgment,

basing its decision solely on the constitution-

al issue. Petitioners’ second appeal to the

New York Court of Appeals was dismissed on

September 16, 1980 on the grounds that the

case presented no substantial constitutional

question. Petitioners then petitioned this

court for a writ of certiorari.

QUESTION PRESENTED

Whether Section 622 of the Family

Court Act of the State of New York is

unconstitutional under the Due Process

Clause of the Fourteenth Amendment

because it vermits the Family Court to

terminate parental rights on a finding

of permanent neglect which is based upon

a “fair preponderance of the evidence"

SUMMARY OF ARGUMENT

A proceeding for termination of

parental rights results in the ultimate

deprivation of a fundamental civil riaqht:

thr right of a parent to the "care,

custodv, management and companionship of

her minor child" May v. Anderson, 345 U.S.

528, 533 (1953). Termination of parental

rights has been likened to the death

penalty.

The New York Family Court Act

§§614, 622 and New York Social Services

Law §384-b.7 provide for the termination

of parental riqhts to a child upon a finding

of "permanent neglect" supported by "a fair

preponderance of the evidence."

The interests of both the parent

and child in this termination proceeding

derive from the constitutional richt which

attaches to the family unit.

The interests of the parent and child

in their relationship to one another continue

and are not in conflict until after a

finding of permanent neglect has been

made and until then the State ha” no

independent interest in termination.

The nature of the permanent

neglect statute and the wav it is applied

makes the risk of an erroneous deprivation

extremely high. The sources of this risk

are the broad and indefinite terms of the

statute, the imposition of the statute's

requirements on a retroactive basis and

the dichotomy which exists between

permanent neqlect as a leaal construct

and the real situation of parents and their

children in the context of the malfunctioning

foster care system.

Due process can only be satisfied

in these proceedings by requiring a clear

and convincing standard of proof. This

Courts decisions fullv support the conclusion

that this standard must be applied.

DUE PROCESS REQUIRES A CLEAR AND CONVINCING

STANDARD OF PROOF IN PROCEEDINGS FOP

TERMINATION OF PARENTAL RIGHTS

A. INTRODUCTION

Petitioners contend that New York State

has deprived them of all their fundamental

rights as parents without due process of law,

when if found that their children were

"permanently nealected" on the basis or

a mere "fair preponderance of the evidence."

Amici are submitting this brief in order to

assist the Court in making its assessment of

first the private interest

that will be affected by the

official action, second the

risk of an erroneous deprivation

of such interest through the

procedures used, and the probable

value, if any, of additional or

substitute procedural safeauards,

and finally, the aovernment's

interest, including the function

involved and the fiscal and

administrative burdens that the

additional or substitute procedural

requirement would entail.

Matthews v. Eldridge, 424 U.S. 319,

335 (1976).

Amici believe that the "preponderance of

the evidence" standard is constitutionally

inadequate and that due process requires

a "clear and convincing" standard of proof

in proceedings for termination of parental

rights.

oJe

B. THE NATURE OF THE PERMANENT NEGLECT PROCEEDING

New York Family Court Act

§§614, 622 and New York Social Services

Law §384=b govern the termination of

parental rights to a child based upon

“permanent neglect." Pursuant to

Social Services Law §384-b.7 (a) a

permanently neglected child is defined

as

-..a child who is in the

care of an authorized agency

and whose parent or custodian

has failed for a period of

more than one year following

the date such child came into

the care of an authorized

agency substantially and

continously or repeatedly to

maintain contact with or plan

for the future of the child,

although physically and

financially able to do so,

nonwithstanding, the agency's

diligent efforts to encourage

and strengthen the parental

relationship when such efforts

will not be detrimental to

the best interests of the child.*

A finding of permanent neglect under this

section need only be based upon "a fair

preponderance of the evidence." F.C.A. §622,

* The substantive law of permanent neglect

is set out in N.Y.S.S.L. §384-b.7; the

procedure in N.Y.F.C.A.; Article 6, Part l,

§61l1 et seq.

Matter of Orzo, 84 Misc. 2d 482,

374 N.Y.S. 2d 554 (Fam. Ct., N.Y. COn,

1975); cf. Matter of Marilyn H. Misc.

2d _—_, 436 N.Y.S. 2d 814 (Fam. Ct., N.Y.

Co., 1981). *

In considering the proof

necessary for such a finding the courts

need not limit the one year failure to

plan or failure to maintain contact to any

particular year. Matter of Shantal, 68 A.D.

2d 482, 483, 486, 417 N.Y.S. 2d 696 (lst

Dept., 1979); Matter of Melanie, 76 A.D.

2d 1008, 1009, 492 N.Y.S. 2d 773 (3rd Dept.,

1980); Matter of Marilyn H., supra. Similarly,

the one year period need not be the year

immediately preceding the filing of the

petition. Matter of Jones, 59 Misc. 2d

69, 71, 297 N.Y.S. 2d 675 (Fam. Ct., N.Y.

Co., 1969). Further, the failure to plan

for and the failure to maintain contact with the

child are considered in the disjunctive; either

* Following this finding a dispositional

hearing is held, F.C.A.§623, to consider

the child's best interest, without consideration

of parental rights, F.C.A.§63l.

-9=-

is sufficient for a finding of permanent neglect

In re Orlando F., 40 N.Y. 2d 103, 386 N.Y.S.

2d 64 (1976).

In considering whether a parent has main-

tained contact with his or her child, N.Y.S.S.L.

§384-b.7(b) provides that the court need not

find evidence of insubstantial or infrequent

contacts by the parent sufficient, in and of

itself, to preclude a finding that a child is

permanently neglected. The statute does not,

however, describe what constitutes the necessary

contact other than to state

A visit or communication by a

parent with the child which is

of such character as to overtly

demonstrate a lack of affectionate

and concerned parenthood shall not

be deemed a substantial contract.

S§.S.L. §384-b.7 (b) .

And while the parent may be unable to visit his/

her child because of distance and poverty, "the

availability of public funds constitutes finan-

cial capability from the standpoint of

‘permanent neglect'..." Matter of Marilyn H.,

-10-

supra; cf. Matter of Wayne T,.D., 70 A.D. 2d

617 (2nd Dept. 1979). Similarly, a non-

hospitalized mentally ill parent is deemed able

to plan, regardless of the severity of the

mental illness, Matter of Hime Y, 52 N.Y. 2d

242, 437 N.Y.S. 2d 286 (1981).

The statute defines planning as:

»».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...S.S.L. §384-b.7(c).

Such a plan must also be realistic and feasible

and the Court may consider whether the parent

failed to utilize services offered to him/her.

S.S.L. §384-b.7 (c) .

While the New York court of Appeals has

held that the standards to evaluate the ade-

quacy of the parent's plans should not be set

unrealistically high Matter of Orlando F.,

supra, some Family Courts have refused to

to follow this injunction, Matter of Barbara P.,

71 Misc.2d 965, 337 N.Y.S.2d 203 (Fam.Ct., N.Y.

Co. 1972).

-ll-

The Court in Matter of Coddinaton, 84 Misc.

2d 253 (Fam.Ct., Ulster Co.,1975) found a failure

to plan where the mother obtained an apartment,

but questioned her failed appointments for

job training. Finally, a good faith effort to

plan is not sufficient to defeat termination,

S.S.L.§ 384-b.7(c).

Even if it is found that the parent failed

to plan or to maintain contact with the child,

the Courts must consider whether the foster care

agency used diligent efforts to support and

strenghthen the parental relationship, S.S.L.

§384-b.7(a). Diligent efforts is defined by

S.S.L.§384-b.7(f) as "reasonable attempts" by

an authorized agency "to assist, aevetes and

encourage a meaningful relationship between the

parent and child" including, consultation with

the parents in developing an appropriate service

plan and providing visitation and services to

facilitate discharge of the child from care.

It is unclear, however, to what extent

-12-

a failure to undertake diligent efforts by

a foster care acency can defeat a findina of

permanent neglect. Where an agency's sole focus

was encouraging a child's attachment to foster

parents, the New York Court of Appeals held that

the lack of diliaent efforts prevented a finding.

Matter of Leon RR, 48 N.Y. 2d 117 (1979).

But, the same court has found that a

parent's severe sociopathology can warrant

cessation of agency efforts after only 10

months. Matter of Ray A.M., 48 A.D. 2d

161 Aff'd 37 N.Y. 2d 619 (1975).

Other Courts have permitted agencies to

forego diligent efforts after less than a

year of work, or for a period before the filing

of a petition, because the chances that continued

efforts would be productive were minimal

Matter of Karas, 59 A.D. 2d 1022, 399 N.Y.S.

2d 758 (4th Dept., 1977). In sum, no clear

standard exists to define to what extent a

-13-

foster care agency need provide diligent

efforts and under what circumstances it

may justifiably withhold services. And even

where efforts are made by the foster care

agency with a conviction that the efforts

will not succeed, such efforts can be deemed

sufficient. Matter of Sylvia Clear, 58 Misc.

2d 699 (Fam. Ct., N.Y. Co., 1969), rev.'d

sub nom. Matter of Klug, 32 A.D. 2d 915 (lst

Dept., 1969), pet. granted on rehea~ing,

Matter of Sylvia Clear, 65 Misc. 2d 323 (Fam.

Ct., N.Y. Co. 1970). Further, a petitioning

agency need not be faultless in its services

but only need provide those services that

“on balance" meet its obligations. Matter of

Orzo, supra. And in determining such balance

the New York Court of Appeals has held that

each case must be read upon the "particular

facts and the totality of circumstances."

In Orlando F., supra. See also, Matter of Derek

Denlow, 87 Misc. 2d 910 (Fam. Ct., Kings Co.,

1976) -

=14@

Cc, THE INTERESTS AT STAKE

The parent's interest

A parent's right to the

"companionship, care, custody and

management" of his or her minor children

has consistently been recognized as a

fundamental liberty protected by the Due

Process Clause of the Fourteenth Amendment.

Stanley v. Illinois, 405 U.S. 645, (1972)

Quilloin v. Walcott, 434 U.S. 246 (1978)

Parental rights are part of a spectrum of

fundamental rights to privacy and autonomy

in family life including "marriage,procreation,

contraception, family relationships and child

rearing and education, "Roe v. Wade, 410 U.S.

113, 152 (1973) (citations omitted), Griswold

v. Connecticut 381 U.S. 479, 495 (1965), that

have long been‘held to be protected by the

Constitution.

The parent's fundamental interest

in his or her relationship with a child is

=@15-

not diminished simply because

parent and child are physically

separated from each other by a divorce

or by placement of the child in foster

care. Smith v. O.F.F.E.R., 431 U.S. 816, 1977, May

v. Anderson, 345 U.S. 529 (1953)

Armstrong v. Manzo 390 U.S. 545 (1969.

Parental rights derive not just from legal

or physical custody but from blood

relationship, and intrinsic human right.

Smith v. O.F.F.E.R., 431 U.S. 816, 846 (1977).

Although custody is generally

considered an important aspect of parenthood,

Quilloin v. Walcott, 434 U.S. 246, 255,(1978) the

biological relationship and the emotional

ties which bind parent and child in this most

basic of human relationships are of at

least equal constitutional significance.

Smith Vv. O.F.F.E.R., 431 U.S. 816, 843-844. The

sense of connectedness, belonging, and responsibili

actual or potential, which parents feel toward

their children is an inherent part of the

@16=

parental relationship. It continues

whether or not parent and child live

together. The parent who has lost custody

of his or her child does not stop feeling

like a parent. The non-custodial parent's

right to maintain a relationship with

his or her children, to have access to them

and contact with them, to preserve his or

her identity as the child's mother or father,

remains one of the "intrinsic hwman rights"

which the constitution safeguards. Smith

v. O,F.F.E.R., 431 U.S. 816, 845, Caban yv.

Mohammed, 441 U.S. 380, 385, Quilloin v.

Walcott, 434 U.S. 246.

Because it is a final, absolute

and irreversible deprivation of one of the

most basic of human rights, termination of

parental rights is among the most severe

penalties which can be imposed upon an

individual by the State. It is "extremely

harsh" and “contrary to human instincts."

@17=

In the Matter of Peter John D.D., 48 A.D.

2d 956, 369 N.Y¥.S. 2d 232.

The loss of a child...is a

deprivation which can be

equated with the imposition

of a fine or imprisonment

through criminal proceedings.

Indeed it is not unlikely

that many parents would choose

to serve a prison sentence

rather than to lose the companionship

and custody of their children.

Davis v. Page, 618 F. 2d 374, (5th Cir. 1980).

Imprisonment for a crime usually involves

only a temporary loss of liberty. The

termination of parental rights is, by its

very nature, permanent. It is a kind of death

penalty for parents. Catz & Kuelbs, The

Requirements of Appointment of Counsel for

Indigent Parents in Neglect or Termination

Proceedings, 13 J. Fam. L. 223, 233 (1974).

The Child's Interest

The state may not argue that it

is entitled to dilute the protections it

affords parental rights in the name of

"balancing" the interests of the parent

against the private interests of the child.

The interests of both parent and child in

a termination proceeding derive from a single

-12-

source: the constitutional right, which

attaches to the family unit as a whole, and

not merely to its individual members, to

enjoy family relationships free from state

interference. Smith v. O.F.F.E.R. 431 U.S.

816, 850. The right to family integrity

encompassses not only the right of parents

to raise their children and enjoy their

companionship, but also the reciprocal right

of the children to be raised, nutured and

educated by their parents. Duchesne v. Sugarman,

386 F. 2d 817, 824 (2nd Cir. 1977), Levy v.

Louisiana, 391 U.S. 68 (1968), Alsager v.

District Court of Polk County, 406 F. Supp.

10 (S.D. Iowa 1975), aff'd 545 F. 2d 1137 (8th

Cir. 1976). The child has as much to gain

as the parent from preserving the family

relationship, and as much to lose from its

destruction.

The State of New York has recognized

that “it is generally desirable for the child

-1]9-

to remain with or be returned to the

natural parent because the child's need

for a normal family life will usually

best be met in the natural home." Social

Services Law §384-b(1) (a) (ii) (McKinneys

1980).

This Court too has held that the

"natural bonds of affection" between parent

and child hold the child's best hope for

the warm, nurturing, supportive upbringing

which is truly in the child's best interests.

Parham v. J.R., 442 U.S. 584, 602, Smith

v. O.F.F.E.R., 413 U.S. 816, 850. The

"affection and concern" of a parent are of

tremendous value to a child whether or not

the parent actually has custody of the child.

Caban v. Mohammed, 441 U.S. 380, 389.

It is precisely because of our

faith, as a culture, in the strength and

value to children of the emotional ties within

-20-

the family that we afford such a high

degree of deference and protection to

the rights of family members to autonomy

within the family unit. Wisconsin v.

Yoder, 405 U.S. 205 (1972), Parham v. J.R.,

Supra.

This court has rejected the

suggestion that the child has an independent

liberty interest in a stable family life

which is separable from the interests of the

family unit as a whole in remaining together.

Smith v. O.F.F.E.R., 431 U.S. 816, 850.

The argument that the state may use the pre-

ponderance standard to balance the right of

the parent to raise the child with the child's

right to a stable secure home rests on a number

of fallacies.

First and foremost, it assumes at

the outset that the natural family has broken

down irretrievably. This is the very issue

which the permanent neglect proceeding was

created to decide. Until there has been a trial

@2l-

and a judicial determination that a child has

been permanently neglected, the state must

make precisely the opposite assumption:

that the interests of parent and child are

the same, and that both have a stake in pre-

serving their family ties. Parham v. J.R.

442, U.S. 584, 610. Any proceeding which,

by its design, assumes before a showing of

parental unfitness that parent and child are

pitted against each other as adversaries

intrudes impermissably upon the parent-child

relationship. Id.

The second fallacy in the "balancing"

argument is that it assumes that after termi-

nation of the natural parent's rights, an alter-

native stable adoptive home will be found for

the child. Reality belies this assumption.

In New York City in the year ending September,

1979, only about 12% of the children in foster

care for whom the agency's goal was adoption

were actually adopted. * Almost 40% of the foster

children who had been freed for adoption through

termination proceedings of voluntary surrender

were still waiting to be adopted, and many of

those had waited for years.**

There is a third fallacy in the

"balancing" argument. It confuses the issues

before the court in the fact-finding stage of

a termination (N.Y.F.C.A. §622) with those which

arise at the dispositional stage (N.Y.F.C.A.§623).

The court at fact-finding does not have before

it the issue of where the child is going to live

and be cared for after the termination. Under

the New York Statute the court is in fact pro-

hibited from considering the "adoptability"

of the child when decidiny a fact-finding.

SSL §384(b) (3) (i).

*® Redirecting Foster Care, A Report to

the Mayor of the City of New York, (1980), 69.

**Td,. at 43. See also Children Without Homes,

Children's Defense Fund (1978), 32.

At the dispositional stage, after

there has been a finding of permanent neglect,

the court may consider the child's need for a

stable home and may "balance" the various

alternative dispositions available to the child

on an equal basis. The effect of the finding

is that parental rights no longer have preferred

Status, N.Y.F.C.A. §631.

However at the time of the fact-

finding hearing there has been no determination

that the natural family has irretrievably

stopped functioning in a way that benefits the

child. At fact-finding, the court must afford

to the natural family unit, parent and child,

all of the deference and protection which the

constitution guarantees and must begin with the

presumption that the child's interests will be

best served by maintaining his or her ties with

-24-

the natural parents,** Stanley v. Illinois,

Supra.

The State's Interest

This Court has recognized that

the state has an interest in the proper up-

bringing of the children who live within its

boarders and will grow up to be its citizens.

Wisconsin v. Yoder, 406 U.S. 205, 213. At the

same time, as we have discussed above, the Court

has consistently held that the state serves its

children best by supporting the institution of

the family, not by intruding upon the family's

realm in the name of "saving" children. The

** This firm dichotomy between the fact-finding

and dispositional stages distinguishes this case

from Quilloin v. Walcott, supra,and Caban v.

Mohammed, Supra. In those cases the fact-finding

and dispositional functions were collapsed into

a single proceeding which combined termination

and adoption. Furthermore the cases involved

a conflict between two natural parents. The

issues, therefore, presented themselves in an

entirely different posture.

=25-

state's primary interest in matters of child

welfare must be the preservation, protection

and support of the natural family. Stanley

v. Illinois, supra.

Consistent with this rule, the State

of New York asserts in its permanent neglect

statute that its primary interest in this

proceeding is in keeping natural families

together wherever and whenever possible:

" [T]he state's first obligation

is to help the family with

services to prevent its break-

up or to reunite it if the child

has already left home."

Social Services Law §384-b(1)(a) (iii). The

statute also says that the state has found

that children are usually best cared for

by their parents and that parents are

entitled to care for théir own children.

Social Services Law §384-b(1)(a)(ii). New

York would spite its own primary purpose were

it to permit erroneous or unnecessary termina-

tions of parental rights.

=26@

The New York statute also asserts,

however, that some natural families cannot

be preserved and protected without causing

harm to their children and that in these cases,

the state has an interest, as parens patriae,

in dissolving the family in order to protect

the interest of the child. Social Services Law

§384-b(1) (a) (iv).

A state, in asserting its parens

patriae interest, claims a right to stand

in the shoes of a child's parents. But the

state has no interest whatever in displacing

the parent unless and until the parent has

been shown to be unfit for continued parent-

hood.* Stanley v. Illinois. supra, at 657-658.

Quilloin v. Walcott, supra, at 255.

*¥The precise substantive limits on the power

of the state to terminate parental rights have

not yet been defined by this Court. That was

one of the issues not determined in Doe v.

Delaware, 49 U.S.L.W. 4250(1981).

a2Je

In New York, therefore, the state

does not have a parens patriae interest in

the termination until after a fact-finding

hearing has taken place and the parents have

been found to have permanently neglected

their child. The state's parens patriae

interest may not be balanced against the

interests of the family at the fact-finding

stage in order to arrive at the proper standard

of proof because the parens patriae interest

does not yet exist at this stage.

Finally, the New York statute

asserts that the state has an interest in

encouraging the adoption of children in

foster care. Social Services Law §384-b(1) (b).

This court has recognized that in some

circumstances, the state has a legitimate

interest in adoption in order to provide

"home:s to the homeless". Caban v. Mohammed,

Supra, at 390. It might therefore be a

legitimate state interest at the dispositional

-28-

Stage of a termination proceeding, At fact-

finding however, the children involved in

termination proceedings are not homeless.

They still have a natural family, and the

constitutional presumption that the natural

family will best provide for them continues

to attack to them. The state may not

prefer adoption -=- an artificial creation of

the state, unknown at common law -- to the

return of the child to the natural family

until and unless the fact-finding court

determines that the parents have permanently

neglected the child. Stanley v. Illinois,

supra.

Until and unless the fact-finding

court makes a determination of parental

unfitness, the interests of the parents, the

child, and the state are all the same:

the preservation, protection and support of

the natural family.

-2?9-

D. _THF RISK OF ERRONEOUS DERIVATION

Because of the nature of the

permanent neglect statute, N.Y.S.S.L.

§384-b.7; N.Y.F.C.A. §§611 et seq., the

risk of error in proceedings for termination

of parental rights on that basis is

evtremely high. The “fact-finding”

determination required by N.Y.F.C.A. §622

is neither "sharply focused" nor “easily

documented," Matthews v. Eldridge, 424 U.S.

319, 343.

The major sources of the risk of

error are found in the language of the

permanent neglect statute itself, in the

imposition of the requirements of that

statute on a retrospective basis, and in

the gap which exists between permanent

neglect as a legal construct and the real

situation of parents and their children in

the context of the foster care system.

1. The Language of the permanent neglect

Statute

All of the major elements of the

definition of a "permanently neglected child,"

-30-

N.Y.S.S.L.§384.7(a)* depend for their

meaning on criteria outside the statute

itself and, within very broad limits,

the criteria may be subjectively

determined and applied by the judge

to each individual case as he sees fit.

The definitions of "to plan

for the future of the child" and of "diligent

efforts" provided by S.S.L. §384-b.7(c)

and (f) serve to illustrate this point.

In relevant part to "plan for the

future of the child" is defined as "to take

such steps as may be necessary to provide an

¥fThe definition of "permanently neglected child,"

as provided in S.S.L. §384-b.7(a) requires

consideration of six distinct elements: 1. the

alleged failure of the parent "substantially,

and continuously and repeatedly" to "plan for

the future of the child;" 2. the alleged failure

of the parent "substantially, and continuously

or repeatedly" to "maintain contact" with the

child;" 3. whether the parent was "physically

and financially able" to "maintain contact" with

or “plan for the future of the child;" 4. whether

the child care agency made "diligent efforts to

encourage and strengthen the parental relationship;"

or 5. dispensed with such efforts because they

would have been “detrimental to the best interests

of the child;" and 6. whether the parental failure

to"maintain contact"or "plar' lasted "more than

one year following the date such child came into

the care of an authorized agency."

=3i@

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..."

S.S.L. §384-b.7(c). What steps may be

necessary, what is an adequate stable home,

what is adequate parental care, what is a

period of time that is reasonable, and what

is a realistic and feasible plan are not spelled

out by the statute and are left to the court to

determine on the basis of unarticulated

criteria.

Similarly the definition of the

phrase "diligent efforts" leaves it to the

invididual judge to determine what are "reasonable

attempts" by an agency to "assist, develop and

encourage a meaningful relationship between

the parent and child." S.S.L. §384-b.7(f).

Further, N.Y.S.S.L. §384-b.7(a) leaves it to

the individual judge to determine,without any

guidelines,whether such diligent efforts were

=32-

properly dispensed with by the agency as

"detrimental to the best interests of the child."

Each of these elements of the permanent neglect

statute incorporates but leaves undefined

standards for evaluating child care practices

and parental attitudes and behavior toward

their children.

It has been widely noted that when child

placement decisions are based on indeterminate

standards, the "decisions reflect the personal

biases of judges and appear to result from a

disapproval of parents' life styles rather than

an impartial judgment that the child would be

harmed." Developments in the Law-The Consti-

tution and the Family, 93 Harv. L. Rev. 1156,

1318 n. 60 (1980), and that this is "especially

risky when class difference confound the problem."

Mnookin, supra at p.269.*

*The risk of error was illustrated by a study

of the factors influencing a judge's decision

whether to provide a child with services within

the child's own home or to remove the child.

Three judges asked to make that decision agreed

on the disposition in only half the cases and

"even in cases in which they agreed on the decision,

the judges did not identify the same factors as

determinative, each seeming to operate to some

extent within his own unique value system."

M. Phillips, A. Shyne, E. Sherman, & B. Haring,

Factors Associated with Placement Decisions in

elfare, - at

-33-

Indeterminate statutory provisions such

as this have been criticized as intrinsically

unfair* and as unconstitutionally vague, Doe v.

Delaware, 49 U.S.L.W., 4250, 4251 (dissenting

opinion, Mr. Justice Brennan); Alsager v.

District Court of Polk Co., Iowa, 406 F. Supp.

10 aff'd 545 F. 2d 1137 (8th Cir. 1976); Roe v.

Conn., 417 F. Supp. 769 (M.D. Ala. 1976; three-

judge court). In applying the void-for-vague-

ness doctrine this Court has stated that

"A vague law impermissibly

delegates basic policy matters

to policemen, judges, and juries

for resolution on an ad hoc and

subjective basis, with the atten-

dant dangers of arbitrary and

discriminatory application."

Grayned v. city of Rockford,

° . 10 ’ _ .

¥"The use of the indeterminate standard means

that state officials may decide on the basis of

unarticulated (perhaps even unconscious) pre-

dictions and preferences that could be ques-

tioned if expressed. Because of the scope of

discretion under such a standard, there is a

substantial risk that decisions will be made

on the basis of values not widely shared in

our society, even among judges." Mnookin

Child Custody Adjudication: Judicial Functions

in the Face of Inderterminancy, 39 Law &

Contemporary Problems 226 T1945) 263.

@34e

This description of vagueness is also a

description of risk of error. The risk of

error through arbitrary and discriminatory

enforcement inherent in the phrasing of the

permanent neglect statute, N.Y.S.S.L. §384-b.7

may and must be recognized as patent and severe,

whether or not the statute is unconstitu-

tionally vague.

2. The imposition of the requirements of the

permanent neglect statute retrospectively

In determining whether a child is a

"permanently neglected child" the court not

only makes a retrospective assessment "about

the facts of some earlier event" In re Winship,

397 U.S. 358, 369-70 (1969), but it retrospec-

tively determines, for the first time, what the

parent should have done and did not do. In

the course of a child's foster placement,

parent and agency do not discuss the appro-

priateness of parental planning, the nature of

the agency's diligent efforts, or whether the

-35-

diligent efforts will be dispensed with, except

in the most casual fashion. The ongoing pro-

cess of planning and diligent efforts are left

to the separate subjective determination of

parents and agency.

Although the permanent neglect statute

places the burden and responsibility for plan-

ning on the parents, in Amici's experience most

parents have neither knowledge nor understanding

of the concept. Where a child is placed as a

result of a child protective proceeding pur-

suant to FCA Article 10 no individualized

notice of the planning requirement is given to

the parent at all. In the case of voluntary

placements, only recently have the voluntary

placement agreements advised parents, albeit in

conclusory fashion, that they have an obliga-

tion to "plan", N.Y.S.S.L. §384-a. See In the

Matter of Roxann Joyce M., 99 Misc. 2d 390, 417

N.Y.S. 2d 396, (Fam. Ct., Kings Co., 1979),

«36=

rev'd 75 A.D. 2d 1872, 428 N.Y.S. 2d 264

(2d Dept., 1980).

The agency on the other hand, not only

knows what planning is, but is required by law,

(18 N.Y.C.R.R. 428. 3(d) and former 18 N.Y.C.R.R.

606.15), to have a written "plan" which in

effect defines what the parents' planning

efforts should be. Paradoxically, although

parents and agency are required by S.S.L.

§384-b.7(f) (1) to consult and cooperate in at

least some aspect of planning, there is no

requirement that the agency's written plan be

given to parents. It is Amici's experience

that parents are not usually, if ever, given a

copy of the agency's own plan.*

Thus, from the outset, the agency has a

concrete ple. which defines what the parents

¥I8 N.Y.C.R.R. 428.3(d) (6) gives Social Services

districts the option of reviewing the plan with

the parent; it doesn't require disclosure of

the plan.

=37-

are expected to do, but the parents, unaware

of the plan or the agency's expectations are

pursuing their own course of action.

This anomalous situation is repeated with

respect to the agency's diligent efforts. The

agency's plan describes the attempts the agency

will make to support the relationship between

parents and their children in foster care,

[18 N.Y.C.R.R. 428.3(d) (3) and former

18 N.Y.C.R.R. 606.15(a) (2),(3),(4)].

The nature of the attempts are a matter of

grace on the part of the agency. Amici are

convinced on the basis of their experience, that

parents are not told and do not know what kind

of help the agency can provide and are not

given a choice of help and services considered

most desireable and suitable by them.**

¥¥Several studies note the failure of social

service agencies to “inform...families of

available resources" and that "knowledge and

use of existing services" by AFDC families was

limited. Agency caseworkers themselves have

been described as not sufficiently aware of

public and private programs and resources

available to many of their families. Redirect-

ing Foster Care, A Report to the Mayor of the

ity of New York CLSBD) p.14, 32 250 000 Child-

. ’ ; ,

ren, a Report by Citizens' Committee of New York,

Inc. TIT) p. 33)

=38-

Similarly, an agency decision to dispense

with “diligent efforts" as "detrimental to

the best interests of the child" is made by the

agency unilaterally and is not communicated to

the parent contemporaneously. There is no

legal requirement that the parent be notified

when that decision is made. Usually, in

Amici's experience ,it is only in the course of

the permanent neglect proceedings that the

decision is disclosed.

The danger inherent in the retrospective

operation of the permanent neglect statute is

that norms of planning and diligent efforts

can and will be applied after the fact to

achieve any desired result. The danger is a

genuine one,as only one of the parties, the

authorized agency, has effective control and

possession of the facts by means of its

contemporaneously kept case record (18 N.Y.C.

R.R. 428.1, 428.3 and former 18 N.Y.C.R.R. 606.

13); the parent has no comparable evidence to

document her version of reality.

-39-

3. The gap between the theory of permanent

neglect and practice.

The permanent neglect statute, S.S.L.

§384-b.7, as a basis for termination of parental

rights, by relying on concepts of "planning"

and "diligent efforts" attempts to translate |

certain social work concepts into a legal

framework. It rests on a social judgment that

parents of children in foster care must help

to reunite their families through "planning"*

and “that the community is not justified in

terminating parental rights in the absence of

‘abandonment' unless the community has, through

the social agency, sought to reweld the parent-

child relationship,"** by its "diligent efforts."

The theory of the permanent neglect statute

may be an enlightened one. But it rests on

assumptions as to the real situation of parents,

children and agencies which cannot survive close

scrutiny. The financial, physical and social

*¥Planning is a basis element of casework practice.

Report, Barriers to the Freeing of Children for

Adoption, The WGuECTary Slate Comnlesion on Child

elfare (March 1976)

**Td. at 23

-40-

ability of the parents of children in foster

care to maintain contact with them and to "plan"

in the social work sense, for their future is

far more circumscribed than the statute as

written and interpreted allows. Authorized

child care agencies are far more stingy in the

provision of help and services to these parents

than the statute requires.

Thus, in the typical permanent neglect

case, the Family Court encounters parents who

who are legally but not humanly able to plan

and maintain contact and agencies who did not

make any serious effort to help the parents.

At the same time, the tendency of agencies to

keep children in foster care for many years

and the consequent estrangement of some of the

children from their parents is used an an un-

written mandate for termination. This gap

between permanent neglect as a legal construct

and the realities which intrude on the actual

proceedings, forces a distorted and unfair

application of the permanent neglect statute.

@4)-

As this Court has recognized, " the poor

and victims of discrimination" resort to fuster

care placement in disproportionately large

numbers. Smith v. O.F.F.E.R., 431 U.S.816,833.

In New York City in 1979, more than 70% of the

children in foster care came from families on

public assistance,* and over 50% came from

female-headed families.** Presently, 84% of

the children in the city's foster care

population come from minority backgrounds;

56.5% are black and 23% are Hispanic.*** In

New York City a black child is three times as

likely as a white child to be removed from his

family; a Puerto-Rican is twice as likely.****

In New York State 62.2% of the children in

foster care were from New York City. *****

*Foundation for Child Development, State of the

Child: N.Y.C. II,(1980) 126.

**¥Redirecting Foster Care, A Report to the

Mayor of the City of New York (1980), 6.

***®State of the Child: W-¥C_T 8 Betve. £2,123

****Redirecting Foster Care, 6

s**k¥Poster Care in New YorkCity, Child Welfare

Information Service, Inc. (May-June,1978).

~42-

New York courts have held that a recipient of

public assistance is deemed legally able to

plan or visit under the permanent neglect

statute, e.g. Matter of Orzo, 84 Misc,.2d 482,

374 N.Y.S.2d 554 (Fam.Ct., N.Y. Co.,1975);

Matter of Marilyn H., supra. However,for most

parents struggling to survive on public

assistance, this presumed ability to conform

to the requirements of planning and visitation

is a legal fiction.

New York's public assistance grant is

wholly inadequate in helping families provide

for their own needs.* The Consumer Price Index

has increased 86% since 1972 when present

assistance levels were set.** The non-shelter

portion of the AFDC grant for a family of four

is only $2.15 per day per person. A single

mother whose children are in foster care would

only be eligiale for home relief and would

receive $22.00 per week for basic needs exclusive

*Redirecting Foster Care,p.3

*FId..p.20

-43-

of shelter costs.* Moreover, the sharp

increase in New York City housino costs forces

a substantial number of welfare recipients

to use part of their basis needs arant to

supplement their maximum shelter reimbursement, **

Under these circumstances, it is almost

impossible for parents on public assistance

to maintain contact with their children in

foster care and to plan in a manner that is

“realistic and feasible" under S.S.L.§384-b.7(f).

In Amici's experience, securing appropriate

housing is treated as an essential feature of

an adequate plan. Yet. when children are

placed in foster care, the parent's monthly

rent allowance is automatically reduced. often

requiring relocation to smaller quarters and

causing loss of furniture. Parents are thus

caught in the surreal position of not having

adequate housing for the return of their

children, although it was the children's

absence the created the situation, ***

TS N.Y.C.R.R.§352.2

**State of the Child: New YorkCity II.p.60.

***¥Redirecting Foster Care.p.lo.

-44-

Parents' financial plight affects their

ability to visit their children. as well as

to conduct activities considered part of

planning. Programs and agency offices are

generally not located in the City's poorest

neighborhoods. *

The cost of public transportation in

New York City ($1.20-round trip) is a subs-

tantial burden and can be more so in other

localities,.**

In addition to the required trips to the

agency for visitation, parents must make

numerous trips to their welfare center, for

counselling sessions. medical and legal

services, attendance at Familv Court, or

searching for decent housing or employment.

The difficulties in planning and visitation

caused by the strain of financial circumstances

are generally not ameliorated by the helpv from

child care aaencies.

Redirecting Foster Care, p.6

**¥ Report Warriers to the Freeing of Children

or Adoption,p.

-45-

The failure of authorized child care

agency staff to provide social work services

needed by parents to resolve their problems

and facilitate the return of children home,

has persisted despite the "diligent efforts"

requirement of S.S.L.§384-b.7. Cf. Smith v.

O.F.F.E.R., 431 U.816, 833-834. Numerous

reasons for the failure have been noted.

A majority of New York Family Court

Judges have reported that

"agencies do not make permanent plans for

children in foster care, not try

sufficiently to reunite the parent and

child. They cite: the failure of agencies

to encourage and cooperate in parental

visitation: agency failure to assist

parents with their problems; the cultural

and socio-economic differences between

middle-class social workers and under-

privileged parents: the bias of some

workers against the parents; the con-

viction of some caseworkers that the

interests of children are better served

in foster care than in their parents'

home. " Report, Barriers to the Freein

of Children for Adoption, Supra, b.90.

The reluctance of aqgencies to develop

plans for reunification of children with their

@46-

families is in part a reflection of the

unavailability of necessary services. Another

factor. however, is that the agency may be

reluctant to lose the foster care reimburse-

ment payments, which will stop if the child

leaves foster care and returns home. The

financial implications of decisions with regard

to children in foster care are frequently

determinative, *

In addition to the class bias noted by

the Family Court Judges, racial bias pervades

the foster care system, seriously disadvan-

taqing natural parents in termination

proceedings under the statutory desiqn.

",..racism manifests itself in the kinds

of services available. the location of

the service agencies, the inequitable

treatment of minority childrent within

foster care, and the small number of

Black and Hispanic directors and staff

in child care agencies.**

¥ Children Without Homes, (Children's Defense

Fund, 1978),pp.24-25; The Children of the

State II, Annual Report 1976 of the Temporar

State Commission on Child Weltare (10?o)p.19

**”Redirecting Foster Care, p.6

a43e

The gap between the legal reauirements

of the vermanent neglect statute and the

realities of what parents can do and what help

agencies can provide creates intolerable

dilemmas for Family Court judges who must

apply the statute.

Given the fact that the vast majority

of children who are the subject of permanent

neglect proceedings have been in foster care

for many vears, and, are torn between

conflicting loyalties to their parents and

foster parents, judges are reluctant to leave

children in the "limbo of foster care."

Consequently, thev tend to exaggerate the

failure of the parents to plan or maintain

contact, and to minimize the agencies' failures

to comply with the diligent efforts require-

ment. They terminate parental rights even

as they castigate the agencies. This process

of accommodation is discernible from the cases.

-48-

2d 383 (Fam.Ct., N.Y. Co.,1977): Matter of

Joyce A.R., 52 A.D.2d 882, 383 N.Y.S.2d 58

(2nd Dep't. 1976); Matter of Donna Doreen G.,

70 A.D.2d 188, 420 N.Y.S.2d 576 (3rd Dep*t.

1979); Matter of Lisa Ann U., A.D.2d P

427 N.Y.S.2d 994 (3rd Dep't. 1980).

This kind of distorted application of

the permanent neglect statute further

heightens the risk of error in these

proceedings to terminate parental rights

and supports the need for a higher standard

of proof.

-49-

E. THE PROCESS THAT IS DUE

This court drew a clear connection between

the standard of proof and the risk of erroneous

determinations in Addington v. Texas, 441 U.S.

418, 427 (1978): "Increasing the burden of

proof is one way to impress the fact-finder with

the importance of the decision and thereby per-

haps to reduce the chances that inappropriate

[decisions will be made]." The same point was

made by Mr. Justice Harlan in his concurring

opinion In re Winship, 397 U.S. 358, 369-370

(1969).

[A] standard of proof represents

an attempt to instruct the fact-

finder concerning the degree of

confidence our society thinks he

should have in the correctness

of factual conclusions for a

particular type of adjudication.

Although the phrases "preponderance

of the evidence" and "proof

beyond a reasonable doubt" are

quantitatively imprecise, they do

communicate to the finder of fact

different notions concerning the

degree of confidence he is expected

to have in the correctness of

his factual conclusions.

=aSQo

Justice Harlan noted that in criminal

cases it is of transcending importance that

innocent persons not be punished. Therefore

the reasonable doubt standard is used even

though it increases the likelihood that guilty

men may go unpunished, because the risk of

erroneously convicting an innocent person is

viewed as far more serious than the risk of

erroneously acquitting a guilty one.

The “preponderance of the evidence" stan-

dard, applied in most civil cases, requires only

a finding that the contested fact is more

probable than not. In re Winship, 397 U.S. 358,

371 (Harlan, J., concurring); McCormick,

Handbook on the Law of Evidence 339, at 793-

794 (1972). At least one study has shown that

preponderance of the evidence means about a

fifty-five percent probability.* This court

¥Simon, Rita James and Linda Mahan, "Qualifyin

h, the

Burdens of Proof; a View from the Bench,

Jury, and the Classroom,” 5 Law and Society

Review 319, 325 (1971).

@8)-

has found that in applying the preponderance

standard the trier of fact makes a finding by

merely weighing the quantum of the evidence.

In re Winship, supra, at 367. The preponder-

ance standard is used in ordinary civil suits

because:

In a civil suit between two

private parties for money

damages, for example, we view

it as no more serious in general

for there to be an erroneous

verdict in the defendant's favor

than for there to be an erroneous

verdict in the plaintiff's favor.

Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 50,

(1971).

Applying these considerations to termina-

tion of parental rights mandates the use of a

higher standard than mere preponderance of the

evidence. These lawsuits are not merely cases

between two civil litigants over money. Instead

the State is attempting to sever all ties

between parent and child permanently and irre-

vocably, to end forever the relationship which

o82e

our society deems to be fundamental to the

healthy nurturing of its young. Smith v.

Organization of Foster Families, 431 U.S. 816;

Stanley v. Illinois, 405 U.S. 645, (1972). The

consequences to a parent of an erroneous termina-

tion of parental rights are of horrifying

magnitude.

The consequences of an erroneous deter-

mination not to terminate parental rights are

far less drastic: the child usually remains

in foster care, in the same location and with

the same caretakers. The agency must continue

to work with the parent. The parent may change

his or her behavior and thus regain custody of

the child. If not, the agency may bring a new

proceeding to terminate parental rights based

on new charges.

Obviously, the harm to the parent whose

rights are erroneously terminated is far

greater than the harm to the state when paren-

tal rights are erroneously preserved.

-53-

"The individual should not be asked

to share equally with society the

risk of error when the possible

injury to the individual is sijni-

ficantly greater than any possible

harm to the state."

Addington v. Texas, supra, at 427. The state

must, therefore, prove a termination case by

evidence “more substantial than a mere prepon-

derance of the evidence." Id. at 427.

In addition to having less to lose, the

state has an easier time proving its case ina

termination proceeding than the parent does.

Foster care agencies have social workers and

other professionals who meet with both parents

and children, keep business records of their

contacts, and record long-term and short-term

plans for parents and children. 18 N.Y.C.R.R.

441.14. The parents have neither professional

expertise nor written records of their

experience through what may be years of foster

care. It is appropriate, therefore to put the

heavier burden on the state, since it has more

-54-

evidence and expertise at its disposal.

Cf. Duchesne v. Sugarman, 566 F. 2d 817, 828,

(2d Cir. 1976).

The “clear and convincing evidence"

standard of proof is a standard between the

preponderance standard used in regular civil

cases and the “beyond a reasonable doubt" stan-

dard employed in criminal cases. Addington

v. Texas, 441 U.S. 418, 423-424 (1979). This

standard is used to protect "particularly

important interests in various civil cases."

Id. 424. This court has repeatedly held that

when basic constitutional rights are at stake,

the party seeking to interfere with the

exercise of those rights, may do so only upon

a showing, by clear and convincing evidence,

that such interference is warranted. Thus,

in Addington v. Texas, 441 U.S. 418 (1979),

this Court held that a person can be civilly

committed to a mental institution only upon

-55-

a showing by clear and convincing evidence

that such a deprivation of liberty was

necessary. The reasons for this standard were

the "weight and gravity" of the individual

interest, Id. at 427, the "significant depri-

vation of liberty," Id. at 425, the “adverse

social consequences," and "stigma" the indivi-

dual would suffer, Id. at 426.

Similarly, in deportation proceedings,

this Court has held that because of the precious

right at stake, the right to remain in this

country, the government must prove its case

against the individual by clear and convincing

evidence, Fedorenko v. United States, U.S.

___, 101 S. Ct. 737 (1981); and "great toler-

ance and caution are necessary" in examining

the individual's actions before he may be

"deprived of the cherished status." Knauer v.

United States, 328 U.S. 654, 658, (1946).

In denaturalization cases, a high degree

of proof is also required. In Vance v.

Terrazas, 444 U.S. 252 (1980) this court ruled

=~S6=

that the standard of proof need not be clear

and convincing evidence only because the sta-

tute contains its own strict substantive

standard of proof: in order to strip a citizen

of his citizenship the government must prove

that he intended to forego his citizenship.

The requirement that specific intent be proved,

this Court held, is a sufficiently strict stan-

dard to protect individuals from improper or

unwarranted deprivations of citizenship. 44

U.S. at 427. In termination of parental rights

proceedings, specific intent to forego parental

rights need not be proved. On the contrary, the

statute explicitly makes parental intent imma-

terial. Social Services Law §384-b(6) (b).

Furthermore, in a cas@ to terminate paren-

tal rights, fundamental constitutional rights

are at stake. The right to raise a family is

amongst the most prescious rights protected by

the Constitution, Stanley v. Illinois, 405 U.S.

645, (1972). A termination of parental rights

=S7o

under Social Services Law §384-b does not

merely impinge on that right, it eliminates it

permanently. Because this statute so drasti-

cally interferes with so prescious a right,

termination of parental rights requires proof

by clear and convincing evidence.

The proponents of the preponderance

standard assert that a higher standard would

be inappropriate because it would not take into

account the presence ci another party to termi-

nation proceedings, the child. It must be

noted, however, that Amici do not argue that

the criminal standard -- beyond a reasonable

doubt -- should apply. The middle standard

of clear and convincing evidence is itself

a compromise. In fact, in Addington v. Texas,

441 U.S. 418, 429 (1978), this Court applied

the clear and convincing standard to a

situation in which it recognized competing

individual interests, as well as the interest

of the State, at stake, namely, the interest

-58-

of the individual not to be deprived of his

liberty, and the interest of a person suffering

from a debilitating mental illness in obtaining

necessary treatment.

Perhaps the greatest benefit to be

derived from requiring a higher standard of

proof in termination cases is the potential

effect of the standard on the behavior of foster

care agencies. These agencies are in control

at all stages of foster care. Their inaction

at the beginning of foster care placement leaves

children in placement too long and makes it

increasingly difficult to reunite with their

families. (See, Goldstein, Joseph, Anna

Freud, and Alfred Solnit, Beyond the Best

Interests of the Child.)

Nonetheless, Amici reject categorically the

inherent fallacies that underlie the assertion

that the child's interests differ from the

parents at the fact-finding stage of a

termination proceeding. (See Section C ,

supra.)

-59-

By its decision in this matter this

Court can signal its refusal to accept the

agencies' inaction. The result would be

an unequivocal statement that the State must

work to reunite families and that anything less

than meeting a high burden of proof will not

suffice. Such a ruling would motivate the

agencies to offer concrete services to alleviate

the problems which caused the children to go

into foster care and to speed their return home

in every case where that is possible, because

this Court has ruled that society cannot toler-

ate the erronecus tern nation of parental

rights.

=£0<

CONCLUSION

For all of the foregoing,

the judgment of the Supreme Court of

the State of New York Appellate Division,

Third Department should be reversed.

Dated: May 28, 1981

se ; Ps

{7 ay a,

4 KIbe o \& bs \ Wwe Sy Vien,

\ a

LOUISE GRUNER GANS

Community Action for Legal

Services, Inc.

CATHERINE P. MITCHELL,

General Counsel

335 Broadway

New York, N.Y. 10013

M.F.Y. Legal Services Inc.

NORMAN SIEGEL, ESQ. Project Director

759 Tenth Avenue

New York, N.Y. 10019

Brooklyn Legal Services,

Corporation A

ARNOLD ROTHBAUM, ESQ.

Project Director

260 Broadway

Brooklyn, N.Y. 11211

-61l-