# Amicus Brief — Santosky v. Kramer

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2393%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1982
- **Citation:** 455 U.S. 745

## Text

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-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2393%3A11. Public record. Not legal advice.