20 Apr Termination of Parental Rights
In the absence of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances, a parent may not be denied custody.¹ The right of a parent to raise his or her own child is a fundamental right subject to the protection of the Due Process Clause of the Constitution. When a state moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.²
In recognition of these principles, the New York State Legislature in a statement of findings and intent concerning the guardianship and custody of destitute or dependent children, found that:
It is generally desirable for the child 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, and the parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered; [and] the state’s first obligation is to help the family with services to prevent its breakup or to re-unite it if the child has already left home.3
“The termination of parental rights on the basis of permanent neglect can occur under New York law only by order of the Family Court under N. Y Social Services Law (SSL) § 384-b(J)(d).”
The termination of parental rights proceeding usually is the final chapter of a protracted family, social and legal history. There has been at this point extensive interaction with a social services agency. Frequently the subject child is in foster care with foster care parents who are seeking adoption. Preliminary child protective hearings, including temporary removal hearings,4 have been held. In many such cases, extensions of placement or foster care and review hearings have been completed.
This legal history produces extensive records including mental health, social, court and medical reports and recommendations. The practitioner who enters a case at the “termination of parental rights” stage has a great deal of preparation to do, and should avail himself of the discovery devices permitted pursuant to Family Court Act§ 1038.
“Termination of parental rights” is not, strictly speaking, a cause of action. It is rather the possible end result of disposition of a number of separate causes of action, to with: abandonment, permanent neglect, termination based upon parental mental illness or retardation, and termination predicated upon severe or repeated child abuse. Each of these separate causes of action are defined by statute.5 The termination of parental rights on the basis of permanent neglect can occur under New York law only by order of the Family Court under N.Y. Social Services Law (SSL) § 384-b(3)(d).
Due process requires that the state in such cases support its allegations by at least clear and convincing evidence.6
The parent of a child in the care of an authorized agency who has failed for a period of more than one year following child’s placement or repeatedly failed to substantially and continuously maintain contact with or plan for the future of the child, may permanently lose his or her parental rights.7 However, the presentment agency in such cases must show that the respondent parent was physically and financially able to maintain such contact, and that the parents’ failure to maintain such contact occurred notwithstanding the diligent efforts of the agency to encourage and strengthen the parental relationship.8 It is therefore incumbent upon the practitioner representing a respondent in such cases to exploit in his defense his inability financially or physically to maintain such contact. Additionally, where appropriate, respondent’s attorney should challenge the diligence of the efforts made by the presentment agency. The term diligent efforts is defined in SSL §384-b(7)(f). (In certain limited cases where a parent has failed to advise the social service agency of his or her whereabouts for six months, or has failed to cooperate with such agency during a period of incarceration, the presentment agency need not prove diligent efforts.)
The agency is required to establish diligent efforts to encourage and strengthen the parental relationship as a necessary condition precedent to establishing permanent neglect. The statutory duty of the Agency to exercise diligent efforts has been described by the Court of Appeals as being both “demonstrably paramount and pervasive.9
As set forth in the Social Services Law “diligent efforts” shall mean reasonable attempts by authorized agency to assist develop and encourage a meaningful relationship between the parent and child, including but not limited to:
- consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family;
- making suitable arrangements for parents to visit the child;
- provision of services and other assistance to the parents, so that problems preventing the discharge of the child from care may be resolved or ameliorated; [and]
- informing the parents at appropriate intervals of the child’s progress, development and health.10
“In an effort to protect children from abuse or neglect, the legal system must serve the interests of parent and child in a fashion which is fair to both.”
In In re Philip S., Suffolk Family Court Judge Simeone characterized the agency’s obligation as follows:
While an Agency cannot be required to succeed in reunifying every parent and child, neither can the Agency effectively carry out its mandate by merely acting as the record evidence herein demonstrates as a resource for referrals to services and a clarion of warning that barriers preventing the return of the child must be overcome [see, In re Jamie M., 63 N.Y. 2d 388, 482 N.Y.S. 2d 461 (1984); 111 re Shelia G., 61 N.Y. 2d 368, 474 N.Y.S. 2d 421 (1984); and see, DSS v. Kurt L., N.Y. Slip Op. 98, 669 (Genessee Co. Fam. Ct. 1998)].
Concomitant Duty to Plan
Respondent parent has a concomitant duty to plan for the future of the child.
[T]o plan for the future of the child shall mean to take 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 circumstance available to the parent. The plan must be realistic and feasible, and good faith effort shall not, of itself, be determinative.
The court may consider parent’s failure to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available to such parent.
In an effort to protect children from abuse or neglect, the legal system must serve the interests of parent and child in a fashion which is fair to both. Parent’s fundamental right to raise their children without government interference must be balanced with the government’s legitimate interest in insuring the safety of its minor citizens.
- In re adoption of Male lnfant L, 61 N.Y.2d 420,474, N.Y.S.2d 447 (1984); Bennett v. Jeffreys, 40 N.Y.2d 543,387 N.Y.S.2d 821 (1976); SSL § 383(6).
- Santosky v. Kramer, 455 U.S. 745 (1982); Oil remand, 89 A02d 738, 453 N.Y.S.2d 942 (3d Dep’t).
- SSL § 384-b(1)(ii), (iii).
- SSL §§ 384a, 392.
- SSL § 384-b(5-7).
- Santosky v. Kramer, supra.
- SSL § 384-b(7)(a).
- SSL § 384-b(7)(e).
- In re Shelia G., 61 N.Y.2d 368,380.474 N.Y.S.2d 421 (1984).
- ld. citing SSL § 384-b(7)(f).
Robert C. Mangi practices family and matrimonial law in Mineola, N.Y. He is a member of the law guardian panel and the 18b assigned counsel (Family Court) defender plan. He has lectured for the Nassau Academy of Law and the New York State Bar Association on family court topics. Mr. Mangi is a past Chair of the Nassau County Family Law and Procedure Committee.
This article was originally published in the NYSBA Family Law Review | Fall/Winter 2001| Vol. 33 | No. 2