In re Ray A. M. , 1975 N.Y. App. Div. LEXIS 9565 ( 1975 )

Per Curiam.

"Under the particular facts and the totality of circumstances” (Matter of Klug, 32 AD2d 915, 916), we hold that the infant herein is a permanently neglected child, as defined in section 611 of the Family Court Act, and that the child’s moral and temporal interests require that the custody of the respondent, her natural mother, be terminated permanently (Family Ct. Act, § 614, subd 1, par [e]).

The permanent neglect petition was filed by the petitioner Spence-Chapin Adoption Service on December 3, 1971. At that time the child was four years old; for the preceding two and a-half years she had been in the custody first of the Bureau of Child Welfare, and thereafter, since February 17, 1971, with Spence-Chapin. The child, who is now seven years old, has, since the latter date, been in the care of the same foster parents.

The voluminous record which covers 19 hearings, beginning June 18, 1969, portrays a picture of an aggressive, paranoid and immature mother who interspersed long periods of neglect (by failure to maintain contact with the supervising agency for visitation) with sudden, hysterical demands that the child be returned to her. Attempts by caseworkers to contact the respondent were frustrated by her constant changes of address, most of which were not communicated to the agency.

On one occasion, when the Bureau of Child Welfare permitted the child to be taken to the respondent’s home, the infant was admitted to a hospital as a battered child four days later. On August 27, 1971 the Family Court Judge, in response to the respondent’s application for the immediate return of the child, ordered Spence-Chapin to permit 15 visits by the respondent up to October 8, 1971; on that latter date she was to be permitted to take the child home for the weekend. Nevertheless, the respondent made only two regular visits prior to October 1; on that date she insisted on taking the child home a week earlier than scheduled. She was permitted to do so, but refused to return the child on the following Monday. This resulted in the issuance of a warrant and the arrest of the respondent.

At that point petitioner Spence-Chapin concluded that the child’s best interest would be furthered by her remaining with her foster parents, and concomitant therewith discontinued efforts to encourage and strengthen the parental relation. This was followed by the permanent neglect petition herein.

After the respondent’s arrest in October, 1971, she had been required to appear at a hearing in the Family Court on October 15, 1971 on Spence-Chapin’s application for an extension of placement. That hearing (later consolidated with hearings on the permanent neglect petition) was continually adjourned because of the respondent’s nonappearances. She did not appear until September 19, 1972; hearings in the consolidated proceedings were held, beginning November 15, 1972.

The record impels the conclusion that the respondent has failed, for the entire time since May 29, 1969, "substantially and continuously or repeatedly to maintain contact with or plan for the future of the child” (Family Ct. Act, § 611). The respondent’s behavior during her sporadic contacts with the agency and the child did not serve the purpose of easing and adjusting the child to return to her; they constituted a disruptive and harmful factor to the child’s well-being, far beyond that normally to be expected in such a delicate situation.

Section 611 of the Family Court Act requires the agency to exert diligent efforts to encourage and strengthen the parental relationship. This section was amended, effective June 25, 1971 (L 1971, ch 901, § 1) to add the phrase "when such efforts will not be detrimental to the moral and temporal welfare of the child.” The record establishes that Spence-Chapin, and its predecessor in the care of the child, the Bureau of Child Welfare, had in fact initially, and for a long period of time, exerted diligent efforts to foster and strengthen the parental relationship. Such efforts, however, were not met with the cooperation of the respondent. The respondent’s behavior on those occasions in 1970 and 1971 when she visited the child and when she took her home was such as to clearly demonstrate the correctness of Spence-Chapin’s conclusion, in late 1971, that further efforts to encourage the parental relationship would be detrimental to the welfare of the child.

The testimony of the psychologist who examined the respondent in December, 1973 at the direction of the court, that of the psychiatrist who examined both the respondent and the child at the direction of the court, as well as that of the two psychiatric consultants retained by Spence-Chapin, show that there has been no change in the psychological and behavioral pathology, which is the basis of her failure to fulfill her parental obligations towards the child. Such testimony further supports Spence-Chapin’s decision not to continue fostering the parental relationship.

This little girl is now seven years of age. She is still living in a condition of uncertainty about her life. This uncertainty has been caused by, and continues entirely because of, the emotional instability, life-style and neglect of her natural mother; it is in no way the fault of the adoption agency or the foster-care family. The child is entitled to know where her future lies and not to have the uncertainty continued by postponement of the decision for another year.

The foster home is stable and there is a desire to adopt. The child, if returned, would go to an unstable mother who has no husband and who has had three illegitimate children by different men. She would go to a home with no father figure and a life ahead which is likely to be supported, as the mother now is, on the welfare rolls.

This is not simply a case where the neglect by the parent may have been matched by the neglect of the agency to attempt the strengthening of the parental relationship (cf. Matter of Anonymous, 48 AD2d 696 [decided herewith]). It may be that the adoption agency could have tried harder to encourage the natural mother-child relationship in order to satisfy the most searching mind that no more could reasonably be done. However, we must not get lost in an analysis of the niceties of the precise degree of required diligence of effort where the life-style and apparent sociopathology of the mother (joined with her undoubted past neglect) indicate a bleak future indeed for the child. As stated in Matter of Raymond “M.” (81 Misc 2d 70, 79), "The welfare of the child is not served if permanent termination is delayed in order to penalize the agency for its failure to make diligent efforts or in order to give the natural parent recompense against the agency in the form of a second chance.”

Not to settle this child’s future now, after hearings held over a span of many years, would be an abdication of our primary duty of concern for the welfare of the child.

We therefore conclude that the orders of the Family Court which deny termination of the respondent’s parental rights pursuant to section 611 of the Family Court Act should be reversed, on the law and the facts, and the petition granted. Our decision that the infant is a "permanently neglected child” renders moot the application for an extension of placement.