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MATTER SYLVIA CLEAR *FN* (01/02/69)

FAMILY COURT OF NEW YORK, JUVENILE TERM, NEW YORK COUNTY 1969.NY.40002 <http://www.versuslaw.com>; 296 N.Y.S.2d 184; 58 Misc. 2d 699 January 2, 1969 IN THE MATTER OF SYLVIA CLEAR*FN* London, Buttenwieser & Chalif (Helen L. Buttenwieser of counsel), for petitioner. Sue Ann Shay and Harold J. Rothwax for respondent. J. Lee Rankin, Corporation Counsel (Samuel Felder of counsel), for Commissioner of Social Services of City of New York. Justine Wise Polier, J. Author: Polier


Justine Wise Polier, J.

Author: Polier

 This is a proceeding brought under article 6 of the Family Court Act by the Jewish Child Care Association, an authorized agency, to permanently terminate custody of the mother and award custody of her child to the petitioner.

The history of article 6 is rooted in the concern for children who have been placed in authorized agencies voluntarily or by court order. Studies have shown that the longer a child is left in care the less likely is his return to his natural family. Self-examination by agencies of children in care has shown a substantial number who after placement are rarely visited and become lost children for whom no plans are made by their families. Occasional visits, a Christmas gift, or a birthday card, or nothing, become the tenuous contact between these children and their natural families. Institutionalized at public expense year after year, they grow up with a sense of not belonging to anyone or with unrealistic fantasies about homes that will never be.

The purpose of article 6 and the preceding statute was two-fold. First, it sought to place an obligation on authorized agencies having custody of children to work with parents toward strengthening their ability and sense of responsibility for re-establishing homes for children in placement. Second, when such efforts failed for a period of over a year the statute gives authority to the authorized agency to petition for the termination of parental rights, thus freeing a child for adoptive placement when it is in the best interest of the child. In keeping with these two purposes, the law requires that certain facts be alleged including the efforts of the agency to work with the parents and the response of the parents. Such requirements provide safeguards to parents, since they obligate the authorized agencies having temporary custody of children to exert effort to re-establish the natural home prior to filing a petition for termination of parental rights.

The petition in the instant case prays that the infant, born on May 22, 1964 and committed to its care one week later, shall be adjudicated a permanently neglected child, that the mother shall be deprived permanently of said child's custody, and that custody shall be awarded to the agency. The petition alleges facts in accordance with the statutory requirements for such a proceeding under section 614 of the Family Court Act:

"(a) the child is a person under eighteen years of age;

"(b) the child has been placed in the care of an authorized agency, either in an institution or in a foster home;

"(c) the authorized agency has made diligent efforts to encourage and strengthen the parental relationship and specifying the efforts made;

"(d) the parent or custodian, notwithstanding the agency's efforts, has failed for a period of more than one year following the placement or commitment of such child in the care of an authorized agency substantially and continuously or repeatedly to maintain contact with and plan for the future of the child although physically and financially able to do so; and

"(e) the moral and temporal interests of the child require that the parents' or other custodian's custody of the child be terminated permanently."

At the fact-finding hearing, counsel for the petitioner, counsel for the Department of Social Services, and counsel for the mother stipulated that the child had been in placement on a voluntary commitment since she was seven days old, that the mother had provided no home and no support during the period of over four years, but that the mother had visited the child from time to time.

Counsel for the petitioner called as its first witness a supervisor of the authorized agency in whose care the child has been and offered the record kept in the regular course of business. Counsel for the mother contended that, since the supervisor was a certified social worker, all communications between her and the mother and/or professional observations relating to the mother, and all communications with or observations by the supervisor's subordinates, were privileged communications and, therefore, might not be disclosed without authorization of the mother under CPLR 4508.

This court, like counsel for both parties, has examined the contention of counsel for the mother in the light of the fundamental conditions set forth as necessary to the establishment of a privilege against disclosure between persons standing in given ...


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