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MATTER STEPHEN B. (08/21/69)

FAMILY COURT OF NEW YORK, JUVENILE TERM, NEW YORK COUNTY 1969.NY.42775 <>; 303 N.Y.S.2d 438; 60 Misc. 2d 662 August 21, 1969 IN THE MATTER OF STEPHEN B., ALLEGED TO BE A PERMANENTLY NEGLECTED CHILD London, Buttenwieser & Chalif (Helen L. Buttenwieser of counsel), for petitioner. Newman & Rosenthal (Julian C. Tepper and S. Keith Rosenthal of counsel), for mother, respondent. Samuel Felder, Assistant Corporation Counsel, for Commissioner of Social Services. Nanette Dembitz, J. Author: Dembitz

Nanette Dembitz, J.

Author: Dembitz

 This is a proceeding to free a child permanently from his mother's custodial right, in order to permit the child's placement for adoption by the petitioning child care agency, the Jewish Child Care Association, Inc. Under article 6 of the Family Court Act of New York the court is authorized to permanently terminate parental rights, if it finds that a child who had been placed outside his home under the supervision of a child care agency is "permanently neglected." "Permanent neglect" is established when "the parent * * * has failed for a period of more than one year following the placement * * * 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, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship." (Family Ct. Act, § 611.)

The court's conclusion is that all these statutory conditions have been met with respect to Stephen B. and that he is a "permanently neglected" child within the meaning of the Family Court Act. The court further concludes, by way of remedy and disposition, that Stephen's moral and temporal interests require the transfer of his custody from his mother (see Family Ct. Act, § 614, subd. [e]), and hereby transfers his custody to petitioner for the purpose of his adoption by the foster parents with whom he has resided continuously for over four years.

The salient issue in this case is the proper construction of the Family Court Act in the light of the respondent mother's recurrent hospitalizations for mental illness during the period of her son's placement in a foster home. Her attorney contended that termination of her parental rights would in effect constitute a punishment of the mentally ill -- unjustifiable because an individual cannot constitutionally be punished for an illness or a condition beyond his control (See Robinson v. California, 370 U.S. 660, 666-667, and p. 685 [White, J., dissenting]).

While it is true that respondent's mental illness may have affected her conduct towards her child throughout his foster home placement, this proceeding cannot be viewed as a punitive one. Rather, its objective is the welfare of the child; and it is based on the principle that after a mother has shown her maternal unfitness in specified significant respects, the child's right to the advancement of his moral and temporal interests predominates over her entitlement to him.


Stephen was born out of wedlock to respondent Miss B. on January 22, 1963. He was placed in a foster home under the supervision of an adoption agency for his first two months of life; on March 21, 1963, apparently because of Miss B.'s change of mind about surrendering him for adoption, she assumed his care. On April 3 or 4, 1963 he was returned to a foster home. Except for that two-week period with his mother, Stephen has been in foster care from the time of his birth. His putative father has never had nor sought any contact with him. On December 3, 1964, Stephen was placed by petitioner agency in the foster home in which he has remained continuously to the present time.

Miss B. was first hospitalized for mental illness in June, 1957, at the age of 18, for a period of eight months, and she was again so hospitalized from January, 1960 to April, 1962. In April, 1963, after caring for Stephen for two weeks, Miss B. was again hospitalized for mental illness. She left the hospital, apparently as a result of a habeas corpus proceeding, in December, 1963; she was again so hospitalized from June, 1965 to October, 1966 and again from February, 1968 to March, 1969. Miss B.'s illness has from its beginning to the present time been diagnosed as "schizophrenia, mixed type," with a "guarded" prognosis in the sense that recurrent breakdowns and episodes of irrational behavoir may occur.



The first question before the court is during what periods, if any, Miss B. was "physically able" to maintain contact with and plan for the future of Stephen within the meaning of the permanent neglect statute; unless she had such physical ability, any failures to contact and plan must, under the New York statute, be disregarded.


In the absence of any previous judicial construction of the term "physically able" in the permanent neglect statute, the court first takes judicial notice of the meaning attributed to it in practice. Judging from the practice of the child care agencies, physical ability to maintain contact with the child means that the parent is physically capable of visits with the child. The agencies construe the parent-child relationship which they are mandated to encourage, to include face-to-face contact rather than contact merely through letters or other detached methods. An interpretation by concerned experts is entitled to great weight,*fn1 and in this instance seems a reasonable and proper effectuation of the statutory purpose. For, the purpose of permanent neglect proceedings is to determine whether the parent has manifested, despite the child's placement out of the home, the sense of responsibility, interest, and affection essential to the re-establishment of parental care for the child.*fn2 Visits with the child -- provided the agency facilitates them -- would ordinarily to be a minimum manifestation of the required attitude, and in addition would be a necessary psychological preliminary to such re-establishment. Accordingly, the statutory purpose and pattern indicates that a mother's physical inability to visit the child constitutes a lack of the physical ability to maintain contact to which the statute refers.

The court will assume that Miss B. would not have been permitted to leave the hospital to visit her child during her periods of hospitalization for mental illness, and that the condition of physical ability to maintain contact was not therefore fulfilled during any of the time she was hospitalized.*fn3 . EFFECT ...

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