
    The People of the State of New York ex rel. Anonymous, by Her Guardian ad Litem, Respondent, v. Anonymous et al., Appellants.
    Argued October 3, 1961;
    decided November 30, 1961.
    
      
      David G. Lubell and Raymond Reisler for appellants.
    I. The Appellate Division erred in law and fact in deciding that relator had not abandoned the child. (Matter of Levy, 260 App. Div. 722; Matter of Maxwell, 4 N Y 2d 429; People ex rel. Kropp v. Shepsky, 305 N. Y. 465; Matter of Knapp, 3 Misc 2d 840; Matter of Anonymous, 9 Misc 2d 420; Dick v. Scarfia, 16 Misc 2d 287.) II. The Appellate Division erred in reversing the trial court and holding that relator was not unfit. (Matter of Cleaves, 6 A D 2d 138; Matter of Hill [McCarley], 3 A D 2d 424; People ex rel. Kropp v. Shepsky, 305 N. Y. 465; Boyd v. Boyd, 252 N. Y. 422.) III. The Appellate Division ignored the proven facts and violated the controlling legal principles in refusing to find that the welfare of the child required his retention with appellants. The Appellate Division’s self-established criterion of the child’s welfare would cause havoc with the law and destroy the child’s welfare. (Matter of Gustow, 220 N. Y. 373; People ex rel. Pruyne v. Walts, 122 N. Y. 238; People ex rel. Harris v. Commissioner of Welfare of City of N. Y., 188 Misc. 919; Matter of Bistany, 239 N. Y. 19; Matter of Cohen, 155 Misc. 202; People ex rel. Destasio v. Perruzza, 277 App. Div. 996; People ex rel. Hagan v. Alfano, 277 App. Div. 565; Ex parte Vzga, 200 Misc. 732; People ex rel. Walters v. Davies, 143 Misc. 759; People ex rel. Chuz v. Reiter, 282 App. Div. 932; People ex rel. Hydock v. Greenberg, 273 App. Div. 710.)
    
      Benjamin Heller and Harry H. Lipsig for respondent.
    I. Appellants have not sustained their burden of showing that relator had abandoned her child. (Matter of Bistany, 239 N. Y. 19; Matter of Maxwell, 4 N Y 2d 429; Miller v. Cotten, 5 Ga. 341; Burdick v. Fuller, 199 App. Div. 94; Matter of Anonymous, 178 Misc. 142; People ex rel. Anonymous v. Perkins Adoption Soc., 271 App. Div. 672; People ex rel. Kropp v. Shepsky, 305 N. Y. 465; Matter of Anonymous, 195 Misc. 6; People ex rel. Anonymous v. Anonymous, 195 Misc. 1054; Matter of Cohen, 155 Misc. 202; Matter of Farley, 213 N. Y. 15; Locklin v. Fisher, 264 App. Div. 452; People v. Lewis, 260 N. Y. 171.) II. Appellants have failed to sustain their burden of proving relator’s present or prospective unfitness. (People ex rel. Kropp v. Shepsky, 305 N. Y. 465; People ex rel. Anonymous v. Anonymous, 19 Misc 2d 441 ; Matter of Anonymous, 10 Misc 2d 1076; People ex rel. Woolston v. Woolston, 135 Misc. 320; People ex rel. Geismar v. Geismar, 184 Misc. 897; People ex rel. Ragano v. de Saint-Cyr, 207 Misc. 194.) III. Special Term, in basing its decision upon a finding that the child would suffer harm if taken from appellants, misapplied the rule governing contests between parents and nonparents for the custody of a child, (People ex rel. Kropp v. Shepsky, 305 N. Y. 465; Matter of Thorne, 240 N. Y. 444; Matter of Maxwell, 4 N Y 2d 429; People ex rel. Portnoy v. Strasser, 303 N. Y. 539; People ex rel. Cruz v. Reiter, 282 App. Div. 932; Matter of Jewish Child Care Assn. of N. Y. [Sanders], 5 N Y 2d 222.)
   Fuld, J.

This contest between the natural mother and foster parents over the custody of a child, now almost 5 years old, gives rise to questions which are always distressing and usually perplexing as well. Their answer in this case depends upon our assessing the evidence offered at the trial and determining whether the foster parents have sustained the burden of proof imposed upon them by our decisions. (See, e.g., People ex rel. Kropp v. Shepsky, 305 N. Y. 465, 469.)

When the relator was 14 years old and unmarried, she gave birth to a son who was turned over to the foster parents when he was 4 days old. The identity of the child’s father was uncertain. She had had sexual relations with 3 boys when she was 13; one of these is now her husband, but (according to her) definitely not the father. Some 3 years after the child’s birth, the relator brought the present habeas corpus proceeding to obtain the child’s custody. The court at Special Term dismissed the writ, finding that the mother abandoned the child, that she is unfit to assume his care and that his welfare requires that he remain with his foster parents (27 Misc 2d 190). A divided Appellate Division reversed and sustained the writ, disagreeing with the trial court on each of the issues raised (14 AD 2d 41).

This court has said that, where the contest for the custody of a child is between parent and nonparent, 1 ‘ the primacy of parental rights may not be ignored ’ ’ (People ex rel. Kropp v. Shepsky, 305 N. Y. 465, 469, supra), but it has never been held or suggested that the child’s welfare may ever be forgotten or disregarded. In other words, the law presumes that it is in the child’s best interests that he be raised by his natural parent, but this presumption fails when it is proved that the parent has abandoned the child or is not fit to rear him. The mother or father has a right to the care and custody of a child, superior to that of all others, unless ”, we pointed out in the Kropp case (305 N. Y., at p. 468), “ he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood.”

Little purpose is to be served by treating at length the sordid and unhappy story unfolded by the record before us. It is enough to say, with respect to the relator’s abandonment of her child, that, from the time she gave him up in February, 1957, when he was but a few days old, until she commenced the present proceeding in February of 1960, the relator not only took no formal steps to gain the baby’s custody, but made not the slightest inquiry as to his whereabouts or health.

This total lack of concern and interest on her part takes on added significance in view of the fact that, having married a few months after the baby was born, she could have given him a home. We conclude, therefore, that the trial court correctly decided that the foster parents sustained their burden of establishing abandonment, of establishing that the relator’s conduct reflected a settled purpose to be rid of all parental obligations and to forego all parental rights ”. (Matter of Maxwell, 4 N Y 2d 429, 433; see, also, People ex rel. Kropp v. Shepsky, 305 N. Y. 465, 469, supra; Matter of Benning [Nigro], 303 N. Y. 775.) No matter how strongly one may favor the primacy of parental rights, the conclusion is well-nigh unavoidable — to cull from a sentence in the Maxwell case (4 N Y 2d, at p. 433)—that the relator’s “ callous disregard ” for the child and her “ complete indifference ” to where he was or how he was faring reflected a repudiation of motherhood and an abandonment of maternal rights and responsibilities.

It is likewise our conclusion that the foster parents satisfied the burden imposed upon them of proving that the relator is unfit and that the child’s well-being requires that he be left in their custody. Based on evidence of her sexual promiscuity at the age of 13 and of indulgence at 16 in both normal and abnormal sex relations with a married man over a period of several months while separated from her husband, the trial court had little alternative but to find the relator unfit to raise the child. It follows, both from this proof and from the testimony given by the psychiatrists on behalf of the foster parents, that the child would be irreparably and irrevocably harmed if transferred to the relator, that the youngster’s welfare requires that he be left where he is.

It is quite true that the record contains no proof that the relator was promiscuous or guilty of Immoral acts within a year of the trial, but her misconduct may not be characterized as “indiscretions of long ago”. (People ex rel. Kropp v. Shepsky, 305 N. Y. 465, 471, supra.) In cases of this kind, our only index to the future is the recent past, and the proof, revealing serious flaws of character and a decided moral instability over the years, affords no basis for believing that she is ready to take on the obligations of parenthood. In short, the trial judge’s appraisal—that the relator’s unfitness for the role of mother is “inescapable”—borne out, as it is, by the record, fully justified his refusal to assume that she had undergone such a change in character, propensities or outlook to warrant the risk of removing the child from the custody of the foster parents and turning him over to the relator.

The order of the Appellate Division should be reversed and that of Special Term reinstated, without costs.

Froessel, J. (concurring).

I agree with Judge Fuld for reversal. Substantial evidence on the hearing of this habeas corpus proceeding justified the finding that the relator was at that time unfit to assume the duties of parenthood, and that the child’s welfare required that custody remain with the respondents.

Because of her youth, her past indiscretions should not forever be held against her, but they continued to a period so close to the hearing as to justify the determination of Special Term.

In our view, to which the majority do not subscribe, if after a reasonably sufficient time relator has mended her ways, and in the meanwhile by her visitations and otherwise has manifested a genuine interest in her child, she is by no means foreclosed from instituting new proceedings for custody.

Chief Judge Desmond (dissenting).

The court by this decision restates but refuses to apply the undoubted natural law and common law of the parent and child relation. We have held repeatedly and emphatically that a parent’s right to her child is superior to all others until it be shown by those who Avould take the child away that the mother has abandoned the child or is presently unfit to have custody of her oavu child (Matter of Thorne, 240 N. Y. 444, 449, 450; People ex rel. Portnoy v. Strasser, 303 N. Y. 539; People ex rel. Kropp v. Shepsky, 305 N. Y. 465, 470; Meyer v. Nebraska, 262 U. S. 390, 399; Domestic Relations Law, § 81). I see no evidence at all of either “abandonment” or “unfitness” as those terms are used in the cases cited.

“Abandonment” means “a settled purpose to be rid of all parental obligations and to forego all parental rights ” (Matter of Maxwell, 4 N Y 2d 429, 433). This mother at the age of 14 bore the child which four days later was illegally torn from her. The alleged abandonment consists of her failure for the next three years to take steps to get her baby back. But she was only 17 years old when she did make the effort. Such is the evidence said to prove this youthful mother’s “ absolute and unequivocal neglect and refusal to perform a parent’s natural and legal obligations of support, presence, love and care, a settled purpose to forego forever all parental rights ” (see dissent in Matter of Maxwell and cases cited, p. 441).

The “ sordid” record of relator’s present unfitness to rear her own child amounts to no more than testimony of a completely discredited witness who testified to immoral acts with relator in 1958 when she was 16 years old. This comes nowhere near meeting the requirements of People ex rel. Kropp v. Shepsky (305 N. Y. 465, supra) which refers to a “ notoriously immoral ” mother (p. 469) and warns that we must not “ weigh too heavily indiscretions of long ago ” (p. 471).

“ No court can, for any but the gravest reasons, transfer a child from its natural parent to any other person * * * since the right of a parent * * * to establish a home and bring up children is a fundamental one and beyond the reach of any court ” (People ex rel. Portnoy v. Strasser, 303 N. Y. 539, 542, supra).

I would affirm.

Judges Dye, Van Voorhis and Foster concur with Judge Field; Judge Froessel concurs in a separate opinion in which Judge Burke concurs; Chief Judge Desmond dissents in an opinion.

Order reversed, etc. 
      
      . Although the relator testified that she did not know who the foster parents were, the evidence is clear that she could easily have learned their identity.
     
      
      
        . The facts revealed by the present record are patently different from those in People ex rel. Kropp v. Shepsky (305 N. Y. 465, supra). In the first place, the unmarried mother in Kropp actually requested the child’s return less than two weeks after giving him up and, in the second place, she had no home in which to rear him and no means to provide for his support. Here, on the other hand, except for about three months, while the relator was living with her father and the other members of her family, she had a home of her own and, with her husband, could have provided for the care and support of the child. Moreover, as already remarked, she did nothing for a period ot' three years, permitting the baby to remain with those who were giving him the care and affection of parents.
     