
    In the Matter of Jewish Child Care Association of New York, Respondent. Seymour Sanders et al., Appellants.
    Argued October 6, 1958;
    decided January 23, 1959.
    
      
      Albert M. Goldberg for appellants.
    I. The hearing at Special Term adduced no evidence to support the determination of that court that the best interests of the child would be served by her removal from the home of appellants. (Matter of Bachman v. Mejias, 1 N Y 2d 575; Matter of Holland v. Oscarson, 2 A D 2d 987.) II. The order of the lower court, as affirmed, represents a result which does not serve the best interests of the child and is wholly incompatible with the evidence and with applicable judicial precedents. (People ex rel. McCanliss v. McCanliss, 255 N. Y. 456; People ex rel. Herzog v. Morgan, 287 N. Y. 317; Finlay v. Finlay, 240 N. Y. 429; People ex rel. Riesner v. New York Nursery & Child’s Hosp., 230 N. Y. 119; People ex rel. Sisson v. Sisson, 153 Misc. 434; People ex rel. Spreckels v. de Ruyter, 150 Misc. 323; People ex rel. Converse v. Derrick, 146 Misc. 73; Matter of Bock [Breitung], 280 N. Y. 349; Newcomb v. Newcomb, 281 App. Div. 689; Matter of MacLaren [Kincaid], 283 App. Div. 817; People ex rel. Jewish Child Care Assn. of N. Y. v. Handsman, 281 App. Div. 980; People ex rel. Anonymous v. Perkins Adoption Soc., 271 App. Div. 672; People ex rel. Our hady of Victory Infant Home v. Venniro, 126 Misc. 135; Matter of Mary I-v. Convent of Sisters of Mercy in Brooklyn, 200 Misc. 115.) III. The failure of the lower court to exercise discretion in the mistaken belief that it had none constitutes reversible error. (Finlay v. Finlay, 240 N. Y. 429; Beach v. Chamberlain, 3 Wend. 366; Foote v. People, 56 N. Y. 321; Russell v. Conn, 20 N. Y. 81; Tolman v. Syracuse, B. & N. Y. R. R. Co., 92 N. Y. 353; People ex rel. Herzog v. Morgan, 287 N. Y. 317.)
    
      Helen L. Buttenwieser and Chester T. Lane for respondent.
    I. The only issue in a writ of habeas corpus is the best interests of the child. II. The evidence adduced warrants the finding at Special Term that appellants have created a difficult and damaging situation for Laura and that it is in Laura’s best interest to be removed from her boarding home.
   Chief Judge Conway.

The purpose of this habeas corpus proceeding is to determine the custody of Laura Neuberger, an infant who is now about five and a half years old. About four and a half years of her short life have been spent in the home of the appellants, Mr. and Mrs. Sanders. Appellants are not related to Laura, nor do they have legal custody. They have her on a temporary foster parent basis pursuant to an arrangement with the respondent Jewish Child Care Association of New York, hereinafter referred to as Child Care.

Child Care is a philanthropic organization chartered by the State of New York to care for children who are in need of custodial care outside of their own homes. It accepts for care children whose parents are temporarily unable to care for them but who are unwilling to place them for adoption. These children are cared for until such time as their own families can properly care for them. While some of these children are placed in a cottage plan institution, the majority are placed in boarding or foster homes. During this boarding period, Child Care’s workers assist those in the natural home in preparing for the return of the child, and at the same time exert efforts to insure the child’s adjustment and preparation for the return to its family. When such a child is placed in a foster home, it is the function of the foster parents to assist in the proper orientation of the child so that it may be prepared and ready for its eventual return to its family. This relationship of foster parent and child is carefully explained to persons who undertake to assist Child Care in its worthy purpose. Such persons are paid an agreed sum of money for the child’s room and board, and clothes and medical care are paid for by" Child Care. Persons accepting such a child for temporary boarding care do so with the understanding that adoption is not contemplated, that the child will return to its natural parent or parents as soon as feasible, and that one of the primary responsibilities of such boarding parents is to prepare the child psychologically for its contemplated return to its natural home. In order to maintain and strengthen the ties between the child and its parent or parents, the boarding program contemplates periodic visits by the natural parent with the child at the boarding home.

It was in this context that on about July 30,1964 the Sanders, husband and wife, accepted Laura into their home having applied to Child Care three or four months previously to serve as foster parents. Laura’s young mother was unable to care for her after her birth and the child was placed with the Department of Welfare of New York City which in turn commended her welfare and custody to Child Care. When Mr. and Mrs. Sanders first applied to Child Care to participate in its boarding program, that program was explained to them and they were expressly told at that time that Child Care was a boarding agency and not an adoption agency. When they took Laura they knew she had a mother who would visit her, although not for a while in the beginning. The precise chronology of the events that followed during Laura’s stay with the Sanders is not clearly revealed by the record. It appears that sometime during1 the first year that they had Laura, the Sanders acquired a desire to adopt her. They mentioned this to one of Child Care’s workers who told them that adoption was out of the question, and explained the necessity for helping Laura to understand who her mother was. Despite this, Mr. and Mrs. Sanders actively sought to effectuate their desire to adopt Laura. In their pursuit of adoption, and contrary to the known policies and rules of Child Care, the Sanders arranged to speak to Laura’s mother about adoption. On several occasions they attempted to persuade Laura’s maternal grandmother and uncle to interfere and intercede in their behalf and prevail upon Laura’s mother to give her up. At one point the Sanders were required by Child Care, as a condition to their keeping Laura, to sign a paper in March of 1957 to the effect that they had Laura on a foster home or boarding home basis only. This occurred after an attorney, representing himself as the Sanders’ attorney, telephoned Child Care and inquired about the availability of Laura for adoption. Some time prior to Thanksgiving Day in November of 1957, Mr. and Mrs. Sanders asked Child Care if they could take Laura to Florida for that holiday. They were refused permission, one of Child Care’s workers explaining to them that by that time Laura might be back with her mother, and that Child Care was working on a plan with the mother toward that end. When thus advised, Mrs. Sanders became upset and she described her emotional reaction as follows: “I was heartbroken, very worried about Laurie, about how she would react. In fact, that was my prime worry, how she would feel being taken away from her mother and father” (emphasis supplied). In their zeal to adopt Laura, the Sanders persuaded Laura’s uncle to discuss his sister’s (Laura’s mother) background with the district supervisor of the foster home department of Child Care. It does not appear what this background was. At any rate the district supervisor then informed the Sanders that they would be asked to give up Laura in a few weeks because they had become too emotionally involved with the child. During approximately a week that followed, the Sanders intensified their efforts to persuade Laura’s mother to surrender her for adoption. Mr. Sanders approached Laura’s mother both at her place of business and at her home, but she steadfastly refused to give up her daughter. He spoke with Laura’s grandmother but she refused again to interfere. Finally, Laura’s mother telephoned Child Care about these efforts. The district supervisor then informed the Sanders that they would have to give up Ladra and that this course would be kinder to them in view of their deep emotional involvement with Laura. When Child Care’s representatives came to call for Laura, however, the Sanders refused to give her up, whereupon Child Care commenced this proceeding. Almost all of the foregoing is based upon the testimony of Mr. and Mrs. Sanders.

The district supervisor of the foster home department of Child Care testified, in part, that Child Care has worked with the Sanders to help them continue to keep Laura while performing their proper function as boarding parents. However, it became evident that the child’s best interests necessitated her placement in another environment where she would not be torn between her loyalty to her mother and her boarding parents. According to the testimony of a representative of the Department of Welfare of New York City, that department was in agreement with Child Care that Laura’s best interests required that she be placed elsewhere. A psychiatrist, the only witness called by appellants, testified in substance that he had interviewed Laura and the Sanders the afternoon before the trial, that the Sanders took Laura to satisfy their own parental instincts, that Laura is well adjusted, that if she were taken from the Sanders now she might become maladjusted, that the Sanders are the only ones Laura knows as parents, that it would be better to allow Laura’s attachment to the Sanders to grow, and that Laura would make a better adjustment to the change to her own mother later on, whenever that should be, if she were left with the Sanders.

Upon this record, the Supreme Court Trial Justice, who had formerly been a Children’s Court Justice for 11 years, found that it would be in Laura’s best interests if she were taken from the Sanders before, as he phrased it, “further damage is done or a still more difficult situation for her is created This discretionary finding was expressly affirmed by the Appellate Division. There is no merit to the appellants’ claim that the Trial Justice failed or refused to exercise independent discretion as to what is in Laura’s best interests, or that he made his determination upon any basis other than her best interests. Consequently, the precise question which this record presents is whether there is such a lack of supporting evidence that we must charge the court below with an abuse of discretion as a matter of law. (See Matter of Bachman v. Mejias, 1 N Y 2d 575, 582; People ex rel. Kropp v. Shepsky, 305 N. Y. 465, 468; People ex rel. Portnoy v. Strasser, 303 N. Y. 539, 542; Bunim v. Bunim, 298 N. Y. 391, 393.) It should be remembered that “ Questions of custody are, generally, for the Supreme Court, in its discretion, and it is rarely that any such determination by it can raise any question of law for us.” (People ex rel. Portnoy v. Strasser, supra, p. 542.)

In considering what is in Laura’s best interests it was not only proper, but necessary, for the Trial Justice to consider the facts in terms of their significance to Laura’s eventual return to her own mother. The record permits no other perspective to be taken, both in view of Laura’s mother’s steadfast refusal to give her up, and Child Care’s declared purpose to return Laura to her own mother when she is able to care for her. Viewing the record thus, it supports in a most compelling manner the Trial Justice’s determination which has been affirmed by the Appellate Division. It clearly establishes that the appellants have conducted themselves in a fashion inconsistent with their agreement and, indeed, diametrically opposed to their trust. Their own witness testified that Laura had come to look upon appellants as her parents, “ the only ones she has known as parents.” In short, the content and tone of the record disclose a situation in the Sanders home which has reached such a peak of emotion and possessiveness that it is entirely inconsistent with Laura’s future with her own mother, and her need to be prepared for that future. Certainly, the Trial Justice was entitled to find that it would be in Laura’s best interests to extricate her now from the emotional entanglement into which she has been plunged by the keen parental desire of the Sanders in which they involved themselves contrary to their own agreement and in violation of their trust. He was entitled to find that to allow Laura to stay longer would make the future transition to her own mother more painful for the child.

That the Sanders have given Laura a good home and have shown her great love does not stamp as an abuse of discretion the Trial Justice’s determination to take her from them. Indeed, it is the extreme of love, affection and possessiveness manifested by the Sanders, together with the conduct which their emotional involvement impelled, that supplies the foundation of reasonableness and correctness for his determination. The vital fact is that Mr. and Mrs. Sanders are not, and presumably will never be, Laura’s parents by adoption. Their disregard of that fact and their seizure of full parental status in the eyes of the child might well be, or so the Trial Justice was entitled to find, a source of detriment to the child in the circumstances presented. Nor can we sustain an objection that, since the child is not now being returned to her mother, she should be left with the Sanders because the fitness of her next habitation is presently unknown. As the Appellate Division wrote, we may not indulge an assumption, or even harbor a doubt, that Laura will not be properly eared for under the supervision of Child Care which is an authorized agency and which has proven itself most solicitous for the welfare not only of the child and its mother but even of the appellants themselves. From the standpoint of the child’s best interests, therefore, we hold that there was no abuse of discretion by the Trial Justice.

The nature of this case requires one further basic statement. What is essentially at stake here is the parental custodial right. Although Child Care has the present legal right to custody (Social Welfare Law, § 383, subd. 2) it stands, as against the Sanders, in a representative capacity as the protector of Laura’s mother’s inchoate custodial right and the parent-child relationship which is to become complete in the future. Any future physical legal custody in Laura’s mother would be but an empty right, if the emotional substance of that relationship were permitted to be replaced antecedently by the parent-like love and possessiveness of Mr. and Mrs. Sanders. This court has acknowledged that “ * * * the right of a parent, under natural law, to establish a home and bring up children is a fundamental one * * (People ex rel. Portnoy v. Strasser, 303 N. Y. 539, 542, supra.) In support of this tenet we have declared that “ Except where a nonparent has obtained legal and permanent custody of a cMld by adoption, guardianship, or otherwise, he who would take or withhold a child from mother or father must sustain the burden of establishing that the parent is unfit and that the child’s welfare compels awarding its custody to the nonparent.” (People ex rel. Kropp v. Shepsky, 305 N. Y. 465, 469, supra.) A proper application of these doctrines requires the conclusion that foster parents may not succeed in a proceeding such as this, where the child temporarily in their care is to return to its natural parent, in accordance with the trust accepted by the foster parents for compensation, in the absence of a clear showing that to return the child to the boarding agency will operate to its grave detriment. The paramount parental right to raise one’s own child, which we regard as fundamental, is to be protected not only from direct and immediate incursion, as in the Shepsky and Strasser cases, but also from indirect and less proximate subversion, such as in the case before us.

We are, of course, not unmindful that the result we reach may cause distress to the appellants. However, the more important considerations of the child’s best interests, the recognition and preservation of her mother’s primary love and custodial interest, and the future life of the mother and child together, are paramount. These interests, and the program of agencies such as Child Care which preserves them, may not be subverted by foster parents who breach their trust.

The order of the Appellate Division should be affirmed, without costs.

Dye, J. (dissenting).

This appeal involves the custody of a minor child. In sustaining petitioner’s application for a writ of habeas corpus, a majority of this court is about to say that the best interest of the infant will be served by compelling the approved foster parents, with whom the petitioner had previously placed the child for custodial care, to surrender her back to the Agency, thére to be dealt with as they see fit. This tragic result comes about because of a mistaken notion that the courts are bound to accept an administrative policy of the Agency as controlling their determination rather than to exercise their own traditional power and authority in accordance with the evidence. While administrative practices have a useful place in the handling of ordinary matters of administration, such test is wholly inappropriate in this setting. Here we are not dealing with a routine problem of administration, but rather with the fundamental concept underlying the broad and enlightened social welfare program of the State respecting the care and custody of indigent and neglected children, every aspect of which is to be tested in the light of which will best promote their individual welfare. This idea is neither new nor novel in our society. The State as parens patries has always had a deep concern for its infant wards; from birth to maturity their welfare is paramount, even to that of the natural parent (Matter of Bock [Breitung], 280 N. Y. 349), the determination of which belongs solely to the Supreme Court as successor to the Chancellor (Matter of Bachman v. Mejias, 1 N Y 2d 575), which may not be limited or diminished by the Legislature (People ex rel. Reisner v. New York Nursery & Child’s Hosp., 230 N. Y. 119; People ex rel. Mayor of City of New York v. Nichols, 79 N. Y. 582).

This controversy has not been precipitated by the classic cause arising from abuse and neglect but because these foster parents 11 have become too emotionally involved ”, a situation engendered by a feeling of mutual love and affection. In extricating the child from this “emotional entanglement ”, it seems clear that on this record one of the most fundamental aspects of the child care program, namely the placing of children in a home environment, is being defeated. It is undisputed that the infant Laura was born June 3, 1953. At that time her mother was about 17 years of age and lived with her widowed mother and an unmarried minor brother, a student. The child was thereafter given over to the Department of Welfare of the City of New York who, in turn, gave her to the Agency. When the child was about one year old the Agency placed her with these appellants for boarding care. As might be expected, the foster parents became attached to the child; as the years passed by this attachment grew and was reciprocated by the infant. She flourished under their care and is now almost six years of age . The well-qualified witness, Dr. Pechstein, has described her as a “healthy, normal, well-adjusted child”. There came a time when the foster parents proposed adoption, first to the case worker who disapproved, then to the grandmother, and finally to the mother herself, who temporized and declined to give any definite answer which is regarded as a refusal. The Agency did not like the emotional development as it was their policy to keep the care children in a neutral environment'— where there could be no “ pull on the child between her loyalty to her foster parents and her mother”. To this policy the Agency required the foster parents, as a condition of continued custody, to .sign a paper declaring that they understood that Laura could “ remain only with the status of a foster child”. However, this failed of its intended purpose. The foster parents continued to hope for an adoption while the Agency considered this was impossible under the circumstances, demanded the return of the child and, when refused, commenced this proceeding. At the hearing the Agency freely conceded that the foster , parents were well qualified in every respect, had taken good care of the child and were providing her an excellent ‘ ‘ home environment” but, even so, that their love and affection for the child had created a situation which would make it difficult for Laura to return to her mother if and when, at some unknown time in the future, if ever, the mother would be in a position to care for her. The mother did not appear at the hearing and so far as it appears she is in no position to care for the child at this time or in the near future — or for that matter is there anything in the record to indicate a maternal interest in the child. Concededly, the Agency intends to replace the child in a neutral environment not presently designated. The Agency, as we have said, asserts that the foster parents were quite unfair in yielding their love to the compulsive attraction of the infant’s helplessness at the same time conceding that the child is in a good home environment. There is impartial, disinterested and informed testimony that the child’s best interest will be promoted by not disturbing the placement at this time. In the words of Dr. Pechstein ‘ ‘ This child is at a critical period. * * * This is by far the worst time to consider changing the placement * # * if this child is moved now * * * She will be uprooted from * * * the only ones she has known as parents * * * from her home in Levittown, where she has made friends and is about to start in kindergarten with children that she knows. She will be taken out of an environment which has made her the healthy, normal, well-adjusted child that she is. That is going to open up the possibility of all kinds of maladjustments. * * * I can’t see where they [the Agency] get this notion of placing a child in a neutral environment, without love and without hate, possibly, without this, without that. It is as though you are taking the child and placing it in a bare environment with nothing but food. * * * Where a child has been by necessity placed in such an environment, where they are just handed the bare necessities of life * * * food, shelter, clothing; * * * these children have not grown. * * # In my experience [on placement] we have sought homes where they can get this type of love, where there is care and attention and concern which might duplicate that of a parent * * *. A child learns to react to others by reacting to the emotions * * * of liking and disliking, of love and hate. This is normal. * * * If you take a child and deprive bim of that, you are depriving the child of the essentials of life. * * * Here these people are taking the child; the agency is taking the child away from these people, and they treat this child as their own, offering the child the best that the child could get. I really don’t understand why the agency feels this way. * * * I think these people would make better parents since they have raised the child this far and they have made an attachment to the child and the child has made an attachment to them. * * * I think the child will make a better adjustment to the change to the mother later on, whether it is a year or five years from now, if she is left exactly where she is.”

When this uncontradicted testimony is analyzed in the light of surrounding circumstances, it seems convincingly clear that the child’s best welfare is to be served by continuing the placement with these appellants. In so ruling, we are not unmindful of the mother. Under the applicable statutory scheme of child care and placement, the natural parents have first consideration, but even this right must be tested in light of what is best for the child. Here there is no evidence justifying return of custody to the natural mother. She does not ask it and she is in no position to assume the care and education at this time or in a reasonably foreseeable future time. All that remains then is to apply the test of what is best for the welfare of the child and, when applied in this instance, it points convincingly to the desirability of leaving the child with the foster parents. The Agency does not disagree with the best interest test, bnt, nonetheless, feels that their policy of neutrality should be accorded precedence. This, as we see it, is not for the child’s best interest but rather for the best interest of the Agency, a specious result in any event for, even if custody remained with the appellant, the Agency may continue supervision and visitation.

The courts of New York have repeatedly taken their stand on the side of the child (Finlay v. Finlay, 240 N. Y. 429; People ex rel. Herzog v. Morgan, 287 N. Y. 317). Quite recently this court reiterated its stand that the welfare of the minor infant was paramount (Matter of Bock [Breitung], supra). The Supreme Court has the power and the duty to promote and protect the best interest of the State’s infant wards. The failure of the Supreme Court to exercise its inherent powers in this habeas corpus proceeding in accordance with the evidence was tantamount to an abuse of discretion.

The order should be reversed.

Froessel, J. (dissenting).

I concur with Judge Dye for reversal. We are not here concerned with the respective rights of the Sanders, the Child Care Agency, or the mother, for it is undisputed that the Sanders have no rights as against either of the latter. The mother may have her child, Laura, whenever she wishes, subject to the provisions of section 383 of the Social Welfare Law. Our only concern is Laura’s best interests in the meantime. The problem presented rightly troubled the learned Justice at Special Term, and the Appellate Division was sharply divided.

Laura was born on June 3, 1953. Her mothqr delivered her to the Department of Welfare of New York City, who thereupon turned her over to the Agency. On July 30, 1954 the Agency gave the child to the Sanders for boarding care, at which time she was not quite 14 months old. Seymour Sanders at the time of the hearing was 30 years old, his wife 28, and they are childless.

Laura’s mother visited her but once a year for the first two years. Small wonder then that the Sanders thought she had little interest in Laura, and, therefore, inquired about adopting her, despite the fact that they had been told by the Agency that Laura could not he adopted. Its order having been disobeyed, the Agency sought to place the child in another home. The Sanders were told they u were too attached to the child ”; they “ loved her too much ”. For that entirely normal human reaction of the average person to the love of a child, Laura is to be transferred to strangers in the sixth year of her life.

The Agency took the position, at the hearing, that it could not function properly if a “ foster family was in position to question our judgment, even if our judgment, if you weigh it, might turn out to be wrong Perhaps they are right (Social Welfare Law, § 383), but certainly the courts have the power, as Judge Dye has pointed out, to determine what is in the best interests of the child, our paramount concern.

In 1954 Laura was boarded on a temporary basis. More than four years later, we do not have the slightest indication as to when, if ever, the mother will want her child. If Laura is to be bandied about meanwhile from family to family until she is transferred to her mother, each such change will be extremely difficult for the child, as testified to without contradiction by the psychiatrist at the hearing. Why multiply the shocks? And if the mother never chooses to take Laura, and that does not appear to be unlikely from the record before us, the child could not find a better home than she now enjoys.

I am of the opinion that the Agency, however well motivated, has committed grave error here, contrary to the best interests of the child; that the courts below were in no small measure erroneously influenced by the so-called rights of the Agency, rather than by the welfare of the child, and that there is no substantial evidence to support their determinations. Accordingly, I would reverse the orders below, and dismiss the petition.

Judges Desmond, Ftjld and Burke concur with Chief Judge Conway ; Judge Dye dissents in an opinion in which Judge Van Voorhis concurs and in which Judge Frobssel concurs in a separate opinion.

Order affirmed.  