
    In the Matter of Sanjivini K., a Child Alleged to be Neglected. Rockland County Department of Social Services, Appellant; Usha K., Respondent.
    Argued November 22, 1976;
    decided December 20, 1976
    
      Diana W. Rivet, County Attorney (John B. Franklin of counsel), for appellant.
    
      Louis J. Artale, Law Guardian, and Ivan Blecher for infant.
    
      Alan M. Simon for respondent.
   Memorandum. The order of the Appellate Division should be reversed and the order of Family Court reinstated. Because of the pendency of two related proceedings there are some procedural complexities to be sorted oiit. What is paramount, however, is the proper resolution of the interests of a young girl, her natural mother and her foster parents.

The proceeding now before us was instituted by the Rock-land County Department of Social Services under section 392 of the Social Services Law for a periodic Family Court review of the foster care placement of this child. Family Court found that the best interests of the child required that her permanent status be ascertained as soon as possible; to that end, pursuant to the provisions of section 392 (subd 7, par [c]), the court directed the prompt institution of a proceeding to legally free her for adoption. We agree with both the objective and the procedural disposition of Family Court. Because of the restricted focus of the foster care review proceeding, the limitation of findings by Family Court to those appropriate to the review of the foster care status of the child, and the insufficiency of the record in general, the present foster care review proceeding is not the appropriate judicial vehicle in which to determine the permanent status of the child. For this reason we reverse the disposition at the Appellate Division.

There is pending, however, another proceeding. Pursuant to the direction of Family Court and pending the appeal to the Appellate Division in the present foster care review proceeding, a second, independent proceeding was instituted under part 1 of article 6 of the Family Court Act which resulted on March 4, 1976 in an adjudication that the child was a permanently neglected child. That proceeding is now on appeal to the Appellate Division. The interests of the child, her natural mother and her foster parents will best be served by resolving the status of the child and the rights and obligations of the parties in that permanent neglect proceeding in conformity with the standards we have enunciated (Matter of Bennett v Jeffreys, 40 NY2d 543). Accordingly, we do not now reach or express any view with respect to the issues which will ultimately be resolved in the permanent neglect proceeding, and our reversal of the disposition at the Appellate Division in the present proceeding should in no way be taken as indicating whether the child should remain with her foster parents or be returned to her mother.

We are prompted, however, in the circumstances disclosed in the record now before us to urge that all proceedings concerning the child be conducted to their final conclusions with dispatch, in the best interests of the child. To accomplish that result both the Family Court, because of its wide original jurisdiction, and the Appellate Division, given its broad power of review over facts and its equally extensive power to exercise discretion, may choose to initiate, consolidate, or review all proceedings heretofore initiated and any which may hereafter be brought. The subject of all these proceedings is a young child, and ingenuity and energy should be brought to bear, within the limits of due process of law and the applicable statutes, promptly to make appropriate provision for her welfare. It is not mere rhetoric to say that a child in need or distress is a ward of the State which exercises its powers parens patriae through the judicial branch.

In any event the order of the Appellate Division in this proceeding should not be affirmed, in view of its reliance on a result and ratio decidendi recently overturned by this court in Matter of Bennett v Jeffreys (40 NY2d 543, supra).

Cooke, J.

(concurring). While I agree with the dissent’s view that the instant proceeding under section 392 of the Social Services Law is appropriate for the resolution of the issues, I concur with the majority to the extent that the order of the Appellate Division should be reversed and that the order of the Family Court be reinstated. Such a reversal is required because of the Appellate Division’s emphasis on the interests of the natural mother rather than on the best interests of the child.

Gabrielli, J.

(dissenting). I dissent and vote to affirm, for all the well-documented reasons stated by the Appellate Division.

First, I do not agree with the majority that the present proceeding, instituted pursuant to section 392 of the Social Services Law, is not the "appropriate judicial vehicle in which to determine the permanent status of the child.” Unmentioned are the detailed findings of the Appellate Division founded upon a substantial record; and the result of a reversal here is to embrace the "objective” of the Family Court whose findings are disturbingly meager and woefully inadequate. As will be noted, that result will have effectively predetermined the outcome of the proceeding and foreclosed any real hope the natural mother may have had in regaining the custody of her child.

Section 392 of the Social Services Law authorizes the Family Court to periodically review the foster care status of, inter alia, a child whose custody has been transferred temporarily to an agency by a parent pursuant to section 384-a of the Social Services Law, and provides for the following alternative dispositions:

"7. At the conclusion of * * * [a] hearing, the court shall, upon the proof adduced, in accordance with the best interest of the child, enter an order of disposition:

"(a) directing that foster care of the child be continued; or "(b) in the case of a child who has been committed temporarily to the care of an authorized agency by a parent, guardian or relative, directing that the child be returned to such parent, guardian or relative; or

"(c) in the case of a child who has been committed temporarily to the care of an authorized agency by a parent, guardian or relative, directing that the agency institute a proceeding to legally free such child for adoption, and upon a failure by such agency to institute such a proceeding within thirty days after entry of such order, permitting the foster parent or parents in whose home the child resides to institute such a proceeding; or

"(d) in the case of a child whose guardianship and custody have been committed to an authorized agency by an order of a surrogate or judge of the family court or by a surrender instrument or who has been judicially declared to be a permanently neglected child, directing that such child be placed for adoption in the foster family home where he resides or has resided or with any other person or persons.”

While section 392 provides that temporary foster care may be prolonged, an order may be made pursuant to paragraph (b) of subdivision 7 for a permanent disposition of custody by directing that the child be returned to a natural parent who temporarily entrusted the care of the child to an authorized agency, or by ordering that the necessary proceeding be instituted to free the child for adoption. Finally, in the event that such a proceeding has already terminated in a determination of permanent neglect, the child may be placed for adoption. Plainly, section 392 is an appropriate proceeding to resolve the essential issue in this case, whether the child should be returned to the natural mother or remain with foster parents either temporarily, or permanently as an adopted child. Only following a determination that the child should not be returned to the natural mother, should a permanent neglect proceeding be commenced. And, as indicated below, in the context of a permanent neglect proceeding pursuant to article 6 of the Family Court Act, even if neglect cannot be established, the result would be a continuation of temporary foster care, prolonging the "parental limbo” this child has been living in for most of her life.

To the extent the majority memorandum rejects the conclusion of the Appellate Division that the child should be returned to her natural mother, I am in complete disagreement. The Appellate Divison determination is based on detailed findings gleaned from a substantial record including, inter alia, the entire file of the Department of Social Services in the case containing the case history of the mother and child. It is well to here emphasize that the Appellate Divison applied the correct standard of review, the best interests of the child, mandated by section 392 of the Social Services Law and articulated by our holding in Matter of Bennett v Jeffreys (40 NY2d 543) which did not involve a statutorily authorized proceeding to review foster care status.

Both the Family Court and the Appellate Division found that a prior neglect proceeding terminated in an adjudication that the child was a neglected child solely to avoid her deportation when the natural mother’s student visa expired and immigration authorities were about to deport both the child and the mother. In that proceeding it was expressly stated that "the court has [made] no finding concerning any acts of the mother that might have constituted a neglect.” Indeed, it is conceded by all parties that the prior neglect proceeding was merely a sham to avoid the child’s deportation. It is undisputed that throughout the period the child was in foster homes the natural mother successfully struggled to finance and complete her studies so that she could provide a proper home for herself and her child while at the same time pursuing various legal means to legitimatize her status in this Country and avoid deportation to India where she had no immediate family remaining. Indeed, the only reason the child was temporarily surrendered to the Department of Social Services was to provide her with foster care while the mother completed her education in order to obtain employment and provide an adequate home for her child. At the present time, according to a representative of the Department of Social Services, the mother is employed and lives in a "nicely furnished” apartment "in a nice neighborhood and in a nice area.” She has anticipated the return of her child by purchasing needed furniture, contacting a public school and arranging for the child to be transported home from school and for after-school day care. The Appellate Divison concluded that the mother had not abandoned the child and is not an unfit mother but "[t]o the contrary, under the most trying circumstances, [the mother] manifested qualities of courage, industry, persistence and intelligence”. In light of these findings I can find no fault with the Appellate Division’s conclusion that the "best interests of the child” warrant her return to a natural mother who has demonstrated such admirable qualities in the face of tremendous hardship. Additionally, I would note that upon oral argument, it was conceded that the foster mother and father who seek to adopt this child are 58 and 60 years of age, respectively.

The majority states that "[t]he interests of the child, her natural mother and her foster parents will best be served by resolving the status of the child and the rights and obligations of the parties” in the permanent neglect proceeding. As indicated, a permanent neglect proceeding is based on the premise that the natural mother should not obtain custody of her child. Section 631 of the Family Court Act provides for the only three alternatives available in a permanent neglect proceeding:

"At the conclusion of a dispositional hearing on a petition permanently to terminate custody, the court shall enter an order of disposition:

"(a) dismissing the petition in accord with section six hundred thirty-two; or

"(b) suspending judgment in accord with section six hundred thirty-three; or

"(c) permanently terminating custody of the parent or other person responsible for the care of the child and awarding custody in accord with section six hundred thirty-four.

"An order of disposition shall be made, pursuant to this section, solely on the basis of the best interests of the child, and there shall be no presumption that such interests will be promoted by any particular disposition.”

In sum, pursuant to section 632, the Family Court may dismiss the petition but this determination merely continues the child in her present limbo status. The same effective result is obtained under section 633 which permits the court to suspend judgment for a one-year period (renewable for an additional year upon a showing of exceptional circumstances); and, finally, under section 634 the court can permanently terminate the right of the natural parent and either temporarily or permanently award custody of the child to the Department of Social Services or the foster parents. Of consuming significance, it must be borne in mind that a permanent neglect proceeding, therefore, cannot resolve the basic question whether the child should be returned to her natural mother; rather, that issue is predetermined adversely to the natural mother upon the commencement of the neglect proceeding because no alternative is available under article 6 of the Family Court Act to return the child to her mother immediately. Either the child is entrusted to the care of the agency or the foster parents or she remains in the limbo status of temporary foster care. The necessity for a permanent neglect proceeding disappears in light of the finding by the Appellate Division, based on a complete record and detailed case history, that the mother did not neglect her child but maintained close contact throughout the years of her determined and lonely struggle to obtain an education in a strange country.

While Matter of Bennett v Jeffreys (40 NY2d 543, supra), is, strictly speaking, not controlling here because it did not involve a child temporarily placed with the Department of Social Services pursuant to statute, that case bears a close resemblance to the instant case in that there was a lengthy period during which the natural mother was not permitted to have custody of her child. Significantly, the Appellate Division, as I have noted, followed the precise guidelines articulated in Matter of Bennett v Jeffreys (supra) in deciding that the best interests of the child favored her return to the natural mother.

The reversal by this court effectively destroys any opportunity for the natural mother to obtain custody of her child; and such a holding by this court ignores the amply supported conclusions of the Appellate Division that the natural mother has not been neglectful of her daughter.

Chief Judge Breitel and Judges Jasen, Jones and Fuchs-berg concur; Judge Cooke concurs in result in a separate opinion; Judge Gabrielli dissents and votes to affirm in another opinion in which Judge Wachtler concurs.

Order reversed, without costs, and the order of the Family Court, Rockland County, reinstated in a memorandum.  