
    In the Matter of the Commitment of Star A. and Another, Dependent Children. Talbot Perkins Children’s Services, Appellant; Sarah A. R., Respondent.
    Argued March 22, 1982;
    decided May 13, 1982
    
      POINTS OF COUNSEL
    
      Terry Milburn for appellant.
    I. Where the court found that respondent failed to plan, a finding that parental rights should be terminated is not precluded because the agency ceased its futile efforts to encourage the parental relationship when thwarted by respondent’s own conduct. (Matter of Orlando F., 40 NY2d 103.) II. Reasonable attempts to encourage a meaningful relationship between a parent and child satisfy the “diligent efforts” requirement within the meaning of the statute. (Matter of Ray A. M., 37 NY2d 619; Matter of Shantal M. K., 68 AD2d 482; Matter of Orlando F., 40 NY2d 103; Matter of Joyce A. R., 52 AD2d 882; Matter of Ikem B., 73 AD2d 359.)
    
      Yvonne Lawrence for respondent.
    Where the Family Court held that respondent mother failed to plan for the future of her children, the court was justified in refusing to terminate parental rights in view of the fact the agency had not made diligent efforts to encourage the parental relationship. (Matter of Thomas TT, 67 AD2d 788; Matter of Orlando F., 40 NY2d 103; Matter of Anita "PP", 65 AD2d 18; Matter of Suzanne N. Y., 102 Misc 2d 215; Stanley v Illinois, 405 US 645; Matter of Sanjivini K., 47 NY2d 374; Matter of Mark “GG”, 69 AD2d 311.)
    
      Lenore Gittis, Law Guardian {Robin L. Faine and Wendy Sue Lauring of counsel), on behalf of Star A. and another, respondent.
    Where respondent’s family participated in her care, and efforts to help her with her mental health problems were made by outside agencies, the Family Court’s determination that appellant’s own efforts in this area were required to satisfy its obligation of due diligence, and the court’s failure to accord proper weight to appellant’s substantial efforts to foster the parental relationship, constituted an abuse of discretion as a matter of law. Further, no reasonable view of the evidence can support the court’s dismissal of the petitions on the grounds that appellant failed to fulfill its statutory obligation. (Matter of Orlando F., 40 NY2d 103; Matter of Ray A. M., 37 NY2d 619; Matter of Karas, 59 AD2d 1022; Matter of Joyce A. R., 52 AD2d 882; Matter of Sydney, 84 Misc 2d 932; Matter of Orzo, 84 Misc 2d 482; Matter of Hime Y., 52 NY2d 242; Matter of Anita “PP”, 65 AD2d 18; Matter of Amos HH, 59 AD2d 795.)
   OPINION OF THE COURT

Per Curiam.

In this proceeding to permanently terminate the parental rights of a natural mother to her two infant children, the principal issue before the court is whether the petitioner agency has met its statutory duty to undertake diligent efforts to strengthen the parental relationship before moving to terminate it on the ground of permanent neglect.

Subdivision 7 of section 384-b of the Social Services Law provides that a parent’s rights to the custody of his or her child may be terminated upon a judicial determination that the child is permanently neglected. A child may be found permanently neglected within the meaning of the section if it is shown that the parent “failed for a period of more than one year following the date the child came into the care of an authorized agency ‘substantially and continuously or repeatedly to maintain contact with or 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’” (Matter of Hime Y., 54 NY2d 282, 284-285, citing Social Services Law, § 384-b, subd 7, par [a]). The duty imposed upon the agency to make diligent efforts to foster the parental relationship “reflects a cultural judgment that society should not terminate the parent-child relationship unless it has first attempted to strengthen it” (Matter of Leon RR, 48 NY2d 117, 126). The statute defines “diligent efforts” as including but not limited to consultation and cooperation with the parent or parents in developing a plan for the child as well as providing services to the parents so that problems preventing the discharge of the child from care may be resolved or ameliorated (Social Services Law, § 384-b, subd 7, par [f], els [1], [3]).

In November, 1972, respondent was found wandering the streets of New York City with her two infant children. Respondent was required to be hospitalized and, presumably because of this circumstance, the Bureau of Child Welfare assumed care of the children. Eventually, the children came into the care of Talbot Perkins Children’s Services, the petitioner agency. Between December 11, 1974, when a neglect petition had been accepted, and March, 1977, some attempts to work with the respondent to develop a plan for the children were made by petitioner. During the time the children were placed with the agency, it was aware that respondent was suffering from some degree of mental illness. The record indicates that respondent was briefly hospitalized in 1975 at the South Beach Psychiatric Center and was then referred to a therapist in New York City. Her course of treatment apparently ended during this period when she moved to her father’s residence in New Jersey.

Throughout the period during which the agency was charged with strengthening the parental relationship, social workers attempted to keep informed of some of the psychiatric care which respondent was receiving from independent sources, but the record shows that the agency apparently did little to channel her toward appropriate psychiatric care when she strayed from her treatments. Additionally, the agency had little or nothing to do with the treatment she received during this period. At one point a psychiatrist for the agency did interview respondent, but the record indicates that this was nothing more than a diagnostic interview and did little, if anything, to help respondent to overcome her mental disorders.

In view of the agency’s failure to take steps to channel respondent toward appropriate treatment, Family Court concluded that the agency had failed in its obligation to make diligent efforts to strengthen the parental relationship. Thus, although Family Court also concluded that respondent had failed to plan for the future of her children, the court nevertheless dismissed the petition to terminate her custody and guardianship rights because of the agency’s “‘neglect in fulfilling its express statutory duty’ ” (Social Services Law, § 384-b, subd 7). The Appellate Division then affirmed the order of Family Court (83 AD2d 529).

Preliminarily, we note our belief that the statutory language requiring diligent efforts to strengthen the parental relationship before moving to terminate it may encompass, under appropriate circumstances, a duty on the part of the agency to direct the natural parent toward psychiatric treatment designed to remedy the obstacles barring family reunification. Whether this duty is activated under the circumstances and whether it is fulfilled are largely questions of fact. Significantly, in the present case we are confronted with affirmed factual findings that the respondent was suffering from certain psychiatric disorders and that the agency failed in its obligation to direct respondent toward appropriate treatment.

The agency now maintains, however, that its failure to make diligent efforts to secure appropriate psychiatric care for respondent should not mandate the dismissal of the termination petitions, because any efforts the agency might have made would, in the agency’s opinion, have been futile. In support of this argument, the agency notes that respondent exhibited uncooperative behavior while at the South Beach Psychiatric Center, that before seeing the agency’s psychiatrist she canceled two appointments and failed to keep another, and that she became traumatized during one of her numerous contacts with the agency’s social workers.

We agree with the conclusion of Family Court that the agency could not, in this instance, simply predetermine that any further efforts on its part to ensure that respondent received appropriate treatment would have been futile. As that court noted, the agency’s “ ‘neglect in fulfilling its express statutory duty cannot be excused or justified because it would have been difficult or burdensome for it to undertake [diligent] efforts due to [respondent’s] predicaments’ ” (citing Matter of Anita “PP”, 65 AD2d 18, 22). The agency’s argument is particularly unconvincing in this instance, where it is conceivable that respondent’s resistance to psychiatric treatment, as claimed by petitioner, could stem in part from her existing psychiatric problems. Since we sit in this case to pass upon questions of law alone, in order to reverse and uphold the termination petition upon petitioner’s argument we would be required to conclude that the agency had made “diligent efforts” as a matter of law. We cannot reach such a conclusion of law on the record in this case.

Similarly, we find the Law Guardian’s additional arguments to be without merit. The Law Guardian maintains, primarily, that further efforts by the agency to secure psychiatric care for respondent should be excused as unnecessary because these services were already being provided to respondent by some independent sources. Of course, an agency should not be required to secure services for a parent which are merely duplicative of those already being received. In this instance, however, we are presented with no acceptable evidence or factual finding that the agency’s efforts would have been duplicative. In fact, the record itself provides scant details of the psychiatric care which respondent actually received, and we cannot conclude as a matter of law that respondent received psychiatric care appropriate for the goal of family reunification.

Accordingly, in the face of an affirmed finding of fact that the agency failed to undertake diligent efforts to strengthen and encourage the parental relationship, we conclude that the order of the Appellate Division should be affirmed, with costs.

Meyer, J.

(dissenting). In my view the Legislature intended that equal dignity be accorded the right of a parent to raise her own child and the right of the child in its own best interests to a positive family relationship. Because the majority and the courts below apply a “diligent efforts” standard inconsistent with that intent and more stringent than the Legislature enacted, the affirmed finding of fact upon which the majority relies does not proscribe review by us, and on analysis of the record I conclude that there should be a reversal. I, therefore, respectfully dissent.

The legislative intent is explicitly stated in subdivision 1 of section 384-b of the Social Services Law. Paragraph (a) of that subdivision makes findings of the desirability of children growing up with a normal family in a permanent home, of the child remaining with his or her natural parent and the parent’s right to bring up their own children unless the best interests of the child would be endangered by their doing so, that the State’s first obligation is to help the family remain together or reunite, but that when the natural parent cannot or will not provide a normal family home for the child and continued foster care is not appropriate, a permanent alternative home for the child must be sought.

Paragraph (b) of the subdivision speaks to the adverse effects of long continued foster care and of the necessity for not only assuring parental rights but also for terminating them when necessary, in the following language:

“The legislature further finds that many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens. The legislature further finds that provision of a timely procedure for the termination, in appropriate cases, of the rights of the natural parents could reduce such unnecessary stays.

“It is the intent of the legislature in enacting this section to provide procedures not only assuring that the rights of the natural parent are protected, but also, where positive, nurturing parent-child relationships no longer exist, furthering the best interests, needs, and rights of the child by terminating parental rights and freeing the child for adoption.”

It is against that background that we must construe paragraph (f) of subdivision 7 of the section which defines “diligent efforts” to mean “reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child” (emphasis supplied). Thus, though clauses (1) and (3) of paragraph (f) make clear that “diligent efforts” include planning for appropriate services to the child and his family and the provision of services and assistance to the parents in order to resolve or ameliorate the problems preventing discharge of the child from foster care, the agency complies with the “diligent efforts” standard if it makes reasonable attempts to provide the necessary services.

The Appellate Division majority wrote no opinion, contenting itself with affirmance on the opinion of the Family Court Judge. The Family Court Judge took no note of the words “reasonable attempts” in paragraph (f). She did note that the case record contained an October, 1973 psychiatric evaluation of borderline character disorder and psychotic symptomatology with the recommendation that respondent attend an after-care clinic before the children were returned to her, that the agency in May, 1974 reported its goal for respondent was for her to receive psychiatric treatment until she could care fqr the children and in March, 1975 indicated that it would encourage her to get treatment. She nevertheless concluded that diligent effort had not been made because she found the record “devoid of evidence that the agency made any efforts to obtain appropriate treatment for respondent” and “does not indicate when, if ever, the agency had any discussion with respondent regarding her need for psychiatric treatment.”

Yet the record shows that after the June 17, 1975 reunion with her children, respondent met with the Director of Foster Care and the social worker, who recommended that she be evaluated by the agency’s psychiatric consultant and that respondent agreed with that recommendation and accepted an appointment for July 18, that despite the fact that a letter was sent on July 14 reminding respondent of the appointment, she failed to keep it, that she was told on October 17 that another reunion would not be scheduled until she had seen the doctor and agreed to another appointment on October 23, but on that date called the doctor and canceled the appointment. On December 18, 1975 respondent wrote the agency doctor and social worker advising that she had been in a New Jersey psychiatric hospital and asking that a new appointment be made for her with the agency doctor, yet when an appointment was scheduled for March 19, 1976, she canceled it and requested one for May or June. On April 15 the Director of Foster Care wrote respondent expressing concern that a permanent plan had not yet been made, that she had missed the 1975 and 1976 appointments with the agency doctor which were necessary “[to] help you to make the most appropriate plan for your children” and stressing how “extremely important” it was that she see the doctor on the new appointment date arranged, May 11. The psychiatric evaluation which occurred on May 11 resulted in a diagnosis of schizophrenia and the conclusion that it would be “very risky to have her youngest children return to her.” In October, 1976, the agency requested approval of the Bureau of Child Welfare to begin a termination proceeding. Approval was granted on March 4, 1977, but for reasons which do not appear from the record the fact-finding hearing was not held until June 12, 1979 and decision was not rendered until March 20, 1980.

At various times during the above chronology respondent was in South Beach Psychiatric Center, Ancora Hospital and Staten Island State Hospital and upon discharge was referred by the hospital for outpatient consultation. Prior thereto, in 1974, she had been in Kings Park State Hospital and at Elmhurst Hospital, all in relation to her mental condition. Hospitalized again in South Beach on August 15,1977, where she was responding to medication, respondent in late September left on a hospital pass and never returned. The agency worker either wrote to or spoke with the personnel of the various hospitals in an effort to follow-up.

While the problem is, in good part, a result of a legislative standard which requires “diligent efforts” but defines those efforts in terms of “reasonable attempts,” I conclude with the dissenting Justices below that “diligent” and “reasonable” do not mean relentless. While respondent was being hospitalized for her mental problems the many times she was during the period in question and offered outpatient follow-up by them, the agency would have acted unreasonably had it sought to impose upon respondent a separate, different and possibly confusing regimen of consultation. That it did bring to respondent’s attention the necessity for treatment even to the extent of withholding visitation with the children and through correspondence, only to have respondent by one device or another delay for two years conference with the agency psychiatrist, is detailed above. To hold that what was done was not “diligent efforts” is to ignore the words “reasonable attempts” in the statutory definition, to impose upon such agencies an impossible burden not intended by the Legislature, and to do so to the detriment of the children in foster care.

Stanley U. A. was born July 20, 1971 and Star A. on July 6,1972. They have been in foster care since November 2, 1972, and under appellant’s oversight since September 25, 1973. As the Supreme Court noted in Smith v Organization of Foster Families (431 US 816, 836, 837), “many children, particularly those that enter foster care at a very early age and have little or no contact with their natural parents during extended stays in foster care, often develop deep emotional ties with their foster parents” and experience “ ‘high rates of psychiatric disturbance.’ ” During the four years from 1973 through 1977, respondent visited the children but nine times, canceling other visits on nine other occasions despite earlier confirmation. While expressing her unwillingness to free the children for adoption, respondent has several times suggested that they remain in foster care until they complete college, or otherwise indicated her indifference to them, an indifference which is emphasized by the Family Court Judge’s notation that “Respondent did not testify” and “failed to keep the appointments scheduled” for the psychiatric examination ordered by the court.

As we noted in Matter of Orlando F. (40 NY2d 103, 111): “When the natural parent fails to accept the parental role, even though the result of shortcomings for which he or she may not be fully responsible, the ‘best interests’ of the child, the pivotal consideration underlying all of these proceedings, dictates that the right to custody be terminated.” Surrogate Midonick put it even more strongly in Matter of Tyease “J” (83 Misc 2d 1044, 1048), a decision of which the Legislature was presumably aware when it enacted section 384-b and its definition of diligent efforts: “These infants of tender years have rights as human beings, rights of equal stature to those of their parents, rights that are emerging as of constitutional dimension, rights to a permanent home so fundamental as to negate any parent’s veto of adoption, statutory or otherwise, if the circumstances provide a factual showing strong enough.”

An incorrect standard having been applied by the courts below, there should be a reversal and the matter should be remanded to the Family Court for a dispositional hearing.

Chief Judge Cooke and Judges Gabrielli, Jones and Wachtler concur in Per Curiam opinion; Judge Meyer dissents and votes to reverse in a separate opinion in which Judges Jasen and Fuchsberg concur.

Order affirmed, with costs. 
      
      . The only issues of merit before the Family Court were whether respondent had failed to plan for the future of her children and whether the agency had undertaken diligent efforts to strengthen and encourage the parental relationship. It is not disputed that the mother, during the children’s placement, had maintained contact with the agency and the children through visits, consistent correspondence and telephone calls.
     
      
      . Contrary to the view expressed in the dissenting opinion, we do not today apply a test which is inconsistent with the legislative standard for the termination of parental rights. It is clear that the term “diligent efforts” is defined by statute as requiring reasonable attempts to develop and encourage a meaningful relationship between parent and child and making provision for services and other assistance to the parent so that problems preventing discharge of the child from care may be resolved (Social Services Law, § 384-b, subd 7, pars [a], [f]). Where we are presented with an affirmed finding of fact that the legislative standard was not met, it is beyond the power of this court to make new factual findings to support a result contrary to the determinations below.
     
      
      . The Family Court Judge seized upon the caseworker’s testimony that because respondent would not take her medication and walked out of the hospitals in which she was being treated, efforts to refer her would have been “futile”. But the issue is not the word used by the caseworker or, as the majority in this court put it, “diligent efforts” as a matter of law, but whether the agency had made “reasonable attempts”, which is all that the statute requires.
     
      
      . She was finally examined by a court psychiatrist before the hearing began but only to ascertain her competence to participate in the trial. During that examination she conceded that she had refused to appear for previously scheduled appointments for psychiatric examination.
     