John L. Rizzo, County Attorney (
Paula A. Campbell of counsel), for petitioner.
Deborah A. Hagen for respondent.
Catherine M. Monachino, Law Guardian.
safely to his or her home shall not be required where the court determines * * * (6) the parental rights of the parent to a sibling of such child have been involuntarily terminated * * *" (emphasis added). The issue presented is whether respondent's admission that she violated the suspended judgment relating to her other children transforms that proceeding into a "voluntary" termination so as to preclude its use as a prerequisite for this application. She correctly points out respondent gave up her right to a fact-finding hearing as to the violation of the suspended judgment and, even further, her right to appeal the determination of the trial court. It is also without question that she did so knowing that such action would likely result in a permanent termination of her parental rights to those children. Respondent argues that the act of an admission, knowing the result of that admission, makes the result voluntary. Respondent cites Matter of Jasbin H. (184 Misc 2d 23 [Fam Ct, Oneida County 2000]) in support of that position. This court respectfully declines to follow such logic. Family Court Act § 1039-b was enacted in 1999 (L 1999, ch 7, § 43) as part of the Adoption and Safe Families Act (ASFA). That legislation was enacted as New York's effort to comply with federal legislation (42 USC § 671) which mandated the states adopt legislation implementing directives affecting children in foster care settings in order to remain eligible for federal funds under title IV-E of the Social Security Act. The language of Family Court Act § 1039-b (b) is taken directly from the federal statute 42 USC § 671 (a) (15) (D) (iii). The congressional findings issued in support and explanation of that legislation state, in part:
"The Adoption and Safe Families Act * * * promotes stability and permanence for abused and neglected children by requiring timely decision making in proceedings to determine whether children can safely return to their families or whether they should be moved into safe and stable adoptive homes or other permanent family arrangements outside the foster care system." (Pub L 106-314, 114 US Stat 1266.)
Black's Law Dictionary defines an involuntary act as that which is performed with constraint or with repugnance or without the will to do it (4th ed 1968). The courts have never imposed such a strict standard in determining a plea or stipulation was voluntary. Courts have accepted and found binding a plea of guilty even though the defendant was steadfastly
Indeed, modifications to section 384-b (1) of the Social Services Law mandate the filing of termination of parental rights proceedings within three months of the minimum time period necessary to establish a statutory basis to terminate parents' rights.
An interpretation of section 1039-b (b) that allows a respondent to control and delay the "timely decision making" that lies at the heart of the ASFA legislation, and to then avoid its consequences by consenting to the inevitable, is inconsistent with the stated purpose of that legislation. The concluding language of section 1039-b (b) provides the court may order reasonable efforts on the part of the Department of Social Services if it finds that certain mitigating factors exist. This language allows the court a level of discretion to avoid an inappropriately harsh result. Such a determination raises an issue of fact that must be determined after a hearing. Social Services Law § 384-b (7) (a) mandates that an authorized agency use diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child. To be relieved of that statutory obligation, the authorized agency bears the burden of showing why such efforts should not be required. However, here the State Legislature has determined that if certain enumerated circumstances exist, reasonable efforts to return a child to his or her home are not required (Family Ct Act § 1039-b [a]). Once the existence of one or more of the enumerated circumstances are established, by clear and convincing evidence, the burden of coming forward with evidence that reasonable efforts are nonetheless warranted falls to the respondent. This shift of obligation is supported by the concluding language of section 1039-b (b). The findings the court must make to require reasonable efforts are phrased in the language the parent would be attempting to prove.
While the parties stipulated to the court's consideration of certain records, there is a confusion as to what reports and files. In light of the gravity of the issue presented, the court is constrained to schedule further proceedings to confirm the records to be reviewed and whether any party seeks to submit any further evidence. [1] Social Services Law § 384-b (3) (l) (i) while using the mandatory direction that the authorized agency "shall" file does provide certain exceptions to the mandatory filing that must be determined and documented on a case-by-case basis. [2] Had the Legislature intended to place this burden upon the authorized agency it would seem the court would be called upon to determine that providing reasonable efforts would be contrary to the best interests of the child, contrary to the health and safety of the child and would likely not result in reunification in the foreseeable future.