Matter of Marino S., Jr.

Warren & Warren, P. C., Brooklyn (Ira Eras of counsel), for Angel Guardian Children and Family Services, Inc., petitioner. Gerald Harris, Special Assistant Corporation Counsel of New York City (Julianne Cohn of counsel), for Administration for Children's Services. Benjamin Berlin, New York City, for respondent mother. Robert Rothman, New York City, for respondent father. Legal Aid Society, New York City (Monica Drinane and Brian Lamb of counsel), Law Guardian.

OPINION OF THE COURT

SARA P. SCHECHTER, J. The case at bar, a termination of parental rights case based upon grounds of "severe abuse", presents several issues that require the court to interpret chapter 7 of the Laws of 1999 (hereinafter NY-ASFA or the new Act), which became effective on February 11, 1999: • whether the newly created felony sex offense grounds for termination of parental rights are applicable to a case filed prior to the effective date of the new Act; • whether a derivative finding of "severe abuse" may be made pursuant to Social Services Law § 384-b (8) (a) (i) and (ii) concerning siblings of a severely abused child; • whether a finding of "aggravated circumstances" as defined in section 1012 (j) of the Family Court Act may be made after the filing of a termination of parental rights petition; and • whether diligent efforts may be excused in a termination of parental rights proceeding on the grounds of severe abuse when a finding of "aggravated circumstances" has not previously been made in the proceeding pursuant to which the subject child was placed. The petitions were granted from the Bench for the reasons stated herein. Chapter 7 of the Laws of 1999 was designed to bring New York into conformity with the Federal Adoption and Safe Families Act of 1997 (Pub L 105-89, 111 US Stat 2115, codified as amendments to scattered sections of 42 USC [hereinafter Federal ASFA]), passed by Congress in November of 1997. Federal ASFA required States receiving Federal subsidies for foster care services to enact conforming legislation or forfeit Federal funding. Federal ASFA has two primary purposes: first, to mandate that children's health and safety must always be paramount concerns of the child welfare system, and second, to expedite permanency planning.^[1] The first goal is an attempt to redress perceived excesses in the application of the "reasonable efforts" requirements of the Adoption Assistance and Child Welfare Act of 1980 (Pub L 96-272, 94 US Stat 500, codified as amendments to scattered sections of 42 USC). To reduce the chances of a child's being returned to unrehabilitated abusive or neglectful parents, Federal ASFA has created certain categories of cases in which "reasonable efforts" are not required. To expedite permanency planning, the Federal statute has created a process of court reviews of a child's progress in foster care and specified time frames in which permanency goals must be achieved. Since the sole purpose of chapter 7 of the Laws of 1999 is to comply with Federal ASFA,^[2] the court must attempt to interpret the New York legislation in a manner consistent with the Federal law.

FACTS

Respondents lived together with the children: Shaina, born April 5, 1989; Vivian, born February 8, 1993; and Marino, Jr., born September 25, 1995. Respondent T. is the mother of all three children. Respondent S. is the father of the two younger children. Shaina's biological father is not a person whose She replied that she didn't believe it. The mother was then placed in the same police vehicle with S. to be transported to night court. In the car the respondents kissed, and the mother told S. that she would meet him later at his mother's house. The children have been in nonkinship foster care under the auspices of the Angel Guardian Home continuously since the arrests of the respondents. It is undisputed that the agency has made no efforts to plan with either respondent for the return of the children to their care, except that pursuant to court order the agency did schedule some visits with the children by various members of the extended families of the respondents.

PRIOR LEGAL PROCEEDINGS

child in the foreseeable future." (Family Ct Act § 1039-b [b] [6].)

APPLICATION OF THE NEW ACT TO THE PENDING PROCEEDINGS

Respondents challenge the "retroactive" application of the new legislation to the pending proceedings. They do not contest the amendment of the petitions on procedural grounds, as they received adequate time to answer and prepare for trial on the new causes of action. Rather, they contend that the new statute is "prospective", which they assert to mean, at least, that it cannot be applied to cases where termination of parental rights petitions were filed prior to the passage of NY-ASFA. In addition, they argue that a finding of "aggravated circumstances" in a Family Court Act article 10 proceeding must be made at an earlier stage and that to make such a finding at this point constitutes an improper and unconstitutional application of the new statute. If this interpretation were correct, the causes of action based upon Social Services Law § 384-b (8) (a) (ii), the newly enacted felony sex offense clause, would have to be dismissed and the motion by ACS for a finding of "aggravated circumstances" would have to be denied as untimely. It is clear, however, that those portions of the new legislation implicated in the current proceedings were meant to be applied to all children in foster care as of the effective date of NY-ASFA. New statutes are presumptively prospective. (McKinney's Cons Laws of NY, Book 1, Statutes § 51 [c].) If a new statute is remedial in nature, however, it may be applied retroactively unless such application would impair vested rights. (McKinney's Cons Laws of NY, Book 1, Statutes § 54.) In determining whether a statute should be applied retroactively, the first step is to look at the language of the statute itself. Federal ASFA by its express terms is applicable to all children in foster care on the date of its enactment. Accordingly, to comply with the Federal law, NY-ASFA must also apply to those children. Further, the provision in NY-ASFA that termination of parental rights petitions are to be filed for all children in care for 15 of "the most recent" 22 months (Social Services Law § 384-b [3] [l] [i]) clarifies the new statute's applicability to the subject children. Review of the legislative goal is central to the retroactivity analysis. (Matter of OnBank & Trust Co., 90 NY2d 725 [1997].) Statutes affecting the welfare of children and furthering important public policies are generally given retroactive effect. (See, Matter of Fetherston v Fetherston, 172 AD2d 831 [2d Dept 1991] [Child Support Standards Act]; John R. v Marlene C., 179 Misc 2d 72 [Fam Ct, Kings County 1998] [statute barring visitation to parent convicted of murder of the other parent].) The overriding mandate of Federal ASFA is to clarify that in making "reasonable efforts" to reunify children with their birth families, "the child's health and safety shall be the paramount concern." (Pub L 105-89, 111 US Stat 2115, 2116, § 101 [a], amending 42 USC § 671 [a] [15] [A].) New York has duly incorporated this language into various sections of the Family Court Act and Social Services Law, including Social Services Law § 384-b (1). According to the Assembly memorandum in support of the new Act, however, this new language is consistent with "the existing law in New York that the health and safety of the child were always the paramount concern in providing reasonable efforts to prevent placement and promote reunification. It does not represent a change in law, policy, or emphasis in New York." (Mem of Assembly in Support, 1999 McKinney's Session Law News of NY, at A-20 ["JUSTIFICATION" section].) Viewed in this light, NY-ASFA is merely an attempt to refine the law concerning permanency planning for children in foster care so that New York law more fully and expeditiously accomplishes its preexisting goals. The new statute neither creates new rights nor abrogates preexisting ones, vested or otherwise. Like the Equitable Distribution Law (Domestic Relations Law § 236 [B]), NY-ASFA is designed to "modify and expand remedies already available", and, therefore, may properly be applied even to proceedings filed before the passage of the new legislation. (Valladares v Valladares, 80 AD2d 244, 252 [2d Dept 1981].)^[3] Accordingly, those portions of NY-ASFA relevant to the current proceedings are remedial and retroactive.

FINDINGS OF SEVERE ABUSE

Petitioner has established by clear and convincing evidence that the respondent mother severely abused Shaina, both by knowingly allowing S. to rape Shaina and by her conduct after the rape that endangered Shaina's life. T.'s prior knowledge of S.'s molestation of Shaina was proved by the compelling testimony of the investigating detective and the godmother, coupled with T.'s admission to this court in the outweigh any potential benefit.^[6] Where, as in the present case, a respondent's severe abuse of one child is proximate in time with his or her care of another child and the respondent has been unable to demonstrate any meaningful distinction between the children, the law should protect both children fully and equally. The necessity for such protection is vividly illustrated by the case at bar, where the younger sibling slept in the same bed while the target child was raped. Another practical concern is that without derivative findings of severe abuse, the sibling of a severely abused child would be on a different permanency planning track from the target child. Under the new law, when a court finds pursuant to Family Court Act § 1039-b that "aggravated circumstances" exist (synonymous with "severe abuse") and that reunification efforts are not required, the foster care agency is then required to locate an adoptive home for the child and may be ordered to file a petition to terminate parental rights. (Family Ct Act § 1039-b [b].) If the agency is required to continue to make efforts to reunite the sibling with the respondent, however, termination petitions could not be filed at the same time on the sibling's behalf and he or she probably could not be moved to the adoptive home located for the target child. Since New York child welfare law and policy strongly favor keeping siblings together, the result would be either an undesirable separation of the siblings or reluctance to use section 1039-b to expedite permanency planning for the target child, thus frustrating ASFA's purposes in a substantial number of cases.

DILIGENT EFFORTS

As discussed above, a central feature of Federal ASFA is its clear direction that "reasonable efforts" "shall not be required to be made" in cases where a court has found that the parent subjected the child to "aggravated circumstances" as defined in State law. (Pub L 105-89, 111 US Stat 2115, 2116, § 101 [a], amending 42 USC § 671 [a] [15] [D] [i].) NY-ASFA defines "aggravated circumstances" as "severe or repeated abuse" as defined in Social Services Law § 384-b. Thus, it would appear that "reasonable efforts" or "diligent efforts" would never need to be proved in a termination of parental rights case based years of intensive therapy, which her own expert says has a 70% chance of "moderate" success. Both the length of time required for the respondent mother's rehabilitation and the uncertainty of its success are inconsistent with the children's safety and with the legal mandate for permanency. For these reasons, the parental rights of the respondents were terminated and the child care agency was directed to proceed expeditiously with the children's adoption by the foster parents. [1] See, Gordon, Drifting Through Byzantium: The Promise and Failure of the Adoption and Safe Families Act of 1997, 83 Minn L Rev 637. [2] Mem of Assembly in Support, 1999 McKinney's Session Law News of NY, at A-18 ("PURPOSE OR GENERAL IDEA OF BILL" section). [3] Connecticut has held its new ASFA-conforming legislation to be remedial and has applied newly enacted grounds for termination of parental rights to a case whose facts arose prior to the passage of the new grounds. (In re Sheneal W., 45 Conn Supp 586, 728 A2d 544.) [4] The respondent mother challenges the facial constitutionality of the new "knowingly allowed to be committed a felony sex offense" grounds for termination as discriminatory against abused women. Assuming arguendo that abused women constitute a protected class for equal protection purposes, T. has not established that she is a member of that class. Accordingly, the questions of whether NY-ASFA violates the Equal Protection Clause of the New York or United States Constitution are not before this court. [5] Even the definition of "repeated abuse" in Social Services Law § 384-b (8) (b) (ii) speaks only of the child currently abused and another child for whom the parent is or was legally responsible who has been found within the past five years to have been abused. Thus, that clause is also silent concerning siblings who were not the targets of either the present or the past incident(s) of abuse. [6] "[C]lause A [child's health and safety paramount concern] * * * makes clear that there are some cases in which reasonable efforts do not need to be made to reunify children with dangerous adults. In some cases, no efforts are reasonable efforts. In some cases, any efforts are unreasonable efforts." (143 Cong Rec S12668-03, S12670 [ASFA sponsor Senator DeWine speaking].) [7] NY-ASFA leaves unchanged the higher evidentiary requirements of "clear and convincing, competent, material and relevant evidence" in the dispositional hearing of a severe abuse termination. (Social Services Law § 384-b [8] [f].) [8] The juxtaposition in this clause of the phrase "diligent efforts" (used in New York law since 1976) and the Federal term "reasonable efforts" is striking. It seems likely that the Legislature retained the term "diligent efforts" so as to avoid calling into question the substantial body of case law construing that phrase within the permanent neglect grounds for termination. The terms are clearly used interchangeably within the clause, however. [9] The impact of Federal ASFA's mandates is so obvious that the Superior Court of Pennsylvania was influenced by it in a termination of parental rights case decided even before that State passed its implementing legislation. (In Interest of Lilley, 719 A2d 327, 332.)