Matter of Terrance G.

Carrieri & Carrieri, P. C., Mineola (Jeffrey Blinkoff of counsel), for petitioner. Helen A. Cooper Gregory, Jamaica, for respondent mother. Robert S. Modena, Bayside, for respondent father. Legal Aid Society, Jamaica (Monica Drinane and Emanuel Saidlower of counsel), Law Guardian.

OPINION OF THE COURT

GUY P. DePHILLIPS, J. The instant termination of parental rights proceeding was commenced by the filing of a petition on January 26, 1995. On March 23, 1998 the court issued a fact-finding determination based on clear and convincing evidence that the child Terrance G. was permanently neglected by his parents. As mandated by statute, the court set the matter down for a dispositional hearing. The following testified at disposition: Ms. Laurence Freycinet, caseworker for St. Christopher-Ottilie, Serena G., natural mother, and Michael D., natural father of the subject child. All three are found by the court to be very credible. Based on their testimony the court finds that the respondent parents are presently fit to parent Terrance and are willing to parent Terrance, that the foster mother is fit to parent Terrance and willing to parent Terrance, that Terrance's special needs are not beyond the capabilities of the foster mother to meet and not beyond the capabilities of the natural parents to meet; that Terrance is bonded to his natural parents and to his foster mother; the natural parents maintain regular and consistent visitation with their son and the return of Terrance to the custody of his parents would not be a danger to the child. Terrance was born June 14, 1992. Ms. Freycinet testified that the foster mother, now 57 years of age, took Terrance into her home to maintain sibling and family relationships. Terrance, now nine years old, maintains a sibling relationship with his sisters, Syretta, now age 10, and Seneida, with the assistance of the foster mother and the natural mother. It is the caseworker's view regarding termination that Terrance is "probably better off with the foster mother. He's been in this home [since March 17, 1995] and she has been involved in his life." The caseworker described the relationship between Terrance and the respondent father in "glowing" terms: the father maintains consistent biweekly visits, is always on time, interacts appropriately with the child, helps his son with homework, plays with his son, and is patient and able to engage and maintain the child's focus despite Terrance's hyperactivity. In this regard, the father's ability, according to severe and irreversible exercise of state action—the declaration of termination of parental rights. Again, the Appellate Division suggests that a preponderance standard properly allocates the risk of error between the parents and the child. As noted by the United States Supreme Court in Santosky, this assumes that termination of parental rights invariably will benefit the child. This sophism is annihilated by the simple, commonsense, reasoned and natural response of the Supreme Court in its pithy observation: "we have noted above that the parents and the child share an interest in avoiding erroneous termination" (Santosky v Kramer, supra at 765 [emphasis added]). This sane and salutory tenet is further amplified by the Court's allusion to Addington: "`The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.' 441 U.S., at 427, 99 S.Ct., at 1810. Thus, at a parental rights termination proceeding, a near-equal allocation of risk between the parents and the State is constitutionally intolerable" (Santosky v Kramer, supra at 768). In the instant proceeding the testimony and evidence at the dispositional hearing discloses that both natural parents in an intact family unit are fit and willing to parent their child Terrance at the present time. Similarly the foster mother, a single foster parent, is fit and willing to parent Terrance. Terrance is bonded to his foster mother. Terrance is bonded to his natural mother and natural father. Given these circumstances, what is in Terrance's best interests? Guidance as already noted best comes from the Court of Appeals. In Matter of Ricky Ralph M. (56 NY2d, supra at 80-81, 83), the Court stated:

"a sense of order calls upon us to identify some distinctive characteristics of the two legal concepts, custody and parental rights, which here seem to have been so unceremoniously run together.

"Custody is dominated by concern for the best interest of the child (see Friederwitzer v Friederwitzer, 55 NY2d 89, 95; Matter of Nehra v Uhlar, 43 NY2d 242, 248; Domestic Relations Law, §§ 70, 240; 2 Foster-Freed, Law and the Family, § 29:5). Case law tells us that, where a battle for custody is waged between parent and a third party * * * the parent may not be denied custody absent a threshold showing of `surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances' ( Matter of Bennett v Jeffreys, 40 NY2d 543, 544). Obeisance to the parental relation is so strong that, even when `extraordinary circumstances' do exist, this alone does not justify depriving the parent of custody. It does no more than trigger the `best interests of the child test.' ( Id., at p 548.) Even so, the underlying parental rights subsist.

"In contrast, the far more embracing matter of a judicial termination of parental rights is, as is legal adoption, a creature of statute ( Matter of Malpica-Orsini, 36 NY2d 568, 570). When it is sanctioned, it `is both total and irrevocable. Unlike other custody proceedings, it leaves the parent with no right to visit or communicate with the child, to participate in, or even to know about, any important decision affecting the child's religious, educational, emotional, or physical development' ( Lassiter v Department of Social Servs., 452 US 18, 39 [BLACKMUN, J., dissenting]; see Domestic Relations Law,  § 117). For all practical purposes, the parent no longer exists. In producing this result, it cuts across a norm of nature as instinctive and as fulfilling as only procreation and the ensuing bond between parent and offspring can be (Developments—The Family, 93 Harv L Rev 1156, 1351). As the majority put it in Lassiter, `[a] parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one' ( 452 US, at p 27) and may not be accomplished without stern adherence to the dictates of due process (see Santosky v Kramer , 455 US [745]) * * *

"The Legislature, the progenitor of law bearing on termination of parental rights, was not unaware of the importance of those rights in enacting a statute as specific as section 384-b of the Social Services Law. Its accompanying statement of legislative findings and intent includes the unsurprising observation that `it is generally desirable for the child to remain with or be returned to the natural parent because the child's need for a normal family life will usually best be met in the natural home, and that parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered' (§ 384-b, subd 1, par [a], cl [ii]). In this connection, recognizing that parents, like children, and like human beings generally, come in all ranges of perfection and imperfection, we have made it clear that, under our legal system, the State does not seek to `find "better" parents for a child even though the natural parents may be willing and able to provide proper care' ( Matter of Sanjivini K., 47 NY2d 374, 382 ). The security of the family institution and constitutional principle require no less (see Stanley v Illinois, 405 US 645, 651, supra).

" By no means does the statute encourage a court * * * to back into a parental termination decision." (Emphasis added; contra Matter of Tiffany A., 242 AD2d 709 [2d Dept 1997].)

The child is not the child of the State. If the State in an act of hubris perceives the child as the child of the State to be distributed or given by it at will, the State cheapens life and strips the child of humanity. Thankfully, with circumspection and compassion the legislative and executive branches of government respect the humanity of the child in their policy declaration set forth in Social Services Law § 384-b entitled "Guardianship and custody of destitute or dependent children; commitment by court order":

"1. Statement of legislative findings and intent.

"(a) The legislature * * * hereby finds that * * *

"(ii) it is generally desirable for the child to remain with or be returned to the natural parent because the child's need for a normal family life will usually best be met in the natural home, and that parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered * * *

"(iv) when it is clear that the natural parent cannot or will not provide a normal family home for the child and when continued foster care is not an appropriate plan for the child, then a permanent alternative home should be sought for the child.

"(b) 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." (Emphasis added.)

This policy based on reason and shared humanity is endorsed the decisions of the State's highest court—the Court of Appeals (see Matter of Michael B., 80 NY2d 299 [1992]; Matter of Corey L v Martin L, 45 NY2d 383 [1978]; People ex rel. Kropp v Shepsky, 305 NY 465 [1953]; Matter of Goldman, 41 NY2d 894 [1977]; Matter of Bennett v Jeffreys, 40 NY2d 543 [1976]; Matter of Ricky Ralph M., 56 NY2d 77 [1982]; Matter of Sanjivini K., 47 NY2d 374 [1979]). This policy, this reason, this humanity, this teaching is at risk, however, in this court's view, at other levels of the judicial process. The Appellate Division has extraordinary review power not shared by the Court of Appeals. It is the ultimate finder of fact on appeal. Therefore, if the issue of law, the question of law, the public policy is perverted, there is no justice and no good, merely the semblance of justice and the good, the rhetoric of compassion devoid of compassion, the invocation of the best interests of the child devoid of the best interests of the child. This court is aware that it runs the risk of incurring the ire of the Appellate Division in making this pronouncement. In defense, this court avers that conscience, the oath of office, humanity, the desire for justice to prompt the good and be witness to the truth—will this act. Instructed by the teachings of the Court of Appeals above noted and the United States Supreme Court in Santosky, and based upon the factual findings of this court at disposition, it is concluded on the law that the petition be dismissed. There is no showing by clear and convincing evidence that it is in Terrance's best interests that the parental rights of his parents and his conjoint right to them be terminated. However, the teaching of the Appellate Division, Second Department, in Matter of Tiffany A. (supra) appears to mandate a different result, to wit, the termination of the parental rights of Terrance's parents. Laudable though the achievements of Terrance's and convincing evidence and not mere preponderance. This also serves to lessen the tendency of the court as well as the Legal Aid Society to hubris. Justice also stands witness to the road not taken.

There should be honor in justice. Petition dismissed. [Portions of opinion omitted for purposes of publication.] [1] Reflective of the sentiment expressed by the English metaphysical poet John Donne (1572-1631): "No man is an island * * * any man's death diminishes me, because I am involved in Mankind; And therefore never send to know for whom the bell tolls; it tolls for thee," this court in a lecture to members of the Bar sponsored by the Queens County Bar Association Academy of Law on Juvenile Delinquency and Persons in Need of Supervision held on May 23, 2001, stated: "I propose that we all join in a crusade to bring honor to the Family Court and the ideals for which it was created. To honor the term family, the concept family, the life of family. To bring not just our professionalism, but our humanity to the task. To recognize in the needy child whether under Article 7, Article 3, Article 10, or TPR proceedings, our child, our self. To recognize in the needy parent our self. To comprehend that when a child is before us, a parent is also and that when a parent is before us, a child is also. Does not the term child imply parent and the term parent imply child. To the extent that we contribute by delay or inaction in the exercise of our power as judges and officers of the court to the failure of a parent or a child, we have not done good, we have not acted humanely, we have not honored Family Court or that family for which the court is named." [2] Robert Frost (1874-1963) American lyric poet: "Two roads diverged in a wood, and I— "I took the one less traveled by, "And that has made all the difference."