Jailed Inmates Have Parental Rights Too

In the case of In re Medina Amor S., '- N.Y.S.2d ”, 2008 WL 109666 (1^st Dept. 1/10/08) (Saxe, J.P., Marlow, Williams, Sweeney, Jr., JJ.), the lower court was faced with the question of whether two children should be released for permanent placement with someone other than their father, due to the father's abandonment of them. In order to understand the case, it is essential to look at the statutes covering both abandonment and permanent neglect, especially in the context of the imprisoned parent.

Social Services Law ' 384-b(4)(b) authorizes termination of parental rights when a parent abandons a child for a period of six months immediately prior to the date the petition is filed. A child is 'abandoned' by his parent 'if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed.' Social Services Law ' 384-b(5)(a). A child can be found 'abandoned' under this definition if the parent has no contact with the child for six months before the petition for termination is filed.

Social Services Law ' 384-b(7) defines what is meant by the permanently neglected child. He or she is a child who is under the care of an authorized agency whose parent has failed to keep in substantial contact for a specified period of time despite the agency's diligent efforts to foster the relationship. Evidence of insubstantial or infrequent contacts by the parent with the child will not necessarily be enough to rebut an accusation of permanent neglect: 'A visit or communication by a parent with the child which is of such character as to overtly demonstrate a lack of affectionate and concerned parenthood shall not be deemed a substantial contact.' Social Services Law ' 384-b(7).

Clear and convincing evidence is necessary to prove both abandonment (Matter of Annette B., 4 NY3d 509, 514 (2005), and permanent neglect (see Matter of Jonathan R.M., 26 AD3d 205, 206 (2006)).

Prior to 1983, the law of New York presumed that an incarcerated parent was unable to maintain contact with or plan for the future of his or her child (former Social Services Law ' 384-b(7)(d)(ii)). Consequently, courts were precluded from making a finding of permanent neglect in such cases (see Legislative memorandum, 1983 McKinney's Session Laws of NY, at 2707). However, the permission of an incarcerated person was not required before his or her children could be released for adoption (Domestic Relations Law former ' 111 (2)(d); Legislative memorandum, supra at 2707).

In 1983, New York's legislature amended the statutes by removing the status of incarceration as a basis for the termination of parental rights and by recognizing that jailed parents continued to have obligations toward their children (see Social Services Law ' 384-b(7)(d); Domestic Relations Law ' 111(2)). Today, even parents in prison are required under Social Services Law ' 384-b(7)(e)(ii), (f)(5) to cooperate with any concerned social services agencies in planning for their children and arranging visits. Social Services agencies have a concurrent obligation to exercise diligent efforts to arrange for such visits (Social Services Law ' 384-b(7)(e)(ii), (f)(5)).

The Case

The respondent father in Medina Amor S. has been in prison for some years due to his conviction for murder. His first scheduled opportunity for release from prison is in 2016. His two children were in the care of their mother until June 2000, when they entered the foster care system due to her drug abuse. The mother has since dropped out of the children's lives and has had no contact with them or anyone else connected to the family for several years.

A couple of months after they entered into the foster care system, a caseworker from the Graham Windham Services to Family Agency brought the children to visit their father in prison. According to the caseworker, this was the last time the respondent saw his children prior to the filing of the petitions, on Aug. 17, 2004.

The lack of contact was not per the petitioner's choice, he testified at the termination hearing. While the children were still in their mother's care, he had sent them letters, called them and visited when he could. At some time in 2000 (the year the children were removed from their mother's care) he lost contact with the children and their mother.

The respondent testified that a caseworker finally brought the children to visit him in prison in October 2003. He claimed he asked the caseworker at that time for 'some paperwork' from the agency about the status of the children, but prison rules prohibited him from being given such items during a visit. The caseworker told the respondent she would soon be leaving the agency, but that someone else would contact him. No one did. He claimed that although he wanted to telephone the caseworker to set up further meetings and other communication with the children, he did not have the name of anyone at the agency, and prison policy forbids telephone calls to anyone but named persons. (This policy, which says prisoners are not allowed to call anyone but specifically identified people, was not challenged at the termination hearing.)

By 2004, the respondent was taking part in a parenting program offered in the prison by an organization called the Osborne Association. A representative of the Osborne Association, April Grigsby, testified at the termination hearing that on May 14, 2004, the Osborne Association received a letter from the respondent asking for help in contacting his children. The letter explained that he had not heard from the agency handling his children's case for some time and that, although he knew the name of the agency, he did not have a contact person there, so the prison telephone policy prevented him from contacting it directly. Grigsby investigated and found that Myrlande Georges was the children's caseworker. Grigsby left messages for Georges twice in May 2004, spoke with her in June 2004, and generally acted as a go-between for the respondent, helping to facilitate the set-up of a meeting between him and his children. That meeting took place on Aug. 6, 2004.

Less than two weeks after the August 2004 reunion with the children, the Graham Windham Services to Family Agency filed two petitions ' one for each of the two children, who were at that time nine and 12 years old ' to terminate the respondent's parental rights. Each petition alleged that the respondent had evinced an intent to forgo his parental rights by reason of his failure to visit or communicate with the children in the six-month period prior to the filing and he had therefore abandoned them (Social Services Law '384-b(4)(b), 384-b (5)(a)). Because of this, and the fact that both children's foster mothers had expressed an interest in adopting them, the agency asked that the father's parental rights be terminated and the children freed for adoption.

At the hearing in Family Court, caseworker Georges claimed she tried to write letters to the respondent but that some of them were returned to her. No corroborating evidence was offered. She said the respondent did not contact the children or send them cards or gifts. On cross-examination, however, she admitted to her interactions with Grigsby, and that these took place in the six months previous to the filing of the petitions. She also admitted that she made no attempt to contact the respondent during the six months previous to the filing of the petitions.

Another caseworker claimed to have tried to arrange visits between the respondent and his children, but she admitted she never made any attempt to contact him directly, going instead through the prison authorities, because she erroneously believed that such direct contact was forbidden.

Although Family Court expressed surprise at these caseworkers' apparent misunderstanding of their roles and responsibilities, it found the caseworkers' testimony credible and the respondent's testimony far less so. Finding that the August 2004 visit with the children was merely an 'insignificant' one, the court concluded that the agency had proven by clear and convincing evidence that the respondent had evinced an intent to forgo his parental rights. His rights were thus terminated.

The Appeal

The Appellate Division, First Department, found that although Family Court had labeled is decision as one based on parental abandonment, what it really did was to take the easier route to termination of the respondent's parental rights by improperly applying the 'permanently neglected child' element of 'insubstantial contacts' (Social Services Law '384-b(7)) rather than the 'abandoned' child standard ('384-b(5)). These subdivisions are designed to accomplish two different goals. As stated in Matter of Ulysses T., 87 AD2d 998, 999 (1982), affd 66 NY2d 773 (1985): 'The abandonment section is intended quickly to free for adoption children whose parents have shown no interest in them; the neglect section is designed to free for adoption children whose parents, although technically not guilty of abandonment, have failed to maintain regular contact with their children although granted a longer period of time to attempt to re-establish a family relationship.' In this case, because the petition alleged abandonment, not permanent neglect, there was no reason for Family Court to have made a determination as to the insignificance of the 'contact' that occurred in August 2004, just before the petitions were filed.

In addition, although Family Court had found at the dispositional hearing that it would be in the best interests of the children if they were freed for adoption, the question of the children's best interests was not a proper one to answer in a proceeding seeking to terminate parental rights on the ground of abandonment. Matter of Female W., 47 NY2d 861 (1979). Finding that the petitioner did not meet its burden of proving that the respondent had abandoned his children, the order terminating his parental rights was reversed.

Conclusion

What the appellate court saw, from its relative distance from the case, was that the social services agency and Family Court had essentially determined that it would be better for the children to be placed permanently in their current foster homes. Therefore, they had looked at the evidence in a way that would lead to this conclusion, discarding unhelpful evidence ' such as the respondent's obvious efforts to make contact several times during the six months previous to the petition filings ' in order to come to the desired end.

The children in question in this case will reach the age of majority before their father is released from prison, if indeed he is ever released. No matter. This case shows that even when a parent is unable to be present in his or her children's lives on a regular basis because of something as drastic and permanent as incarceration, well-meaning people cannot leapfrog over the law to get those children placed with someone they feel will make a better parent. As the First Department concluded, citing to Matter of Bennett v. Jeffreys, 40 NY2d 543, 548 (1976), 'a parent cannot be displaced 'because someone else could do a 'better job' of raising the child,' absent extraordinary circumstance such as abandonment, unfitness or persistent neglect.'

Janice G. Inman is Editor-in-Chief of this newsletter.

When a man is in jail, it may be very difficult for him to keep in meaningful contact with his child unless he has the aid of concerned family members or friends. Apart from the emotional problems that may ensue for all parties if visits and phone calls are nonexistent or sporadic, the issue of meaningful contact becomes even more urgent when someone ' the child's mother, another relative or a social services agency ' wants the child freed for adoption.

The situation might seem dire for the inmate who wants to maintain a parental relationship with a child, especially if that child will be an adult if (and when) the incarcerated parent is released from prison. Intuitively, most of us might think that a child whose parent is in prison for an extended period ' particularly if he or she has been convicted of a heinous crime ' might be better off 'moving on' and getting into a stable family situation. The law, however, is not necessarily in line with our gut reactions, as illustrated by a recent case out of New York's Appellate Division, First Department.

The Law and the Imprisoned Parent

In the case of In re Medina Amor S., '- N.Y.S.2d ”, 2008 WL 109666 (1^st Dept. 1/10/08) (Saxe, J.P., Marlow, Williams, Sweeney, Jr., JJ.), the lower court was faced with the question of whether two children should be released for permanent placement with someone other than their father, due to the father's abandonment of them. In order to understand the case, it is essential to look at the statutes covering both abandonment and permanent neglect, especially in the context of the imprisoned parent.

Social Services Law ' 384-b(4)(b) authorizes termination of parental rights when a parent abandons a child for a period of six months immediately prior to the date the petition is filed. A child is 'abandoned' by his parent 'if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed.' Social Services Law ' 384-b(5)(a). A child can be found 'abandoned' under this definition if the parent has no contact with the child for six months before the petition for termination is filed.

Social Services Law ' 384-b(7) defines what is meant by the permanently neglected child. He or she is a child who is under the care of an authorized agency whose parent has failed to keep in substantial contact for a specified period of time despite the agency's diligent efforts to foster the relationship. Evidence of insubstantial or infrequent contacts by the parent with the child will not necessarily be enough to rebut an accusation of permanent neglect: 'A visit or communication by a parent with the child which is of such character as to overtly demonstrate a lack of affectionate and concerned parenthood shall not be deemed a substantial contact.' Social Services Law ' 384-b(7).

Clear and convincing evidence is necessary to prove both abandonment (Matter of Annette B., 4 NY3d 509, 514 (2005), and permanent neglect (see Matter of Jonathan R.M., 26 AD3d 205, 206 (2006)).

Prior to 1983, the law of New York presumed that an incarcerated parent was unable to maintain contact with or plan for the future of his or her child (former Social Services Law ' 384-b(7)(d)(ii)). Consequently, courts were precluded from making a finding of permanent neglect in such cases (see Legislative memorandum, 1983 McKinney's Session Laws of NY, at 2707). However, the permission of an incarcerated person was not required before his or her children could be released for adoption (Domestic Relations Law former ' 111 (2)(d); Legislative memorandum, supra at 2707).

In 1983, New York's legislature amended the statutes by removing the status of incarceration as a basis for the termination of parental rights and by recognizing that jailed parents continued to have obligations toward their children (see Social Services Law ' 384-b(7)(d); Domestic Relations Law ' 111(2)). Today, even parents in prison are required under Social Services Law ' 384-b(7)(e)(ii), (f)(5) to cooperate with any concerned social services agencies in planning for their children and arranging visits. Social Services agencies have a concurrent obligation to exercise diligent efforts to arrange for such visits (Social Services Law ' 384-b(7)(e)(ii), (f)(5)).

The Case

The respondent father in Medina Amor S. has been in prison for some years due to his conviction for murder. His first scheduled opportunity for release from prison is in 2016. His two children were in the care of their mother until June 2000, when they entered the foster care system due to her drug abuse. The mother has since dropped out of the children's lives and has had no contact with them or anyone else connected to the family for several years.

A couple of months after they entered into the foster care system, a caseworker from the Graham Windham Services to Family Agency brought the children to visit their father in prison. According to the caseworker, this was the last time the respondent saw his children prior to the filing of the petitions, on Aug. 17, 2004.

The lack of contact was not per the petitioner's choice, he testified at the termination hearing. While the children were still in their mother's care, he had sent them letters, called them and visited when he could. At some time in 2000 (the year the children were removed from their mother's care) he lost contact with the children and their mother.

The respondent testified that a caseworker finally brought the children to visit him in prison in October 2003. He claimed he asked the caseworker at that time for 'some paperwork' from the agency about the status of the children, but prison rules prohibited him from being given such items during a visit. The caseworker told the respondent she would soon be leaving the agency, but that someone else would contact him. No one did. He claimed that although he wanted to telephone the caseworker to set up further meetings and other communication with the children, he did not have the name of anyone at the agency, and prison policy forbids telephone calls to anyone but named persons. (This policy, which says prisoners are not allowed to call anyone but specifically identified people, was not challenged at the termination hearing.)

By 2004, the respondent was taking part in a parenting program offered in the prison by an organization called the Osborne Association. A representative of the Osborne Association, April Grigsby, testified at the termination hearing that on May 14, 2004, the Osborne Association received a letter from the respondent asking for help in contacting his children. The letter explained that he had not heard from the agency handling his children's case for some time and that, although he knew the name of the agency, he did not have a contact person there, so the prison telephone policy prevented him from contacting it directly. Grigsby investigated and found that Myrlande Georges was the children's caseworker. Grigsby left messages for Georges twice in May 2004, spoke with her in June 2004, and generally acted as a go-between for the respondent, helping to facilitate the set-up of a meeting between him and his children. That meeting took place on Aug. 6, 2004.

Less than two weeks after the August 2004 reunion with the children, the Graham Windham Services to Family Agency filed two petitions ' one for each of the two children, who were at that time nine and 12 years old ' to terminate the respondent's parental rights. Each petition alleged that the respondent had evinced an intent to forgo his parental rights by reason of his failure to visit or communicate with the children in the six-month period prior to the filing and he had therefore abandoned them (Social Services Law '384-b(4)(b), 384-b (5)(a)). Because of this, and the fact that both children's foster mothers had expressed an interest in adopting them, the agency asked that the father's parental rights be terminated and the children freed for adoption.

At the hearing in Family Court, caseworker Georges claimed she tried to write letters to the respondent but that some of them were returned to her. No corroborating evidence was offered. She said the respondent did not contact the children or send them cards or gifts. On cross-examination, however, she admitted to her interactions with Grigsby, and that these took place in the six months previous to the filing of the petitions. She also admitted that she made no attempt to contact the respondent during the six months previous to the filing of the petitions.

Another caseworker claimed to have tried to arrange visits between the respondent and his children, but she admitted she never made any attempt to contact him directly, going instead through the prison authorities, because she erroneously believed that such direct contact was forbidden.

Although Family Court expressed surprise at these caseworkers' apparent misunderstanding of their roles and responsibilities, it found the caseworkers' testimony credible and the respondent's testimony far less so. Finding that the August 2004 visit with the children was merely an 'insignificant' one, the court concluded that the agency had proven by clear and convincing evidence that the respondent had evinced an intent to forgo his parental rights. His rights were thus terminated.

The Appeal

The Appellate Division, First Department, found that although Family Court had labeled is decision as one based on parental abandonment, what it really did was to take the easier route to termination of the respondent's parental rights by improperly applying the 'permanently neglected child' element of 'insubstantial contacts' (Social Services Law '384-b(7)) rather than the 'abandoned' child standard ('384-b(5)). These subdivisions are designed to accomplish two different goals. As stated in Matter of Ulysses T ., 87 AD2d 998, 999 (1982), affd 66 NY2d 773 (1985): 'The abandonment section is intended quickly to free for adoption children whose parents have shown no interest in them; the neglect section is designed to free for adoption children whose parents, although technically not guilty of abandonment, have failed to maintain regular contact with their children although granted a longer period of time to attempt to re-establish a family relationship.' In this case, because the petition alleged abandonment, not permanent neglect, there was no reason for Family Court to have made a determination as to the insignificance of the 'contact' that occurred in August 2004, just before the petitions were filed.

In addition, although Family Court had found at the dispositional hearing that it would be in the best interests of the children if they were freed for adoption, the question of the children's best interests was not a proper one to answer in a proceeding seeking to terminate parental rights on the ground of abandonment. Matter of Female W., 47 NY2d 861 (1979). Finding that the petitioner did not meet its burden of proving that the respondent had abandoned his children, the order terminating his parental rights was reversed.

Conclusion

What the appellate court saw, from its relative distance from the case, was that the social services agency and Family Court had essentially determined that it would be better for the children to be placed permanently in their current foster homes. Therefore, they had looked at the evidence in a way that would lead to this conclusion, discarding unhelpful evidence ' such as the respondent's obvious efforts to make contact several times during the six months previous to the petition filings ' in order to come to the desired end.

The children in question in this case will reach the age of majority before their father is released from prison, if indeed he is ever released. No matter. This case shows that even when a parent is unable to be present in his or her children's lives on a regular basis because of something as drastic and permanent as incarceration, well-meaning people cannot leapfrog over the law to get those children placed with someone they feel will make a better parent. As the First Department concluded, citing to Matter of Bennett v. Jeffreys , 40 NY2d 543, 548 (1976), 'a parent cannot be displaced 'because someone else could do a 'better job' of raising the child,' absent extraordinary circumstance such as abandonment, unfitness or persistent neglect.'

Janice G. Inman is Editor-in-Chief of this newsletter.