Ruth \"J\" v. Beaudoin , 55 A.D.2d 52 ( 1976 )

Herlihy, J.

Kimberly "J”^* was born on April 5, 1962. In May of 1974, after the death of her husband and when Kimberly was 12 years old, petitioner voluntarily signed a surrender instrument (Social Services Law, § 384) thereby committing the guardianship and custody of her daughter to an authorized agency, the Rensselaer County Department of Social Services (Agency). The surrender instrument provided in part: "Said surrender and commitment shall be for an indefinite period, and until I notify the Commissioner in writing, that I revoke this instrument and request that the child be returned to me.” Approximately 18 months after the surrender of Kimberly, petitioner revoked the same in writing and demanded the return of her daughter. The Agency refused. Petitioner commenced this proceeding to compel the return of Kimberly to her custody (Social Services Law, § 358-a). The Family Court denied petitioner’s application, holding that the best interests of the child dictated that she remain in her foster home placement. This appeal ensued.

The record establishes that the mother at all times has acted in good faith; that she contacted the Agency in the first instance because her child was having behavior problems and that she signed the surrender agreement in good faith, believing that her child would be returned to her upon giving notice to the commissioner. There is no issue here as to the mother’s character or behavior and that she has a suitable residence and the necessary financial means to properly care for her child, for whom she has always displayed love and affection. Under such extant circumstances the child belongs with the mother. In People ex rel. Patricia "BB" v Albany County Dept. of Social Servs. (47 AD2d 974, 975) this court stated: "We cannot agree that the burden is upon the petitioner to prove that she is now fit to take care of the child, and the best interests of the child would be served by placing it with the petitioner. In such instances, the burden rests not upon the mother to show that the child’s welfare would be advanced by being returned to the mother, but rather upon the nonparent to prove that the mother is unfit to have her child (People ex rel. Kropp v Shepsky [305 NY 465], supra). The law contains the presumption that the best interests of the child will be promoted by returning the child to the custody of its natural parent (People ex rel. Scarpetta v Spence-Chapin Adoption Serv. [28 NY2d 185], supra).”

It would appear from the present record that the wishes of a teenage child are being given priority over the rights of a parent. As we have stated on numerous occasions, while the wishes of a child should be considered, that alone is not sufficient or determinative of the issues involved. It is interesting to note that the Law Guardian by way of a "letter” stated: "Infant Kimberly felt that her mother wanted and treated her as a companion; whereas, she was treated as a person by her foster parents”. It is difficult under the circumstances to rationalize the distinction as most parents seek the companionship of their children.

There is a delicate balance between the rights of the natural parent and the Agency and where, as here, the court adopted the incorrect legal principle in arriving at its decision, and where the balance would appear to favor the mother (the court apparently gave no consideration to her testimony) the issue of the suitability of the natural parent should be determined prior to any rights or claims of the Agency.

It is readily apparent that the social good inherent in the voluntary surrender of children under circumstances which indicate a need for an immediate change of custody, but not because of any unfitness or neglect by the parent, is undermined by adopting a policy which will essentially result in a revocation of the written promise to return the child. If there are circumstances which would justify terminating parental custody, either permanently or temporarily, the respondent and the court should proceed on that basis and not on the "best interests” basis which is a much weaker test in terms of recognizing parental rights and preferences. Perhaps in the alternative, the correct judicial decision-making standard under subdivision (7) of section 358-a of the Social Services Law is the best interest of the child with the presumption that the child’s best interest will be promoted by returning the child to its natural parent in the absence of abandonment, a showing of unfitness, or some other supervening reason why the parent should be deprived of custody (cf. Matter of Marian PP v Marian OO, 50 AD2d 1053). It should be noted that the custody of the infant was never granted to the respondent on any long-term basis and the petitioner has not by inaction created a situation where in fact a long-term custody had existed so as to invoke the rule favoring the stability of continuing custody in a person now having possession of the infant (see Obey v Degling, 37 NY2d 768, 770, 771).

While Bennett v Jeffreys (40 NY2d 543) established a "best interest” test as to a child’s welfare, the present circumstances do not fall within Jeffreys and should not be applied.

The order should be reversed and matter remitted for such further proceedings as may be deemed appropriate. Pending the outcome of any hearing which should be conducted, Kimberly should remain in her current foster home placement, provided, however, that such proceeding is to be commenced within 10 days from the entry of this order and, if not, the infant should be returned to her mother forthwith.

The order should be reversed, on the law and the facts, with costs. Settle order on notice.

* Name fictitious for purposes of publication.