In re Hailey ZZ., 19 N.Y.3d 424 (2012)
In cases of parental rights termination due to permanent neglect under Social Services Law § 384-b, Family Court lacks the authority to order post-termination contact between the parent and child, as such power resides solely with the legislature.
Summary
This case addresses the conflict among New York’s Appellate Divisions regarding Family Court’s authority to mandate continuing contact between a parent and child after parental rights are terminated due to permanent neglect. The Court of Appeals held that Family Court does not possess such authority. The case involved Hailey ZZ., whose father was incarcerated. After finding the father had permanently neglected Hailey and terminating his parental rights, the Supreme Court denied his request for post-termination visitation. The Court of Appeals affirmed the lower court’s decision, emphasizing that absent explicit legislative authorization, Family Court cannot order post-termination contact in cases of termination due to permanent neglect. The Court noted concerns about hindering adoptions and disrupting adoptive families.
Facts
Hailey ZZ. was born in 2007. Her father was incarcerated in early 2008. In November 2008, the Tompkins County Department of Social Services (DSS) removed Hailey and her half-sister from their mother’s care. DSS filed petitions in March 2010 against both parents, seeking orders adjudicating Hailey as permanently neglected and terminating parental rights. The mother surrendered her rights in July 2010, but the proceedings continued against the father.
Procedural History
The Tompkins County Supreme Court (acting as Family Court) determined that DSS made diligent efforts to strengthen the parental relationship but that the father failed to plan for Hailey’s future. The court adjudicated Hailey permanently neglected and, after a dispositional hearing, terminated the father’s parental rights, denying his request for continued visitation. The Appellate Division affirmed, stating post-termination visitation was unavailable in a contested termination proceeding. The Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.
Issue(s)
Whether Family Court has the authority to order post-termination contact between a parent and child when parental rights have been terminated based on permanent neglect under Social Services Law § 384-b.
Holding
No, because Family Court lacks the authority to mandate post-termination contact in cases where parental rights are terminated due to permanent neglect under Social Services Law § 384-b; such power rests with the legislature.
Court’s Reasoning
The Court of Appeals reviewed the conflicting decisions of the Appellate Divisions. The Fourth Department had held that Family Court could order post-termination contact in certain cases, while the Third Department consistently held that it could not. The Court of Appeals sided with the Third Department. The Court emphasized its prior holding in Matter of Gregory B., 74 N.Y.2d 77 (1989), where it stated that imposing post-termination contact by judicial order could threaten the integrity of the adoptive family unit and that “ ‘open’ adoptions are not presently authorized. If they are to be established, it is the Legislature that more appropriately should be called upon to balance the critical social policy choices and the delicate issues of family relations involved in such a determination.” The Court reasoned that the Legislature authorized “open adoptions” through voluntary surrender in Social Services Law § 383-c but made no corresponding change to § 384-b. The Court further noted the practical problems with judicial imposition of post-termination contact, potentially discouraging adoption and threatening adoptive families. The Court explicitly declined to vest Family Court with the discretion and flexibility to order post-termination contact, particularly in light of concerns by County Attorneys regarding the uncertainty, delay, and expense which can discourage adoption of neglected children. As the Monroe County Attorney stated, “many prospective adoptive parents are reluctant or unwilling to entertain the prospect of facilitating contact between a child and a biological parent sufficiently troubled to have lost parental rights.”