Opinion
2001-08595
Argued April 25, 2003.
September 22, 2003.
In two related proceedings pursuant to Social Services Law § 384-b(4)(c) to terminate the mother's parental rights on the ground that she is presently and for the foreseeable future unable, by reason of mental retardation, to provide proper and adequate care for the subject children, the petitioner appeals from an order of the Family Court, Kings County (Pearce, J.), dated August 16, 2001, which, after a fact-finding hearing, dismissed the petitions.
Carrieri Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), for appellant.
Helene Chowes, New York, N.Y., Covington Burling, New York, N.Y. (David W. Haller of counsel), and New York Lawyers for the Public Interest, Inc., New York, N.Y. (Marianne Engelman Lado and Michael D. Scherz of counsel), for respondent (one brief filed).
Monica Drinane, New York, N.Y. (Marcia Egger and Vicki Light of counsel), Law Guardian for the children.
Before: ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matters are remitted to the Family Court, Kings County, for a new fact-finding hearing and new determinations.
Yvonne W., diagnosed as suffering from mild to moderate mental retardation, is the mother of five children. At issue on appeal is the termination of her parental rights to her two sons, Patrick, born December 12, 1994, and Tashien, born May 29, 1996, both of whom have been in foster care since birth. The evidence at the hearing disclosed that through counseling, occupational therapy, and other services provided by Professional Service Centers for the Handicapped, Yvonne W. has acquired various basic skills in independent living. The Family Court recognized that she possessed a high level of motivation, which was driven in part by her desire to regain custody of her children, although if Patrick and Tashien were returned to her she would need comprehensive assistance and support in order to adequately care for them.
The Family Court dismissed the petitions, finding that the petitioner had not sustained its burden of proving that the respondent would not be able to care for her children at present or in the foreseeable future. The court based this determination on the petitioner's failure to present evidence of its diligent efforts to properly assess her ability to care for the children and to secure for her a level of comprehensive services necessary to advance a plan for reunification of the family.
We agree with the petitioner that the Family Court erred in dismissing the petitions because it read into Social Services Law § 384-b(4)(c) a "diligent efforts" requirement similar to that required in a case where parental rights are terminated due to permanent neglect ( see Matter of Sheila G., 61 N.Y.2d 368, 380-381).
It is well settled that a "diligent efforts" requirement is not mandated under Social Services Law § 384-b(4)(c) ( see Matter of Anonymous, 40 N.Y.2d 96, 99; Matter of Juliana V., 249 A.D.2d 314, 315; Matter of Belinda S., 189 A.D.2d 679; Matter of Demetrius F., 176 A.D.2d 940, 941; Matter of Jammie CC., 149 A.D.2d 822; Matter of Everett S., 62 A.D.2d 1069, 1070; Matter of L. Children, 131 Misc.2d 81, 90-91).
Although the Family Court acknowledged that Social Services Law § 384-b(4)(c) contains no requirement that the petitioner prove it exerted "diligent efforts" to reunite the family in a proceeding based upon mental retardation, it nonetheless required the petitioner to establish that it had, in fact, engaged in those efforts in order to prove a case for termination. The Family Court erred in imposing this additional condition which is not set forth in the statute. If due diligence is to be made a requirement of a proceeding to terminate parental rights based upon mental retardation, it is a matter for the Legislature and not the courts ( see Matter of Anonymous, supra at 102).
In light of the Family Court's focus on the lack of diligent efforts by the petitioner, we find the hearing record insufficient to enable this court to make the requisite findings of fact. Accordingly, the matters must be remitted to the Family Court, Kings County, for a new fact-finding hearing and new determinations.
FLORIO, J.P., SCHMIDT, TOWNES and CRANE, JJ., concur.