I broke up blocks of text in separate sentences for easier digestion.
The decision is by the highest court of the State of New York, Court of Appeals, so it is a mandatory precedent for all courts across the state of New York.
=======
29 N.Y.2d 196 (1971)
In the Matter of Spence-Chapin Adoption
Service, Respondent,
v.
Herbert Polk et al., Appellants.
The People of the State of New York ex rel. Leo H. Barry, Respondent,
v.
Spence-Chapin Adoption Service et al., Respondents, and Herbert Polk et al.,
Appellants.
Court
of Appeals of the State of New York.
Argued September 7, 1971.
Decided September 23, 1971.
Edward L. Sadowsky, James
H. Goodfriend, Stacy L. Wallach and Stanley Posess for
appellants.
Roy L. Reardon and James
Wawro for respondent.
Leo H. Barry, pro se, respondent.
Helen L. Buttenwieser for
New York Civil Liberties Union, amicus curiae.
Chief Judge FULD and Judges BURKE, SCILEPPI,
BERGAN, JASEN and GIBSON concur.
198*198
BREITEL, J.
These are two proceedings.
One is by the
Spence-Chapin Adoption Service, to recover the custody of a three-year-old
child from the Polks, foster care "custodians" to whom the agency had
delivered the child for compensated foster care to be returned on demand.
The
other is by the unwed mother of the child to regain custody.
Neither proceeding
is an adoption proceeding and the child has never been placed for adoption.
Nor
has any authorized person or agency brought any proceeding to establish the
unfitness of the mother to retain custody of her own child, nor has there been
any proof of unfitness, albeit there have been findings of inadequate plans by
the mother to care for the child.
The Polks resist the proceedings and assert
some inchoate right to custody and eventual adoption contending that the mother
is incapable of providing adequate care for the child.
While there had been a
statutory written surrender of the child's custody looking to adoption, the New
York City Commissioner of Social Services consented to the return of the
custody of the child to the mother, a consent joined in by the agency, thus
nullifying the surrender as if it had never been.
These salient circumstances
distinguish this case from others in which a child has been surrendered and the
surrendering parent has sought judicial assistance in undoing the surrender
(cf. People
ex rel. Scarpetta v. Spence-Chapin Adoption Serv.,
28 N Y 2d 185) or where prospective adoptive parents have
had custody looking to adoption and have sought to retain the child against the
wishes of a mother who has changed her mind (e.g., People
ex rel. Anonymous v. New York Foundling Hosp.,
17 A D 2d 122, affd. 12
N Y 2d 863).
Thus the issue is not, as the Polks would have
it, whether one choice of custody or another is better for the child, or, put
another way, whether the Polks would raise the child better than would the
unwed mother, or which cultural or family background would be best for the
child.
Least of all is the issue that of comparing the quality and depth of
love and affection between the child and those who would compete for its
custody.
Nor is the issue whether natural parents or adoptive parents make
"better" parents, whatever that may mean.
The power of
the State, let alone its courts, is much narrower.
Child and parent are
entitled to be together, unless compelling reason stemming from dire
circumstances or gross misconduct forbid it in the paramount interest of the
child, or there is abandonment or surrender by the parent.
A baby born
out-of-wedlock, even of a troubled mother, is not no-one's child.
In the
inimitable vernacular, it is not "up for grabs".
It is not a waif
claimable by the first finder, however highly qualified.
The Family Court misconceived the nature of
the proceedings and considered itself free to determine conscientiously in
whose custody the child would fare best, the foster care custodians, the
natural mother, or some future adoptive couple of Chinese extraction.
The
Appellate Division correctly determined that the court was without power, absent
abandonment of the child, statutory surrender outstanding, or the established
unfitness of the mother, to deprive the mother of custody.
Since none of these
factors was present the natural mother was entitled to obtain the custody of
her child, and the child was entitled to be returned to its mother.
It so
directed, and the order should be affirmed.
On June 13, 1968 the mother bore the child, a
little girl, out of wedlock.
She was then 19 years of age, a native of China
who had come to this country with her family in 1963.
The father of the child
was also of Chinese extraction, married, with four children of the marriage.
She concealed the illegitimate birth from her parents and siblings, except one
married sister.
All are of the lower economic level from Manhattan's
"Chinatown".
Because of the complications in her own family and in
that of her paramour, she gave the child to the New York City Commissioner of
Social Services for temporary care but not for adoption.
Five months later the
Spence-Chapin agency, having received the child from the Commissioner, placed
it with the Polks for foster care, as it had previously done with some 16 (or
18) other children, to be returned on demand, as the Polks had faithfully done
with other children entrusted to them by the agency.
While the child was with
the city nursery the mother visited the child biweekly, and while it was with
the Polks on Long Island once a month, with inconsequential exceptions.
It is
evident that she sought to maintain her relationship with the child despite the
obvious hurdles, and from time to time made plans
which she discussed with the agency.
None of these plans was desirable and on
the agency's advice none was essayed.
In March, 1970, as the child approached two
years of age, the agency insisted that a permanent arrangement be made.
It
finally convinced the mother on May 12, 1970 to execute a written surrender of
the child and authorize adoption by adoptive parents, pursuant to section 384
of the Social Services Law.
She orally conditioned her agreement that the child
be placed with adoptive parents of Chinese extraction. The fact of the oral
condition is undisputed.
At this point the Polks, who had formed a deep
attachment for the child, were encouraged, they say, to believe they could keep
the child.
Indiscreet or misunderstood remarks were made to Mrs. Polk by a
novice caseworker that they would be eligible to or could adopt the child.
After obtaining the surrender, the agency had some initial difficulty, soon
resolved, in finding adoptive parents of Chinese extraction.
In any event, it
was shortly after the surrender that the agency demanded the return of the
child.
The Polks, in breach of their obligation, refused, and instead demand the
right to adopt the child.
In the meantime, the mother concerned about
what was happening to her child, learned from the agency that no placement for
adoption had taken place, that the Polks were illegally retaining the child and
asserting a right to adopt it.
She then, on September 30, 1970, demanded the
return of the child.
The Commissioner of Social Services, joined in by the
agency, consented to the return of the custody, as permitted by the statute
(Social Services Law, § 383, subd. 1).
Then ensued these proceedings, during
which, at one point, the Polks removed themselves and the child from the State
in order to be beyond the jurisdiction of its courts.
On the day of the argument of this appeal the
Commissioner of Social Services addressed a letter to the Polk lawyer
purporting to have changed his mind and stating that he is ready to consent to
the adoption of the child by the Polks.
Apart from the doubtful judgment of
making such an abrupt ex parte communication while the case is sub
judice, and the obligation of the court to determine issues on the record
made, the letter has no effect.
Once the surrender had been nullified by the
consent to return
custody to the mother, only by a new surrender, or a judicial undoing of the
consent, could the mother be deprived of the custody of her child.
As noted
earlier, there is no adoption proceeding pending, and, as observed later, there
is unlikely to be one unless the mother consents.
These are the nub facts of the case.
There is
much more about religious and racial differences between the Polks and the
child, and whether a "Chinatown" background of the mother and her
immediate family was appropriate for a child now exposed for three years to an
occidental and suburban culture.
There is also much about the love and
affection the Polks have for the child and the child for them, and about the
inadequate or undesirable plans the mother has had for raising the child.
All
of these factors would be material, perhaps, if the State had the power to
wrest a child from its mother in the absence of abandonment, outstanding formal
surrender, or demonstrated unfitness as distinguished from what others might
regard as inadequate plans for its upbringing.
It has no such power, nor should
it have.
There has been no serious effort to assert,
let alone establish, abandonment of the child.
There has been, it is true, assertion
of unfitness, but the problems the mother has are no greater nor different than
for other young unmarried mothers, further complicated by her particular
circumstances.
There is a chasm between unfitness for parenthood and what is
only troubled parenthood, or poverty, or difficulty in resolving plans for a
child's upbringing.
Even if she has not lived wisely, the mother loves and is
concerned for her child, even as the Polks have demonstrated by their
extraordinary breach of trust and illegal actions, that they too care for the
child.
Only the one-time delivery and surrender of
the child by the mother stands as an arguable issue in the case.
The statute is
explicit, however.
It provides: "The parent of a child remanded or
committed to an authorized agency shall not be entitled to the custody thereof,
except upon the consent of the court, public board, commission, or official
responsible for the commitment of such child, or in pursuance of an order of a
court or judicial officer of competent jurisdiction, determining that the
interest of such child will be promoted thereby and that such parent is fit,
competent and able to duly maintain, support, and educate 202*202
such child." (Social Services Law, § 383, subd. 1.)
In this case the child
had been committed to the New York City Commissioner of Social Services.
Upon
his consent, which he gave, the mother became entitled to the untrammeled
custody of the child.
That is the end of it.
Incidentally, insofar as the Polks
are concerned, subdivision 2 of the same statute makes clear that as foster
care "custodians" they never had true custody.
That custody was in
the Spence-Chapin agency by delegation from the Commissioner of Social
Services.
Of course, had the Commissioner or the agency refused to consent to
the return of the child to the mother, the case would be different, and the
mother would have had the burden of undoing her surrender as in People
ex rel. Scarpetta v. Spence-Chapin Adoption Serv.,
28 N Y 2d 185, supra.
But even on a superficial
examination it is apparent that there was a reasonable basis for the
Commissioner's act in consenting and that act is therefore beyond further
review by the courts, assuming for this purpose that the Commissioner's act is
at all reviewable (cf. Matter
of Jewish Child Care Assn. [Sanders], 5 N Y 2d 222, 228, infra).
As noted earlier, irrelevant are cases
concerned with the undoing of a surrender by the mother (e.g., People
ex rel. Scarpetta v. Spence-Chapin Adoption Serv., supra,
based on invulnerable affirmed findings of fact beyond review by this court,
but restating the applicable law and principles governing a child found to have
been improvidently surrendered for adoption to proposed adoptive parents).
One
reported case in this State concerned with foster care custodians who became
too attached to the child is Matter of Jewish
Child Care Assn. (Sanders), (supra).
There are parallel facts.
A child was born out-of-wedlock and placed in foster
care while the mother made the painful struggle to effect a suitable
arrangement for its upbringing.
By the time arrangements were ready, the foster
care custodians rebelled against yielding up the child, as did the Polks,
"contrary to their own agreement and in violation of their trust." (id.,
at p. 228).
The court sustained the right of the mother to her child and of the
child to be with its mother.
It said, through the late Chief Judge CONWAY:
"The nature of this case requires one further basic statement.
What is
essentially at stake here is the parental custodial right.
Although Child Care
has the present legal right to custody (Social Welfare Law, § 383, subd. 2) it
stands, as against the Sanders, in a representative capacity as the protector
of Laura's mother's inchoate custodial right and the parent-child relationship
which is to become complete in the future.
Any future physical legal custody in
Laura's mother would be but an empty right, if the emotional substance of that
relationship were permitted to be replaced antecedently by the parent-like love
and possessiveness of Mr. and Mrs. Sanders.
This court has acknowledged that `*
* * the right of a parent, under natural law, to establish a home and bring up
children is a fundamental one * * *.' (People
ex rel. Portnoy v. Strasser, 303 N.Y. 539, 542, supra.)
In support of this tenet we have declared that `Except where a nonparent has
obtained legal and permanent custody of a child by adoption, guardianship, or
otherwise, he who would take or withhold a child from mother or father must
sustain the burden of establishing that the parent is unfit and that the
child's welfare compels awarding its custody to the nonparent.' (People
ex rel. Kropp v. Shepsky, 305 N.Y. 465, 469, supra.)
A proper application of these doctrines requires the conclusion that foster
parents may not succeed in a proceeding such as this, where the child
temporarily in their care is to return to its natural parent, in accordance
with the trust accepted by the foster parents for compensation, in the absence
of a clear showing that to return the child to the boarding agency will operate
to its grave detriment.
The paramount parental right to raise one's own child,
which we regard as fundamental, is to be protected not only from directed and
immediate incursion, as in the Shepsky and Strasser cases,
but also from indirect and less proximate subversion, such as in the case
before us." (5 N
Y 2d 222, 229-230).
People
ex rel. Kropp v. Shepsky (305 N.Y. 465), cited
in the Sanders case, although it involved a surrender set
aside, or perhaps, a fortiori, because it did, restated the fundamental
principles that an unwed mother has a parental right and duty to custody, and
that primacy of parental rights may not be ignored.
Thus Chief Judge FULD
stated on behalf of the court: "Apart, however, from such special and
weighty circumstances, the primacy of parental rights may not be ignored. In no
case may a contest between parent and nonparent resolve itself into `a simple
factual issue as to which [affords] the better surroundings, or as to which
party is better equipped to raise the child.' (People
ex rel. Portnoy v. Strasser, supra, 303 N.Y. 539, 542.)
And that is true even if the nonparent initially acquired custody of the child
with the parent's consent. (See, e.g., People
ex rel. Beaudoin v. Beaudoin, supra, 126 App. Div. 505, 507, affd. 193
N.Y. 611; cf. Matter
of Bistany, 239 N.Y. 19.)"
(305
N.Y. 465, 469) and further: "In other words, the
burden rests, not, for instance, upon the mother to show that the child's
welfare would be advanced by being returned to her, but rather upon the nonparents
to prove that the mother is unfit to have her child and that the latter's
well-being requires its separation from its mother." (305
N. Y. at 469).
Of course, this does not mean the child's
rights and interests are subordinated.
The principle rests on the generally
accepted view that a child's best interest is that it be raised by its parent
unless the parent is disqualified by gross misconduct.
That the generalization
has myriads of exceptions is equally true, but the exceptions do not contradict
the verity of the principle.
What has been discussed thus far are not
merely legal principles.
They are legal principles, to be sure, but they also
reflect considered social judgments in this society respecting the family and
parenthood, or else they could not survive as legal principles.
But it is of merit to refer to some pragmatic
circumstances.
Before the present contretemps, the Polks had been used by the
agency in some 16 foster care assignments.
They were good at these compensated
assignments, and undoubtedly the agency in choosing them made the
investigations and the determinations of their qualification for foster care.
It is obvious that the investigations and judgments required to select adoptive
parents are of a different order (but see Social Services Law, § 383, subd. 3).
The five children of the Polks were a decided advantage in a foster care
arrangement and perhaps another matter in adoption.
The attained age of the
Polks in foster care — a temporary assignment always — is of different
consideration than when evaluated for the life-time assignment in prospective
adoption.
Then there are the matters of race and religion about which
reasonable persons may and do differ.
But that the mother should have the say
on issues of race and religion seems reasonable and is accepted doctrine, so
long as she has not abandoned the
child or is unfit (cf. Pierce
v. Society of Sisters, 268 U. S. 510, 534-535; Meyer
v. Nebraska, 262 U. S. 390, 399-402).[*]
Looming as important, even though less
important than the controlling factors, is that foster care custodians must
deliver on demand not 16 out of 17 times, but every time, or the usefulness of
foster care assignments is destroyed.
To the ordinary fears in placing a child
in foster care should not be added the concern that the better the foster care
custodians the greater the risk that they will assert, out of love and affection
grown too deep, an inchoate right to adopt.
The temporary parent substitute
must keep his proper distance at all costs to himself.
A case like this evokes compassion, most of
all for the child, but at the same time it must be recognized that even in a permissive
society the bearing of an illegitimate child has most often the effect of true
tragedy — as irreversible as the breaking of an egg.
In the Scarpetta case
(supra) Judge JASEN said to the point: "It is or should be obvious
that the surrender of a child by its parent, whatever the circumstances or
reason, has elements of tragedy in it and that pain, feelings of guilt, and
suffering will not be avoided whatever course is taken.
And, of course, the
foster parents who hope to adopt the child are necessarily touched by the
tragedy, guiltless and otherwise uninvolved though they be, if perchance the
child is wrested from them on the annulling of a surrender." (28
N Y 2d 185, 188-189). And that case involved a child delivered
for prospective adoption, a circumstance absent from this.
Accordingly, the order of the Appellate
Division should be affirmed, without costs.
Order affirmed.
[*] Of critical
significance, too, is the fact that in the absence of the mother being found
unfit the adoption of the child by another could never take place. In the
absence of abandonment, surrender, or unfitness the mother's consent to
adoption is essential (Domestic Relations Law, § 111).
Thus, even if the Polks
were given custody, adoption might never ensue.