Wednesday, September 14, 2022

A pre-US Supreme Court Santosky v Kramer case, and a pre-ASFA case: just read it. A very good argument about how Social Services apply the wrong standards and undermine their own efforts developing parental skills in a poor and financially strapped family. ASFA only made it worse.

 89 Misc.2d 730 (1977)

In the Matter of John Santosky, III, et al., Children under the Age of Eighteen Years Alleged to be Permanently Neglected.

Family Court, Ulster County.

January 28, 1977

Richard W. Griggs for Department of Social Services. Ricken, Goldman & Sussman (Alan N. Sussman of counsel), for respondents. Jay L. Samoff, Law Guardian for children.

731*731HUGH R. ELWYN, J.

Each of the respondents' three children have been adjudicated to be neglected children within the meaning of article 10 of the Family Court Act and placed with the Commissioner of Social Services for an initial period of 18 months, subject to the further order of the court. Tina Frances Apel, age five, has been in foster home placement since November 20, 1973; John Santosky, age three, since September 30, 1974 and Jed Conrad Santosky, age two, since September 30, 1974. The court takes judicial notice of its own records that relate to the proceeding before it (Matter of Denlow, 87 Misc 2d 410, 411-412, and cases there cited).

Upon the most recent application for an extension of the placement of the child, Tina Frances Apel, this court, after an extensive hearing, in a written opinion granted the commissioner's 732*732 application for a one-year extension and by its order of December 31, 1975 ordered that:

1. The Commissioner of Social Services and his duly authorized agents undertake renewed diligent efforts to encourage and strengthen the parental relationship;

2. The Commissioner of Social Services formulate a specific plan of action for the implementation of this directive which shall include, as a minimum, plans for assisting the respondents by every feasible means in obtaining adequate housing, employment, family counseling, medical and psychiatric treatment;

3. The commissioner report such plan to the court within 30 days and keep the court advised of progress toward the goal of returning the child to her natural parents at the earliest date consistent with the child's safety and welfare.

Pursuant to the court's order the Commissioner of Social Services on January 28, 1976 filed a written "Plan of Service for Tina Frances Apel and Annie and John Santosky", which plan was approved by the court and which has been deemed to be applicable to the two other Santosky children who are similarly situated.

Seven months later on September 8, 1976, the Commissioner of Social Services and his authorized deputies, thoroughly frustrated in their efforts to implement their plan of services to the Santosky family and apparently convinced of the futility of further efforts to upgrade the level of the Santoskys' parental capacities to a point where the children could safely and prudently be reunited with their parents, filed petitions under article 6 of the Family Court Act charging the respondents with permanent neglect. The petitions contain all the necessary allegations required by section 614 of the Family Court Act.

Although the petitions allege that "notwithstanding your Petitioner's efforts, said parent has failed for a period of more than one year following the placement or commitment of said child to the care of your petitioner, substantially and continuously or repeatedly to maintain contact with and plan for the future of the child although physically and financially able to do so" (Family Ct Act, § 614, subd 1, par [d]), it was not contended nor was any proof offered at the trial that the parents had failed to maintain contact with then children. The commissioner relies solely upon the parents alleged "failure 733*733 to plan for the future of their children" to support a finding that the Santosky children are permanently neglected (Matter of Orlando F., 40 N.Y.2d 103).

The supervisor of the child abuse and neglect unit of the County Department of Social Services and the case worker in charge of the Santosky case each detailed at length the agency's multifaceted efforts to encourage and strengthen the parental relationship through the implementation of the plan for services, both before and after the plan was reduced to writing at the direction of the court. Such efforts consisted of, among other things, offering to the Santoskys the services of two mother's aides and a nutritional aide to assist in the improvement of home management skills; staff from the public health nursing service which offered the services of a well baby clinic; the services of the Family Service Center to counsel and aid in family planning; the psychiatric and psychological services of the Southern Ulster Mental Health Center and, for Mr. Santosky, job training through the office of Vocational Rehabilitation and Gateway Industries. In addition to all these services the Santoskys continued to receive all public assistance benefits from the Department of Social Services, including food stamps and Medicaid for themselves and new born baby. In short, ever since the Santosky children have been in foster home placement, the parents have not only had offered, but diligently urged upon them, every social service available in Ulster County which could conceivably have helped the Santoskys in achieving a goal of the eventual reunion of the family.

I am satisfied that the preponderance of evidence in this case supports a finding that the Ulster County Department of Social Services has indeed made diligent efforts to encourage and strengthen the parental relationship, albeit with minimal success. All three children who are but five, three and two years of age are found to be under 18 years of age and are presently in the care of the Ulster County Department of Social Services, an authorized agency.

Consequently, the court finds that the allegations of section 614 (subd 1, pars [a], [b], [c]) of the Family Court Act are supported by a fair preponderance of the evidence (Family Ct Act, § 622). The more difficult and troublesome question is whether the allegation required by section 614 (subd 1, par [d]), i.e., the respondents' failure to "substantially * * * plan for the future of the child" has been satisfactorily proven. To 734*734 this question, which merits some discussion, attention is now turned.


"A finding of a failure to plan, in and of itself, suffices to support a determination of permanent neglect (see Matter of Barbara P., 71 Misc 2d 965)." (Matter of Orlando F., 40 N.Y.2d 103, 110, supra.)

The phrase, "substantially to plan for the future of the child" has been defined by the courts in numerous decisions (see, e.g., Matter of Jones, 59 Misc 2d 69, 73Matter of Stephen B., 60 Misc 2d 662, 668, affd sub nom. Matter of Behrman, 34 AD2d 527Matter of Barbara P., 71 Misc 2d 965Matter of Joyce Ann R., 82 Misc 2d 730Matter of Orzo, 84 Misc 2d 482, 489Matter of Orlando F., 40 N.Y.2d 103, 109; cf. Matter of Sydney, 84 Misc 2d 932, 934) and more recently by statute (Social Services Law, § 384-b, subd [7], par [b], added by L 1976, ch 666, § 3, eff Jan. 1, 1977).

In Matter of Jones (supra, p 73) the earliest reported case construing the phrase, the court said: "Construing the statutory phrase to `substantially * * * plan for the future of the child' in the light of the statutory purpose, the court holds that it requires the parent to plan constructively in a manner that he can and does attempt to implement. To `plan', according to Webster's Dictionary, means to `project, program, schedule'; the connotation is activist. Since the statutory mandate is that the parent plan for the child's `future', it does not require the consumation of the parent's plan to care for the child within the year of planning. However, the `substantiality' of the plan for the particular parent must be evidenced by his performing some act to advance its accomplishment. Unless `substantially plan' is so interpreted, the provision that the parent must be `physically and financially able' to plan (in order for his failure to do so to be significant), would be pointless, for physical or financial capability is irrelevant to a phantasy-plan."

The definition of the phrase "substantially plan" articulated in three Family Court decisions (Matter of Stephen B.supraMatter of Barbara P.supra and Matter of Orzosupra) was adopted verbatim by the Court of Appeals in its decision in Matter of Orlando F. (supra, p 110) where it said: "To `substantially plan' `means to formulate, and act to accomplish, a feasible and realistic plan' (Matter of Stephen B., 60 Misc 2d 662, 668, affd sub nom. Matter of Behrman, 34 AD2d 527735*735 see, also, Matter of Orzosupra, p 489)."

For the converse, or what does not constitute "planning" the language of the decision in Matter of Joyce Ann R. (supra, pp 732-733) is instructive. "As to the respondent, the cases establish that `negative' argument tending merely to veto agency proposals does not constitute planning. Standards of substantiality, constructiveness, and attempted implementation must be met (Matter of Stephen B., 60 Misc 2d 662, supra; Matter of Jones, 59 Misc 2d 69, supra.) * * * The agency must therefore perform efficiently, diligently, and in good faith. The parent must demonstrate effort, good faith, and minimum adequacy as a planning parent. (Cf. dissent in Matter of Klug, 32 AD2d 915-917)."

The foregoing case law has been codified by the enactment by the 1976 Legislature of section 384-b of the Social Services Law (L 1976, ch 666 § 3, eff Jan. 1, 1977). Section 384-b (subd [7], par [c]) now defines the phrase, "to plan for the future of the child" as follows: "As used in paragraph (a) of this subdivision, `to plan for the future of the child' shall mean to take such steps as may be necessary to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent. The plan must be realistic and feasible, and good faith effort shall not, of itself, be determinative. In determining whether a parent has planned for the future of the child, the court may consider the failure of the parent to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available to such parent."

The period of neglect required to trigger the permanent neglect statute need not be the interval immediately prior to the filing of the neglect petition (Matter of Stephen B., 60 Misc 2d 662, 667, affd sub nom. Matter of Behrman, 34 AD2d 527, supra; Matter of Joyce Ann R., 82 Misc 2d 730, supra) but may embrace earlier periods of time.


In approaching a discussion of this question the court is mindful of the admonitions of the Appellate Division, Third Department, in Matter of Peter "DD" v St. Lawrence County Dept. of Social Servs. (48 AD2d 956) where the court said: "I would caution that the section itself is extremely harsh and 736*736 seems contrary to human instincts and should only be implemented under the most stringent circumstances" and also in Matter of Anthony "CC" (48 AD2d 415, 418-419, mot for lv to app den 37 N.Y.2d 708) where upon reaffirming Matter of Peter "DD" (supra) the court said: "[T]he statute [Family Ct Act, art 6] should be construed in favor of the mother because of the human relationship." (See, also, Matter of Denlow, 87 Misc 2d 410, 419, n 9, p 418.)

This court as have other courts, in previous decisions, also takes note of the disparity in the position of the agency and the parents and of the wide gulf across which, from their polarized positions, they view the problem. For instance, in Matter of Joyce Ann R. (82 Misc 2d 730, 733, supra) the court observed, "However, the agency and the natural parent cannot be viewed as equals in the planning process. First, almost by definition, the agency operates from a background of professional resources and accumulated experience; this parent from a background of mental stress, financial handicap, and insecurity." And in Matter of Sydney (84 Misc 2d 932, 934, supra) the court noted: "The parties are by no means dealing on an equal basis. The parent is by definition saddled with problems: economic, physical, sociological, psychiatric, or any combination thereof. The agency in contrast is vested with expertise, experience, capital, manpower and prestige. Agency efforts correlative to their superiority is obligatory."

Obviously the parents' plan for the future of their children may not be judged by the standards applicable to an affluent social elite nor, at the other extreme, are they to be judged solely in the light of the "class mores of poor, black, and unschooled persons" (Matter of Barbara P., 71 Misc 2d 965, 973). Some middle ground must be set. Yet in a modern society which likes to think of itself as enlightened and civilized there is somewhere a minimal level of parental capacity and responsibility below which, in the interest of the child, the standard cannot be permitted to fall.

The Court of Appeals in its decision in Matter of Orlando F. (40 N.Y.2d 103, supra) was aware of the dilemma posed by the necessity for fixing some standard of performance for persons who by reason of their low level of performance as parents are charged with the neglect of their children. The difficulties inherent in the situation are, however, no reason not to attempt to measure the capabilities as parents of just such persons. Having made its decision, the Court of Appeals then 737*737 attempted to set some guidelines for the lower courts in judging such parents. The court wrote (pp 111-112): "In so deciding, we take heed of the warning that: `Substantial planning' may appear in this discussion to demand a degree of self-awareness, insight and resolution that most people lack, especially perhaps the mother of a child in long-term foster care. Yet the statute was designed to measure the interests and capabilities of just such a person. Therefore, so that the planning requirement will not become simply a device to permit termination in nearly all cases where the other statutory conditions are met, the standards to evaluate the adequacy of the parent's plans should not be set unrealistically high. Courts will have to act with sensitivity and care in determining whether the parent's plans are sufficiently credible and sound to satisfy the statutory requirement.' (Gordon, Terminal Placements of Children and Permanent Termination of Parental Rights: The New York Permanent Neglect Statute, 46 St. John's L Rev 215, 236-237; see, also, Matter of Jones, 59 Misc 2d 69Matter of Clear, 58 Misc 2d 699.) We need not formulate, under the instant facts, an exact standard which must be met in order to comply with the statutory mandate in light of respondent's utter failure to exert even a minimal attempt to develop a plan for her child's future. Indeed, each factual pattern will undoubtedly reveal peculiarities of its own but the particular facts and totality of circumstances must be scrutinized and weighed carefully in rendering decisions in such delicate human affairs (cf. Matter of Klug, 32 AD2d 915)."

It is in the light of these principles, that the adequacy of the Santoskys' plans for the future of their children and their failure to accomplish those plans to the agency's satisfaction must be evaluated.


The urgency of the children's need for a permanent and stable home was convincingly established by the expert testimony of the director of the Albany Child Guidance Center. Nevertheless, as urgent as that need is and as commendable as is the agency's desire to provide such a home through the medium of adoption, the agency may not be permitted to utilize the planning requirement simply as a device to accomplish that end, even though all other statutory requirements are met. "[T]he standards to evaluate the adequacy of the 738*738 parent's plans should not be set unrealistically high. [This court] will have to act with sensitivity and care in determining whether the parent's plans are sufficiently credible and sound to satisfy the statutory requirement" (Matter of Orlando F.supra, p 111).

Counsel for the agency deplores the failure of the Santoskys to articulate "their hopes, their aspirations, their dreams, their plans for any of their three children"; their lack of insight or awareness of the need to do anything affirmative to regain their children; in short, their apparent lack of love and affection for their children or concern for anyone but themselves. It must be conceded that there is no proof that the Santoskys ever "formulated a plan" themselves. On the other hand, no one ever told them that they had to do so or risk the permanent loss of their children. It was enough, they thought, to try their best to meet the agency's demands upon them in implementation of the agency's plan — the only real plan for the future of the children. "Neither articulation nor abstract reasoning are a sine qua non to compliance where purposeful acts are significantly present" (Matter of Sydney, 84 Misc 2d 932, 934, supra).

With respect to the agency's plan, the Santoskys were at first nonresponsive, even hostile; to this day there remains, particularly within Mrs. Santosky, a deep seated resentment and bitterness toward the agency, its personnel and its plans for their betterment for what she regards as an unwarranted interference with her family. Yet in spite of this smoldering resentment, the proof shows that the Santoskys have, since the formulation of the agency's written plan and particularly in the last several months before the trial, been at least superficially co-operative. Mrs. Santosky has, for instance, accepted the services of a mother's aide and a nutritional aide and has taken her baby to a well baby clinic, and to a doctor when ill, both parents have consulted with a psychiatrist, psychologist and psychiatric social worker at the Southern Ulster Mental Health Clinic, both parents have consulted over a period of more than four months with the director of the Family Service Center and Mr. Santosky has pursued, albeit somewhat sporadically, a course of vocational training at the office of Vocational Rehabilitation Center and Gateway Industries. Moreover, since the removal of their children to foster care, the parents have moved into larger and more suitable living accommodations and have pathetically furnished the 739*739 children's room with children's furniture, toys and stuffed animals against the day of their return. Thus while they may not have taken all the "steps as may be necessary to provide an adequate stable home and parental care", they have taken such steps as they are able "within a period of time which is reasonable under the financial circumstances available to [them]" (Social Services Law, § 384-b, subd [7], par [c]).

The agency's diligent efforts to encourage and strengthen the parental relationship having at last begun to pay off the agency ironically now finds itself in the awkward position of attempting to denigrate the success of its own efforts in order to demonstrate the failure of the parents to plan. The agency's chief complaint is that the Santosky's co-operation with its plans to effect their betterment and improve their parental skills has been begrudgingly bestowed and has been at best superficial and perfunctory. Consequently, the agency's assessment of the degree of improvement in the parents' over-all capacity to function as adequate parents for their children is so minimal and their view of the prospects for any further improvement so bleak as, in its judgment, to render any further efforts on the agency's part futile.

Even though the benefits so far realized from their efforts may, as the agency contends, have been minimal or even nonexistent, the proof does show that the parents have to a degree utilized the "medical, psychiatric, psychological and other social and rehabilitative services and material resources made available [to them]" (Social Services Law, § 384-b, subd [7], par [c]). The court is, therefore, willing to give the respondents the benefit of the doubt (Matter of Anthony "CC", 48 AD2d 415, 418-419, supra) and find good faith effort on their part to co-operate with the agency in its plans for the children's future. Such co-operation, including the move to more spacious living quarters and Mr. Santosky's efforts to improve his job skills by attending the program offered by the office of Vocational Rehabilitation constitutes "planning" by conduct (Matter of Sydney, 84 Misc 2d 932, 934, supra). The law declares, however, that "good faith effort shall not, of itself, be determinative" (Social Services Law, § 384-b, subd [7], par [c]).

The agency's case against these parents has within it, moreover, two fundamental and fatal flaws which prevent the court from terminating permanently these parents' rights to their own children, despite their serious inadequacies. First, because the agency can see no tangible benefits accruing from 740*740 its efforts to provide services to the Santoskys and view the prospects for further improvement within any length of time that might be considered reasonable in the light of the urgent needs of the children for a stable and permanent home as hopeless, they regard their plans as a failure. In short, because plans for the children's future, whether the agency's plan or the parents' plan, have yet to bear fruit, it is said, that the children's best interests demand that these parents should suffer the permanent loss of their children. But the law does not require the consummation of the plan (Matter of Jones, 59 Misc 2d 69, 73, supra); only that the parents "formulate" a plan and "act to accomplish" it (Matter of Orlando F., 40 N.Y.2d 103, 111, supra). While the Santoskys' plans for the future of their children are indeed nebulous and have never been articulated, they have "acted to accomplish" the agency's plans. If the plan is "feasible and realistic" and purposeful acts looking toward its accomplishment are significantly present, that is all that is required to thwart the law's attempt to deprive them permanently of their children.

Secondly, the parents' obligation to "substantially * * * plan for the future of the child" is qualified by the phrase "although physically and financially able to do so" (Family Ct Act, § 614, subd [d]), and as to that aspect of the case the petitioner's proof will not support a finding. In construing the statute, the court cannot ignore the qualifying phrase, "although * * * financially able to do so" for in construing a statute the court must give meaning and effect to all its language, if possible, and words are not to be rejected as superfluous when it is practicable to give to each a distinct and separate meaning (McKinney's Cons Laws of NY, Book 1, Statutes, § 231). While the agency offered no proof to show that the parents are physically capable of discharging their parental responsibilities, neither did the respondents claim any physical infirmity. However, the respondents' financial ability is zero; for it is undisputed that except for one brief period of a few weeks in 1975 when Mr. Santosky was employed as a laborer, he continues to be unemployed without income or any other financial resource. Moreover, until Mr. Santosky completes his vocational rehabilitation training at the office of Vocational Rehabilitation he is probably, given the present state of the economy and high rate of unemployment, for all practical purposes, unemployable. The Santoskys' financial inability may not fairly be said to be the result of 741*741 their own transgressions (cf. Matter of Anthony "CC", 48 AD2d 415, 418, supra).

The Santoskys do of course receive full public assistance, including food stamps and Medicare. However, it would take a strained construction indeed of the phrase "financially able to do so" to include as a financial resource public assistance, which for the foreseeable future is the Santoskys only source of income. Their very eligibility for full public assistance presupposes that they are "financially unable".

Consequently, the Santoskys' failure to plan for the future of their children has to be excused, if not by their intellectual deficiency and emotional immaturity, then by their poverty. A welfare budget presumably provides for the respondent's current minimal needs, but makes no allowance for financing plans for the future. The Social Services Department would fault these parents for their failure to plan for the children's future, yet will not provide them with the financial resources to do so. Secure, "even presumptuous, in its assumption of its own rectitude in the handling of what is one of the insoluble problems in a particularly disturbed part of our society", the agency has concluded that these parents are so hopelessly unfit as to be unworthy of the further expenditure of their limited resources (see Matter of Irene O., 38 N.Y.2d 776, 778). "The destruction of the poor is their poverty"[1], but they should not suffer the permanent loss of their children because caught up in this "Catch 22" situation.

For failure of proof of an essential element (Family Ct Act, § 614, subd [d]) this petition charging the respondents with the permanent neglect of their children must be dismissed (Family Ct Act, § 632, subd [a]). The result is unfortunate for the children who deserve better and whose future is left uncertain. Since there is just no way that these parents can be charged with fault for having failed to plan for the future of their children while financially unable to do so, society's only recourse is to redouble its efforts to raise these parents to an acceptable minimal level of competency as parents, so that their children may one day be returned to them. The case is but another sorry reminder of the intractability of the human condition expressed in Jesus' aphorism: "For the poor always ye have with you."[2]

[1] King James Version, Proverbs 10:15.

[2] King James Version, St. John 12:8.

Tuesday, May 3, 2022

On lucrative policies of child-trafficking (now to gays from the local tribe-embedded mandatory reporters) in Delaware County (NY) DSS

When I saw the cringey-sweet ad about a gay couple adopting a little boy with the help of Delaware County (NY) Department of Social Services (and saving $100,000 on the adoption - one of the adoptive parents, Dan Endress, had to mention that detail), I knew I need to dig the adoptive parents' backgrounds.

Because I have lived in Delaware County for 16 years, and during those entire 16 years either my husband, or we together, or I alone represented parents against that same Department of Social Services - I know Delaware County DSS, their mafia and their mafia tricks VERY WELL.   

Delaware County as a whole is (some call it "a land of kissing cousins") - tribal, clannish, and its DSS is even more so.

Moreoever, I know for a fact that Delaware County DSS never act as good Samaritans to anybody outside of their circle.

Moreover, as an attorney, I know how gay-averse local public figures are, so, when I saw this particular joyous piece, I started to dig for answers - and boy what I, of course, found. 

First of all, for some interesting reason, DSS in its ad changed the name of one of the adoptive parents.

It showed him as a "Sean Kaufmann".

In fact, in his mother's obituary and in homeowner's records he is shown under a different name, Shawn Kauffman.

I wonder why Delaware County had to change his name - but not the name of his partner, Dan Endress, in this ad.  Possibly, so that his adoption would not show up in Internet searches.  But - he is already in a public ad by the government, so in for a penny, in for a pound. 

What is also interesting - I didn't find anything, but will be grateful for tips from local readers, what kind of position does Shawn Kauffman have in Delaware County.  Very, very interesting.

As to Daniel Endress, it turned out that, while - I KNOW FOR A FACT as an attorney who consulted gays in the area - that SUNY Delhi discriminated against and squeezed out gays from its employment (out-of-the area gays, mind, not rooted deeply through partnership with a local large tribe, like Endress is), Daniel Endress is "our kind of gay" in Delaware County, part of the local tribe and thus entitled to gifts.

Of children.

I also know from my representation of parents against local DSS that Delaware County DSS routinely takes young children from their families and adopts them out into families of local government officials - with local judges obliging such gift-giving.

So - local judges have to "pay to play" with DSS.  In children gifts/ trafficking, too.

When I represented some parents against DSS in Family Court, I have found strangest "coincidences" in how local government officials gathered and adopted into one family (through the same "foster-to-adopt" scheme) children taken/stolen/ripped from the entire large extended clans/tribes in the county.  

People associated with Village of Delhi's government got such gifts, for example.

And, the "foster-to-adoption" scheme is an illegal scheme, too, and the County knows about it.

Because, as the New York State Court of Appeals (the highest court in the State of New York) has stated 51 freaking years ago, foster parents must deliver the child back to social services or to the parent (whichever may be the case) on demand.

And that a "the temporary parent substitute must keep his proper distance at all costs to himself" and not plan to keep the child put into their temporary - and paid - care by DSS.

And that is, again, NOT what is happening in foster care in Delaware County, where, I KNOW as an attorney representing parents against DSS for years in that County, that DSS, at the same time, routinely denies bio parents their rightful visitation of children in foster care, especially with very young children, thus destroying their bond with their parents, while allowing and encouraging foster-to-adopt parents to have children call THEM, and not their own parents, Mom and Dad.

And, DSS routinely denies extended biological family's requests to adopt the child, by threats to take their own children away, by dragged out, botched and fabricated "home study" of bio families.

That is done on purpose, to get to the point of the child reaching 11 out of the last 15 months in foster care, where "by law" mandated by federal grant-giving legislation, DSS may move to terminate parental rights of children in foster care, WHETHER DSS HAVE PROVEN THAT THE PARENT DID SOMETHING WRONG BY THAT TIME OR NOT.

This law is arrogantly, openly unconstitutional - but who cares when a valuable asset (a child, worth $100,000 to the adoptive parent and thousands of dollars in federal grant money to DSS) is to be harvested from the local poor.

While dragging time with the bio family to reach the 11 out of 15 months' mark, once the goal is achieved, and the child is "freed" for adoption (parents' parental rights terminated through various fabrications of DSS and local judges) - DSS "home finder" sweetly admits in the gay adoption ad, that it then moves with a lightning speed.

It takes her from a month to a month and a half to approve of adopting a child (even to a RELUCTANT parent - one of the two adoptive gay parents admitted to not wanting the child at first!), less than some animal shelters take to verify the adoptive pet owners' backgrounds.

And, as one of the adoptive gay parents happily and tearfully claimed, it took him just 3 minutes in the courtroom to get adoption approved by the judge.

The same judge (usually) who, being paid by Delaware County, for himself and for the pet jobs he creates for friends and connections, helped DSS drag the case until termination of parental rights, accepted all kinds of fabrications from DSS and did not make it a 3-minute deal for the bio parents.  An unwed mother in this case (I will appreciate if the bio family of this child will contact me with their story.  I will keep it confidential if they don't want to publicize it, but will publish it if they want to do it).

It is a POLICY in this county to behave like that - fabricate a child neglect case where a marketable child is born to an unwed poor mother, drag it in court until 11 out of 15 months, terminate mother's rights or force her to accept termination by various means, adopt the child out to one of "their own", and gather funds from the feds the entire time the child was in foster care and a special gift for the efforts to adopt the child out of foster care.

It is a child trafficking operation authorized by the federal government - while not allowed by the state Court of Appeals based on State Constitutional rights of parents, BUT WHO CARES in the rural neck of woods, right?  RIGHT?

The New York State Court of Appeals I quoted in this article has also pointed out in the same case that foster care "parents" have NO right to custody of the child.

Bio parents who have been through this particular heartache know that at the time a child is placed into foster care, the case in Family Court is usually JUST STARTING, DSS did not prove that the parent did anything wrong yet (while the burden of proof IS on DSS and not on the parent).

Bio parents at that time KEEP their CONSTITUTIONAL parental rights - and may be OPPOSED to their child being placed, let's say, with a gay foster couple.  

Does Delaware County CARE about parents' wishes in such cases?

Because parents may choose to SUE the county for violating their cultural, moral and religious beliefs by disregarding their preferences for the child and having the child groomed from early on according to the LGBT agenda, contrary to the child's bio parents wishes.

Moreover, at the very minimum, at the time the child is placed with foster parents, the child SHOULD NOT BE placed with people whose interest is to SAVE MONEY ($100,000) on "starting a family" with the help of somebody else's kid.

A foster parent like that will put their efforts, contrary to the initial goals of court proceedings to reunify the child with his bio parent, to, instead, WEAN the child from their bio parents and instill into the child that foster parents are their permanent parents and that adoption is inevitable and desirable.

Which is EXACTLY what is happening in Delaware County.

In fact, now Delaware County DSS went to the point of arrogantly making public advertisements trying to earn money from the feds by luring gay couples with the $100,000 savings on surrogacy through a "foster-to-adopt" schemes.  

Even advertised application of "foster-to-adopt" parents is not for fostering SEPARATELY and for adoption SEPARATELY, but it is the same application for "FOSTER/ADOPTION".  They don't even try to conceal their illegal policies.

After all, single mothers in Delaware County are a captive breeding herd for the friends and public officials in the local government.

It is NO JOKE.

After I have moved away from Delaware County I have received PLENTY of reports from my former clients and people who knew from my former clients about my representation of parents against DSS in the area.

Reports from mothers about to give birth who were FRANTIC that DSS is threatening to take their child right after birth (newborn children are the most marketable in the adoption business, mind).

Delaware County DSS DOES take children right after birth from their nursing mothers.  Routinely.

I represented parents in such cases.

And Delaware County DSS DOES harass pregnant women, having NO REGARD for the health of the mother or the child.  I know examples of that, too.

And I know that mothers threatened by DSS sometimes prefer a home birth, with all its attendant dangers, rather than to risk having the child grabbed from them from the hospital - because DSS have a cordial relationship with hospitals, and hospitals, by a convenient law, are "mandatory reporters" of "child maltreatment", so DSS strikes an agreement with local hospitals to flag a certain future mother after she gives birth, withhold her child from her and call DSS.

Since at that time the mother (usually an indigent/poor person) has no funds to hire a private attorney, and is not entitled yet to an assigned attorney, the theft of the child from the hospital goes smoothly.

Contrary to, again, the decision of the New York State Court of Appeals that said that a child of a single unwed poor mother is "not a waif up for grabs", and the government may not redistribute children from the poor to the rich-er adoptive parents based on determinations whether it will be "better" for the child to be raised in a rich-er adoptive home than by the child's own biological parents and extended family.


You know WHO Dan Engress is, the sweet gay adoptive parent of the child Mason who was grabbed from his mother as a newborn or a toddler by DSS 

and placed with Dan Engress and his gay partner by Delaware County DSS on a pre-agreed illegal foster-to-adopt scheme that was meant to save the gay couple $100,000 in surrogacy costs?

Here is Dan Engress's self-description from his LinkedIn account.

He IS the local hospital's mandatory reporter of child abuse and maltreatment - in Delhi, NY, I am told by the locals, where DSS has its office - so he HAS to have a long-time bosom relationship with the local DSS.

He is "one of their own".

So DSS gave him and his - reluctant! Kauffman did not want that child at first, and admitted that in the ad - gay partner a $100,000 gift of a child likely stolen from a local unwed mother.

Watch how Engress recalled how the child Mason was "temporarily returned to the mother" and then ripped out of her arms again and placed with Engress again.  

Obviously, Engress got attached to the child, he wanted the child - and DSS obliged and delivered the child.  What a friend of Delaware County DSS wants, he gets.  Law or no law.

That's what a "good tribal relationship" with DSS is worth in Delaware County, New York.

Engress is not only a director of nursing in the local hospital.

He was also a school "educator" in Walton Central School - and an Assistant (some years) and Adjunct (some other years) professor in the local state college, SUNY Delhi Tech College, data from watchdog

SUNY Delhi lists a Daniel L. Endress as an Assistant Professor, School of Nursing even now.

And, here is the summary of his salary from various government sources - that is on top of his salary as the Director of Nursing in the private Basset Healthcare/O'Connor Hospital.

Would the child Mason fare better in life with his well-paid and - locally - powerful new adoptive father Daniel Endress than with his unwed birth mother?

I do not know.

What I do know though is what the New York State Court of Appeals has said 51 years ago - which the local tribal DSS mafia wouldn't get through their braindead heads:

"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 finderhowever highly qualified."

  • Knowing how Delaware County DSS made a child trafficking conveyer from the poor to the local high-and-mighty of infant children, without any legal grounds for it, 
  • knowing how local judges fold over under DSS pressure, and knowing which financial incentives exist for the local judges and for DSS to do so;
  • getting hints from this cringey-"sweet" story that the mother DID get her son for a month and a half back, so she did not want to let him go - before DSS, with the help of one of the local Family Court judges who DSS financially supports - ripped the child out of the mother's arms because Dan Engress got a liking of him and wanted to save $100,000 on surrogacy, and because DSS thought they will look properly woke and good and "modern" in giving an infant to a gay couple, even if one of the adoptive parents was UNWILLING

I smell a rat here.

This case STINKS.

As many, if not all adoption-out-of-foster care cases stink to high heaven.

Note also how the sweet happy-faced Cruella - oh, sorry, Allison Hamm of Delaware County DSS, 

the "home finder" - she has supposedly "FOUND" Dan Engress, the mandatory reporter she works in lockstep for years!

And look how well child trafficking pays in Delaware County - after all, this woman provides inventory so that the county can claim grants from the feds to fund those same salaries (see how it happens, for example, in the annual report of such funding published by the neighboring Otsego County DSS).

The annual report from Otsego County DSS (and federal financing by DSS work the same way everywhere) shows that THE BULK of financing of salaries of DSS workers come from federal grants - received for stealing children from their bio families and adopting them out to strangers.  

As to the moral story about how well this child trafficking pays, I have gathered data about Allison Hamm's salary from public salary watchdog and sorted it by the year.

Here we go:

Note that in 2008 Hamm was humbly penny-pinching in the Schenectady City School district.

Then in 2009 she moved up into the rural snow belt into the Jefferson Central School district, and her salary was already in the double digits - while continuing to get paid in Schenectady City School District, too.

In the same 2009 Hamm put her toes into the South Kortright Central Schools and into Stamford Central Schools (Judge Becker's seat where his wife worked - and Judge Becker was, remember, Delaware County's DSS attorney for 27 years before coming to the bench in 2002).

Then, in 2010, Hamm switched into South Kortright Central School for a modest double-digit salary (13K) while continuing to penny-pinch in Jefferson Central School - see the relocation trend?

In 2011 and 2012 Hamm toiled singularly in the South Kortright Central Schools, somehow earning in 2012 less than in the previous year, 2011.

In 2013 Hamm continued to toil in South Kortright Central Schools, while adding local BOCES (children-dumbing haven of the local DSS) to her career.

In 2014 Hamm already proudly commanded over $26K in salary from the South Kortright Central Schools.

In 2015, Hamm suddenly "suffered" a great big loss in income, only getting $2K from the South Kortright Central Schools (a loss of $24,000 in comparison with the previous year) - but she has hit gold by footing the door with Delaware County DSS!

And from then on, Hamms' salary with Delaware County DSS was steadily growing from the 30s to the 40s (with an unexplained dip into 20s in 2020).

Child trafficking pays, see?

The redistribution of children from the poor to friends of the local government should stop.

And financial incentives corrupting public officials, including judges, to go along with this child trafficking, should be abolished.

And, as I said, policies revealed in this happily woke, but brainless ad by Delaware County DSS can garner the County a good old class action by bio families of stolen children.

I am looking forward to it.

Monday, May 2, 2022

Foster parents should not be also adoptive parents and have no rights to custody of the child - a NY Court of Appeals case

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. SadowskyJames H. GoodfriendStacy 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. Strassersupra, 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. Beaudoinsupra, 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, 534-535Meyer 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.