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Matrimonial Matters: Court of Appeals rules on family law split

Sara Stout Ashcraft

In June of this year, the New York State Court of Appeals released a family law decision that resolves a conflict among the Appellate Division courts, Matter of Hailey ZZ., 19 N.Y.3d, 422. The issue before the court: “whether Family Court may direct continuing contact between parent and child once parental rights have been terminated pursuant to Social Services Law §384-b.”

The Appellate Divisions were split in their interpretations of the issue. As is not uncommon, the First and Third departments held one view, while the Second and Fourth departments held a contrary one.

The case directly before the Court of Appeals came through the Third Department. Hailey ZZ was born in 2007, and at first lived with her birth mother, birth father, and a half-sister who was the mother’s child from another relationship. Not long after Hailey’s birth, her father was handed down a sentence of five to 15 years’ incarceration and remains in prison.

In late 2008, the Tompkins County Department of Social Services took Hailey and her half-sister from their mother to reside in foster care. In March 2012, Tompkins County DSS filed petitions against both of Hailey’s birth parents. The petitions sought adjudication that Hailey was permanently neglected, that parental rights be terminated and that guardianship and custody go to DSS.

Hailey’s mother surrendered her parental rights and also signed a post-adoption visitation agreement under Social Services Law §383-c. At that point DSS withdrew the petition against Hailey’s mother, but went forward with a fact-finding hearing against her father.

The matter was transferred from Family Court to Supreme Court Integrated Domestic Violence Part; the acting Supreme Court Justice held that Hailey’s father had permanently neglected her and that in it was in Hailey’s best interests that she be committed to DSS guardianship.

The court based this decision on its determination that DSS had met the statutory requirement that it had made “diligent efforts to encourage and strengthen the parental relationship by maintaining regular contact with her father, insuring monthly visitations, requesting the necessary information to plan for the child’s care and investigating the individuals whom their father suggested to be Hailey’s caretakers.”

Further, the Supreme Court refused to direct that the father could have continuing visitation with his daughter, citing Third Department precedent holding that a court cannot mandate continuing contact of a parent with a child once parental rights have been terminated. On appeal, the Third Department affirmed the entirety of the decision, including stating that, “the request for post-termination visitation was properly denied as unavailable in a contested termination proceeding,” (85 AD3d 1265).

On leave from the Court of Appeals, the father appealed, and the court affirmed the Third Department decision. In doing so, the court examined supporting and contradictory decisions from the various appellate departments. The Fourth Department had previously issued several decisions that, “Family Court possesses authority to provide for post-termination contact, and must, upon a parent’s request, decide whether such a continuing relationship is in the child’s best interests.” Although not as clearly as the Fourth Department, the Second Department has also provided for post-termination visitation between parent and child.

Like the Third Department, the First Department has held that the Family Court lacks the ability to award post-termination visitation because while the Legislature specifically provided for visitation with a child after a parent had voluntarily surrendered a child to DSS, it did not provide for such visitation after “adoptions following parental terminations.”

In affirming the Third Department’s decision in Hailey ZZ., the Court of Appeals held that the legislature is “the entity best suited to balance the critical social policy choices and the delicate issues of family relations involved,” and that as that body “has not sanctioned judicial imposition of post-termination contact where parental rights are terminated after a contested proceeding, absent legislative warrant, Family Court is not authorized to include any such condition in a dispositional order made pursuant to Social Services Law §384-b.”

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.


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