Court decision puts parents in legal bind

The Court of Appeals has just decided that parents whose children are taken away and put up for adop

The Court of Appeals has just decided that parents whose children are taken away and put up for adoption can be given the right to visit those children only if they agreed to the children’s being taken in the first place. If they fought it, they’re out of luck. A county Family Court judge cannot afford them visitation even if he thinks it would be in the children’s best interest.

The decision came in the case of an imprisoned father and his now-4-year-old daughter, in the Ithaca area. The mother had already voluntarily surrendered her parental rights — though maybe I shouldn’t say “voluntarily,” since I don’t know how much pressure was put on her. The father, serving a 5- to 15-year prison sentence for burglary and grand larceny, wanted to hold on. With the little girl in foster care, the father’s sister drove her to visit her father in prison every month for three or four hours each time. In the words of a dissenting opinion by Judge Eugene F. Piggot, “The two would hug each other, [the father] whom she called ‘Daddy,’ read her books; and they played with puzzles.”

But of course the guy was not in position to be any more of a father than that. He was, however, legally responsible to develop a plan for the child’s future, “even though he was given little hint and no specific information about how he might fulfill this requirement while incarcerated,” according to Judge Piggot’s dissent. His failure to develop such a plan was the bureaucratic justification for ending his rights as a parent.

Never mind that he tried to get his daughter put into the care of his sister. The sister had been “hotlined” for alleged “elder abuse,” and that was enough to disqualify her, though no finding was ever made against her and she had an infant child of her own that no one thought she was unfit to care for.

Thus did the requirement that caseworkers give priority to family members get leapfrogged.

The Tompkins County Department of Social Services made the father an offer: Give up the child for adoption, and he would be allowed one visit a year with her.

The father refused. “I would sign over my rights if you guys were going to be a little more lenient on this whole visitation,” he said in court. “I don’t want to be taken out of her life, but I’m not going along with two hours once a year.”

The case made its way through the courts, and now we have the resolution.

The guy is legally no longer the girl’s father, except in the strict biological sense, and he has no right ever to visit her or have any other contact with her, although, please note, he was never accused of harming her aside from getting himself imprisoned.

Interesting, no?

“Obviously this is coercive,” said Bruce Trachtenburg of the Schenectady County conflict defender’s office, who does most of his work in Family Court, the idea being that a parent can be coerced into surrendering parental rights with the promise of visitation as opposed to complete severance if he tries to hang on to the kid. Give up your kid, and we’ll let you see her once in a great while; insist on your parental rights and you risk losing her for good, is the idea.

Which is what happened here, with the further irony that the girl’s mother, who allegedly showed little interest in her and willingly gave her up, is allowed visitation as part of her deal. The father, who showed more interest and refused to give her up, gets nothing.

“He was very focused on getting her back,” the father’s appeals lawyer, Paul J. Connolly of Delmar, told me. “It was as if the department” — meaning the Tompkins County Department of

Social Services — “was on a track to terminate his parental rights and get the kid adopted,” which is something I have seen myself in Schenectady.

The social services lawyer for Tompkins County, Daniel S. Feder, said visits or continuing litigation in search of visits “can damage an adoptive family’s relationship … we don’t want to force them into extended litigation.”

And he pointed out that the adoptive parents can allow visits with the father if they think that would be best for the child. “There’s no reason for them not to do the best thing for the kid,” he said.

This is very well, and I don’t think it’s a black-and-white situation. What troubles me is that discretion is taken away from the local judge, who presumably would be in the best position to evaluate what’s good for the child, at least theoretically — though heaven knows I have been critical enough myself of some of the calls they have made.

Now with this decision there is no discretion, and the situation is reduced to a plea bargain. Take our offer, and we’ll give you a little tiny sugar plum. Fight us and if you lose (which you probably will) you will get nothing. No room for human intervention. No room for weighing competing interests. No room for judgment.

Categories: Opinion

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