On Thursday, the Court of Appeals, New York, held that family courts do not have the authority to grant visitation rights to a parent once parental rights have been terminated by law. In a 6-1 decision, the Court of Appeals upheld the decision of a family court which refused visitation rights to a father to visit a daughter over whom his parental rights had been terminated.
The Court of Appeals observed, “The legislature ... has not sanctioned judicial imposition of post-termination contact where parental rights are terminated after a contested proceeding.”
The ruling is noteworthy because it overturns a precedent from the Appellate Division, Fourth Department, that was followed by the family courts for over a decade, despite the fact that both the First and Third departments had ruled against it. Now the
decision of the Court of Appeals settles the matter for the lower courts.
The mother surrendered her parental rights in 2010, and the county proceeded against the father to terminate his parental rights. State Supreme Court Justice William Ames found that the father had failed to find an alternative to foster care for the child, as being in prison himself, and terminated his parental rights. Justice Ames also denied the father's request to continue visiting the child, Hailey, who is now four years old.
Last year, the Third Department affirmed that the county had fulfilled its legal obligation to attempt to return Hailey to her father's care dismissing the father's request for post-termination visitation rights.
On Thursday, the Court of Appeals affirmed the decision, and said that to hold otherwise “would appear to be inconsistent with this state's view as expressed by the legislature that (termination) relieves the biological parent of all parental duties toward and of all responsibilities for the adoptive child over whom the parent shall have no rights.”
Judge Pigott said, “I would prefer to sanction, rather than restrict, the hearing court's exercise of discretion, particularly in the area of family law where flexibility in judicial decision-making is a virtue of the highest order.”
The Legal Aid Bureau of Buffalo wrote that it would have been cogent where parental rights had been terminated due to mental illness, rather than neglect, but Thursday's decision makes it clear that such hearings may not be held at all by family courts.
Judge Pigott wrote, “In these situations … the child's attachment to a natural parent who is incapable of looking after a child through no fault of his or her own may be profound, and worthy of preservation.”
Well, the judgment has been passed, but questions remain, both for the welfare of the child and for the rationality of the judgment.
“Incapacity to do something” or “being prevented by circumstances beyond personal control” is something that has always been recognized in law. It has also been recognized through the centuries that if “A” by his own act makes it impossible for “B” to fulfill his part of the contract, then “B” may not be held liable for breach of contract to the extent that obligations were not fulfilled because “A” had made it impossible.
In this case, the “State” had imprisoned the “father” of the child, making it impossible for the “father” to fulfill duties towards the child that the “State” asked him to carry out, namely providing for alternate care. Then the “State” takes away the father's parental rights for “failing” to do something which the “State” by its own act of imprisoning the father had made it impossible to perform. And then prevents the father from visiting his little daughter.
Surprising.
