In Re Michael v.

604 N.E.2d 122 (1992)

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Nature of the Case

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Facts

Michael B., born July 29, 1985 had a positive toxicology for cocaine. He was voluntarily placed in foster care from the hospital by his mother, who was unmarried at the time of the birth and listed no father on the birth certificate. Michael's four siblings were also in foster care, residing in different homes. Michael--needing extraordinary care--was placed in the home of intervenor Maggie W. L. (FP), a foster parent. Michael remained with FP for more than five years, until December 1990. It is undisputed that the Agency responsible for the placement initially assured FP this was a 'preadoptive' placement. Legal proceedings began in May 1987, after F had been identified as Michael's father. The Agency sought to terminate the rights of both biological parents and free the child for adoption. Michael's mother (since deceased) never appeared in the proceeding, and a finding of permanent neglect as to her was made in November 1987. F did appear and in September 1987 consented to a finding of permanent neglect, and to committing custody and guardianship to the Agency on condition that the children be placed with their two godmothers. That order was later vacated, on F's application to withdraw his pleas and obtain custody, because the Agency had not in fact placed the children with their godmothers. In late 1987, F--a long-time alcohol and substance abuser--entered an 18-month residential drug rehabilitation program and first began to visit Michael. The permanent neglect finding was suspended for 12 months, on condition that F: (1) enroll in a program teaching household management and parenting skills; (2) cooperate by attending and complying with the program; (3) remain drug-free, and periodically submit to drug testing, with test results to be delivered to the agency; (4) secure and maintain employment; (5) obtain suitable housing; and (6) submit a plan for the children's care during his working day. Close to termination of the 12 months, the Agency sought a hearing to help 'determine the status and placement of the children.' F was unemployed and had not been tested for substance abuse. Family Court was satisfied that 'there seem[ed] to be substantial compliance' with the conditions of the suspended judgment. The Law Guardian presented a report indicating that Michael might suffer severe psychological damage if removed from his foster home, and argued for a 'best interests' hearing. In November 1990, Family Court directed Michael's discharge to F, concluding that it was without 'authority or jurisdiction' to rehear the issue of custody based on the child's best interest, and indeed that Michael had been wrongfully held in foster care. The court directed that Michael commence immediate weekend visitation with F, with a view to transfer within 60 days. Michael was discharged to F in December 1990. The Appellate Division reversed and remitted for a new hearing and new consideration of Michael's custody. After extensive evidence, the Family Court found F 'fit, available and capable of adequately providing for the health, safety and welfare of the subject child, and ... it is in the child's best interest to be returned to his father.' The Appellate Division reversed. It awarded custody to FP and remitted the matter solely to determine F's visitation rights. Since early 1992, Michael has once again resided with FP. This appeal was taken.