Dickson v. Lascaris

OPINION OF THE COURT

Per Curiam.

The facts in the record before us in this dispute over custody reveal that petitioner-appellant Clarence Dickson, the natural father of three children aged 6, 7 and 8 years old, as a result of personal problems, in August, 1974 voluntarily placed his children with a friend, respondent Ruby Kelly. Petitioner brought a proceeding seeking custody and appeals from the order which denied his petition.

Concededly, where the question is whether all parental rights should be terminated, it is required that proof be adduced which "evinces a purposeful ridding of parental obligations and the foregoing of parental rights” (Matter of Corey L v Martin L, 45 NY2d 383, 391). So long as a "flicker of interest” exists on the part of a parent, a court is not free to extinguish these parental rights (Matter of Susan W. v Talbot G., 34 NY2d 76). Such is not the present case.

Here petitioner father seeks custody of his own children. In Matter of Bennett v Jeffreys (40 NY2d 543), the Court of Appeals distinguished between those cases involving custody of children from those which involve the legal termination of parental rights. It held that the State may deprive a parent of custody upon a finding of surrender, abandonment, persisting neglect or other like (but rare) extraordinary circumstances. It observed that the fundamental principle guiding the courts remains the preservation of the natural family but that the presumption that the responsibility of child raising falls automatically to the natural parents may be rebutted (see Matter of Bennett v Jeffreys, supra, p 552).

Just what are and what are not extraordinary circumstances is not capable of precise definition. The words describe a narrow, but nevertheless, vague characterization. In Bennett the court found that surrender, abandonment, persisting neglect or occurrences otherwise resulting in an unfortunate or involuntary disruption of custody over an extended period of time were "merely illustrative” of extraordinary circumstances (Matter of Bennett v Jeffreys, supra, at p 546). The court may look at a variety of other factors and factors which form the best interest test may also be relevant in determining the existence of extraordinary circumstances (see Matter *49of Bennett v Jeffreys, supra, at p 554 [Fuchsberg, J., concurring]).

The differences between the two analyses are that considerations which would determine the child’s best interest if written upon a clean slate are not necessarily enough to amount to extraordinary circumstances. Extraordinary circumstances, rooted in the past and largely historical, are found by looking to the causes of the parent-child separation while best interest looks at the present and includes expectations for the future. In exercising its discretion, the court must examine a variety of factors, but its decision must be narrowly focused on "clear evidence of unfitness or proof of an intention to surrender all parental responsibilities or a lack of interest in the child combined with acquiescence in custody by a nonparent” (Tyrrell v Tyrrell, 67 AD2d 247, 250, affd 47 NY2d 937).

In choosing to characterize the extended separation of petitioner and his children as abandonment, Family Court labeled it as "passive” abandonment to distinguish it from the degree of abandonment (labeled as "active”) required by statute in a termination of rights proceeding. Without adopting this active/passive rationale, we conclude, nevertheless, that Family Court did not dilute the Bennett formulation of the rule on extraordinary circumstances in making its decision.

Accepting the court’s determination on credibility, extraordinary circumstances did exist in this case triggering the best interest of the child test. The trial court disbelieved petitioner’s testimony that he visited the children frequently in 1974-1975. It found that petitioner virtually dumped the children on Mrs. Kelly in August, 1974 and for all practical purposes, abandoned them to her care for the next two years, visiting only once or twice in 1974 and 1975, and not again until 1976. The court further found petitioner displayed callous indifference to his daughter’s fate in 1975 in refusing to sign a hospital consent form and visiting her in the hospital, only once or twice despite the serious nature of her operation. In addition, it noted petitioner’s failure to make any support payments after February, 1975 and his failure to provide any clothing or other material support for the children either in 1974 when they were left with Mrs. Kelly or later. The children have continuously resided with respondent for nearly six years and the testimony indicates a psychological bonding *50has been forged between Ms. Kelly and the children and not with petitioner.

The facts in this case are analogous, in terms of the length of abandonment and other extenuating circumstances which provided petitioner an opportunity to demonstrate his indifference to his children, to other cases which have found extraordinary circumstances to exist and warrant that finding here (see Matter of Bennett v Jeffreys, 40 NY2d 543, supra; People ex rel. Wilson v Wilson, 56 AD2d 794; People ex rel. Gallinger v Gallinger, 55 AD2d 1036; Matter of Jonathan D., 62 AD2d 947; Raysor v Gabbey, 57 AD2d 437; Guzzo v Guzzo, 66 AD2d 833). Thus, we see no reason in this case to disturb the trial court’s findings which are entitled to great weight (Matter of Irene O., 38 NY2d 776, 777), particularly in view of the fact that petitioner is not foreclosed from regaining complete custody at some future time (see Matter of Sanjivini K., 47 NY2d 374, 382).

The order should be affirmed.