The majority has seen fit to affirm the order of the Family Court which terminated the rights of respondent, Mary Whitten Stringfield, as mother of Star Leslie, on the grounds of permanent neglect. It is my opinion that the order which divests the mother of her child should be reversed and the petition dismissed.
The dispositive order of the Family Court is not simply an award of money damages. It will significantly determine the lives of many people. Because the termination of parental rights is so significant, the Social Services Law requires punctilious compliance with its terms before these rights may be ended.
On appeal, appellant contends that petitioner did not establish by clear and convincing proof that appellant had permanently neglected her child. In support of her position, appellant argues that: Star was not in the care of an authorized agency; appellant did not fail to plan for the return of her daughter; and petitioner did not make diligent efforts to strengthen the parental relationship.
Section 384-b (subd 7, par [a]) of the Social Services Law provides, inter alia: “For the purposes of this section, ‘permanently neglected child’ shall mean a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of more than one year following the date such child came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child.”
*262A review of the evidence presented and the testimony at the dispositional hearing raises a serious concern that petitioner agency did not establish by clear and convincing evidence that appellant had permanently neglected her child. There are several unresolved questions presented in the testimony which make the Family Court’s determination, to terminate appellant’s parental rights, troublesome,
At the outset, it is questionable whether appellant ever intended for Star to be placed in foster care, whether she understood the legal ramifications of signing the voluntary placement document. The situation is compounded by the fact that when appellant first gave birth to Star and found that she could not take care of her, the people she turned to were the Hardens, her own foster parents, who she regarded as her parents. It seems fairly apparent that appellant signed the voluntary placement document simply to enable the Hardens to obtain financial assistance to care for Star. At that point, Star was under the care of the Hardens, who were also official foster parents for petitioner agency.
On December 17, 1981, Star was discharged to her mother and returned by her to the Hardens on January 13, 1982. No new document was signed with petitioners authorizing foster care. Based upon these facts, it is fairly arguable that Star was not actually in the care of petitioner, but was residing with the Hardens under a private arrangement.
Petitioner agency’s contention that the “legality” of a child’s placement is irrelevant provided the child is actually in the care of an authorized agency (Matter of Mickey B., 65 AD2d 603), is not persuasive. It is questionable, in view of the circumstances here, inasmuch as the Hardens were regarded by appellant as her parents, whether Star was actually in the legal care of the agency. Mickey B. (supra) is clearly different from the instant case. In Mickey B., the child had been placed under a neglect petition and the agency merely failed to file requests for extension of placement. In addition, the parents made no effort to regain custody.
There was no “clear and convincing” showing that the child had been in foster care with the petitioner agency for *263a period of more than one year (see Social Services Law, § 384-b, subd 7). In addition, there was no showing that the child was actually in foster care at the time the petition was brought. There is no basis for a permanent termination proceeding when the child is no longer in foster care (see Social Services Law, § 384-b, subd 7, par [a]; Family Ct Act, § 614, subd 1, par [b]). It seems significant that the majority ignores this threshold issue of whether the child was in the care of the petitioner agency or residing with the Hardens under a private arrangement at the relevant times.
A second weakness in the position of the agency is that the evidence presented by it, in support of its claim that appellant failed to plan for the return of her daughter for a period of more than one year, is equivocal, at best.
Section 384-b (subd 7, par [c]) of the Social Services Law defines planning for the future of one’s child as taking “such steps as may be necessary to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent.”
Concededly, appellant failed to plan for Star before the agency brought on the first neglect petition. Appellant left Star with the Hardens in August, 1979, when Star was one week old. She continued to visit with Star up until about October, 1980, when she moved and refused to give the agency her address. As such, petitioner brought on the first proceeding in February, 1981, which was well over one year later. However, from the time of the first hearing in June, 1981 until the time Star was discharged to appellant in December, 1981, and the time Star was returned to the Hardens in January, 1982, it can be concluded that appellant planned for Star’s future. The instant proceeding was commenced by petitioner two months later, in March, 1982.
It is clear that appellant’s plan, which was to marry Robert Stringfield with whom she had been living since 1979, and to obtain adequate housing and public assistance, was sufficient to satisfy the agency, since it discharged Star to appellant’s custody. Exactly when the formal marriage ceremony took place is irrelevant. We live *264in a society in which stable relationships may subsist between persons who are unmarried. The formal imprimatur of a certificate is not the guarantee of a good home. In any event, appellant did thereafter marry Mr. Stringfield, at some time, did obtain adequate housing and added Star to her public assistance budget. Accepting, as petitioner contends, that one month later the plan failed because of a dispute between appellant and Stringfield involving the police, with appellant and Star being thrown out of the apartment on a snowy January night, it cannot be concluded that this one incident was sufficient to justify the agency’s decision not to allow the child to return to her mother and to abandon all efforts to strengthen the parental relationship. This may have beén a temporary setback for appellant, but she did work out her relationship with Mr. Stringfield. No more than one week later, she requested that Star be returned to her home.
While there are cases which hold that the year of failure to plan required by the statute need not be the year ending with the institution of a permanent neglect proceeding, such are inapplicable to the case at bar. In fact, in Matter of Norma Jean K. (81 AD2d 919, 920) which is cited by the agency, where the mother by her conduct and statements — getting married, setting up a home, indicated her effort to stabilize her life so as to provide for the eventual return of her child, the court said as follows: “However, the construction of the permanent neglect statute concerning an affirmative finding as to more than a year of agency efforts and parental failures, at any period of time during the child’s placement, should not ‘lead to injustice in the event that a parent’s sense of responsibility toward the child has developed in the interim before the proceeding’ (Matter of Jones, 59 Misc 2d 69, 71). The court is obliged to consider this development in its final disposition of the petition.”
The final point is that there was insufficient evidence presented that the agency, on its part, used the required diligent efforts needed to strengthen the parental relationship. While the agency did continue to set up appointments for appellant’s visits with Star, it abandoned all other *265efforts so far as appellant was concerned, once appellant returned Star to the Hardens in January, 1982.
The majority in its assertion that the record confirms the finding of neglect and failure to plan for the future states that: “This conclusion is supported by the Legal Aid Society serving as Law Guardian of the child.” This statement of the Law Guardian’s position is inaccurate. The Legal Aid Society’s brief does not even argue that such a showing was made, or present any argument in support of it, but simply states that “¿/this Court concludes that the Family Court’s finding of permanent neglect is supported by legally sufficient evidence, the law guardian urges affirmance of the order terminating parental rights” (emphasis added). The discussion by the Legal Aid Society and the majority as to the “best interests” of the child is irrelevant because that question is not reached in the absence of a valid finding of permanent neglect (see Matter of Bennett v Jeffreys, 40 NY2d 543, 549).
All in all, while appellant, herself a foster child, was initially unable to care for Star, probably due to her young age, the fact that she was living alone, her financial situation and her own emotional problems, it does appear that she made substantial efforts to stabilize her life. The fact that she has borderline intelligence and tends to blame others for her problems does not mean that she is unable to care for her child. It can be concluded that the Family Court erred in making a dispositional order terminating appellant’s parental rights.
The majority relies in large part upon the testimony of Dr. Ruth Cohen, a psychiatrist associated with the Family Court Mental Health Services, who it categorizes as “an objective and disinterested witness.” However, the recommendation of Dr. Cohen was based upon extensive materials provided by petitioner besides only one interview with respondent lasting about 45 minutes. No list of the materials furnished by the agency was given respondent. No opportunity was had by respondent, therefore, to refute those materials or effectively attack the recommendation based upon them. The psychiatrist conducted no independent investigation of the facts, and did not speak to anyone with favorable information regarding the respondent. It *266appears strange that this “objective and disinterested witness” did not speak to the Hardens, who had the greatest firsthand knowledge of respondent’s behavior as a child and an adolescent.
The extensive reliance by the psychiatrist upon parts of the case record, filled with possible hearsay and opinion, with no notice and opportunity for respondent to examine this material, was in violation of one of respondent’s basic rights (see Goldberg v Kelly, 397 US 254, 267-268). Thus, the Court of Appeals has indicated that even where the entire case record was offered into evidence at a fact-finding hearing, the better practice would have been for petitioner to have given respondents in that case notice and an opportunity to examine the file prior to the hearing (Matter of Leon RR, 48 NY2d 117, 123).
Respondent here was in a similar situation. She requested a continuance to deal with the addendum psychiatric report, which was based upon agency material, and to obtain another psychiatric evaluation. This continuance should have been granted her as a matter of “fundamental fairness” (Matter of Leon RR, supra, p 124).
In addition, the psychiatrist stated in her report that respondent is unable now or in the foreseeable future to assume the care of her daughter, due to her mental illness. However, this proceeding was not one for termination of parental rights on the ground of mental illness (cf. Social Services Law, § 384-b, subd 4, par [c]). If respondent did have a mental illness which impaired her ability to care for her daughter, which the agency claimed to have been aware of for many years, it was under a duty to provide respondent with assistance in getting treatment for that specific problem (Matter of Star A., 55 NY2d 560). Yet no evidence was adduced that the agency offered respondent any psychiatric services or advised her that she needed them. Also, the psychiatrist’s report hardly supports her diagnosis of current mental illness.
The errors and omissions contained in the record, the lack of fundamental due process rights afforded respondent raise serious questions.
No one is wise enough to know all the secrets of good parenting, especially where the alternatives are limited *267and, in any event, the prospects are not too encouraging. It is therefore an act of hubris to cut a mother and child asunder without overpowering justification. In a society which prides itself on its concern for those who need help, “good intentions” are not enough. It would be anomalous if procedural due process, which protects the most heinous criminal, were denied Star Leslie Whitten and her natural mother (see Stanley v Illinois, 405 US 645).
“In all of this troublesome and troubled area there is a fundamental principle. Neither law, nor policy, nor the tenets of our society would allow a child to be separated by officials of the State from its parent unless the circumstances are compelling. Neither the lawyers nor Judges in the judicial system nor the experts in psychology or social welfare may displace the primary responsibility of child-raising that naturally and legally falls to those who conceive and bear children.” (Matter of Bennett v Jeffreys, 40 NY2d 543, 552, supra.)
The historic role of the Judge and lawyer in America has been to protect individuals from the arbitrary midnight “knock on the door,” the “star chamber proceeding” and from other State persecution. As government has taken on more social welfare functions, the legal establishment must also act as a bulwark to protect individuals from the tyranny of benevolence.