(dissenting). There is perhaps no event in life as tragic as the loss of a child. There is perhaps no power of the State as intrusive and as painstakingly difficult to exercise than the power of the State to terminate the constitutionally protected rights of a parent to the companionship, custody, care and management of his or her child. Termination of parentage is permanent and irrevocable and "leaves the parent with no right to visit or communicate with the child, to participate in, or even to know about, any important * * * emotional, or physical development.” (Lassiter v Department of Social Servs., 452 US 18, 39 [Blackmun, J., dissenting].) In so doing, "it cuts across a norm of nature as instinctive and as fulfilling as only procreation and the ensuing bond between parent and offspring can be”. (Matter of Ricky Ralph M., 56 NY2d 77, 80.)* That power may not be exercised except by strict and faithful conformance to the requirements of due process and to the statutory provisions of Social Services Law § 384-b, which specifies the procedures and criteria for terminating parental rights (supra, at 80-81).
Given society’s solemn regard for the parent-child bond, it is surprising that before 1983 the State was not required to obtain the consent of an incarcerated parent before releasing that parent’s child for adoption. To ameliorate this harsh result, and perhaps to correct the dubious constitutionality of the automatic termination of parental rights absent any finding of unfitness, the State Legislature enacted Laws of 1983 (ch 911) (eff Jan. 1, 1984) to amend the Social Services Law and the Domestic Relations Law to require the consent of or termination of the parental rights of an incarcerated parent before that parent’s child could be released for adoption.
The amendment also provided that concomitant with the incarcerated parent’s right to object to adoption is his or her *110obligation to plan for the future of his or her child, "while actually incarcerated”, or forfeit parental rights pursuant to Social Services Law § 384-b (4) (d). (See, Legislative findings and declaration, L 1983, ch 911, § 1.) Determining how the special circumstances of incarceration affect this duty to plan is the subject of this dissent.
Since I have no disagreement with the majority in its statement of the facts, I will adopt the factual summary of the majority opinion. I will note, however, my disagreement with the conclusion of the Family Court that during the period of time prior to respondent’s incarceration the agency fulfilled its statutory obligations under Social Services Law § 384-b (7) (a), (f) of diligently assisting respondent in planning for Willie’s future. This threshold finding, which a court must make before reaching the issue of whether the parent met his or her duty to plan, permitted the Family Court to conclude that during this period of time respondent neglected Willie. The majority, as well, rely on this finding to establish respondent’s parental unfitness. Yet, a review of the record before us wholly fails to support this conclusion.
The agency introduced no evidence of any services it provided or suggestions it made to respondent prior to his incarceration regarding the return of Willie to the home. So barren is the record in this regard that it is not even known what financial, social, psychological or environmental obstacles there were which prevented Willie’s return home. No evidence exists that the agency made any attempt to ascertain what difficulties the parents were encountering which event prevented them from attending the scheduled visits. There were unexplained periods of time lasting months when the agency did not so much as contact the parents. The only efforts made by the agency were to schedule visits and stress the importance of these visits.
These efforts were not sufficient to establish satisfaction of the agency’s strict duty to assist the family in a meaningful way, that is, in a manner designed to foster and maintain substantive contact between parent and child, to strengthen and unite the family, and to identify and seek to eliminate the obstacles impeding the child’s return to the home. (See, Matter of Jamie M., 63 NY2d 388, 395; Matter of Sheila G., 61 NY2d 368, 384.) Furthermore, as it is recognized that the agency’s indifference or failure to assist diligently "may have a profound practical effect on what later may be viewed as the success or failure of the parents’ efforts to plan for the future *111of the child” (Matter of Sheila G., supra, at 382), it is particularly unfair for this court to emphasize respondent’s failure to devise a plan prior to his incarceration as additional proof of his unfitness to be a parent.
I do agree, however, that the agency fulfilled its statutory obligation to assist respondent once he was incarcerated. Petitioner followed a diligent course of maintaining family contacts and arranging for visitation between respondent and his children. To the extent that the agency could assist respondent in finding an alternative home to foster care for his children, it did so. There was no other assistance the agency could have provided respondent which would have permitted the release of his children from foster care.
This brings us, then, to the issue of whether or not this incarcerated parent fulfilled his duty to plan. That an incarcerated parent has a duty to plan for the future of his or her child is clear from the Legislature’s repeal of Social Services Law § 384-b (7) (d) (former [ii]), its inclusion of incarcerated parents within the definition of parents (Social Services Law § 384-b [2]), and the statutory provisions requiring all parents to plan for their children’s future (Social Services Law § 384-b [7] [a]). However, I cannot agree with the implicit conclusion of the majority that the fact of incarceration is of no relevance in determining whether an incarcerated parent has fulfilled that duty. This court seems to have overlooked the following important statement in the legislative history from which it quotes: "However, such ground of permanent neglect should recognize the special circumstances and need for assistance of an incarcerated parent to substantially and continuously or repeatedly maintain contact with, or plan for the future of his or her child.” (L 1983, ch 911, § 1 [iii].) The determination, then, of what is a realistic plan by an incarcerated parent must take into account the fact of incarceration itself. Support for this conclusion also exists in the Social Services Law provision which restricts a finding of permanent neglect for failure to plan to when the parent is "physically and financially able to do so”. (Social Services Law § 384-b [7] [a].)
Little has been written about the meaning of the requirement of physical and financial ability to plan. Some reference to it appears in the legislative history to Laws of 1973 (ch 870) which, inter alia, redefined permanent neglect to provide that either a failure to maintain contact or plan for the future of the child could support an adjudication of permanent neglect *112(as opposed to prior law which required a finding of both elements). The amendment was a direct response to the intolerable plight of those children, who although maintaining contact with their parents, nevertheless remained unnecessarily in foster care year after year, while "the parent or custodian [was] physically and financially able to provide a home but fail[ed] to do so.” (Mem of Senator Pisani to L 1973, ch 870, 1973 NY Legis Ann, at 35.) Commenting on that specific statutory amendment, the court in Matter of Carl N. (91 Misc 2d 738) observed that under Laws of 1973 (ch 870), termination of parental rights could now occur upon proof that the parents "are unwilling to take the necessary steps within their power and ability to restore the child to their home” (supra, at 741 [emphasis added]).
And, in fact, courts have terminated parental rights on the basis of permanent neglect for failure to plan when the parent has been demonstrated to be physically and financially able to plan, but nevertheless fails to do so (see, e.g., Matter of Hime Y., 54 NY2d 282, 286-287; Matter of Jennifer VV., 99 AD2d 882, 883; Matter of Suzanne N. Y., 86 AD2d 556); or when the parent, as a result of pure indifference or perhaps some psychologically based deficiency, will not assume responsibility or utilize any of the resources offered to him or her to become physically and financially able to plan. (See, e.g., Matter of Orlando F., 40 NY2d 103, 110-111; Matter of Louise Wise Servs. [Febra], 135 AD2d 385; Matter of Alexander, 127 AD2d 517, 519-520; Matter of Nicole TT., 109 AD2d 919, 920; Matter of Michael B., 96 AD2d 961, 962-963.)
But, where the failure to plan for the return of the child to the home results not from the parent’s unwillingness to assume parental responsibility and take all "necessary steps within their power and ability”, but results instead from a physical and/or financial inability due to an "external impossibility” (see, Matter of Marilyn H., 106 Misc 2d 972, 982), a finding of permanent neglect is precluded. Respondent’s long-term incarceration imposes just such an external impossibility on his ability to provide a home for his children and precludes a finding that he has permanently neglected them due to his failure, despite doing all that was within his power and ability to do, to devise a plan which will provide an alternative home for his children or their return to him prior to their age of majority.
It is beyond doubt that respondent has done all that he *113realistically could to provide for his children, given his physical and financial limitations. Soon after he was incarcerated he notified the agency, advising it of his situation and requesting that visits with his children be arranged. Respondent participated in three planning sessions with the agency, at which he suggested that the agency investigate the possibility of placing his children with relatives. Throughout his incarceration, he has written regularly to his children’s social workers and maintained contact with his children. Never did he manifest an indifferent attitude towards his children or their future or assume an uncooperative position.
Because there was nothing else he could physically or financially do, respondent’s final plan was to have the children remain in the custody of their foster parents, but preserve his parental right to maintain contact with them and thereby fulfill his parental duty to love, guide and provide them with emotional support. Respondent has made as concerted an effort and assumed as much initiative and responsibility for the care of his children as he possibly could. He cannot be accused of indifference, uncooperativeness, or neglect in failing to utilize any available resources, since, short of his release from prison, there is nothing that can help him provide a home for his children. He is not asking to be excused from his parental obligations. Rather, he seeks to fulfill those obligations through a combination of meaningful contacts with his children and long-term foster care. This requires an examination, therefore, of whether despite respondent’s inability to plan anything other than long-term foster care, the Social Services Law prohibits such a plan.
It is true that in enacting Social Services Law § 384-b the Legislature did not intend that planning for the future of a child include long-term foster care. (See, Matter of Joyce T., 65 NY2d 39, 47-48.) It is true that the statute condemns "unnecessary stays” in foster care. But, unnecessary stays are those that persist because of the parent’s unwillingness to plan for the return of the child, though physically and financially able to plan, or those that persist despite the parent’s proven mental inability to provide adequate care for his or her child. (See, 1973 NY Legis Ann, at 35; Matter of Joyce T., supra, 65 NY2d, at 47-48.) This is not such an example of unnecessarily continued foster care. This is a situation where long-term foster care is necessary due to external reasons beyond the parent’s control. It is also an instance when long-term foster care is feasible, despite the legislative presumption against it, *114because of the extenuating circumstances and because it also serves the interests of the children.
Technically, the best interests of the child is not the applicable standard in making an adjudication of permanent neglect, which centers only on proof of that statutory ground for termination of parental rights. (See, Matter of Sanjivini K., 47 NY2d 374, 382.) Yet, it is impossible to determine parental unfitness because of failure to plan without evaluating how the plan meets the child’s needs. The plan must incorporate "considerations of how the child will be supported financially, physically and emotionally.” (Matter of Leon RR, 48 NY2d 117, 125.) While I can understand, therefore, the majority’s reference to the best interests of the child, I cannot, however, accept its statement said with such conviction that: "It is clear that the best interests of the children lie with termination of the father’s rights.”
This conclusion wholly ignores the emotional damage that will result when these children’s relationship with their father is irrevocably terminated in order to provide them with the legal distinction of an adoptive home with their foster parents, as opposed to continued long-term care with their foster parents. In so doing, this court is extinguishing a parental relationship, not because of this father’s unwillingness to care for his children, not because of any lack of mental capacity to provide his children with guidance, emotional support and love, nor because he is abusive or otherwise harmful to his children. In other words, there is no termination because the parental relationship is injurious to the children. Rather, there is termination because for external reasons beyond respondent’s control, although he can be a father to his children, he cannot be a home provider. The statute precludes termination in such an instance (Social Services Law § 384-b [7] [a]) and does not prohibit a plan of long-term foster care.
The majority seems also to ignore that we are not dealing with young infants who have not yet developed a relationship with their father. We are dealing with a 9 and a 13 year old who have an established, albeit restricted, relationship with their father, which this court appears to minimize. In an opinion supported by substantial research data, Family Court Judge Gertrud Mainzer spoke eloquently and convincingly of the psychological harm to an older child in terminating the child’s bond with his or her parent because of adoption:
*115"In addition, there has been an increase in the number of foster children now being adopted by their foster parents. Many of these children have lived in foster care for extended periods, are older and have physical or mental handicaps. In these adoptions, secrecy is not only frequently impossible, but often inadvisable since these children remember their past and have emotional ties to their birth families.
"Research by psychiatrists and psychologists has also revealed the importance of a child’s link to known ancestral, religious, ethnic and cultural backgrounds. Recent studies indicate that shrouding a child’s background in an air of mystery, even for a child adopted at birth, can cause psychological harm, retarding emotional development and self-identity. Moreover, in a longitudinal investigation of foster care, Professors David Fanshel of Columbia University and Eugene B. Shinn of Hunter College found that the intellectual, psychological and physical development of children in long-term foster care was enhanced by visitation and contact, however minimal, with the biological family”. (Matter of Anthony, 113 Misc 2d 26, 29-30.)
Long-term foster care cannot be categorically ruled out. In fact, its feasibility has already been recognized. In Matter of Nicole TT. (supra, 109 AD2d, at 920), where the children were found to be permanently neglected due to the mother’s failure to plan for them, the Third Department noted that long-term foster care was still an option open to the Family Court at the dispositional hearing as possibly serving the children’s best interests. In Matter of Joyce T. (65 NY2d 39, supra) the mother was determined to be incapable of caring for her child due to her mental retardation. (Social Services Law § 384-b [4] [c].) Under the facts before it, the Court of Appeals rejected long-term foster care as in the best interests of the child, but noted that while separate dispositional hearings for termination proceedings based on mental retardation are not required as they are in permanent neglect proceedings, it would not rule out that there might be an appropriate case of termination based on mental retardation where the Family Court should order a dispositional hearing to consider long-term foster care (supra, at 46).
At the very least, if this court is to order termination of respondent’s parental rights and authorize release of his children for adoption, it must, on behalf of the best interests of these children, direct that hearings be held as to whether *116their interests would be served by an "open adoption”. (Matter of Joyce T., supra, at 46-47, n 2; Matter of Anthony, supra, at 28-32.) In this day, where the incidence of children living apart from at least one parent is so high and where courts frequently enter orders directing visitation with a noncustodial parent, at times even against the wishes of the custodial parent, then, in an adoption, a relationship created by the State, not nature, we can certainly require the adoptive parent to continue to allow the child to maintain contact with his or her father or mother, if that will serve the best interests of that child.
For these reasons, I cannot join in the majority’s decision to terminate respondent’s parental rights.
The question of court-ordered "open adoptions”, whether a court, after termination of parental rights, can order that ties with the biological family be continued, is one not yet firmly resolved in this State. (See, Matter of Joyce T., 65 NY2d 39, 46-47, n 2.) One Family Court in an insightful opinion which notes the growing body of research revealing "the importance of a child’s links to known ancestral, religious, ethnic and cultural backgrounds”, and the psychological damage that "shrouding a child’s background” can have on the child, has argued that open adoptions can be ordered pursuant to the court’s inherent equitable powers to promote the child’s best interest. (Matter of Anthony, 113 Misc 2d 26, 28-32.)