Opinion
Argued September 10, 1976
Decided September 21, 1976
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, WILLIAM BERMAN, J.
Gerald Schwartz and Judith L. Carlin for appellant.
Terry Milburn for respondent.
MEMORANDUM. Order of the Appellate Division affirmed, without costs.
Matter of Anonymous (St. Christopher's Home) ( 40 N.Y.2d 96, 99, 102-103) is dispositive of one issue raised in this appeal: whether in statutory abandonment proceedings under section 384 of the Social Services Law the authorized agency charged with temporary foster care must exercise diligent efforts to encourage and strengthen the parental relationship. On the other issue, abandonment, the Family Court concluded that the evidentiary facts established abandonment, and the Appellate Division affirmed. All that remains for this court to decide is whether the finding of ultimate fact of abandonment is supported by sufficient evidence. The answer must be affirmative, even if one consider in favor of the mother the disadvantages and misfortunes under which she functioned and which undoubtedly contributed to the abandonment.
The effect of this disposition is to separate the child not only from his mother, but also from his three siblings, only one of whom is with the mother. This is, of course, quite unfortunate, but the record also establishes that, in the best interests of the child, the separation and eventual adoption is the better choice of what are tragic alternatives. The factual background and tensions are somewhat paralleled by those in Matter of Orlando F. ( 40 N.Y.2d 103, 106-109), albeit that case involved a permanent neglect proceeding under section 611 FCT of the Family Court Act, rather than an abandonment proceeding as here. (See, also, Matter of Ray A.M., 37 N.Y.2d 619, another permanent neglect case.)
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.