In the Matter
of MHP and MP Application for the Guardianship and Custody of a Child pursuant to
SSL 384-b After Fact-Finding
|
B-317/12
Dawn M. Orsatti, Esq., New Alternatives for Children, 375 Fifth Ave., 4th
Floor, New York, New York, 10016, (212) 683- 7050
Corporation Counsel, Michael Cordozo, by Special Assistant Corporation
Counsel, Anthony James Dimano, Esq., 330 Jay Street, Brooklyn, NY 11201, telephone
(718) 802-2710
William C. Hoffman, Esq., Respondent Father, 32 Court, Suite 507,
Brooklyn, NY 11201, telephone (718) 702-2222.
Sally Simone Markowitz, Esq., Attorney for the Children, 26 Court Street,
Suite 901, Brooklyn, NY 11242, telephone (718) 648-8200
Ann E. O'Shea, J.
These are proceedings, brought by New Alternatives for Children (NAC), to
terminate the parental rights of TH, the mother (the Mother) of the two subject children,
MHP, born on November 23, 2009, and MP, born on April 25, 2003, and the parental
rights of AP (erroneously identified in the petition as "AMP"), MH's father (the
Father).[FN1]
A fact-finding hearing on the petition commenced on June 26, 2013, and
continued on August 23, 2013. The Father appeared with counsel; the Mother did not
appear, and the hearing proceeded on inquest against her. NAC submitted documents in
support of its case and rested on the documents admitted into evidence. At the end of
NAC's case-in-chief, the Father moved to dismiss the petition against him, contending
that the Agency failed to establish a prima facie case against him. This Court
denied the Father's motion, and the Father presented his case through his own testimony
and documents. NAC presented no rebuttal evidence. The Attorney for the Children
presented no evidence.Background
The instant termination of parental rights proceedings arise out of a neglect
petition (NN-05816-17/10) ("the Neglect Petition") brought against the Mother on
February 16, 2010, three months after MHP was born. MHP was born prematurely on
November 25, 2009, and remained in the NICU unit of the hospital for approximately
three months.
MP was living with her Mother at the time. Although MP had previously
been in foster care, she was released to the Mother and Father on January 9, 2009,
pursuant to an Order of Disposition (Pearl, J.) entered in a prior proceeding on the
consent of all parties, including ACS and MP's attorney (NAC Ex. 5). Within a matter of
weeks after MP was returned to her parents, the Mother left the parties' home, taking MP
with her.At the time the Neglect Petition was filed against the Mother, she and the Father
had been living apart for a little more than a year.
The Petition alleged that the Mother neglected MHP based upon a hospital
report that "the mother seems unstable and unable to adequately care for the child," and
that, as a result, MP was derivatively neglected. The petition also alleged that MHP and
MP were derivatively neglected as a result of prior findings in proceedings brought
against the Mother and the Father in 2001, 2005, and 2006 with respect to other children.
The Father was not named as a respondent in the Neglect Petition.
MHP and MP were removed from the Mother's care on February 16, 2010.
Although MP had been released to both her parents just one year before (NAC Ex. 5) and
the Father was not named as a respondent in the Neglect Petition, MP and MHP were
both placed in non-kinship foster care. [FN2]
On June 24, 2010, the Father filed a petition for custody of MP under Article 6 of the
Family Court Act. On June 29, 2010, the Mother filed a custody petition for MP and
MHP.
In a decision dated November 18, 2010 (Olshansky, J.), (NAC Ex. 1) the
Court found that the Mother neglected MHP as a result of her failure or inability to
provide her with adequate supervision or guardianship and that MP was derivatively
neglected by the Mother.[FN3]
In a dispositional decision dated January 3, 2013, (NAC Ex. 6), Judge Olshansky
continued the placement of MP and MHP in foster care, denied the Father's application
for temporary custody; adjourned his Article 6 custody petition until the next permanency
hearing; ordered the Father to undergo a mental health evaluation; denied the Mother's
custody petition; ordered the Mother to [*2]complete a
mental health evaluation; and ordered the Mother and Father to continue to have
agency-supervised visits.Grounds for Termination of
Parental Rights
There are four "fault" grounds upon which a
parent's rights to the custody and guardianship of his or her child may be terminated
under New York's Social Services Law (SSL): the child has been abandoned (SSL §
384-b[4](b)); the parent in question is unable to adequately care for the child as a result
of the parent's mental illness or mental retardation (SSL§384-b[4](c); the child has
been permanently neglected by the parent (SSL§394-b[4](d); or the parent severely
and repeatedly abused the child (SSL 384-b [4] (e)). "A termination of parental rights is a
creature of statute and, except by consent of the parent affected . . . termination may be
ordered only for one or more of the four reasons set forth in section 384-b of the Social
Services Law" (In the Matter of Ricky Ralph M., 56 NY2d 77, 81[1982]).
The petitions in these proceedings allege that, as a result of a mental illness,
the Mother is unable, now and for the foreseeable future, to adequately care for MP and
MHP; that the Mother permanently neglected MP and MHP; and that the Father
permanently neglected MP. NAC also seeks a finding under §1039-b (a) (6) of the
Family Court Act ("FCA").The Burden and Standard of
Proof
Termination of a parent's right to raise his or her child
is "[o]ne of the most severe intrusions by the State in an individual's life" (Matter of
Anita PP., 65 AD2d 18, 21 [3d Dep't 1978]). "It is total and irrevocable . . . . [I]t
leaves the parent with no right to visit or communicate with the child, to participate in or
even to know about any important decisions affecting the child" (Ricky Ralph M.,
supra, at 80 (quoting Lassiter v. Dep't of Social Services, 452 US 18 at 39
[Blackmun, J., dissenting]). Because a parent's right to the care and
custody of his or her child is protected by the Constitution (Troxel v Granville,
530 US 57, 65-66 [2000]; Santosky, supra, 455 U.S. at 753; Stanley v
Illinois, 405 US 645, 651 [1972]; Bennett v Jeffries, 40 NY2d 543, 546 and
548 [1976]), "due process requires that the state support its allegations by at least clear
and convincing evidence before it may sever completely and irrevocably the rights of
parents in their natural child" (Santosky 455 U.S. at 747-48; see also Ricky
Ralph M, supra, 56 NY2d at 81[termination of a parent's rights may not be
accomplished without "stern adherence" to dictates of due process]; Matter of
Whitten,101 AD2d 254, 257 [1st Dept 1984], aff'd 63 NY2d 136 [1984]).
Such evidence must be competent, material, and relevant (see, e.g., In re Ryan, 39
AD3d 652 [2d Dept. 2007]; cf. FCA 1046[b][iii]). These evidentiary standards
must be met even upon inquest (In the Matter of M/B Child, 8 Misc 3d 1001(A)
[Fam. Ct., Kings County 2005]).The
Evidence
The Agency proceeded in this termination
proceeding on the basis of the following documents, which were admitted into evidence:
(1) Order of Fact-Finding, dated Nov. 18, 2010 (Olshansky, J.); (2) Order of
Fact-Finding, dated Nov. 9, 2006 (Pearl, J.); (3) Order of Disposition, dated January 31,
2008 (Pearl, J.); (4) Order of Fact-Finding dated Oct. 2, 2008 (Pearl, J.); (5) Order of
Disposition dated January 9, 2009 (Pearl, J.); (6) Decision and Order dated Jan. 3, 2013
(Olshansky, J.); (7) MP's Birth Certificate; (8) MHP's Birth Certificate; (9) NAC's
Progress Notes [*3]dated June 3, 2011, through January
14, 2013 ("Notes").[FN4]
The Father testified in his own behalf and submitted copies of 22 letters
about his daughter MP, which he authored and sent to various recipients, including the
NAC, ACS, the Office of Court Administration ("OCA"), and the presiding judge, as
well as a letter from NAC's social worker Heather Leisher ("Ms. Leisher") to MP's
school. The Mother did not appear and provided no evidence. The Attorney for the
Children presented no evidence. Mental
Illness
Parental rights can be terminated and a child freed for
adoption if "[t]he parent . . . [is] presently and for the foreseeable future unable, by
reason of mental illness . . ., to provide proper and adequate care for a child" (Social
Services Law § 384-b [4] [c]; see Matter of Joyce T., 65 NY2d 39, 48[1985]);
Matter of Burton C. 91 AD3d HYPERLINK 1038, 1039 [3d Dept. 2012]; Matter
of Donald W., 17 AD3d 728, 729 [3d Dept. 2005], lv denined 5 NY3d 705
[2005]). SSL §384-b [6] [a] defines "mental illness" as
"an affliction with a mental disease or condition which is manifested by a
disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that
if such child were placed in or returned to the custody of the parent, the child would be in
danger of becoming a neglected child as defined in the family court act."
Termination of parental rights on the basis of mental illness requires the
Agency to produce clear and convincing evidence not only that the parent is afflicted
with a particular mental disease or condition, but also whether and how that mental
illness will affect the parent's present and future ability to care for the child (In re
Hime Y., 52 NY2d 242, 249[1981]; In re Arielle Y, 61 AD3d 1061 [3d Dep't
2009]; In re Lina Catalina R.,21 AD3d 563[2d Dept. 2005]). The statute requires
that such proof include testimony of a qualified psychiatrist or psychologist (SSL
§384-b[6][c] and [e]; see Hime Y.,52NY2d at 248; In the Matter of Robert
M.P. D., 31 AD3d 560, 561 [2d Dep't 2006]; In re Arielle Y, 61 AD3d at
1062]).
Although the Mother had two mental health evaluations during the course of these
proceedings (Notes 9/6/2011, [FTC Summary Report]), NAC submitted no evaluation
report as evidence and did not call a psychiatrist or psychologist to testify as to the
Mother's mental health. NAC provided no other form of admissible evidence that the
Mother was ever diagnosed with any [*6]mental illness or
condition that would preclude her from caring for her children.[FN5]
In the absence of testimony by a qualified psychiatrist or psychologist — or any
other admissible evidence — that the Mother is afflicted with a "mental disease or
mental condition" that would prevent her from providing "proper and adequate care" of
MP and MHP, the "Mental Illness" cause of action against the Mother is
dismissed.
Permanent Neglect
A
permanently neglected child is defined in the Social Services Law (SSL) in pertinent part
as
"[a] child who is in the care of an authorized agency and whose parent or
custodian has failed for a period of either at least one year or fifteen out of the most
recent twenty-two months 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" . .
. . (SSL 384-b [7] [a]).
A parent's obligation to plan for the future of the child means
"to take 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" (SSL 384-b [7] (c)) .
Before the court may begin its inquiry into whether the parent met his or her
obligations under the statute, it must first determine if the foster care agency met its
statutory obligations to make "diligent efforts to encourage and strengthen the parental
relationship" (In the Matter of Sheila G., 61 NY2d 368, 381 [1984]). Thus,
"[w]hen an authorized child-care agency has brought a proceeding to terminate parental
rights on the ground of permanent neglect, the court must evaluate as a threshold matter
whether the agency has exercised diligent efforts to encourage and strengthen the
parental relationship" (id. at 381). "[I]t is the agency's statutory duty that is
demonstrably paramount and pervasive" (id., at 380). The legislature has charged
childcare agencies with a specific obligation to assist parents in regaining custody of
their children (id. at 385). When a child has been placed in foster care, the State's
first obligation is to provide the parents with the assistance necessary to permit the family
to be reunited (In re Jamie M., 63 NY2d 388, 394 [1984]; see also In re
Michael B., 80 NY2d 299, 309 [1992]; Matter of Leon RR, 48 NY2d 117,
126 [1979]). As a matter of public policy, the State may not terminate a parent's rights if
diligent efforts to reunite the family by the Agency have not been forthcoming (Sheila
G., supra, 61 NY2d at 385). If the Agency cannot show that it has fulfilled its
statutory duty to exercise diligent efforts to strengthen the parent-child relationship and
to reunite the family, the petition must be dismissed (id., at 373; In re Ericka
M., 285 AD2d 986 [4th Dep't 2001]).
It is not enough for an agency to merely inform the parents that they must
plan for the future of their child. The agency must "determine the particular problems
facing [the] parent with respect [*7]to the return of his or
her child and make affirmative, repeated, and meaningful efforts to assist the parent in
overcoming these handicaps" (Sheila G., supra, at 385). It must make
"viable suggestions" as to how the particular problem impeding reunification may be
ameliorated (Matter of Anita PP, 65 AD2d 18 [3d Dep't 1978]). Making referrals
alone is insufficient. Petitioner is also required to make reasonable efforts to follow up
on such referrals, and if they fail to meet the needs of the parent, to locate alternative
services (Matter of Dustin C.,
19 AD3d 784 [3d Dep't 2005]). An agency's failure to make diligent efforts
cannot be excused because such efforts may be difficult or burdensome (In re A.,
55 NY2d 560 [1982]).
"Diligent efforts" are defined as "reasonable attempts by an authorized
agency to assist, develop, and encourage a meaningful relationship between the parent
and child" (SSL 384-b [7] (f)). An agency's attempts to assist, develop, and encourage a
meaningful relationship between the parent and the child may be made by:
"(1) consultation and cooperation with the parents in developing a plan for
appropriate services to the child and his family;
(2) making suitable arrangements for the parents to visit the child . . . .
(3) provision of services and other assistance to the parents . . . so that
problems preventing the discharge of the child from care may be resolved or
ameliorated;
(4) informing the parents at appropriate intervals of the child's progress
development, and health. . ." (SSL 384-b [7][f]).
(see Matter of
Hailey ZZ. (Ricky ZZ.), 19 NY3d 422, 429 [2012]; In re Gregory B., 74
NY2d 77, 86 [1989]). These measures are not exclusive; the agency is free to attempt
other reasonable and practical means to encourage and strengthen the family relationship
(In re Guardianship of Star Leslie W., 63 NY2d 136, 142 [1984]). The operative
requirement is that the agency is required "to assist, develop, and encourage a meaningful
relationship between the parent and the child."
For the Court to conclude that the Father permanently neglected MP and the Mother
permanently neglected MP and MHP, NAC must prove by clear and convincing evidence
first, that it exerted diligent efforts to assist, develop and encourage a meaningful
relationship (SSL 384-b[7][f]) between the Father and MP and between the Mother and
MP and MHP; and second, that, despite those efforts, the respective parent failed
"substantially and continuously or repeatedly maintain contact with or plan for the
future" (SSL §384-b[7][a]) of the children by taking "such steps as may be
necessary to provide an adequate, stable home and parental care for the child[ren]" (SSL
384-b[7] [c]). NAC failed to provide such evidence with respect to either the Father or
the Mother.
NAC Exhibits 1 through 6 are not evidence. They are fact-finding or
dispositional orders entered in prior Article 10 proceedings against the Mother and
Father. While they provide historical and contextual information about the parents' prior
involvement in the child welfare system (discussed below), they provide no information
or evidence as to whether NAC made diligent efforts to assist, develop and encourage the
parents' relationship with the subject children or whether the parents maintained contact
with or planned for the future of the subject children. Petitioner has not claimed that
anything in those orders operates as a collateral estoppel with respect to any of the issues
presented in the present proceedings.
NAC Exhibit 7 is a copy of MP's birth certificate; Exhibit 8 is a copy of
MHP's birth [*8]certificate. MP's birth certificate does
not identify anyone as her father, but an order of filiation declaring Mr. P to be her Father
was entered on June 24, 2010. MHP's birth certificate identifies "AMP" as her father, but
the respondent, AP, executed a denial of paternity on June 26, 2014. Neither document
provides any evidence regarding permanent neglect.
NAC Exhibit 9 is NAC's Progress Notes ("Notes") from June 3, 2011,
through January 14, 2013. The Notes record the comments and observations of NAC
Social Worker Heather Leisher ("Ms. Leisher") and other NAC caseworkers, as well as
reported statements by collateral individuals with whom Ms. Leisher and NAC
caseworkers spoke. Although MP and MHP had been in foster care under Little Flower's
auspices from February 16, 2010, until on or about June 1, 2011, when NAC took over
— a period of approximately 15 months — no Little Flower records were
offered into evidence and no one from Little Flower was called to testify.
NAC called as a witness Stephanie Mendell, an Agency supervisor, to
authenticate its Progress Notes, but otherwise called no witnesses to testify and submit to
cross examination. The Notes are admissible as business records to the extent they satisfy
the elements of the business-records exception to the hearsay rule (In re Leon RR,
48 NY2d 117, 123 1979]); otherwise, they have not been considered by the Court in
reaching its conclusions.
Agency Efforts: Goal Change
NAC began its "efforts" by changing the children's permanency goal from "return to
parents" to termination of the parents' rights and adoption less than three months after
assuming responsibility from Little Flower, and it did so without consultation with either
parent (Notes 9/6/11). NAC formally announced its decision to the Mother over her
objection at a "goal change" conference ("the Conference") held on September 6, 2011,
from which the Father was excluded (Notes 8/12/11; 8/26/11). The Father was informed
of the decision three weeks later (Notes 9/30/11).
The goal was not changed based upon the Mother's failure to complete
services. Her service plan consisted of visiting the Children, enrolling in and completing
parenting classes, and engaging in individual therapy (Notes 6/7/11; 6/14/11; 6/20/11;
7/18/11). The Mother completed her parenting courses and commenced individual
therapy while Little Flower was the foster care agency (Notes 6/14/11; see also
Notes 6/7/11, 6/20/11, 7/18/11).[FN6]
level="1"> She continued to engage in individual therapy (Notes 6/7/11, 6/27/11, 7/1/11,
8/1/11, 9/6/11), and she regularly visited the girls, except when she was ill, before and
after NAC took over (Notes 6/14/11, 9/6/11, 9/27/11, 2/10/12, 8/12/12, 9/2/12, 9/28/12,
10/5/12, 11/9/12, 11/30/12, 12/28/12). Although a summary report of the Conference
states that the Mother completed "a portion" of her services, it did not indicate what
remained for the Mother to do (Notes 9/6/11; see also 6/7/11, 7/18/11), nor did NAC
ever inform her of any other requirements or make any referrals for additional
services.When the Mother told Ms. Leisher that she was confused about what else she
needed to do, Ms. Leisher encouraged her to "attend therapy" and "speak with her
attorney regarding permanency" (Notes 7/18/11).
Before NAC became the foster-care agency, Little Flower was prepared to
begin unsupervised visits for the Mother since she had completed her service plan and
reportedly "engaged well with the girls during visits" (Notes 6/14/11). There is no
indication that NAC ever considered the possibility of unsupervised visits for either
parent.
Similarly, the goal was not changed based upon the Father's failure to
engage in services. For the approximately 15 months that MP was supervised by Little
Flower, no referrals were made for services for him, which was consistent with his status
as a non-respondent parent in the neglect proceeding. His only "goal" was to continue
visits, which he did without fail (Notes 6/14/11, 9/6/11, 2/10/12, passim). At the
same goal-change Conference on September 6, 2011, from which the Father was
excluded, NAC devised a "service plan" for the Father (Notes 9/6/11), although it is
unclear to what end since the determination to change the goal to adoption had been
made. The Father's "service plan" required the Father to visit MP and to maintain stable
housing and income.[FN7]
NAC already had in its possession a report from a court-ordered investigation of the
Father, conducted in June 2011 in connection with his custody petition, detailing his
housing and employment. The report revealed that the Father lived in a small apartment
with a separate room and a bunk bed for MP. The investigation also revealed that the
Father was employed and worked 6 days a week (Notes 9/6/11). He worked in security
and as a tailor (Father's Ex. G, letter to NAC dated 8/23/11). Neither his apartment nor
his employment changed during the course of the litigation, leaving visitation as the only
ongoing obligation, which he religiously continued to do (see, infra). Thus,
without even knowing the details of his "service plan," the Father met NAC's stated
requirements.
In light of these facts, NAC's decision to change the permanency goal from
return-to-parent to adoption so soon after it took over from Little Flower, without any
consultation or discussion with the parents, signaled that it had no real intention of
making any effort "to encourage and strengthen the parental relationship"
(SSL§384-b[7](a); compare In re Nicole H., 24 AD 3d1054, 1055 [3d Dept
2005]; Matter of Antonio I,
26 AD3d 331 [2d Dep't 2006]; Matter of Dutchess County DSS, 181
AD2d 824 [2d Dep't 1992]). Rather, NAC's efforts were, from the start, focused on
terminating the parents' rights and securing the Children's adoption by the foster mother
(see e.g., Notes 6/29/11 (Ms. Leisher speaks to foster mother about adopting the
girls); 8/9/14 (Ms. Leisher tells Mother that Agency is looking to change goal to
adoption).
Agency Efforts: Visitation
The only service NAC provided to the parents was agency-supervised visits.
A foster-care agency is required to provide "suitable arrangements for the
parents to visit the child" (SSL § 384-b [7] [f]). "Suitable arrangements" pertain not
only to the physical space for visits, but also the nature, duration, and quality of the visits
(see e.g., Matter of Fish v.
Fish, 112 AD3d 1161, 1162 [3d Dep't 2013]; see also In re Robert F,
195 AD2d 715 [3d Dep't 1993]). ACS's Policy Guidelines for Determining the
Appropriate Level of Supervision for Family Visits ("Guidelines") require foster care
agencies to implement unsupervised visits "unless visitation poses a risk to the physical
and/or emotional safety of the child; there is reason to believe that the parent may attempt
to interfere with, manipulate or coerce the child's potential testimony; or there is a court
order requiring a higher level of supervision. The Guidelines also require that [a]s soon
as [*9]possible, visits should move from the agency into
the community" and that "[p]arents with children in care should not remain in supervised
visits when no safety issues require supervision."
In the 35 months during which MP and MHP were in foster care prior to the
filing of the instant petition — the last 20 of which were under NAC's control
— neither parent was permitted anything other than agency-supervised visits. NAC
never identified — and the Court is unable to discern from the evidence —
any potential risks that the Mother's or Father's unsupervised visits would pose to either
child. There was no suggestion that either parent would interfere with, manipulate or
coerce either child's potential testimony. No court order is referenced precluding either
parent from having unsupervised visits with the children.
Little Flower had been prepared to begin unsupervised visits for the Mother
before NAC took over, as she had completed all her services and "engaged well with the
girls" (Notes 6/3/11; 6/14/11). Yet, NAC did not follow through. Since MP had been
released to the Father pursuant to an order of Judge Pearl 13 months before the Neglect
Petition was filed against the Mother and he was not accused of any neglect or abuse
between the release and the filing of the Neglect Petition, there was no legal or factual
basis for Father's visits to be supervised or curtailed at all. On the one occasion the
Agency provided a visiting coach to observe a visit, the coach praised his interactions
with MP, and found no fault with his parenting at all (see Notes 12/14/12). Still,
NAC never permitted him unsupervised visits. As with the goal change, NAC never
articulated any concrete reason to the parents why they could not move to unsupervised
visits in the community or even to overnight visits.Nor did NAC provide any evidence
that unsupervised visits by the parents would be "inimical" to either child's welfare
(see Fish, 112 AD3d at 1163; Szemanansco v. Szemansco, 296 AD2d
686, 687 [3d Dept. 2002]; Daghir v. Daghir82 AD2d 191, 194 [2d Dept. 1981],
aff'd56 NY2d 938[1982])
Although the Father was assiduous about visiting MP, NAC cancelled a
number of visits, often without notice to the Father, because the foster mother could not
bring MP or she simply failed to show up, or because there was no supervisor available,
or because the Agency closed early (Father Ex. B, K, L, O, R). Some, but not all, of the
Father's missed visits were made up (Father Ex J, O). NAC also changed the Father's
visits from Fridays, when he was off from work, to Mondays and then to Thursdays to
accommodate the foster mother's schedule (Notes 8/28/12; 9/5/12; 9/7/12; 10/2/12;
10/18/12; 12/28/12; 1/14/13; Father Ex. I, J), while playing havoc with the Father's work
and visiting schedule. The Father testified that he lost approximately 36 hours of visiting
time with his daughter as a result of NAC's cancellations and rescheduling.
By failing to adhere to the Guidelines, by restricting the visits to
agency-supervised for close to three years without any reason or showing that more
expansive visits would be inimical to the children's interests, and by too frequently
cancelling and disrupting the visits, NAC failed to provide "suitable arrangements" for
the Children to visit their parents.
Agency Efforts: "Encouragement of Meaningful Relationships"
Ms. Leisher supervised many of the Father's visits with MP and the Mother's
visits with MP and MHP (which occasionally occurred at the same time). Rather than
"encourag[ing] a meaningful relationship" (SSL§384-b [7] (f) (1)) between the
Father and MP, the effect of her supervision was to thwart it. During the Father's visits,
she was often intrusive. She repeatedly interjected herself into the visits, interrupted the
Father's conversations with MP, and attempted to engage MP in conversation with her
rather than with the Father (see, e.g., Father Ex. B, M, R, X; see also
Notes 6/23/11; 6/24/11; 8/30/11; 9/2/11; 9/6/11; 11/11/11; 4/20/12). The Father
brought toys and games to play with MP during the visits (see e.g., Notes
6/24/11; 7/29/11; 8/30/11; 11/18/11; 12/9/11; [*10]3/19/12; 4/6/12); Ms. Leisher brought others, despite the
Father's requests that she not do so (Father Ex. B). Ms. Leisher's notes rarely state
anything positive about the Father,[FN8]
although they do reflect that MP loved her visits with her father and wanted very much to
be reunited with her family (see e.g., Notes 6/29/11, 7/22/11, 8/18/11, 11/28/11,
3/15/12, 11/9/12).
Ms. Leisher was frequently critical of the Father in front of MP, usually for
relatively minor, even petty matters: once because she disapproved of the music he was
playing for MP (Notes 6/24/11; Father Ex. X); once because she disapproved of the
comic book he was reading to her (Notes 7/1/11); once because she disapproved of him
watching a movie on his iPad with her (Notes 9//6/11; see Father Ex. X); once
because he fell asleep during the visit while MP listened to music on his iPod (Notes
9/30/11); and once because he tickled MP (Notes 8/12/11; Father Ex M). The Father
testified that Ms. Leisher admonished him that the Agency visiting room was a "no
tickling zone" (see also Father Ex. M.).
The Father's efforts to be more involved in MP's life were often rebuffed or
outright ignored by Ms. Leisher. For example, when the Father asked that the foster
mother bring MP's backpack to the visits so he could help her with her homework, Ms.
Leisher rejected his request, telling him that the foster mother would supervise MP's
homework, but he could read her a book or work on a "reading log" with her (Notes
10/7/11; Father Ex. O, R). Attempting to elicit a negative response from MP about doing
homework during visits, Ms. Leisher told MP that she noticed the Father "saying things
to MP about her reading," and offered to "ask the Father to stop saying things about her
reading ability." MP responded that doing homework during the visit was "fine" and that
she "didn't need" Ms. Leisher to say anything to her father. (Notes. 10/26/11). A year
later, a visitation coach observed that MP did her homework with her father willingly,
that she seemed proud to show him her work, and that he was very patient with her for
the 90 minutes that they worked on math and reading together (Notes 12/14/12).
Ms. Leisher also intruded in and attempted to obstruct the Father's
involvement with MP's schooling. Although the Father had a history of visiting MP at
her prior school, where he would check in with security, check on MP and leave after a
few minutes, (Father's Ex. P), when Ms. Leisher learned that the Father had gone to visit
MP's school, she wrote to the school advising that MP was in foster care and "her birth
parents, TH and AP are not allowed to visit with MP at school, sign her out of school, or
be alone with MP in school" (Father Ex. Q; see also Notes 1/12/12). Where Ms.
Leisher got the idea that that the parents — most particularly Mr. Patterson, who
was not a respondent in the neglect case — were not "allowed" to visit MP at school
is unknown. As far as can be gleaned from the evidence presented, there was no court
order in effect prohibiting either parent from visiting the school, visiting MP at school or
being alone with MP in school.
Ms. Leisher also denigrated the parents to school personnel. She told the
education specialist that the "parents are not supportive" of MP's struggle to belong; that
their rights "most likely will be terminated;" that the Father "does not have an appropriate
relationship" with MP, and she criticized the Father's efforts to assist MP with her
homework (Notes 12/12/12).Ms. Leisher's letter to the school and conversations with
school personnel were without basis, likely embarrassing [*11]for the Father and Mother (and perhaps MP as well),
resulted in a curtailment of the parents' access to MP's school, and thwarted the Father's
independent efforts to be engaged in MP's education which he had every right to be as a
non-respondent parent (see Father Ex. P). These actions by Ms. Leisher did
nothing to encourage a meaningful relationship with MP. To the contrary, they were
designed to undermine the Father's efforts to preserve and nurture his relationship with
MP.
Home visits
Even though ACS had conducted a study of the Father's home in June 2011
and the results of the study, including a detailed description of the Father's home, were
set forth in a report to the Court that was in Ms. Leisher's possession (see Notes
9/6/l1), Ms. Leisher repeatedly asked the Father to permit her to conduct an inspection of
his home (Notes 7/29/11; 9/6/11; 11/30/11; 12/31/11; 1/31/12; 2/29/12; 5/31/12). The
Father repeatedly declined, stating that he would open his home for inspection when MP
was returned to his care. The Father argued that he was not a respondent in the neglect
case, that ACS had already done an inspection, and that further inspections were
unnecessary since NAC had not permitted him even brief, unsupervised visits outside the
Agency (see Notes 7/29/11; 9/6/11; 11/30/11; 12/31/11; 1/31/12; 2/29/12), let
alone allowed MP to visit his home.
Ms. Leisher also conducted monthly inspections of the Mother's home and recorded
the same observations each time, i.e., that her home was "exceptionally neat and
clean" or "incredibly" clean (see e.g., Notes 6/20/11, 7/18/11). During this same
period, the foster mother's home was "dark and cluttered" (Notes 6/9/11), the carpet was
removed from the floor, light fixtures in the bathroom were missing, and clothes were
scattered near MHP's crib (Notes 6/10/11), and there were dogs in the basement with
fecal matter, compelling the social worker to admonish the foster mother that it is
essential that the dogs are cleaned up after to qualify as a healthy living space (Notes
6/29/11). After the Agency changed the goal from return to parent to adoption, the
Mother declined to permit further home inspections, stating that she did not see the point,
as the Agency "is not returning MP and MHP to her care." (Notes 12/6/11).
Monthly home inspections by a foster care agency may be necessary when a
child is living in the home so that the caseworker can regularly assess if the child is
alright. They are pointless when no children are living in the home, as all that can be
described is the physical appearance of the home, which will generally be the same
month in and month out. Ms. Leisher's monthly insistence that the Father permit home
inspections served no purpose other than to harass him and to provide ammunition for
NAC's claim that the Father permanently neglected MP. The Father ultimately
acquiesced in the home inspection (Notes 6/15/12), which was conducted on 9/10/12.
Echoing the ACS report, NAC found the Father's home to be "cluttered but neat" (Notes
9/10/12). Ms. Leisher's similarly insisted that the Mother permit pointless home
inspections each month (see Notes 8/17/11, 9/27/11, 1/7/11, 11/1/11, 12/6/11, 1/31/12,
2/29/12. 3/31/12, 5/31/, 6/20/12). After informing the Mother that the Agency intended
for her children to be adopted, these visits served no purpose other than to demoralize her
(see e.g., Notes 7/18/11).
The Sum Total of NAC's "Efforts
Other than providing very limited, inadequate visits for the parents and
children, NAC made no efforts to "assist, develop and encourage . . . meaningful
relationship[s]" (SSL §384-b [7] (f)) between these parents and their children. To
the contrary, NAC's efforts were directed toward subverting and undermining those
relationships with the ultimate goal not of strengthening but of terminating those
parent-child relationships.
Even 8-year-old MP intuitively understood that NAC in general and Ms.
Leisher in particular were opposing her reunion with her parents, which she clearly
wanted very much. An entry in the Notes dated November 9, 2012, reflects her sadness
and anger and frustration at being kept in foster care and away from her home and her
parents. It also reflects Ms. Leisher's mistaken view of her role in the case:
"MP was crying and told social worker that she is very sad to leave Father
and brother after visit. She said she felt like someone was working against her in court
and she was very angry at the person working against her. MP said that social worker is
not helping MP go home. Social Worker said it was her job to make sure that children
are safe and social worker needs to be able to tell the court that any child that goes back
to live with their parents will be completely safe. Social worker asks if there are things
social worker should be doing so that MP felt like social worker was helping her. . . . MP
said that if she were the judge she would always send kids home even if they kept
coming back into foster care. . . ." (Notes 11/9/12).
Contrary to Ms. Leisher's belief, a foster-care social worker's role is not to
prevent or impede the return of a child to a parent whom she finds objectionable; her role
is to identify obstacles to the return of the child and exert diligent efforts to help the
parent overcome those obstacles.
NAC utterly and deliberately failed to fulfill its statutory duty to exert
"diligent efforts to encourage and strengthen the parental relationship[s]" (SSL
§384-b [7] (a)) between the Mother and MP and MHP and between the Father and
MP, and the petitions against the Mother and Father must be dismissed.
The Parents' Efforts
Even as NAC failed to meet its obligations to make diligent efforts to reunite the
children with their parents, the parents met their obligation to maintain contact with the
children and plan for their future.
As previously noted, the Mother completed all the services that were
demanded of her, including ongoing engagement in individual therapy. She lived in a
two-bedroom home that was "exceptionally clean and tidy" (Notes 6/20/11; see
also 7/18/11; 9/6/11), and properly furnished with a crib and a child's bed for MHP
and a bed for MP (Notes 9/6/11) in anticipation of their return home. She was also
consistent with her visits except when she was ill (see, e.g., Notes 6/14/11,
9/6/11. 9/12/12, 12/28/12). MP expressed disappointment and sadness when the Mother
was unable to come to a visit (Notes 8/8/11, 2//10/12; see also Notes 7/15/11 [MP
made her mother a card that says, "I love you so much"]).
The Father lived in a small, "cluttered but neat" apartment with a separate
bedroom and adequate accommodations for MP. He was diligent about visiting with his
daughter and determined to be engaged in all aspects of her life despite NAC's efforts to
marginalize him.
The Notes indicate that MP was always happy to see her Mother and Father
(see, e.g., Notes 6/29/11, 7/22/11, 8/18/11, 11/28/11, 1/25/11, 2/10/12, 3/15/12),
and that the Father and MP both enjoyed their visits and interacted warmly with each
other (see e.g. Notes 7/22/11, 11/28/11, 12/14/12, see also Father Ex. A.
The Father brought MP dinner or snacks and helped her with her homework. [see
e.g., Notes 8/5/11, 9/2/11, 4/6/12, 5/4/12, 5/18/12 (food); 10/21/11, 11/18/11, 3/9/12,
11/30/12, 12/10/12, 10/14/12 [homework]). They played board and computer games;
[*12]watched movies on his iPad; listened to music, sang
and danced together (Notes 6/24/11, 7/29/11, 8/30/11, 9/2/11, 11/18/11, 12/9/11,
1/27/12, 3/19/12, 4/6/12, 5/18/12, 7/8/12, 8/31/12, 11/16/12, 12/14/12, 12/28/12).
Photographs of the two of them during one visit depict the Father and MP sitting on the
floor together, the Father clowning with his arm around MP's shoulder, kissing the top of
her head, and the two of them laughing together (Father Ex A).
The Father was proactively and deeply involved in MP's medical care
(see e.g., Notes 11/18/.11; 3/2/12; 3/9/12; 6/1/12; 8/27/12), education (see
e.g., Notes 1/12/12, 2/28/12, 8/6/12; 9/31/12; 9/7/12), and well-being (see
e.g., Notes 8/6/12 [camp]). The Father called attention to MP's need for glasses and
made appointments with an eye doctor for her (Notes 2/21/12; Father Ex. B). He sent
letters and left voice messages reminding Ms. Leisher of the time and place of the
appointments (Notes 2/21/12; Father Ex. D, F); attended the appointments himself
(Notes 3/2/2012; 6/1/12; Father .Ex. B, C); scheduled follow-up appointments (Notes
3/13/12; Father Ex B, F); offered to pay the cost of the visits that was not covered by
insurance (Father Ex. D, F); and paid for an extra pair of eyeglasses as backup in case the
original pair was lost or broken (Notes 3/5/12; Father Ex. C).He consented to therapy for
MP and accompanied her to her appointments. He also requested family therapy,
indicating a willingness to foster MP's mental and emotional health (Notes 5/9/12; Father
Ex. B). He purchased numerous school supplies for MP (Father Ex. P) and closely
monitored MP's progress in school (see, e.g., Father Ex. B), even when he was
discouraged from doing so (see e.g., Notes 9/14/12, 9/18/12, 9/24/12, 10/2/12,
10/12/11, Father Ex R).
The Father insisted that he be informed of MP's medical conditions and
appointments and complained vociferously when he was not (see Notes 11/18/11;
3/9/12; Father Ex B). When MP suffered skin burns in the foster mother's home as a
result of a hot iron coming into contact with her arm (twice), the Father protested what he
viewed as NAC's and the foster mother's inadequate attention to MP's well-being and
safety (Father Ex. E, G). He insisted that he be informed of all MP's medical and
educational issues (id.). He complained when MP's clothes were too small and
insisted that she be provided proper clothing (Father Ex E). And he demonstrated a fixed
determination to be involved in his daughter's schooling despite Ms. Leisher's repeated
attempts to waylay his efforts.
Although he initially refused to permit Ms. Leisher to inspect his home, he
ultimately did so (Notes 9/10/12), and she observed the same conditions as were
previously reported by ACS in its investigation. Although he initially rejected Ms.
Leisher's suggestions that he participate in a parenting skills program, he eventually did
so (Notes 8/20/12). When the Court ordered him to submit to a mental health evaluation,
he did so [FN9]
(see Notes 12/20/12).
In short, each parent "substantially and continuously or repeatedly . . .
maintain[ed] contact with [and] plan[ned] for the future of the child[ren]" (SSL
§384-b [7] (a)) by "provid[ing] an adequate, stable home and parental care for the
child[ren]" (SSL §384-b [7] (c)). The Mother and Father demonstrated their love
for their Children and made it absolutely clear that they wanted the Children released
from foster care and returned home. Family Court Act
§ 1039
b
NAC alternatively seeks a finding, pursuant to FCA §1039-b, that "reasonable
efforts to return the child to his or her home are no longer required," on the grounds that
the Father's parental rights to a sibling of the subject children were terminated in a prior
Family Court proceeding, B-[*13]27903/05. Such finding
is not authorized for several reasons:
First, a §1039-b finding may only be made "in conjunction with, or at any time
subsequent to, the filing of a petition under ten hundred thirty-one of this chapter" (FCA
§1039-b (a)). These are termination of parental rights proceedings, not neglect or
abuse proceedings brought under FCA §1031.
Second, an FCA §1039-b finding may only be obtained pursuant to a "motion
upon notice" filed by a "social services official" (FCA §1039-b (a)). The motion
must be in writing (Matter of Lindsey Bb, 72 AD3d 1162 [3d Dep't 2010]). NAC
is not a social services official and no written (or oral) motion was ever made.
Third, the proceeding referenced in NAC's petition as the basis for an FCA
§1039-b finding was withdrawn on November 15, 2008.
The Parents' ACS History
NAC's failure to
exert diligent efforts to reunite the Children with their parents and Ms. Leisher's barely
concealed antipathy toward both parents, but particularly the Father, were prompted by
the parents' ACS history involving several children, as Ms. Leisher's notes confirm
(see e.g., Notes 7/18/11, 9/6/11). That history is recounted in detail in a decision
dated January 3, 2013, by Judge Emily Olshansky (1/3/13 Decision; Petitioner's Exhibit
6). Most significantly, within the space of six years, two infants under six months old
— LP and PH — died while in the Father's care, and a third child, TH, who
was four at the time, suffered injuries to her buttocks and hymen while in the care of the
Mother and Father. Within the space of 10 years, 5 petitions were filed against the
Mother and Father, all alleging derivative neglect stemming from LP's or PH's death or
TH's injuries.[FN10]
However, the law does not excuse a foster care agency from making diligent efforts to
reunite a family because it finds the parent's history distressing.
Abandonment is the only ground for the termination of the custodial rights
of parents for which a foster care agency need not demonstrate diligent efforts.[FN11]
In addition, for the purposes of determining permanent neglect, evidence of diligent
efforts is not required when a non-incarcerated parent has failed for six months to keep
the agency apprised of his or her whereabouts (SSL §384-b[7](e)(i)).
Ms. Leisher explicitly acknowledged that the parents' history was NAC's
primary concern (Notes 9/6/11). NAC relied on that history to avoid making diligent
efforts and to justify its failures. But the parents' history is not relevant to a determination
of whether the NAC made the statutorily [*14]required
"diligent efforts" to strengthen and encourage the relationships between these parents and
MHP and MP, nor did it excuse NAC from meeting its obligations or justify its persistent
attempts to undermine those relationships and the Parents' efforts to have their children
returned to their care.
While child-protective history would certainly be relevant in a custody
proceeding, where the inquiry is what is in the child's best interest, and no doubt will be
considered in the Father's pending custody proceeding, it is not relevant in this
termination of parental rights proceeding based on permanent neglect, where the inquiry
is first, whether the agency made diligent efforts to encourage and strengthen the
parent-child relationship and second, whether the parents consistently visited the child
and planned for her future. In these proceedings, NAC clearly failed to fulfill its statutory
responsibilities, while the parents met theirs.Conclusion
NAC failed to establish by clear
and convincing evidence (a) that the Mother suffers from a mental illness that precludes
her, now and for the foreseeable future, from providing proper and adequate care for MP
and MHP; (b) that the Mother permanently neglected MP and MHP; (c) that the Father
permanently neglected MP. Accordingly, the petitions must be dismissed.
The Clerk is directed to enter an Order in accordance with this decision.
Dated: October 8, 2014______________________________
Ann E. O'Shea, AJSC
Footnotes
Footnote 1:NAC originally filed a
termination petition on January 3, 2012, but subsequently filed the instant amended
petition on January 13, 2013, to avoid having to rely on the records of its predecessor
foster care agency, Little Flower Children and Family Services ("Little Flower")
(Affirmation of DO, Esq., 11/22/12).
Footnote 2:No explanation was
provided as to why Mia was not returned to her father.
Footnote 3:The November 18, 2010,
Fact Finding order made "[f]indings of derivative neglect as to respondent mother, TH."
This Court assumes that that statement is a clerical error and the finding of derivative
neglect was as to MP.
Footnote 4:References to the Notes
are cited as "Notes [date]."
Footnote 5:Although the Notes state
that NAC was concerned about the Mother's "recent mental health evaluation" and
"diagnosis," it produced no evidence of what the evaluation disclosed or what diagnosis,
if any, was made.
Footnote 6:The Mother told Ms.
Leisher that she had found a therapist and a parenting program on her own (Notes
6/20/11).
Footnote 7:There is no evidence that
anyone ever discussed this service plan with the Father.
Footnote 8:It is apparent throughout
the Notes that Ms. Leisher is attempting to build a case against the Father (see Notes
8/26/11; 9/6/11; 9/16/11; 9/30/11; 10/21/11; 11//4/11; 11;11;11; 3/9/12; 4/20/12).
Footnote 9:No report of such
evaluation was offered into evidence.
Footnote 10:NA-1736-7/00
(based on death of LP, MH and EP were removed); NA-27359/01 (based on death of LP,
TH was removed); NA-17958/95 (based on allegations of abuse of TH, MP was
removed); NA—28355-59/06 (based on death of PH, all children were removed);
NN-5816-17/10 [based on the neglect of MHP, MP was removed from her Mother].
Footnote
11:SSL§384-b[5](b) specifically provides that, in making a determination
that a parent abandoned his or her child, "the court shall not require a showing of diligent
efforts, if any, by an authorized agency to encourage the parent to perform the acts
specified in paragraph (a) of this subdivision." Paragraph (a) requires a parent to visit the
child and communicate with the child or the agency.