In this proceeding concerning the minor children of Maribel A., Nicole (presently three-years-old) and Emeli (seven), the Court is presented with multiple options for disposing of the case. There are presently three dockets pending for each child: a termination of parental rights action ("the TPR") brought by the foster care agency St. Dominic's Home ("SDH"); a child protective case ("the Article 10" or "the neglect case"); and a custody matter brought by the children's maternal aunt (who is also their foster mother). Following a ruling by the Court on December 17, 2013, that Ms. A. had permanently neglected the girls within the meaning of Social Services Law § 384-b, the TPR entered its dispositional phase. Contemporaneously, the custody matter was ready for trial. Additionally, the mother had a motion pending on the neglect case (motion # 5) pursuant to Matter of Nicole A., 40 Misc 3d 254 (Bronx Co. Fam. Ct. 2013), for an order directing the agency to discharge the children to her physical care on a trial basis, which was also ready for a hearing.

The hearing took place on March 13, March 20, May 13, July 8, and July 15, 2014. SDH's case consisted of the testimony of SDH's case planner supervisor, Ms. Jaritza Goris; and the following exhibits: petitioner's 1 (permanency hearing report dated November 26, 2013); petitioner's 2 (letter from VIP Community Services with drug screen result, dated October 28, 2013); petitioner's 3 (letter from VIP Community Services with drug screen result, dated December 9, 2013); petitioner's 4 (letter from VIP Community Services dated December 27, 2013); petitioner's 5 (letter from VIP Community Services with drug screen result, dated January 6, 2014); petitioner's 6 (letter from VIP Community Services dated January 8, 2014); petitioner's 7 (records from El Regresso Foundation with cover page dated January 13, 2014); petitioner's 8 (excerpts from SDH progress notes); petitioner's 9 (permanency hearing report dated May 12, 2014); and petitioner's 10 (SDH court report dated May 13, 2014). The mother's case consisted of her own testimony and that of her sister; the aunt's testimony was applied to her custody case as well. The attorney for the children did not present a case-in-chief. The Court also took judicial notice of a drug screen submitted to by the mother in court on July 15, 2014, which was negative. The matter was scheduled for oral summations on August 4, but this appearance was vacated due to counsel's family emergency. Instead, counsel for all four parties submitted written summations on or about September 15, 2014.

For the reasons that follow, the Court finds by a preponderance of the evidence, see In re Aliya Cheray Love L., 39 AD3d 364 (1st Dep.'t 2007); Matter of Gerald M., 112 AD2d 6 (1st Dep't. 1985), that it would be in the best interests of the children for their custody and guardianship to be committed to SDH for the purpose of consenting to an adoption, and, by extension for the aunt's custody petition to be dismissed and motion 5 on the neglect case to be denied.

As a preliminary matter, the Court finds that the testimony of Ms. Goris and Ms. Hilsa A. was credible in all respects. The Court credits the testimony of Ms. Maribel A. in large respect, but to the extent her denials of drug usage conflict with other evidence in the record, the Court finds not only that they are not credible, but that they illuminate a critical issue in this case: the extent to which Ms. A. has failed to gain insight into her substance abuse.

As of the time of the trial discharge, Ms. A. had completed her service plan: substance abuse treatment, including after care; parenting skills training; and individual counseling. During the trial discharge, Ms. A. tested positive for drugs two times, on June 20 and August 30. After the first positive screen, the agency referred her for a new outpatient substance abuse program. She tested positive while enrolled in that new program. After the children were removed from her care, Ms. A. enrolled in an inpatient drug program, and tested positive for cocaine again in October; she had been permitted to leave the program to attend a court appearance, but she did not return for two days, smuggled drugs in, and tested positive at that point. Ms. A. initially denied using drugs and challenged the accuracy of the October report, as she has done many [*3]times in the past; with this report, she suggested that she had discovered a paper in her closet with cocaine on it and licked it. She was eventually discharged from the inpatient program in January 2014 after multiple instances of violating program rules, including eloping or planning to elope from the premises, cursing and screaming at staff when confronted with information she did not want to hear, and throwing furniture. When she was discharged, SDH referred her to a different inpatient program, where she enrolled, and which is designed to be approximately one year in duration, though she later switched back to the program from which she had been discharged in January.

The children were well cared for by their mother during the trial discharge period. When she tested positive for drugs the first time during the trial discharge, the agency elected to leave the children with her and re-referred her for another substance abuse program, most likely because there was no clear evidence that her drug use was impairing the children at that time. When the decision was made to remove the children from their mother's care, they did not have to be physically moved, because Ms. A. and the children were visiting with their aunt at the time. The children merely stayed with their aunt, where, after all, they had spent the bulk of the prior two years. The maternal grandmother and a maternal uncle reside in the same building as well.

Ms. Maribel A. appears to be in denial about her drug addiction and remains in an externalizing, blaming-of-others state of mind. Her testimony included an alarming yet not-credible story about being raped while in the shelter system during the trial discharge period. She denied having a substance abuse problem; claimed the first positive drug test during the trial discharge was wrong and that she used drugs afterwards because she was upset about being incorrectly accused of using; and claimed that her discharges from drug treatment programs were unwarranted. She repeatedly claimed that the agency is blocking her from succeeding in programs that she is not sure she actually needs; she thought the benefit of the inpatient drug treatment program was to gain employment skills. All of this strongly suggests that Ms. A.'s struggle with addiction is far from over.

In determining what disposition would be in the best interests of the children, the primary and paramount concern to the Court in this case is determining who should be the children's caregiver. The concept of permanency means far more than mere stability or insulation from the possibility of a later change. From the children's point of view, permanency means being raised by the person or people who are known to the children as their primary caretaker(s) and to whom the children have a firm attachment. The children's placement should be "lasting," as opposed to "binding." See Mark Testa and Jennifer Miller, "Evolution of Private Guardianship as a Child Welfare Resource," in Child Welfare for the 21st Century 415-18 (Gerald Mallon and Peg McCartt Hess, eds.) (2005).

Thus, options 3 and 4 (see supra at 2-3) are contraindicated here. The evidence does not warrant a dismissal of the TPR action, as a trial discharge of the children to their mother's care is not appropriate now or in the near future. Nor is a suspended judgment appropriate, as a return of the children to their mother within the next year is unlikely based on the record. The foster mother and the children are experiencing significant levels of stress from agency and court involvement. The family needs to move on with its life, without further engagement with the child welfare system.

The only remaining determination, then, is whether the children's best interests would be served by an adoption by their aunt or a grant of final custody to her.^[FN1] In this regard, the Court gives significant weight to the preference of the aunt herself, as the Court has already determined that she is the best resource to care for the children; her views as to what legal status would be best for them should be entitled to some deference. While Ms. Hilsa A. equivocated as to whether she thought adoption or custody was the better alternative, when reading between the lines of her testimony it appears she favors adoption, and her attorney's summation argues in favor of it. She is eager to have finality; if the Court were to grant custody, she would want her sister to have a set period of time in which to complete her drug rehabilitation, which of course the Court could not direct. Additionally, the availability of an adoption subsidy looms large; [*5]while Ms. Hilsa A. claimed that she would be able to make the situation work without a subsidy (as would be the case with a custody order), based on her testimony the Court concludes that this was spoken more out of pride than reality. Finally, given her standing in the family as Maribel's younger sister, the Court infers that her reluctance to explicitly state a preference for adoption says more about her respect for sibling order than her true wishes.

It is for these reasons that the Court concludes that an adoption by their aunt would be in the children's best interests. As the agency has represented that it has every intention of consenting to an adoption petition filed by the aunt, the Court need not reach the issues raised in its case management order dated August 14, 2014.

Based on the foregoing, IT IS HEREBY ORDERED THAT:

Bronx, NY