Opinion
#B.
Decided September 28, 2010.
Kerri E. Machado, Esq., Deputy County Attorney, Attorney for Petitioner.
Derek A. Thomson, Esq., Attorney for Respondent.
Stephen R. Weisbeck, Esq., Attorney for the children.
On November 2, 2009, Monroe County Department of Human Services, hereinafter referred to as Petitioner, filed a Petition for the Commitment of Guardianship and Custody pursuant to Social Service Law § 384-b, of the children, Justain R. d.o.b January 25, 2007, and Shane R. d.o.b. March 27, 2008, children under the age of eighteen years alleged to be permanently neglected by Respondent, Juan F., hereinafter referred to as Father. Father opposed the Petition to terminate his parental rights. The children were represented by the Legal Aid Society, Stephen R. Weisbeck, Esq. of counsel. The Court having found both personal and subject matter jurisdiction, conducted a Fact Finding Hearing and found Father to have permanently neglected the children. A Dispositional Hearing was held and the Court finds as follows.
FINDINGS OF FACT
The only witness to testify on behalf of the Petitioner was caseworker, Ann Marie S. The Court finds the testimony of Ann Marie S., to be honest and credible. The Court took judicial notice of Ms. S' prior testimony and the testimony of prior witnesses in the Fact Finding Hearing. The Court also took judicial notice of the Family Offense Order, docket number O-5813-10, Neglect Orders, docket number 5742-143-08 dated May 22, 2008, Order on Application For Temporary Removal of Child, Order of Protection, June 17, 2008, Order Modifying Preliminary Order of Protection, September 8, 2008, Order of Disposition-Adjournment in Contemplation of Dismissal-Order of Protection as to Respondent, Juan F., February 3, 2009, Permanency Hearing Order-Order of Protection, August 7, 2009, Corrected Permanency and Modification Order-Order of Protection, September 28, 2009, Order (Violation of Order of Disposition-Adjournment in Contemplation of Dismissal), Order of Fact Finding and Disposition as to Respondent, Juan F., Neglect Order of Protection, February 3, 2010, Permanency Hearing Order-Order of Protection, July 26, 2010, Permanency Hearing Order-Order of Protection, Decision and Order Upon Fact Finding, docket number B13529-09 dated May 28, 2010 and Order On Application For Temporary Removal of Child-Order of Protection (Braydene R., d.o.b. 3/29/2010) docket number NN-9517-10 dated August 4, 2010.
On April 22, 2009, the Father told the caseworker that the foster care mother, Valerie W., was in violation of the Order of Protection because she was associating with a Mr. H., an alleged sex offender, and that he had friends watching Ms. W.
On June 12, 2009, while Ms. W. and the mother, Andrea R., hereinafter referred to as Mother, were on speaker phone with Father, he threatened "if she was a man he would assault the caseworker".
On July 13, 2009, the Mother visited the children at the Department of Human Services, the Petitioner's visitation location. The caseworker noticed a bruise under Mother's left eye because Father hit her. It was one quarter inch in diameter with a faded brown color.
On July 14, 2009, the caseworker called Ms. W. who said Mother informed her that Father threatened to sexually assault Ms. W.
On October 19, 2009, Father visited the children and was given a PNG, personna non grata letter because of the threat made to the caseworker and that; hereafter, a guard would be present to escort Father at Petitioner's visitation location.
The caseworker investigated Mr. H. and determined he was a level 3 sex offender, on one year probation, and should not be involved with young children. In addition, Mr. H. was not in a relationship at that point with Ms. W.
On November 6, 2009, Father was at a visitation with thirty minutes remaining. Father was upset with Ms. W. as the Guardian. He attempted to talk with caseworker, but the caseworker ignored him so she could read to the children since Father did not.
On November 16, 2009, Father called the caseworker, from a location later determined to be the Open Door Mission, which Father denied. Father's speech on the telephone was slurred.
On November 20, 2009, at a visit with thirty minutes left, Father was sleeping on the couch while the children were present.
On November 24, 2009, the caseworker informed Father about mental health treatment because of a previous report that Father was diagnosed with Post Traumatic Stress Disorder.
On February 22, 2010, Christine H. from Huther-Doyle told the caseworker that Father was drug testing positive and Father was aggressive in group with anger management issues.
On March 11, 2010, Ms. W. told the caseworker that she feared Father. She wanted an Order of Protection against Father and to move to a new location with the children.
On April 19, 2010, the Father did not know what Shane's food allergies were and the caseworker told him.
On May 18, 2010, Mother told the caseworker that Father threatened her and the police were called. Mother received an Order of Protection against Father.
On July 6, 2010, Ms. W. informed the caseworker that Father hit Mother, which resulted in a black eye.
On July 7, 2010, Mother told the caseworker that she and Father were in a physical altercation where Father caused an injury to Mother's right eye. It was a greenish, yellow bruise about one inch in diameter.
On November 21, 2009 to present, Father resided in at least five locations. None of these locations were confirmed by Father, although the caseworker asked for confirmation.
On August 2, 2010, the caseworker went to Father's residence at North Washington Street, Rochester, New York. Father showed her two different rooms. There were no baby items in any of the rooms.
On June 7, 2010, Father completed an anger management program.
From early 2009 to present, Father was engaged in a parenting program, which the caseworker set up.
From August 6, 2010 to September 3, 2010, Father did not visit with the children, although he was allowed visits two times each week. Father missed at least seven visits.
From November 2, 2009 to September 3, 2010, Father had a possible 115 visits offered and missed 43 of them unexcused or 37%. There were 11 times Father confirmed that he would appear for visits and failed to appear, despite the children being brought six times. The children cried and were very upset as a result of the cancellations. One of the weeks Father did not visit the children is because he was in jail for allegedly stabbing someone.
From May of 2008 to September 3, 2010, the children have resided with the foster care mother, Valerie W., almost two and one half years. The child, Justain, is being treated at Strong Behavioral Health in play therapy two times each month. He has speech delays and is engaged in early intervention. Ms. W. monitors the children, including their medication for asthma and acid reflux. The child, Justain, has anger management issues and acts out.
From May of 2008 to present, Father said he was working through Labor Ready. However, he never confirmed any employment to the caseworker, although she asked for it on numerous occasions.
From May of 2008 to September 3, 2010, Father missed 5 out of 6 service plan reviews, although he was duly noticed. The one time Father did attend, he did not participate.
In July of 2010, Mother obtained an Order of Protection against Father and feared for her safety if she pursued a more restrictive Order.
Father only receives medicaid and no longer receives food stamps because temporary assistance stopped it due to Father's probable noncompliance.
On March 9, 2010, Father tested positive for THC. He cancelled the caseworker's releases at Huther-Doyle. In June of 2010, Father did not give a screen; therefore, there was a concern he was still using.
On November 2, 2009, Father had to be present one hour before visitation, since he had many previous no shows and the children were brought, which upset them.
From January of 2009 to August 3, 2010 visitation was monitored.
From August 3, 2010 to September 3, 2010, all visits were supervised and more restrictive. In order for visits to be unsupervised, Father would need to be in full compliance with the Order and be ready for discharge of the children to his residence. Ms. W. stated she would adopt the children if allowed to and has taken foster care classes.
On June 12, 2009, Father threatened the caseworker and the caseworker was afraid. Father told the caseworker he was friends with Frank G., who is a convicted murderer. Two other caseworkers, Ms. S. and Ms. B., were also afraid because of Father `s threats. In 2008, Father confronted one of the caseworkers by threatening, "I'll go gangster on you".
On August 2, 2010, while the caseworker was attempting to verify the Father's residence, he absconded with the newborn child, Braydene R. Consequently, the police were called by the caseworker and the child was taken into emergency foster care.
On February 22, 2010, the Father tested positive for THC. He was later arrested for allegedly stabbing a victim three times. That criminal proceeding is pending before the Monroe County Grand Jury.
Father's Huther-Doyle Discharge Summary was admitted into evidence. It stated that Father was diagnosed as cannabis dependent with physiological dependence. Father was admitted January 21, 2010, and unsuccessfully discharged July 27, 2010 because he missed numerous group sessions, was not abstinent on numerous occasions, and was negative and argumentative with the participants. Father was discharged for failure to comply, because he cancelled releases, his housing was unstable and his prognosis was poor.
Father `s records from Unity Health, were admitted into evidence which stated that Father was at Unity Health from September 22, 2008 to September 29, 2008. He was diagnosed with Post Traumatic Stress Disorder and repeatedly tested positive for THC and cocaine. On September 14, 2009 he dropped out of treatment against medical advice.
Father's Huther-Doyle records were admitted into evidence. They stated that on January 19, 2010 Father was unemployed and admitted he needed treatment. On December 7, 2009, Father only attended four group sessions before he was discharged and treatment was not completed. Father left against clinical advice. Father had many arrests. Father stated between the ages of 15 and 19 he used marijuana daily and served ten years in prison for an Attempted Murder conviction. From ages 30 to 33, Father ingested marijuana daily. He was clean for less than two years. The recommendation was intensive outpatient treatment. On January 7, 2010, Father was discharged for failure to attend group and loss of contact. The last group he attended was December 8, 2009. Father tested positive numerous times for marijuana.
Petitioner's request at disposition is to terminate the parental rights of the Father of the children, that he not have any post termination visits because of the continued threats against caretakers, caseworkers, and others. Father tried to escape and abscond with the newborn, Braydene; although, there was no opposition to Father receiving letters, pictures, and reports of the children post termination. The recommendation was also based on speaking with Father's service providers and the children's therapists. There was a recommendation against a suspended judgement for the Father because of the very little progress he has made in services. Father continues with anger, aggression and threats, has not successfully completed substance abuse treatment, has no stable residence, has no stable income or job, has a new neglect case pending concerning a third child, Braydene R., not a subject of this proceeding, and that child is in foster care after a hearing.
The next witness to testify was Ron F. on behalf of the Father. The Court found that Mr. F's testimony was credible. He testified that he was a parent educator through Hillside Children's Center. His job was to improve Father's knowledge of his children's development and improve his competence and confidence physically and academically. He testified that it was an open-ended process and that Father was engaged as a result of a referral made by the caseworker from July of 2009 to present. Sessions were monthly for each child and there were no problems with Father. Mr. F. testified that progress was difficult and he has seen Father apply the information he used with the children. Father's interaction was positive with the children and there were no safety concerns, threats, or corporal punishment.
From July of 2010 to present, Father failed to meet with Mr. F. Father could have rescheduled, but said he was not available. Mr. F. said that it would be inappropriate to sleep during the visits with the children, to leave early, to have the children's coats on thirty minutes prior to the visitation ending, and that is was important to visit consistently for the children's development.
The next witness to testify was Susan B. for the Father. The Court found that Ms. B's testimony was credible. Ms. B was employed by Evelyn Brandon Health Center for the past five years. She was involved in individual and group counseling and anger management for dialectical behavior treatment and interpersonal skills. The goal of anger management counseling was to improve Father's insight and reduce violence, anger and reactivity. There were twelve sessions total for one hour and fifteen minutes each. The witness testified that she knew Father because he was in therapy. Father's Certificate of Achievement dated July 7, 2010 was admitted into evidence. Father started the program January 2010. Father missed approximately five sessions, but still graduated.
On August 8, 2010, Father was charged with Assault In the Second Degree, which is still pending. The victim was allegedly stabbed three times. However, Ms. B. was not aware of this. The witness testified that this would definitely not be appropriate behavior or evidence of the skills that Father learned. Father did not mention any domestic violence issues to Ms. B. or that Mother had an Order of Protection against him.
The last witness to testify was Father, Juan F. The Court found that his testimony was incredulous. Father testified that he was arrested on September 8, 2010 for a Trespass charge stemming from 2006 in Canandaigua concerning Mr. H., who is the foster care mother's former fiancé. Father testified that he was arrested in July of 2010 for an Assault In the Second Degree charge. The victim was a friend of Mother and allegedly came to his house with a knife and starting hollering at Father. Father confronted the victim, a struggle ensued, and the victim dropped the knife. Father picked up the knife and then "accidently" stabbed the victim in the face three times! Father testified that he was unsure if the victim was transported by ambulance to the hospital. Father testified that he did not call the police after the altercation.
CONCLUSIONS OF LAW
Social Services Law Section 384-b (I) (a) states that "the legislature recognizes that the health and safety of children is of paramount importance. To the extent that it is consistent with the health and safety of the child, the legislature further hereby finds that:
(i) it is desirable for children to grow up in a normal family life in a permanent home and that such circumstance offers the best opportunity for children to develop and thrive;
(ii) it is generally desirable for the child to remain with or be returned to the birth parent because the child's need for a normal family life will best be met in the home of its birth parent, and that parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered;
(iii) the state's first obligation is to help the family with services to prevent its breakup or to reunite it if the child has already left home; and
(iv) when it is clear that the birth parent cannot or will not provide a normal family home for the child and when continued foster care is not an appropriate plan for the child, then a permanent alternative home should be sought for the child.
(b) The legislature further finds that many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents . . . Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens. The legislature further finds that provision of a timely procedure for the termination, in appropriate cases, of the rights of the birth parents could reduce such unnecessary stays.
It is the intent of the legislature in enacting this section to provide procedures not only assuring that the rights of the birth parents are protected, but also, where positive, nurturing parent child relationships no longer exist, furthering the best interests, needs, and rights of the child by terminating parental rights and freeing the child for adoption."
Social Services Law § 384-b (7) (a) defines a permanently neglected child as "a child who is in the care of an authorized agency and whose parent . . . 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." See Matter of Sheila G., 61 NY2d 368 (1984). Diligent efforts is defined as reasonable attempts to assist, develop and encourage a meaningful relationship between a parent and child. See Matter of the Guardianship of Star Leslie W., 63 NY2d 136 (1984).
It is uncontroverted that the children were taken from Father by Petitioner and placed into foster care on May 16, 2008 through the filing of the Termination of Parental Rights Petition on November 2, 2009. Presently, they are still in foster care.
The Court took judicial notice of previous Orders dated May 22, 2008, June 17, 2008, September 8, 2008, February 3, 2009 and August 7, 2009, September 28, 2009, February 3, 2010 and July 26, 2010, which adjudicated the children as neglected and permanently neglected with conditions which needed to be satisfied for their return to Father. Consequently, well over one year has elapsed following the date the children came into the care of Petitioner.
Social Services Law § 384-b (7) (c) defines plan for the future of the child as meaning" . . . to take such steps 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. The plan must be realistic and feasible, and good faith effort shall not, of itself, be determinative. In determining whether a parent has planned for the future of the child, the court may consider the failure of the parent to utilize medical, psychiatric, psychological, and other social and rehabilitative services and material resources made available to such parent."
Social Services Law § 384-b (7) (d) (i) states that "A parent shall not be deemed unable to maintain contact with or plan for the future of the child by reason of such parent's use of drugs or alcohol, except while the parent is hospitalized or institutionalized therefore;"
In the instant case, the Court ordered Father to cooperate with the Petitioner and attend service plan review conferences for the children, which he failed to do on five out of six occasions or 83% as testified to by the caseworker, which was not rebutted by Father. The caseworker gave Father notice of the meetings. See Matter of Jose R. , 32 AD3d 1284 (4th Dept. 2006), lv. denied 7 NY3d 718.
The Order required Father to complete a domestic violence program. Caseworker S. testified that, Father did not complete a domestic violence program, although he did complete an anger management program on June 7, 2010. Her testimony was not rebutted by Father.
Notwithstanding Mother obtained an Order of Protection against Father on June 21, 2010. There was testimony that Father struck Mother leaving a bruise on her eye. As recently as July of 2010, there were threats by Father toward the foster care mother who feared him and threats to the caseworker resulting in Father having an escort to all visits.
Currently, Father has an Assault In the Second Degree charge pending before the Monroe County Grand Jury. This is a D Felony and since Father is already a convicted felon, the sentence upon conviction would be enhanced. Father's own testimony was that the victim dropped the knife during the altercation and Father picked the knife up and "accidentally" stabbed the victim three times in the face! Father never called the police. See Matter of Rachael N. , 70 AD3d 1374 (4th Dept. 2010).
The Order required Father to complete a mental health program. Caseworker S. testified that, Father did not complete a mental health program. Her testimony was not rebutted by Father. See Matter of Abraham C. , 55 AD3d 1442 (4th Dept. 2005).
The Order required Father to complete a substance abuse treatment program. Caseworker S. testified that Father did not complete a substance abuse program. The records from Unity Health disclosed that Father was diagnosed as cannabis dependent and he repeatedly tested positive for THC and cocaine. Father had repeatedly been discharged against medical advice for failure to attend group and loss of contact. Father admitted drug use to the caseworker. Father's records from Huther-Doyle diagnosed him as cannabis dependent. He was unsuccessfully discharged on January 7, 2010 and July 27, 2010 for absences and testing positive for drugs. This testimony and evidence was not rebutted by Father. See Matter of Arella D.P.-D. , 35 AD3d 1222 (4th Dept. 2006), lv. denied 8 NY3d 809, Matter of Tiara B., 70 AD3d 1307 (4th Dept. 2010).
The Order required Father to complete a parenting program. Caseworker S. testified that Father did not complete a parenting program. Father testified that he was engaged in a program, but it was ongoing. See Abraham C., 55 AD3d at 1442.
The Order required Father to maintain a stable residence. Caseworker S. testified that from May 22, 2008 to September 3, 2010, Father lived in at least five residences and could never confirm in writing that he had lived in any of them, despite numerous requests. This testimony was not rebutted by Father. See Matter of Lillian I., 60 AD3d 1491 (4th Dept. 2009).
The Order required Father to maintain suitable income. Caseworker S. testified that Father's temporary assistance was closed for failure to provide correct documentation on more than one occasion. Father did not provide documentation as to a stable source of income through September 3, 2010. Father did not have basic assistance, including food stamps because of his failure to follow up with correct documentation. See Jose R., 32 AD3d at 1284.
The Order required Father to maintain consistent visitation with the children. From May 22, 2008 to the filing of the Petition, November 2, 2009, Father missed at least 18% of his visits. From November 2, 2009 to September 3, 2010, Father missed 43 of 115 possible visits or 37%. One week Father missed because of his incarceration. From August 6, 2010 to September 3, 2010, Father did not visit children, although he was permitted two visits each week. Starting November 2, 2009, Father had to be present one hour prior to the visits because of numerous prior no shows. Starting August 3, 2010 to September 3, 2010, visits became more restrictive from monitored to supervised because of Father's noncompliance. Caseworker S. testified that even while Father was present for visits, sometimes he would be sleeping or not interacting with the children. Father did not know what food allergies Shane had or when his birthday was.
Moreover, on August 2, 2010, while the caseworker attempted to verify Father's residence he absconded with the newborn child, Braydene R., born on March 29, 2010. Consequently, the police were called and the child was placed in emergency foster care pursuant to a Court Order dated August 4, 2010.
From May of 2008 to September 2010, almost two and one half years the children have resided with the foster care mother, Valerie W. The children have lived with her almost all of their lives. Ms. W. monitors the children, including medications for asthma and acid reflux. She ensures that Justain receives treatment for speech delays and anger management. Ms. W. has done a very good job caring for the children and has provided a stable, safe and permanent home. She has taken foster care classes and would be willing to adopt the children if they were freed.
Petitioner is required, pursuant to the statute, to provide diligent efforts to encourage the parental relationship between Father and the children.
Social Services Law § 384-b (7) (f) defines diligent efforts as ". . . reasonable attempts by an authorized agency to assist, develop, and encourage a meaningful relationship between the parent and the child, including but not limited to:
(1) consultation and cooperation with the parent 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;"
In the instant case, during the Fact Finding Hearing, twelve letters were admitted into evidence ranging from July 31, 2008 to October 30, 2009 from Petitioner to Father requesting meetings for the children with Father, for the Father's care of the children, arrangements for visitation, notice of substance abuse treatment programs, parenting programs, domestic violence treatment programs, mental health treatment programs, housing, income, request for information from Father for a current working telephone number and address, permanency service plan review notices, enclosure of service plan review information concerning the children, information concerning housing, domestic violence programs, mental health programs, temporary assistance, visitation changes, because Father failed to appear when required while the children were present, that a guard was necessary for visitation, Father's failure to appear for visits on at least six occasions, which required modification of the visitation arrangement, service plan reviews in which Father failed to attend on at least three occasions. Caseworker S. testified that the domestic violence counseling was arranged and Father did not follow through. Service plan and mental health counseling were arranged with numerous agencies, but Father failed to complete them.
CONCLUSION
After hearing all the testimony, reviewing the admitted exhibits and Orders, and upon recommendation of the attorney for the children that it is in their best interests, the Court shall enter an Order committing the guardianship and custody of the children, Justain R. d.o.b. 1/25/2007 and Shane R. d.o.b. 3/27/08 to the Petitioner. The Court finds that they were persons under eighteen years of age, the children were in the care of Petitioner, an authorized agency, Monroe County Department of Human Services, since May 16, 2008. The authorized agency made diligent efforts to encourage and strengthen the parental relationship between Father and the children and Father, despite the agency's diligent efforts, failed for a period of more than one year from the date the children came into the care and custody of the Petitioner to plan for the future of the children, although physically and financially able to do so.
The Court finds further that because of Father's history of violence, felony conviction, violence toward Mother, current Felony Assault pending before the Monroe County Grand Jury, Father's admission to stabbing a victim three times in the face as recently as July of 2010, repeated threats against the caretaker, and Order of Protection Mother has against Father in July of 2010, it would not be in the children's best interests to have any post termination contact with the children. Initially when the children were first removed from Mother and Father, the foster care mother would not take the children for fear of Father making threats to her, the caseworker and others, thereby jeopardizing the permanency and stability the foster care mother has provided the children for almost two and one half years. See Matter of Khalil S., 35 AD3d 1164 (4th Dept. 2006); lv. dismissed 8 NY3d 977 rev'd 60 AD3d 1450 (4th Dept. 2009); Matter of Tiara B., 70 AD3d 1307 (4th Dept. 2010); Matter of Rachael N. , 70 AD3d 1374 (4th Dept. 2010); Matter of Micah H. , 74 AD3d 1838 (4th Dept. 2010); Matter of Kyle K. , 72 AD3d 1592 (4th Dept. 2010).
Signed this 28th day of September, 2010 at Rochester, New York.