Opinion
XXXXX
01-13-2020
In the MATTER OF AMAYA C. a/k/a Baby Girl W.
Alan Sputz, Esq., Special Assistant Corporation Counsel, Administration for Children's Services, Family Court Legal Services, 330 Jay St., 12th Floor, Brooklyn, NY 11201, By: Matt McGrath, Esq. John Kurkemelis, Esq., Wingate, Kearney, and Cullen LLP, 45 Main Street, Suite 1020, Brooklyn, NY 11201, Counsel for Heartshare/St. Vincent's Services Jennifer Marshall, Esq., 26 Court St., Suite 2410, Brooklyn, NY 11242, Attorney for Yolanda W. Vivienne Hewitt, Esq. 16 Court St., Suite 2402, Brooklyn, NY 11241, Attorney for Jamal C. Michelle Noah, Esq., Legal Aid Society-Juvenile Rights Practice, 111 Livingston St., 8th Floor, Brooklyn, NY 11201, Attorney for the Child
Alan Sputz, Esq., Special Assistant Corporation Counsel, Administration for Children's Services, Family Court Legal Services, 330 Jay St., 12th Floor, Brooklyn, NY 11201, By: Matt McGrath, Esq.
John Kurkemelis, Esq., Wingate, Kearney, and Cullen LLP, 45 Main Street, Suite 1020, Brooklyn, NY 11201, Counsel for Heartshare/St. Vincent's Services
Jennifer Marshall, Esq., 26 Court St., Suite 2410, Brooklyn, NY 11242, Attorney for Yolanda W.
Vivienne Hewitt, Esq. 16 Court St., Suite 2402, Brooklyn, NY 11241, Attorney for Jamal C.
Michelle Noah, Esq., Legal Aid Society-Juvenile Rights Practice, 111 Livingston St., 8th Floor, Brooklyn, NY 11201, Attorney for the Child
Erik S. Pitchal, J. This matter came before the Court for a previously-scheduled permanency hearing on January 9, 2020. At the outset of the hearing, counsel for the mother, who is the sole respondent on the Article 10 petition, indicated that she wished to have the child's placement in foster care terminated. A plenary hearing was commenced, and continued on January 10. At the conclusion of the hearing, the agency asked for the Court to order a continuation of the child's placement, and both parents asked for placement to be terminated. The attorney for the child advocated for a court order directing the agency to commence immediately a trial discharge. The Court reserved decision.
The record at the permanency hearing consisted of the testimony of the foster care agency case planner, James Cordell, and the testimony of the child's mother, Yolanda W., as well as petitioner's exhibits 1-6. Credibility determinations will be detailed in the analysis that follows. Additionally, the Court took judicial notice of all prior proceedings in this case, as the undersigned has presided over it since approximately July 2015.
Relevant Case Background
Amaya was born in Brooklyn. Her parents and their families, however, are from New Jersey. Ms. W. has a long history of mental illness, and was found wandering the streets of Brooklyn a few days before she gave birth, and was hospitalized. ACS filed a neglect petition against Ms. W. on November 21, 2014. Amaya was remanded to foster care that day and has remained in the legal custody of ACS ever since. On June 25, 2015, Amaya's biological father, Jamel C., petitioned for custody. While the parents lived together in New Jersey, Mr. C. presented himself as an alternative option for reunification in the event the child could not be reunified with her mother. His custody petition has been held in abeyance over the years as Ms. W. has made progress towards reunification and as the case as a whole has moved in varying directions.
On May 25, 2016, Ms. W. submitted to the Court's jurisdiction pursuant to Family Court Act § 1051(a), and the Court entered a finding of neglect based on the allegations in the petition. The Court's dispositional order of the same date placed the child with ACS and required Ms. W. to "continue with mental health services and medication management, as clinically recommended." No other services were mandated. The child's placement was continued on each permanency order, up to and including the most recent one of June 24, 2019.
The May 2016 dispositional order included a visitation provision by which the Court ordered the parents to have weekend overnight visits with Amaya in their home. That visitation order was modified from time to time, including a brief period in which the parents were restricted to agency supervised visits, but essentially Amaya has been seeing her parents and extended family each weekend for several years. One of the concerns that the agency has raised has to do with Mr. C.'s alcohol use; since December 19, 2018, the Court has directed that his participation in the weekend visits was to be limited or restricted in varying ways. Nevertheless, the record demonstrates that he has been an involved parent and that the child knows him to be her father and is positively attached to him.
In mid-2017, Ms. W. was having difficulty traveling to Brooklyn for supervised visits with Amaya. The Court had ordered the agency to pay her reasonable public transit fare to do so, but the parties disputed the manner in which that mandate was being implemented. Noting the length of time the child had been in care by that point, in its permanency hearing order dated September 18, 2017, the Court changed the permanency goal to adoption and ordered the agency to file a termination of parental rights petition no later than October 17, 2017. The agency filed its petition on November 30, 2017. However, due to significant progress by Ms. W. thereafter, the agency consented to hold its TPR prosecution in abeyance as permanency hearings continued on the Article 10 docket. The TPR petition was on the Court's calendar for a conference at the same time as the permanency hearing this month. The agency's retained counsel, who filed the petition and is responsible for its prosecution, did not appear.
Notwithstanding the pending TPR and the adoption goal ordered in 2017, over the next two-plus years the Court issued a series of orders — including mandates that the agency make reasonable efforts to plan concurrently for reunification — aimed at progressing the family towards being reunited. Thus, at the next permanency hearing on April 10, 2018, due to a positive change in circumstances, the Court ordered overnight visits to recommence in New Jersey. In January 2019, the agency agreed that sufficient progress had been made to justify conducting a trial discharge conference; the Court directed the agency to do so by order dated January 10, 2019, and gave the agency leave to commence the trial discharge itself without further Court order. In a trial discharge, the child remains in the legal custody of the agency even though she is physically in the care of her parent. Fam. Ct. Act § 1089(d)(2)(viii)(C) ; Matter of Star Leslie W., 63 N.Y.2d 136, 145, 481 N.Y.S.2d 26, 470 N.E.2d 824 (1984).
A conference took place but the child was not trial discharged at that time, because she was found to have bruises and ACS needed to investigate. The investigation determined that she was bruised from ordinary child's play at school. Thus, in the permanency hearing order of March 12, 2019, the Court directed the agency to conduct another trial discharge conference no later than March 18, 2019, and to commence a trial discharge immediately thereafter, absent a compelling safety reason not to.
At the next set of court appearances for a permanency hearing in June 2019, the agency conceded that it had not conducted the conference that was ordered, nor had it commenced a trial discharge. It also appeared that there was some information concerning Mr. C.'s alcohol use that the agency cited to justify, on the merits, the lack of a trial discharge. Satisfied that Ms. W. could still safely parent her child at home, in the June 24, 2019, permanency hearing order, the Court again directed the agency to conduct a trial discharge conference, this time no later than July 12, 2019. At the next court date of October 18, 2019, it appeared that no such trial discharge conference had occurred. The Court issued another order, this time directing the agency to conduct a trial discharge conference no later than November 8, 2019. According to the case planner's testimony on January 9, 2020, he scheduled the conference for November 8, 2019, but Ms. W. said she would not attend without Mr. C., and that he was unavailable that date due to his work schedule. The agency did not offer to reschedule to accommodate this request, for unjustifiable reasons, and never sought to be relieved of its Court-ordered obligation to conduct the conference.
As noted above, the child has been in foster care in New York City since birth. She turned five in November and is enrolled in kindergarten here. She has been in three foster homes since birth, having moved again most recently on December 4, 2019.
The Current Permanency Hearing
The applicable statute provides, in relevant part:
At the conclusion of each permanency hearing, the court shall, upon the proof adduced, and in accordance with the best interests and safety of the child, including whether the child would be at risk of abuse or neglect if returned to the parent or other person legally responsible, determine and issue its findings, and enter an order of disposition in writing (1) directing that the placement of the child be terminated and the child returned to the parent or other person legally responsible for the child's care with such further orders as the court deems appropriate; or (2) where the child is not returned to the parent or other person legally responsible [making other orders applicable to a child who remains in care].
Family Court Act § 1089(d). In support of its case for continued placement, the agency argues that Ms. W. has made insufficient progress in her service plan in order to justify reunification. The agency has identified that service plan as engagement in mental health services at Bridgeway Rehabilitation Services in New Jersey; completion of a parenting skills program; demonstration of stable housing and income sufficient to support the child; and maintenance of contact with the agency and visitation with the child. Additionally, the agency points to issues related to Mr. C.'s use of alcohol as a reason to continue the child's placement in foster care. The Court will analyze each of these issues in turn.
Ms. W.'s Mental Health Treatment
As indicated above, Ms. W. has a long history of mental illness, and her active symptoms in November 2014 led to Amaya's removal from her care. Because of this history, for many years Ms. W. has received treatment in her community from New Jersey's Program of Assertive Community Treatment, more commonly referred to as the "PACT team." See N.J. Adm. Code § 10:37J-1.1. In Elizabeth, where she resides, the local PACT team is administered by Bridgeway. PACT provides multi-disciplinary services to patients who have a history of psychiatric hospitalization. Id.
After a brief re-hospitalization earlier in the case, Ms. W. has been psychiatrically stable for many years. As documented in the various reports from Bridgeway, which corroborate her own credible testimony, Ms. W. receives visits in her home from PACT team staff twice per month. They deliver her oral medication, which she takes as per the prescriptions, and they give her monthly injections as well; she has regular appointments with her psychiatrist and primary care provider. The Court credits her testimony regarding the purported resistance to her injection in December, finding that there was a misunderstanding on the part of the nurse who visited her that month in terms of whether Ms. W. was due for the shot that day or not. Treatment from PACT "has no predetermined end point," N.J. Adm. Code § 10:37J-1.1(b), and thus the Court is confident that she can and will continue to engage in PACT services even after this Family Court case is closed. The agency has no credible evidence to the contrary.
The Court finds that Ms. W. has engaged sufficiently in mental health services such that it would be in the child's best interests to be returned to her.
Parenting Skills
As noted above, no services other than mental health services were required of Ms. W. by the Court's dispositional order of May 25, 2016. In fact, ACS did not ask for parenting skills to be included in that dispositional order, and the order itself was entered on consent. The Court has conducted several permanency hearings since then, and in none of the associated permanency orders did the Court add parenting skills training to the Court-mandated service plan. See Permanency Hearing Orders dated January 25, 2017; September 18, 2017; April 10, 2018; March 12, 2019; and June 24, 2019. While early in the case the agency wanted Ms. W. to develop parenting skills through services at Bridgeway (see pre-fact-finding permanency hearing order dated September 30, 2015), the operative orders at this point are the dispositional order and the post-disposition permanency orders. The Court finds that the agency has failed to demonstrate the need for Ms. W. to engage in such a program. In his testimony, the case planner was asked why the agency wanted Ms. W. to do one; he replied, "Everyone can learn something from parenting skills. Even the best parent has something they could benefit from." This claim may or may not be true empirically. Even if true, the "best interests of the child" standard cannot be stretched so far as to require every parent to complete a parenting program before reunifying with a child in foster care. There is no particularized evidence offered as to why Ms. W. specifically needs to complete the program before reunification occurs.
In October 2018, the agency reported that it had been trying to find a parenting skills program for Ms. W. in New Jersey but could only find Spanish-speaking classes. A year later, the agency was reporting the same problem: it still could not find a parenting skills program for Ms. W. delivered in the English language (Ex. 2). To his credit, the current case planner has evidently re-doubled efforts to locate a parenting program, but he has had similar difficulties finding one (Ex. 5). While it may be that Elizabeth, NJ, and surrounding Union County have a significant Spanish-speaking population, the Court takes judicial notice that Newark — the largest city in New Jersey — is approximately 15 minutes away from Elizabeth. In any event, it should not take more than a year to locate a parenting skills program, and the Court notes that a referral for a specific program has still not been made to date.
In sum, the agency's inability to locate the most basic service program — when such a program has not been demonstrated to be necessary in this case — is not a basis to deny reunification. Stable Housing
In its most recent court report (Ex. 5), the agency asserts that Ms. W. has refused to provide a copy of her lease. The Court is incredulous at this claim and its implication that the agency somehow lacks proof of Ms. W.'s being stably housed. Ms. W. has resided at the same address for years, and agency staff have been making approximately monthly home visits there the entire time. Moreover, the last time this issue was raised on the record, on October 10, 2018, Ms. W.'s attorney reminded all assembled that she had provided a copy of the lease to petitioner's counsel the year prior. The Court explained in October 2018 that it was satisfied with this information and did not see housing as a barrier to reunification in this case. Despite this, the agency inexplicably reiterated its position about the missing lease in the January 2020 report, even though Ms. W. lives at the same location as she did in October 2018. Once again, the Court repeats that this issue is a non-issue.
Income Sufficient to Support the Child
The Court credits Ms. W.'s testimony concerning her ability to adequately support her child's needs in the event of a reunification. Taking into account her own Social Security benefits, derivative Social Security benefits available to Amaya once in her care, food stamps, Section 8 benefits, and Mr. C.'s employment, the family should be able to manage. Poverty is not grounds to keep a family separated by foster care, absent other factors.
Parenting Time
As will be explained further below, despite Amaya's placement in foster care for her entire five-plus years of life, she has a remarkable, positive attachment to her mother. This is no doubt due in part to the Court-ordered parenting time that has occurred. In particular, Ms. W. and Amaya have enjoyed weekends together consistently for at least a year; weekend visits were first ordered in May 2016 and, but-for brief periods in which they were canceled, have been ongoing since that time. Additionally, they had an extended visit over the recent Christmas/New Year's holiday period. Ms. W. comes to Brooklyn every Friday and picks Amaya up, returning her as scheduled on Mondays. Amaya reports having a wonderful time with her mother and not wanting to come back to New York afterwards. In addition to seeing her mother, she also spends time with her father, grandmother, and extended family. Every indication is that the parenting time has been consistent, positive, and entirely appropriate. The agency's staff have been to her home many times and found the arrangements to be suitable for a child of Amaya's age with no safety hazards.
Mr. C.'s Alcohol Use
Mr. C. has been adjudicated the child's legal father and he lives with Ms. W., but he is not a respondent on the neglect proceeding and has never been charged with or found to be neglectful. Nevertheless, during the pendency of this case, the agency has developed concerns that he may have a problem with alcohol misuse.
In May 2018, the Court briefly suspended weekend visits due to an allegation that Mr. C. had come to the agency on a Friday to pick up the child under the influence of alcohol. After a hearing, the Court held that there was insufficient evidence to find the allegation to be true. (See Order on Motion 3, dated May 31, 2018.) The Court did direct the agency to refer Mr. C. for random drug and alcohol screens, and for an evaluation by a credentialed alcohol and substance abuse counselor ("CASAC"). By October 2018, the agency revealed it had failed to make the CASAC referral, blaming it on the fact that Mr. C. had "New Jersey Medicaid" without looking for creative ways around this problem (such as identifying a substance abuse counselor in New Jersey who would accept his insurance) or bringing the matter to the Court's attention.
On November 2, 2018, Ms. W. called the agency to ask that the visit scheduled for that weekend be canceled, saying that Mr. C. — who was en route to pick Amaya up at the agency — had been drinking heavily the night before. When Mr. C. arrived at the agency, he was visibly intoxicated, and his urine screen tested positive for alcohol. The visit was indeed canceled.
The agency referred Mr. C. to an alcohol rehabilitation program at the end of December 2018. He completed a detox program in March 2019, and has been required to submit to random alcohol screens for over a year. Initially, the agency referred him to a lab in New Jersey for the tests, but the location was too inconvenient for him and he requested to be sent to a lab in Brooklyn instead.
The case planner credibly testified that every single test result received since the last permanency hearing order in June 2019 has been negative. This includes the period immediately following an incident which occurred on October 4, 2019. The agency alleged that Ms. W. called to cancel that weekend's visit because Mr. C. had been drinking. Mr. C. took two alcohol tests the following week, both of which were negative. There is no evidence that Mr. C. has been drinking in the home at any time since October.
In the June 24, 2019, permanency hearing order, the Court continued the limitation on Mr. C.'s contact with Amaya during her weekends in New Jersey (supervised only, to take place at Mr. C.'s mother's home). The Court was focused on developing the attachment between Ms. W. and Amaya and protecting against any possibility that Mr. C.'s drinking was not in control. However, the Court also gave the agency the discretion to relax these conditions and to permit Mr. C. to be present in the family home for the weekend visits, based on the results of his random alcohol screens. Despite his consistent negative screens thereafter, the agency never exercised this discretion.
The agency claims that it sent Mr. C. for random alcohol screens on December 6 and December 19 but did not receive results from the lab. Regarding December 6, the case planner testified that the lab reported not having any results on file, whereas for December 19, the lab purportedly had a record that Mr. C. appeared for the test but that no sample was collected, for unknown reasons. Given the many months of consistently negative screen results, the Court is not overly concerned by this information.
The Court finds Ms. W.'s testimony regarding Mr. C.'s alcohol use to be, on the whole, credible. The Court credits her claim that she did not cancel the October 4 weekend visit because he was drinking as the agency maintained; however, the "relationship problems" she asserts they were having that weekend undoubtedly included issues related to his drinking. After all, his drinking has come up as a barrier to discharge of their child to her care, and has led to restrictions on his contact with Amaya during weekend visits. He did complete a detox program, and Ms. W. has called the agency to warn them about his intoxicated state on at least one occasion, so these concerns are valid.
Regardless, the Court finds that any issues related to Mr. C.'s drinking are not sufficient to justify keeping the child in foster care at this time. The only respondent in this case is Ms. W., and she would be taking the lead in caring for the child upon her discharge to New Jersey. The Court has confidence in Ms. W.'s protective capacity and ability to police Mr. C., where necessary, around his alcohol consumption if it is impacting the child. The Court sees no reason to keep Mr. C. excluded from the family home or to enter any other orders limiting his contact with Amaya.
Amaya's Well-Being
In support of their request that the child be returned to her family, the parents and the attorney for the child point to Amaya's emotional decline while in foster care. The Court finds the evidence in support of their position persuasive.
Firstly, Amaya has already been placed in three different foster homes in five years. When Amaya moved to a new foster home just last month, she had to change schools as well.A growing body of research suggests that multiple foster care placements is extraordinarily damaging to children. See Eric Adler, "Throwaway Kids: Frequent Moves Don't Just Harm Foster Kids' Emotions — They Hurt Their Brains," Kansas City Star , Dec. 15, 2019, available at https://www.kansascity.com/news/special-reports/article238204784.html (citing scientific research). The Court was moved when, in October 2019, Amaya's first foster parent appeared in court to beg the parties to achieve timely permanency for this young, spirited girl. (The foster parent had retired and was in the process of moving out of the country.) As someone who fostered many children over the years, she understood all too well the damage done to them the longer they remain in care.
Secondly, the record reveals that the agency has been on notice for a long time about the child's deteriorating emotional condition and has failed to act. Her second foster parent complained for many months about the child's growing dysregulation and need for services. No support was provided to the foster parent and/or the child in the foster home. In the June 24, 2019, permanency hearing order, the Court directed the agency to refer Ms. W. and Amaya to "play therapy in New Jersey in the event of a trial discharge, and if possible to a location where she can engage on the weekends during visitation preceding any trial discharge." The agency failed to do so. Instead, towards the end of 2019, the agency made a referral for the child to have play therapy at Woodhull Hospital in Brooklyn, with an intake appointment of February 11, 2020. As with parenting skills, the agency claimed it had been difficult to find a provider. Unlike with parenting skills, no information was provided about efforts made to comply with the Court's order to locate therapy for the child in New Jersey (or Brooklyn, for that matter) so that her mother could be part of the service.
Confronted with the child's behavioral problems in school — which continued at her new school in December — the agency's plan is to work with the Department of Education to develop a special education program for her. In his testimony, the case planner explained that the school and agency believe Amaya would benefit from a smaller class size. However, a simpler and likely more efficacious plan to achieve this goal would be to send Amaya to live with her mother in New Jersey, for the following reason. New York City's Department of Education uses a calendar year system for enrollment purposes, meaning that a child who turns five at any time during a given calendar year will be enrolled in kindergarten in September of that year. Thus, Amaya, born November 16, 2014, started kindergarten in September 2019. All indications are that she was not emotionally ready for kindergarten. This is not unusual for children with late fall birthdays, and Amaya's experience growing up in foster care and already by September 2019 having experienced one placement move likely further impaired her ability to adjust to public school. The recent change to a new school in December 2019 did not make things any easier for her. In contrast, New Jersey has a cutoff of October 1 for school enrollment, meaning that a child who turns five after October 1 in a given calendar year must wait until the following September to start kindergarten. See N.J. Stat. § 18A:38-5. Thus, if Amaya were to go home to New Jersey, she would be placed in pre-kindergarten, where class sizes will quite likely be smaller than kindergarten. She would start kindergarten over again in Elizabeth in September 2020, as she would not turn six until November 2020. Between a smaller class size, the more nurturing environment in pre-school, and the emotional security of living with her mother, Amaya is likely to do much better in kindergarten next fall than currently and may not actually need special education services.
All indications are that Amaya has a very positive attachment to her mother. It is a testament to Ms. W. that despite the fact that she has never had full-time custody of her daughter, she has used her Court-ordered visitation to maximum benefit, to the point where the child knows that Ms. W. is her mother; loves her mother; and is desperate to stay with her mother. Amaya is excited and giddy to see her mother on Fridays when it is time to go to New Jersey; she is despondent and inconsolable on Mondays when she is returned to New York. Scenes of heartbreak have been playing out weekly at the agency's office for many months now.
During those drop-offs on Mondays, Amaya is subjected to a complete body check. She is required to disrobe so that agency personnel can inspect her body for any marks. The only instance when any marks have been found in several years of weekend visits led to a suspension of those visits — until a more complete investigation revealed that the child got the bruises at school. The weekly invasion of the child's privacy is not without its own moral and emotional consequences.
The placement move in December has only compounded the child's emotional harm and trauma, as she has been put in a stranger's home instead of being allowed to live with her mother. Her mother credibly reports no more than the usual level of stubbornness from a child of Amaya's age during their weekends together, and the child evidently does not have the same levels of tantrums in New Jersey as she does in Brooklyn.
Finally, it should be noted that the current foster parent has four biological children living in the home plus two other foster children in addition to Amaya; the most recent foster home before this one had four other foster children. Unquestionably, a child with growing emotional needs would be better served in a home where she can receive far more attention than is possible in a busy foster placement. In addition to her mother at home, Amaya would benefit, in New Jersey, from regular contact with her father, grandmother, and extended family.
Trial Discharge v. Termination of Placement
At a permanency hearing, the threshold determination is whether to continue the child's placement in foster care or not. See Family Court Act § 1089(d). The termination of placement need not have any additional orders to accompany it, and usually means that there is no further involvement of the supervising agency thereafter. Alternatively, the Court is empowered to order the agency to commence a trial discharge. Matter of Nicole A. , 40 Misc. 3d 254, 964 N.Y.S.2d 869 (Bronx Co. Fam. Ct. 2013).
Under the circumstances presented in this case and based on this record, the Court finds that it would be in the child's best interests to terminate placement entirely rather than to order a trial discharge. The Court finds that the continued involvement of HeartShare/St. Vincent's in the life of the child would be, on balance, more harmful than helpful, even taking into account the possibility that her parents might not give her the best care at all times in the next few months. The Court notes that, among other concerns, no fewer than six case planners from the agency have appeared in court or signed reports, not including HeartShare/St. Vincent's supervisors or ACS employees.
The Court finds that during this case, the family has not been fairly treated by the agency. For example, as noted above, the Court never ordered Ms. W. to complete a parenting skills course, from the dispositional order to any of the five permanency orders subsequently. Nevertheless, the agency decided to add it to her service plan anyway, and, as was revealed in the case planner's testimony, had no particular reason to do so other than that "even the best parent" could benefit from such a program. To be blunt, the Court is concerned that, during a trial discharge, the agency would discover some additional, purported service need that would serve as a barrier to final discharge and then — as with the parenting skills — fail to find an appropriate program for Ms. W. to do.
As another example, earlier in the case the agency added "therapy" to Ms. W.'s service plan, even though the Court never ordered the specific modalities required within the broader category of "mental health services." The Court's specific dispositional order in May 2016 was that she "continue with her mental health services and medication management, as clinically recommended." She had been engaged with the PACT Team at Bridgeway as of the date of that order, and the agency has never referred her to a different provider for mental health services. The agency case planning team does not have its own clinical expertise with respect to mental health treatment and makes no claims to such expertise. There can be no argument that "as clinically recommended" in this case means "as recommended by the PACT Team at Bridgeway." A progress note from Ms. W.'s psychiatrist at Bridgeway, dated May 7, 2019, was submitted to the Court in connection with the last permanency hearing, in June 2019. That note describes Ms. W.'s "treatment recommendations/plan" as "continue with meds; see your PCP and GYN doctors for follow up appointments; call PACT if in need of further assistance." These recommendations were made in light of Ms. W.'s condition and her own stated goal of regaining custody of her child. Despite this clinical judgment, which did not include individual therapy or counseling, in October of 2019 the agency argued that Ms. W. was refusing to engage in psychotherapy (Ex. 2). The Court is concerned that with continued involvement of the agency, further attempts may be made to add to the service plan, confuse the issues, or otherwise create barriers to full reunification that would not exist but-for ongoing supervision.
Moreover, the agency's continued rehashing of issues that have been previously addressed to the Court's satisfaction suggests bad faith. Its assertion that she has refused to provide proof of stable housing, as analyzed above, highlights the real risk that if this agency continues to be involved with this family, it will intentionally provide misleading information in an effort to undermine the family's stability and ultimate final discharge from the foster care system. Its failure to comply with court orders requiring it to conduct a trial discharge conference and commence a trial discharge within certain parameters also suggests a cavalier attitude towards the authority of the Court that justifies a complete cessation of the agency's involvement with the family at this time.
Finally, and most importantly, the record here reveals that the child's well-being has suffered while in the agency's care. Its failure to meaningfully or timely address the child's emerging emotional dysregulation strongly suggests that its continued involvement, even if limited to a supervisory role during a trial discharge, would not, on balance, provide benefit to the child. Moreover, given that the agency is pursuing a termination of parental rights petition but has not placed her in a pre-adoptive home — despite moving her to a new home in December after many months of ongoing complaints by the prior foster parent — the Court doubts the agency's overall judgment when it comes to permanency planning. Additionally, twice-monthly home visits during a trial discharge would mean twice-monthly body checks and their associated privacy invasion.
To be sure, a termination of placement is not without risk to the child. Given her mother's history of mental illness and her father's use of alcohol, any number of things could go wrong. However, in order to reach the correct result when confronted with two imperfect options, the touchstone for this decision needs to be reframed from the "best interests" of the child to the "least detrimental alternative" to her. Indeed, the authors responsible for the "best interests of the child" concept and its influence in the field of juvenile law later recognized that there is no "best" outcome. They consequently added a critical subtitle to their books when issuing a revised trilogy edition some years later. See Joseph Goldstein, Albert J. Solnit, Sonja Goldstein, and Anna Freud, The Best Interests of the Child: The Least Detrimental Alternative (1996) (emphasis added).
When viewed through this clarifying lens, the choice in this case becomes clear: Amaya should be released to her parents and her placement completely terminated, without further involvement of the foster care agency. The damage done to her while in foster care and the risk of future disruption or confusion caused by the agency itself outweighs the risk of harm to her to be returned to her mother without further supervision. In this case, five years of state intervention has been enough.
Conclusion
Given the aforementioned, the Court finds, pursuant to Family Court Act § 1089(d), that it is in the child's best interests for placement to be terminated, and that no additional orders are appropriate under the circumstances of this case.
Therefore, IT IS HEREBY ORDERED THAT pursuant to Family Court Act § 1089(d), the child's placement with the commissioner of ACS is hereby terminated, effective immediately; and it is further
ORDERED that in light of the termination of placement and based on his consent on the record on January 10, 2020, the father's custody petition V-xxxx/15 is hereby dismissed without prejudice; and it is further
ORDERED that in light of the termination of placement, there is no tenable legal basis for the agency to maintain a termination of parental rights action and thus the TPR petition B-xxxx/17 is hereby dismissed without prejudice; and it is further
ORDERED that in light of the termination of placement and based on her consent on the record on January 10, 2020, the mother's motion on the neglect docket (# 5) for a finding of contempt against the agency is hereby marked withdrawn; and it is further
ORDERED that all future dates are vacated as there are no further pending petitions or motions in this matter, and this file is hereby marked off calendar; and it is further
ORDERED that pending the expiration of the statutory stay of enforcement of this order provided by Family Court Act § 1112(b) (i.e., 5pm on Tuesday, January 14, 2020), Ms. W. and the child shall have an unsupervised overnight visit.