Opinion
NN–00017–17
09-26-2017
In the MATTER OF ANNAMAE, a Child under Eighteen Years of Age Alleged to be Neglected by Morgan, Respondent. In the Matter of a Proceeding for Custody/Visitation under Article Six of the Family Court Act Morgan, Petitioner, v. Charles, Respondent. In the Matter of a Proceeding for Custody/Visitation under Article Six of the Family Court Act Charles, Petitioner, v. Morgan, Respondent.
Brenna Ryan, Esq., for OCDSS Michael Cianfarano, Esq., for Morgan Lonnie Dorsey, Esq., for Charles Donald Dodd, Esq., AFC, for Annamae
Brenna Ryan, Esq., for OCDSS
Michael Cianfarano, Esq., for Morgan
Lonnie Dorsey, Esq., for Charles
Donald Dodd, Esq., AFC, for Annamae
Kimberly M. Seager, J.
PROCEDURAL HISTORY On November 2, 2016, Charles M., (here "the Father"), filed a petition for custody, against Morgan W., (here "the Mother"), regarding the minor child, Annamae, born xx/xx/2014 (here "Annamae"). On November 4, 2016, the Mother filed a custody petition against the Father regarding Annamae. On January 4, 2017, a neglect petition was filed by the Oswego County Department of Social Services (here "OCDSS") against the Mother alleging that she neglected Annamae by engaging in domestic violence in Annamae's presence, that she has mental health issues and that she failed to provide adequate supervision for Annamae. The Father filed a second custody petition on March 2, 2017.
On March 31, 2017, the Mother admitted that she neglected Annamae by failing to engage in mental health treatment, including not taking her mental health medication. A combined trial on the neglect disposition, as well as all custody petitions was commenced on April 10, 2016 and continued on May 12, 2017 and May 19, 2017. At trial, OCDSS was represented by Attorney Brenna Ryan, Esq., the Mother appeared with her attorney, Michael Cianfarano, Esq., the Father appeared with his attorney, Lonnie Dorsey, Esq., and Annamae's interests were represented by Attorney for the Child, Donald Dodd, Esq. The following witnesses testified: Paige Waloven, OCDSS caseworker, Angie Falanga, parent educator with Catholic Charities, Melanie Taylor, OCDSS caseworker, Vickki McCallops, the Mother's friend, Shylo W., the Mother's half-sister, and Denise Carroll, mother of the Father's girlfriend. The Mother also testified on her own behalf and the Father testified on his own behalf. Various exhibits were received into evidence, specifically records from Oswego Behavioral Health, OCDSS and Healing Arts, as well as 7 photos of the home where the Father was living. At the close of testimony, on May 12, 2017, closing arguments were made. Thereafter this Court issued its decision from the bench and adjourned the matter to May 19, 2017 to give OCDSS an opportunity to assess the needs of the Father. The parties were also directed to come up with a proposed visitation plan. This writing sets forth the findings of fact and conclusions of law upon which that decision was reached.
LEGAL STANDARD
Neglect—Disposition
After a dispositional hearing, the court shall enter an order and the court "shall state the grounds" for its determination ( Family Court Act § 1052 (b) (I) ). At disposition the Department of Social Services bears the burden to establish, by a preponderance of the evidence, that the respondent is "presently unable to care for the [ ] child and that ... foster care [is] in the child's best interest" ( Matter of Zakkariyya D. , 32 A.D.3d 936, 937, 822 N.Y.S.2d 85 [2nd Dept. 2006] [citations omitted] lv denied 8 N.Y.3d 805, 831 N.Y.S.2d 107, 863 N.E.2d 112 [2007] ).
"The key issue in a dispositional hearing is the best interests of the child, and the court must protect the child from any potential threat of future abuse or neglect" ( Matter of Cameron C. , 283 A.D.2d 946, 946, 723 N.Y.S.2d 796 [4th Dept. 2001] ). Relevant factors include current evaluations of the parent and the children and plans for rehabilitative services (see Matter of Brian W. , 199 A.D.2d 1021, 606 N.Y.S.2d 105 [4th Dept. 1993] ). The focus should be on the respondent's abilities at the time of the dispositional hearing (see Zakkariyya D. at 937, 822 N.Y.S.2d 85 ). "Pertinent concerns ... include, among others, the extent of services needed and the availability of such services, as well as the parent's willingness and ability to recognize a need for help and otherwise cooperate with indicated services" ( Matter of Natasha RR. , 42 A.D.3d 762, 763, 839 N.Y.S.2d 623 [3rd Dept. 2007]lv denied [citations omitted] ). "The fact that ongoing assistance may be necessary from social services or other providers for a parent to regain custody does not foreclose the return of a child to a biological parent" ( Natasha RR. at 763, 839 N.Y.S.2d 623 ). In fact, "a parent does not have to function in a totally independent fashion to be reunited with a child" ( id. at 764, 839 N.Y.S.2d 623 [trial court's factual finding regarding the parent's inability to independently care for the child was supported by the record, however the court was reversed after applying the incorrect legal standard] ).
It is well settled that "[c]hildren should be returned to their biological parents, if at all possible and if it is responsible to do so" ( id. ; citing Matter of Dale P., 84 N.Y.2d 72, 77, 614 N.Y.S.2d 967, 638 N.E.2d 506 [1994] ; see also Matter of Jamie J. , 145 A.D.3d 127, 132, 41 N.Y.S.3d 810 [4th Dept. 2016] ). Additionally, the disposition must seek to establish a stable, permanent home for the children as early as possible (see Matter of Michael B. , 80 N.Y.2d 299, 590 N.Y.S.2d 60, 604 N.E.2d 122 [1992] [citations omitted] ).
Chapter 567 of the Laws of 2015 made drastic changes to various Family Court Act sections, including clarifying definitions under section 1012 and dispositional alternatives under section 1052. These changes became effective June 18, 2016. Chapter 567 also amended Family Court Act section 651, making it clear that the court "may jointly hear" any custody or visitation petition with a pending dispositional matter under Article 10 ( Family Court Act section 651 (c–1) ; see also Family Court Act section 1055–b (a–1) ). However, where the court elects to hear Article 6 and Article 10 matters jointly "the court must determine the custody and visitation petition in accordance with the terms" of Article 6 (id. ). Under new subsections to Family Court Act section 1012, it is clear that a parent is not considered a relative and a "relative" is defined separately from a "suitable person" ( Family Court Act section 1012 (n) ; see also Family Court Act section 1012 (m) ).
These legislative changes are so new that, even as of this writing, there are no practice commentaries following the various sections.
This sentence makes clear that only non-hearsay testimony is admissible on the question of custody and visitation, while hearsay is generally admissible in Article 10 dispositional matters. While this certainly presents challenges to the Bench, it should not preclude joint hearings.
See Family Court Act sections 1012 (l) and 1012 (m).
Dispositional changes to Family Court Act section 1052 make clear, at least to this Court, that the court is not authorized to grant Article 6 custody to either a respondent parent or non-respondent parent, and also order the custodial parent to be supervised by the Department of Social Services (here "DSS"). Further it is now clear that a release is not a placement, and therefore not subject to the requirements of Adoption and Safe Families Act (hereinafter "ASFA").
As distinguished from a parent to whom the child is released.
See Family Court Act sections 1052 (a) (vi) and 1052 (a) (vii), along with the final sentence of section 1052 (a) ; see also Family Court Act section 1055–b (b).
Since Family Court Act section 1055 is the only dispositional section that requires the court to make reasonable efforts findings, and since a release to a non-respondent parent pursuant to Family Court Act section 1052 (a) (ii) cannot be combined with a Family Court Act section 1055 placement pursuant Family Court Act section 1052 (a) (iii), it is clear that a release is not a placement and therefore does not require a permanency planning hearing or other ASFA related requirements.
As an alternative to granting Article 6 custody, under the new statutory scheme of Family Court Act section 1052, a child may be released to a non-respondent parent pursuant to Family Court Act section 1052 (a) (ii) (hereinafter "a 1054 release") or a child can be released to a respondent parent under section 1052 (a) (v) (hereinafter "a 1057 release"). If the child is released to the respondent parent, Family Court Act section 1052 (a) (v) provides that the respondent parent may also be supervised by the DSS pursuant to Family Court Act section 1057. On the other hand, a non-respondent is not supervised by DSS where there is a 1054 release. This does not, however, mean that DSS is no longer involved where there is a 1054 release of the child to the non-respondent parent.
This conclusion is reached since neither relevant section of Family Court Act section 1052 (a) (ii) or 1054 use the word supervise, unlike sections 1052 (a) (v) and 1057. However, there are no Sponsors or Executive Memorandum accompanying Chapter 567 to assist with interpreting the new statutes.
While Chapter 567 of the Laws of 2015 affected a significant number of Article 10 sections, one of the most altered is Family Court Act section 1054. In fact, even the title of this section was significantly changed. It is now clear that a 1054 release can be granted only to a non-respondent parent "or a person or persons who had been the child's legal custodian or guardian at the time of the filing of the petition and who is not or are not respondents" in the underlying matter (hereinafter referred collectively as "the 1054 Releasee").
Prior to the adoption of Chapter 567, Family Court Act section 1054 applied to the child's "parent or other person legally responsible for [the child's} care" which had been interpreted to include a respondent parent.
It is now clear that the non-respondent parent may be required to "submit to the jurisdiction of the court with respect to the child" and that the court may issue an order that the non-respondent parent must comply with ( Family Court Act section 1054 (b) ). The 1054 "order may include, but is not limited to, a direction for such [1054 Releasee] to cooperate in making the child available for court-ordered visitation with respondents, siblings and others" (id. ). The court can also order the 1054 Releasee to make the child available "for appointments with and visits by [DSS], including visits in the home and in-person contact with [DSS], and for appointments with the child's attorney, clinician or other individual or program providing services to the child" (id. ). "The order shall set forth the terms and conditions applicable to such non-respondent and [DSS] with respect to the child" (id. ).
While the court may order the 1054 Releasee to do certain things with respect to the child , it is clear that the non-respondent parent is not supervised by DSS. Before the 2015 legislation, Family Court Act section 1054 (a) provided that the person to whom the child was released may be placed "under supervision of a ... social services official ..." Although the later part of that subdivision referred to the respondent's terms and conditions of supervision, many courts held that a court could "impose conditions on [a non-respondent's] behavior through an order of supervision and [ ] make compliance with those conditions a prerequisite to returning the child to his [or her] care and custody" ( Matter of Cleophus B. , 93 A.D.3d 1241, 941 N.Y.S.2d 377 [4th Dept. 2012]lv denied 19 N.Y.3d 807, 2012 WL 2401177 ; see also Matter of Dashaun G. , 117 A.D.3d 1526, 985 N.Y.S.2d 802 [4th Dept. 2014]lv denied 24 N.Y.3d 951, 994 N.Y.S.2d 51, 18 N.E.3d 753 [a non-respondent parent may be found in willful violation to conditions of supervision that were stipulated to, and as a result, the dispositional order could be revoked and the child placed in the care and custody of DSS] ). However, it is noteworthy that the Chapter 567 amendments deleted the word supervision from the title of Family Court Act section 1054 and from all relevant subsections relating to the non-respondent parent. Further, the amendment added language allowing the court to issue a Family Court Act section 1057 supervision order "directing that services be provided to the respondent parent." Additionally, the amendments delete all reference to "permissible terms" being defined by Rules of the court. It is therefore clear that the 1054 Releasee cannot be made subject to a Family Court Act section 1057 supervision Order to engage in DSS provided services.
At least to this Court, again noting the absence of legislative, executive or appellate level guidance.
"Person" is not defined in Article 10 and Family Court Act section 1054 had, prior to the Chapter 567 amendments, been held to apply to a parent regardless of the parent's status as a respondent or non-respondent.
It should be noted that as of this writing, 22 NYCRR section 205.83 (b) has not been altered since reference to them was deleted by the Chapter 567 amendments.
Family Court Act section 1057 does not use the word "parent" or "non-respondent parent."
In the event the court determines that a release to a respondent parent or non-respondent parent is appropriate, the release itself and the involvement of DSS may last no more than 1 year, except for a "good cause" extension of no more than 1 additional year ( Family Court Act sections 1054 & 1057 ). This distinction is significant and should be one of the factors a court considers in making a determination since the alternative disposition of Article 6 custody is presumptively final and long term, except where the non-custodial parent may later petition and establish grounds for a modification of Article 6 custody.
The legal status of each parent vis-á-vis the child at the end of the release period remains unclear. It is presumed that one or both parents would want or need to file an Article 6 petition at that time. In the alternative, the legal relationship would be otherwise informal, unless there was an Article 6 order in existence at the time of the Article 10 filing, in which case the Article 6 Order would be controlling.
If the court determines that it is in the best interest of the child, custody to the respondent parent pursuant to Family Court Act sections 1052 (a) (vi) and 1055–b or to a non-respondent parent pursuant to Family Court Act section 1052 (a) (vii) are dispositional alternatives. However, the Chapter 567 amendments make clear that there will be no supervision of either parent under either alternative (see Family Court Act 1055–b ; see also Family Court Act 1052 (a), last sentence).
There are several other factors that must be determined prior to granting Article 6 custody to a parent, including "that the safety of the child will not be jeopardized" due to the absence of supervision by DSS (Family Court Act section 1055–b (a) (ii) ).
Custody
When considering questions of custody, the long held legal standard applies and this Court "must ... determine what is for the best interest of the child" ( Eschbach v. Eschbach , 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] [internal quotations omitted] [citations omitted] ); see also Friederwitzer v. Friederwitzer , 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765 [1982] [quoting Matter of Nehra v. Uhlar , 43 N.Y.2d 242, 248, 401 N.Y.S.2d 168, 372 N.E.2d 4 [1977] ). "The only absolute in the law governing custody of children is that there are no absolutes" ( Friederwitzer at 93, 447 N.Y.S.2d 893, 432 N.E.2d 765 ).
Several of the factors the Court must consider when determining what is in the best interest of the child include:
"the quality of the home environment and the parental guidance the custodial parent provides for the child ..., the ability of each parent to provide for the child's emotional and intellectual development ..., the financial status and ability of each parent to provide for the child ..., the relative fitness of the respective parents, and the length of time the present custody arrangement has been in effect"
( Matter of O'Connell v. O'Connell , 105 A.D.3d 1367, 1368, 963 N.Y.S.2d 789 [4th Dept. 2013], quoting Matter of Maher v. Maher , 1 A.D.3d 987, 988, 767 N.Y.S.2d 179 [4th Dept. 2003].
It is also important for the Court to assess " 'the willingness of each parent to foster a relationship with the other parent' " ( Matter of Chilbert v. Soler , 77 A.D.3d 1405, 1406, 907 N.Y.S.2d 757 [4th Dept. 2010], citing Kaczor v. Kaczor , 12 A.D.3d 956, 958, 785 N.Y.S.2d 573 [3d Dept. 2004] ). The Court must weigh these factors, together with the express wishes of the child, and the "stability and companionship" of residing with siblings in determining what is in the best interests of the child ( Eschbach at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). The weight the Court gives each of these factors depends on the testimony presented, and the "character and sincerity" of the parties ( Eschbach at 172–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; see Matter of Pieri v. Rider , 195 A.D.2d 1013, 600 N.Y.S.2d 578 [4th Dept. 1993] ).
"It is well settled that visitation with a noncustodial parent is generally presumed to be in the child's best interests, and denial of such visitation is a drastic remedy to be employed only where there are compelling reasons for doing so and substantial evidence that visitation will be harmful to the child's welfare" ( Diedrich v. Vandermallie , 90 A.D.3d 1511, 1511, 934 N.Y.S.2d 735 [4th Dept. 2011] [internal quotations omitted] [citations omitted] ). Furthermore, "a noncustodial parent is entitled to meaningful visitation" with the child ( Giannoulakis v. Kounalis , 97 A.D.3d 748, 749, 948 N.Y.S.2d 415 [4th Dept. 2012] [citations omitted] ).
Combined Neglect Disposition and Custody Determination
After a combined Article 10 and Article 6 hearing the Court must decide all petitions on their merits since each petitioner had their respective opportunities to present evidence. Therefore, in the event the court grants custody to a parent under Article 6, this becomes the Article 10 disposition (see Family Court Act sections 1052 (a) (vi) and (a) (vii) ). Alternatively, if the court grants any other Article 10 disposition, such as a placement or release, then it must deny the Article 6 petition(s).
As stated earlier this ends the Department of Social Service's involvement as a matter of law since these two alternatives cannot be combined with a supervision order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court has assessed the credibility of the witnesses, considered all testimony, carefully reviewed the exhibits, and considered counsels' closing arguments. The Court's findings are either based upon testimony that is undisputed or upon testimony that the Court finds credible, as well as exhibits that the Court found to be relevant.
Caseworker Waloven worked with the Mother from January 2015 until September 2016 (here "the 2015/2016 case"). She began working with her again in January 2017. The earlier case involved another child, James. During the 2015/2016 case the Mother had difficulties with homelessness and untreated mental health which ultimately lead to James being placed into the home of his paternal grandparents. During the 2015/2016 case the Mother received OCDSS services, including medication management, counseling at Oswego Behavioral Health (here "OBH"), parent educator services, and Focus on Family counseling. The Mother was also getting public assistance.
In 2015, OCDSS helped the Mother with making appointments, assisted with transportation to appointments and to the pharmacy to get her medication. Once she was compliant with her medication, the Mother was compliant with all services so after a period of one year, supervision ended and OCDSS closed their case. Services closed in September 2016. However, by October 2016, OCDSS had begun a new child protective investigation involving the Mother and Annamae. This investigation resulted in the filing of the instant petition.
The Mother's diagnosis, in part, is anxiety, although caseworker Waloven did not know the remainder of her diagnosis.
The Mother was discharged from OBH for non-compliance in October 2016. The Mother stopped going to mental health treatment when OCDSS closed their case as she thought she no longer needed to go. Since January 2017, OCDSS has attempted to get the Mother into counseling and medication management. However, at the time of the instant trial, the Mother was still not in counseling and medication management at OBH. This Court finds this failure to provide the Mother appropriate treatment at the time of trial was the fault of OCDSS. Specifically, the testimony indicated that OBH was not accepting new patients absent a Court Order yet OCDSS never requested such an Order.
This Court takes Judicial Notice of all previous appearances under the instant docket, including the preliminary conference on January 25, 2017 wherein it was recommended that the Mother be provided counseling, yet OCDSS never requested that this Court sign an Order despite their knowledge that one was needed.
The Mother has been unable to attend mental health treatment at two other providers because she owes past due fees to one provider and lacks insurance to cover another provider. This Court finds this inexcusable, as it a responsibility of OCDSS to assist the Mother in overcoming obstacles that could lead to Annamae's placement.
In October 2016, the Mother was taking Effexor and Risperidone for mental health issues. Caseworker Waloven could not testify about why the Mother would stop taking her medication. Although it is her position that the Mother could have gotten her medications during the period between January and March, 2017, it is clear to this Court that the Mother was not on medication during this time because she did not have means to pay for the medication as she was no longer receiving public assistance. The Mother lost her Public Assistance when she did not recertify. It is unclear to this Court why there is a 45 day hold which prevents the Mother from getting her medication at this time. The Father is not a respondent in any OCDSS case involving Annamae. Caseworker Waloven never contacted the Father to determine if he was a resource for Annamae. Caseworker Waloven also did not know if the Father is capable of taking care of Annamae's basic needs or if he was gainfully employed or if he had mental health or substance abuse issues. Although OCDSS sought placement of Annamae into foster care, Caseworker Waloven never investigated if the Father could be a suitable parent. In fact, OCDSS did not go to the Father's home even after the April 10, 2017 trial date.
It is frustrating to this Court that while OCDSS might have been providing funding for the Mother's medication, they were instead providing transportation assistance, diapers, food and hygiene products. It is clear that the Mother is capable of handling her parental duties if she is receiving proper mental health care. Therefore, it seems that if OCDSS assisted with mental health treatment, they would not need to assist in these other areas. Alternatively, assisting in these other areas does not result in improving the Mother's mental health care.
Caseworker Taylor was involved in an Article 10 case involving the Father. That case was filed in 2015 and involved his other child, Avery, who had been removed from his care due to a lack of housing and lack of medical care. Avery has inoperable brain cancer. OCDSS had concerns that the Father was using marijuana and alcohol. The Father was considered to need mental health services to assist in dealing with Avery's cancer. OCDSS also felt that the Father had anger issues based upon the Father's statements and review of reports. While there was a significant amount of testimony about OCDSS efforts during the case involving Avery, it is clear, that OCDSS failed to make any effort to determine the Father's present abilities to care for Annamae. The only justification is, as Caseworker Taylor testified, that the Father is not fit to care for a non- special needs child because he lacked cooperation with OCDSS in dealing with his other child with special needs. This however is not the proper standard for a determining if a parent is presently able to care for a child.
OCDSS asked this Court to take judicial notice of Docket number NN–2834–15, involving the Father and his child Avery. Although Attorney Dorsey objected based upon relevance, the Court takes judicial notice of those proceedings. However, since this Court did not preside over that matter, it can only take judicial notice of the Orders resulting therefrom as well as the Orders under Docket V–2203–16. The conclusion is that it was the Father's inability to meet the life-threatening needs of Avery, that lead to an extraordinary circumstances finding.
This Court finds the Father's testimony regarding his actions and decisions involving his daughter Avery to be very honest and sincere.
This Court cannot find or determine that the Father, in fact, has anger issues, as no facts to support OCDSS's conclusions were offered.
It is clear, that when the Mother is compliant with her medication she is capable of appropriately and safely parenting Annamae. However, when she stops taking her medication it is very apparent as Annamae is found in the same clothes for multiple days in a row and the Mother fails to properly address Annamae's medical needs.
The Father has been told by an Arise worker that he has depression and anxiety. The Father admits that he has very little contact with a mental health counselor. He is not prescribed medication.
The Mother has stable housing as long as she has OCDSS assistance. However, at the time of trial she had moved three times in a three month period. In April 2017, the Mother and Annamae were living in Fulton in a camper with a new boyfriend. This situation lasted 2 weeks, until the family moved into the boyfriend's father's home. In that home Annamae did not have her own bed. By May 9, 2017, the Mother and Annamae had been moved to the Port Lodge Hotel in Pulaski, NY because they were homeless.After the Father separated from Avery's mother he lived in several different residences until October 2016 when he moved in with his girlfriend, Samantha Boots. The residence he shares with Ms. Boots is clean and has all working utilities. Ms. Boots' parents and brother also live there. Ms. Boots' two nieces also live there on alternate weeks. The residence is owned by Ms. Boots' parents. Annamae has her own bed at the Father's residence in a room that she shares with Ms. Boots' nieces.
The current condition of the Father's residence could not be confirmed by OCDSS because the last time Caseworker Taylor went to the residence of the Father was in December 2016. Since that time no one from OCDSS has had any contact with the Father. This Court finds this both unacceptable and contrary to OCDSS's obligation under the law, as it is clear that before OCDSS can consider a foster care placement, they are required to make reasonable efforts to avoid such placement, including assessing the current ability of the Father and offering any services needed to be a resource for Annamae. Despite OCDSS's lack of knowledge, this Court finds, after reviewing of the photographs of the home, that the Father's home is an appropriate place for Annamae to live.Annamae is 3 years old, and is not potty trained. The Mother shows no interest in attempting to potty train Annamae. Instead the Mother's plan is to let the preschool provider do so.
The Mother has 3 other children, two are in Article 6 custody, and the third is in foster care, after being removed from a custodian. At the time of the April trial, Mother was pregnant. The Father also has a child, Zoe Bean, that he pays support for although he has not kept current on his support obligation for that child.
The Mother smoked marijuana and snorted Percocet a few times in January 2017. The Father drinks alcohol occasionally, does not use any illegal drugs currently but has used marijuana in the past. The Father smokes cigarettes inside his residence but not when Annamae is in the same room.
The Father has a criminal history. He was incarcerated when Annamae was born. He was incarcerated on weekends again in 2017 for menacing. As recently as Feb. 2017, the Mother was engaged in a domestic issue with her then boyfriend, John Hill, which resulted in the Mother receiving stitches after she punched a window.
The Mother does not work but gets support through OCDSS. Both the Mother and Father get food stamps. The Father has been employed, generally in the construction field. In April 2017, the Father was beginning a new job at Arby's in Cicero, New York. In the event the Father has custody of Annamae, either his girlfriend, Ms. Boots, or her mother would provide child care while he works.
The Father was not actively involved in Annamae's life, although he frequently tried to have visitation with her. The Mother let the Father visit with Annamae in November 2016, after the Father brought food and other items to the Mother's home. When Annamae arrived at the Father's house, she was filthy and had a large bruise on her pelvic area. It was at this time that a male from OCDSS contacted the Father and advise him that the Mother was being investigated for neglect. As a result of a conversation with this person, the Father kept Annamae with him for a 2 week period.
The Mother changed her telephone number but did not inform the Father. As a result, the Father had to contact the Mother's aunt in an attempt to have parenting time with Annamae. The Mother indicated that the Father could have contacted her by way of her Facebook account. However, the Mother has blocked the Father from her Facebook account. It is clear to this Court that the Mother does not recognize that it is she who has made it impossible for the Father to have parenting time with Annamae.
The Parent Educator observed scissors within Annamae's reach and a lighter next to a bed in the Mother's home. The Mother has left her WIC check at a friend's house on another occasion and had not retrieved it, so there was little to no food or milk available to Annamae.
OCDSS believes Annamae should not be with the mother because she is not compliant with mental health treatment.
It is OCDSS's position that Annamae should be place in foster care. They believe that the Father may be able to care for her, but they requested that they be able to get him ready for that. It is OCDSS's position that the Father must demonstrate his ability to parent before Annamae can reside with him. However, this is an incorrect statement of the law.
The Attorney for the Child is correct in pointing out that the Mother is unable to maintain her mental health without OCDSS's involvement. While it is clear that the Mother can articulate the benefits of continuing treatment, she offers no other explanation for stopping treatment, other than to say that she is no longer ordered to comply, therefore she doesn't comply. This is clearly detrimental to Annamae. It is also clear that the Mother has a deficit in her ability to recognize how her lack of mental health care harms Annamae.
This Court finds that OCDSS failed to meet its burden to establish that the Father is presently unable to care for Annamae and that foster care is in the child's best interest. While it is clear that the Mother is presently unable to care for Annamae due to her failure to receive regular and necessary mental health treatment including taking prescribed medication, there was no evidence that the Father is incapable of providing proper care for the child. In fact, OCDSS acknowledges that the Father may be able to care for Annamae. It is simply a fact that, in considering foster care as the only option for Annamae, OCDSS overlooked the Father as a resource.
It is always in a child's best interest to be raised by a biological parent, if at all possible. The Father has established that he has the present ability to care for Annamae and that he can provide the child with a stable, permanent home. Therefore, this Court must conclude that it is in Annamae's best interest to reside with the Father rather than be placed into foster care.
If procedurally this matter involved only the factors to be considered under Article 6, the Mother's lack of insight into the effect that her mental illness has on Annamae would weigh heavily against her. While the Father's limited involvement in Annamae's life to date would be a weighty factor for the Court's consideration.
Even recognizing that it is in a large part the Mother's own doing that leads to this conclusion.
It goes without saying that it is best for Annamae that she have the benefit of two parents who are in the best position to care for her needs in the future. For this reason, it is in Annamae's best interest that the Mother continue to receive services to help her recognize the need for continued mental health treatment. The oversight of OCDSS will also provide Annamaewith services she may need to build healthy bonds with the Father, as well as ensure visitation with the Mother. Since Article 10 provides the mechanism for OCDSS continued involvement, whereas an outright Article 6 custody determination cannot, the Court finds that it is in Annamae's best interest to be released to the Father with a 1 year order of supervision of the Mother by OCDSS.
Based upon the foregoing the Court concludes that the Article 10 dispositional order shall be pursuant to Family Court Act section 1054, and both the Mother's and Father's Article 6 petitions are hereby dismissed.
This dismissal with be neither with or without prejudice, as it is unclear to this Court whether the parties should be allowed to present the same evidence in future proceedings. As it is inevitable that either one or both of the parents will be filing another Article 6 custody petition as under this current decision neither parent is given custody.
--------