Opinion
B–08639/16
04-10-2018
In the MATTER OF the Application of FORESTDALE INC., FOR the Guardianship and Custody of ARYELLE L.F., a Dependent Child Under the Age of 18 Years, Pursuant to the Provisions of Section 384–b of the Social Services Law of the State of New York.
For the Agency, Forestdale, Inc., Melissa Wagshul, Esq. For the Respondent Mother, Center for Family Representation by Elizabeth Fassler, Esq. Attorney for the Child, Legal Aid Society by Maria Chiu, Esq.
For the Agency, Forestdale, Inc., Melissa Wagshul, Esq.
For the Respondent Mother, Center for Family Representation by Elizabeth Fassler, Esq.
Attorney for the Child, Legal Aid Society by Maria Chiu, Esq.
OPINION OF THE COURT
John M. Hunt, J.
This is the sadder epilogue to an already sad story that was detailed in a prior decision of this Court. This matter has been pending since November 14, 2014 when the Administration for Children's Services (hereinafter "ACS") filed a neglect petition against Esperanza F.F.(hereinafter "Ms. F.") with respect to her daughter, Aryelle L.F. (hereinafter "Aryelle"), who was just a twelve day old infant, then living with her. Aryelle was removed from her mother's care and shortly thereafter, Ms. F.' visits were suspended without reinstatement. Five judges, and two and a half years later, this Court gave Ms. F. a second chance and ordered that a suspended judgment be entered for one year with conditions so that she could attempt to bond with Aryelle. The Court must now decide whether Ms. F. willfully violated the conditions of her suspended judgment and, if so, what dispositional order should issue. For the reasons set forth within this decision, the Court finds that Ms. F. has, and revokes her suspended judgment, enters an order terminating her rights, and frees Aryelle for adoption.
The petition alleged a "derivative" form of neglect based upon a prior Nassau County neglect finding entered against Ms. F. with respect to Aryelle's older half-sibling, Z.R.. There were no allegations of actual neglect.
Without Ms. F.'s being present, and hearing only ACS's side of the story, a family court judge, no longer sitting, summarily suspended Ms. F.'s visits with her five month old daughter based upon a single incident. Other family court judges then entered orders continuing Ms. F.'s suspended visitation.
PROCEDURAL HISTORY
On April 20, 2016, Forestdale Inc. (hereinafter "Foster Care Agency") filed a termination of parental rights ("TPR") petition against Ms. F. with respect to her toddler, Aryelle. On February 21, 2017, pursuant to the Queens County Family Court protocol, the TPR trial in the matter was assigned to this Court. On March 2, 2017, after trial, the Court entered a permanent neglect finding against Ms. F. and adjourned the matter for a dispositional hearing. On May 31, 2017, after a hearing, the Court issued a dispositional order suspending Ms. F.'s judgment for a term of one year under the following conditions: (1) ACS supervision for a period of one year; (2) Ms. F.'s immediate enrollment in a program with Aryelle designed to re-establish their parent/child bond; and, (3) Ms. F.'s continuation in individual counseling, and her compliance with all reasonable recommendations that flowed therefrom. On June 15, 2017, the attorney for the child, Maria Chiu (hereinafter "Ms. Chiu") filed a notice of appeal challenging the Court's decision.
Under the Queens Family Court protocol, trial part judges are assigned to try cases wherein the parties announce readiness for trial in their assignment parts.
On October 10, 2017, the Foster Care Agency filed a motion, alleging that Ms. F. had willfully violated the terms and conditions of her suspended judgment. On January 5, 2018, the Court issued a decision determining there was authority to proceed to a violation hearing notwithstanding that an appeal of the underlying case is pending before the Appellate Division, Second Department. On January 17, 2018, the Court held a violation hearing at which only two witnesses testified, M.D. (hereinafter "Mr. D."), a Foster Care Agency case planner and T.M. (hereinafter "Ms. M."), Aryelle's foster mother. Those witnesses testified on behalf of the Foster Care Agency. Ms. F. declined to testify and the Court drew an adverse inference against her. Ms. F. did not call any witnesses on her behalf. At the conclusion of testimony, the Court reserved decision. On April 6, 2018, the Court reopened the hearing for a more complete record. Mr. D. testified again, and this time, Ms. F. took the stand in her own defense. The Court reserved decision once more.
DISCUSSION
The Family Court Act provides for a hearing where a respondent is alleged to have willfully violated the terms and conditions of a suspended judgment. See NY Fam. Ct. Act § 633 (McKinney's 2018). It is well-settled that in termination of parental rights matters, after a parent has been found to have willfully violated the terms and conditions of their suspended judgement, a separate dispositional hearing is not required where the Court is sufficiently familiar with the parties and employs a best interests analysis. See Matter of Jeremiah J.W. , 134 AD3d 848, 849 (2d Dep't 2015) ; see also Matter of Kai G. , 126 AD3d 902, 903 (2d Dep't 2015) ; Matter of Darren V. , 61 AD3d 986, 988 (2d Dep't 2009), Matter of Melissa M. , 36 AD3d 919, 920 (2d Dep't 2007). It is within the Court's sound discretion to determine whether a separate dispositional hearing is necessary. See NY Fam. Ct. Act § 141 (McKinney's 2018); see also Matter of Kai G. , 126 AD3d at 903 ; Matter of Mekhi Kahalil G. , 99 AD3d 1003, 1004 (2d Dep't 2012) ; Matter of Antoinne T. , 83 AD3d 721,722 (2d Dep't 2011).
The Court heard testimony during the course of a hearing on the issue of whether Ms. F. willfully violated the terms and conditions of her suspended judgment, and the Court finds that she has. To that end, the Court finds that it has become sufficiently acquainted with the parties such that a new dispositional hearing is unnecessary. In termination of parental rights matters, at disposition after a parent has been found to have willfully violated the terms and conditions of their suspended judgment, the Court's options are limited. See NY Fam. Ct. Act §§ 631, 632, 633 (McKinney's 2018). The Court may dismiss the petition, enter a new suspended judgment, or terminate a respondent's parental rights. See NY Fam. Ct. Act §§ 631, 632, 633 (McKinney's 2018). The Court finds that Ms. F. is a sympathetic individual. Her childhood was unstable, comprised of moving around from home to home, estranged from her family. Ms. F. gave birth to her first child at seventeen years old without a support system. She had no job, no steady source of income, and no help from the baby's father. Ultimately, her parental rights to that child were terminated. When Ms. F. gave birth to Aryelle, she was in a relationship with Aryelle's father, D.F. a.k.a. D.B. (hereinafter "Mr. B."). That relationship was characterized by a pattern of domestic violence. A few days later, a derivative neglect petition was brought against her. Five months later, she was no longer permitted to see Aryelle.
On July 15, 2015, upon inquest, a permanent neglect finding was entered against Ms. F. in Nassau with regards to her older child, Z.R., and Ms. F.'s parental rights with respect to that child were terminated.
The Court notes parenthetically that on the day that Ms. F.'s visitation was initially suspended, the attorney for the child did not support suspension of the visits and Ms. F.'s attorney argued for therapeutic visitation in lieu of suspension.
Ms. F. continued to have no discernible source of income and lived as a vagabond with Mr. B. because she had no place to go and no one else to depend on. She was forced to play musical chairs with her court case as the matter was transferred from judge to judge, none of whom appeared to have spent enough time with the case to fully understand the detrimental effect of suspending a mother's visits with her infant daughter. This unfortunate confluence of interests, or disinterest, resulted in less than ideal circumstances for Ms. F. Ms. F. is the unfortunate victim of a dysfunctional upbringing and an unfeeling court system. However, the Court can not base its decision in this case upon sympathy for her past. Rather, this Court's decision must be based on the evidence presented and the applicable law which requires this Court to decide what is in Aryelle's best interests, and permanency for Aryelle is what is in her best interests.
At the original dispositional hearing, Ms. F. asked for a second chance. She set forth a plan in her testimony whereby she would properly care for Aryelle, obtain employment as a home health aide, go to school to study art, find a stable place to live, stay in therapy, and do whatever else it took to get her daughter back permanently. The evidence at the violation hearing showed to the contrary. She did not fulfill the expectations of her own testimony nor does this Court believe that Ms. F. has the ability to do so at any time in the near future. The proof showed that Ms. F. is actually going backwards. Ms. F. failed to consistently attend counseling, failed to obtain housing of her own, failed to disclose her whereabouts to the Foster Care Agency, refused to let the Foster Care Agency conduct home visits, and never made any meaningful effort to obtain steady employment. She appears to be supported by the kindness of others and public assistance, supplemented by income from an online escort service.
Although Ms. F. did visit with Aryelle on a fairly consistent basis and visitation went well, the record established that three year old Aryelle is strongly bonded to her foster mother and views her own mother as more of a playmate than a parent. Most importantly, Ms. F. has demonstrated that she is unreliable reporter whose word can not be trusted. During the course of her testimony, Ms. F. appeared to be weaving tales in answer to many questions, was caught in several untruths which she could not explain, , and she repeatedly had difficulty recalling the names of people or addresses of places which she would reasonably be expected to know. The Court finds her to be incredible, and discounts her testimony.
Although Ms. F. contended that her ex-boyfriend, Mr. B., placed her name, telephone number and photographs on an online escort service website without her permission, Ms. F. never reported the incident to the police or changed her telephone number.
Ms. F. provided a copy of a nonsensical funeral flyer as an excuse for cancelling two visits with her daughter. The flyer shows that the deceased died on the same day as his funeral. No formal documentation of the funeral was ever submitted.
As an example, it took her approximately 30 seconds to "remember" her brother's last name with whom she asserted she intended to stay if Aryelle were returned to her.
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In sum, Ms. F. did not comply with the conditions of the suspended judgment the Court issued which gave her the second chance she requested. Although if given enough time Ms. F. might conceivably bond with her daughter, waiting for that hypothetical day to come is not in Aryelle's best interests. There is no question that Ms. F. believes her behavior to be reasonable in the context of her own childhood. However, this Court can not erase her past any more than it can disregard Aryelle's future, particularly when the evidence shows that Aryelle is thriving in her pre-adoptive home for an extended period of time. She is happy and comfortable with her surroundings and bonded to her foster mother who wishes to adopt her. Aryelle's needs are being met in her foster home where there are no safety concerns.
Having heard the evidence presented at the violation hearing, the Court finds that dismissing the petition is inappropriate. Similarly, the Court finds that in context of a best interests analysis, a new suspended judgement not a viable option. Accordingly, the Court finds that it is in Aryelle's best interests to revoke Ms. F.'s suspended judgment, terminate Ms. F.'s parental rights and free Aryelle for adoption.