Opinion
NN-XXXX-18, NN-XXXX-19 NN-XXXX-19
12-21-2020
In the MATTER OF JOSE F., Ann Marie F., A Child Under Eighteen Years of Age Alleged to be Neglected by Christina L., Isaiah F., Respondents.
Deanna Flaherty, Esq., Administration for Children's Services, Family Court Legal Services, Brooklyn, New York, for the Petitioner. Fred Wertheimer, Esq., 26 Court St., Suite 2410, Brooklyn, New York, for the Respondent Father. Em Lawler, Esq., Deborah Frankel, Esq. Brooklyn Defender Services, Family Defense Practice, Brooklyn, New York, for the Respondent Mother. Laura Potter Cahn, Esq., Legal Aid Society, Juvenile Rights Practice, Brooklyn, New York, for the Subject Children.
Deanna Flaherty, Esq., Administration for Children's Services, Family Court Legal Services, Brooklyn, New York, for the Petitioner.
Fred Wertheimer, Esq., 26 Court St., Suite 2410, Brooklyn, New York, for the Respondent Father.
Em Lawler, Esq., Deborah Frankel, Esq. Brooklyn Defender Services, Family Defense Practice, Brooklyn, New York, for the Respondent Mother.
Laura Potter Cahn, Esq., Legal Aid Society, Juvenile Rights Practice, Brooklyn, New York, for the Subject Children.
Jacqueline B. Deane, J.
Procedural Background
This proceeding began with the filing of a neglect petition against the Respondent mother, Christina L, and the Respondent father, Isaiah F, pursuant to Article 10 of the Family Court Act ("FCA") on February 8, 2018 as to their son Jose, who was 6 weeks old at the time. Petitioner, the Administration Children's Services ("ACS") alleged that Jose was brought to the hospital significantly underweight and malnourished and that the parents were "visibly physically mentally delayed" and that the hospital was "concerned that the subject child could die without someone overseeing [the parents] caretaking of the subject child." It is further alleged that the hospital stated the parents were "completely unaware of how to care for a child." Additionally, the Respondent mother was alleged to have a mental illness, specifically bipolar disorder, which she was not taking her medication for nor receiving any mental health services. Neglect Petition, dated February 8, 2018.
By the time of the filing of the petition for the child Ann Marie, who was born one year later, the parents had made sufficient progress that they were having some limited unsupervised time in the middle of their agency-supervised visits with Jose. This new petition repeated the allegations of the first and alleged that, "despite recurring direction and reminders about proper feedings, the respondent parents continue to be inconsistent in feeding [Jose]." Neglect Petition, dated February 20, 2019. Both children were remanded to ACS from the time of filing of their respective petitions and have been in non-kinship care except for a brief period when the paternal aunt was a resource but then was unable to continue caring for the children. Both children remain in foster care to date. Neither neglect petition has yet proceeded to trial as the fact-finding date was vacated due to the COVID-19 pandemic.
This permanency hearing originally began on November 13, 2019 and was continued on December 20, 2019, February 14, 2020 and then was adjourned to April 22nd for summations.
The hearing was delayed in part by other proceedings related to the family including the filing of a termination of parental rights petition as to the child Jose as well as decisions on various motions including ones related to the temporary placement of the children and a motion in limine . Unfortunately, by the scheduled April date, the Court was closed due to the COVID-19 pandemic and there was only very limited capacity for virtual proceedings.
At the hearing, ACS introduced a total of eight exhibits—primarily various Heartshare foster care agency court reports—as well as the testimony of the agency case planner Ms. Anderson and rested. The Respondent mother introduced seven exhibits and the Respondent father introduced three. The attorney for the child ("AFC") rested without introducing any witnesses or evidence. After a period of time passed in the hopes that the courthouse might soon be able to re-open, the Court reached out to counsel about proceeding with the conclusion of the hearing virtually; counsel ultimately decided to submit their summation in writing along with two additional exhibits by ACS and the mother.
Prior to the courthouse closure, the Respondent mother had just recently requested a hearing for the return of the children pursuant to FCA § 1028 but, given the limited court operations due to COVID, Ms. L decided to reserve her right to that hearing and the Court held a phone conference with counsel on March 25, 2020 in which the following order was entered:
In light of the public health emergency due to the coronavirus, the Court held a conference call with the attorney for ACS, the Respondent mother Ms. L, and the AFC regarding Ms. L's pending motion for a hearing pursuant to FCA 1028. Given the decreased availability of the Court at this time, an expedited hearing on whether the subject children would be at imminent risk if returned to their parents cannot be held. However, the needs and best interests of the subject children and the rights of the Respondent parents to maintain some minimum, regular contact with each other during this pandemic by video and/or phone, if not in person, require the Court to enter the following order over the objection of ACS:
1. ACS is to make every effort, consistent with any emergency public health restrictions put in place by NYC or NYS, to arrange in person visits with the subject children in a park or other outdoor location near the agency.
2. ACS is to explore the availability of free phone minutes and any existing, convenient free WIFI to render Ms. L's phone operational for phone and video contacts with the agency and the subject children.
3. If free options are not available or are not located by Friday 3/27, ACS is ordered to pay for a minimum of 10 hours of phone service per month for the Respondent mother.
4. ACS is to insure that the foster parent has the capability to do video/facetime visits in her home and make best efforts to encourage and enable the foster parent to conduct such visits. If video visits in the foster home are impossible, speaker phone conversations should be utilized and the parents are to be provided with regular photographs of the children. Visits of some type should be scheduled atleast once per week.
The agency is ordered to provide the parents with regular phone updates on the status of the children's emotional and physical growth and well-being.
All of these orders are to be executed by the agency while being cognizant of the parents' cognitive limitations and take all steps to insure their comprehension and ability to maintain regular contact with their children during this pandemic. Order (March 25, 2020) (emphasis added).
Factual and Legal Findings
Article 10-A of the Family Court Act "establish[es] uniform procedures for permanency hearings for all children who are placed in foster care ... [in order] to provide children placed out of their homes timely and effective judicial review that promotes permanency, safety and well-being in their lives." Family Court Act § 1086. The permanency plan must include a "description of the reasonable efforts to achieve the child's permanency plan that have been taken by [ACS] since the last hearing" and, when the permanency goal is reunification, the description "shall include ... the reasonable efforts that have been made by [ACS] to eliminate the need for placement of the child and to enable the child to safely return home, including a description of any services that have been provided." Family Court Act § 1089(c)(4)(i). At the conclusion of a permanency hearing, the Family 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." Family Court Act § 1089(d). If the child is not returned to the parent, the order must state, among other things, "whether reasonable efforts have been made to effectuate the child's permanency plan." Family Court Act § 1089(d)(2)(iii). See also Lacee L. v Stephanie L. , 32 NY3d 219, 226 (2018).
"The Family Court Act's requirement that ACS undertake ‘reasonable efforts’ toward family reunification reflects the Legislature's finding that a child is ordinarily given the best opportunity to thrive and develop when they are raised by their parent." Lacee L. v Stephanie L. , 32 NY3d 219, 239 [2018] (citing Matter of Michael B. , 80 NY2d 299, 308-309, 590 N.Y.S.2d 60, 604 N.E.2d 122 [1992] ; Soc Serv Law § 384—b [1] [a] [i], [ii] ). The "Family Court's determinations following a permanency hearing must be made ‘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.’ " Matter of Victoria B. , 164 AD3d 578, 581 [2d Dept 2018] (quoting Family Ct Act § 1089(d) ; other quotation marks omitted). New York law further requires that ACS's reasonable efforts be "tailored to the particular circumstances and individuals in a given case." In re Lacee L. , 153 AD3d 1151, 1152 [1st Dept 2017], affd sub nom. Lacee L. v Stephanie L. , 32 NY3d 219 [2018] (Matter of In re Cloey S. , 99 AD3d 1080, 1081 [3d Dept 2012] ).
This Court credits the testimony of the case planner in this matter as well as the contents of the various court reports and other exhibits. The Petitioner and the AFC contend that this evidence establishes that the agency made "reasonable efforts" towards the goal of return to parents as required by FCA § 1089. The Respondents argue that the evidence does not support this finding for the following reasons:
1. Although the agency noted that both parents would benefit from OPWDD services, it failed to support them during the application process.
2. The agency did not help Ms. L apply for SSI despite the need for her to maintain a stable source of income.
3. The agency did not adequately follow up on and assist with the transfer of Mr. F's mental health services when he moved to Staten Island and then subsequently to Brooklyn to ensure Mr. F was receiving adequate support.
4. The agency failed to explore the parents' eligibility for supportive housing and did not assist them in securing a NYCHA safety transfer.
5. The agency failed to move the visits to a more convenient location than Brooklyn for the parents given their Staten Island residence and did not make sufficient efforts to assist them with the logistics of their transportation.
As is evident from the allegations in this petition, the agency was aware of the Respondent parents' intellectual and cognitive delays from the outset of this case. The permanency hearing reports also referred to the parents' "notable cognitive delays." Petitioner's Exs. 1 & 2 in evidence. The parents' mental impairment necessitated a tailored approach by the agency and a focus on accessing the resources that exist to support parents in their position. Ms. Anderson acknowledged on cross-examination that she did not have any specialized training in working with parents with cognitive disabilities. When asked if there was "anyone in [her] office who has specialized training to organize logistics for people with cognitive delays," Ms. Anderson answered "no." (Permanency Hearing Transcript dated 11/13/19, p. 14). There was no testimony that the foster care agency, Heartshare St. Vincents, or ACS provided Ms. Anderson with any additional training or guidance in working with these parents. This fact in and of itself is concerning to the Court as it certainly increased the likelihood that the agency, as a whole, would fail to provide the parents with the individualized support they needed to learn proper parenting techniques and life skills necessary to having the children returned to them. As noted by Justice Rivera in her dissent in Lacee L., "[i]t is axiomatic that if ACS does not understand a parent's disability it cannot provide services ‘tailored to the particular circumstances and individuals in a given case.’ " Lacee L. v Stephanie L. , 32 NY3d 219, 244 [2018] (Rivera, J., dissenting) (quoting Matter of Cloey S. , 99 AD3d at 1081, 952 N.Y.S.2d 657 )). The caseworker also acknowledged that she was unaware of the curriculum of the parenting class completed by the parents entitled "We are Parents Too," which was specifically developed for diverse learners, or the recommendation of the social worker who directs that program. (See Permanency Hearing Transcript dated 12/20/19, p. 20-21). This untapped contact would have been an excellent source of information for the agency to learn how to better support the parents towards greater independence in caring for the children.
The Court wants to be clear that these failures are not the individual responsibility of Ms. Anderson who at all times through out her testimony seemed well intentioned in her efforts to address the needs of the parents. Rather it is the agencies involved, Hearthshare St. Vincents and by extension ACS that are responsible for having, or obtaining, the specialized knowledge of how to work effectively with parents with cognitive impairments. This expertise would include both knowledge about community services, programs and benefits available to these parents as well as strategies to enhance direct parent engagement.
Of particular note to the Court in assessing the reasonableness of the agency's efforts is the failure to help the parents in any meaningful way with a primary issue Ms. Anderson identified in her testimony—namely, the parents apparent inability to manage their monthly income in a way that ensured they had a sufficient supply of food until their next public assistance check. Ms. Anderson's concern was based on the lack of food she observed at times during home visits. Additionally, at times the parents missed visits because they lacked funds to travel to the agency even though the agency would provide reimbursement once they arrived. Yet, despite this fact, Ms. Anderson testified that she did not assist the parents with locating food banks in Staten Island. Nor did Ms. Anderson offer to sit down with the parents to create an itemized budget with them or offer other concrete tips for improving their money management. While the caseworker expressed her concerns around their spending to the parents and made efforts to engage them in conversation around their budgeting, when asked about the specifics of these conversations, Ms. Anderson testified that she spoke "in terms of considering what they're using their money for versus addressing their needs per month." (Permanency Hearing Transcript dated 12/20/19, p. 56). Such general and vague guidance is insufficient to enable people with cognitive limitations to know how to attempt behavior change around their spending habits. The agency must not only identify the problems the parent is facing but must make "affirmative, repeated and meaningful efforts to assist" the parent in overcoming them. Matter of Children's Aid Socy. for Guardianship of Xavier Blade Lee Billy Joe S. , 62 Misc 3d 1212(A) [Fam Ct 2019] (citing Matter of Sheila G. , 61 NY2d 368, 385 [1984] ), affd sub nom. In re Xavier Blade Lee Billy Joe S. , 187 AD3d 659 [1st Dept 2020].
Additionally, there was no evidence of agency efforts to secure or enhance the parents' sources of income. Although Ms. Anderson testified that the parents had obtained SNAP benefits through HRA, she acknowledged that she had not assisted the parents in obtaining them. The caseworker neither set up the appointments nor attended any of them with Ms. L despite the challenges for a person with cognitive delays of dealing with an agency bureaucracy like HRA. Ms. Anderson also admitted that the agency did not provide any help to Ms. L in pursuing her appeal of her SSI denial.
Ms. Anderson testified that she was aware, "to an extent," that some of the many supports OPWDD could provide to the parents would be to assist them with budgeting, grocery shopping, meal preparation and obtaining available benefits. (Permanency Hearing Transcript dated 12/20/19, pp. 46-47). Although Ms. Anderson testified that she had spoken with the parents about obtaining OPWDD services, she did nothing to assist them in navigating the complex process of eligibility nor did she attend their OPWDD intake meeting. Furthermore, it does not appear that Ms. Anderson attempted to fully learn what the OPWDD application process involved. Specifically, she testified that she was unaware that the parents had to attend and complete self-direction classes to be eligible.
Although the agency did ensure that the parents had regular opportunities to visit with the children in person prior to the pandemic interfering and generally provided MetroCards for their travel, the case planner admitted that no visits were ever arranged in the borough of Staten Island after the parents relocated there. Rather, Ms. Anderson acknowledged that the Respondents' trip from Staten Island to the agency office in Brooklyn could take approximately one hour and fifteen minutes and would require travel by bus, ferry and subway. Despite the fact that the agency raised issues with the parents' lateness to and cancellation of some visits, Ms. Anderson admitted she never attempted to plan the route with the parents to determine whether any faster, more reliable or less complex options existed.
After the December 2019 testimony by Ms. Anderson — which raised these various issues with the level of assistance the agency had provided to the parents at that point — the Court entered the following order:
The agency is ordered to work with CASA to compare the list of what is needed for an OPWDD application with whatever documents the agency has to determine what is still needed to complete the application.
The agency is ordered to create a budget with the parents to help them with their monthly spending choices and insure the parents have adequate MetroCards for all visits.
Order, December 20, 2019.
Despite the existence of this order, there was no evidence of any significant increase in agency support on these matters presented at the subsequent hearing dates or even in the most recent exhibits submitted. In fact, all of the efforts tailored to the Respondents' disabilities were made by the Respondent mother's BDS social worker and/or the CASA representative appointed by the Court. (Quote). For example, it was CASA who provided Ms. L with a working phone as the Court had ordered ACS to do on March 25th. See CASA Report dated 11/30/20.
In the Matter of Xavier Blade Lee Billy Joe S. ("Xavier S. "), the First Department affirmed a Family Court finding that the agency failed to exercise diligent efforts to reunite a family in a termination of parental rights case when working with a mother with a cognitive impairment. The diligent efforts requirement under the Social Services Law ("SSL") is analogous to the reasonable efforts requirement in Article 10. Initially the First Department noted that "[t]o satisfy its obligation, the agency must offer services adapted to the particular needs of the parent and children." In re Xavier S. , 187 AD3d 659 [1st Dept 2020] (citing Matter of Sheila G. , 61 NY2d 368, 384 [1984] ); Maria Ann P. , 296 AD2d 574 [2d Dept. 2002] ("The agency failed to tailor its efforts to the needs of this particular parent and child."). In applying that requirement to the facts in Xavier S. , which are similar to those here, the Court then noted: "Here, petitioner does not address its failure to assign this matter, which involved a cognitively impaired mother, to a caseworker with relevant expertise, or ensure that its caseworker was appropriately trained or consulted at the outset with individuals with relevant expertise in devising the mother's service plan." Id. In Xavier S. , ACS also failed to refer the mother to OPWDD and admitted not being knowledgeable about how to make that referral. Given the inadequate level of support provided by the agency to Ms. L and Mr. F thus far, as well as the complications and added stressors the parents faced due to the COVID pandemic, the Court cannot determine whether the parents can safely and capably parent their children despite their intellectual disabilities and mental health challenges. As noted by Judge Pels in her decision in Matter of Children's Aid Socy. for Guardianship of Xavier Blade Lee Billy Joe S. , "the lack of expertise and resources in working with parents with intellectual disabilities who are involved in the child welfare system is a pervasive national problem." Matter of Children's Aid Socy. for Guardianship of Xavier Blade Lee Billy Joe S. , ("Matter of Ch. Aid Soc. ") 62 Misc 3d 1212(A) [Fam Ct 2019], affd sub nom. In re Xavier Blade Lee Billy Joe S. , 187 AD3d 659 [1st Dept 2020] (citing National Council on Disability ("NCD"), "Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children" [September 27, 2012]). However, in the eight years since the NCD report cited in Matter of Ch. Aid Soc . was written, there is greater awareness that the child welfare system must be attuned to the needs of this parent population. In 2015, The United States Department of Health and Human Services (HHS) and the United States Department of Justice (DOJ) jointly issued guidelines for state agencies on "Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. August 2015. See http://www.ada.gov/doj_hhs_ta/child_welfare_ta.pdf (last accessed Dec. 21, 2020). As a result, NYC ACS has broadened its Developmental Disability Unit, which can be accessed by any caseworker or foster care agency to gain expertise, to address the needs of not only children, but parents, with intellectual disabilities. As the available knowledge and expertise increase, so does the threshold of what is "reasonable" in a given case.
This NCD report found that "[t]he child welfare system is ill-equipped to support parents with disabilities and their families [including parents with intellectual disabilities], resulting in disproportionately high rates of involvement in child welfare services and devastatingly high rates of parents with disabilities losing their parental rights" (National Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children [September 27, 2012], Finding 2 at 242).
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In its recent decision finding general applicability of the American with Disabilities Act ("ADA") to ACS, though not always synonymously with what constitutes reasonable efforts in the context of a permanency hearing, the Court of Appeals held that "Family Court should not blind itself to the ADA's requirements placed on ACS and like agencies. The courts may look at the accommodations that have been ordered in ADA cases to provide guidance as to what courts have determined in other contexts to be feasible or appropriate with respect to a given disability." Lacee L. , 32 NY3d at 231. Based on this Court's review of the exhibits and considering the credibility of the witness, and this Court's extensive knowledge of the history and progression of this case, this Court finds that, although some efforts towards reunification were made, the totality of those efforts and the importance of the areas where the efforts were deficient do not amount to a showing of "reasonable efforts" towards the goal of return to parent. Therefore, the Court enters the following orders:
Placement
• The subject children Jose and Ann Marie continue to be temporarily placed with the Commissioner of ACS until the completion of the next permanency hearing absent any contrary order at the fact-finding hearing.
Permanency goal
• Jose's permanency planning goal remains return to parent but with concurrent planning towards adoption.
• Ann Marie's permanency planning goal remains return to parent.
Reasonable efforts
• The Court makes a finding that the agency has not made reasonable efforts towards the goal of return to parent based for the reasons detailed in this decision.
• The Court orders the following future reasonable efforts:
• The agency is to support the continued placement of the subject children in the pre-adoptive foster home.
• The agency is to follow up on and encourage the Respondent parents' engagement in mental health services and medication management;
• The agency is to engage a parent coach or locate a dyadic parenting program that is capable of working with parents with cognitive impairments to work directly with the parents.
Visitation
• The subject children's visits will continue to be agency or approved resource supervised with 1 hour of unsupervised time as long as Mr. F's is calm and mentally stable during the initial supervised portion. ACS has discretion to expand the length of the unsupervised portion.
• ACS is to make best efforts to increase the in person visits to twice per week given the limitations in space and staffing due to the COVID pandemic.
• ACS is to arrange virtual video visits twice per week.