Opinion
NN-XXXXX-16
05-26-2020
In the Matter of Joziah P., A Child Under Eighteen Years of Age Alleged be Neglected by Shirley P., Respondent.
Procedural and Factual Background
The Respondent mother in this matter, Shirley P., was herself a 17-year-old subject child in foster care when this neglect petition was filed against her. On June 13, 2016, Shirley was remanded to foster care as a result of her mother abruptly moving to Florida and leaving Shirley, her pregnant teenage daughter, behind in New York City. Less than two months later, on August 16, 2016, Shirley gave birth to her son, Joziah. Petitioner Administration for Children's Services ("Petitioner" or "ACS") filed a neglect case against Shirley only three days later. This precipitous decision to file when Joziah was still in the hospital was unnecessary given that Shirley herself was already under ACS's jurisdiction and could have been supervised and provided services. This decision immediately established the dynamic of the agency being at odds with Shirley's desire to parent, and demonstrated a lack of confidence in her abilities, rather than acting to support and strengthen her mothering while still playing its legally-mandated role as Shirley's "parent." Like the proverbial ball picking up speed as it rolls down the hill, this dynamic became exacerbated over time to the point where the mutual lack of trust between Shirley and both ACS and the foster care agency sabotaged any chance of a working relationship.
The history of this family's involvement in the child welfare system begins with the filing of a neglect petition pursuant to Article 10 of the Family Court Act ("FCA") against Helen M, the mother of Shirley P — who is the Respondent mother on the instant case — and her brother Kevin on June 20, 2013. Shirley was 14 years old at the time. That petition alleged that that Ms. M failed to provide Kevin, who had juvenile diabetes, and Shirley with adequate medical care and that she neglected both children's education. Specifically, as to Shirley, the petition alleged that Shirley was short of breath due to enlarged adenoids that required removal and that, although Ms. M was aware of this and Shirley was scheduled to have surgery in November 2012, Ms. M did not take Shirley for her surgical appointment or reschedule it. Additionally, the petition alleged that Shirley has missed approximately 70 days of school in the 2012-2013 school year. An educational neglect finding was made against Ms. M on her consent on November 13, 2014. The subject children were released to Ms. M with ACS supervision for 12 months and with additional conditions for Ms. M to follow. ACS filed a violation of the orders of disposition against Ms. M on May 12, 2015 for her failure to comply with these orders. On June 13, 2016, Shirley was remanded to foster care after ACS filed a motion alleging Shirley's mother had abandoned her by leaving her and moving to Florida. Since Shirley was pregnant at the time, she was placed in a mother-child program. This procedural history is contained in court orders under dockets #NN-XXXXX-X-13 and NN-XXXXX-13/15A where Shirley was the subject child. This Court presided over the matters involving this family since December 2015.
Specifically, the petition alleges that Shirley gave birth to Joziah and reported that Shirley had no provisions for him or source of income; that Shirley was referred to a mother-child program for young mothers and refused to attend; and that she had "absconded from foster care and refused to advise ACS of her whereabouts." Neglect Petition, filed August 19, 2016. The petition further alleges that the caseworker "went to the residence where the respondent intends to reside with the subject child [and] observed no crib and no clothing .and no formula despite the fact that the respondent reported she did not intend to breastfeed." Id. The petition references Shirley's history as a subject child on the 2013 case against her own mother, stating she "refused to remain in stable housing despite referrals for her and her mother, Helen M, to enter PATH .and has refused efforts to assist her in planning for the birth of the subject child Joziah" including prenatal care. Id. It is important to note that the home visited by the caseworker was that of Isabel S, Shirley's close family friend, which is the home in which ACS later decided to place Shirley and her son in foster care and where Shirley is again living today.
On the August 22nd, 2016 court date, ACS requested that both Shirley and her son be remanded to foster care, each on their individual neglect docket, and specifically for placement in the home of Shirley's kinship resource, Ms. Isabel S, who was in the process of being certified. Unfortunately, Ms. S was ultimately not able to continue caring for Shirley and her son due to having five children of her own. Given that this is the home in which Shirley has now been living for the past 10 months and seeks to have Joziah returned to, there may well have been more ACS could have done to preserve this kinship home initially. The loss of that placement landed Shirley and Joziah in the ACS Children's Center pending placement in a mother-child program or a foster home that could accommodate both of them. After a period of unsuccessful placement in a mother-child program, and because no joint foster home could be located by ACS, Shirley and Joziah were placed in separate foster homes on October 26, 2016. ACS continued to search for a foster home that could accommodate both Shirley and Joziah but was never able to find one willing to accept this teen mother and her infant son. In this Court's view, the failure of the system to provide a home where both a teenager and infant could be parented according to her/his needs and where Shirley could learn how to be a mother undermined her abilities both to succeed as a parent and to bond with her baby. This failure would prove devastating for both mother and child and ultimately be a major factor in their continued separation from each other.
Early in this case, Shirley's lawyer advocated strongly for her to be placed in a foster home where she herself could receive the mothering she needed by a foster parent who could also help teach her how to mother her own son. Yet no such foster home could be located. As a result, Shirley was placed in a mother-child program. This placement was unsuccessful because like many teenagers would, Shirley bristled against the many rules in the facility leading to various compliance issues, some of which involved her taking advantage of the readily available childcare to leave her baby with adults in the home to go out. Again, given that Shirley was only 16 at the time and had suffered the recent traumas of being abandoned by her mother and placed in foster care, her behavior was not at all surprising. While trying to teach the responsibilities that come with parenting, these programs need to use more trauma-informed practices to support teen parents and have greater flexibility to allow healing and growth to occur even as teen parents chafe against their newfound obligations. Instead, Shirley was kicked out of these programs due to her rule violations.
The focus of all counsel and the Court for the initial year the case was pending was trying to maintain regular visits, given Shirley's strong expressed desire to parent Joziah, despite the challenges around Shirley's and Joziah's respective foster care placements, in the hope of leading to an eventual resolution of the case. These challenges were compounded by the fact that their respective foster homes were located at opposite ends of the city. Once a trial became inevitable, there were additional delays due to the Shirley's temporary relocation to Florida to care for her terminally ill mother, coupled with multiple changes in the attorneys who represented the Petitioner. For all of these reasons, the fact-finding hearing did not commence until April 23, 2019 and then continued over several adjourn dates, finally concluding on January 7, 2020. In the middle of the trial, on August 26th, Petitioner orally put counsel on notice that it would request to conform the pleadings to the proof to add the allegation that the Respondent mother abandoned her child Joziah as defined in FCA 1012(f)(ii) and SSL 384-b(5) from the period February 26, 2019 to August 26, 2019. The Court granted the motion to conform as well as an adjournment of the hearing for the Respondent mother to adequately prepare for the expanded allegations.
Petitioner ACS introduced the testimony of ACS caseworkers Ms. Genus and Ms. Gabay and Catholic Charities Case planner Ms. Bah, as well as two exhibits including an oral report transmittal ("ORT") and excerpts of case records. Shirley was not present on the first day of the trial as she was still in Florida following her mother's death and her attorney remained mute on that date. On August 26th, Shirley's counsel initially remained mute during Ms. Gabay's testimony but, when Shirley called into the Court in the middle of Ms. Bah's direct testimony and was permitted to appear by phone, Respondent's counsel began participating on Shirley's behalf and continued to do so throughout the trial.
The Respondent mother testified on her own behalf and rested. The AFC, who supports a finding against the Respondent mother, rested without introducing any evidence. Counsel gave summations and this Court reserved decision.
Factual Findings
ACS Caseworker Gabay was assigned to the neglect case against Helen M when Shirley was a subject child. Ms. Gabay testified that she had difficulty making the required bi-monthly home visits from January to August 2016 because Ms. M and the subject children at the time, Shirley and Kevin, were evicted from their original home in Brooklyn and then moved to Queens. When Ms. Gabay visited the building where the family was residing in Queens in March 2016 she found it had no hot water, electricity, or furniture and that she did not feel safe visiting there because of these conditions. When Shirley admitted she was pregnant to Ms. Gabay that spring, Shirley said she was getting prenatal care at Jamaica Hospital but declined to sign releases for ACS to obtain information. Ms. Gabay informed Shirley that ACS could provide her with a Pack 'n Play &TLRtrade; for the baby to sleep in but that Shirley needed to obtain other provisions such as clothes and diapers. Shirley informed Ms. Gabay that she intended to provide for her baby and would get on public assistance although Ms. Gabay testified she never observed any provisions in the Queens home. Ms. Gabay continued to counsel Ms. M, Shirley's mother, about entering PATH and, on one occasion in July 2016, Ms. M agreed to accompany the caseworker to enter the shelter system with Shirley although Ms. M did not remain there for an extended period. At some point in mid-2016, Shirley's brother Kevin became incarcerated and remained there for a number of months. When Ms. Gabay initially discussed Shirley entering a mother-child program, Shirley stated she wanted to remain living with her mother. The caseworker testified that, after Ms. M had abandoned Shirley to move to Florida, and placement with the maternal aunt was no longer an option, Shirley did agree to enter a mother-child program. Ms. Gabay stated that, sometime later, Joziah was later removed from Shirley's care because of Shirley's alleged non-compliance with the program rules.
Although Ms. Gabay testified to her impressions of the reasons Joziah was removed, this testimony was all hearsay based on statements made by program staff to Ms. Gabay and will not be considered by the Court.
ACS Caseworker Genus testified that she first met Shirley as a subject child back in April 2016 when Ms. Genus attempted to make home visits with the assigned caseworker Ms. Gabay to the address in Queens where Shirley was believed to be living with her mother. Ms. Genus described the location as a two-family home with no electricity and no visible place to cook. The caseworker observed a bunch of adults not related to Shirley sleeping on beds on the floor. The caseworkers met up with Shirley outside that location and Ms. Genus testified that Shirley appeared to be pregnant. Ms. Genus next saw Shirley when she and Ms. Gabay visited her in the Bronx on August 18th at the home of Ms. S as a follow up to an ORT called in following Joziah's birth. At that time Joziah was still in the hospital and Ms. Genus testified that she did not observe any crib or formula in the home. When Shirley informed the caseworker she would not be breastfeeding, Ms. Genus told Shirley that she would be able to provide her with formula if needed. Ms. Genus testified that Shirley was unwilling to enter a mother-child program at that time.
Ms. Bah was the case planner assigned by Catholic Guardian starting in January 2019. This was the same month that Shirley's mother passed away. Ms. Bah acknowledged that Shirley had completed anger management and parenting skills classes previously as well as the first half of a mental health evaluation. At the time she was assigned, the case planner was aware that Shirley had gone to Florida to care for her mother the previous year and had remained living there. Ms. Bah testified that she spoke with Shirley in March of 2019 about the status of the Interstate Compact for the Protection of Children ("ICPC"). This investigation had been ordered by the Court initially on October 22, 2018 as Shirley wanted Joziah to come visit and reside with her in the Florida home. A written order for the ICPC was subsequently done by the Court on January 31, 2019. Ms. Bah testified that she had two different addresses for Shirley in Florida but ultimately confirmed the one where she was currently living.
Ms. Bah referred to the ICPC in her testimony on August 29, 2019, but did not explain the context of that investigation. Therefore, the Court is taking judicial notice of both of these orders to provide that context.
Ms. Bah testified that Shirley had not visited Joziah from January to August 2019 although Ms. Bah said she attempted to contact Shirley on a weekly basis to try to arrange visits. From the time Ms. Bah was assigned, Shirley told Ms. Bah that she wanted to come to NYC to visit Joziah but she did not have a valid state ID to be able to get on a plane. Ms. Bah stated that both her agency and CASA worked with Shirley to obtain that ID which she did not receive until the end of March 2019. Ms. Bah testified that Shirley contacted her to say she wanted to come to NYC on February 28th to attend the second half of her scheduled mental health evaluation and have a visit with Joziah. According to Ms. Bah, the agency case planner who was assigned to Shirley's case as a subject child was the person in charge of arranging Shirley's travel to New York for that date and therefore, Ms. Bah only asked to be informed once Shirley's travel was arranged. On March 19th and 26th, Ms. Bah called Shirley. Shirley later returned her call and informed Ms. Bah that her mental health evaluation was rescheduled for April 11th and that she had not been contacted by the ICPC caseworker who was supposed to be assessing her home in Florida. On March 22nd, Ms. Bah acknowledged that Shirley texted her to get Joziah's social security number. On March 26th, Shirley called Ms. Bah again to follow up on the agency paying for her flights to NYC. Over a week later, on April 4th, Ms. Bah called Shirley back to say that, despite this Court's order that the agency pay for Shirley's flights, the agency was refusing to do so. Ms. Bah then spoke to Shirley again on April 8th to retract her last statement and say that the other agency case planner was working on getting her plane ticket. However, Shirley indicated that she could not travel on the date proposed because of her work schedule. The next communication was on May 13th when Shirley texted Ms. Bah to follow up on a voicemail Shirley had left for the other case planner. Shirley texted Ms. Bah again the next day on May 14th and then called her two weeks later on May 28th to find out about flights for June. Ultimately, the agency purchased a ticket for Shirley to come to New York from June 10th to 12th. Shirley emailed Ms. Bah on May 31st to confirm that she was scheduled to arrive in NYC on June 10th. All of this communication between Shirley and the agency occurred during the time period Petitioner alleges she was manifesting an intent to forego her parental rights.
"CASA", or Court-Appointed Special Advocates, was assigned by the Court originally on December 20, 2018 to assist Shirley in numerous ways including acting as a communication conduit between Shirley and the agency given the breakdown in their relationship. Shirley's CASA volunteer has been the one person throughout these court cases who has established a fully trusting relationship with Shirley, demonstrating that Shirley is capable of accepting help and maintaining communication. In fact, Shirley is in contact with CASA on a daily basis to this day. CASA has been instrumental in assisting Shirley through the emotional trauma of her child welfare involvement, both as a child and a parent.
According to Ms. Bah, Shirley did come to the agency for a visit on June 11th but then had an "outburst" which resulted in the visit being cancelled. Ms. Bah testified that Shirley cursed at agency staff and told Ms. Bah she would punch her in the face. Joziah was present at the beginning while his mother was cursing but then was removed from the area. According to Ms. Bah, Shirley was pacing, crying and screaming in the lobby and police were called to escort the foster mother and child out of the agency. In her testimony, Shirley acknowledged being extremely upset but denied threatening to hit Ms. Bah. While the Court credits that there was a verbal altercation between the agency staff and Shirley on that date, the Court cannot credit Ms. Bah's version of that incident over Shirley's in light of the long-standing history of antagonism and poor communication between Shirley and the agency which was noted by both sides in their testimony.
On June 6th, Ms. Bah e-mailed Shirley to state that a visit was scheduled for June 10th from 1-3 pm at the agency in the Bronx as well as on each of the following two days. Additionally, Ms. Bah told Shirley that the agency had scheduled a "goal change conference" for the hour immediately before her visit with her son where they would discuss the agency's intention to request that the permanency planning goal for Joziah be changed to adoption. Ms. Bah admitted that the agency did not provide Shirley with any car fare to get to the agency from the airport and that she did not know or look into how long it would take to travel from JFK airport to the Bronx agency on public transportation. Shirley contacted Ms. Bah on June 10th to let her know that there was an issue with her flight and that she ended up taking a later one that did not arrive until 3:00 pm. As a result, Ms. Bah rescheduled the goal change conference to be held at the same time as the visit scheduled for the next day, June 11th. However, Shirley's mental health evaluation was scheduled for 10:00 am on June 11th in Brooklyn Family Court and Ms. Bah determined the exam would last approximately 2 hours, leaving Shirley with a tight schedule. Ms. Bah testified that Shirley did not arrive in the Bronx until 2:00 pm at which time Shirley wanted to spend time with her son since she had not seen him in at least 6 months. Joziah was present in the room and Shirley hugged him hello. However, Ms. Bah informed Shirley she had to have the goal change conference before the visit could take place. At that point, Shirley stated she was not going to participate in the conference and agreed to put that in writing, as Ms. Bah requested, after the visit took place. Ms. Bah, and the facilitator, persisted in trying to move forward with the conference and Shirley and the case planner began "getting excited" and exchanging words. Shirley asked for Joziah to leave the room with the foster parent as the argument continued. No visit occurred on June 11th as a result and Shirley did not come to the agency for her scheduled visit on June 12th. Ms. Bah testified that she had been trying to contact Shirley on a weekly basis through texts and e-mails from June 11th to August to try to arrange another visit but that Shirley did not respond.
In August, the case was transferred to a new case planner because Shirley was refusing to speak to Ms. Bah. However, Ms. Bah testified that she was communicating with Shirley's CASA advocate and understood her to be communicating on Shirley's behalf. Thus, Shirley remained in contact with the agency despite the deterioration in her relationship with Ms. Bah.
On August 16th, Shirley contacted the new caseworker to say she was in NYC and wanted to arrange a visit that day; however, Ms. Bah testified that when she called Shirley back to arrange that visit, Shirley hung up on Ms. Bah. On August 22nd, Ms. Bah received an e-mail from the CASA advocate about arranging another visit. Again, the Court notes that all of these communications between Shirley and the agency occurred during the alleged period of abandonment.
Shirley took the stand on October 23rd and November 4, 2019 and initially described what she did to plan for her baby's birth. Shirley knew she could not depend on her mother for her help as her mother had diabetes and a broken leg at the time. Shirley testified that she initially received prenatal care at Jamaica Hospital but was not satisfied with her treatment there, and then later at Lincoln Hospital, admitting that she skipped approximately two or three months in between. Shirley said she obtained WIC to keep herself and the baby healthy during her pregnancy and Joziah was born healthy with no medical concerns. At the time Joziah was born, Shirley testified that she was living with Isabel S in the Bronx and Joziah was initially released to her in that home a week later when he was discharged from the hospital. Shirley testified that she had given birth early and was scheduled to have a baby shower on the Friday of the week he was born where she was going to receive baby gifts. Shirley did state that she had the most important items Joziah would need, specifically cans of formula from the hospital and from Ms. S, as well as other items the hospital provided such as diapers, newborn clothes, bottles and a warmer. Shirley said that Ms. S was going to help her financially and that she knew she had to find a way to care for her baby. On approximately August 25th, Shirley moved into a mother-child placement with Joziah. However, Shirley stated she left that shelter after a month or so to return to Ms. S's home because she was concerned that the conditions, including peeling paint, were not healthy for Joziah.
Shirley's testimony then addressed her alleged abandonment of Joziah and her attempts to work with ACS and the assigned foster care agency to arrange visits. Shirley became emotional in explaining that the reason she had gone to Florida in August 2018 was because her mother was dying. Shirley stated that both of her mother's kidneys had failed and since they did not know how much longer she would be alive, Shirley wanted to go to be with her for this limited period. Shirley explained how her mother had left her and New York City early on in Shirley's pregnancy and Shirley had gone into foster care. Shirley testified that she informed the foster care agency of her decision to go to Florida and the reason for it and began discussions with them about how she could continue to visit Joziah. Moving forward to the relevant time frame beginning February 2019, Shirley testified that the agency was not assisting her with getting the paperwork necessary for her to obtain an ID which would allow her to travel by plane to New York; she explained that it was not until this Court issued an order directing it that the agency began assisting her with obtaining such an ID. Shirley described the challenges she had making contact both by phone and e-mail with the case planner on her own case as well as the one assigned to Joziah in that each was located in different offices of the same agency. Shirley acknowledged that at times she became disrespectful out of frustration because she felt the agency was not getting back to her and Shirley was trying to arrange her work schedule to allow her to make the visits. At some point, Shirley received a letter from the agency indicating that a termination of parental rights case was being filed against her. Shirley described being extremely upset by this news given that, in her view, she had complied with her services. Regarding the conflict on June 11th relating to the goal change conference, Shirley explained why she found that agency's directive that she have the conference, rather than the visit first, so unreasonable:
It happened when I had the visit and basically [Ms. Bah] wanted me to ignore Joziah so she could have a conference with me, which that's what made me act out, because why would I reject my son in front of his face?....It was like right when I saw him and he was in my arms, she was trying just to tell me, let him go, and to have a conference. Like I have not seen my son for a long time. So why would I just tell my three-year-old, oh I
can't be with you right now, or I can't hug you because you want to have a conference?Transcript, November 1, 2019, p. 34, l. 2-12.
Shirley did testify that she believed she had other visits with Joziah between February and August other than the one in June, including some at the courthouse, but she was unable to provide the dates and there was no other evidence that any other visits occurred. Shirley's perception was that the agency only contacted her to arrange for visits right before court dates when the Court expected a report on their efforts but that they would not contact her to arrange consistently-scheduled visits. Shirley described ICPC caseworkers coming to her family's home in Florida after her mother passed away and that there was an issue completing the process because her brother did not have any ID. Eventually, she was informed the ICPC was denied but did not fully understand why. Once it became clear that the agency would not agree to Joziah coming to live with her in Florida, Shirley testified that she moved back to NYC in August 2019 to be better able to pursue Joziah's return to her.
Legal and Factual Analysis
In a child protective proceeding, in order to establish neglect ACS must prove by a preponderance of the evidence (1) that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the subject child with proper supervision or guardianship. See Family Ct Act § § 1012(f)(i)(b), 1046(b)(1); Matter of Afton C., 17 NY3d 1 (2011); In re Kiana M.-M., 123 AD3d 720, 721 [2d Dept 2014]. This definition pertains to the original allegation in the petition which is neglect based on Shirley's alleged failure to plan for the care of the baby after his birth during the period prior to filing on August 19, 2016.
As to the failure to plan allegation contained in the original petition, the Court finds the evidence insufficient to establish neglect by a preponderance of the evidence. The Court credits Shirley's testimony that she did receive some pre-natal care, even if she missed a few months, and had a plan to live with Ms. S after the baby's birth. In fact, that is the home where, on August 22, 2016, Shirley and Joziah were initially both placed on remand status by ACS, with Ms. S being certified as a kinship foster parent. Additionally, the Court credits Shirley's testimony that she planned to receive many items for the baby at a shower that was planned for later in the week he was born but that since he was born early she had not yet received some of those items. However, Shirley testified that she did have formula, diapers, bottles, and a warmer, some provided by the hospital, and Ms. Gabay testified that the agency would further supplement this with additional formula and a pack and play. These items consist of the basic necessities needed to bring a baby home from the hospital. The fact that, when Ms. Genus visited Shirley on August 18th at Ms. S's home, the caseworker did not observe any crib or formula in the home is not determinative since Joziah was still in the hospital on that date. As long as Shirley had a reasonable plan to obtain what she needed for when Joziah was released, a finding for failure to plan cannot be made on that basis alone. See Matter of Zahir.W., 169 AD3d 909 [2d Dept. 2019] (finding of neglect for failure to plan reversed where the mother's plan to leave the children with a relative even if longer than stated did not place them at imminent danger of impairment); Matter of Divine W., 60 Misc 3d 362 [Fam Ct 2018] (petition dismissed for failure to state a cause of action for neglect against father who refused to answer caseworker's questions about the provisions he had for the newborn); Matter of Justelle R., 60 Misc 3d 1211(A) [Fam Ct 2018] (petition dismissed for failure to prove harm or imminent risk of harm where Respondent father left his children with their grandfather "without an agreement or a plan for their support" but the children were well cared for). In order to justify state intervention into a parent's right to raise their child, ACS must establish actual or imminent danger of impairment not just what "might be deemed undesirable parental behavior." See Santosky v. Kramer, 455 US 745, 753 [1982]; Nicholson v Scoppetta, 3 NY3d 357, 369 [2004]. Therefore, the original allegations in the petition as filed are dismissed.
Turning to the amended allegation of abandonment, the Court finds that this allegation was also not established by a preponderance of the evidence by the Petitioner. Article 10 of the Family Court Act incorporates the Social Services Law to include the same abandonment cause of action that exists in termination of parental rights proceedings, except at the lower standard of proof of preponderance of the evidence. Specifically, a child may be found to be neglected within the meaning of Family Court Article 10 when the child has "has been abandoned, in accordance with the definition and other criteria set forth in subdivision five of section three hundred eighty-four-b of the social services law, by his parents or other person legally responsible for his care." Family Court Act § 1012(f)(ii). Social Services Law 384-b(5)(a) states that "a child is 'abandoned' by his parent if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed." See also In re Julius P., 63 NY2d 477 [1984]. "However, mere proof of such failure is insufficient to establish abandonment, as inquiry must also be made into whether or not there was good reason for the failure to visit or communicate." Matter of Catholic Child Care Socy. of Diocese of Brooklyn, 112 AD2d 1039, 1039-40 [2d Dept 1985] (citing Matter of Rose Marie M., 94 AD2d 734 [2d Dept 1983]; Matter of Wesley L., 72 AD2d 137, 143 [1st Dept 1980]). See also In re Gabrielle HH, 306 AD2d 571, 573 [3d Dept 2003], affd sub nom. In re Gabrielle HH., 1 NY3d 549 [2003]; Matter of John Z, 209 AD2d 821, 822 [3d Dept 1994]; Angel Guardian Home v Mendez, 60 AD2d 600, 600 [2d Dept 1977]. Thus, while a parent is presumed to be able to communicate and/or visit in the absence of proof to the contrary, if a parent provides an explanation for the failure, an "inquiry must be made, on a case-by-case basis" and "[a]t a minimum, it must be shown 'that the asserted hardship permeated the parent's life to such an extent that contact was not feasible.'" Matter of Jasmine T, 162 AD2d 756, 757 [3d Dept 1990] (quoting Catholic Child Care Socy. of Diocese of Brooklyn, 112 AD2d at 1040). See also Matter of Ulysses T., 87 AD2d 998 [4th Dept 1982] ("evidence of parental disinterest for six months requires the parent to satisfy the court that he did not intend to abandon the child .the passage of the six-month abandonment period should not be interrupted unless the parent can justify his or her failure to maintain contact. It may be that respondent could not maintain contact here or that his failure to do so is excusable. The statute presumes otherwise, however, and the burden should properly be placed upon him to come forward with evidence to avoid an adverse finding.); Application of Antwan Malik F., 232 AD2d 216, 217 [1st Dept 1996]; In re Anthony M., 195 AD2d 315, 316 [1st Dept 1993].
It is worth noting that, although a termination of parental rights ("TPR") petition was filed against Shirley by Catholic Guardian on August 15, 2019, the agency did not allege abandonment as a cause of action. Instead, the agency alleged permanent neglect, despite the fact that an abandonment allegation would have covered the identical six-month period as alleged in the neglect case.
The TPR petition is still pending trial. However, in the Skype Conference with counsel held on May 22nd discussed herein on p. 14, the agency attorney stated that the TPR petition would be withdrawn once a dismissal of the neglect petition was entered.
First, the Court finds that Shirley did not manifest an intent to forego her parental rights and obligations. The statute considers the existence of communication with either or both the agency and the child as relevant to whether abandonment is established. SSL 384-b(5). Despite dealing with the emotional trauma of caring for and losing her mother at such a young age, the evidence establishes that Shirley continued to demonstrate her commitment to Joziah through multiple attempts to communicate with the agency by text, e-mail and phone. Based on the credible testimony of both Shirley and Case Planner Bah, the Court finds that Shirley e-mailed the agency or spoke with ACS by phone on at least a monthly basis, and often more than once each month, to try to obtain information about Joziah or arrange a visit or some other contact. In fact, even according to Ms. Bah, Shirley reached out to her by phone, e-mail or text no less than NINE times between March 19th and May 31st, 2019.
To her credit, Shirley worked to establish a life for herself, and she hoped Joziah, in Florida with a job and stable residence. Shirley repeatedly made requests of the agency (and through her lawyer in court) to have Joziah visit her there in her mother's Florida home where Shirley and her brother were living. This is the reason the ICPC was ordered and the Court credits that Shirley made efforts to follow up on and comply with the ICPC to facilitate that plan, including at least one home visit by caseworkers to the Florida address. Furthermore, Shirley did have one scheduled, in-person meeting with her son during the relevant 6-month period which was on June 11th when her visit was abruptly terminated because she would not participate in the goal change conference before her visit. Additionally, the Court credits Shirley's testimony about her efforts to reach out to the agency to arrange more visits and other communication with Joziah as well as the frustration she felt with their lack of communication and responsiveness. Once it became clear Joziah would not be allowed to visit her in Florida, Shirley chose to move back to New York to fight for his return. All of this demonstrates Shirley manifest intention and desire to maintain her parental ties and responsibility to Joziah and ultimately be reunited with him.
Additionally, even if such a showing was deemed necessary, the evidence here established a "good reason" for Shirley's physical absence. Matter of Catholic Child Care Socy. of Diocese of Brooklyn, 112 AD2d at 1039-40. The Court recognizes that Shirley temporarily relocated to Florida during this time in order to care for her terminally ill mother and spend her last months together. Shirley, at only age 19, had to contend with her emotions surrounding reconciling with the mother who abandoned her while she was pregnant at age 16, followed by her mother's death a short time later. While Shirley initially hoped Joziah could join her in her mother's Florida home where Shirley and her brother were living, the agency's objection and the failure of the ICPC both made that plan impossible. In terms of Shirley traveling to see Joziah in NYC, Shirley did not have a passport or other necessary identification to take a bus, train, or plane even though this is something the agency should have obtained when Shirley was still under their care as a foster child. Additionally, Shirley was trying to arrange visits around her work schedule as she was trying to maintain her job to support herself and ultimately, Joziah. Shirley did travel to New York in June and did see Joziah then, albeit briefly. While ACS would have the Court discount this trip because Shirley did not end up visiting with Joziah as scheduled, the Court finds, to the contrary, that the fault here lies with the agency. Finally, Joziah was only two years old at the time and therefore unable to communicate by phone. Thus, Shirley's situation is comparable to that of the mother in the Matter of Rose Marie M., 94 AD2d 734, 735 [2d Dept 1983] ("The record reveals that the primary reason for appellant's failure to visit her children was financial problems. She also testified at the hearing that she would have visited the children and still wants to visit them. Besides testimony of her financial difficulties, there was also evidence to the fact that she was taking care of her invalid father and that at some point she had a nervous breakdown. Moreover, meaningful communication by means of the telephone and letter writing were also hampered by virtue of the fact that both children are mentally and physically retarded. One of the children cannot speak and neither of them can read. In light of the above, the department of social services did not establish by clear and convincing evidence that appellant's failure to visit her children constituted abandonment").
"A child in foster care who is leaving foster care by reason of attaining 18 years of age or older and who has been in foster care for six months or more may not be discharged from care without being provided with the following, if the child is eligible to receive such document: (1) an official or certified copy of the child's United States birth certificate; (2) social security card issued by the Social Security Administration; (3) health insurance information; (4) copy of the child's medical records in accordance with section 357.3 of this Title; and (5) a driver's license or identification card issued by the State in accordance with the requirements of federal law." 18 NYCRR 430.12[l]
The Social Services Law directs the court to consider whether the agency discouraged the parent's efforts to maintain contact. See Social Services Law 384-b(5)(a). The Court finds that the agency took several steps which had that effect. First, the Court made an explicit order on December 17, 2018 for the agency to obtain the ID Shirley needed to travel and yet the ID was not obtained until March of 2019 even though these legal documents should have been obtained when Shirley was under their care as a foster child. Secondly, the agency initially told Shirley they would not pay for her travel to NYC even though court-ordered to do so on multiple occasions. Thirdly, and most significantly, the agency conditioned Shirley's visit with Joziah on June 11th with her participating FIRST in a goal change conference. Given that Shirley had not seen her son for months and had declined to participate in the conference both in advance and at that time, which was her right, the only reasonable approach would have been to allow the visit first and then, only afterwards, make any continued efforts to hold the conference. Instead, the agency's linking of the two essentially provoked the reaction from Shirley, one that was entirely predictable given the history of this family and the trauma Shirley herself suffered as a child. While the Court does not condone Shirley's behavior, and certainly wishes she had been able to make different choices at times and better manage her emotions during her interactions with caseworkers, the agency is obligated to behave professionally and adhere to the legal standard of not discouraging the efforts of a parent. Although Shirley's efforts may not have been wholly consistent and, at times she allowed her antagonistic feelings towards the agency to interfere with her goal of seeing her son, the Court finds that Shirley's actions in communicating with the agency and her efforts to maintain contact and visit with Joziah both in Florida and New York manifest a clear intention to maintain and continue her parental relationship with her son as required to defeat the cause of action for abandonment under the Family Court Act and Social Services Law.
The Court has expressed concerns throughout this case that the agency's efforts to work with Shirley never sufficiently took into account Shirley's own history as a neglected child who was in foster care at the time she became a mother, and was, herself, inadequately parented. Clearly, Shirley suffered significant trauma from her own mother's abandonment of her with Ms. M moving to Florida when Shirley was pregnant as a teenager. On one court date, Ms. M called into the Court proceeding from Florida where Shirley was present with Joziah, a newborn, in a baby carrier. This was the first contact Ms. M had with Shirley after moving to Florida. Shirley's decision to go to Florida in August 2018 when her mother was dying of kidney failure was a significant showing of maturity on her part in her willingness to reconcile and care for the mother who had left her behind in New York at a time when Shirley clearly needed her.
The Court notes that, during her testimony, Shirley was protective of her now-deceased mother, and minimized Ms. M's neglect of her. However, the Court is aware of this history and takes judicial notice of the neglect finding it entered against Ms. M on November 13, 2014. The decision Shirley made to rise above this difficult history and forgive and care for her mother should have been commended by the agency, and it should have dealt with Shirley more compassionately as she mourned her mother's death. Unfortunately, this is not what the Court witnessed here. While Shirley's behavior often presented a challenge, the agency failed to use trauma-informed approaches to gain Shirley's trust and find a way to engage successfully to help Shirley. Instead, Shirley's relationship with ACS and the foster care agency remains antagonistic to this day, a fact which has presented a significant barrier to reunification even after Shirley relocated back to New York specifically to regain custody of her son. Shirley arrived back in New York City with little family support or, does it seem to this Court, the support of the foster care agency that had been entrusted to care for her as well as her son.
In fact, at a permanency hearing that concluded on January 24, 2018, this Court made a finding of no reasonable efforts due to multiple agency failures to appear in court, have knowledge of court orders and follow up appropriately and a lack of communication between the different agency personnel assigned to the cases of Shirley as a parent and as a subject child.
It took numerous court orders before the agency made the necessary home visits and clearances to allow Shirley to have visits with her son in Ms. S's home, where Shirley is again residing, and the Court continues to believe the agency is often looking to find fault with this young mother rather than support her efforts which, though imperfect, are genuine. This most recent history was not fully laid out in the record at fact-finding, and thus the Court is not considering it as further evidence that the agency discouraged Shirley from visiting her son. The Court makes note of this background not as part of the legal finding here, but in the hope that, on behalf of Shirley and for future teenagers who become parents while they themselves are in foster care, ACS and its agencies will find better strategies to manage what is normal adolescent behavior exacerbated by trauma histories and help young people like Shirley learn to be a parent and prevent the removal of their children.
Conclusion and Transition Planning
Therefore, taken in total, the evidence is not sufficient for the Court to find by a preponderance of the evidence that the Respondent Shirley P neglected the subject child, Joziah, on either of the grounds alleged, as defined by Family Court Act 1012. The petition is thus dismissed with prejudice. Given that Joziah has been in foster care for 3 years—and primarily in the same non-kinship foster home—the Court is cognizant that the transition to his mother's care will likely be emotionally difficult for him.
Since the COVID-19 public health pandemic began in March, in-person visitation has been impossible to date and video communication with such a young child is and has been an inadequate replacement. This decision was originally scheduled for mid-March when the Court was first closed due to the Governor's Executive Order. At that time, Joziah had been having resource-supervised visits with Shirley at Ms. S's home and the Court had envisioned a one month period of weekend visits with therapy for the transition. The Court initially delayed issuing this decision in the hopes that life might return to near normal by now; to the contrary, it is clear that there is no return to normalcy in sight and the Court has concluded that this period of ever increasing mother-child separation needs to end because the longer it continues, the greater the emotional toll upon Joziah's return and the greater the unfairness to Shirley who has not been proven to be neglectful under the law. While a period of visits would still be beneficial, there were questions the Court could not resolve on its own as to whether those visits would be logistically possible or advisable given the mother and foster mother's comfort levels in this public health emergency. Joziah's allergies and asthma places him at greater risk of getting the virus and there is a significant travel distance between his foster home in Brooklyn to Shirley's home with Ms. S in the Bronx. Therefore, the Court informed all counsel of its decision to dismiss the petition in advance of its issuance, on May 14, 2020, at a Skype for Business Conference. The Court asked all counsel to submit proposals for a period of transitioning Joziah from his foster mother to his biological mother in one week that included suggestions for conducting any possible in person visits as well as any existing opportunities for virtual parent-child therapy to assist Joziah's bonding with his mother.
Because of COVID-19 and pursuant to the Governor's orders, NYC Family Court buildings are closed and the courts are operating with only a very limited number of virtual parts that have access to court reporters solely for designated emergency matters. However, judges are able to conduct Skype for Business Conferences on pending matters listed on a virtual chambers calendar to attempt to resolve issues and issue necessary orders which are not recorded but are noted the online court file through UCMS. In this case, these two Skype Video Conferences were attended by the attorneys for ACS, the mother, the AFC and the Catholic Guardian agency as well as the CASA supervisor and, on speaker phone, Shirley and the agency CW Ms. Lawrence. --------
The Court also requested at the conference that Joziah's foster mother, Ms. R, who will also undoubtably find the transition difficult, be guided by the agency in assisting Joziah emotionally in preparing to move to his mother's home. Ms. R has taken excellent care of Joziah, and at times tried to support Shirley in the past, and the Court is hopeful she will remain a supportive presence in both Joziah's and Shirley's lives. In the conference, Shirley stated clearly her desire and intention to maintain a relationship with Ms. R in Joziah's best interests and expressed her appreciation for the care Ms. R has provided her son. Shirley also informed the conference participants that her aunt is immunocompromised and therefore the household, which consists of the two women and Ms. S's five children, has taken extra precautions against the virus with no one outside the family being allowed inside and special care upon the return of any household members from errands in the community. While this conference was not on the record and is not evidence in this hearing, Shirley's comments and suggestions demonstrated the maturity she has gained over the years this case has been pending and further reinforced the Court's confidence that Shirley is ready and able to care for her son and prioritize his needs in the ways every parent must.
The Court received proposed transition plans from all parties. These plans included a discharge memo from Shirley's CASA advocate which included outreach Shirley had already made to obtain medical insurance and a pediatrician for Joziah, an educational plan and a program entitled Comprehensive Therapeutic Services ("CTS") providing parent-child therapy specifically tailored to assist with bonding at a time of reunifications that is near Shirley's home in the Bronx. See Court's Exhibit I. Through CASA, Shirley also listed the various documents she would need once Joziah was in her care. At a second Skype Conference to discuss these plans on May 22nd, Shirley made clear that she was not comfortable with having visits with Joziah in a park or public setting nor did she want him brought to the agency because of the risk of COVID exposure and in light of Joziah's allergies and the recent cases of children becoming ill and even dying due to virus-related illnesses. Unfortunately, the foster mother was not comfortable with the child visiting at Shirley's home and then returning to her because of the number of individuals in that home. Thus, given the health risks, the Court was left with no options for a transition period involving in-person visits that were acceptable to the involved parties. Although this means the transition will be more abrupt than this Court would ideally want, after much careful deliberation and with full knowledge of the facts and history of this case, this Court believes that, given the available options, it is in Joziah's best interests to transition to his mother's home as quickly as possible. It is worth noting that Family Courts are often in the position of ordering the abrupt removal of children from their parents' homes when necessary for their physical and/or emotional well-being. Given the options the Court is faced with during this pandemic, the Court believes that Joziah's emotional health and well-being is best promoted by his immediate return to his mother so that there is no further delay in repairing their bond and re-integrating him into his biological family. The fact that Shirley has reiterated her intention to allow the foster mother to visit and have regular on-going contact with Joziah will help ease this transition.
As a result, the Court is staying this decision until Thursday, May 28th at 5 pm and ordering that Joziah be returned to his mother no later than Friday, May 29th. This period will give Shirley time to make an initial appointment with CTS so that services can begin immediately upon Joziah's return and will allow ACS to obtain a medical clearance and complete any discharge paperwork. ACS is ordered to provide Joziah's birth certificate to Shirley upon his return and process any discharge grant to which she is entitled expeditiously.
Given the understandably high level of emotion experienced by Shirley as she's been eagerly anticipating and desiring her son's return since the Court announced its intended decision two weeks ago, the Court asks that ACS inform all parties and the Court of its intensions regarding any continued stay request as soon as possible. Date: May 26, 2020 ENTER: __________ Hon. Jacqueline B. Deane, JFC