Opinion
No. 2023-50968 Docket No. XXXX
07-25-2023
In the Matter of a Proceeding Under Article 10 of the Family Court Act Y. SS., A Child Under Eighteen Years of Age Alleged to be Neglected by E. SS., Respondent.
Arthur Stever, Esq. (Attorney for Petitioner DSS) Francisco Berry, Esq. (Attorney for Respondent-Mother) Angelica Parado-Abaya, Esq. (Attorney for the Child) Respondent
Unpublished Opinion
Arthur Stever, Esq. (Attorney for Petitioner DSS)
Francisco Berry, Esq. (Attorney for Respondent-Mother)
Angelica Parado-Abaya, Esq. (Attorney for the Child) Respondent
Scott A. Miller, J.
Respondent E. SS. (hereinafter "the mother" or "the Respondent") is the mother of the subject child Y. SS. (date of birth: XX/XX/13). The paternity of the child has never been legally established. On September 4, 2020, the Tompkins County Department of Social Services (hereinafter "the Department" or "the Petitioner") filed a Petition by Order to Show Cause pursuant to Family Court Act Article 10 alleging abuse and neglect of the child by the mother. The Court ordered the temporary removal of the child from the Respondent and placed the child in the care and custody of the Department pending resolution of the proceedings.
A Fact-Finding Hearing was conducted by the Court on February 4, 2021, March 19, 2021, April 2, 2021, and April 27, 2021. The Department was represented by Attorney Arthur Stever. The mother was represented by Attorney Kristine Shaw. Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc., appeared as the Attorney for the Child. On June 7, 2021, this Court issued a Decision and Order in which it determined that the child is a "neglected child" within the meaning of FCA § 1012(f)(i)(B) and that the Respondent mother engaged in conduct and demonstrated a lack of judgment which created an imminent danger of impairment to her daughter. The Court's Decision and Order entered June 7, 2021, is incorporated by reference as if fully set forth herein.
On October 13, 2021, a Dispositional Hearing was held. The Department was represented by Attorney Arthur Stever. The mother was represented by Attorney Francisco Berry. Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc., appeared as the Attorney for the Child. On November 10, 2021, the Court issued a Fact-Finding Decision and Dispositional Order in which it determined that the Petitioner had established by a preponderance of the evidence that presently the Respondent lacks the fitness to regain custody of her daughter and that her complete lack of insight into her neglectful conduct would place the child at a very real and imminent risk of harm should the child be returned to the Respondent. The Court determined that it was in the child's best interests to remain in the care and custody of the Department, placed with her current foster family. The Court placed the Respondent under the supervision of the Department pursuant to FCA § 1057 and imposed a number of orders and conditions on her. The Court's Fact-Finding Decision and Dispositional Order entered November 10, 2021, is incorporated by reference as if fully set forth herein. The Third Department upheld this Court's finding of neglect and dispositional order. (Matter of Y. SS., 211 A.D.3d 1390 (3rd Dept. 2022).
On January 6, 2022, the Department filed a motion pursuant to FCA § 1039-b(b)(6) requesting a finding that reasonable efforts to return the child to the Respondent mother's home are no longer required. On March 11, 2022, Respondent filed an Affirmation in Opposition. This Court, by Decision and Order entered May 20, 2022, ruled that the Department shall not be required to engage in or prove reasonable efforts to return the child to the Respondent's home. The Court's Decision and Order entered May 20, 2022, is incorporated by reference as if fully set forth herein.
On June 15, 2022, the Department filed a Petition for Permanent Neglect alleging that the Respondent had permanently neglected her daughter. A Fact-Finding Hearing was held on March 17, 2023, March 29, 2023, and April 3, 2023. The Department was represented by Attorney Arthur Stever. The mother was represented by Attorney Francisco Berry. Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc., appeared as the Attorney for the Child. This Court, by Decision and Order entered June 6, 2023, ruled that the Respondent failed substantially and continuously or repeatedly to plan for the future of the child although physically and financial able to do so, and as a result, permanently neglected her child. The Court's Decision and Order entered June 6, 2023, is incorporated by reference as if fully set forth herein.
On July 7, 2023, and July 12, 2023, a Dispositional Hearing was held. The Department was represented by Attorney Arthur Stever. The mother was represented by Attorney Francisco Berry. Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc., appeared as the Attorney for the Child. The court heard testimony from the foster mother, a Tompkins County DSS Family Worker, a Chemung County DSS Case Worker, a Tompkins County DSS Case Worker, a friend of the Respondent, and the Respondent. Petitioner's Exhibits 1 through 9 and Respondent's Exhibits 1, 2, 3, 4, and 7 were received into evidence. The Court heard oral summations by counsel on July 12, 2023.
FINDINGS OF FACT
In its Decision and Order entered June 6, 2023, this Court made detailed findings of fact and conclusions of law that from the date of the child's placement on September 4, 2020, through the filing of the permanent neglect petition on June 15, 2022, the Respondent, although physically and financially able to do so, failed to substantially and continuously or repeatedly plan for the future of the child, that she failed to make any meaningful progress towards any of the mandates contained in this Court's Fact-Finding Decision and Dispositional Order entered November 10, 2021 (or any other alternative plan), and that, consequently, the Respondent had permanently neglected her child. The credible testimony and other evidence received at the Dispositional Hearing established that from June 15, 2022, until present, the Respondent has continued to fail to make any meaningful progress towards the mandates of this Court.
The Respondent continues to reside in the same mice-infested home she testified about several months ago during the permanent neglect fact-finding, although this time she claimed the mice have been gone since the old tenants moved out "last year." The Respondent was not credible. The residence remains unsafe, unclean, hazardous, and unfit for a child.
The Respondent, by her own admission, has never provided the Department or the Court with any documentation of legal sources of income aside from several exhibits that were received into evidence at the hearing. The exhibits and credible testimony merely established that: (1) the Respondent contacted Castle Services of Ithaca and received a brief reply; (2) the Respondent earned a total of $219.24 from January 1, 2023, through July 12, 2023, from People Ready Inc.; and (3) the Respondent is currently enrolled in the Hospitality Employment Training Program at the Greater Ithaca Activities Center. These efforts at legal employment are minimal and sporadic at best and certainly do not constitute meaningful progress towards the mandate of the Court.
The Respondent is currently engaged in substance abuse treatment at CASA Trinity. While this involvement is certainly positive, the Court must view this temporary progress through the proper lens of the Respondent's long-term history of substance abuse including numerous relapses after failed attempts at sobriety. It is also imperative to note that over the course of the child's placement, the Respondent regularly evaded unannounced drug screenings, attempted to manipulate at least two screens, tested positive for cocaine on at least two occasions, and tested positive for alcohol on at least one occasion. In this context, the Respondent's current strides do not constitute consistent, meaningful, long-term progress towards the Court mandate.
After attending two counseling sessions at Field of Dreams, the Respondent determined that she wasn't "enjoying" the services there, and she switched to Clinical Social Work and Counseling Services of the Finger Lakes where she has thus far completed a total of three sessions. Given that the Respondent was ordered to obtain a mental health assessment and follow through with all recommended treatment on November 10, 2021, this limited participation in mental health counseling does not constitute meaningful progress towards addressing the issues that led to the child's removal.
The Respondent has had numerous contacts with law enforcement during the child's placement including an arrest for driving while intoxicated and numerous tickets for operating a motor vehicle with an open container of an alcoholic beverage. The Respondent continues to drive even though her driver's license is suspended for failure to pay numerous traffic tickets. The Respondent has failed to abide by the order of this Court to "refrain from any illegal activity which poses a risk of safety of the child."
The Respondent has missed or been late to a staggering number of in-person visits and telephone calls with the child. During the in-person visits that have taken place, the Respondent has repeatedly told the child she would be coming home soon, causing great distress to the child when the Respondent's promises failed to materialize. Due to these issues, the Respondent has failed to progress beyond one hour of supervised visitation with the child per week. In addition, the Respondent has failed to participate in coached visitation as offered to her by the Department. As such, the Respondent has failed to participate and engage with a parenting skills education program and demonstrate the "ability to protectively parent and put the wellbeing and needs of the child before the desires and needs of Respondent" as ordered.
While the Respondent finally acknowledged to the Court - for the first time - that she did in fact neglect her child, this revelation was too little too late, coming nearly three years after the Respondent committed the acts that placed her child at grave risk of harm. Even as the Respondent attempted to acknowledge her neglect of the child, her testimony was replete with qualifications and excuses such as, "I didn't initiate it. I'm just responding to what he's asking me," and "I didn't know he was a pedophile but then I knew when he asked me that." It is also important to note that the Respondent's credibility has suffered greatly after repeatedly testifying dishonestly to this Court.
The child suffered serious and lasting harm from the time she spent in her mother's care. After her placement, the child displayed sexualized behavior wholly inappropriate for her age. The child inquired about pornography when she first came to her foster home. She would engage in doll play that was too sexual and violent for her age. While the child was at first hesitant to bathe in her new home, once the foster parents were able to get her into the bath or shower, the child asked whether they wanted to photograph her, connoting that this was something she had been exposed to regularly in her mother's home. The child also disclosed that she had walked in on the Respondent engaging in sexual intercourse.
By contrast, the child is now in a safe, happy, and healthy home. She has been placed continuously with her certified foster parents since the date of her removal on September 4, 2020. The child is growing and thriving in their care. The child has a strong bond with them. The foster parents are committed to adopting the child if that becomes a legal possibility. Both foster parents are gainfully employed and are in good health. They live in a farmhouse in a rural area of the county. They have a cat, a hamster, and ten chickens that the child enjoys playing with. The child participates in numerous activities including dance classes, piano lessons, bike riding, and hiking. The child has been continuously enrolled in counseling since soon after her placement. The foster parents have been helping the child to maintain a relationship with all seven of her biological siblings. They plan to continue to do so if they become permitted to adopt the child.
CONCLUSIONS OF LAW
"'Following an adjudication of permanent neglect, the sole concern at the dispositional hearing is the best interests of the child and there is no presumption that any particular disposition, including a return of a child to a parent, promotes such interests' [internal citations omitted]. 'Where appropriate, Family Court may issue a suspended judgment to afford the parent a finite period of time within which to become a fit parent with whom the child can be safely reunited' [internal citations omitted]. However, a suspended judgment is warranted 'only when "the parent, under the facts presented, has clearly demonstrated that he or she deserves another opportunity to show that he or she has the ability to be a fit parent"' [internal citations omitted]." Matter of Issac Q., 212 A.D.3d 1049, 1054 (3rd Dept. 2023). "Indeed, no parent is automatically entitled to such 'a grace period' [internal citations omitted], nor is there any presumption for a suspended judgment in a parent's favor [internal citations omitted]; the sole criterion for a suspended judgment is the best interests of the child [internal citations omitted]." In re Carlos R., 63 A.D.3d 1243, 1246 (3rd Dept. 2009).
It is clear that the only disposition that is in the child's best interests is termination of the Respondent's parental rights. Over the course of the child's nearly three-year removal, the Respondent has failed to obtain safe and appropriate housing. She has failed to obtain stable and sufficient legal employment. She has failed to demonstrate long-term, meaningful compliance with both substance abuse treatment and mental health treatment. She has failed to refrain from illegal activity. She has failed to take timely, full, and sincere responsibility for neglecting her child. She has failed to progress beyond one hour of supervised visitation per week due to numerous missed and late visits and telephone calls, as well as inappropriate behavior during visits. She has failed to adequately address the issues leading to the child's removal.
In In re Carlos, Id., the Third Department found that the Family Court appropriately refused to issue a suspended judgment where" as of the time of the dispositional hearing, the mother was only six weeks into a seven-month drug rehabilitation program after her release from jail. She testified to a number of previous failed attempts to overcome her addiction to crack cocaine, and admitted failing to complete some of the treatment programs and relapsing on cocaine even after completing other programs." This is the exact situation here. Though the Respondent is currently engaged in substance abuse treatment, this limited, temporary progress must be viewed through the proper lens of her long-term history of multiple relapses following failed attempts at sobriety, consistent evasion of testing, and repeated manipulations of testing.
In Matter of Leon YY., 206 A.D.3d 1093, 1096 (3rd Dept. 2022), the Third Department held that there was a sound and substantial basis in the record to support the Family Court's finding that termination of the father's parental rights was in the child's best interests where the father "failed to obtain suitable housing" and where his "failure to consistently appear for scheduled visits and parent education sessions and his refusal of other services hindered any ability to progress to unsupervised visits or to demonstrate the capacity to provide appropriate parental care for the child." The Court held, "In short, the father failed to take meaningful steps to correct the conditions that led to the child's removal." Id. This is directly analogous to the case at bar.
Finally, in Matter of Issac Q., supra at 1054, the Third Department upheld the Family Court's termination of the respondent's parental rights where" the child had made significant progress since being removed from the home in April 2018 and was doing well in his current foster care placement. The foster parents were an adoptive resource for the child and were willing to facilitate visitation with his siblings if he remained in their care." Here, as in Matter of Issac Q., the subject child is growing and thriving in the care of her foster parents with whom she has been placed continuously for nearly three years. She is closely bonded to them. They provide fully for her and meet all of her needs. They have helped the child to maintain a relationship with all seven of her biological siblings and will continue to do so. They are committed to adopting her if permitted. There is no question that it is in the child's best interests to achieve permanency with her loving and supportive foster parents. As such it is hereby:
ORDERED that the Respondent's parental rights to the subject child are hereby terminated; and it is further
ORDERED that the guardianship and custody of the child is transferred to the Tompkins County Department of Social Services, an authorized agency, and such guardianship and custody of the child are committed to the authorized agency upon the following terms and conditions: The Tompkins County Department of Social Services will continue placement of the child with her current foster parents and will assist with the goal of adoption by the foster family; and it is further
ORDERED that the Tompkins County Department of Social Services is authorized and empowered to consent to the adoption of the child subject to the order of a Court of competent jurisdiction to which a petition for adoption is submitted without the consent of or further notice to the Respondent, the biological mother to the child; and it is further
ORDERED that the Petitioner herein shall forthwith advise the pre-adoptive foster parents of their right to file an adoption petition in a court of competent jurisdiction and further advise the pre-adoptive foster parents as to all necessary supporting documents; and it is further
ORDERED that a certified copy of this order be filed for recording at the Office of the County Clerk in accordance with the provisions of Section 384-b of the Social Services Law; and it is further
ORDERED that a Permanency Planning Hearing will be held on August 16, 2023, at 9:30 a.m.; and it is further
ORDERED that the Department shall transmit notice of the hearing and a permanency report no later than 14 days in advance of the above date certain to all parties (not including the Respondent whose parental rights have been terminated), attorneys, the Attorney for the Child, and the pre-adoptive parents providing care to the child.