Opinion
No. 2021-51308 No. 37021
04-09-2021
Shawna G., Jack G., Petitioners, v. Joseph S.F., Samantha T., Respondents.
Unpublished Opinion
Rachel E. Tanguay, J.
DECISION ORDER ON MOTION TO DISMISS
Hon. Rachel E. Tanguay, JFC.
On January 25, 2021, Respondent-Mother (Mother) filed a motion to dismiss the custody petition filed by Petitioners, who are maternal Aunt of the subject child, along with her husband (Aunt and Uncle). On February 16, 2021, Aunt and Uncle filed opposition to the motion, and on February 19, 2021, the Mother's reply was submitted. The Attorney for the Child, Fayth, did not file any submissions in connection with the application, which is now deemed fully submitted.
The Mother contends that the Aunt and Uncle lack the appropriate standing to seek custody of the minor child, arguing that there are no "extraordinary circumstances" present to trigger a best interests analysis as required by prevailing law. Aunt and Uncle aver that Mother's substance use was the proximate cause for Fayth being removed from her care in August 2019, and that Fayth's placement with them under the neglect case constitutes an "extended disruption in custody", satisfying the requisite extraordinary circumstances to trigger a best interests determination by this Court. In addition, the Aunt and Uncle claim that Mother has engaged in "persistent neglect" of Fayth by missing visits with Fayth since the child was placed with the Aunt and Uncle, testing positive for substances while enrolled in the Family Treatment Court, and continuing not to have permanent, stable housing for herself and the child. Finally, the Aunt and Uncle contend that the Mother suffers from mental health and substance issues that have been long-standing, having caused her other two older children to live with other care-takers.
RELEVANT FACTUAL BACKGROUND
The Mother consented a finding of neglect before this Court on September 29, 2019. A petition alleging that she neglected the two children in her care (Fayth, the subject child of this custody case, being one of those children) by misusing drugs was filed against Mother on August 14, 2019. On November 20, 2019, the Mother voluntarily entered the Family Treatment Court (FTC) and consented to Fayth being directly placed in the custody of the Aunt and Uncle while she worked on her recovery to regain custody of the child. Mother first appeared in FTC on November 22, 2019 and in early December 2019, she tested positive for substances. With a higher level of treatment being recommended, on January 28, 2020, the Mother voluntarily entered the Lorraine Montenegro treatment center in the Bronx, which is a residential parent-child facility. She had hoped to have Fayth, and her other older child who had been placed with his father as part of the neglect case, returned to her care in the facility.
Mother has a third child, the oldest, who is in the permanent custody of his maternal grandmother pursuant to the consent of the Mother and that child's father.
In March 2020, metropolitan New York became ground zero for the arrival of COVID-19 in the United States, which prompted restrictions throughout the state including a lockdown of the facility and a move by the Court system to only virtual court appearances on essential matters. FTC was not permitted to convene for several months, but the FTC team continued to informally monitor cases and parents' progress during that time. During the pandemic and while in the facility, the Mother continued diligently working on her recovery, and to better learn how to manage and regulate her emotions and reactions to stressors. On June 25, 2020, the Mother was given the opportunity to have the children returned to her care in the facility, but she declined, articulating that the conditions in the facility had deteriorated during the pandemic such as rampant drug use by residents, fights breaking out, and food shortages. There were discussions within the FTC team about moving the Mother out of the program. However, she did not want to leave until she completed the program, because despite the deplorable conditions, she was making tremendous progress in her recovery and wanted to show the team that she could complete the program. However, the Mother stated during FTC sessions that she did not want her children to live there with her in that negative environment, particularly subjecting them to that enormous transition just to have to put them through another transition when she was successfully discharged. Instead, she opted to take them for weekend visits and the FTC team supported that plan given her reasons proffered. She hoped to be discharged soon and able to have the children returned to her once she settled in Rockland County.
Unfortunately, during the pandemic, public transportation options had been curtailed. Fewer buses and trains were operating, and those operating were doing so on reduced schedules. The Mother had no car and limited financial means, so employing taxis and ride-shares, like Uber, was a challenge. The Mother regularly articulated those challenges during FTC sessions and asked the team to assist in coordinating the visits. The Aunt and Uncle claim that visits were inconsistent and missed when Mother was in the program and that this is part of a pattern of the Mother's inconsistent commitment to parenting. Conversely, the Mother had articulated to FTC team each time a visit was compromised what the barriers had been to those visits, primarily rooted in transportation between the Bronx and Rockland County.
By July 2020, Mother had successfully completed the program, but she had no where to go. No family members were willing to take her in and she had insufficient financial means to obtain her own housing. The FTC team began to problem-solve that predicament. The team wanted to get Mother settled somewhere and engaged in an outpatient, aftercare program before returning one or both children to her. However, the temporary shelter was not available to her as a single woman; the children would have to be in her care to enter the family shelter. The FTC Team grappled with this Catch-22 situation. By August 2020, the Mother was reporting in FTC sessions that the conditions at the facility had deteriorated further. New women early in recovery were arriving and many were engaged in use; there was increased tension and conflicts among the residents. She had stated that she was remaining primarily in her room to avoid interaction with residents. The FTC team determined that it was no longer appropriate for the Mother to remain in the program, particularly because she had made tremendous progress and had completed the treatment program. The FTC team, with the intervention of the Commissioner of Social Services, assisted Mother in obtaining temporary housing in a local hotel in Rockland County. In September 2020, the Mother moved to the temporary housing and obtained employment. On September 2, 2020, during an FTC staffing meeting, the FTC team discussed giving Mother substantial unsupported parenting time in the hotel to prepare for a full return of the children. By the end of September, Mother was engaged in outpatient treatment at Samaritan Village. The FTC team was poised to return one or both children to the Mother in temporary housing. Plans were being implemented to return Fayth to the Mother and move them both into the family shelter.
However, in October 2020, the Mother tested positive for THC at a low level and subsequently admitted to having ingested an edible in an attempt to manage her stressors. Around that time, the FTC team also learned that the Mother had resumed a relationship on some level with Fayth's father, who had just come out of jail, and he was refusing to cooperate with DSS. The Mother also had received a sizeable amount of money from a legal settlement and failed to report that information to the FTC Team, which raised concerns about the Mother's lack of transparency, and also raised questions about whether the Mother would still qualify for housing assistance with these new financial resources. These circumstances caused the FTC team to pause the plan to return the children to the Mother. Around that time, Aunt and Uncle filed their petition for permanent custody of Fayth.
Mother continues to reside in temporary, hotel housing and continues in treatment, as well as maintaining her employment. While her parenting time with Fayth was curtailed immediately following her positive test result, after the FTC Team convened to discuss Mother's processing and handling of this positive result, the team ultimately opened up parenting time. While there was a dispute about how much time the Mother should get with Fayth, the Court ordered that there should be overnight time with the Mother and child pending the outcome of this proceeding. The Aunt and Uncle has contended that Mother has missed recent visits, citing COVID exposure concerns. However, the Court notes that it was the Court's decision during an FTC court session in February to suspend a visit because of the Mother complaining of symptoms of illness in open Court. The Court directed the Mother to go for an immediate COVID test and directed that the overnight visit be rescheduled.
On February 23, 2021, the Mother tested positive for THC again on with a laboratory confirmed test; however, a test administered the following day show no traces of THC. The Team convened a meeting and there was a heated debate about the validity of the test, particularly in the face of the Mother's adamant denial of use. The Mother's counsel requested the sample to retest the February 23rd sample, and asked for the laboratory to confirm whether there were any trace amounts below the cutoff level for THC in the February 24th sample. In email correspondence sent to the FTC team, including the Court, the February 24th sample was tested for a cutoff of 10 instead of the usual cutoff of 50, and it remained negative. Moreover, the February 23rd sample, upon retest, showed no THC, so there are now competing drug test results.
On March 6, 2021, the Mother had a confirmed test for ethanol, evidencing the presence of alcohol metabolites in her system. The Mother denies the use of alcohol on or around that date. There is no way to re-test that sample.
On March 16, 2021, the Mother initially tested positive for THC via an oral swab, but the sample tested negative on the confirmatory test.
RELEVANT LAW
Aunt and Uncle argue that Mother is unfit and that she has engaged in "persistent neglect" as evidenced by the events that lead to the neglect petition being filed, her subsequent misuse of substances which prompted a referral to an inpatient program, her missed visits while in program, her mental health challenges, her lack of stable housing, and recent substance use. They also claim that the child has had an extended disruption in custody from her Mother, residing in their home pursuant to the neglect matter since August 2019.
"A biological parent has a right to the care and custody of a child, superior to that of others, unless the parent has abandoned that right or is proven unfit to assume the duties and privileges of parenthood, even though the State perhaps could find 'better' parents." In re Michael B., 80 N.Y.2d 299, 309, 604 N.E.2d 122, 127, 590 N.Y.S.2d 60, 65 (1992). "Parents in temporary crisis are encouraged to voluntarily place their children in foster care without fear that they will thereby forfeit their parental rights. The State's first obligation is to help the family with services to prevent its break-up, or to reunite the family if the child is out of the home. While a child is in foster care, the State must use diligent efforts to strengthen the relationship between parent and child, and work with the parent to regain custody." Id. (citations omitted). Here, the Mother agreed for Fayth to be placed outside of her custody as part of her child welfare case so that she could get the help she needed to recover. The FTC, including the Agency, has worked diligently with the Mother to plan for Fayth's return to her care. After the Mother had one lapse in October 2020 and tested positive for THC, after remaining abstinent for ten months, the Aunt and Uncle filed for custody. "In a child custody dispute between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances." Linda S.M. v. Demetrius W., 160 A.D.3d 860, 861, 74 N.Y.S.3d 338, 340 (2d Dept. 2018)(citing Bennett v. Jeffreys, 40 N.Y.2d 543, 546-48, 356 N.E.2d 277, 387 N.Y.S.2d 821 (1976)(other citations omitted). "The nonparent has the burden of proving that extraordinary circumstances exist such that the parent has relinquished her or his superior right to custody." Id. (citing Jamison v. Britton, 141 A.D.3d 522, 524, 35 N.Y.S.3d 256, 258 (2d Dept. 2016)(other citations omitted). "In the absence of a showing of extraordinary circumstances, no inquiry into the best interests of the child is triggered." Id. (citations omitted).
Turning first to the concept of an "extended disruption of custody" as a basis for a finding of extraordinary circumstances, the Aunt and Uncle contend that the Fayth being out of the Mother's care for a continuous period of almost nineteen (19) months (August 2019 to the present) constitutes an "extended disruption of custody". Pursuant to D.R.L. § 72(2)(b), an
"extended disruption of custody" shall include, but not be limited to, a prolonged separation of the respondent parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents, provided, however, that the court may find that extraordinary circumstances exist should the prolonged separation have lasted for less than twenty-four months.
While the petitioners in this case are not grandparents, so that statute does not directly apply, the Court notes that the statutory language is instructive in guiding the Court as to a determination of what an "extended disruption of custody" means in the instant context. Thus, a twenty-four month continuous period of separation is not absolutely required to draw that legal conclusion, but it is the presumed statutory benchmark unless the Court were to find otherwise. Moreover, the parent had to "voluntarily relinquish care", which the Court of Appeals has addressed by stating that "where a period of separation is attributable to the parent's efforts to regain custody lawfully, that separation is entitled to little, if any, consideration." Dickson v. Lascaris, 53 N.Y.2d 204, 209-210, 423 N.E.2d 361, 364, 440 N.Y.S.2d 884, 887 (1981). In this case, as demonstrated by Mother's ongoing actions in seeking to address her underlying issues since the moment of the removal of Fayth from her case, "the separation was not the result of the mother's lack of interest or effort." Angela F. v. St. Lawrence County Dept. of Social Servs., 146 A.D.3d 1243, 1247, 45 N.Y.S.3d 691, 694 (3d Dept. 2017). "[W]here virtually all the separation between parent and child occurred during the natural mother's attempts to regain custody, the separation does not amount to an extraordinary circumstance on a level with unfitness, abandonment, persistent neglect or other gross misconduct or grievous cause. Indeed, the courts may not deny [the natural parent's] persistent demands for custody simply because it took so long. In re Adoption of Male Infant L., 61 N.Y.2d 420, 429, 462 N.E.2d 1165, 1170, 474 N.Y.S.2d 447, 452 (1984)(quotations marks and citations omitted)(some brackets omitted). Accordingly, the Court cannot conclude that the 19-month separation of Fayth from the Mother, while the Mother was consistently engaging in efforts to regain custody lawfully, constitutes an "extended period of disruption."
Now turning to the argument that extraordinary circumstances exist because the Mother persistently neglected the child, the Aunt and Uncle have made certain arguments relating to established, uncontroverted facts, e.g. that Mother missed visits with the child when she was in her residential treatment facility, and that the Mother has certain mental/emotional challenges that have required support. Firstly, as regards the missed visits, Aunt and Uncle argue that this demonstrates a pattern of poor planning when it comes to parenting. However, the fact that Mother missed visits was an ongoing subject of discussion in open Court during FTC sessions, with Department of Social Services, the treatment facility and Attorneys for all sides participating in those discussions. At no point in those on-the-record conversations was blame for missed visits placed upon the Mother, as the FTC team recognized the immense challenges the Mother faced in coordinating visits with two children, living in two different homes in Rockland County, when she was in a facility in the Bronx and reliant on public transportation during a global pandemic.
Secondly, the Aunt and Uncle argue that the Mother has mental health issues and substance use issues that are long-standing, that had caused her to lose custody of an older child, as well as the older sibling of Fayth who was also a subject child of the recent neglect proceedings. The Court notes that the Mother's oldest child is in the permanent custody of the maternal grandmother, as both the Mother and that child's father struggled with substance use issues that prompted them to consent to the maternal grandmother taking custody of that child a few years ago. Again, there is no factual dispute there, nor is there a dispute that the Mother has had to confront mental health and emotional issues in her recovery, having engaged in treatment, counseling and dialectic behavioral therapy through her work in FTC to address those issues. Again, these facts are not in dispute.
However, the Court notes that there are other disputed, triable issues of fact relating to the claims of persistent neglect for which the Court may need a hearing. Moskowitz v. Moskowitz, 128 A.D.3d 1070, 9 N.Y.S.3d 674 (2d Dept. 2015). Aunt and Uncle argue that the Mother's positive drug results in late 2019 and the one in October 2020 evidence that she continues to neglect her children. Since the filing of the motion, additional contested positive drug test results have emerged. There are differing opinions about whether the Mother used marijuana again in February 2021 and consumed alcohol in March 2021; for February, there are competing drug test results for the same sample, and for March, there is no viable means for the Mother to demand a re-test of that sample in the wake of her steadfast denial of any use. Thus, there are definite questions of fact as to whether there was one, two or three separate occasions of substance use by the Mother since October 2020. For the sake of this legal analysis, the Court will assuming arguendo that all of the positive drug results, totaling 3 in a six month period, are valid. Therefore, the issue becomes whether that level of substance use meets the legal threshold of "persistent neglect" as against all of the other established facts set forth herein.
The fact that a parent's child has been removed from his or her care within the context of a neglect matter does not automatically mean that a child has been the victim of persistent neglect. "[A]lthough the initial relinquishment of custody was with the natural parent's consent, the separation [itself] between the natural parent and the child does not rise to the level of an extraordinary circumstance triggering a best interests inquiry." Alfredo S. v. Nassau Cty. Dep't of Soc. Servs., 172 A.D.2d 528, 530, 568 N.Y.S.2d 123, 125 (2d Dept. 1991)(brackets added). See Linda S.M. v. Demetrius W., 160 A.D.3d 860, 860, 74 N.Y.S.2d 338, 339 (2d Dept. 2018)(holding that the "the mother had not surrendered or abandoned the children, as she consistently visited them and planned for their return while they were in foster care" and that "mother's compliance with ACS's service plan and completion of the terms of the ACD demonstrated that she had addressed the alleged lapses in parental judgment"). In Burton v. Barrett, 104 A.D.3d 1084, 1086, 961 N.Y.S.2d 610, 612 (3d Dept. 2013), a four-year old child became the subject of a contested custody case between the paternal grandmother and mother. The father, when the child was three, was awarded primary custody of the child, but one year later died by suicide. The grandmother sought custody, claiming extraordinary circumstances existed to give her standing. The Third Department disagreed with the grandmother's position, stating that:
the mother regularly and consistently exercised her visitation with the child.... While the evidence established that the mother has had a number of residences, lived at times with unsuitable companions and admittedly used alcohol and drugs in the past, she has not been the subject of any abuse or neglect proceeding and, although her youth and lack of maturity led to lapses in parental judgment, it is equally clear that she has since matured and taken positive steps to address and resolve those shortcomings.Id. (ellipses and emphases added). While the obvious distinction here is that while the Mother in the instant case was the subject a neglect proceedings relating to her drug use, she nonetheless has taken significant, admirable steps to address her "shortcomings" and to address behaviors and choices that would lead to further "lapses in parental judgment". The sticking point, however, is whether the Mother is currently misusing substances. If the Court were to become convinced at a hearing that the Mother is still using marijuana and alcohol, albeit infrequently, this use is relevant to whether there has been "persistent neglect". The positive drug test results have impacted the Court's and the agency's ability to return Fayth to the Mother sooner. Without Fayth in her care, the Mother has been unable to get a real foothold in securing more stable temporary housing, such as the family shelter, with would be a step towards securing more permanent housing. Right now, the Mother remains in temporary housing, residing in a hotel. The Court will have to determine whether the Mother's current somewhat stalled situation in achieving more stability is the direct result of the alleged and apparent lapses in her recovery. Conversely, if the Mother is able to convince the Court that these last two alleged uses are not sufficiently supported by competent evidence, then the Court may in fact find that the one use December 2019 and one THC positive in October 2020, coupled with the other challenges for which the Mother has been actively working in addressing, are insufficient to establish persistent neglect. In that case, the petition of the Aunt and Uncle would be dismissed for failure to establish extraordinary circumstances.
Thus, the Court is constrained at this juncture to deny the Mother's application to dismiss the custody petition of the Aunt and Uncle. However, all parties should be prepared to convene a evidentiary hearing on the issue of whether those two drug test results are valid and whether the Mother in fact used substances on or about those two dates in 2021, the pivotal issue in whether there has been "persistent neglect" and thus, extraordinary circumstances.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.