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MATTER OF G.R. and J.R.
The children who are the subject of this termination of parental rights proceeding are G.R. (born on XX/XX/XXXX) and J.R. (born on X/XX/XXXX). The Respondents are T.R. (hereinafter referred to as ‘mother’) and J.R. (hereinafter referred to as ‘father’).
On February 6, 2018 this Court entered a Decision and Order on Fact Finding adjudicating the minor children subject to this petition as having been permanently neglected by the mother and father and scheduled a dispositional hearing.
On September 28, 2017, T.W., the maternal uncle of the children, and J.D. filed a petition for custody and visitation of the children pursuant to Article 6 of the Family Court Act. The Court will consider the application for custody as part of the dispositional hearing of the termination of parental rights petition in making a determination as to the children's best interests. (Matter of Karen A.O. v. Child Protective Servs., 6 AD3d 1100; In the Matter of Carolyn S. v. Tompkins County Dept. of Social Servs., 80 AD3d 1087)
SUMMARY OF TESTIMONY
Mr. K.H. testified that he is a caseworker employed by the Onondaga County Department of Children and Family Services (hereinafter referred to as the ‘County’). Mr. H. testified that he currently is and has been the caseworker assigned to the R. family since June 24, 2015.
Mr. H. testified that G. and J. have been placed together in the same foster home after being removed from the mother's care in July of 2015.
Mr. H. stated that the father is a quadriplegic, resides at the V.D. Center for Rehabilitation and Nursing and has supervised visitation with the children on a bi-weekly basis. Mr. H. stated the father requires twenty-four hour nursing care and he has not received any documentation indicating that the father's physical condition will improve. Mr. H. testified the father has not developed a viable long-term plan for the children's care or future.
Mr. H. testified that on September 30, 2016 the mother engaged in a supervised visitation program with the children at the F.P. and was subsequently discharged in August of 2017 due to her incarceration.
Mr. H. stated that upon the mother being discharged from the F.P. that he would supervise the visitation between the mother and children. Mr. H. further testified that based upon his observations made during the supervised visitation sessions that he had ongoing concerns relative to the mother's parenting abilities as she would consistently seek input on how to discipline the children in an appropriate manner.
Mr. H. also testified the mother was sentenced to probation for three years as a result of charges involving Endangering the Welfare of a Child (involving the child J.) and a separate incident involving animal cruelty.
The Court received into evidence the certified police records of the mother's acts and omissions that resulted in her criminal charges of Animal Cruelty - Failure to Provide Proper Sustenance (2 Counts) and Animal Cruelty - Improper Confinement (1 Count). (Petitioner's Exhibit No.3). The Court also received into evidence certified records from the Onondaga County Probation Department (Petitioner's Exhibit # 5) which contained the arrest report which resulted in criminal charges of Endangering the Welfare of a Child being brought against the mother.
The Court will note that as a result of such charges the mother was found guilty of Endangering the Welfare of a Child in violation of Penal Law § 260.10, served a thirty day period of incarceration and sentenced to a term of three years probation to expire on February 23, 2019. (Petitioner's Exhibit # 5)
Mr. H. testified that on July 17, 2017 the mother was also arrested for possession of synthetic marihuana and hindering prosecution due to harboring her brother, R.G., who was a fugitive evading and fleeing law enforcement as the result of criminal activity. The Court will note, that contained within the mother's voluntary affidavit (Petitioner's Exhibit # 2) the mother acknowledged being untruthful with authorities as to her brother's whereabouts. Furthermore, the police report sets forth that a “burnt cigar wrapper containing synthetic marihuana and two synthetic marihuana packages” were located within the mother's residence.
On August 2, 2017 a violation of probation petition was filed against the mother as a result of the criminal charges stemming from the July 17, 2017 incident. (Petitioner's Exhibit # 5) Mr. H. testified that upon the mother making an admission to violating her probation terms she was thereafter restored to criminal probation. The Court will note that in the violation petition received into evidence (Petitioner's Exhibit # 5), incarceration was initially being sought due to continual “poor choices” being made by the mother.
Mr. H. testified the mother was engaged in a substance abuse treatment program at C.P. from September 30, 2016 through August of 2017 and was thereafter discharged due to her arrest and subsequent incarceration. Mr. H. stated the mother subsequently enrolled in a treatment program at H.B.S. in September of 2017. While enrolled she tested positive for cocaine on February 20, 2018.
Mr. H. testified that he would conduct home visits at the mother's residence on a monthly basis. Mr. H. testified that he made an ‘announced’ home visit on March 13, 2018 and observed the home to be cluttered, with trash in the hallways, and lacking in appropriate sleeping arrangements for the children. Mr. H. further testified that he observed similar conditions on prior occasions. The Court received a series of photographs taken by Mr. H. that reflect the condition of the mother's residence on March 13, 2018. (Petitioner's Exhibits # 4(1-4) ) Mr. H. further testified that pursuant to the terms and conditions of the mother's criminal probation she is not permitted to own or possess any animals.
Mr. H. testified that he is requesting the mother and father's parental rights be terminated and the children be freed for adoption as they have been in foster care for nearly three years. Mr. H. further testified that a suspended judgment would not be appropriate under the circumstances as the mother has been in ‘trouble’ with the law, tested positive for illegal substances, her current residence is not appropriate for the children and she continues to require assistance to properly parent the children during supervised visitation.
Mr. H. testified the father is unable to care for the children, has not developed a plan for the future of the children and has not presented any information indicating he would have the ability to care for the children in the future. Mr. H. further testified the children are well cared for in their current placement, they have developed a close relationship with the foster parents and all of their needs are being met. Mr. H. also stated he visits the children at the foster parent's home on a monthly basis.
Mr. H. testified that the foster parents ensure J. attends counseling sessions to address her post traumatic stress disorder (PTSD) and G. receives physical therapy, speech therapy and occupational therapy as recommended. Mr. H. stated that the foster parents desire to adopt the children, which the County supports.
Mr. H. also testified that he was not familiar with Mr. W. or Ms. D. prior to their filing of a petition for custody of J. and G.. Mr. H. stated that he is unaware if Mr. W. and Ms. D. are a suitable placement resource as neither party has contacted him to allow for a home visit to be conducted.
On cross-examination by the mother's attorney, Mr. H. stated the mother has completed two parenting classes, domestic violence services and regularly attends the children's medical appointments. Mr. H. also stated the mother successfully graduated from a substance abuse treatment program in 2016. Mr. H. testified that upon commencement of the mother's visitation the children are excited to see the mother. Mr. H. further testified he has not received updated reports pertaining to the mother's mental health counseling in eight months and she continues to struggle with issues related to anxiety.
Mr. H. also testified the mother has two additional biological children that have been adopted by the same foster parents with whom G. and J. are placed. Mr. H. stated that one of the children, K., no longer resides with the foster parents due to the child's mental health and behavioral issues. Mr. H. stated an incident occurred at the foster parent's home whereupon the child G. smeared feces on the wall and that this incident was not related to the child's placement with the current foster parents.
On cross-examination by the father's attorney, Mr. H. testified the mother has attended scheduled visitation with the children, obtained a psychological examination as directed by the Court but has not “stayed sober”. Mr. H. testified that the only service requested by the father was continued supervised visitation with the children. Mr. H. further testified that a suspended judgment would not be appropriate as the mother has not sufficiently progressed in her mental health and substance abuse treatment.
On cross-examination by the attorney for the foster parents, Mr. H. testified the foster parents are cooperative in arranging all medical appointments for the children and ensure the children receive proper dental/eye care. Upon being placed in their care, the foster parents appropriately addressed a physical growth issue G. suffered and J.'s behavioral issues have improved.
On cross-examination by the Attorney for the Children, Mr. H. stated the children are very bonded with the foster parents and are ‘very comfortable’ in foster care.
On re-cross examination by the mother's attorney, Mr. H. testified a parent aide referral had not been made for the mother as the children were placed outside of the mother's home.
The Court finds K.H.'s testimony to be very detailed, thorough as well as being extremely credible and reliable.
Ms. B.H. testified that she is employed by the Onondaga County Department of Children and Family Services as a permanency program supervisor and occasionally will supervise visits between parents and children. Ms. H. testified that on December 27, 2017 she supervised a visit between the children and mother. Ms. H. stated the mother brought a toilet training chair for the children to utilize during visitation which the mother indicated would allow for her to spend additional time with the children. Ms. H. testified that she explained to the mother that the use of the training chair in the area where supervised visitation was occurring would not be appropriate or hygienic.
On cross-examination by the attorney for the mother, Ms. H. testified that she supervised visits on December 27, 2017 and January 3, 2018 and the visitation sessions were “ok”.
The Court finds Ms. H.'s testimony to be very credible, reliable, and consistent.
Ms. L.D. testified that she is a permanency caseworker for the Onondaga County Department of Children and Family Services and is a co-worker of Mr. H. Ms. D. testified that she supervised the mother's visitation on August 2, 2017 and that during the visit the mother appeared to be under the influence of “drugs” as her pupils were dilated and she was “jumpy”. Ms. D. further testified that she observed approximately five pill bottles contained in the mother's tote bag. She stated the mother did not provide a consistent explanation as to what, if any, condition the medication was for.
On cross-examination by the attorney for the mother, Ms. D. testified that she was not aware of any medications the mother was prescribed at the time of the supervised visit and did not recall the name of the pills contained within the bottles she observed.
The Court finds Ms. D.'s testimony to be very credible, reliable and sincere.
The attorney for the mother called Ms. B.Z., who testified that she is employed as a teacher by the C.C. School District and as an adjunct professor at C. College. Ms. Z. testified she is the director of a local “Animal Task Force” which hosts an educational program designed to assist with and bring awareness to individuals about animal cruelty. Ms. Z. stated that Ms. R. had attended and graduated from one of the animal task force programs.
On cross-examination by the attorney for the County, Ms. Z. testified that she was aware the mother had previously surrendered three dogs to law enforcement. Ms. Z. also stated the mother was remorseful for her actions which led to the animals being removed from her care. On cross-examination by the Attorney for the Children, Ms. Z. stated that the mother disclosed the animals were removed from her care due to a lack of food and water being provided to them.
The Court finds Ms. Z.'s testimony to be credible, reliable and informative.
Mr. G. M, a psychotherapist employed by C.C., testified that he works with parents who suffer from mental health issues. Mr. M. further stated that he has counseled the mother since September 30, 2016. He stated that the goals which have been established for the mother include; recognizing the cycles of domestic violence, addressing anger management issues and improving communication skills.
Mr. M. testified that upon the mother becoming agitated she suffers from ‘disregulation’ which results in the mother crying, use of a loud voice and episodes of insomnia. Mr. M. stated that he has recommended weekly counseling for the mother to address her underlying issues and breathing exercises to reduce stress. He believes the mother has developed the necessary parenting skills to allow for her children to be safely returned to her care.
On cross-examination by the attorney for the foster parents, Mr. M. testified that the mother continues to suffer from post traumatic stress disorder and that she tested positive for cocaine on one occasion this year.
On cross-examination by the Attorney for the Child, Mr. M. testified that he had concerns pertaining to the mother's positive drug screen and what effect the results would have upon the potential return of the children to her care.
On re-direct examination, Mr. M. testified that the mother continues to manage her bi-polar disorder and that she controls her anger “most of the time”.
The Court finds Mr. M.'s testimony to be very credible and reliable.
Dr. S. R. testified, upon stipulation of counsel for the parties, as an expert witness. Dr. R. testified that she practices in the area of adult psychiatry and treats patients who suffer from bi-polar disorder, schizophrenia, psychosis and obsessive compulsive disorder.
Dr. R. testified that she has been treating the mother for the past fourteen years. Dr. R. stated that during this time the mother has never missed an appointment and complies with any recommendations made. Dr. R. further testified that Ms. R. was devastated upon the removal of the children from her care. Dr. R. testified that the mother's positive drug screen, earlier this year, may have been caused by antibiotics which were prescribed by a doctor. Dr. R. further testified that she has never observed the mother under the influence of illegal substances, she has made progress with her mental health issues, and is capable of parenting her two children.
On cross-examination by the attorney for the County, Dr. R. stated that upon the mother visiting her office she has brought a mechanical dog as she is prohibiting from owning a dog pursuant to the terms and conditions of her probation. Dr. R. testified that the mother was prescribed a ten day supply of amoxicillin on December 11, 2017 by the mother's medical provider and is aware the mother tested positive for cocaine on February 20, 2018.
On cross-examination by the attorney for the foster parents, Dr. R. stated that her testimony may be ‘tainted’ due to the long history that she has had with the mother but it is accurate and truthful. Dr. R. also stated that she sees strengths in the mother that no one else does.
The Court finds Dr. R.'s testimony very professional in tone and tenor and generally credible.
Mr. C. W. testified that he has been employed by the Onondaga County Department of Children and Family Services for eighteen years and is currently a permanency supervisor. Mr. W. testified that the children's foster parents previously adopted a child named K. who is the mother's biological daughter. Mr. W. testified that K. was voluntarily placed with the Onondaga County Department of Children and Family Services by the foster parents from February 2016 through June of 2016. Mr. W. testified that he was aware K. suffers from mental health issues. Mr. W. stated that prior to the voluntary placement an investigation was conducted by the department which resulted in an ‘indicated’ report against the foster parents.
On cross-examination by the attorney for the County, Mr. W. stated there are no concerns regarding the children subject to this petition continuing to reside with the current foster parents.
The Court finds Mr. W.'s testimony extremely credible, reliable, and insightful.
Mr. K. O. testified that he is employed by the Hiscock Legal Aid Society as a process server. Mr. O. testified that he served a subpoena, pertaining to the proceeding herein, upon the foster father and also sought to serve the foster mother with a subpoena. Mr. O. stated that upon inquiring as to the foster mother's whereabouts the foster father stated that she no longer resides at the residence.
The Court finds Mr. O.'s testimony credible but very limited as to relevancy.
Ms. T.R. testified that she is the biological mother of J. and G., that she has a strong relationship with them and has a large support network consisting of services providers and family. Ms. R. testified that she relies upon social security insurance benefits as well as a derivative social security disability benefit for financial support. Ms. R. stated that she has taken responsibility for the removal of the children from her home and since such time has voluntarily completed parenting classes, an animal cruelty class and substance abuse treatment. Ms. R. also testified that prior to the children's removal her boyfriend “abused” her however, she did not believe he would harm the children. Ms. R. stated she has subsequently participated in domestic violence services through V.H.
Ms. R. testified that she has been “clean” since September 7, 2016 and denies using any illegal substances since that time. Ms. R. further testified that she suffers from post traumatic stress disorder, bi-polar disorder and anxiety. Ms. R. testified that she is very attached to her daughters and should be afforded a ‘second chance’ due to her ability to care for them after completing several programs and Court ordered services. Ms. R. testified she has resided in the same residence for the past two and half years, is currently seeking supportive housing and has the financial means necessary to care for the children. Ms. R. testified that her biological daughter K. recently contacted her and raised safety concerns relative to the children's foster home. Her daughter claimed that the foster father ‘touched her’ and the remaining children in the home should be removed.
Ms. R. stated that in August of 2017 she was sentenced to three years probation and the terms and conditions of probation included a provision that she can not own a dog. Ms. R. further stated that she has never diluted her urine for the purposes of passing a drug test.
The Court will note that Ms. R. testified extensively as to her parenting time with the children which occurred prior to the underlying fact finding hearing on permanent neglect.
Ms. R. testified that G. was diagnosed with ‘failure to thrive’ while being placed in foster care and has been ‘coached’ by the foster parents. Ms. R. further testified that J. has made racist comments while in the foster parent's care and her permission was not obtained prior to the children appearing on a television show. Ms. R. testified that in the event that her parental rights are terminated that custody of the children should be granted to her brother, T.W., and his fiancé, J.D. as the children would be “happy and safe” with them.
On cross-examination by the attorney for the County, Ms. R. stated that her two biological daughters, not subject to this proceeding, were also adjudicated to have been neglected upon her admission to using illegal substances and one of the two children was born with a positive toxicology screen.
The Court took judicial notice of the prior neglect adjudications under NN-XXX-XXX-08 and will note the children were placed in the same foster home as G. and J. Ms. R. stated that when a termination of parental rights petition was filed she surrendered her rights to both of the children.
Ms. R. testified that she completed a substance abuse program through C.P. and subsequently tested positive for opiates on February 16, 2016. Ms. R. also admitted to her probation officer that she used SPIKE in May and June of 2016. Ms. R. testified to testing positive for SPIKE on September 6, 2016 and on February 20, 2018 she had a positive test for an illegal substance which she disputes. Ms. R. further testified that she continues to be engaged in substance abuse treatment.
Ms. R. stated that her brother and his fiancé, who are seeking custody, have not seen the children since they have been removed from her care.
On cross-examination by the attorney for the father, Ms. R. testified that she needed to continue utilizing suboxone due to her substance abuse history. Ms. R. stated that she was due to be discharged from a treatment program at C.P. on April 1, 2018. However, her positive drug screen for cocaine prevented her discharge. Ms. R. stated that the results of the positive drug screen were inaccurate.
The Court took judicial notice of the prior neglect proceedings and adjudications, judicial surrenders and graduation from the Family Treatment Court program by the mother.
On cross-examination by the attorney for the foster parents, Ms. R. testified that she is prescribed topamax, invega and propranolol for anxiety, and keppra for seizures. Ms. R. testified that she was evicted from her previous residence on H. Street as a result of her ex-boyfriend keeping dogs on the property. Ms. R. further testified that she then resided at an other apartment. Ms. R. testified that prior to the children being removed from her care, J. witnessed incidents of domestic violence between her and her boyfriend and that G. overheard these arguments. Ms. R. testified that she is currently serving a term of three years probation due to an incident in August of 2017 whereby she pled guilty to Hindering Prosecution in the 3rd Degree.
On cross-examination by the attorney for Mr. W., Ms. R. stated that she has not unpacked various belongings since moving into her current residence as she is in the process of seeking other living arrangements.
On cross-examination by the Attorney for the Child, Ms. R. stated that she has discussed family reunification with her daughter K. and her long term plan is to have all three children reside with her.
On re-direct examination, Ms. R. testified that she voluntarily submitted to an additional drug test on April 24, 2018 through St. J.'s Hospital (Respondent 1 Exhibit (qq) ) after having a positive drug screen administered by her substance abuse treatment provider. Ms. R. also testified that upon being arrested for possessing SPIKE in August of 2017 she voluntarily submitted to a drug test in an effort to demonstrate the she had not abused any illegal substances and that the substance belonged to another individual. Ms. R. stated that the results of the voluntary drug test were negative.
Ms. R. testified that the charges involving animal cruelty brought against her were the result of her “boyfriend's” treatment of animals. Ms. R. stated that she currently owns a therapeutic “robotic” dog. Ms. R. stated that she is seeking the return of J. and G. and thereafter will allow K. to return to her home. Ms. R. further testified that upon reunification she will engage in family counseling with the children.
The Court finds Ms. R.'s testimony to be thorough and credible in portions but also very self-serving and lacking in credibility in substantial portions. The Court notes that the mother's overall general demeanor lacked expression while testifying with periods of verbal defensiveness and argumentativeness while being crossed examined.
Mr. R. testified that due to a motorcycle accident in 2008 he resides at the V. D. Nursing Center and is confined to a bed for the majority of each day. Mr. R. stated that he has supervised visits with the children every other week at the nursing home where he resides. Mr. R. stated that the children would be safe residing with the mother and that supportive housing would be beneficial for the family. Mr. R. further testified that Mr. W. is a “good guy” and supports his application for custody as he would provide structure for the children.
On cross examination by the attorney for the mother, Mr. R. stated the mother has the financial resources to care for the children and that she has refrained from using illegal substances since September of 2016.
The Court finds Mr. R.'s testimony to be generally credible. However, his testimony was in substantial portions a repetition of claims made by the mother and lacks insight as to the day to day needs of the children.
Foster Parent's Witnesses
The attorney for the foster parents called Mr. L.C. as a witness and stated he has resided with his wife for the past thirty-eight years. Mr. C. testified that the children that reside in the home are the two children subject to this proceeding, J. and G., along with their biological sister N. and his two biological children H. and D.
Mr. C. further testified that his home consists of two levels, G. and J. share a bedroom and that N. and H. share a separate bedroom. The girls share one bathroom while his son D. uses a different bathroom. He and his wife ‘team up’ in order to ensure the children are prepared for school each day and a daily schedule is adhered to. Mr. C. stated that he rises at six-thirty in the morning when school is in session and drives J. and N. to school. Upon returning home he then gets G. on the school bus. Upon the children returning home from school each day they have a snack, complete homework assignments, read for approximately a half hour followed by play time. Mr. C. testified that each evening the family has dinner together followed by a family game.
Mr. C. testified G. is enrolled in “E.Y.W.”, which is a special education pre-school where she receives speech therapy and occupational therapy. J. attends the B. to H. Program during her regular school day and also receives one-on-one teaching instruction. Mr. C. further stated that G. has an Individual Education Plan and that during the first year J. was placed outside of the mother's home she soiled her pants three times which predicated counseling being initiated. Mr. C. testified that the mother regularly sends cards to the children via regular mail, which are then displayed in the home and eventually stored. He stated that he is not familiar with Mr. W., the maternal uncle, or Ms. D. Neither of them have contacted him to arrange for any visitation nor have they ever attended a school event.
Mr. C. testified that on weekends the children play, attend church, and during the summer months the family enjoys camping together. Mr. C. further testified the family enjoys vacationing in Myrtle Beach and two years ago went to Disney World. Mr. C. stated that he loves J. and G. and desires for them to be successful.
On cross-examination by the attorney for the mother, Mr. C. stated he is sixty-three years old and has been retired from the cabinetry business since 2008 due to an accident which occurred during the course of his employment. Mr. C. stated that he receives social security disability as a result of the injuries sustained. Mr. C. testified that when G. resided in his home corporal punishment was not utilized as a form of punishment. Mr. C. stated that it was necessary for the family to develop a ‘safety plan’ when K. resided in the home due to her outbursts and unwarranted verbal attacks. Mr. C. stated that K. suffers from mental health issues and that inpatient treatment at H. Psychiatric Center for anger management and other psychiatric treatment was necessary.
Mr. C. stated that K. vacated the family residence in November of 2016, returned after Christmas and a voluntary placement proceeding was concluded in February of 2017. Mr. C. further testified the child has not returned to the home since then. Mr. C. stated that Ms. T.C., a family friend, has custody of K. and sibling visitation is arranged two times per month.
Mr. C. testified that on two separate occasions he contacted the F.P. regarding concerns he had about the mother's visits with G. and J. Mr. C. further testified that he has not interrogated or questioned them pertaining to the parenting time with their mother. Mr. C. further testified that J. made a racist comment at school but he was not aware of the circumstances that predicated the comment. Mr. C. testified that he was unaware of the F.P. reports indicating the children had bite marks on them nor how the children sustained slight bruises. He also stated that he and his wife consulted with a psychologist regarding G. smearing feces on the wall.
On cross-examination by the attorney for the father, Mr. C. testified that he does not feel overwhelmed by the responsibilities associated with caring for J. and G. He also stated that he and his wife are willing to adopt the children if they are freed by the Court. He believes that adoption would be in the children's best interest.
On cross-examination by the maternal uncle's attorney, Mr. C. stated that his wife is sixty years old and despite two knee replacements still is able to assist with parenting the children.
On cross-examination by the Attorney for the Children, Mr. C. stated that the children have been with him and Mrs. C. for almost three years. J. struggles with trauma and her sister G. struggles with PTSD and trauma but have flourished since being placed in his home. G. receives speech therapy since being placed in his home and J. attends counseling through the B. Center.
On re-cross examination by the mother's attorney, Mr. C. stated that N. is not aware that G. and J. are her biological sisters and that after consultation with a professional it was agreed that this information would be disclosed to her at an appropriate time.
The Court finds Mr. C.'s testimony to be very believable, credible and sincere. The Court will also note that Mr. C.'s testimony reflects very favorably on his abilities to care for the children.
Mr. W. (maternal uncle) and Ms. D.'s witnesses
Mr. W. testified that he is Ms. R.'s brother and resides in S. in a three bedroom home which he rents with his fiancé Ms. D. He is employed at a local pizza shop. Mr. W. further stated that his employment requires him to remain ‘on call’ from 11:00 AM until 2:00 PM and he typically works until 8:00 or 9:00 PM. Mr. W. further stated that the home in which he resides is ‘kid friendly’ as there are many toys, bikes, video games and an outdoor area for children to play in the front of the home. Mr. W. testified that he shares household duties with Ms. D. and when they are both working the children's maternal grandmother or maternal aunt provide childcare.
Mr. W. testified that he is familiar with G. and J. and last saw J. when she resided with the mother. Mr. W. stated that he was made aware the children were removed from the mother's care approximately one year ago but was never approached by the County as a possible placement resource.
Upon cross examination by the mother's attorney, Mr. W. testified that he has seen caseworker K.H. in court on numerous occasions but has never been approached by him to arrange for visits with the children.
On cross-examination by the attorney for the Children, Mr. W. stated that on June 4, 2014 he was sentenced to three years probation after being convicted of Forgery in the 3rd Degree. Mr. W. testified that he previously had a substance abuse issue, sought impatient treatment and has been ‘clean’ for four years.
The Court finds Mr. W's testimony to be credible in nature and straightforward.
Ms. J.D. stated that she is a Licensed Practical Nurse at H.B.S. where she has been employed for the past year. Ms. D. stated that her son resides in the home and he has special needs which require occupational therapy, physical therapy and speech therapy at least one time per week.
On cross examination by the father's attorney Ms. D. stated that she is home during the day and Mr. W.'s employment is during the evening hours. Ms. D. stated that if their petition for custody was granted that she would have the ability to provide care for J. and G. on a daily basis.
On cross examination by the attorney for the mother, Ms. D. stated that she along with Mr. W. could provide a stable home for the children and she does not have any plans to return the children to the biological parents if granted custody.
The Court finds Ms. D.'s testimony to be thoughtful and sincere.
STANDARD OF LAW
Article 6 Custody Petition:
When a relative, who is not a parent of the child, files an application for custody pursuant to Article 6 of the Family Court Act, such petition should be considered in the context of a dispositional hearing on an underlying permanent neglect petition wherein a determination as to the children's best interests will be made. (Matter of Gordon B.B., 30 AD3d 1005)
Termination of Parental Rights Petition:
In accordance with Section 631 of the Family Court Act, the Court shall enter an order of disposition after an adjudication of permanent neglect solely on the basis of the best interests of the children, and there shall be no presumption that such interests will be promoted by any particular disposition. In a dispositional hearing, hearsay evidence is admissible if it is material and relevant. (Matter of Ricky A.B., 15 AD3d 838)
Furthermore, at the conclusion of a dispositional hearing the Court may (1) dismiss the petition if the allegations are not established; (2) suspend judgment for up to one year; or (3) terminate parental rights freeing the child for adoption. (Family Court Act §§ 631, 633[b])
FINDINGS OF FACT AND CONCLUSION OF LAW
Article 6 Custody Petition
While conducting the dispositional hearing on the underlying termination of parental rights proceeding, the custody and visitation petition which was filed by the maternal uncle and his fiancé pursuant to Family Court Article 6 was entertained by the Court. (Matter of Carl G. v. Oneida County Dept. of Social Servs., 24 AD3d 1274)
The Court finds that while the petitioners are well intentioned their overall lack of contact with the children since birth is a significant factor in the Court's determination. The Court finds the limited involvement is evident upon Mr. W's own admission that he was not aware the children were removed from the mother's care until August of 2017.
Furthermore, the Court finds no material or relevant evidence was produced which demonstrated a relationship or bond exists between the petitioners and the children. The lack of any meaningful contact since the birth of the children between the petitioners and the children was clear as the underlying petition for custody and visitation was not filed until the children were placed outside of the mother's home for over two years. The Court also finds that the child care plan proposed by Mr. W. and Ms. D. in the event employment obligations prevent them from caring for the children is very nebulous.
The Court further finds that neither Mr. W. nor Ms. D. provided sufficient testimony as to their plans to address the challenges which the children's special needs require.
Upon consideration of the necessary factors in making a best interest determination the Court finds that granting custody or visitation of the children to the petitioners would not be in the children's best interests. (In Re Jah'meir G. [Eshale G.], 112 AD3d 1014; Matter of Sharon V. v. Melanie T., 85 AD3d 1353)
Termination of Parental Rights Petition (against the Mother)
The Court finds Caseworker H.'s testimony to be very credible in that the mother has not maintained a stable and appropriate home for the children to reside. Furthermore, upon the mother's own admission, the mother has resided at three separate locations since the children were removed from her care and she currently desires to once again relocate to a supportive living program.
The evidence received by the Court, through Petitioner's Exhibit 4(1-4), clearly demonstrates the mother's current residence is cluttered, lacks adequate sleeping arrangements for the children and overall is not a conducive or appropriate living environment for the children. Furthermore, the mother testified that many belongings remain unpacked in her current residence as she is seeking alternative living arrangements through supportive housing.
The Court will note that while a supportive living arrangement may potentially benefit the mother in her effort to have the children returned, nearly three years have elapsed since the children have been removed from her care.
Therefore, the Court finds the mother has not maintained a stable, safe residence for the children and that the details of her future housing plans are confusing and contradictory. (Matter of Aiden D., 58 AD3d 906) The Court further finds no assurance has been provided to the Court that the mother's current living conditions are safe for the children nor that her long term plan for housing will be attained. (Matter of Brendan S., 39 AD3d 1189)
Continued Supervised Visitation
The Court recognizes the efforts put forth by the mother to participate in and complete Court ordered services. However, such completion, in and of itself, is not sufficient proof that the progress necessary to allow for a parent to appropriately care for children has been attained.
The Court finds that the mother is unable to parent the children in a safe manner, as indicated by the mother's continued reliance on other individuals for guidance to address disciplinary issues which arise during supervised visitation sessions. (In the Matter of Juliette JJ [Parris JJ.], 81 AD3d 1112) The Court also finds the testimony of Ms. H. and Ms. D. very credible as to recent visits during which the mother's actions were disturbing and inconsistent.
The Court further finds that the mother has not gained insight as to the severity of the underlying issues which led to the removal of the children nor taken full responsibility for the issues which led to the removal. Thus, continued supervised visitation, not intermittent supervised visitation, was and is warranted. (Matter of Mahaadai D.H. [Rhonda L.H.], 110 AD3d 878; Matter of Kellcie NN. [Sarah N.N.], 85 AD3d 1251).
Continued Substance Abuse Issues
The Court finds that while the mother has completed substance abuse rehabilitation programs she has not remained substance free. The Court will note that upon the mother's admission she did not refrain from using illegal substances while on probation in 2016. The Court will also note that the mother's discharge summary from C. P. states the mother “struggled to attend appointments during later part of her treatment was discharged due to loss of contact on 8/7/17.” (Petitioner's Exhibit # 7)
Furthermore, while the mother denied using any illegal substances which precipitated the most recent positive drug screen in February of 2018, the Court finds credible evidence was received substantiating the results of such testing. The Court finds that the continued drug use and lack of an ability to remain substance free seriously impedes the mother's ability to parent the children and provide a safe and stable home. (Matter of Nevaeh SS. [Valerie L.], 68 AD3d 1188)
The Court finds that the mother has continued to engage in a pattern of behavior which is troubling in nature. On July 17, 2017 the mother was charged with Hindering Prosecution in the 3rd Degree (Penal Law § 205.55) as a result of allowing her brother, R. G., to reside in her home. Mr. G. was evading law enforcement and upon the mother being questioned by the authorities as to his whereabouts she was untruthful and did not reveal where he was residing. Furthermore, as a result of the same incident the mother was charged with a violation of the public health law by being in possession of synthetic marijuana.
The Court will note that such criminal charges against the mother also resulted in a violation of her terms and conditions of probation. The Court finds the mother's criminal conduct and choices demonstrate an overall lack of ability to care for and provide stability for the children. (Matter of Taquan S., 291 AD2d 266)
Long term foster care placement
Based upon the material and relevant evidence adduced at the dispositional hearing, the Court finds that the subject children have bonded with the foster parents and that the children have been provided with medical, educational, and psychological assistance under the foster parents' care. (Matter of Tyreese H. [Tyrone H.], 4 AD3d 208) The Court notes that the two children have engaged in and continue to require services to address past trauma.
The Court finds the foster parents have ensured that the children receive the additional services necessary to allow them to achieve their full potential. Furthermore, the foster care custodial arrangement is long standing, inasmuch as the children have been in their care for nearly three years and developed a strong bond.
The Court further finds that it is in the best interests of the children that they continue in a stable custodial arrangement in which the foster parents wish to adopt the children. (Matter of Ada M.R., 306 AD2d 920) Due to the unique facts of this matter the Court heard extensive testimony relative to issues related to the foster parents' previously adopted daughter. The Court finds that the foster parents took appropriate action to ensure the safety of the child and the development of a long term plan for her.
Termination of Parental Rights Petition (against the Father)
The Court notes that the father acknowledges an inability to care for the children and the evidence received by the Court establishes that the father has not developed a viable or realistic plan for the children's long term care. The father's position that the children be returned to the mother or in the alternative, that custody be granted to the children's maternal uncle and fiancé, is not in the children's best interest. (Matter of Kaiden AA. [John BB.], 81 AD3d 1209; Matter of Amanda C., 281 AD2d 714)
The Court finds based upon the testimony, evidence and credibility findings that the mother has failed to sufficiently progress or benefit from the services provided to her. She is unable to safely and adequately provide for the needs of the children. (Matter of Katara F., 231 AD2d 844; Matter of Vincent M., 255 AD2d 515; Matter of Cyle F. [Alexander F.], 155 AD3d 1626.) Furthermore, the Court finds that any progress made by the mother is not sufficient to warrant the continued “unsettled familial status” and her cycle of progression and regression is continuous. (Matter of Kyla E. [Stephanie F.], 126 AD3d 1385)
The Court also finds that based upon the material and relevant evidence the mother's behavior indicates that she is not likely to remedy the parental defects which caused the removal of her children. (Matter of Philip D., 266 AD2d 909) Therefore, it is in the children's best interest to have the mother's parental rights terminated and free them for adoption. (Matter of Olivia Susan C., 2 AD3d 441; Matter of Fatima G., 64 AD3d 652; Matter of Jordan F., 62 AD3d 698)
A suspended judgment has been considered and is not warranted as there is no indication to the Court that the mother's behavior is likely to change in the future. (Matter of Charlene Lashay J., 280 AD2d 320; Matter of Lillianna G. [Orena G.], 104 AD3d 1224) The mother has not put forth a realistic or feasible plan to allow for the safe return of the children to her home in the near future. Furthermore, a suspended judgment is not warranted given the mother's lack of insight as to the issues which led to the removal of the children and continued instability as evidenced by the mother's engagement in criminal activity and substance abuse. (In the Matter of Megan L.G.H. [Theresa G.H.], 102 AD3d 869)
The father has not presented any feasible long term plan for the children except a return to the mother's care, or in the alternative, custody being granted to the paternal uncle and his fiancé. As such the Court has found these plans are not in the children's best interest and with no alternative being offered by the father a suspended judgment is not appropriate and termination of his parental rights is warranted. (In the Matter of Aniya L. [Samantha L.], 124 AD3d 1001; In the Matter of Alexander Z. [Jimmy Z.], 149 AD3d 1177)
The Court will further note, that in view of the unique circumstances of this case where two of the mother's older biological daughters were placed with and resided with the foster parents, the Court determined it would be appropriate to hear extensive testimony as to the suitability of the foster parents and circumstances in which the oldest child was voluntarily placed outside of the home.
The Court finds, based upon the credible testimony of the caseworker supervisor, C. W., the foster parent's acted appropriately in relation to underlying issues pertaining to K's placement outside of their home. Furthermore, any allegations of misconduct by the foster parents are without merit as the Court finds no safety concerns exist within the foster parent's home.
Accordingly, the Court finds that the children have developed a strong bond with the foster parents who have consistently provided for their needs over an extended period of time. It is in the best interests of the children that they continue in a stable custodial arrangement in which the foster parents wish to adopt the children. (Matter of Ada M.R., 306 AD2d 920) Additionally, termination of parental rights will free the children for adoption and allow for permanency to be achieved in a home where their biological sister N. has previously been adopted.
Therefore, the Court concludes that it is in the best interests of the subject children to commit their guardianship and custody to the Onondaga County Department of Children and Family Services and that the children be freed for adoption.
The attorney for the County is directed to submit an Order to the Court incorporating the findings and conclusions of this decision on disposition and the prior decision on fact finding. Furthermore, the County shall submit an Order dismissing the relative Article 6 custody and visitation petitions considered herein, with prejudice.
The Court will further note that contained within the closing submissions the attorney for the mother requests removal of the Attorney for the Children due to an alleged conflict of interest regarding the oldest child K., whom she previously represented. The Court notes that this issue was not raised during the hearing and thus is denied. The Court notes that the Attorney for the Child zealously advocated for the children within the confines of the Rules of Professional Conduct and therefore, the request is also denied on this basis. (Matter of Aaliyah H. [Mary H.], 134 AD3d 1574)
In conclusion, the Court recognizes the zealous advocacy put forth by all the attorneys during the dispositional hearing and the custody hearing.
The Court hereby schedules a permanency hearing for the children in accordance with the requirements of the Family Court Act on July 11, 2018 at 9:00 A.M. in Part 1 of Onondaga County Family Court.
Michael L. Hanuszczak, J.
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Docket No: B-XXXX-16
Decided: June 29, 2018
Court: Family Court, New York.
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