Opinion
B-7341-09.
Decided February 10, 2011.
Kimberly Snow, Esq., Nassau County Attorney's Office, Westbury, New York. Connie Gonzalez, Esq., Attorney for Respondent.
Monica Warner, Legal Aid Society of Nassau County, One Helen Keller Way, Hempstead, New York. Sandra Stines, Esq. Attorney for the Children, Jericho, New York.
Eileen Stapleton, Esq., Attorney for Petitioner, Juanita Barrera, Levittown, New York, John Zenir, Esq. Attorney for Foster Mother Mineola, New York.
THE HISTORY
On or about July 5, 2007, the Nassau County Department of Social Services (hereinafter "DSS") filed petitions against the respondent, Monica W., seeking the removal of her two children, Joseph W. (d.o.b. 12/26/04) and Kenneth I. (d.o.b. 01/31/07). On the same date, the respondent filed petitions seeking the return of her sons pursuant to FCA § 1028. A hearing was held and on July 24, 2007 respondent's return petition was denied and the children remained in the custody of DSS.
On October 17, 2007, the respondent consented to a finding of neglect in the underlying neglect petition. The Order of Custody to DSS was vacated, a one year Order of Supervision was entered and the children were returned to the respondent. The terms of the Order indicated that the respondent was to cooperate with DSS and Preventive Services, and attend the PACT program.
On December 17, 2007, the respondent voluntarily placed the children in foster care, as she reported to be suffering from depression at that time. The children were placed in the home of Ms. S., a certified foster parent, where they continue to reside. Joseph was three years old and Kenneth was ten months old at the time that they were placed in Ms. S.' home.
The respondent gave birth to her third child, Emma P., on October 10, 2008. On February 9, 2009, DSS filed a neglect petition against the respondent, on behalf of this child, in Nassau County.
On February 25, 2009, Administration for Children's Services (hereinafter "ACS") additionally filed neglect petitions against the respondent in Queens County, where the respondent had been living, regarding the same child, Emma. The Queens County Court paroled the child to the non-respondent father, Michael P., with supervision by ACS. Additionally, the Court issued a Temporary Order of Protection, which vacated the respondent from the home, prohibited the respondent from having any contact with the child if under the influence of drugs or alcohol and only allowed for agency supervised visits. Upon consultation with this Court, the case was transferred to Nassau County Family Court on or about April 2, 2009.
On February 26, 2009, the maternal grandmother, Juanita B., filed for custody of the children, Joseph W. and Kenneth I. Visitation was granted by the Court.
On July 10, 2009, DSS filed petitions to terminate the respondent's parental rights, based on permanent neglect, with regard to the children Joseph W. and Kenneth I.
On August 19, 2009, the respondent gave birth to her fourth child, Brianna P. The child remained in the hospital until mid-October, 2009. DSS filed applications to have this child removed. The Court granted the application on October 15, 2009, and a neglect petition was filed against the respondent on October 20, 2009. An Order of Filiation was entered on admission, on February 2, 2010, naming Michael P. as the child's father. He took custody of this child on June 10, 2010.
On December 4, 2009, an inquest was held as to the respondent's termination of parental rights proceeding regarding Joseph and Kenneth. A warrant for the respondent had previously been issued on October 2, 2009, and remained outstanding. This Court found, by clear and convincing evidence, that the respondent permanently neglected her two children. A dispositional hearing was scheduled.
On February 9, 2010, the respondent appeared and the warrant was vacated. On July 14, 2010, the respondent failed to appear and a warrant was again issued. The respondent returned on the warrant on October 1, 2010.
On March 11, 2010, the respondent consented to a finding of neglect with regard to the children, Emma P. and Brianna P. On June 10, 2010, these children were adjudicated neglected and a Final Order of Supervision and Order of Protection were issued for twelve months. The terms of the Order of Protection required that the respondent stay away from the children if under the influence of alcohol and illegal substances and that she was not to be alone with the children.
This dispositional hearing as to the termination of parental rights and fact-finding hearing as to custody, regarding the children Joseph and Kenneth, was held on June 1, 2010, June 2, 2010, June 29, 2010, June 30, 2010, July 1, 2010, September 2, 2010 and December 6, 2010.
During a great deal of the proceedings the respondent was not present and warrants were issued for her appearance. On the dates that she was not present, the hearing went forward in her absence.
The DSS presented four witnesses: Jackie D'Auria, DSS caseworker; Ms. S., foster mother; Dorothy Clause, daycare provider; and Lori Beth Carlotti, probation officer.
The Respondent testified on her own behalf.
Juanita B., the maternal grandmother, testified in support of her custody petition.
The Attorney for the Children presented Henry Gonzalez, a licensed clinical social worker, and Marion Farrell, DSS caseworker.
The Court met with both children in camera.
In this joint hearing, the DSS seeks the termination of parental rights of the respondent, based on permanent neglect, while the maternal grandmother seeks custody of her two grandsons. DSS does not support custody to the grandmother as she had a prior indicated case in 2001 where the respondent was the subject child and as three of the grandmother's four children have criminal records. The respondent, Monica W., seeks a suspended judgment in the Termination of Parental Rights petition and supports her mother's petition for custody of her sons.
The Attorney for the Children also supports the grandmother's custody petition.
While the foster mother, Ms. S., did not file her own custody petition, she did participate in the proceedings.
LEGAL ANALYSIS
At the fact-finding portion of this termination of parental rights case, this Court found by clear and convincing evidence, that the respondent mother, Monica W., permanently neglected her children, as defined in Social Services Law § 384 b (7) (a) in that by "failing for a period of more than one year, following the date that the children came into care of an authorized agency,
substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship, when such efforts will not be detrimental to the best interests of the child."
After a finding of permanent neglect, the disposition of custody is influenced or controlled by what is in the best interests of the child, in accordance with Family Court Act § 631 which states, "An Order of Disposition shall be made pursuant to this section, solely on the basis of the best interests of the child, and there shall be no presumption that such interests will be promoted by any particular disposition" ( see Matter of Star Leslie W., 63 NY2d 136).
Social Services Law § 383 (3) gives preference for adoption to a foster parent who has cared for a child continuously for a period of twelve months or more, while members of a child's extended family are given no special preference with regard to custody.
Thus, a non-parent relative takes no precedence for custody over the adoptive parents selected by an authorized agency ( see Matter of Peter L., 59 NY2d 520; Matter of Pryor v Lindsay , 60 AD3d 859 [2nd Dept 2009]; Matter of Chastity Imani Mc. , 66 AD3d 782 [2nd Dept 2009]).
This Court had the unique opportunity to observe the witnesses who testified in this proceeding and was able to observe the demeanor and assess the credibility of each witness.
It is clear that although Juanita B. is the maternal grandmother of the two subject children, this alone does not give her rights superior to those of the foster mother, as she did not file for custody of the boys until fourteen months after they were in care and residing with Ms. S., the foster mother. Ms. B. claimed that she delayed seeking custody because she hoped her daughter would plan for the children. She also claimed she was caring for her ailing mother. Neither explanation is sufficient. As Ms. B. acknowledged that she was aware that her grandsons went into foster care, it is clear that she did not make them a priority at that time.
By failing to step up earlier, Ms. B. allowed a strong emotional bond to form between her grandson's and Ms. S., with whom the subject children have continuously resided. Joseph and Kenneth were only three years and ten months old, respectively, at the time they were placed with Ms. S. They have been in her care for three years; which is half of Joseph's life and almost all of Kenneth's. It is likely that Ms. S.'s home is the only home that they can remember, most certainly in the case of the younger child. The evidence shows that Ms. S. has provided a stable and secure home for both boys, providing for their emotional, developmental, medical and educational needs. She has participated in these proceedings and has expressed her interest in adopting the children.
It is clear from the testimony of both Juanita B., the maternal grandmother, and the testimony of Monica W., the respondent, that it is their intention to have the respondent involved in the lives of these two children and as such, seek a suspended judgment for the respondent.
A suspended judgment may be warranted in a case where a parent has demonstrated that she is working toward the return of her children. The parent would have to show that she has complied with requirements to correct the issues that caused the children to go into foster care in the first place ( see Matter of Michael B., 80 NY2d 299; Matter of Amber D.C., 912 NYS2d 431, 2010 NY Slip Op 9258 [2nd Dept 2010]).
Here, the respondent has failed to demonstrate that she should be granted a suspended judgment. Jackie D'Auria, the caseworker for DSS, reported that the respondent needed to attend mental health counseling, comply with psychiatric appointments and substance abuse treatments. The respondent was also encouraged to visit regularly with her children.
Ms. D'Auria testified that the respondent last visited with her sons in April 2009, more than a year prior to the filing of the Termination of Parental Rights petition. Ms. D'Auria also reported that while the respondent did initially get psychiatric treatment, she did not complete her treatment. As a result, the Hispanic Counseling Center closed her case due to non-compliance.
The respondent has failed to take any of the necessary steps to avoid having her rights terminated. She has not sought the assistance of the DSS, gone for counseling, mental health services, or substance abuse treatment. Since the time that the children went into foster care, in December 2007, the respondent had numerous opportunities to work with DSS, but failed to do so. In fact, the respondent was out on a warrant and her whereabouts unknown for months before returning and participating in the dispositional hearing.
That Ms. B. and the respondent intend for the respondent to be involved in the lives of the children causes great concern. The respondent has taken no steps to improve herself or show the Court that she is either ready or capable of either visiting or parenting these children. As such, it is not only contrary to the best interests of the children to have the respondent in their lives, but detrimental and disruptive to their emotional well-being.
While Ms. B. may love her grandsons, and wants to care for them, it is clear to this Court that an additional motivation in seeking custody is to circumvent the termination of her daughter's parental rights.
To grant Ms. B.'s custody petition would put the children in danger, as it would allow for contact with the respondent without supervision or oversight by the DSS. This would create a situation where the children would be wholly unprotected. Additionally, the respondent's warrant history demonstrates her failure to understand the magnitude of these proceedings and shows a severe lack of concern for her children. She is clearly unreliable. To create a situation where the children are left hoping and guessing as to when they will see their mother, only to be disappointed, is not in their best interests.
Having heard all the testimony, as well as, having met with the children in camera, the Court is certain that the children have a strong bond with Ms. S. The children, are healthy, happy and well provided for in the care of Ms. S. To uproot the children and remove them from the only home they can remember, and where they have stability and security, would be traumatic and not serve their best interests.
The Court is aware that Ninrod I., the father of Kenneth, has recently filed a petition for custody of the child and that DSS has filed a petition to terminate his parental rights based on abandonment. While the outcome of these proceedings may affect the status of the child, Kenneth, it does not serve to afford the respondent a suspended judgment where it is not warranted.
After due consideration of all the evidence, this Court makes a finding that it has been established, by a preponderance of the evidence, that the best interests of the boys are that they remain in the care and custody of the DSS and in the home of Ms. S.
In view of the above facts and case law, it is;
ORDERED that, the Nassau County Department of Social Services' petitions to terminate the parental rights of the respondent, Monica W., with regard to the subject children, Joseph W. and Kenneth I., are hereby granted, and it is further
ORDERED that, the petitions by Juanita B., seeking custody of the same subject children, Joseph W. and Kenneth I., are hereby denied.
ORDERED that, the custody of the subject children, Joseph W. and Kenneth I., shall remain with the Commissioner of the Nassau County Department of Social Services.
THIS CONSTITUTES THE DECISION OF THE COURT.
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 THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.