Opinion
XXXXX.
Decided September 22, 2009.
Noah Powlen, Esq., Special Assistant Corporation Counsel, New York City Children's Services, Brooklyn, New York.
Ira Goldstein, Esq., For respondent mother, Brooklyn, New York.
Michael Somma, Esq., For maternal aunt Syeeta D., Brooklyn, New York.
Mindy Blatt, Esq., Law Guardian, Brooklyn, New York.
The question presented is whether to move two girls, ages three years and four months, from a non-kinship foster home to the home of their maternal aunt. The maternal aunt has filed for custody of both children who were removed from the care of their mother at birth.
The fact-finding and dispositional hearings have been concluded in the child protective proceeding involving the three year old, as well as four permanency hearings. In addition, a petition to terminate respondent mother's parental rights has been filed with respect to the older child. With respect to the younger child, the article 10 case against respondent mother is currently in the pre-fact-finding stage.
Although the older child was previously placed with the maternal aunt in kinship foster care for two and one-half years, she was identified as the pre-adoptive resource, and respondent mother and the Attorney for the Children all support the maternal aunt's petition, it is opposed by New York City Children's Services (hereinafter "NYCCS") for several reasons. First, NYCCS emphasizes that the maternal aunt and her fiance, the former kinship foster parents, each used marijuana on at least one occasion and that, as a result, the kinship foster home was closed. Second, NYCCS believes that the maternal aunt is not capable of caring for Janea's special needs resulting from her premature birth and positive toxicology for cocaine. Third, NYCCS asserts that respondent mother does not want the children placed with the maternal aunt. Fourth, NYCCS emphasizes the stability and companionship to be gained by keeping the childrem together in the home of the non-kinship foster parents. Fifth, NYCCS is concerned that the maternal aunt has expressed more interest in the older child, who had been placed in her home for 30 months, than in the baby who had not been previously placed in her home. Sixth, NYCCS contends that although the maternal aunt has tested negative for drugs every time she has been tested since the first two positive test results, she has not attended a drug treatment program on a daily basis and has not attended every visit with the children that has been offered. Finally, with respect to the younger child, NYCCS opposes the maternal aunt's petition because the four-month-old child never previously lived in that home and has not bonded with the maternal aunt and her family. For the reasons set forth herein, the Court rejects NYCCS's assertions, and orders that Destiny be directly placed with the maternal aunt. The maternal aunt's petition concerning Janea is denied with leave to renew during the dispositional hearing.
Factual Background
Destiny Desire D. was born to Geneva (also known as Shanea) D. at Brooklyn Hospital on September 20, 2006 with a positive toxicology to cocaine. She was premature, underweight and in respiratory distress. No father was named on the birth certificate, however, the mother has identified Mark Johnson as Destiny's father.
On October 4, 2006, NYCCS filed a neglect petition against Geneva D. (hereinafter "respondent"). The petition alleged that respondent and the baby both tested positive for cocaine on the date of the birth, that respondent was not regularly and voluntarily participating in a drug treatment program, that respondent had no stable means of support or residence, that she failed to make any plans for Destiny, that she only visited Destiny in the hospital once, that she provided no contact information and that her whereabouts were unknown.
NYCCS requested and the Court granted a remand of Destiny. Pursuant to Family Court Act § 1017, the Court directed NYCCS to conduct an immediate investigation of all of the family members who had expressed an interest in caring for the child, including the maternal aunt, the maternal grandmother and the maternal grandfather. Shortly thereafter, on November 3, 2006, NYCCS certified Destiny's maternal aunt and her fiancé, Shakhim M., as kinship foster parents and Destiny was placed in their home.
On May 24, 2007, the Court explicitly directed that the remand be restricted to the home of the maternal aunt. Nevertheless, the Court failed to include that language in the dispositional order or the first permanency hearing order. Referee Yellen, who conducted the next three permanency hearings, also directed a restrictive remand after the second and third permanency hearings; however, she failed to include that language in the fourth permanency hearing order.
Ms. D. and Mr. M. have lived together for approximatley 10 years. They have one child in common, Shaquille (date of birth October 9, 2003), and they also reside with Ms. D.'s other children: Kymel (date of birth September 22, 1989); Shandera (date of birth June 27, 1992) and Deandre (date of birth August 1, 1994).
Issue was joined on the neglect petition on February 15, 2007. On that date, the Court conducted an inquest and made a finding of neglect against respondent based on a preponderance of the evidence, which established her abuse of the drug cocaine to the extent required by Family Court Act § 1012 (f) (i) (B).
On March 23, 2007, respondent, who was then incarcerated at Riker's Island, was produced. She appeared in court for the first time and counsel was assigned. On May 24, 2007, the Court conducted a permanecy hearing and entered a dispositional order on consent. Destiny was placed with the Commissioner and respondent was directed to remain in and complete the "SHOCK" substance abuse treatment program, submit to random urine testing and remain free of illegal drugs and alcohol. The CHIPS program was directed to facilitate visitation during the period of time that respondent was incarcerated at the Lakeview Correctional Facility. In addition, respondent was granted visitation with Destiny while she remained incarcerated at Riker's Island. Those visits were to be supervised by either the maternal aunt or the maternal grandmother. Subsequent permanency hearings were conducted on November 20, 2007, June 25, 2008 and January 21, 2009. On January 21, 2009, the permanency goal for Destiny was changed from "return to parent" to adoption. The maternal aunt was identified as the adoptive resource. The agency was directed to file a petition to terminate respondent's rights within 90 days.
Throughout this period, Destiny remained in kinship foster care with the maternal aunt, Mr. M. and their children. The kinship foster home was supervised and visited by NYCCS and agency caseworkers at least once each month. In addition, the home was presumably subject to annual recertification in accordance with the Commissioner's regulations.
Throughout this period, NYCCS and the foster care agency provided numerous permancy hearing and other status reports to the court. Those reports were uniformly positive in their description of the maternal aunt, the kinship foster home and Destiny's progress while residing in that home. For example, NYCCS reported that Destiny was "thriving" in her kinship foster home, where the maternal aunt was "providing a loving home for the subject child and want[ed] to adopt" (Report from NYCCS dated May 23, 2007, at p. 2). The foster care agency reported that Destiny adjusted well to the kinship foster home. "Destiny is very attached to Ms. D. and calls her mommy. Destiny is very close to her cousin Shaquille and is an integral part of the family" (Protestant Board of Guardians report dated September 17, 2008, at p. 1).
Destiny was assessed for Early Intervention. She was initially refered for services, however, services were soon discontinued due to her "tremendous developmental improvements" (Protestant Board of Guardians report dated April 16, 2007). Thereafter, Destiny started to develope age — appropriately and no additional services were needed. She received regular medical care and was described as "healthy and stable" (Permanency Hearing Report dated November 20, 2007, at p. 10; Protestant Board of Guardians report dated Jan. 29, 2008). Her immunizations were kept up to date (Protestant Board of Guardians report dated April 2, 2008, p. 1). The agency reported that she did not have any medical problems ( Id.).
According to the agency, Ms. D. saw to all of Destiny's needs ( Id.). She provided a "safe and nurturing environment for the child and ensure[d] that all of the child's needs [we]re being met. Ms. D. and her family expressed their love for Destiny and Ms. D. reported that she love[d] the child as if the child were her own daughter" ( Id.). According to the agency, Ms. D. had a "very supportive family who help[ed] her with Destiny" ( Id., at p. 7; Permanency Hearing Report dated November 20, 2007) and "often provided financial assistance as needed" (Protestant Board of Guardians report dated February 15, 2007).
Destiny "adjusted well in the home and bonded with the kinship foster parent . . . and extended family members" (Protestant Board of Guardians report dated April 2, 2008, at p. 3; Permanency Hearing Report dated January 21, 2009, at pp. 6 — 7). Ms. D. took "very good care of the child. She [wa]s able to meet all of the child's needs" (Protestant Board of Guardians report dated Jan. 29, 2008, at p. 1). According to the agency, Ms. D. "provides a safe and nurturing home for the child" (Permanency Hearing Report dated May 24, 2007). "Ms. D. and her back-up [baby]sitter provide a safe and nurturing environment for the child. Ms. D. and her family have shown a lot of love to Destiny and love her, the same way that they love their own children" (Permanency Hearing Report dated May 5, 2008 at p. 7; Permanency Hearing Report dated January 21, 2009, at p. 7). Thereafter, the agency reported that "Ms. D. and her family have shown Destiny lots of love and are willing to [continue to] provide care to Destiny" (Permanency Hearing Report dated January 21, 2009, at p. 7) and "to adopt [her] once she becomes free for adoption" ( Id. at p. 5; Permanency Hearing Report dated November 20, 2007).
Ms. D. fully cooperated with both of the foster care agencies and NYCCS and complied with all court orders. She brought Destiny to all of her medical appointments and early intervention evaluation. As directed, she took Destiny to visit respondent at Rikers Island and to respondent's graduation from one of her drug treatment programs (Protestant Board of Guardians report dated Jan. 29, 2008). In addition, she kept the agency apprised of all visits and other contacts with respondent (Permanency Hearing Report dated January 21, 2009, at p. 7; Permanency Hearing Report dated May 12, 2008). She cooperated with court orders providing for visitation for the maternal grandparents.
Although NYCCS and the agency were well aware of the fact that Ms. D. had two prior indicated cases against her based on the failure of her son Daequan, then age 16, to attend school during the 2006 — 2007 school year, they never expressed any reservations about Ms. D. or her home. To the contrary, the agency concluded that Ms. D. was "a valuable resource for the child Destiny with connections to the birth mother and birth father and community" ( Id. at p. 6). Ms. D.'s home was the "least restrictive placement for the child and allow[ed] her to continue to bond with the birth family and grow."
On March 13, 2009, the agency filed a petition to terminate the parental rights of respondent mother (B-2392/09). Issue was joined on August 3, 2009.
On May 3, 2009, respondent gave birth to her second child, Janea D. . Three days later, a planning conference was conducted. During that conference, respondent stated that she did not want Janea placed with Ms. D. because her sister used drugs.
On May 6, 2009, NYCCS filed a second neglect petition against respondent. The petition alleged that respondent and Janea both tested positive for cocaine on the date of the birth, that respondent was not regularly and voluntarily participating in a drug treatment program, that respondent had left her drug treatment program in February 2009, and that she admitted to using "crack" cocaine three times per week during her pregnancy and three days before the birth of the child. NYCCS requested and the Court granted a remand of the baby.
On May 6, 2009, Ms. D. appeared in Family Court asking that the child be placed in her home. She denied the allegations of drug use and volunteered to take a drug test. The test was conducted by Kings County Family Treatment Court and was positive for marijuana (petitioner's exhibit No. 14 in evidence). On May 8, 2009, Ms. D.'s fiancé, Mr. M., was asked to submit to a drug test and he also tested positive for marijuana. As a result, an ORT was called into the New York State Central Registry. Destiny was immediately removed from Ms. D.'s home without notice or a hearing ( see 18 NYCRR §§ 443.11 and 434.2 [f]; see also Johnson v City of New York, 2003 WL 1826122 [SDNY]; Harley ex rel Johnson v City of New York, 36 F Supp 2d 136 [EDNY 1999]; Rivera v Marcus, 696 F2d 1016 [2d Cir 1982]), and placed in non — kinship foster care with Janea.
On May 12, 2009, Ms. D. filed a petition seeking custody of Destiny (V-15076/09). On May 13, 2009, Ms. D. filed an Application for Judicial Action requesting the immediate return of Destiny to her home as a kinship foster home. She also requested a hearing pursuant to Family Court Act § 1028-a in an effort to have Janea placed in her home. Both of those applications were ultimately denied since the Court lacked the authority to compel NYCCS to recertify Ms. D.'s home as a kinship foster home and because Ms. D. did not satisfy the stringent requirements of Family Court Act § 1028-a.
FCA § 1028-a provides that after a relative files an application to be approved as a foster parent, the court shall hold a hearing to determine whether the child should be placed with that relative in foster care if: (i) the relative is related within the third degree of consanguinity; (ii) the child has been temporarily removed and placed in non-relative foster care; (iii) the relative indicates a willingness to become the foster parent and has not refused previously to be considered as a foster parent or custodian; (iv) the Commissioner has refused to place the child with the relative for reasons other than the relative's failure to qualify as a foster parent pursuant to the regulations of the Office of Children and Family Services; and (v) the application is brought within six months from the date the relative received notice that the child was being removed. In the instant case, NYCCS asserted that FCA § 1028-a was inapplicable since the Commissioner's failure to place Janea in the aunt's home was not for "reasons other than the relative's failure to qualify as a foster parent pursuant to the regulations of the Office of Children and Family Services." The Commissioner failed to place Janea in the aunt's home because although they had certified her as a foster parent, they subsequently revoked her certification.
On June 8, 2009, Ms D. voluntarily enrolled in the North Shore — Long Island Jewish Health System Far Rockaway Treatment Center. On June 18, 2009, the first time Ms. D. was tested by the Center, she again tested positive for marijuana.
Thereafter, the Office of Special Investigations commenced an investigation which concluded on July 13, 2009. The report was "indicated" based on the positive tests for marijuana by the kinship foster parents.
On July 22, 2009, Ms. D. filed a petition seeking custody of Janea (V-23609-/09). On July 29, 2009, at Ms. D.'s request, an independent review was conducted. At the conclusion of the review, the prior decision to close the kinship foster home was upheld since "foster parents are held to a standard that does not allow for any drug use. The standards do not only apply to the type of care a child receives but also to the type of behavior expected as a foster parent" (see Report of Decision after Independent Review [Maternal Aunt's exhibit # 1 in evidence]).
On August 20 and August 27, 2009, the Court conducted a combined custody and permanency hearing for Destiny, as well as Family Court Act § 1017 hearing for Janea. During the hearing, NYCCS called only one witness to testify, caseworker Becker. The maternal aunt called her fianc É to testify and she also testified on her own behalf.
Ms. Becker testified she had been assigned to the case only recently. She testified about the agency's decision to remove Destiny from the maternal aunt's home after she and Mr. M. each tested positive for marijuana on one occasion. She testified about Janea's special needs resulting from her prematurity and positive toxicology to cocaine and the agency's concern that Ms. D. was not in a position to provide for those needs.
Ms. Becker also testified that both Ms. D. and Mr. M. had tested negative for drugs and alcohol on every occasion after the initial positive test results. Nevertheless, she indicated that the agencyhad doubts about the accuracy of Mr. M.'s negative tests. According to Ms. Becker those doubts were based a discussion that she had with a substance abuse counselor from the agency. According to Ms. Becker, she told the agency counselor that two of Mr. M.'s test results revealed an unusually high water content. She testified that he responded by saying that, in his opinion, test results of this kind indicate tampering.
Ms. D. described the two and one-half years she and her family spent with Destiny. Ms. D. and Mr. Morrision both testified about their love for Destiny and how much they and their other children missed her. Ms. D. described her agency supervised visits with Destiny. Both Ms. D. and Mr. M. testified that they stopped using marijuana when they were young adults. They testified that they had, however, both smoked marijuana on May 5, 2009, at a family gathering which was held after the conclusion of funerals held for two of Ms. D.'s cousins. Both Ms. D. and Mr. M. adamently denied the assertion that they used marijuana on more than one occasion. Ms. D. indicated that although she does not have a substance abuse problem, she voluntarily enrolled in a drug treatment program with the hope that it might help her have the children placed in her home. She explained that her attendance at that program was somewhat irregular because she had other children to care for and she was seeking full time employment. She further testified that she would be able to provide for the children financially even if her home was not recertified as a foster home.
Ms. D. testified that when her older son Daequan was 16 years old he failed to attend school regularly during the 2006 — 2007 academic year. She described the efforts that she made in an attempt to ensure that he attended school, including taking him there herself on a daily basis.
Documents were also admitted into evidence including a report from the North Shore — Long Island Jewish Health System Far Rockaway Treatment Center dated August 19, 2009 (petitioner's exhibit # 1 in evidence); a report from NYCCS dated August 20, 2009 (petitioner's exhibit # 2 in evidence); the drug test results for Mr. M. from EDNY (petitioner's exhibit # 3 in evidence); the Permanency Hearing Report for Destiny dated July 23, 2009 (petitioner's exhibit # 4 in evidence); an addendum to the Permanency Hearing Report dated July 23, 2009 (petitioner's exhibit # 5 in evidence); the report of the Office of Special Investigation (petitioner's exhibit # 6 in evidence); an oral report transmission (hereinafter "ORT") dated May 6, 2009, along with progress notes (petitioner's exhibit # 7 in evidence); an ORT dated March 27, 2007, along with progress notes (petitioner's exhibit # 8 in evidence); an ORT dated November 29, 2006, along with progress notes (petitioner's exhibit # 9 in evidence); and a report from the foster care agency dated August 29, 2009 (petitioner's exhibit # 10 in evidence).
The 2009 ORT concerns the report about the recent positive marijuana tests and the 2006 and 2007 ORTs concerning Ms. D.'s older son Daequan (date of birth December 5, 1990) who was not attending school regularly.
The report of the decision after the Independent Review was introduced by the maternal aunt (maternal aunt's exhibit # 1 in evidence). The Law Guardian introduced numerous documents into evidence including a letter from her dated July 27, 2009, that had been submitted on behalf of the maternal aunt during the independent review (Law Guardian's exhibit # 1 in evidence); the prior Permanency Hearing Report dated May 24, 2007 (Law Guardian's exhibit # 2 in evidence); the prior Permanency Hearing Report dated November 20, 2007 (Law Guardian's exhibit # 3 in evidence); the prior Permanency Hearing Report dated May 12, 2008 (Law Guardian's exhibit # 4 in evidence); the prior Permanency Hearing Report dated January 21, 2009 (Law Guardian's exhibit # 5 in evidence); the prior report from NYCCS dated May 23, 2007 (Law Guardian's exhibit # 6 in evidence); the prior Protestant Board of Guardians report dated February 15, 2007 (Law Guardian's exhibit # 7 in evidence); the prior Protestant Board of Guardians report dated April 16, 2007 (Law Guardian's exhibit # 8 in evidence); the prior Protestant Board of Guardians report dated January 29, 2008 (Law Guardian's exhibit # 9 in evidence); the prior Protestant Board of Guardians report dated April 2, 2008 (Law Guardian's exhibit # 10 in evidence); and the prior Protestant Board of Guardians report dated September 17, 2008 (Law Guardian's exhibit # 11 in evidence). At the conclusion of the hearing, the court reserved decision and granted Ms. D. and the children overnight weekend visitation.
Not marked into evidence but also contained in the court's file are the Protestant Board of Guardians report dated December 19, 2007; the New York Foundling report dated June 10, 2009; and the New York Foundling report dated June 29, 2009.
By order to show cause dated September 1, 2009, NYCCS moved to reopen the hearing to allow for the introduction into evidence of test results from the Far Rockaway Treatment Center dated June 18, 2009, indicating that Ms. D. tested postive for marijuana on the first day she was tested by the Center. In addition, NYCCS sought to introduce into evidence an article by Paul L. Cary, M.S., entitled Drug Court Practitioner Fact Sheet, IV National Drug Court Institute No. 2 (April 2006), which was annexed to the order to show cause. The article, citing numerous scientific studies, indicates that the length of time an individual may continue to test positive for marijuana after use can range from several days to as long as 67 days. The article cites numerous factors that can affect the length of time marijuana can be detected in urine including the drug dose, the drug's strength, the route of administration, the frequency of use, the duration of use, the user's metabolism rate, the test's sensitivity and the test's specificity. The motion to reopen the hearing was granted without opposition on September 14, 2009. Accordingly, the June 18, 2009 drug test results were deemed petitioner's # 11 in evidence and the article was deemed petitioner's # 12 in evidence.
Thereafter, by order to show cause dated September 11, 2009, NYCCS again moved to reopen the hearing to allow for the introduction into evidence of a psychiatric assessment of Ms. D. from the Far Rockaway Chemical Dependency Program dated June 2, 2009. In addition, NYCCS sought to suspend Ms. D.'s unsupervised visitation with the children. According to the psychiatric assessment, Ms. D. reported that she had smoked one-half of one marijuana cigarette on May 5, 2009. She also stated that she drank coffee (2 4 cups per day) and smoked cigarettes (between one — half and one full pack of cigarettes per day). Ms. D. also reported that she had been prescribed the anti-depressant Zoloft recently after starting to experience symptoms of depression and anxiety. Ms. D. reported that she found the medication helpful but stated that she had been required to discontinue it when her insurance lapsed. She reported that without the medication, she experienced difficulty sleeping and some symptoms of anxiety and depression.
During oral argument in support of the motion for interim relief, counsel for NYCCS asserted that Ms. D. had previously failed to disclose this information to the agency. He later withdrew that assertion after Ms. D.'s attorney pointed out that she had in fact disclosed it and that the disclosure was documented in NYCCS's own caserecords. On September 14, 2009, the motion to reopen the hearing was granted, however, the motion to suspend unsupervised visitation was denied. Accordingly, the June 2, 2009 psychiatric assessment was deemed petitioner's # 13 in evidence. In addition, the maternal aunt was directed to appear in court on September 17, 2009 and submit to a urine test.
On September 17, 2009, the maternal aunt appeared in court and tested negative for drugs and alcohol (the report of the test results was subsequently admitted into evidence as maternal aunt's exhibit "2" in evidence). Mr. M. also appeared in court on that date to voluntarily submit to urine testing. Because there was no male case manager or technician present in the Family Treatment Court that day, he could not be tested in court. Although NYCCS was asked to refer him for testing by an off-cite laboratory, they declined to do so.
Legal Analysis
1. Destiny's Best Interests Require that she be Directly Placed in the Custody of the Maternal Aunt
Having completed a combined permanency and custody hearing for Destiny, the court must determine whether Destiny should be moved from non-kinship foster care and returned to the home of the maternal aunt. NYCCS has indicated that, at this point in time, it will not recertify the maternal aunt's home as a kinship foster home. Consequently, Destiny can only be returned to her aunt's home if the court terminates her foster care placement and awards custody to the aunt under either article 6 or article 10 of the Family Court Act. Thereafter, the court will be required to determine whether to change the goal for Destiny from adoption to "permanent placement with a fit and willing relative" or a different goal.
The Family Court retains the statutory authority to modify or terminate any order entered during an article 10 proceeding. Family Court Act § 1061 grants the court the authority to "stay execution, of arrest, set aside, modify or vacate any order issued in the course of a proceeding under this article" based on "good cause shown and after due notice," on the court's "on its own motion, on motion of the corporation counsel the petitioner, or on motion of the child or on his behalf, or on motion of the parent or other person responsible for the child's care."
In addition, Family Court Act § 1062 provides specific authority for the court to grant an order terminating a foster care placement. The statute specifically provides that, in addition to the child's parent or other person responsible for the child, a petition to terminate placement may be brought by "any interested person acting on behalf of a child." That provision has been interpreted as including other relatives, the Attorney for the Child and the guardian ad litem (Besharov, Practice Commentary, McKinney's Cons. Laws of NY, Book 29A, Family Court Act § 1061, at 461).
These statutory provisions express a strong Legislative policy in favor of continuing Family Court jurisdiction over children and their families so that the court can do what is necessary in the furtherance of the children's welfare ( In re Samantha S., 80 Misc 2d 217 (Fam Ct, Schenectady County 1974]). They provide the court with continuing jurisdiction to modify or vacate any dispositional order and terminate any foster care placement. This authority is essential if the court is to meet its continuing responsibility to protect the best interests of the children (Besharov, Practice Commentary, McKinney's Cons. Laws of NY, Book 29A, Family Ct Act § 1061, at 461; Matter of Shinice H., 194 AD2d 444, 444-445 [1st Dept 1993] [the Family Court retains jurisdiction to modify its prior orders even where modification would circumvent the fair hearing decision of the Department of Social Services since it is the Family Court and not the Department which acts as parens patriae to do what is in the best interests of the child]; Matter of Samantha S., 80 Misc 2d 217, 220 [City Ct, City of Albany]).
Faced with a request to terminate placement, the court is obligated to promptly determine whether a hearing should be conducted and, if so, to conduct the hearing and determine whether continued placement serves the purposes of article 10 (Family Court Act § 1064). If the court determines that continued placement does not serve the purposes of article 10, the court is required to discharge the child from the custody of the agency (Family Court Act § 1065 [b]; In re D.A. , 18 Misc 3d 200 , 207 [Fam Ct, Onondaga County 2007]).
Considering these standards in light of the facts at bar, the Court finds that "good cause" has been shown. In the instant case, NYCCS removed Destiny, who was then two and one-half year old, from the only home she had ever known without notice or a hearing. That move was undertaken in spite of the fact that the agency itself had concluded that the home was loving, supportive, nurturing, safe and stable and that Destiny had bonded with her kinship foster parents who both loved her as if she were their own daughter and who provided for all of her needs. In the view of this Court, these facts are sufficient to satisfy the requirement for a showing of "good cause."
Having found "good cause" to consider modification of the prior order extending placement, the court must determine whether continued placement serves the purpose of Family Court Act article 10. The paramount purpose of article 10 is to "help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being" (Family Court Act § 1011; Matter of Owen AA., 64 AD3d 953 [3d Dept 2009]; Matter of Charles DD. [Bernard EE.], 163 AD2d 744, 747 [3d Dept 1990]). Accordingly, the Court must determine whether Destiny's continued placement in non-kinship foster care will serve to protect her from "injury or mistreatment" and "safeguard her physical, mental, and emotional well-being."
The requisite authority to terminate placement and directly place a child with a relative is also provided by the statutory provisions governing permanency hearings. Family Court Act § 1089 (d) provides that during each permanency hearing, the court shall evaluate the best interests and safety of the child and determine whether the child would be at risk of abuse or neglect if returned to the parent. If not, the court may direct that the placement of the child be terminated and that the child be returned to the parent. If the court concludes that the child would be at risk if returned to the parent, it has a number of options, including placing the child in the custody of a fit and willing relative, until the completion of the next permanency hearing and approving or modifying the permanency goal (Family Court Act § 1089 [d] [2] [ii]; Matter of Jessica F. , 7 AD3d 708 [2d Dept 2004]). In considering whether to place the child in the custody of a fit and willing relative, the court must consider whether that is the dispositional alternative most likely to serve the child's"best interests and safety" (Family Court Act § 1089 [d]).
See also In re G.B., 7 Misc 3d 1022 [A] [Fam Ct, Monroe County, 2005] [decision to transfer children from foster care to great aunt and grandmother was based on the best interests of the children]; Matter of D.A., 18 Misc 3d 200 [Fam Ct, Onondaga County, 2005] [petition to modify dispositional order to transfer child from foster care to aunt denied based on the best interests of the child]; Matter of Chauncey W., 185 AD2d 675 [4th Dept 1992] [the best interests of the child is determinative when the question is whether to transfer a neglected child to another placement or to family members]; Deborah E.C. v Shawn K. , 63 AD3d 1724 [4th Dept 2009] [the standard to be applied when considering a petition for custody filed to modify an order of placement entered in an article 10 proceeding is in the best interests of the child]; Alfano v Schulthis-Devoe , 49 AD3d 635 [2d Dept 2008] [Family Court's determination had sound and substantial basis since the best interests of the child were served by allowing him to remain in custody of petitioners, in whose temporary custody he was placed shortly after birth]; see also In re Dominick S., 289 AD2d 11 [1st Dept 2001] [no basis to modify a placement decision and transfer a child where the original decision that the child should reside with his great-grandmother was the best interests of the child and there was no change in circumstances]; Matter of Sarah S., 9 Misc 3d 1109A [Fam Court, Monroe County, 2005]; see also Harriet U. v Sullivan County Dept. of Social Services, 224 AD2d 910, 911 [3d Dept 1996] [in making a determination of placement, Family Court must consider the child's best interest]; In re Carlena B., 61 AD3d 752 [2d Dept 2009] [in fashioning a dispositional order the applicable standard is best interests]).
In the instant case, the Court has evaluated the best interests and safety of Destiny and determined that she would be at risk of neglect if returned to respondent. To date, respondent has not successfully completed a drug treatment program and remained drug free. Indeed, after she was initially released from prison, she violated her parole, a warrant was issued for her arrest and she was eventually rearrested and again incarcerated. Thereafter, she continued to test positive for cocaine and marijuana and failed to cooperate with referrals to drug treatment programs. As recently as February 2009, she left the Veritas drug treatment program, and on May 3, 2009, she gave birth to a second baby who tested positive for cocaine.
Based on the evidence adduced throughout these proceedings, the Court concludes that Destiny's best interests would be served by directly placing her in the custody of the maternal aunt until the next permanency hearing date (Family Court Act § 1089 [d][2][ii]; Matter of Jessica F. , 7 AD3d 708 [2d Dept 2004]). In reaching this determination, the Court has considered that Ms. D.'s home is the only home that Destiny has ever known. She lived there for two and one half years. She bonded with Ms. D., Mr. M., their children and the other members of the extended family. They nurtured and cared for her and loved her like they loved their own children. Ms. D. made a life — time commitment to Destiny. She planned to adopt her in the event she was freed for adoption.
The home was closely monitored throughout this period by two different foster care agencies and NYCCS. Presumably, it was recertified annually. Monitoring involved a number of different caseworkers, who all agreed that Destiny was loved, that her needs were being met, and that, in the event that Destiny could not return to her mother, she should be adopted by her aunt.
The Court has also considered that Ms. D. came forward to care for her niece immediately after her birth. She did not wait for years to pass and allow the child to become bonded to other caretakers. In addition, when Destiny was removed from her home, Ms. D. pursued every avenue to have her returned. She filed an Application for Judicial Action, she filed for custody, she pursued her administrative remedies and she voluntarily enrolled in a drug treatment program. Although Ms. D. understood that an award of custody under article 6 or article 10 would impose serious financial burdens on her and her family, she never hesitated to pursue those options.
See e.g., In re Amber B., 50 AD3d 1028 [2d Dept 2008] [Family Court properly denied maternal grandmother's application for custody and determined that the children's best interests required continuing custody with ACS so that they could be adopted by the foster parents since the children had been in same foster home since 2002, they had bonded with their foster parents; the foster parents were providing for children's special needs, and the children wished to remain with their foster parents; although the grandmother was not unfit, she had no relationship with the children during first three years of their placement]; Matthew E. v Erie County Dept. of Social Services , 41 AD3d 1240 [4th Dept 2007] [transfer of the child to the grandfather was not in the best interests of the child where the child entered foster care because the grandfather refused to take custody, he had little contact with her thereafter with the exception of one hour per week of supervised visitation and he did not petition for custody until months later, when it became evident that the child's mother would not regain custody]).
The Court has considered the need for stability in Destiny's life. Toward that end, the Court recognizes that placement or custody should be established on a long-term basis whenever possible since long — term stability is presumably in the best interests of the child. In the instant case, this factor supports the return of Destiny to the home of the maternal aunt where Destiny spent 30 months in a safe, stable, loving and nuturing envirnment.
The importance of maintaining continuity is recognized in NYCCS's own regulations ( see e.g., 18 NYCRR § 430.11 and 18 NYCRR § 443.6 [a]). The same policy considerations apply in the context of custody proceedings. Accordingly, it is well settled that a court, in deciding a modification petition, must consider the need for stability in child's life and that custody should be established on a long-term basis whenever possible ( Dintruff v McGreevy, 34 NY2d 887, 888 [1974]; Miller v Lee, 225 AD2d 778 [2d Dept 1996]). Toward that end, priority is accorded to the party who was first awarded custody by court order, stipulation or voluntary agreement ( Keating v Keating, 147 AD2d 675 [2d Dept 1989]; Patsy M.C. v Lorna W.C., 165 AD2d 813 [2d Dept 1990]; Monzon v Zaikowski , 21 AD3d 375 [2d Dept 2005]; Salvati v Salvati, 242 AD2d 538 [2d Dept 1997]). A change in custody will be ordered if, after consideration of all of the relevant factors, the court determines that there has been a change in circumstances and that the totality of the circumstances warrant a change in the child's best interests ( Eschbach v Eschbach, 56 NY2d 167 [1982]; DeCaprio v DeCaprio, 219 AD2d 575 [2d Dept 1995]).
In addition, the court has considered the quality of the home environment and parental guidance that the maternal aunt was able to provide, as well as her ability to provide for Destiny's physical, emotional and developmental needs. The Court has also considered the recommendations of the Law Guardian which strongly support the child being returned to the home of Ms. D. and her family.
Moreover, the Court has considered that custody with the maternal aunt will provide Destiny with the opportunity to continue to spend time with all of the members of her extended family. In the aunt's home, Destiny will grow up continuing to know her cousins and her mother's siblings, her mother and possibly her father, as well as numerous other relatives. These other relatives are already well known to Destiny and include her maternal grandmother and grandfather both of whom had initially expressed an interest in obtaining custody.
Finally, although the positive test results for Ms. D. and Mr. M. are deeply troubling, the Court rejects the assertion of NYCCS that they render the home unsuitable. Although Ms. D. and Mr. M. both testified that they used marijuana on only one occasion, NYCCS believes otherwise. Nevertheless, the evidence they presented is insufficient to establish repeated use.
The caseworker's testimony about her conversation with the agency counselor does not establish that Mr. M. tampered with his urine sample; nor does the article downloaded from the Internet establish that Ms. D. used marijuana after May 5, 2009. These facts relate to technical and scientific matters beyond the ken of the finder of fact and therefore could have been established, if at all, by expert testimony ( Weiner v Lenox Hill Hosp., 88 NY2d 784).
The fact that hearsay was admissible into evidence during this proceeding ( see Family Court Act § 1046 [c]), does not overcome the obstacle presented by NYCCS's attempt to introduce out of court statements of opinion provided by an agency counselor. Even if his statements are admissible, they are entitled to almost no weight. Since the agency counselor did not testify and was not subject to cross — examination, it remains unclear what facts he relied on in forming his opinion; whether he was qualified to render such an opinion; whether his opinion was based on a reasonable degree of certainty; whether there were other possible explanations for the high water content of Mr. M.'s urine, etc. NYCCS bore the burden of establishing the qualifications of any expert ( Catanese v Furman , 9 AD3d 863 [4th Dept 2004] [where plaintiffs failed to establish the qualifications of their expert, the trial court properly determined that the affirmation was not competent evidence]), which here, they never attempted to do.
It is within the discretion of the trial court to determine whether or not a witness is qualified to testify as an expert on a specific subject. The trial court has the initial responsibility of determining whether the witness has the necessary qualifications to be regarded as an expert. In order to qualify as an expert the witness must possess the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable. To be qualified as an expert for the purpose of giving an expert opinion, the witness must have some knowledge or experience in relation to the particular subject on which the opinion is to be offered. Unless the witness is qualified as an expert, their opinion is not admissible as expert opinion.
The same is true about the article down-loaded from the Internet. Even if the article is admissible it is entitled to no weight. Evidence about the length of time that marijuana could have remained detectable in Ms. D.'s urine could have been provided by an expert. The Court cannot, however, determine whether the author of an article who never appeared in court, who never met Ms. D., who is not a medical doctor and who has no familiarity with the case, is an expert. Furthermore, even if he were an expert he would not be permitted to reiterate the results of scientific experiments conducted by others not present in court based on material that was never introduced. Experts are not a conduit for the introduction of inadmissible hearsay.
It is well settled that to be admissible, opinion evidence must be based on one of the following: first, personal knowledge of the facts upon which the opinion rests; second, facts and material in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to cross-examination; and fourth, material not in evidence provided the out-of-court material is of the kind accepted in the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability. Expert opinion, based on unreliable secondary evidence, is nothing more than conjecture if the only factual foundation, as in this case, is someone else's interpretation of what an unproduced experimental result purportedly shows ( Wagman v Bradshaw, 292 AD2d 84, 86-87 [2d Dept 2002]).
Finally, even if the author of the Internet article were an expert and even if the material he relied upon was admissible, the article fails to support NYCCS's contention that Ms. D. used marijuana on more than one occasion. To the contrary, the article indicates that many factors influence how long marijuana remains in an individual's system and that it can result in a positive test result for up to 67 days.
The Court concludes that a direct placement of Destiny in the home of the maternal aunt is a more appropriate disposition than a final order of custody. Respondent mother continues to need services. Her parental rights have not been terminated and it is unclear whether the agency intends to proceed with the previously filed termination petition concerning Destiny, which they may do even if Destiny is directly placed with the maternal aunt (see Matter of Dale P., 84 NY2d 72). Moreover, since extraordinary circumstances were neither pled nor proved, a final order of custody could not be entered at this point in the proceeding (Family Court Act § 1055 — b [a]; Matter of Jacqueline Sharon L. v Pamela G. , 26 AD3d 250 [1st Dept 2006]). Finally, a direct placement will allow NYCCS to continue to monitor the home since Destiny cannot be directly placed in the custody of the maternal aunt, unless she consents to the jurisdiction of the court, something that she has already agreed to (Family Court Act § 1055 [a] [ii]).
2. Janea's Placement shall not be Modified Prior to the Dispositional Hearing
Based on the evidence adduced during the hearing, the Court denies the maternal aunt's petition for custody of Janea with leave to renew during the dispositional hearing on Janea's case (NN-012744/09). In certain respects, Destiny and Janea are not similarly situated. Although Destiny has already closely bonded with the maternal aunt and her family, Janea has not. In addition, although long term stability for Destiny requires that she be returned to the home of the maternal aunt, the same is not necessarily true for Janea. The goal for Destiny is adoption while the goal for Janea remains "return to parent." Respondent is currently participating in an in — patient drug treatment program and is reportedly doing well. Her attorney has indicated that she intends to seek to have Janea returned to her at the dispositional hearing. In order to avoid the possibility of destabilizing Janea and moving her repeatedly, the decision about whether to terminate placement and transfer her to a different home, will be made after a dispositional hearing.
In the meantime, Janea will continue to have weekend visitation at the home of the maternal aunt. These visits will enable her to spend time with her mother, her aunt and her sister, as well as other members of her extended family.
Nevertheless, it bears noting that NYCCS' remaining contentions are without merit. First, the assertion that the maternal aunt is incapable of providing for Janea's special needs since she was born with a positive toxicolgy to cocaine, is belied by the fact that the aunt took care of Destiny under the exact same circumstances. Second, the suggestion that the aunt has failed to express adequate interests in Janea is rejected. The fact that the aunt is more closely bonded to Destiny is not surprising since Destiny was placed in her home shortly after birth and spent the first 30 months of her life there. Third, the claim that respondent mother does not want Janea placed with the maternal aunt is simply incorrect. The respondent has repeatedly stated in open court that if the children cannot be returned to her, she wants both of them to live with her sister. The fact that respondent has expressed occasional ambivalence about her sister is not surprising given the complex circumstances in which these two sisters now find themselves. Fourth, since virtually no information has been provided about the non-kinship foster parents or the care they have provided to the children, the Court is unable to accept the assertion that they are in a better position to provide for both of the children's needs. Fifth, although NYCCS emphasizes the stability and companionship to be gained by keeping the siblings together in the non-kinship foster home, that option also exists in the home of the maternal aunt. Sixth, the aunt's inconsistent attendance at the drug treatment program has been adequately explained. She enrolled voluntarily. She was not court — ordered to attend. In addition, she was required to search for a full — time job or risk losing her benefits. Finally, the maternal aunt was required to take care of her other children.
Accordingly, it is
ORDERED, that the remand of the child Destiny is terminated and she is directly placed with the maternal aunt under the supervision of NYCCS; and it is further
ORDERED, that the maternal aunt shall undergo an evaluation to determine whether or not she requires treatment for a substance abuse problem and comply with any recommendations made as a result of that evaluation; and it is further
ORDERED, that the maternal aunt shall undergo a psychiatric evaluation to determine whether she requires treatment for anxiety or depression and comply with any recommendations made as a result of that evaluation; and it is further
ORDERED, that NYCCS shall make immediate referrals for both evaluations and, if necessary assist the maternal aunt in reinstating her health insurance coverage; and it is further
ORDERED, that the agency shall report in writing within 90 days whether it intends to proceed on the petition to terminate respondent's parental rights and whether it plans to seek a goal change for the child Destiny; and it is further
ORDERED, that the remaining provisions of the Permanency Hearing order shall be contained in a separate order that shall be issued within three days.