Opinion
12682.
Decided March 28, 2011
Sara Davis, Esq. for Petitioner Department of Social Services.
Sharon O'Hanlon, Esq. for non-respondent father.
Charles Cieszeski, Esq. for the children.
Procedural History
One year ago, on March 17, 2010, petitioner, Department of Social Services (hereinafter referred to as "Department"), filed a neglect petition against respondent mother, Sarah Hoyt. At the time of filing the non-respondent father, Dale Miner, was believed to be in the State of Montana. The petition did not request either pre-petition or post-petition removal.
The allegations involved failure to properly supervise the children, Austin Miner and Anna Miner (then ages 4 and 2 ½ respectively). Allegations also included unsanitary living conditions, locking the children inside their bedrooms for extended periods of time, failure to properly feed the children, and untreated mental health concerns of the respondent mother.
On March 18, 2010, the Court assigned Attorney Mary Felasco, Esq. to represent the respondent mother. Attorney Charles Cieszeski, Esq. was assigned to represent the children Austin and Anna Miner. The Court sent a summons to Sarah Hoyt by regular mail and a notice was mailed to Dale Miner.
At the initial appearance on March 25, 2010, the respondent mother appeared with her attorney and the non-respondent father appeared by telephone from the State of Montana. With her attorney by her side, the respondent mother explained that she could no longer care for her children because of her mental health problems. She requested that the children be temporarily placed in foster care. Because the non-respondent father was then unavailable to immediately care for his children, and because the children had some relationship with the proposed foster home, the Court placed the children with the Commissioner of Social Services. The Department was directed to begin the Interstate Compact for the Placement of Children (hereinafter referred as "ICPC") process for the non-respondent father. The Court also directed the Department to investigate other relative resources or other persons in the community with whom the children might have a connection. A permanency planning hearing was scheduled for November 18, 2010. A preliminary conference on the neglect was scheduled for April 5, 2010.
The Court was informed at this appearance that the Barker Foster Home had been used in the past to provide respite care for the children.
Both the respondent mother and non-respondent father were advised that should the children remain in foster care for 15 of the most recent 22 months their rights as parents may be terminated. Other ASFA findings were also made at the initial appearance.
At the preliminary conference 11 days later, the respondent mother appeared with her attorney and the non-respondent father appeared telephonically. Department of Social Services caseworkers Jessica Jones and Betsy Tubolino appeared with Senior Caseworker Kathy Verdoliva along with their Attorney Annalise Dykas. The Attorney for the Children was also present. Although the ICPC had been directed, the Department advised that the process had not started because the non-respondent father had lost his job and was returning to New York. Mr. Miner advised that he was remaining in Montana and wanted to be considered as a resource for his children. Mr. Miner also requested that his mother and brother, both of whom resided in New York be considered as a resource. Mr. Miner was directed to continue to communicate with the Department regarding his intentions to stay in Montana or return to New York. He was also given the phone number of the foster home so that he could communicate with his children.
Ms. Hoyt did not offer any alternatives living arrangements for her children.
At the settlement conference on May 27, 2010, the respondent was present with her attorney. The Court attempted, unsuccessfully, to reach Mr. Miner by phone. At that appearance, the respondent mother indicated that she was moving on June 1st to the State of West Virginia. She then indicated for the first time that her sister in West Virginia may be a resource. Ms. Hoyt also made a limited admission that her mental health issues put her children at risk of harm. An expedited ICPC was ordered to determine if the children should be placed in care in the State of West Virginia and the matter was adjourned for disposition.
An Order Directing Priority Interstate Compact was signed and entered on June 4, 2010.
On July 15, 2010, the non-respondent father appeared personally for the pretrial on disposition and the respondent mother appeared telephonically from West Virginia. Since Mr. Miner's return to New York, and after meeting with Caseworker Tubolino, a plan was made to provide the non-respondent father with voluntary preventive services including a parenting assessment and parenting classes. Mr. Miner agreed that his brother's home where he was residing was too small for he and his children, and stated that he would begin saving money and searching for an apartment. The Department was ordered to "final discharge the subject children to Dale Miner" once he located suitable housing "unless there is imminent risk of harm." In the event that children would be at imminent risk if final discharged to the non-respondent father, the Department was ordered "to request a calender restoration immediately". The matter was adjourned until August 18, 2010 for a disposition on the neglect, as well as for a determination on need to continue the West Virginia ICPC.
This Order was signed and entered on August 18, 2010.
See August 18, 2010 Order. No petition has ever been filed seeking either a modification or a violation of this Order. The Department did not raise the question of Mr. Miner's suitability at this appearance.
An ICPC would not be needed if the children were discharged to their father. At this appearance Department Caseworker Tubolino indicated that she had no communication from West Virginia on the ICPC, nor that she was aware of the name of the caseworker in Cabell County where Ms. Hoyt resided.
Mr. Miner had not located an apartment by the August 18, 2010 appearance. The children were reportedly getting early intervention services in the foster home, and the Court questioned why these services could not be offered to the children in Mr. Miner's temporary residence, so that he could have additional parenting time with his children. Additionally, the Department requested, and Mr. Miner again agreed to cooperate with, a parenting assessment. Mr. Miner also agreed to engage in parent educator services. Disposition was adjourned until September 7, 2010 to give the Court and parties an opportunity to review the results of the parenting assessment.
The Parenting Assessment was conducted by Thomas A. Lazzaro, Ph.D. on August 26, 2010.
Mr. Miner also submitted to a substance abuse evaluation. The evaluation was conducted by Farnham Family Services. Mr. Miner attended appointments on August 23, 2010 and October 28, 2010. No treatment was recommended in a report dated November 4, 2010.
On September 7, 2010, the Court conducted an off-the-record pretrial discussion with the Department's counsel and the Attorney for the Children. At the pretrial, the Department and the Attorney for the Children requested a suitability hearing citing the Second Department's decision in Matter of Jesse M. ( 73 AD3d 780 , 899 NYS2d 666). Based upon this request, the Court assigned attorney Sharon O'Hanlon, Esq. to represent Mr. Miner in a suitability hearing.
Mr. Miner did not have an attorney at that time, as he was not a respondent.
At the hearing on the same day, the Department called Dr. Lazzaro as a witness. The Court marked and received Petitioner's Exhibit #1, which was identified by Dr. Lazzaro as his report on Mr. Miner's parenting assessment. Both Dr. Lazzaro's testimony as well as his written report, concluded "in this psychological examiner's opinion, with a reasonable degree of psychological and professional certainty, [that] Mr. Miner's children WILL NOT be at risk of neglect or abuse in his care"(emphasis added).
This was received noting that Attorney O'Hanlon had insufficient time for review.
Although he had not evaluated the children, based upon the Department's description that both children were "severely globally delayed," as well as information that Mr. Miner's visitation with the children was limited, Dr. Lazzaro recommended that the children become more comfortable with their father before being placed in his custody.
Following Dr. Lazzaro's testimony, the Court directed a minimum of two visits each week between Mr. Miner and his children, with the Department having discretion to increase the visits. Since no safety issues had been identified at Mr. Miner's brother's home, the Court ordered that the visits take place at Mr. Miner's residence. The matter was adjourned until September 24, 2010 for an update on the respondent mother's mental health services and the West Virginia ICPC, as well as an update on the progress of Mr. Miner's search for housing and the expansion of visitation. Finally, based upon Dr. Lazzaro's testimony, the Court ordered that the children be evaluated by Dr. Lazzaro's partner, Dr. Isabella Rauh-Ivers.
The Court also ordered that the Department provide a copy of Dr. Lazzaro's report to Mr. Miner's mental health provider at Oswego Hospital Behavioral Health.
The Court notes that despite being ordered on September 7, 2010, this evaluation never occurred until December 8, 2010 (Austin) and December 20, 2010 (Anna). The children were additionally evaluated at Upstate Medical University, Kevin M. Antshel, Ph.D. These evaluations did not occur until February 14, 2011.
On September 24, 2010, Mr. Miner reported having continuing difficulty locating appropriate housing. It was also reported that the parent educator had begun working with Mr. Miner, and the child Austin, had begun a Head Start program. Visitation was increased to a minimum of three times per week between Mr. Miner and his children.
It was reported that Mr. Miner was on a HUD waiting list. It was expected to be one year before a subsidized apartment would be available. The Department agreed to assist with the security deposit by providing an assurance letter.
Sarah Hoyt, respondent mother, did not appear either in person or by telephone. There was also no report on the West Virginia ICPC.
On October 27, 2010, Mr. Miner reported that he had located a two bedroom house in the City of Fulton. It was also reported that the parent educator was ready to start providing services to Mr. Miner. The matter was further adjourned for the permanency planning hearing on November 18, 2010 and for a disposition on the underlying neglect by respondent parent, Sarah Hoyt.
It was also agreed that DSS would assist with the security deposit, that Mr. Miner would get some assistance with utilities, and that he would work with Catholic Charities to furnish the apartment. It was also clear to everyone that Mr. Miner's limited SSI payment of $781.20 would not support his and his children's needs, but it was anticipated that he would receive additional food stamps and cash assistance once they were in his custody.
The Court notes that Mr. Miner agreed to this service over two months earlier at the August 18th appearance.
At the permanency planning hearing on November 18, 2010, non-respondent father, Dale Miner, was present with his attorney, Sharon O'Hanlon. Respondent mother, Sarah Hoyt, appeared telephonically from West Virginia. Her attorney Mary Felasco was personally present. Attorney for the Children, Charles Cieszeski and Foster Mother Lavaun Barker were present, as well as Caseworkers Buske and Tubolino with their attorney Sara Davis.
The Permanency Hearing Report was marked and received as Petitioner's Exhibit #1. Therein the Department proposed that the goal be return to parent. Based upon the report and the sworn testimony of those present at the hearing, including Mr. Miner's continued interest in having custody of his children, the Court ordered Mr. Miner to cooperate with play therapy, which was anticipated to start for the children at some point in the future. Mr. Miner did not object to this. Expanded visitation was also ordered, upon consent of the Department, to include overnights every weekend from Friday until Monday, with additional visitation at such times when school is not in session, from Wednesday until Monday. At the conclusion of the permanency planning hearing the Court made certain findings pursuant to the Adoption and Safe Families Act which included, among other things, continuing the goal of return to parent. Since there was still no ICPC report from the State of West Virginia, the matter was adjourned to December 20, 2010 for further consideration on permanency matters for the children and for disposition on the respondent mother's neglect.
On December 20, 2010, the Department again requested a suitability hearing which was scheduled for January 7 and 10, 2011. The decision of the Court was to first hear the matters as they might relate to Mr. Miner's suitability, followed by evidence relating to disposition.
On January 7th, an another extensive off-the-record pretrial conference was held. All interested parties agreed to adjourn the matter regarding Mr. Miner's suitability for an additional six (6) weeks based upon the recommendation of Dr. Isabella Rauh-Ivers that the children receive full evaluations which had not been scheduled or completed. The dispositional hearing was to continue at 10:30 am on January 10, 2010.
Dr. Rauh-Ivers' report, dated January 4, 2011, was received by facsimile the day before the Court appearance on January 6, 2011. Also see footnote 15.
Attorney Felasco took no position on the adjournment request as she had not heard from her client. Attorney Felasco provided a letter to the court that she had advised Ms. Hoyt that if she failed to appear in person or by phone on January 7th, and if she continued her lack of cooperation, that she would seek to be relieved as her attorney. Based upon the letter and the verbal warnings provided to Ms. Hoyt by the court at the initial appearance, the Court granted Attorney Felasco's request, relieving her as the respondent mother's attorney.
On January 10th Mr. Miner appeared with his attorney. Sarah Hoyt, respondent mother, appeared by telephone. After advising Ms. Hoyt that the Court had relieved Attorney Felasco, a dispositional order was entered on consent findings, including that it was in the best interests of the children to remain in foster care pending completion of the hearing on Mr. Miner's suitability. Again, the stated goal of the Department and the Court was return to parent. At that appearance the Department verbally reported on the status of the ICPC which was said to have been refused because the Department's counterparts in West Virginia had been denied access to the home.
No sworn testimony was taken at this appearance. The findings made by the Court that it would be in the children's best interests to remain in care was done upon consent of the parties, and with the clear understanding that the question of Mr. Miner's suitability would be left for another day. Attention is directed to page 8 of the dispositional order entered on January 24, 2011.
The final disposition of the respondent mother's case was a 12 month supervision order.
See Dispositional Order entered January 24, 2011. Based upon correspondence from the Department, dated December 13, 2010, the court, by letter dated January 11, 2011 found that the State of West Virginia had determined that the residence of Sarah Hoyt was not appropriate for the Miner children based upon non-compliance by members of the household.
The hearing on suitability began on February 28, 2011 and continued on March 16th, March 17th, and March 24th.
The non-respondent father, Dale Miner, along with his attorney, Sharon O'Hanlon, was present throughout the hearing, as was the Attorney for the Child, Charles Cieszeski. Attorney Sara Davis represented the Department.
The Department called the following witnesses: Jessica Duschen, Catholic Charities Parent Educator; Dr. Kevin M. Antshel, Associate Professor of Psychiatry at SUNY Upstate Medical University and Licensed Psychologist; Dr. Jodi Mullen, Director of Integrative Counseling Services and Certified Play Therapist; Isabella Rauh-Ivers, Ph.D., Licensed Clinical Psychologist; and Sara Fuller, Department of Social Services caseworker. On consent of the parties, Dr. Antshel and Dr. Rauh-Ivers were certified as experts to offer expert opinion. Also on consent, Dr. Mullen was certified as an expert in the field of Play Therapy.
Upon agreement of the parties, the non-respondent father's attorney was allowed to call one witness out of order, namely Penny Eiss, the children's paternal grandmother.
At the close of petitioner's direct case, non-respondent father moved for a judgment as a matter of law for failure of petitioner to establish a prima facie case that the non-respondent father is unsuitable to care for his children. The motion was denied as it was unclear whether the Court was to consider Dr. Lazzaro's testimony which was offered as part of the Department's case in an earlier hearing. Additionally, the Court could not overlook the testimony of Penny Eiss, which was taken out of order and favorable to Respondent. Finally, and most importantly, to grant such a motion would have resulted in a lost opportunity for the Attorney for the Children to put on evidence in support of his position.
In addition to Ms. Eiss, the non-respondent father testified on his own behalf.
The Attorney for the Children called no witnesses.
At the conclusion of the hearing, the Department requested that the Court consider Dr. Thomas Lazzaro's testimony on September 7, 2010. The Attorney for the Children and respondent's counsel supported the request.
The Court also considered the following exhibits: Dr. Antshel's Report of Neuropsychological Assessment for the child, Austin Miner (Court's Exhibits #1); Dr. Antshel's Report of Neuropsychological Assessment for the child, Anna Miner (Court's Exhibits #2); Dr. Rauh-Ivers' Psychological Examination Report of both children (Petitioner's exhibit #1); the Child Permanency Mediation Agreement (Non-Respondent father's exhibit # 1); and Dr. Lazzaro's Parenting Assessment of Dale Miner (Petitioner's exhibit # 1 from September 7, 2010).
Findings of Fact and Conclusions of Law
It is well settled law that "the State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances. If any of such extraordinary circumstances are present, the disposition of custody is influenced or controlled by what is in the best interest of the child" ( Matter of Bennett v Jeffreys, 40 NY2d 543, 544, 387 NYS2d 821, 356 NE2d 277). "Absent extraordinary circumstances, narrowly categorized, it is not within the power of a court, or, by delegation of the Legislature or court, a social agency, to make significant decisions concerning the custody of children, merely because it could make a better decision or disposition" ( id., at 545 [citations omitted]).
Where extraordinary circumstances are present, "the best interest of the child has always been regarded as superior to the right of parental custody" ( id., at 546). "Indeed, and this is key, the rights of the parent and the child are ordinarily compatible, for the generally accepted view that a child's best interest is that it be raised by its parent unless the parent is disqualified by gross misconduct' . . . except when disqualified or displaced by extraordinary circumstances, parents are generally best qualified to care for their own children and therefore entitled to do so" ( id., at 547-548 [citation omitted]).
"[A] determination that extraordinary circumstances exist is only the beginning, not the end, of judicial inquiry. Extraordinary circumstances alone do not justify depriving a natural parent of the custody of a child. Instead, once extraordinary circumstances are found, the court must then make the disposition that is in the best interest of the child" ( id., at 548).
The Court of Appeals' decision in Bennett involved Article 6 custody rights between a parent and a third party. Three years later, in 1979, the Court of Appeals had an opportunity to apply the Bennett principals to a permanent neglect proceeding between a mother and the local social services district ( see Matter of Sanjivini K., 47 NY2d 374, 418 NYS2d 339, 391 NE2d 1316). Combining the requirements of Social Services Law § 384-b and the holdings in Bennett, the Court held that ". . . it is fundamental to our legal and social system, that it is in the best interest of a child to be raised by his parents, unless the parents are unfit"( Sanjivini K., at 382 [citations omitted]). Citing Social Services Law, the Court held that "a court may not terminate all parental rights by offering a child for adoption when there has been no parental consent, abandonment, neglect or proven unfitness, even though some might find adoption to be in the child's best interests"( id., at 382 citing Matter of Corey L. v Martin L., 45 NY2d 383, 408 NYS2d 439, 380 NE2d 266.)
The case involved a mother who temporarily placed her infant daughter in foster care with a County Department of Social Services. The department repeatedly denied her requests that the child be returned to her, and for several years had sought to offer the child for adoption by attempting to prove, in successive proceedings and on a variety of grounds, that the mother was unfit. Despite financial and legal obstacles, the mother maintained ties with her daughter and in the various proceedings it was held that she has not abandoned or neglected the child and was not otherwise unfit. The department's position on appeal was that it would be in the child's "best interests" to be freed for adoption by the foster parents with whom she has resided throughout the prolonged litigation.
The Court notes that the child was placed in foster care in 1966 and was not returned to her mother until 1979. No finding of abandonment was made despite gaps in visitations which were, at times, more than six (6) months long.
Later that same year the Court reinforced these principals in a Fourth Department case also involving permanent neglect ( see Matter of Leon RR., 48 NY2d 117, 397 NE2d 374, 421 NYS2d 863). Again, the Court of Appeals declared "[s]imply stated, parents who are fit to raise their child are constitutionally entitled to do so" ( id., at 124). The Court said that the consideration may not "be accomplished with reference to one's belief of where the best interests of the child might lie. . . As we have stated previously, a court may not terminate all parental rights by offering a child for adoption when there has been no parental consent, abandonment, neglect or proven unfitness.'" ( id., citing Sanjivini K.; see Stanley v. Illinois, 405 US 645, 657-658, 92 SCt 1208, 31 L Ed2d 551).
These issues were again reaffirmed by the Court in Matter of Male Infant L. ( 61 NY2d 420, 462 NE 2d 1165). "It has long been the law in this State that a parent has a right to the care and custody of a child, superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood'" ( id., at 426, [citations omitted]). "In the absence of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances, `a parent may not be denied custody" ( id., [citing Bennett]). "The State may not deprive a natural parent of her child's custody merely because a court or social agency believes it can decide more wisely than the parent or believes it has found someone to better raise the child. So long as the parental rights have not been forfeited by gross misconduct or other behavior evincing utter indifference and irresponsibility the natural parent may not be supplanted" ( id., at 426 [citations omitted]). "Indeed, even where such forfeiture' or extraordinary circumstances' are found to exist, the best interests of the child must still thereafter be determined before the natural parent may be displaced. Otherwise, the question of best interests itself is not even reached. For once it is found that the parent is fit, and has neither abandoned, surrendered, nor otherwise forfeited parental rights, the inquiry ends and the natural parent may not be deprived the custody of his or her child" ( id.).
Since these landmark cases, there have been numerous occasions for Appellate Court guidance on the question of what constitutes surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances, such that a parent may be denied custody over non-parent.
A prolonged period of separation was found not to be an extraordinary circumstance where the separation occurred during the mother's repeated attempts to regain custody ( see Matter of William I. v Schenectady County Dept. of Social Servs., 102 AD2d 482, 478 NYS2d 120 [3d Dept 1984]).
Mother, who had a history of mental illness, placed two children with the Department of Social Services. Mother thereafter cooperated with the Department's plan, taking all the steps necessary to treat her mental illness. She utilized support services, took her medications, and moved from a halfway house to her aunt's house, securing the return of one child. An earlier termination of parental rights petition had been dismissed when the Department failed to prove its case. Throughout the various court proceedings, mother had made it clear that she wanted both children returned. The Family Court found "extraordinary circumstances" as to the second child because he had been separated from mother at birth, had "psychologically bonded" to the foster parents, and "much of the subsequent separation was a result of proper legal processes" ( id., at 485). The Appellate Division reversed, holding that the Family Court "lacked a basis for finding that extraordinary circumstances existed so as to permit it to look to the best interest of the child," noting that "the record included no evidence of surrender, abandonment or persisting neglect, and the agency had previously failed to prove its case alleging [mother's] unfitness" ( id.) The Court specifically found that the lengthy separation of mother and child and the resultant closer bond between the child and the foster parents were insufficient to establish extraordinary circumstances within the meaning of Bennett.
In another similar case, the Second Department found that the extended period of separation was not due to an abandonment of the child by the father nor even the lack of interest or concern in the child's welfare, but the actions of the Department and the pace of the proceedings ( see Matter of Alfredo S. v Nassau County Dept. of Social Servs., 172 AD2d 528, 568 NYS2d 123). The Alfred S. Court held that "[t]he principles governing custody disputes between a natural parent and a third person are firmly established in the decisional law. A natural parent has a claim to the custody of his or her child superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood'" ( id., at 529 [citing Male Infant L.]). Reinforcing that custody disputes between a natural parent and a third party involve a two-step analysis, the Court stated that "[f]irst, there must be a threshold showing of surrender, abandonment,
Father, who had a history of drug abuse, had initially given custody of his daughter to the Department of Social Services at birth, and the child remained in the custody of the Department for two years. Although he visited with the child infrequently due to a lack of transportation, father had exhibited an interest in and concern for the child, particularly demonstrated by his persistence in seeking to obtain custody.
persisting neglect, unfitness or other like extraordinary circumstances' to justify the State's intrusion into the family domain" ( id., citing Bennett; Male Infant L.]). "Until the threshold of extraordinary circumstances' has been satisfied, the second prong of the analysis, i.e., the question of the child's best interests, is not reached" ( id., at 529, 530). In rejecting the lower court's determination that the father had failed to demonstrate that he would be a proper custodian for the infant and the child would be at risk in the petitioner's custody, the Second Department held "under circumstances such as these, although the initial relinquishment of custody was with the natural parent's consent, the separation between the natural parent and the child does not rise to the level of an extraordinary circumstance triggering a best interests inquiry" ( id., citing Male Infant L., supra]).
Later that year, the Second Department again addressed a parent's right to custody against a third party in a father's petition for paternity and custody against the Department of Social Services ( see Matter of John H. v Suffolk County Dept. of Social Servs., 174 AD2d 669, 571 NYS2d 531). In rejecting the lower court's best interests hearing' the Court held that the "Department of Social Services must either proceed under Family Court article 10 to obtain a finding of abuse or neglect, or make a threshold showing of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances' before proceeding to a best interests hearing'" ( id., citing Bennett, supra; Alfredo S., supra).
Father commenced a proceeding seeking custody of his then four-month-old daughter born out of wedlock. The day after the child was born, her mother, who was deceased at the time of the decision, voluntarily relinquished custody to the Department of Social Services. The child was immediately placed in foster care.
In 2006, the Fourth Department, in the Matter of Amber S. ( 30 AD3d 1032 , 817 NYS2d 797 [4th Dept 2006]), concurred with these holdings. In that case the non respondent father's "status as the child's biological parent, and the fact that there has been no finding of neglect, abandonment, unfitness or other extraordinary circumstances" could not justify continuing interference with the father's parental rights ( id., at 1033-1034, citing Matter of Shane OO., 228 AD2d 805, 806-807, 644 NYS2d 113 806, 644 NYS2d 113; Matter of Alex LL. v Albany County Dept. of Social Servs., 270 AD2d 523, 526-527, 703 NYS2d 577; cf. Matter of Frederick MM., 201 AD2d 842, 608 NYS2d 340, lv denied 83 NY2d 760, 616 NYS2d 14, 639 NE2d 754). In finding that Family Court erred in dismissing the petition without a hearing, the Fourth Department held that "[d]ue process requires that petitioner at least be afforded an opportunity to put respondent to its proof . . . before being deprived of his fundamental right to raise his daughter" ( id., at 1033).
The facts, similar to those at bar, in pertinent part, are as follows: the child was 9 months old when her parents ended their relationship and the father moved to the State of Wisconsin. When the child was five years of age, the respondent mother was found to have neglected the child and the child was placed in respondent's custody. At a subsequent appearance, the non respondent father personally appeared and made an oral application for custody of his daughter. The Court ordered that a home study be conducted and ordered that non-respondent father take a parenting class. The record establishes that petitioner completed the class. In December 2004 petitioner filed a petition seeking to terminate the child's placement with respondent. He alleged in his petition that the child should be returned to him because he was a fit parent and had complied with the Court's directives concerning the home study and the parenting class. Respondent opposed the petition.
In this case, the Department asks the Court to find that the "best interest" standard applies, citing Matter of Sahara K. ( 66 AD3d 1024 , 888 NYS2d 132 [2nd Dept 2009]; Matter of Jesse M. , 73 AD3d 780 , 899 NYS2d 666 [2nd Dept 2010]; Matter of Harriet U. v Sullivan County Dept. of Social Servs., 224 AD2d 910, 638 NYS2d 518 [3rd Dept 1996}; Matter of Keith B. , 29 Misc 3d 969, 908 NYS2d 559 [Family Court, Clinton County, 2010]; and Matter of Deborah E.C. v Shawn K. , 63 AD3d 1724 , 883 NYS2d 401 [4th Dept 2009]). The Attorney for the Children agrees. The non-respondent father seeks to have the Court apply the principals of Bennett v Jeffreys, and cites to Family Court Act § 1017 in support of the position that the standard to be applied is "suitable."
Section 1017 applies "[i]n any proceeding under this article, when the court determines that a child must be removed from his or her home, pursuant to part two of this article [Temporary Removal or Preliminary Orders], or placed, pursuant to section one thousand fifty-five of this article. see Family Court Act § 1017(1). This section further provides, in pertinent part, that "[t]he court shall determine: (a) whether there is a suitable non-respondent parent or other person related to the child with whom such child may appropriately reside."
The Department's position that Sahara K. requires a "best interest" standard in the first instance is a misreading of that Court's holding. In that case the best interest test was applied only after the Court made a determination that the parent was unable to care for the child. It is unclear from the decision what facts supported the determination that the parent was unable to care for the child, however, considering its limited discussion of the facts, the holding of Sahara K. is not inconsistent with the law set forth above. Specifically, if the facts support a finding of extraordinary circumstances, then there must be an analysis as to what is in the child's best interests.
The local Department of Social Services appealed the decision of the Family Court that continued placement of the subject child in foster care. In that case the Department sought to have the child released to the custody of the non-respondent mother. Finding that there was evidence in the record to support the Family Court's determination that the non-respondent parent was unable to care for the child, the Second Department agreed that continued placement in a foster home would be in the child's best interests, and that placement of the child should be extend pursuant to Family Ct Act § 1055 [b]. The record revealed that the mother had committed a violent felony against the respondent father, and that she had either one or two other arrests for engaging in assaultive behavior. Since the psychological evaluation did not shed any light on the mother's ability to parent the child, the Second Department agreed that the child should remain in foster care pending further forensic evaluation of the parties.
Likewise the Department's reliance on Deborah EC and Harriet U. are misplaced, as both involved custody applications by non-parents and both address extraordinary circumstances before reaching the question of best interest.
In Deborah EC, the Fourth Department found that there is now an explicit "best interests" standard of review to grant art. 6 or art. 10 custody to a non-parent ( 63 AD3d 1724, 1725, citing Harriet U., supra). It is well settled that extraordinary circumstances must be also be found.
In Matter of Jesse M. ( 73 AD3d 780 , 899 NYS2d 666 [2nd Dept 2010]), the Court held that Family Court improvidently exercised its discretion in awarding temporary custody of the children to the "non-party" father without a hearing. In that case there were questions of fact that existed as to whether the father was a suitable temporary custodian under Family Ct Act § 1017 (1) (a). The Court found that a hearing was necessary to determine the question of his suitability. Citing Matter of Deborah E.C. , 63 AD3d 1724 , 1725 [4th Dept 2009] and Matter of Harriet U., 224 AD2d 910, 911 [3rd Dept 1996], the Second Department, departing from their previous holdings, defined suitability as requiring a best interest determination. For reasons unclear to this Court and not stated in the decision, the Second Department held that its own decision in the Matter of Alfredo S. ( 172 AD2d 528 [2nd Dept 1991]) did not apply. For the reasons cited herein, this Court can not agree with the statement that suitability requires only a best interest determination.
This Court, with due deference to my colleague in Clinton County, finds the decision in Keith B. to be unpersuasive, as well as wholly lacking a basis in law. Since there were no facts presented in its decision it was impossible to determine if the facts might have supported a finding of neglect, abandonment, unfitness or other extraordinary circumstances such that the Court might have properly reached the question of best interests. The Court understand, however, that such is set forth in a separate decision which has not been made available.
The word "suitable" is found throughout Article 10 of the Family Court Act to describe parents or other persons. The word has only recently found its way into decisional law. Suitable is defined as "fit and appropriate for their intended purpose." Black's Law Dictionary (9th ed. 2009). While the use of the word is unfamiliar in decisional law, it should not and can not alter the standard which is required to displace a parent's right to raise his children, or a child's right to be raised in a permanent loving home.
see Family Court Act §§ 1017, 1027, 1052, 1055, and 1055-b.
Had the Legislature used the word "fit" instead of "suitable" the statutory requirements and decisional law would have been aligned.
Substituting then the word "fit" for the word "suitable" throughout Article 10 allows the Court a clear standard to apply in deciding when it is appropriate to "place" "return" or grant "custody" to a non-respondent parent. The analysis then is where there is "no finding of abuse or neglect, abandonment, unfitness or other extraordinary circumstances" there can be no reason for continuing to denial of custody ( see generally, Amber S., supra). Therefore, the Department of Social Services must either obtain "a finding of abuse or neglect, or make a threshold showing of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances' before proceeding to a best interests hearing'" ( see generally, John H., supra). Stated in the alternative, the question of best interests itself is not reached if there is evidence to support a finding that the parent is fit (suitable), and the parent has neither abandoned, surrendered, nor otherwise forfeited parental rights by any like extraordinary circumstances ( see generally, Male Infant L., supra).
Based upon the foregoing analysis, the Court finds that there is a presumption of suitability of a parent in the absence of abuse or neglect, abandonment, unfitness or other like extraordinary circumstances. The burden of proof is on the party seeking to deprive the natural parent of custody ( see Alfred S., 172 AD2d at 530). In assessing whether the Department has met its burden of demonstrating neglect, abandonment, unfitness or other like extraordinary circumstances the trial Court should consider reports, the length of time the child had been in foster care, and the relationship the children have developed with their foster parents, in order to reach the question of the child's best interests ( see John H., supra). A period of separation which is in large measure attributable to the pace of the proceedings, should not be permitted to deprive the natural parent of custody by claiming the prolonged separation constituted an "extraordinary circumstance" ( see Alfredo S., 172 AD2d at 530).
The Alfred S. Court held that "[i]n denying the father's application for custody, the Family Court erroneously placed the burden upon him to demonstrate his fitness as a parent.
In this case, there has been no finding that Dale Miner abused or neglected his children and upon the facts presented during the hearing the Court could not so find (see generally Nicholson v Scoppetta ( 3 NY3d 357 , 368). In addition, the Department presented no evidence to support a finding of persistent neglect.
It has been held "that for persistent neglect' to qualify as an extraordinary circumstance' a showing of statutory permanent neglect,' as defined by Social Services Law § 384-b[4], must be made." ( see Sobie, 10 NY Prac Series, Fam Ct. § 10:7) [citations omitted]).
Mr. Miner admits that he could benefit from a parent educator and that the support of family and friends will be necessary for him to provide care for his children. Since his return in July, 2010, Mr. Miner has done everything that has been asked of him. He has submitted to a substance abuse evaluation, parenting assessment, found housing, engaged with parent educator services and Fulton Youth and Family services. He has participated in counseling and medication management. While his participation has been less than perfect, it is noteworthy that he has offered reasonable explanations. There is nothing to indicate that Mr. Miner's family and friends are inappropriate supports for him and his children and the Court can not find that it inappropriate for a single parent with two children to require support. The Court finds Ms. Eiss to be a truly loving and concerned grandparent who would insure, to the best of her ability, that her grandchildren are properly cared for.
Death of a grandparent, medication changes causing drowsiness, late notice or no notice by the Department/foster parent of appointments, exterior doors that have prevented services from entering his apartment and public transportation schedule challenges.
Although not reviewed by the Court or admitted into evidence, testimony of Ms. Eiss indicated that earlier in the proceeding she supported the children not being with Mr. Miner.
The testimony of the parent educator and Department caseworker establishes that Mr. Miner needs work on budgeting and time management skills, both areas in which many parents in this country could well afford to have assistance. The Department and Attorney for the Children point to Mr. Miner's recent purchase of a "Blackberry", while lacking sheets for Austin's bed and hats and mittens for the children, as evidence of Mr. Miner's unfitness. The Court can not agree. While the purchase may not have been the best decision, it does not rise to the level of unfitness. The Court is aware that Mr. Miner is living on a limited income, and has sought out the assistance of friends and community resources to furnish his home for his children. Despite living on Social Security and other benefits for a household of one, Mr. Miner has been able to provide for his children during their visits. While the meals may have been basic, there was no testimony that the children are not being fed while with their father.
While the Department contends that it is not in the children's best interest to be with their father because he doesn't have sheets, hats, mittens and a sufficient amount of clothing, it has provided clothing allowances and foster care payments to the foster parents.
The Court does not overlook Ms. Fuller's testimony that she only saw rotten meat in the refrigerator on her recent visit, but finds Mr. Miner's testimony that grocery shopping is done daily is a sufficient explanation for the lack of fresh items given his proximity to the grocery store.
It is uncontroverted that Mr. Miner needs work on hygiene and safety issues. This however does not make him unfit. In this country, particularly in cities such as Fulton, New York, families must go to the laundromat, sometimes with their children. This Court has personally witnessed many families walking to the laundromat, with children and laundry in tow, in order to provide clean clothing and bedding for their families. It is not inappropriate for Mr. Miner to do the same, in fact it is very appropriate. Mr. Miner testified that he bathes his children nightly, that he hand washes the clothes when necessary, and that he is aware how to properly care for his children's toileting needs. There was no credible proof otherwise on this issue. The Court finds unpersuasive Ms. Fuller's testimony that she knew that Mr. Miner had not hand washed the clothing given that they "appeared soft, like they had fabric softener." Additionally, while there was some testimony that the child Anna had an odor or smell, without more the Court can not conclude that it was a result of improper hygiene by Mr. Miner. The parent educator testified that the children "appeared clean" and the caseworker testified that she "did not notice that the clothes smelled of urine."
As to safety issues, there was significant evidence that Mr. Miner has loose tobacco on his table, that there are pliers, knives and scissors within reach of the children, and that Mr. Miner has been seen leaving handles of pots exposed in the area where the children may be walking while cooking on the stove. The testimony of the parent educator was that there was nothing else "major" to be concerned about with regards to safety. In spite of this she was "not comfortable recommending that the kids go home, because they could get hurt." This clearly can not be the standard upon which the Court denies a parent his right and responsibility to care for his children.
Nor does the Court believe that the Department supports such a standard.
There was also significant testimony on transportation issues and missed appointments. Ms. Fuller testified regarding an incident in February, 2011 wherein she had to assist Mr. Miner and the children for a Monday dental appointment. It is believed that the foster mother made the dental appointment, but that she did not inform Mr. Miner of the date or time, and that the Ms. Fuller notified Mr. Miner of the appointment as soon as she learned of it later in the week. Mr. Miner did not receive bus tokens in time to get to the appointment by bus with his children, as Ms. Fuller's did not send the bus tokens to Mr. Miner until Friday. Under the circumstances Mr. Miner had no choice but to walk his children in terrible weather conditions to the dental office which was ½ to ¾ mile from his home. Mr. Miner would have been equally criticized for failing to get his children to the appointment. The Court also believes, based upon its assessment of Mr. Miner, that he has a strong desire to care for his children and that he will schedule appointments for them keeping in mind his restricted transportation options.
The Court notes that the children's play therapy appointments are also on Mondays.
The Court believes that Mr. Miner did not receive them in the mail on Saturday, and can not find that Mr. Miner would have walked his children to the dentist if he had received the bus tokens timely.
Had he not been under the watchful eye of the Department, he might have cancelled and rescheduled the appointment. The Court notes that the children did not get a dental appointment six months earlier while in foster care.
The children themselves have missed several play therapy appointments since beginning with Integrative Counseling in January, 2011. Out of six (6) scheduled weekly appointments prior to February 28, 2011, the children missed three (3). The first missed appointment was cancelled due to weather. The second was missed due to transportation problems as the appointment was scheduled on a holiday. The third missed appointment was due to the children arriving late and, at least as to the child Austin, Dr. Mullin was already engaged in her next appointment. Of the other three (3) appointments held prior to February 28, 2011, Mr. Miner was present for the first appointment, arriving early, even before the caseworker aide arrived with the children. It is unclear from the testimony who was responsible for transporting the children to the third missed appointment, but even assuming that it was Mr. Miner's responsibility, the Court can not conclude that Mr. Miner willfully failed to take his children to the appointment. Further, on recall Dr. Mullin testified that of the two (2) appointments subsequent to her February 28th testimony, no appointments were missed and they were at the appointments with their father. The Court can not conclude that Mr. Miner will not take his children to their appointments.
This was a legal holiday for Department Staff.
At one time Mr. Miner's parent educator services were closed because of missed appointments. This service began sometime after October 27, 2010. The service was cancelled because Mr. Miner missed three (3) or four (4) visits. He meets with the parent educator weekly, so it is unclear how many appointments he did keep. Dale has never refused to work with the parent educator. Since the case reopened Mr. Miner has missed one appointment. There were no specific dates provided for these missed appointment. He missed another appointment on March 23rd (the day before his testimony) which was rescheduled for March 25, 2011 (the day after his testimony). The Court finds that Mr. Miner provided reasonable explanations for missed appointments ( see f footnote 38).
Based upon the evidence presented the Court can not find that Mr. Miner is unfit to parent his children.
Likewise, despite the Attorney for the Child's position, the Court can find no abandonment of the children by their father ( see Social Services Law § 384-b [a]). The Attorney for the Children, as the proponent on the theory of abandonment, bears the burden to establish evidence in support of abandonment. The uncontroverted testimony of Mr. Miner establishes that he left the family sometime in September of 2009 to pursue job opportunities in the State of Montana. While in Montana, he communicated with the children, albeit on a limited basis. Although he did not provide any support for the children, this alone is insufficient to establish abandonment, if it were so many a "deadbeat parent" would be found neglectful by way of abandonment. Additionally, it is significant, that although the Department knew that Mr. Miner was in Montana at the time of the filing of the neglect petition, it chose not to make any allegations of neglect by abandonment against Mr. Miner when it filed its petition against Ms. Hoyt. Further on the facts of this case the Court can not find the abandonment such that it might establish extraordinary circumstances.
Sect. 384-b (5) (a) defines an abandoned child as "abandoned" by his parent if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency.
"Under FCA § 1012 (f) (ii), a finding of neglect may be made when the child has been abandoned, in accordance with the definition and other criteria set forth in [SSL § 384-b(5)], by his parents'" ( see Sobie, 10 NY Prac Series, Fam Ct. § 2:22) [citations omitted]).
"The Court of Appeals has held that in a custody dispute between a parent and nonparent the abandonment necessary to establish an extraordinary circumstance cannot be less than that required to show statutory abandonment" ( see Sobie, 10 NY Prac Series, Fam Ct. § 10:7) [citations omitted]; see also Matter of Sanjivini, supra; footnotes 26, 27 and 29).
The question then is whether there has been sufficient proof to establish extraordinary circumstances which would make Mr. Miner unsuitable or unfit to care for his children. "Generally, the concept of extraordinary circumstances' has been strictly construed by the courts. Extraordinary circumstances will not be found in the absence of clear evidence of parental unfitness, proof of the intention to surrender parental responsibilities, or lack of interest in the child, combined with the parent's relinquishment of custody to the nonparent" ( see Sobie, 10 NY Prac Series, Fam Ct. § 10:7) [citations omitted]). The behaviors of the parent which might rise to the level of extraordinary circumstances include gross misconduct or other behavior evincing utter indifference and irresponsibility by the parent ( see Matter of Male Infant L., supra).
In making its determination regarding whether extraordinary circumstances exist, the Court should review reports, and consider, such things as the length of time the child had been in foster care and the relationship the children have developed with their foster parent ( see Matter of John H., supra). However, the length of separation between parent and child, as well as the resultant close bond between child and foster parent have been found to be insufficient to establish extraordinary circumstances ( see Matter of William L., supra).
Dr. Thomas Lazzaro's written report found that "Mr. Miner's intellectual testing data reflected the picture of a cognitively adequately developed man whose slow and dull mentation and visual-motor processing speed deficits appear to be residual effects of his Cerebral Palsy" ( see Petitioners Exhibit # 1, received on September 7, 2010, p. 5). "Nevertheless, he fared adequately on all those WAIS-III subtest that measure skills relevant to parenting"( id.). Dr. Lazzaro concludes, based upon psychological testing data, his history, and his clinical impressions, "in this psychological examiner's opinion, with a reasonable degree of psychological and professional certainty, Mr. Miner's children will not be at risk of neglect or abuse in his care" ( id.). Dr. Lazzaro recommended that Mr. Miner take a parent training program, engage with a parent aide (now called parent educator) and implement individual counseling "to act as an additional monitoring mechanism as well as to work-through the problems he will face being a single parent" ( id.).
During Dr. Lazzaro's testimony he indicated that he had based his recommendations upon Mr. Miner's clinical interview and psychological testing. In August, 2010 when he interviewed Mr. Miner, Dr. Lazzaro was not aware that he had missed a significant amount of visitation. Likewise, Dr. Lazzaro had not been made aware of the children's deficits. Based upon this information, Dr. Lazzaro recommended that the children be evaluated and that Mr. Miner and his children have expanded visitation. Dr. Lazzaro felt that none of the barriers identified during the hearing would prevent placement of the children with Mr. Miner.
The Dr. testified that the Department told him that the children were "severely globally delayed."
Visitations since Dr. Lazzaro's September testimony have expanded extensively.
It is undisputed that the children, Austin and Anna Miner, are cognitively delayed. That they are at risk to have learning disabilities. Austin's "spatial/perceptual skills are relatively well developed" ( see Court's exhibit #1, pg. 2 of 5). While Anna's "spatial/nonverbal skills are average for age ( see Court's exhibit #2, pg. 2 of 4). Both children have language delays with Anna's delay being "rather pronounced" ( see Court's exhibit #2, pg. 2 of 4).
Despite the apparent needs of the children they were not evaluated until December, 2010, nine (9) months from the date of removal, and then only after it was Court ordered based upon the testimony of Dr. Lazzaro.
The three (3) experts who examined or are involved with the children agree that the children will benefit from an "enriched environment." Other than the limitations of poverty, there was no indication that Mr. Miner would not be able to provide personally or through public/private programs the types of enrichment that is being recommended. It is significant to note that Mr. Miner "is alert to his surroundings," "has the ability to protect his children from harm," can "predict the consequences of his and others' conduct" and has" common sense' reasoning skills and ability to verbalize socially accepted norms and mores" ( see Petitioner's Exhibit #1, received 9/7/10, p. 5). Mr. Miner "can be expected to help his children to progress academically and he has the potential to benefit from parenting training" ( see Petitioner's Exhibit #1, received 9/7/10, p. 5).
This "enriched environment" includes, but is not limited to, being surrounded by language, 1 on 1 reading time, Head Start programing, hyper-sensory activities, museums, talking about their environment, public television, socializing with other kids on play dates, play therapy, an environment highly stimulating for language, occupational and physical therapy, extracurricular activities such as a swimming and karate, and social development programs through YMCA.
In play therapy, Dr. Mullin finds that Austin is "loaded with anxiety," there is "no laughter, no smiling" in his play. His play demonstrates a "sense of chaos" and "unsettled." These are "normal" for kids with lots of transition in their lives. Dr. Mullin believes that Austin is emotionally one (1) year behind his peers. Dr. Mullin did witness Dale scolding the children for their behavior. Although his method of scolding was inappropriate, she has not discussed her concern with Mr. Miner or his parent educator.
Dr. Rauh-Ivers noted that the most salient feature of "Austin's presentation was the extent to which he evidenced little ability or even interest in depicting his home or family situations. He demonstrated negligible ability to describe any of the people in his life or the quality of interactions with them" ( see Petitioner's Exhibit # 1, dated March 16, 2011). As to Anna, Dr. Rauh-Ivers noted that "she was not able to provide much if any information regarding her circumstances, even describing basic activities, toys, interests or playmates." She was unable to "articulate or demonstrate other people in her life" or identify "whom she played with."
It is critical for Austin that he bond/attach to a caregiver immediately. It was significant to Dr. Mullin that there appears to be no apparent adult connection in Austin's life. Austin did not identify with his foster parents during his play. Dr. Mullin believes that with "prolonged enrichment" Austin could develop appropriate attachment. Although Dr. Mullin does not see Anna, she supervises the clinician who does, and based upon her conversations with the clinician, and her observations of Anna before and after sessions, she believes that Anna also lacks attachment. Anna's needs to develop attachment are not quite as desperate as Austin's.
Based upon the expert testimony presented in the area of attachment, the Court can not find that the children have a close bond with their foster parent or that their apparent lack of attachment to their father should prevent their reunification.
The testimony by Dr. Rauh-Ivers and Dr. Mullin concerning the children's relationship and emotional ties is troubling. At the time of each expert's involvement the children had been in foster care for nine (9) months or more. For Anna, that is nearly one-third her lifetime. Despite the apparent needs of the children they were not evaluated until December, 2010, nine (9) months from their removal, and then only after it was Court ordered based upon the testimony of Dr. Lazzaro.
Considering the totality of the circumstances, the Court finds that the behaviors of Mr. Miner do not rise to the level of gross misconduct or other behaviors evincing utter indifference and irresponsibility towards parenting his children. Further based upon the evidence before the Court there can be no finding of "extraordinary circumstances." In the absence of neglect, surrender, abandonment, unfitness or other like extraordinary circumstances, Mr. Miner may not be denied custody.
Upon the Department's failure to make a threshold showing of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances' the Court will not proceed to a best interests hearing.'
Even if the Court were to rule otherwise by finding extraordinary circumstances, the Department has failed to present any evidence of what might be in the children's best interests. There was no evidence that the current foster parents are providing the "enriched environment" they require, nor was there evidence of bonding with them. Long term foster care is not in a child's best interests. In addition, Social Services Law itself sets forth the legislature's belief that, ordinarily, a child is best raised by his natural parents. see SSL § 384-b (1) (a) (ii). Further, since the respondent mother was not cooperative with ICPC and there was no evidence that she was engaged in services in West Virginia, it could not be said that the Department's goal of "return to parent" was a return to the respondent mother over the non-respondent father.
Based upon the foregoing, the Court finds Mr. Miner to be a fit and suitable parent. The children shall be discharged from foster care immediately and are placed in the custody of their father, Dale Miner pursuant to the provisions of Family Court Act Article 10. Except as modified by this decision, the dispositional order dated January 24, 2011 shall remain in full force and effect. Specifically, the subject children shall receive play therapy services at Integrative Counseling. Services at Integrative Counseling shall include Parent-child sessions.
All clothing and other personal items belong to the children which were purchased with subsidy monies shall be transported with them to their father's residence.