Opinion
NN-15353-06.
Decided on March 27, 2008.
Monroe County Law Department, by Peter A. Essley, Esq., for Petitioner.
William J. Sedor, Esq., for Respondent Tracy G. Charles Plovanich, Esq., Law Guardian, Dandrea L. Ruhlmann, J.
This is a neglect case against a mother of a newborn removed from her care based, in part, upon her long history in Family Court. Monroe County Department of Human and Health Services (Petitioner) filed a petition on December 18, 2006 alleging that Tracy G. (Mother) neglected Tasha (d/o/b: __ / __ / __). The Court finds that Mother derivatively neglected Tasha. Mother gave birth to six children: Sean G. (d/o/b: __ / __ / __); Kevin O. (d/o/b: __ / __ / __); Emanuel G. (d/o/b:-/ — / —); Sasha M. (d/o/b:-/ — / —); Miche M. (d/o/b: __ / __ / __); and Tasha M. (d/o/b: __ / __ / __). Sean was removed from Mother's care when he was approximately twelve (12) years old. All the other children were removed from Mother's care close to their births — including Tasha. Sean and Kevin were both deemed "neglected children" in 2002. Sean remained placed outside of Mother's care until he turned 18 and permanency was achieved in 2007. Mother's parental rights to Kevin were terminated in 2004 and he was adopted in 2006. Mother was found to have neglected Emanuel in 2004 and Sasha in 2005. Mother's parental rights to Emanuel and Sasha were terminated in 2007 (pending appeal). Miche was deemed a neglected child in 2006 and a termination petition is currently pending.
Mother argues somewhat persuasively that the 2002 removal of Sean from her care commenced a domino effect and that she has had no chance of keeping any of her children in her care. In Matter of Evelyn B. ( supra, 30 AD3d 913 [where over the course of nearly two decades of litigation before the courts, respondent-mother's behavior resulted in the removal of all eight of her children]) the Court faced a similar argument and found nonetheless that a long-standing pattern of neglect perpetrated by respondent-mother upon her other children evidences respondent-mother's fundamental misunderstanding of her parental responsibilities and justified a derivative neglect finding as to her youngest child ( id. at 915-916). Similarly here Petitioner has proven by a preponderance of the evidence both that there is a long-standing pattern of neglect and Mother has not complied with prior court orders of disposition. While the Court finds that this may be due, in part, both to Mother's mistrust of Petitioner and her diagnosed personality disorder, non-compliance is unacceptable.
In a child protective proceeding pursuant to Family Court Act article 10, a finding that a child is abused or neglected must be supported by the preponderance of the evidence (Family Court Act § 1046 [b] [i]). "[P]roof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of. . . [Mother]" (Family Court Act § 1046 [a] [i]) but "such evidence typically may not serve as the sole basis for a finding of neglect" ( Matter of Cadejah AA , 33 AD3d 1155 [3d Dept 2006], quoting Matter of Evelyn B. , 30 AD3d 913 [3d Dept 2006], lv denied 7 NY3d 713; see Matter of Rebecca X. , 18 AD3d 896 , 898 [3d Dept 2005], lv denied 5 NY3d 707, 801).
A court may find derivative neglect relying upon evidence establishing that a parent's older children were previously determined to be neglected and that parent failed to address the issues that led to those neglect determinations ( Matter of Alexandria C., 2008 NY Slip Op 00747, 850 NYS2d 757 [4th Dept 2008]; Matter of Sasha M. , 43 AD3d 1401 [4th Dept 2007]; Matter of Krystal J., 267 AD2d 1097 [4th Dept 1999]). In Matter of Alexandria ( id.), petitioner established that after respondent-mother's five older children were removed, she did not successfully complete any of the services recommended by petitioner to address her mental health issues that led to the removals. Indeed respondent-mother surrendered her parental rights with respect to her four older daughters three months prior to the birth of the child at issue therein ( id. citing Matter of Sasha M. , 43 AD3d 1401 , 1401-1402 [4th Dept 2007]).
Similarly the New York State Supreme Court Appellate Division, Fourth Department affirmed a finding that Mother herein derivatively neglected her older daughter Sasha based upon derivative evidence that Mother's three sons were determined to be neglected children and that Mother failed to address mental health issues that led to those neglect determinations. Furthermore, orders extending the placements of her two oldest boys and terminating Mother's parental rights with respect to Kevin were entered within one month of Sasha's birth, and thus "the prior finding[s were] so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exist[ed]" ( Matter of Sasha M. , 43 AD3d 1401 [4th Dept 2007], quoting Matter of Hannah UU, 300 AD2d 942, 944 [3d Dept 2002], lv denied 99 NY2d 509; see Matter of Evelyn B. , 30 AD3d 913 [3d Dept 2006], lv denied 7 NY3d 713 [where the nature of the direct neglect — including its duration and circumstances surrounding its commission — evidences fundamental flaws in respondent's understanding of the duties of parenthood, proof of neglect is alone sufficient to sustain a neglect finding of another child]).
Here, Tasha was removed from her Mother's care days after her birth commensurate with the filing of the current neglect petition on December 18, 2006 — the same time as the fact-finding trials resulting in the termination of Mother's rights concerning Emanuel and Sasha (Docket No.s: B-03575-06; B-03576-06) and only a few months after Miche was adjudged a neglected child (Docket # NN: NN-14689-05). As in Matter of Sasha M. ( supra), the findings are so proximate in time to the neglect proceeding herein that it is reasonably concluded that the conditions that led to Miche's neglect order and the terminations still exist. Indeed, the testimony of caseworker Tamara Singletary, assigned to Mother's case in May 2006, reveals that Mother was not following through with the dispositional plans in place regarding Tasha's siblings at the time of Tasha's birth and removal. Specifically, Singletary testified that Mother denied her pregnancy until November 2006 and never confirmed that she received appropriate pre-natal care; Mother did not follow through on mental health treatment; and was homeless. The dispositional plans with respect to Mother's other children specifically require Mother, inter alia, to cooperate with Petitioner; sign and maintain releases; engage in mental health treatment including undergoing a new evaluation taking medications and attending appointments with her therapist; demonstrate skills and knowledge learned from previously attended parenting classes during contacts with the child; and maintain suitable housing and income.
Singletary testified that Mother was dishonest and gave her both a false address and employer. In October 2006, Mother checked herself into an in-patient program at Park Ridge; Mother said she did so not for substance abuse but for co-dependency issues. In November 2006 Mother moved into a shelter. Singletary testified that Mother regularly visits with both Miche and Tasha but is often late. When visiting with Tasha, the supervisor of the visit often had to direct Mother to attend to the baby's needs. Singletary testified that since the children's removals, Mother has never had more than supervised visits with any of them except Sean. Singletary also described on-going "irrational" behavior of Mother including an incident at Sean's school and on December 13, 2006, Mother called Singletary's office several times using aliases asking for the status of her case ( see Matter of Amber C. , 38 AD3d 538 [2d Dept 2007], lv denied 8 NY3d 816 [parents' failure to complete the programs required of them by the prior orders of disposition and the recommendations made following the resulting evaluations support a neglect finding]; Matter of Landon W. , 35 AD3d 1139 [3d Dept 2006] [derivative neglect finding sustained where respondent violated prior dispositional orders]).
Where, as here, Mother's mental condition is the gravamen of prior findings, "proof of ongoing mental illness, along with the failure to engage in * * * treatment, which results in a parent's inability to care for his or her children in the foreseeable future, provides a basis for a finding of neglect" ( Matter of Hannah UU, 300 AD2d 942 [3d Dept 2002], lv denied 99 NY2d 509, quoting Matter of Jesse DD., 223 AD2d 929, 931-932 [3d Dept 1996], lv denied 88 NY2d 803). In Matter of Hannah UU ( id.), although respondent-mother engaged in mental health therapy services for eight weeks before the birth of her child, this was not reason enough to prevent removal of the newborn from her care.
Similarly here Mother offers proof that she is not psychotic and that she has been engaged consistently in counseling for approximately one year — the only treatment recommended by her current psychiatrist ( see Matter of Amber C., supra, 38 AD3d at 540-541 [respondent has the burden of proving that the conduct or condition that led to the removal of her other children cannot reasonably be expected to exist currently or in the foreseeable future]). Indeed, Dr. Slimmer, Mother's treating psychiatrist, opines that Mother has a personality disorder NOS (not otherwise specified) which neither qualifies Mother as psychotic nor requires medication. Yet although Mother sought a new mental health evaluation in April 2006, she did not attend regularly scheduled appointments (often calling to cancel at the last minute or arriving late) and did not fully engage with a counselor until approximately June 2006 (and then still missed approximately 1/3 of her appointments) (Petitioner's Exhibit 1).
Two days after Tasha's birth Mother was admitted in-patient at Rochester General Hospital Psychiatric Clinic. Mother did not want Petitioner to remove Tasha from her care so she held Tasha against her chest and tied a thin white blanket and sheet around them. Mother attempted to call the police, FBI and media to alert them to Tasha's removal. Dr. Slimmer explained that certain traits of Mother fall into multiple, different personality disorder types opining that Mother comes across as somewhat eccentric, has a tendency to be paranoid, and may respond to a particular stressor or situation out of normal proportion.
Dr. Slimmer opined that Mother's personality disorder could cause dysfunction in Mother's life including both relationship and parenting issues. She has treated at least 100 patients with personality disorders over that past year and opined that they are not more at risk than the average person in interacting with children, yet Dr. Slimmer admitted that she never observed Mother with her children so she does not know whether Mother can care appropriately for them.
Unfortunately Mother and Petitioner have an acrimonious relationship ( see Matter of De'Von S., __ Misc 3d ___, 2008 NY Slip Op 28105 [Fam Ct, Monroe County 2008]). Dr. Slimmer testified that an adversarial meeting was held between Petitioner caseworker, Mother and her therapist, Dr. Rocha, as Petitioner assumed that Mother required psychotropic medication. Dr. Slimmer opined that it might in fact be potentially harmful to treat Mother with psychotropics and she does not believe that Mother is a risk either to herself or anyone else. She believes that Mother's long-standing, consistent relationship with Dr. Rocha indicates that "things are going in the right direction." Singletary, on the other hand, testified that Mother has a history of bipolar disorder yet admits that despite meeting with Dr. Rocha she never discussed a particular diagnosis. Mother's testimony reveals in no uncertain terms that she believes she has been abused by the system and she does not take any responsibility for her children's removals from her care. The parties are not working together towards the permanency goal of return to parent ( see Permanency Hearing Order entered December 6, 2007). The Court hopes and expects the parties to work together towards the current goal regardless of the eventual dispositional outcome of this case. Further meetings between Petitioner, Mother and Dr. Rocha and/or Dr. Slimmer may prove helpful to build trust and for Petitioner to better understand Mother's mental health issues as currently diagnosed and being treated.
NOW THEREFORE, it is
ADJUDGED that Respondent derivatively neglected Tasha; and it is further
ORDERED are that Tasha is a "neglected child" and this case shall proceed to a dispositional hearing commencing on the earliest date that can be mutually agreed upon by the Court and all counsel.
Dated this 27th day of March, 2008 at Rochester, New York.
PURSUANT TO § 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.