Opinion
B-XXXXX-XX-14
01-09-2019
In the MATTER OF the Applications of The CHILDREN'S AID SOCIETY FOR the GUARDIANSHIP and Custody OF XAVIER BLADE LEE BILLY JOE S. a/k/a Xavier S. Claudia Kathleen Rosa Storm S. a/k/a Claudia S. Dependent Children under the age of 18 years of age pursuant to Section 384-b of the Social Services Law of New York.
Attorney for Petitioner The Children's Aid Society, 801 Second Avenue, New York, New York 10017, By: Ben Rosin, Esq., Rosin Steinhagen, Mendel The Bronx Defenders, Attorney for the Respondent Mother, 360 East 161st Street, Bronx, New York 10451, By: Mary Anne Mendenhall, Esq. Jessica Brown, Esq., Attorney for the Child Xavier, 909 Sheridan Avenue, Suite 4, Bronx, New York 10451 Ellen Winter Mendelson, Esq., Attorney for the Child Claudia, 910 Grand Concourse, Suite 1F, Bronx, New York 10451
Attorney for Petitioner The Children's Aid Society, 801 Second Avenue, New York, New York 10017, By: Ben Rosin, Esq., Rosin Steinhagen, Mendel
The Bronx Defenders, Attorney for the Respondent Mother, 360 East 161st Street, Bronx, New York 10451, By: Mary Anne Mendenhall, Esq.
Jessica Brown, Esq., Attorney for the Child Xavier, 909 Sheridan Avenue, Suite 4, Bronx, New York 10451
Ellen Winter Mendelson, Esq., Attorney for the Child Claudia, 910 Grand Concourse, Suite 1F, Bronx, New York 10451
Valerie A. Pels, J.
This termination of parental rights proceeding raises profound questions about how we work with and ultimately evaluate the ability of a parent with a developmental disability to care for her children, in this case, children who themselves have profound disabilities. For the reasons discussed herein, the court finds that the petitioner failed to meet its burden to show by clear and convincing evidence that the mother, Josefina S., permanently neglected the subject children, Xavier and Claudia.
BACKGROUND AND PROCEDURAL HISTORY
The Children's Aid Society, a foster care agency, commenced this proceeding on April 30, 2014, seeking to terminate the parental rights of the respondent mother, Josefina S., to the subject children, Xavier S. (d.o.b. X/XX/05), Claudia S. (d.o.b. X/XX/11) and Lestat S. (d.o.b. X/X/12) for the purpose of adoption on the ground of permanent neglect pursuant to Social Services Law § 384-b. The petition further alleges that there is no man whose consent is necessary to the adoption of the children or who is entitled to notice of adoption pursuant to Domestic Relations Law § 111-a. On October 1, 2018, the court awarded kinship guardianship of Lestat to a maternal aunt on consent of Ms. S., the agency and the attorney for the child, and the petition as to him was withdrawn and dismissed without prejudice.
Ms. S. acknowledged service of the petition, waived a reading and entered a denial to the allegations and was assigned counsel on June 18, 2014. The lengthy fact-finding hearing commenced on January 13, 2015, continued on January 30, March 24, April 2, June 17, October 28, November 4, and November 9, 2015, February 3, February 11, and February 24, and March 2, 2016, April 13, 2017, and May 4, October 1, October 23, 2018, and October 24, 2018. Oral summations were given on November 2, 2018.
Lengthy delays in this proceeding resulted from multiple changes in counsel as well as efforts to resolve the matter. The original attorney for the children ("AFC") was relieved from representing the subject children, Xavier, Claudia and Lestat (originally a subject of these proceedings), due to a conflict in representing those children and a sibling Logan, who was, and remains, in the care of his mother. After the commencement of the trial, the new AFC for the three subject children was relieved from representing two of the three children, and separate counsel was assigned for each of those children due to a conflict of interest that arose among those children. Counsel for Ms. S. also was replaced mid-trial when the originally assigned attorney left the office. Since trial had already commenced, a lengthy adjournment was needed for new counsel to obtain and review transcripts of the prior proceedings. Subsequently, one of the three AFCs left the 18-B Panel, necessitating assignment of a third attorney for the child Claudia. By the time of trial, petitioner's sole witness was no longer employed at the agency and her limited availability added to the scheduling challenges inherent in a proceeding with five attorneys in a high-volume court. During the course of the proceedings, further adjournments were granted on consent to explore settlement. That effort was successful with respect to the child, Lestat, as to whom the petition was ultimately withdrawn in favor of awarding guardianship of that child to a relative.
The petitioner called as its sole witness former Children's Aid Society social worker Emily Rubin, who was assigned to the family from shortly after the children's placement in foster care until the filing of the instant petitions. Ms. S. called therapeutic visiting coach Geneciobel Rodriguez and psychologist Dr. Miriam Alkon and testified on her own behalf.
In addition, the petitioner offered in evidence the birth certificates and putative father registry results for each of the subject children; the court's decision at fact-finding and disposition on the underlying neglect matters, under docket numbers NN-XXXXX-XX/12 and NN-XXXXX/12, dated May 9, 2013; the remand orders for each child; copies of the Children's Aid Society's visitation schedules and medical appointments provided to Ms. S. between July 27, 2012 and January 27, 2014; and Children's Aid Society family services progress notes covering the period July 27, 2012 through April 28, 2014. Ms. S. offered in evidence the therapeutic visitation progress notes covering the period between September 11, 2012 and December 4, 2012 and a photograph of herself and the children and other family members at a visit outside the agency.
FINDINGS OF FACT
The court found all of the witnesses to be credible in the sense that they offered truthful testimony to the best of their recollection. However, the court finds, for the reasons discussed herein, that neither Emily Rubin, the Children's Aid Society social worker, nor Ms. S. was entirely reliable.
It is evident to the court that Ms. S. has some significant cognitive limitations, a fact acknowledged by all parties to the proceeding. Her ability to recall dates and times was limited and she offered some clearly inaccurate testimony concerning time frames and duration of services. Further, Ms. S.'s distrust of Ms. Rubin was reflected in her conclusion that Ms. Rubin lied about everything, a premise that the court does not accept. She was defensive at times and reluctant to acknowledge any deficiencies in her parenting. Yet she showed a deep empathy and a far better understanding of her children's individual needs and her own limitations than Ms. Rubin's testimony suggested.
Ms. Rubin, although well-intentioned, overstated the safety concerns present during visits and was quick to criticize reasonable alternative parenting strategies that Ms. S. sought to employ in the delicate juggling act of parenting four special needs children. Ms. Rubin clearly had a negative view of Ms. S.'s parenting capacity, as compared with the more positive, strength-based perspectives of Ms. Rodriguez, the Children's Aid Society therapeutic visitation coach, and Dr. Miriam Alkon, who provided dyadic therapy to Ms. S. and her two younger children, Claudia and Lestat. The court credits the testimony of Ms. Rodriguez who, while she clearly had an affection for the family, acknowledged Ms. S.'s challenges as well as her strengths. Dr. Alkon's testimony, which offered the most balanced perspective, is also credited by the court.
Ms. S. is identified as the mother of both subject children on their birth certificates. No man is identified as the father of either child on their birth certificates, nor is any putative father of either child identified on the putative father registry.
The subject children, Xavier and Claudia, were remanded to the custody of the Commissioner of Social Services on June 20, 2012 and placed with the petitioner, Children's Aid Society. They remained in the continuous care of Children's Aid through the date of the filing of the instant petitions on April 30, 2014. Logan (d.o.b. X/XX/03) who is not a subject of the instant petitions, was also removed and placed in foster care at the time. An after-born child, Lestat (d.o.b. X/X/12), was removed on August 6, 2012 soon after his birth and remained in care through the time of the filing of the instant petitions.
A finding of neglect as to all four children was made on consent of Ms. S., without admission, pursuant to Family Court Act § 1051(a). The finding of inadequate guardianship was based on findings that school staff observed Xavier with a foul odor, smelling of urine and fecal matter, and that Ms. S. failed to address the issue; that the caseworker observed the children to have foul odors and dirty clothing; and that Ms. S. failed to have Xavier and Logan, both autistic, evaluated by a psychiatrist to address their special needs.
At disposition on the underlying neglect petitions, on May 9, 2013, the four children were placed with the Commissioner of Social Services. Logan was immediately trial discharged to Ms. S. and the court ordered an expansion of visitation for Claudia and Lestat, beginning with "sandwich" visitation, with further expansion of that visitation as well as inclusion of Xavier contemplated if the initial sandwich visitation went well. Ms. S. was ordered, inter alia , to follow up with the medical and mental health needs of all the children, cooperate with the Albert Einstein dyadic therapy program for Logan, continue to attend family therapy, follow up with Bridges 2 Health ("B2H") referrals and services, continue to visit with the children not in her care at the agency, maintain appropriate hygiene of the children, follow up with Early Intervention for Claudia (and for Lestat, if needed), maintain the home in a safe and appropriate condition, sign consents for all her programs and services, comply with preventive services and any reasonable referrals of the preventive services agency, comply with home attendant services, and comply with reasonable ACS referrals.
Visitation in which a period of unsupervised time is preceded and followed by supervised visitation to closely monitor the well-being of the children.
According to Ms. Rubin, Xavier, who was seven years old at the time of the removal and almost nine at the time of filing of the termination petitions, was diagnosed with autism, ADHD and global developmental delays and medical conditions including lower extremity weakness and gastrointestinal issues. He was prescribed psychotropic medication and received a multitude of services in and out of school. From the time he was placed in care until the filing of the petition, Xavier had limited communication skills: he could use individual words but did not speak in sentences and could not articulate his feelings or thoughts. He was not toilet trained and wore diapers. He was prone to violent tantrums.
While non-hearsay evidence of the children's mental health diagnoses was not offered, the court has considered Ms. Rubin's understanding of those diagnoses in evaluating her efforts to develop an appropriate service plan. The court has also considered the witnesses' direct observations of the children's functioning. Similarly, while no non-hearsay evidence concerning any evaluation of Ms. S.'s intellectual disability was offered, the court has considered Ms. Rubin's understanding of her disability in terms of the appropriateness of the service plan, as well as testimony concerning how Ms. S.'s cognitive functioning impacted her parenting.
Claudia, who was eleven months old at the time she entered care and nearly three years old at the time of the filing of the termination petition, also had significant developmental delays. When initially removed, she was not crawling, sitting up, speaking or even babbling. When Dr. Alkon began working with the family in May 2013, she was concerned that Claudia, although in foster care, was not receiving the level of services she needed. With the consent of Ms. S., Dr. Alkon referred Claudia to the Legal Aid Society's education advocacy program, which led to her placement in an early intervention program.
Lestat, who was a newborn when he entered care, was generally reaching his developmental milestones but sometimes displayed concerning behaviors, including head banging and rocking. According to Dr. Alkon, Lestat also showed delays in communication, although these were not significant enough to make him eligible for early intervention services.
The eldest child, Logan, who at the time of the filing of the petition was on trial discharge to Ms. S., was diagnosed with autism, ADHD, developmental delays, and bladder and gastrointestinal issues. Although Ms. Rubin did not testify about any other mental health diagnoses, she testified that Logan was prescribed psychotropic medication and was engaged in therapy. Ms. Rubin described self-injurious behaviors, including biting his hand which required a brace for protection, and repetitively hitting his forehead causing a perpetual bruise. Although Logan was able to speak in full sentences, according to Ms. Rubin, he sometimes did not make sense and appeared disconnected from reality. Logan also had frequent tantrums, particularly at the end of visits.
The reality is that for any person to care for all four children single-handedly without support would be nearly impossible. Indeed, the record is uncontroverted that the foster parent has had substantial assistance, including home health aides and Bridges 2 Health ("B2H") services, which include respite care.
While all parties acknowledged that Ms. S. has an intellectual disability and the evidence shows that she underwent a psychological evaluation and was deemed eligible for a program providing services to people with developmental disabilities, no expert was called to offer an opinion concerning the extent of her disability or its impact on her parenting capacity. Still, there was some evidence of how Ms. S.'s disability affected her parenting: she had difficulty navigating public transportation and maintaining appointments and, at least according to Ms. Rubin, difficulty with multi-tasking and time management. According to Ms. Rubin, Ms. S. was unable to retain and implement skills that she was taught in her services.
Ms. S. herself acknowledged that she had a learning disability which she said meant that, although she could do the same things as other people, it took her longer than others to learn. She acknowledged that she received special education services in an ungraded program in school, and had not completed high school. She was able to read and write but acknowledged that her reading skills were "not so good." She received supplemental security income ("SSI") and, although she had some volunteer experience, had never held gainful employment.
In determining a service plan for Ms. S., Ms. Rubin testified that she and her supervisors considered the mother's needs as well as the needs of the children. Ms. Rubin testified that the service plan for Ms. S. included a special needs parenting class, undergoing a mental health evaluation and complying with the recommendations of that evaluation, visiting with the children on a consistent basis, participating in therapeutic visitation, and attending medical and other appointments for the children. Notably absent from the service plan were any services intended to improve life skills, such as travel and time management, that would have a direct bearing on the mother's ability to care for the children. No effort was made to involve an expert in working with adults with developmental disabilities to develop the service plan, even though Ms. Rubin had no specific training in this area.
Ms. Rubin conceded that she never made a referral to the Office for People With Developmental Disabilities ("OPWDD"), the New York State agency with primary responsibility for serving adults and children with developmental disabilities, and was unfamiliar with the services they offered, including day habilitation services. Ms. Rubin testified that day habilitation services were recommended by the psychological evaluation that was completed in February 2013 but that she made no effort to make a referral for those services which she mistakenly thought were limited to socialization skills.
OPWDD services, including day habilitation, transportation training, a Medicaid services coordinator (who helps to identify and secure Medicaid-funded service for individuals with developmental disabilities), and community services, were eventually put in place after the filing of TPR petition through the efforts, not of the agency, but of Ms. S.'s counsel. Although not developed in this record, prior to the filing of the instant petition, supportive housing was also explored but there were, at the time, no programs for which the respondent mother was eligible. Although Ms. Rubin denied knowledge of the order and the order itself was not made part of the record in this proceeding, the agency was in fact ordered in September 2013 in the underlying neglect proceeding, to make a referral for a Medicaid services coordinator and to explore supportive housing options.
According to the OPWDD website, "Day Habilitation services can assist individuals to acquire, retain or improve their self-help, socialization and adaptive skills, including communication, travel and other areas in adult education. Activities and environments are designed to foster the development of skills and appropriate behavior, greater independence, community inclusion, relationship building, self-advocacy and informed choice."
It is undisputed that Ms. S. completed a special needs parenting class at the Children's Aid Society (in fact, according to Ms. S., she completed the course a second time, evidently after the filing of the TPR petition), underwent a psychological evaluation, visited with the children consistently at the agency and participated in therapeutic visitation. While the agency also went to some length to refer Ms. S. to a second special needs parenting program geared toward parents with cognitive disabilities, the court determined that, in light of other services, Ms. S. should not be required to attend this class and it was not made a part of the court's dispositional order.
This jurist presided over the underlying proceedings. The determination not to require participation in that program was made based on the court's assessment that given the particular needs of the subject children, the services already in place, and the anticipated trial discharge of Logan, other, more hands-on services should be prioritized for the family.
The only service that the agency contends that Ms. S. failed to complete was individual therapy. The underlying order of disposition, however, contemplated family not individual therapy. The agency concedes that this service was intended primarily to assist Ms. S. in navigating the sometimes contentious relationship with her mother. This was considered important because the maternal grandmother was initially attending all the visits with Ms. S., and the two were presenting as a "parenting team." The dynamic between Ms. S. and her mother during the visits was adversely affecting the quality of the visits, as the grandmother would often put the mother down and the two would bicker in front of the children. Individual therapy was also intended to help Ms. S. cope with the trauma of her separation from her children and her own childhood trauma. No evidence of any psychiatric diagnosis of Ms. S. was offered at fact-finding, however, and the individual therapy, as opposed to the family therapy, was primarily for her own benefit as opposed to being directed at any concern that was a barrier to reunification.
Ms. S. testified that subsequent to the filing of the TPR, she was diagnosed with PTSD and that she was also prone to panic attacks. Dr. Alkon also noted some depressive symptoms in her work with her. None of these is alleged to have been a barrier to returning the children to her care prior to the filing of the instant petition.
An initial referral for therapy through YAI was never put into place due to Ms. S.'s failure to follow through with a PPD test for tuberculosis, which was a prerequisite to entering the program. However, Ms. S. was subsequently referred for family therapy with her mother at the agency, which she did attend. That service was discontinued through no fault of Ms. S. because the family therapist left the agency and was never replaced. She was subsequently referred back to individual therapy through another provider. While no direct non-hearsay evidence of Ms. S.'s non-compliance was offered, multiple referrals were made. By then, however, the maternal grandmother was no longer consistently attending visits and Ms. S. was looking to plan independently.
The gravamen of the petitioner's case is not so much that Ms. S. failed to complete any part of her service plan but that she failed to benefit from those services. Although Ms. S. consistently attended visitation two times per week, according to Ms. Rubin, she was not able to manage the four children at once and the agency never progressed to unsupervised visitation due to safety concerns. To the extent that there was an expansion of visitation from strictly supervised to "moderately supervised" for visits with Claudia and Lestat only, Ms. Rubin made clear that this meant only that the social worker might leave the room during the course of the visit, and that she did so only for minutes at a time because she did not feel comfortable leaving Ms. S. alone with the two children. This limitation was not what was contemplated in the court's order of disposition which provided for "sandwich visits." Sandwich visits, as commonly understood in Family Court, would have permitted Ms. S. to leave the agency with the children unsupervised for a short period of time, with a period of supervision before and after.
Only two visits occurred off agency premises: a visit supervised by the foster parent, who declined to supervise more visits, and one at an event sponsored by her attorney's office, which was permitted on condition that the home health aide of one of the children be present.
Ms. Rubin's testimony and the progress notes in evidence covering the period from July 27, 2012 to April 28, 2014 describe the visits as "chaotic." While Ms. S. was offended by this term and the term was clearly intended to be critical in the sense that Ms. Rubin faulted Ms. S. for not maintaining "structure" and "discipline" during the visits, a certain amount of chaos would be expected with four children with multiple special needs in a small visiting room with their mother, grandmother and a social worker. All four children were in diapers and needed to be changed during the visits or brought to the bathroom periodically. Lestat, an infant, needed to be fed, changed, and held. Claudia, although older, required similar care due to her developmental disabilities. Xavier was hard to engage due to his severe autism. His food intake had to be monitored at all times because of the choking risk. His tendency to grab food and toys would set off the other children and efforts to control his behavior were often met with tantrums. Logan, the most verbal of the children and the child most able to express his attachment to his mother, consistently had tantrums at the end of visits, begging to go home with his mother. While Ms. S. was effective in consoling him and helping him regulate his emotions, she had to give him her undivided attention to do so, inevitably delaying the process of cleaning up and preparing each child to leave.
The primary safety concern identified by Ms. Rubin was Ms. S.'s inability to ensure that each of the children was adequately supervised. Ms. Rubin pointed to some instances when Xavier wandered out of the room and neither Ms. S. nor the maternal grandmother followed to ensure his safety and well-being, leaving it to Ms. Rubin to do so. Ms. Rubin also testified that Ms. S. failed to intervene effectively to prevent Xavier from overeating and stealing food from the other children and that she failed to prevent Xavier from moving around the room and tripping over Claudia and Lestat. As Lestat became more mobile, he would try to pull himself up on unstable objects, once toppling a toy wooden shelving set on Claudia (who was apparently uninjured). Although Ms. Rubin conceded that Ms. S. made efforts to intervene, her verbal instructions were sometimes ineffectual, and she did not consistently get out of her seat to reinforce her instructions. When a visit took place in the agency playground, Ms. S. and the grandmother would sit with Claudia and Lestat, where they sometimes had an obstructed view of the boys, instead of following Xavier and Logan around the playground, which Ms. Rubin then felt obligated to do. Ms. Rubin also raised concerns about Ms. S.'s ability to multi-task which Ms. Rubin surmised contributed to her challenge in caring for one child while ensuring the safety of the other children in the room.
Initially during visits, Ms. S. had significant difficulty ensuring that all the children's diapers were changed as needed and that their toileting needs were met, leading to the inevitable odors in the room that Ms. Rubin noted repeatedly in the records. Ms. Rubin acknowledged that over time, and with coaching, this improved.
Ms. Rubin testified that she tried to provide advice and model effective strategies but Ms. S. had great difficulty implementing instructions without constant reminders. According to Ms. Rubin, the quality of visits improved after therapeutic visitation was put in place but deteriorated afterward, as Ms. S. failed to retain the skills she had been taught.
It is clear from the record, however, that many of the "safety concerns" raised were not genuine safety concerns: while Ms. S. may have relied on her mother or Ms. Rubin to watch the other children while she tried to console Logan when he was having a tantrum or when she was feeding Claudia, Ms. S. was aware that the children were appropriately supervised by other adults. Ms. S. used reasonable strategies to address concerns about the possibility of Xavier choking, which he never did during the many, many visits that took place. In fact, none of the children was ever injured during a visit. Toddlers topple when they are learning to stand and minor mishaps happen. Parents have different tolerance for risk and there is a broad range of reasonable supervision. Sometimes the strategies Ms. Rubin offered were constructive and sometimes they manifestly were not, as when, in an effort to end visits on time, Ms. Rubin provided a verbal warning thirty minutes before the scheduled end of the visit which, she conceded, had the effect of triggering a tantrum from Logan, who then needed Ms. S.'s attention before she could begin to clean up and prepare the children to leave.
Claudia and Lestat were, inexplicably, delivered to the visits without a stroller or infant seat, so there was no safe place to put them in the small visiting room unless they were held by Ms. S. and her mother. The agency did not provide a changing table or changing mat in the visiting room.
Ms. Rubin's characterization of Ms. S.'s interactions with the children were in marked contrast to those of the therapeutic visitation coach, Ms. Rodriguez, and the dyadic therapist, Dr. Miriam Alkon. Ms. Rodriguez, who like Ms. Rubin holds a masters degree in social work, worked with Ms. S. for twelve therapeutic sessions. One of the first things Ms. Rodriguez noticed was that there was not a safe place to put Lestat, who was a just a few months old at the time. At Ms. Rodriguez' suggestion, Ms. S. brought an infant seat to visits. Still, in the first sessions, it was difficult for Ms. S. to interact with Xavier and Logan because she was holding Claudia. When Ms. Rodriguez pointed this out, Ms. S. brought a double stroller to subsequent visits, which provided a safe place for both babies while allowing Xavier the freedom to move about. At Ms. Rodriguez' suggestion, Ms. S. also began bringing a changing pad to visits. They worked on a routine for changing the children's diapers, something that Ms. Rodriguez also initially identified as a problem. At first, Ms. Rodriguez had to prompt Ms. S. about diaper changes but, eventually, she began to do it without prompting.
Week by week, Ms. Rodriguez saw progress in Ms. S.'s ability to manage the four children. Ms. S. came to visits with books, toys, snacks and music for the children. She organized birthday parties, bringing cake, decorations and music, and making it a "joyous occasion." There was, Ms. Rodriguez said, "a lot of love in the room." She was soothing and gentle with Claudia and Lestat. Logan was always excited to see his mother. Ms. S. would try to get Xavier's attention as he walked around the room, giving him short hugs, trying to engage him in play or read to him.
Ms. Rodriguez modeled ways to engage Xavier and how to work with Claudia to develop her motor skills. Ms. S. was, according to Ms. Rodriguez, receptive and open to constructive criticism. They talked about behavior management, developmental expectations and understanding the children's developmental delays. Ms. S. came early to each session to talk about how the previous visit had gone and how to improve. At the end of the twelve sessions, although she could have extended her time with them, Ms. Rodriguez found it unnecessary because the goals of the therapeutic visitation had been met. Ms. Rodriguez stated unequivocally that she never had safety concerns for any of the children during visits and was candid that she disagreed with Ms. Rubin's assessment of the family.
Ms. Rodriguez testified about strategies she used to build trust and collaborate with and empower parents. Ms. S.'s testimony makes clear that Ms. Rodriguez earned her trust, which in turn made Ms. S. more receptive to her intervention.
Dr. Alkon, a psychologist at the Albert Einstein Infant-Parent Court Project, worked with Ms. S. and her two youngest children, Claudia and Lestat, over the course of 26 sessions beginning in May 2013. The goal of the program was to improve parent-child bonding through dyadic therapy. Ms. S. successfully completed the program in the spring of 2015, after the filing of the instant petition. Dr. Alkon acknowledged that there had been a number of scheduling challenges and missed appointments, not only on Ms. S.'s part but due to her own schedule, the foster mother's schedule, and the multitude of other services the children were involved in. Dr. Alkon did not place much emphasis on this, however, noting that there was no indication that extending the therapy over a longer period with less frequent sessions adversely impacted its efficacy. Like Ms. Rodriguez, Dr. Alkon was able to develop a trusting relationship with Ms. S. As with Ms. Rodriguez, Ms. S. was initially guarded but became receptive to Dr. Alkon's feedback. She even credited Dr. Alkon with helping her improve her communication with Xavier, about whom Dr. Alkon evidently offered some advice, even though she did not work directly with him.
From the inception of their work together, Dr. Alkon identified a number of strengths of Ms. S.: she was calm and paced in her interactions, used a gentle tone of voice and was highly motivated for therapy. She was able to describe the strengths and challenges in her relationship with each child.
Dr. Alkon did not formally evaluate Ms. S. but it was "clinically apparent" to her that it took Ms. S. longer to incorporate information than was typical. Recognizing this, she talked to Ms. S. about her learning process, which required repetition and hands-on practice. As a result, Dr. Alkon emphasized modeling over verbal prompting in her work with Ms. S.
Dr. Alkon helped Ms. S. understand where Claudia was developmentally. She ensured that Ms. S. was involved in discussions with the education advocate about the gaps between Claudia's needs and the services she was receiving, helping her to build advocacy skills and become involved in Claudia's education. She also worked with Ms. S. on engaging in developmentally appropriate play and language, getting down to the child's level and making eye contact. Although Ms. S. needed prompting, particularly in the beginning, over time she began to use some skills they had worked on independently. For instance, she would immediately get on the floor at the start of the session to interact with each child. An area which continued to be a challenge was Ms. S.'s diminished use of language with the children. Although Ms. S. made an effort to increase her dialogue with the children, she still tended to be somewhat quiet, which Dr. Alkon attributed in part to some underlying depression. The shortcoming in language use, however, was less important from Dr. Alkon's perspective than the way the children greeted their mother and interacted with her, and her understanding of the children as individuals and, in these areas, she saw progress.
While most of the sessions that Dr. Alkon had with Ms. S. were one-on-one with Claudia or Lestat, she held some joint sessions with both children. While caring for both children at one time was "a delicate and challenging balancing act," Dr. Alkon was clear that Ms. S. maintained their safety throughout the joint sessions. Dr. Alkon conceded that it was difficult even for herself to maintain her attention between the two children. It was, she allowed, "a work in progress."
Dr. Alkon concluded that Ms. S. would need ongoing supports, partly because any parent of a child with Claudia's needs would require that, but also because of Ms. S.'s own processing challenges. In particular, Dr. Alkon recommended that she receive ongoing support in understanding the psychoeducational needs of her children, which would change over time.
In addition to concerns about the quality of the visits, Ms. Rubin testified that Ms. S. missed a significant number of the numerous medical, educational and other appointments for the children. While some appointments conflicted with other obligations, the number of missed visits was still excessive. Ms. Rubin testified that she tried to help with this by providing appointments in writing and providing "Hop Stop" directions whenever the appointment was at an unfamiliar location. Despite this, Ms. S. sometimes got lost or arrived late. When Ms. Rubin asked Ms. S. what had occurred at the appointments she made, Ms. S. often had difficulty explaining, suggesting instead that Ms. Rubin speak directly to the provider.
There were also concerns about Logan's well-being in his mother's care, although a multitude of services were put in place to assist Ms. S. Ms. S. was missing appointments and there were concerns about whether Logan was consistently given his medication as prescribed, although it was never conclusively established whether that was case. The home which Ms. S. then shared with her mother was cluttered, and roaches were often present, although the grandmother was reportedly addressing this issue with the landlord. Nonetheless, reports from Logan's school were mostly positive and the agency did not seek to remove Logan at any time prior to the filing of the TPR petitions.
Some of this may have been due to confusion about his medical insurance which continued to be through foster care, due to his status on final discharge.
Ms. S. testified on her own behalf at length about her personal and educational history and her learning difficulties. Ms. S. recounted a harrowing childhood history including sexual and physical abuse at the hands of her father. She spent more than six years in foster care in a series of homes in which she was mistreated, including being beaten and denied food. While her mother's role in the underlying neglect case that led to Ms. S.'s placement in foster care was never clarified on the record, Ms. S. was returned to her mother's care at age 12. Except for a brief period between the ages of 20 and 23, Ms. S. continued to reside with her mother up to the filing date of the petition. Ms. S. testified that she never felt loved or supported by her mother. By the time of her testimony, she had moved out of her mother's home and was living in a shelter with Logan.
Ms. S.'s childhood history is relevant, not for the sympathy that it engenders, but because it provides context for Ms. S.'s deep appreciation of her children's need for unconditional love and acceptance of their differences, her resilience and perseverance in the face of challenges, and her struggle for independence. It also provides some context for the fraught relationship between Ms. S. and her mother, who played an active part in the planning process with Ms. S. during the period relevant to these proceedings.
By the time of her testimony, Ms. S. had made significant strides in her independence. She testified that when the children were first removed she was "not so good" at travelling but that workers had helped her learn to travel and that she now knew how to get to a large number of destinations around the five boroughs of New York City, including the agency and Logan's service providers. She had learned these routes by traveling them repeatedly. Dr. Alkon noted this progress over the period that she worked with Ms. S. Ms. S. also learned to cook simple meals and desserts, which she prepared for Logan.
Asked about what she saw as her strengths as a parent, Ms. S. said that she told her children that they could always come to her, no matter how they were feeling, and "no matter what I will always love them and I will always be there for them." She beamed as she testified about each of her children's likes and dislikes, their favorite toys, activities and music, and their personalities. Ms. S. described the close relationship that Claudia and Logan shared. She said that Claudia and Logan tried to engage Xavier but he was not responsive. She recognized that this was difficult, particularly for Logan who, she said, did not understand "how Xavier is."
Ms. S. was able to identify and describe each child's special needs in straightforward, concrete and sometimes humorous ways. She said Logan's ADHD caused him to be "hyper" and have outbursts. He was like "Dr. Jekyll and Mr. Hyde," sometimes happy, sometimes sad, sometimes mad. She was able to identify the medications that Logan is prescribed (Abilify and Tenex ). Ms. S. explained that she remembered to give Logan his medication by writing it down and setting alarms. She talked about helping Logan through panic attacks by using strategies that worked for her, and helping him persevere through homework. She testified about attending Logan's IEP meeting and discussed some of the services he receives. She said that she and the school were working together on toilet training Logan. She understood that Logan's autism made toilet training difficult and that he still sometimes had "accidents."
Ms. S. also was aware of Xavier's diagnosis of autism. When asked how that diagnosis manifested itself, she struggled to answer, but when the question was rephrased, she was able to provide considerable detail. She explained that he keeps to himself, that he "doesn't interact like other kids, doesn't use sentences like other kids, but he tries." She said that Xavier did not like to be hugged much, and that he would become frightened and put his hands up as if to defend himself when people tried to touch him. She said that he "puts his body in a pretzel." Asked if this was concerning to her, Ms. S. said that it was just part of who he is. She said, affectionately, that she referred to him as her "ballerina" because he walked on his toes. She testified Xavier would "grab" food, swallow it and bring it back up. This had been a problem since he was a toddler and continued, despite the occupational therapy that Ms. S. knew he received to address the concern. Ms. S. understood this meant that she always had to keep an eye on him to prevent choking, and described working with him on portion control, telling him "everyone gets the same amount." He did not always understand and would scream like a "banshee." Ms. S. tried to distract him by showing him pictures in a book or reading to him. She conceded that he sometimes managed to grab food when she was not looking and that she occasionally had to resort to hiding the food.
Ms. S. explained that Claudia had been delayed in walking and talking, but she had made significant strides, and was now talking, walking and even trying to run. This was especially meaningful to Ms. S. because she had at one time been afraid that Claudia would never walk.
Ms. S. testified that she had noticed each of the children's delays when they were toddlers and had addressed her concerns with the pediatrician. Claudia received early intervention services in Ms. S.'s home prior to the children's removal. Ms. S. was able to identify those services as well as provide a detailed description of the exercises that she was required to do with Claudia.
Ms. S. also was able to articulate what she gained from the services she received: how the therapeutic visitation helped her understand the importance of shielding the children from her conflict with her mother, how the dyadic therapy helped her to better understand her children, how to communicate with them, and the importance of being at their "level." Although she already knew how to do most of what was taught in the parenting class, such as changing diapers and strapping a baby in a stroller, she said that she learned how to wash a bottle, describing in detail the process of scrubbing, boiling and drying the bottles upside down. She was able to explain in surprising detail what she learned in her CPR class.
Still, there were some areas in which her thinking was flawed or simplistic. She explained that Xavier walked on his toes because he does not have "weight" in his legs. In describing the findings of a CAT scan Claudia received, she said simply that the doctor said "part of her brain wasn't the way it was supposed to be" and that she had a "soft spot" on the back of her head. Ms. S. testified that she learned a strategy for calming herself during a panic attack from a "ninja." As reflected in her choices of names for her children, she has a significant pre-occupation with superheroes and vampires. She has sometimes come to court in Halloween costumes. She said the parenting skills classes were fun, because she liked the dolls they used for demonstration. While her understanding of her children's emotional needs is remarkably nuanced, her characterization of the many workers and service providers she has interacted with over the years was black-and-white: Ms. Rubin always lied; she never gave her a single compliment; she never made a single referral for her; she treated her like a "baby." Her mother who, whatever her shortcomings, accompanied Ms. S. to a multitude of visits at the agency for many, many months and helped care for the children during visits, was, Ms. S. said, lazy, never loved her, and never taught her anything except to keep quiet and keep her feelings to herself. In contrast, Dr. Alkon was kind-hearted, not "mean" like her other workers. At times, when her testimony was clearly mistaken (as when she insisted that she had only had a few therapeutic visitation sessions, not twelve as the therapeutic visitation coach testified and as is reflected in those records), she insisted that the worker was "lying."
Although Ms. S. acknowledges the prior finding of neglect, she does not accept that she, in fact, ever neglected her children. Ms. S. was unable during her testimony to concede any shortcoming in her parenting. Yet, in a less threatening and charged environment when she felt supported, she was open to constructive criticism and motivated to improve her parenting skills.
It is clear from the record that Ms. S. made meaningful progress in her services, with the right approach. While she has and will continue to have challenges, in this court's view, Ms. Rubin vastly overstated the safety concerns that presented themselves during visitation. The record supports the conclusion that, contrary to Ms. Rubin's assessment, Ms. S. should have had at least some unsupervised time with the subject children long before the filing of the TPR petitions.
That this did not occur is troubling, particularly since the dispositional order contemplated an incremental expansion of visitation. In subsequently declining to further expand visitation over the agency's objection, the court relied on reports which, upon full hearing in this proceeding, exaggerated the risk of further expansion of Ms. S.'s visitation. In light of the precariousness of the trial discharge of Logan, the court cannot say that Ms. S. was, at the point of filing of the TPR, in a position to safely care for all four of her children on a full-time basis, but in the absence of any incremental expansion of visitation, that was never put to the test.
The court does not believe that there was willful non-compliance with the court's order. Rather, it appears that Ms. Rubin relied on a "court action summary" prepared by her attorney, as opposed to the actual court order of disposition, an ongoing practice which creates recurring and avoidable confusion about the court's mandates.
Since the filing of this petition, there has been considerable progress, but also some setbacks. The agency conducted an emergency removal of Logan two months after the filing of the TPR petitions, only later to agree to return him to his mother's care with additional conditions and services in place. Logan was final discharged but, since that time, a new neglect petition has been filed as to him, though ACS has not sought to remove Logan. Ms. S. moved out of her mother's home, successfully navigating the shelter system with Logan. Her homeless status has made her newly eligible for supportive housing. Visitation for Claudia has expanded to unsupervised day visits and these have gone without incident. The agency recently sought to modify those visits back to supervised because Ms. S. was allowing Claudia to have contact with someone that the agency learned was a registered sex offender. (There is no evidence that Claudia was ever left alone with the individual or nor was there any suggestion that he abused her.) Ms. S. has since cut off contact with this individual, and has sought and received an order of protection against him. Over the agency's objection, Claudia's Saturday visits have continued.
CONCLUSIONS OF LAW
Social Services Law § 384-b(7) states in pertinent part "[a] permanently neglected child shall mean a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of more than one year following the date such child came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child."
The court must evaluate as a threshold matter whether the agency has exercised diligent efforts to encourage and strengthen the parental relationship. Diligent efforts include (1) consultation and cooperation with parents in developing a plan for appropriate services to the child and his or her family; (2) making suitable arrangements for the parents to visit the child; (3) provision of services and other assistance to the parents so that problems preventing discharge of the child from care may be resolved or ameliorated; and (4) informing the parents at appropriate intervals of the child's progress, development and health (See Matter of Sheila G. 61 NY2d 368 [1984] ; Matter of Guardianship of Star Leslie W. 63 NY2d 136 [1984] ). The agency must not only identify the problems the parent is facing but must make "affirmative, repeated and meaningful efforts to assist" the parent in overcoming them ( Matter of Sheila G. 61 NY2d at 385 ).
After the agency's duty to exercise diligent efforts has been satisfied, the court may consider and determine whether a parent has fulfilled his or her duties to maintain contact with and plan for the future of the child. Even where a parent engages in services, if she fails to benefit from them such that the child would continue to be at risk if returned to the parent's care, a finding of permanent neglect is appropriate ( Star Leslie W., 63 NY2d at 143 ; In re Isaiah Jaysean J., 128 AD3d 438 [1st Dept 2015] ; In re Ebonee Annastasha F., 116 AD3d 576 [1st Dept 2014] ; in re Janell J., 88 AD3d 512 [1st Dept 2011] ; Matter of Rosa S., 38 AD3d 216 [1st Dept 2007] ). Good faith on the part of the parent alone is not sufficient; the "plan must be realistic and feasible" ( Star Leslie W., 63 NY2d at 143 ). Although separate causes of action exist for mental illness and intellectual disability, such disabilities do not relieve a parent of the responsibility to plan realistically for the future of their child and are not a defense to a permanent neglect cause of action ( Matter of Hime Y., 52 NY2d 242 [1981] ).
There is no question that Ms. Rubin put forth significant effort in this case. She referred the mother to a multitude of services, arranged regular visitation, was proactive during those visits in ensuring the safety of the children and made to efforts to coach the mother during those visits. The agency also put a panoply of in-home services in place to support Ms. S. and Logan once he was trial discharged. Ms. Rubin gave written notice to the mother of the many of appointments that her special needs children had with medical, mental health and service providers and provided directions to those appointments.
What the agency failed to do, however, was to create and implement a service plan that was tailored to Ms. S.'s specific needs. In order to satisfy its diligent efforts obligation, the agency must offer services to the family that are adapted to the particular needs of the parent and child or children ( Maria Ann P., 296 AD2d 574 [2d Dept. 2002] ; Matter of Colinia D., 84 AD3d 1755 [4th Dept 2011] ; Matter of Austin A., 243 AD2d 895 [3d Dept 1997] ; Matter of Michael E., 241 AD2d 635 [3d Dept. 1997] ; Matter of Christy C., 226 AD2d 770 [3d Dept 1996] ). Courts have repeatedly held that, in working with a parent with an intellectual disability, the service plan must take the parent's disability into account and courts have declined to find diligent efforts where the service plan failed to adequately do so (see e.g., Matter of Michael E., 241 AD2d at 637 [services offered were not targeted to individuals with developmental disabilities]; Matter of L. Children, 131 Misc 2d 81 [King County 1986] [agency failed to provide services ‘designed specifically to address respondent's primary disability of mental retardation’]; compare Matter of Christy C., 226 AD2d at 771 [in addition to parenting classes and counseling, the agency offered parent aides, instruction and assistance in budgeting, money management, nutrition, fire safety, sanitation and organization] ).
The Court of Appeals recently examined the intersection of the reasonable efforts requirement at a permanency hearing and the Americans with Disabilities Act ("ADA") in Matter of Lacee L. v. Stephanie L. (2018 NY Slip Op. 08966 [October 18, 2018] ). The Administration for Children's Services ("ACS") conceded in that case that the reasonable efforts standard "already includes reasonable attempts to accommodate a parent's disability" and the Court held, consistent with prior caselaw, that where a parent has a disability, including an intellectual disability, the agency's service plan must be tailored to the specific needs of the individual (Id. at 4). It was also undisputed, and the Court held, that ACS must comply with the ADA (Id. ). While the Court stopped short of deciding whether the ADA and New York's reasonable efforts standard are "coterminous or distinct in any way," the Court made clear that, in evaluating reasonable efforts, courts "may look at the accommodations that have been ordered in ADA cases to provide guidance as to what courts have determined in other contexts to be feasible or appropriate with respect to a given disability" (Id. ). Nevertheless, the Court found that failure to provide ADA compliant services within the six-month permanency reporting period would not necessarily preclude a finding of reasonable efforts. The court reasoned that "New York's six-month measuring period is not a final determination as to the agencies' efforts to provide services, but a periodic checkpoint to help ensure that at-risk children are not falling through bureaucratic fissures" (Id. at 5).
Of course, at a termination of parental rights proceeding, the evaluation of diligent efforts is not limited to a six-month period. It is the final evaluation of the sum total of efforts made toward reunification. The agency, by that point, should be able to demonstrate that appropriate, adapted services consistent with the reasonable accommodation requirements of the ADA were offered and that the parent refused or was unable to plan in spite of them.
Although Ms. S. did not specifically rely on the Lacee L. decision, which was decided only two weeks before the court heard summations in this case, the failure to provide appropriately tailored services was a principle theme, and the petitioner acknowledged the decision and its applicability to this case. While counsel did not provide any specific authority concerning ADA accommodations, and an exhaustive survey is neither practical nor necessary, the United States Equal Employment Opportunity Commission ("EEOC") has provided guidance in this area. The EEOC has identified a broad range of accommodations that may be appropriate for people with intellectual disabilities in the workplace context, including but not limited to: training or detailed instructions to do the job, which may include having the trainer or supervisor give instructions at a slower pace; allowing additional time to finish training; breaking job tasks into sequential steps required to perform the task; using charts, pictures or colors; providing a tape recorder to record directions as a reminder of steps in a task; using detailed schedules for completing tasks; providing additional training when necessary; providing a job coach who can, inter alia, assist the employee in learning how to do the job; and providing intensive monitoring, training, assessment and support (see Questions and Answers about Persons with Intellectual Disabilities in the Workplace and the Americans With Disabilities Act (ADA) at https://www.eeoc.gov/laws/types/intellectual_disabilities.cfm).
Ms. Rubin did take some steps to try to tailor services to what she understood to be Ms. S.'s cognitive limitations in that she arranged for her to undergo a psychological evaluation, which included an assessment of her cognitive functioning. The therapeutic visitation, although of short duration, yielded concrete benefits, as did the dyadic therapy, both services that were hands-on and tailored to the particular needs of Ms. S. and her children. Ms. Rubin also made a referral for a special needs parenting class catering to parents with developmental disabilities. While the agency was concededly stymied by the court in pursuing this avenue when the court determined that the more hands-on services that Ms. S. was receiving should be prioritized, Ms. Rubin failed to make a referral for other services, including day habilitation services, which were specifically recommended by Ms. S.'s psychological evaluation.
Since the filing of the TPR petitions, Ms. S. has made enormous strides in her independence. It seems hardly a coincidence that this progress has been made since OPWDD day habilitation services, designed precisely to help people with developmental disabilities with daily living skills, and other supports provided through OPWDD were put into place through the efforts of her attorney. These skills are critical not only to Ms. S.'s ability to function independently but also to parent her children. This is most obvious around the issue of transportation, since the children have a multitude of appointments with services providers and getting to appointments has been a persistent concern. Other skills such as cooking, housekeeping, budgeting and time management would also fall under this umbrella.
Although Ms. S. has been encouraged to participate in appointments for Xavier and Claudia's services, the agency has not taken any steps to ensure that information concerning her children's disabilities and services provided at those appointments was presented to her in a manner that Ms. S. could understand. When Dr. Alkon did just that with respect to Claudia's needs, Ms. S. developed a better understanding of her daughter's needs and was able to interact with her in a developmentally appropriate way. However, as noted by Dr. Alkon, Ms. S. requires ongoing education concerning her children's evolving needs. This is not something that a parenting skills class of limited duration with a curriculum not tailored to the individual needs of her children, even one designed for intellectually disabled parents, could satisfy.
Ms. Rubin conceded during her testimony that she did not have specific training in working with people with developmental disabilities. Lacking such expertise, she nonetheless failed to seek the advice of an expert in working with adults with intellectual disabilities in formulating a service plan. As a result, she was unfamiliar with the range of community-based services that might have been offered to Ms. S. Had Ms. Rubin had appropriate training or expert guidance, she might also have been able to identify and employ more effective strategies for her direct work with Ms. S. For instance, while Ms. Rubin's efforts in providing appointment letters and Hop-Stop directions were undoubtedly well-intentioned, these approaches were not well adapted to Ms. S., whose reading and analytical skills are limited.
In making the assessment that the agency failed to exercise diligent efforts, the court recognizes that the lack of expertise and resources in working with parents with intellectual disabilities who are involved in the child welfare system is a pervasive national problem. A searing 2012 report issued by the National Council on Disability ("NCD"), entitled "Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children" found that "[t]he child welfare system is ill-equipped to support parents with disabilities and their families [including parents with intellectual disabilities], resulting in disproportionately high rates of involvement in child welfare services and devastatingly high rates of parents with disabilities losing their parental rights" (National Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children [September 27, 2012] [hereinafter "NCD Report"], Finding 2 at 242). The report notes that the ASFA permanency timelines, which contemplate the commencement of a termination of parental rights petition if a child remains in care more than 15 of the most recent 22 months, are unduly burdensome on parents with disabilities who may require more time to address the concerns that led to their children's removal than non-disabled parents (NCD Report at 86). The report further found that "parents with disabilities who are involved in dependency or family court proceedings regularly face evidence regarding their parental fitness that is developed using inappropriate and unadapted parenting assessments. Resources are lacking to provide adapted service and adaptive parenting equipment and to teach adapted parenting techniques" (NCD Report, Finding 4 at 246). While deinstitutionalization brought with it a wide array of community-based services and supportive housing options for developmentally delayed adults, "[l]ittle focus has been directed at providing parenting support and services as part of general support for people with intellectual disabilities in the community" (NCD Report at 211). Moreover, when service plans are designed, "the child welfare agency typically flounders as it attempts to find evaluation, assessment and intervention providers who are familiar with people with intellectual disabilities, and the services designed for people with intellectual disabilities are typically not focused on parenting" (NCD Report at 12).
NCD is an independent federal agency charged with advising the President, Congress, and other federal agencies regarding policies, programs, practices, and procedures that affect people with disabilities.
The court notes that the law does permit a deviation from the 15/22 rule for a compelling reason, including where filing of a termination of parental rights petition would be contrary to the best interest of the child and the permanency goal is not adoption. SSL § 384-b(3)(l).
--------
The report identifies specific practices associated with effective services to parents with developmental disabilities. These include: services that are responsive to the parents' individual needs and focus on the whole family; and (echoing the recommendations of Dr. Alkon in this particular case) services that include long-term, ongoing supports to help the parent adapt to the child's changing needs; services that are geared toward the special learning needs of the parent, that are repetitive, use demonstration, and use resources that require little or no reading. In addition, the report recommends that learning occur in the home and that service providers help parents become part of their community, which can become a source of support (NCD Report at 212). Not coincidentally, many of these recommended approaches are akin to the kinds of ADA accommodations recognized by the EEOC as being appropriate in the employment context for individuals with intellectual disabilities.
This comprehensive NCD report, issued contemporaneously with the removal of the subject children in this case, encapsulates the challenges that this case has presented: a lack of understanding of the service needs of the family, limited service options tailored to meet the family's needs, and a lack of familiarity with those limited resources that are available. While some of the services the family received, specifically, the therapeutic visitation and dyadic therapy services used modalities that were appropriate and effective for Ms. S., they were of limited duration and served limited goals. The court is unaware of any services in New York City that provide on an ongoing basis the kind of individualized parenting support for parents with intellectual disabilities described in the NCD report and recommended by Dr. Alkon. To the court's knowledge, there are no supportive housing options specifically designed for parents with intellectual disabilities, although this was explored during the pendency of the case. To the agency's credit, it did go to some lengths to cobble together resources which, although not ideally suited to the family's needs, have provided in-home support to Ms. S. since Logan was returned to her care.
While the court laments the dearth of adapted services available to support families such as the S.s, it is clear that, in this case, the agency failed to make a referral for critical services that were in fact available through OPWDD. Although not specifically geared toward parents, these services are designed to improve life skills crucial to effective parenting. On this basis alone, the court finds that the agency failed to make diligent efforts with respect to the family. Moreover, when an agency is charged with working with a parent with an identified disability, the failure to ensure that the case worker or social worker responsible for case planning has adequate training in working with a person with the disability or, at a minimum, consults with someone with the appropriate expertise in formulating and executing the service plan, also constitutes a failure of diligent efforts. The court need not explore whether diligent efforts may require more than currently available services have to offer, since the agency failed to take advantage of available resources.
While the failure to exercise diligent efforts requires dismissal of the petition, the evidence also does not support the conclusion that Ms. S. failed to plan for the future of her children. On the contrary, the record shows that Ms. S. substantially complied with the service plan and benefited from services, particularly those tailored to her needs. Ms. S. showed an extraordinary devotion to her children, a profound empathy, and a deep understanding and appreciation of their differences. She managed to maintain and build a strong bond with each child through years of separation.
Ms. S. complied with and successfully completed all the recommended services except for individual counseling. The court does not find that her failure to complete that service (which was not, in any event, conclusively established by non-hearsay evidence in the record), was a barrier to reunification, inasmuch as there was no mental health condition identified which necessitated such counseling (see e.g. Matter of Austin C., 77 AD3d at 939 [parents failure to continue counseling after she was discharged, absent proof of ongoing need does not constitute a failure to plan] ). Although dyadic therapy was not completed until after the filing of the TPR petitions, the referral was not made for almost a year after the children were removed. Delays in completing the 26-session program were in large part not attributable to Ms. S.
The agency contends that despite her engagement in services, Ms. S. was unable to ensure the children's safety, even in the confined space of a visiting room under the watchful eye of a social worker; but where the agency social worker assigned to the family saw chaos and danger, other professionals, including the therapeutic visitation coach employed by the same agency, had no safety concerns. The court finds that the agency's concerns were overblown. Unfortunately, as a result, the agency failed to appropriately and incrementally expand visitation, depriving Ms. S. of the opportunity to demonstrate whether she safely could care for the children who remained in foster care after Logan's discharge.
The evidence shows that Ms. S. gained insight and developed skills in response to appropriately tailored interventions. Moreover, given that a parent with an intellectual disability necessarily learns through repetition and at a slower pace, additional time to successfully master certain skills would constitute a reasonable accommodation. As of the time of the filing of the TPR petitions, Logan, a child who himself has extensive special needs, had been in his mother's care for nearly a year with the agency's consent. Under the circumstances, the court cannot conclude that the petitioner met its burden to show by clear and convincing evidence that Ms. S. failed to plan.
The court notes that this determination is supported by the attorney for Claudia and consistent with her express wishes, and by the attorney for the child Xavier who, due to Xavier's limited expressive skills, necessarily substituted judgment in arriving at that position.
Finally, in making this determination, the court is mindful that a considerable period of time has elapsed since this petition was filed and that Xavier and Claudia still have not been successfully returned to their mother's care. Subsequent events cannot, however, excuse the lack of diligent efforts during the relevant time period. While there have been setbacks along the way, meaningful if slow progress has been made. Logan remains in Ms. S.'s care and Claudia is now enjoying day visits. Ms. S. has recently been determined to be eligible for supportive housing services which, though not specifically tailored to her needs, is a promising development. There is, however, no guarantee that, in the absence of ongoing adapted services, Ms. S. will be able to safely care for either or both subject children, Xavier and Claudia, in addition to Logan. The unavailability of such services is a problem that warrants the legislature's urgent attention. In the absence of such services, children who could perhaps be reunited with their parents will not be, and courts will continue to face the tragic, avoidable choice between severing loving relationships such as the one Xavier and Claudia enjoy with their mother and relegating the children to long-term foster care.
Inasmuch as the petitioner failed to show by clear and convincing evidence that it exercised diligent efforts to strengthen the parental relationship or that Ms. S. failed to plan for the future of the children, the petition is DISMISSED.
This constitutes the decision and order of the court.