Opinion
No. B–02910/11–09.
2011-06-25
In the Matter of ELSA R. and Miracle R., Children under eighteen years of age permanently neglected by Gloria R., Respondent.
Monroe County Law Department, by Kerri E. Machado, Esq., for Petitioner. Mitchell A. Chait, Esq., for Respondent.
Monroe County Law Department, by Kerri E. Machado, Esq., for Petitioner. Mitchell A. Chait, Esq., for Respondent.
Gilberto R. Perez, Esq., Attorney for the Child Elsa R.
Eric D. Handelman, Esq., Attorney for the Child Miracle R.
DANDREA L. RUHLMANN, J.
Elsa (dob:—/—/—) and Miracle (dob:—/—/—) R. are children permanently neglected by Respondent Mother Gloria R. (Social Services Law § 384–b [7][a]; Family Court Act § 622). On consent of the parties the Court held a combined dispositional and post-termination hearing pursuant to Matter of Kahlil S. (60 AD3d 1450 [4th Dept 2009], lv dismissed12 NY3d 898 [2009] ). The Court heard testimony and assessed the credibility of the Monroe County Department of Human Services' caseworker Heather M. and Respondent Gloria R. and received certain documentary evidence. The Court also heard in camera testimony from Elsa and met with and observed Miracle. Based on the totality of the evidence the Court finds that it is in the best interests of the children that Respondent's parental rights be terminated and that the children be released into Petitioner the Monroe County Department of Human Services' (hereinafter DHS) care and freed for adoption (Family Court Act § 631[c] ). Nonetheless the Court will order post-termination contact between Respondent Gloria R. and her daughters consisting of six two-hour visits annually ( see Matter of Ayodeji W., 78 AD3d 1563 [4th Dept 2010], lv denied16 NY3d 703 [2011];Matter of Samantha K., 59 AD3d 1012 [4th Dept 2009] [affirming court-ordered post termination contact] ). Such visits shall take place at the Society for the Protection and Care of Children (hereinafter SPCC) while the children are still in the guardianship and custody of DHS. When the children are adopted and no longer in DHS's care, the location of the visits will take place at a visitation agency able to provide such service.
SPCC recently informed the Court that once DHS' case with this family is closed, SPCC can no longer provide visitation services to the family as its contract runs through DHS. The Court is working to locate an agency that will provide such visitation services and emphasizes the tremendous need. As the law allows for post-termination contact, there must be a practical way to provide it. The Court charges DHS to aid in this search for an appropriate agency.
Where there has been a finding of permanent neglect, the Court has three dispositional alternatives: (1) dismissal of the petition; (2) suspension of judgment for up to one year; or (3) the termination of parental rights and the commitment of the custody and guardianship of the children to the agency so that the children may be adopted (Family Ct Act § 631). An order of disposition shall be made “solely on the basis of the best interests of the child[ren], and there shall be no presumption that such interests will be promoted by any particular disposition” (Family Ct Act § 631; see Matter of Star Leslie W., 63 N.Y.2d 136, 147–148 [1984] [“Unlike a fact-finding hearing which resolves the issue of permanent neglect and in which the best interests of the child[ren] play no part in the court's determination, the court in the dispositional hearing must be concerned only with the best interests of the child[ren]”). Both Petitioner DHS and the Attorney for the Child Miracle advocate for the termination of Respondent's parental rights. Respondent contends that either the petition should be dismissed or the Court should suspend judgment. Elsa's Attorney advocates for a suspended judgment allowing Elsa to return home on a trial discharge.
A suspended judgment is “a brief grace period designed to prepare the parent to be reunited with the child[ren]” (Matter of Mya B., 84 AD3d 1727, 2011 N.Y. Slip Op 03761 [4th Dept decided May 6, 2011], quoting Matter of Michael B., 80 N.Y.2d 299, 311 [1992];Family Ct Act § 633). Only “exceptional circumstances” require an extension of that period for an additional year (Family Ct Act § 633[b] ). As such, a compelling factor in evaluating whether a judgment should be suspended is whether the parent can meet the children's developmental needs within a reasonable time frame ( see Matter of Nicholas B., 83 AD3d 1596 [4th Dept 2011] [suspended judgment denied where at the time of the dispositional hearing the children were in foster care for approximately six years] ). Here Elsa and Miracle have been in care for almost six years and Respondent still receives only supervised visitation with her daughters and has no realistic, feasible plan to care for them (Matter of Nicholas B., 83 AD3d 1596 [4th Dept 2011]; Matter of Malashia B., 71 AD3d 1493 [4th Dept 2010], lv denied15 NY3d 701 [2010] [suspended judgment denied where respondent still received only supervised visitation] ). Elsa and Miracle deserve permanency.
Post-termination Contact
While the legal definition of permanency is one thing, the reality is entirely different for children who are losing a parent and will feel that loss always. A Court must consider whether a non-traditional relationship between parent and child should continue post-termination ( see Matter of A.B. v. D.W., 16 Misc.3d 1101[A] [Fam Ct, Monroe County 2007, citing Matter of Jovan J., 7 Misc.3d 1028[A] [Fam Ct, Monroe County 2005] ). Respondent and Elsa have proven that post-termination contact is in Elsa's best interest ( see Matter of Ayodeji W., 78 AD3d 1563 [4th Dept 2010], lv denied16 NY3d 703 [2011];Matter of Samantha K., 59 AD3d 1012 [4th Dept 2009] [affirming court-ordered post termination contact] ). Attorney for Miracle does not object to post-termination contact and acknowledges that Miracle and Respondent have a significant bond. As Elsa and Miracle are in the same foster home—which Petitioner DHS has continually identified as an adoptive placement for both girls—the Court finds that Miracle will also benefit from continuing a non-traditional relationship with Respondent as the sisters can visit Respondent together.
The Court has considered the appropriate factors in determining that there should be post-termination contact: (1) the children's ages; (2) whether there is a potential adoptive resource and the emotional attachment between the resource and children; (3) whether visitation would interfere with any potential adoptive resource; (4) whether a significant bond between the children and the biological parent exists; and (5) the history of parent-child visitation ( see Matter of Imani W., 26 Misc.3d 792 [Fam Ct, Monroe County 2009]; Matter of Maximus H., 25 Misc.3d 1241[A] [Fam Ct, Monroe County 2009] ).
The most telling proof was thirteen-year-old Elsa's testimony. The Court held two in camera interviews with Elsa and was very impressed by her insight and maturity. In no uncertain terms Elsa and Respondent have a bond unbreakable by the legal act of termination. While Petitioner argues that foster mother Melanie W. “would not be willing to be an adoptive resource if Respondent is granted [more than 2 visits annually]” (Petitioner's Summation, p. 10), Ms. W. did not testify. Ms. M., DHS caseworker, testified that Ms. W. is equivocal about adopting Elsa and Miracle. About Elsa, the caseworker testified that Ms. W. said she is “committed but having her doubts.” About Miracle, the caseworker testified that Ms. W. is “thinking about that decision.” Visitation every other month in a supervised setting should alleviate any safety concerns Ms. W. may have—and should not impact her decision about whether she wishes to adopt the girls. Ms. W. has seven children in her home, two biological and five foster children, and certainly must give careful thought to adoption. Allowing for continued visitation with Respondent every other month will afford the girls distance from Respondent to be freed for adoption by a loving family who can fully commit—as well as acknowledging a most significant bond between the girls and Respondent. While Petitioner cites to Respondent's prior inconsistency in visiting the girls—including a failure to visit from January—April 2010, and Respondent's erratic behavior, the Court notes that Respondent was then contesting visits at SPCC's prior location and was awaiting new visitation arrangements. Since SPCC's location change Respondent's visitation is more consistent. The Court has reviewed the admitted SPCC records and finds that Respondent has the ability to interact lovingly with the girls. The caseworker too testified that during the visits she observed, Respondent has been appropriate and she has no safety concerns for the girls. With specified dates and times every other month, Respondent should avail herself of the visits understanding that if she does not visitation shall cease.
NOW THEREFORE, it is
ORDERED that the guardianship and custody of Elsa and Miracle R. are committed to Petitioner for the purpose of adoption; and it is further
ORDERED that Respondent shall have six (6) two-hour visits annually with Elsa and Miracle consistent with the children's best interests at the time of the visit; and it is further
ORDERED that such visits shall take place at SPCC while the children remain in the guardianship and custody of DHS; and it is further
ORDERED that after Elsa and Miracle R. are adopted such visitation shall continue to occur in a supervised setting and the Court will inform the parties of such successor agency; and it is further
ORDERED that visitation shall be arranged through DHS and SPCC and the future successor agency providing visitation; and it is further
ORDERED that Respondent shall contact SPCC or the successor agency at least two weeks in advance to schedule the visits and SPCC or any successor agency shall then contact the adoptive parent; and it is further
ORDERED that in the event Respondent fails, over a six-month period to contact SPCC or any successor agency to arrange a visit or misses more than two visits a year then further contact shall occur at the sole discretion of the adoptive parent.